text:
      In re MARRIAGE OF CLETUS RICHARD GARDE, Petitioner and Counterrespondent-Appellant, and BEVERLY ANN GARDE, Respondent and Counterpetitioner-Appellee.
    Fifth District
    No. 82—681
    Opinion filed September 19, 1983.

      Earl L. Vuagniaux, P.C., of Edwardsville, for appellant.
    D. Kent Troné, of Edwardsville, for appellee.
   JUSTICE EARNS

delivered the opinion of the court:

Petitioner, Cletus Richard Garde, appeals from the judgment of the circuit court of Madison County denying his motion to vacate a judgment entered after trial at which only the wife, Beverly Ann Garde, appeared and presented evidence. The judgment provides for the division of property and maintenance in an action for dissolution of marriage.

Cletus and Beverly Ann Garde were married on March 23, 1979, and separated July 29, 1981. There were no children of this marriage. While married, the Gardes purchased a 1981 Ford Escort and a house in Edwardsville, Illinois. Beverly Ann already owned several vehicles and a house in Arnold, Missouri. In 1980, the title to the Missouri house was put in their joint names. Each party owned household goods and other personal property at the time of their marriage and each was employed during the marriage.

Both parties sought dissolution of the marriage and temporary relief with regard to property. On Cletus’ motion of January 12, 1982, the court entered an ex parte order enjoining, both parties from disposing of any assets. On January 20, 1982, the court granted Beverly Ann’s petition ordering Cletus to pay her $245 per month temporary maintenance and requiring him to make mortgage payments on the house in Arnold, Missouri, where Beverly was then living.

The matter was tried on its merits in a bifurcated proceeding. At the first hearing on August 31, 1982, the court dissolved the marriage on the grounds of Cletus’ extreme and repeated mental cruelty. The earlier order of temporary relief was continued in full effect until the second hearing could be held on “the remaining issues and permanent relief.” The second trial was set for October 4, 1982. On September 2, 1982, an employee in the circuit clerk’s office prepared a notice of the second trial date and followed established office procedures in mailing carbon copies of the notice to D. Kent Troné, attorney for Beverly Ann, and to Joseph Kelleher, attorney for Cletus.

Kelleher and Cletus deny having received the circuit clerk’s notice of the October 4 trial. At the hearing to vacate the judgment, Kelleher and his secretary testified that they had experienced difficulty in receiving mail unless it was addressed to “P. O. Box 224.” The secretary admitted, however, that a copy of the notice prepared by the circuit clerk’s office was addressed to “P. O. Box 224.” The notice of the October 4 trial had not been returned to the circuit clerk’s office by the postal service, and that office was unaware of any problem with the notice.

Between September 8 and September 29, 1982, both attorneys received documents in which October 4, 1982, was recited as the date of trial. Kelleher admitted that he received and discussed with Cletus Beverly Ann’s Motion to “Permit Access to and Inspection of Real Estate for the Purpose of Making Appraisals.” This motion stated “that the hearing on all the remaining issues herein is presently scheduled for Monday, October 4, 1982, at 1:00 p.m. ***.” Both Mr. Kelleher and his secretary admitted receiving Beverly Ann’s “Supplemental Notice Requiring the Petitioner-Counterrespondent to Appear and to Produce Certain Records *** at the trial and/or hearing herein on all the remaining issues herein on Monday, October 4, 1982 ***.” Kelleher directed his secretary to reverse the names of the parties and send the same demand for records to Beverly Ann. The first paragraph of the supplemental notice signed by Kelleher stated that the trial date was October 4,1982.

When neither Cletus nor Kelleher appeared at trial on October 4, the court checked with the attorney’s office and learned he was out of town on another matter. After hearing Beverly Ann’s testimony and evidence on all remaining issues, the court divided the property and modified the temporary maintenance order. Cletus was awarded the Edwardsville house after paying $15,000 to Beverly Ann. She retained the Missouri property. Each was responsible for the mortgages and indebtedness on their respective houses. Beverly Ann received all the personal property at the Arnold house as well as specified items of personal property in Cletus’ possession. Cletus received the 1981 Ford while Beverly Ann kept the vehicles she had owned before the marriage. Each retained all bank accounts not held in their joint names and life insurance policies, with Cletus retaining all his pension and retirement programs as well. Although Cletus was ordered to pay the balance due to Psychiatric Associates, Inc., and other debts incurred through September 29, 1981, each party was responsible for debts incurred after their separation as well as attorney fees and expenses. Finally, Cletus was ordered to pay $245 in arrears on the temporary maintenance payments and $500 per month as permanent maintenance for 12 months after entry of judgment.

Within days of the entry of judgment, Cletus filed two motions to have it vacated. On October 13, 1982, Kelleher filed a motion to vacate the judgment which alleged that Cletus believed he had “a good and meritorious defense to many of the claims of Beverly Ann Garde with regard to property ***.” Two days later, Earl L. Vuagniaux, Cletus’ new attorney, moved to vacate the judgment because of “a good and meritorious defense *** with regard to the issues pending on October 4, 1982.” Neither motion was signed nor verified by Cletus. Neither contained facts in support of the claim of a good defense.

After hearing argument on both motions, the trial court denied them. In a supplemental order of court, the trial judge stated his finding that Kelleher had received notice of the October 4 trial by receiving Beverly Ann’s motion for inspection of the property and motion to produce records at trial. The court further found that subsequent to the October 4 trial and Kelleher’s inspection of the court file, Kelleher’s motion to produce had been removed from the court file and an altered photocopy of the circuit clerk’s notice had been substituted for the original. The altered copy was addressed to Kelleher at “Route 157 South” instead of “P. O. Box 224” as in the original. From these facts, the trial court concluded that Kelleher had received the circuit clerk’s notice.

At issue is whether the trial court erred in denying the motions to vacate the judgment. We affirm.

Although both parties speak of the October 4 judgment as a default judgment, we think it is properly characterized as a judgment on the merits entered after an ex parte hearing. The court acted fully in accord with the rule that “once a defendant appears and places in issue the allegations in the complaint a trial court cannot enter a default judgment merely because defendant failed to appear at trial. A plaintiff must proceed to prove his claim as if the defendant had been present to try the case.” (Ryan v. Bening (1978), 66 Ill. App. 3d 127, 131, 383 N.E.2d 681, 683; Koenig v. Nardello (1968), 99 Ill. App. 2d 480, 241 N.E.2d 567.) Beverly Ann appeared at the October 4 hearing and presented evidence. Lacking a report of the proceedings of the October 4 hearing, we presume the trial court heard adequate evidence to support its judgment, as it stated in the final judgment. Smith v. Smith (1962), 36 Ill. App. 2d 55, 183 N.E.2d 559.

Cletus sought to vacate the judgment under present section 2 — 1301(e) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1301(e), formerly Ill. Rev. Stat. 1981, ch. 110, par. 50(5)) which provides: “The court *** may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” The court’s premier concern in such a case must be whether substantial justice is being done between the litigants and whether, under the circumstances, it is unreasonable to force the other party to trial on the merits. (People ex rel. Reid v. Adkins (1971), 48 Ill. 2d 402, 406, 270 N.E.2d 841, 843.) Factors in determining whether to vacate a judgment are the movant’s due diligence and showing of a meritorious defense or a good excuse. Brown v. Drovers National Bank (1977), 54 Ill. App. 3d 593, 370 N.E.2d 30.

Neither of petitioner’s unverified motions to vacate does more than allege a good and meritorious defense. The record of the hearing on the motions to set aside the judgment reveals no argument of a meritorious defense. As we said in Baltz v. McCormack (1978), 66 Ill. App. 3d 76, 383 N.E.2d 643, the trial court did not err in refusing to vacate a judgment where the unverified motion was bare of facts to support a claim of meritorious defense.

Seeking to excuse his absence from court on October 4, Cletus makes much of the claim that neither he nor his attorney received notice of the October 4 trial from the circuit clerk’s office, the lack of which deprived him of his day in court. We think that Cletus’ day in court was not denied but ignored. The record makes crystalline the fact that Kelleher had actual notice of the trial date from the motions received from the opposing party. Kelleher discussed the first of these motions with Cletus and adapted the second to his own purposes, sending it out over his own signature. “The object of notice is to inform the party notified, and if the information is obtained in any other way other than by formal notice, the object of notice is attained.” (Schumacher v. Wolf (1905), 125 Ill. App. 81, 84.) In Adams v. Grace (1970), 128 Ill. App. 2d 69, 79, 262 N.E.2d 489, 494, the court found no merit in appellant’s argument “that the sending of the notice for a hearing *** by opposing counsel, rather than by the clerk of the court, excuses his conduct where he actually receives that notice.”

Moreover, the trial court could reasonably have concluded that Kelleher had received the circuit clerk’s notice. Kelleher’s secretary admitted that the notice was addressed to the office to which Kelleher’s mail was routinely delivered. No rebuttal was made to testimony that the notices had been placed in properly addressed envelopes, posted in the normal manner and had not been returned. Unknown persons eliminated from the court file evidence which could support the court’s conclusion that Kelleher had received notice of the October 4 hearing.

The trial court took the view that the litigant was bound by his attorney’s acts. While the practice of imputing an attorney’s negligence to his client may sometimes visit “drastic and vicarious punishment on an unsuspecting litigant” (Adams v. Grace (1970), 128 Ill. App. 2d 69, 80-81, 262 N.E.2d 489, 495), we think the court’s refusal to vacate the October 4 judgment left in place a property division which has not been shown to be unfair. In his motions to set aside the judgment, Cletus neither alleges unfairness nor supplies facts to support such an allegation. At the hearing to set aside the judgment, no evidence was offered to show that the division was not a just one. Justice does not require a second hearing where a previous opportunity to speak was not seized. In re Marriage of Kopec (1982), 106 Ill. App. 3d 1060, 436 N.E.2d 687.

Finally, it is argued that where the record shows litigation would pose no hardship for the opposing party, the judgment should be set aside. Hardship, however, is not considered in isolation and “[a] court *** can consider the conduct of the moving party and weigh the possibility of hardship to the opposing parties.” (Green v. Myers (1982), 106 Ill. App. 3d 541, 543, 436 N.E.2d 43, 45.) Under the circumstances, we think it is a hardship to require Beverly Ann to reassemble her Missouri witnesses for further trial in Edwardsville, Illinois.

The task of the trial court is to “distribute marital property in an equitable manner taking into account all relevant factors and its decision in this regard will not be reversed absent an abuse of discretion.” (In re Marriage of Kopec (1982), 106 Ill. App. 3d 1060, 1063-64, 436 N.E.2d 684, 687.) “[A]ll property acquired by either spouse after the marriage *** is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of coownership ***.” Nonmarital property includes “property acquired before the marriage ***. The court shall assign each spouse’s nonmarital property to that spouse.” (Ill. Rev. Stat. 1981, ch. 40, par. 503.) Maintenance may be awarded “in such amounts and for such periods of time as the court deems just *** after consideration of all relevant factors.” Ill. Rev. Stat. 1981, ch. 40, par. 504.

In the present case, it appears to us that the trial court has dealt equitably with the parties. Beverly Ann was awarded her original home in Missouri and several vehicles she owned with her children. She also received personal property at the Missouri house and specific items, mostly jewelry and mementos, which were in Cletus’ possession. She was awarded $15,000 for her interest in the Edwardsville house which was marital property purchased for $70,000 and encumbered with a mortgage of less than $8,000. Cletus was given the Edwardsville home from which he was receiving rental income. He also received the 1981 Ford bought during the marriage. Each party was responsible for the remaining obligations on their respective vehicles and houses. Beverly Ann’s mortgage payment was more than double the amount of the mortgage on the Edwardsville house awarded Cletus. Cletus was not required to pay Beverly Ann’s debts subsequent to their separation or her attorney fees and expenses. The maintenance payments of $500 per month were to continue for 12 months. In light of all the relevant factors, including the relative earning capacities of the parties, the substance of the judgment was not fundamentally unfair to the parties.

For the foregoing reasons, the judgment rendered by the circuit court of Madison County is affirmed.

Affirmed.

HARRISON, P.J., and JONES, J., concur.


source: Caselaw Access Project

author: JUSTICE KARNS

license: Public Domain

text:
    BILL V. BELL, Adm’r of the Estate of Jack W. Bell, Deceased, et al., Plaintiffs-Appellees, v. RANDOLPH REID et al., Defendants-Appellants.
    Fifth District
    No. 83—142
    Opinion filed September 23, 1983.

      Jerome E. McDonald, of Campbell, Furnall, Moore & Jacobsen, P.C., of Mt. Vernon, for appellants.
    Feiger, Quindry, Molt, Harvey, Fyie & Hawkins, of Fairfield (Morris Lane Harvey, of counsel), for appellees.
   JUSTICE KARNS

delivered the opinion of the court:

The circuit court of Wayne County entered judgment in favor of plaintiffs, Bill V. Bell, administrator of the estate of Jack W. Bell, and Deborah K. Bell, in their actions for wrongful death and personal injuries arising out of the negligent operation of a motor vehicle by defendant, Randolph Reid, alleged to be the agent and servant of defendant, Fillmore Reid. The court granted plaintiffs’ motions for directed verdict at the close of all the evidence. Only Fillmore Reid appeals.

In September 1979, Jack W. Bell was killed and plaintiff Deborah K. Bell was severely injured when the motorcycle on which they were riding collided with a pickup truck owned by defendant Fillmore Reid and operated by defendant Randolph Reid on the Mt. Erie-Cisne blacktop at a point approximately nine miles east of its intersection with U.S. Route 45 in Wayne County. Plaintiffs’ six-count amended complaint contained three theories of recovery. Both plaintiffs alleged negligent operation of a motor vehicle against Randolph; negligent entrustment of a motor vehicle against Fillmore; and vicarious liability against Fillmore for the alleged negligence of Randolph committed while in the scope of his employment with Fillmore. The court found that the evidence established Randolph’s negligence and the existence of an agency relationship between the two defendants at the time of the occurrence described in the complaint and further established that Fillmore negligently entrusted his vehicle to Randolph.

The directed verdict finding Randolph liable is not contested. The inquiry here is limited to whether the trial court erred in directing a verdict as to Fillmore under the familiar test established by our supreme court in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

A substantial amount of evidence presented involved proof of what Fillmore Reid either knew or did not know regarding Randolph’s previous driving record. Plaintiffs attempted to show Fillmore’s knowledge of Randolph’s violations of the Motor Vehicle Code in an attempt to prove that he negligently entrusted his vehicle to Randolph on the day in question. Defendants introduced evidence tending to show Fillmore’s lack of knowledge about such incidents. While we question the propriety of the court’s directed verdict on these counts, since defendants presented contrary evidence thus creating a question of fact, we need not pass upon this issue. Where there are two grounds for recovery pleaded in support of the same demand, the judgment may stand if either ground is sufficient to sustain it. See Moore v. Jewel Tea Co. (1970), 46 Ill. 2d 288, 263 N.E.2d 103; Ill. Rev. Stat. 1981, ch. 110, par. 2-1201(d).

Randolph Reid is the grandson of Fillmore and Edna Reid. He first came to live with his grandparents near Cisne around 1961. He resided with them until 1968 when he went to live with his mother in California. He returned to live with his grandparents in July 1979 and was residing there on their farm at the time of the accident in question.

In September 1979, Randolph was a full-time employee of the Barr Drilling Company. Both grandparents testified that Randolph also performed various types of chores around their farm incidental to that type of living. He took care of some animals, repaired fences and did maintenance work on the buildings when needed.

On September 10, 1979, Randolph drove away from the farm in Fillmore’s pickup truck at approximately 1:15 p.m. Through the testimony of both grandparents, it was established that he intended to go to Olney, 30 miles away. Edna Reid testified that she did not know what Randolph was going to do in Olney but Fillmore testified that Randolph “*** went over there to see about a tire and the battery [for one of my tractors.]” That was the last either of them heard from Randolph until the following morning when they learned that he had been involved in an accident the previous evening. The accident occurred at approximately 6 p.m., about five hours after Randolph had left the farm.

In order for the owner of a motor vehicle to be held liable for the negligent operation of the vehicle by another, it must be shown that the relationship of principal and agent, or master and servant, existed between the owner and the driver at the time of the negligent operation. “It is unquestioned that, as a matter of evidence, mere proof of one defendant’s ownership of an automobile driven by another defendant is prima facie proof of agency, which if not rebutted will support a judgment for plaintiff, insofar as the proposition of agency is concerned.” (Parrino v. Landon (1956), 8 Ill. 2d 468, 470, 134 N.E.2d 311, 312.) In the instant case, plaintiffs’ evidence made out a prima facie case of agency between Fillmore and the driver of his vehicle in that it showed unquestionably that Fillmore owned the vehicle involved. In fact, Fillmore admitted ownership. While plaintiffs retained their overall burden of proof, it was then incumbent upon defendants to go forward and introduce evidence to show that the driver was in fact not acting in the capacity of an agent at the time of the mishap in order to meet plaintiffs’ prima facie case. (McElroy v. Force (1967), 38 Ill. 2d 528, 232 N.E.2d 708.)

«*** [A] very good reason for attaching to proof of ownership on the part of the plaintiff, or an admission to that effect by the defendant, a presumption that the driver of the automobile was the defendant’s servant and engaged in his business at the time and place in question, is to be found in the fact, which is pointed out in a number of the decisions, that, if the defendant is in fact the owner of the automobile, it should be an easy matter for him to bring forward evidence showing that the driver was not his servant or that he (the defendant) had no business occasioning such use as the driver was making of the car, at the time and place of the accident, while it would ordinarily be a difficult thing for the plaintiff to establish the contrary.” (Howard v. Amerson (1925), 236 Ill. App. 587, 594.)

If no such proof is offered, the presumption will prevail and will alone support a finding. When there is any evidence which tends to show the driver’s nonagent status, the question of agency is for the jury. Whether there is any such evidence is a question of law and on appeal the reviewing court can examine the record to determine whether such evidence exists.

The parties have placed major significance upon the alleged employer-employee relationship between Fillmore and Randolph; however, the presumption of agency often arises in situations other than those where there is at issue a question of employer-employee status. (See generally McElroy v. Force (1967), 38 Ill. 2d 528, 232 N.E.2d 708 (owner-driver, unrelated passenger); Parrino v. Landon (1956), 8 Ill. 2d 468, 134 N.E.2d 311 (owner-nonpassenger, related driver); Ritter v. Taucher (1978), 65 Ill. App. 3d 464, 382 N.E.2d 343 (owner-passenger, related driver).) Plaintiffs need not necessarily prove an employer-employee relationship for the presumption to obtain. Indeed, plaintiffs need to prove only that upon which the presumption is predicated unless the defendant introduces evidence contrary to it. It is clear that plaintiffs were not relying solely upon the effect of the presumption because they introduced evidence tending to show that there actually was an employer-employee relationship. Whether there was such a relationship is immaterial. Defendnat Fillmore was met with the burden of going forward to rebut the presumption, be it in the form of evidence contrary to the alleged relationship or in the form of any other evidence contrary to the effect of the presumption. This he failed to do.

The only evidence presented by defendants that tended to rebut the presumption in plaintiffs’ favor consisted of the testimony of Fillmore’s wife and testimony of several witnesses establishing a five-hour time gap between the time Randolph left the farm and the time of the collision. Edna Reid testified that she did not hear Randolph specifically state that he was going to Olney at Fillmore’s request. She also testified that Randolph used Fillmore’s vehicle regularly for personal purposes since his car was out of order. In contrast, Fillmore’s unrebutted testimony established his acquiescence in Randolph’s declared purpose to him of a proposed trip to Olney to obtain parts for the family-owned tractor. Randolph did not testify. Defendants presented no evidence as to where Randolph was during the five-hour time span nor as to any personal purpose he may have had for this particular trip. Simply stated, the presumption remained in effect standing unrebutted. We conclude that the evidence presented, even when viewed in its aspect most favorable to Fillmore Reid, so overwhelmingly favored plaintiffs that a contrary verdict could never stand.

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

Affirmed.

JONES and KASSERMAN, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    WILLIAM J. McKOWN et al., Plaintiffs-Appellees, v. HAROLD L. DAVIS, Defendant-Appellant.
    Third District
    No. 82—687
    Opinion filed September 19, 1983.
    Rehearing denied October 26, 1983.

      Kim Kelly and James D. Reynolds & Associates, both of Peoria, for appellant.
    Robert A. Barnes, Jr., of Barnes and Barnes, of Lacón, for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This suit was brought by the plaintiffs-appellees, World Wide Travel Bureau, Inc., and William McKown, against the defendant, Harold Davis. The plaintiffs filed a complaint alleging Davis had breached an agreement with World Wide Travel Bureau to purchase three travel agencies for $240,000. The complaint alleged the terms of the agreement were memorialized in two separate documents. The first document was a purchase agreement in which Davis agreed to buy the travel agencies and pay the corporation $140,000. The second document was a personal note for $100,000 from Davis to McKown, who was then the president of World Wide Travel Bureau and owned approximately 80% of the corporation’s stock. The defendant’s answer alleged the personal note from Davis to McKown was inadmissible under the parol evidence rule. The defendant also alleged payment of $145,000.87 to the corporation on the contract and requested repayment of $5,000.87 as overpayment. The plaintiffs and defendant filed motions for summary judgment which were denied, and the case proceeded to a bench trial.

At trial, McKown testified that Davis requested two separate notes so that Davis could hide the fact that the total consideration was $240,000 from his wife. Davis testified that McKown had requested the personal note because McKown had put so much of his life into the travel agencies that he wanted something out of it for himself. The parties were in agreement as to the amount of money paid on the purchase agreement and the note. It was agreed that Davis had paid $40,000 on the purchase agreement and $60,325 to McKown personally. It was disputed as to whether the corporation ever received the money paid to McKown.

The trial court found the purchase agreement was a valid, enforceable contract and that $100,000 was due and owing on it. It entered judgment for the corporation on that sum plus 6% interest, less $17,994.85 in setoffs. The court also found the personal note to McKown was a fraud on the minority shareholders of the corporation and constituted an illegal and unenforceable contract. The court also found McKown and Davis to be in pari delicto as to the note and held that neither was entitled to a remedy from the other. The defendant and the appellants appealed from the order entered by the trial court. We affirm in part and reverse in part.

The first issue raised on appeal is whether the personal note should have been admitted into evidence. The defendant argues that admitting the note violated the parol evidence rule. The parol evidence rule provides that if an instrument appears complete, certain, and unambiguous, then parol evidence of a prior or contemporaneous agreement is inadmissible to vary the terms of that instrument. (Ireland v. Esposito (1981), 93 Ill. App. 3d 584, 417 N.E.2d 738.) The defendant contends that because the purchase agreement did not mention the personal note, it was complete. Since the consideration in the purchase agreement was unambiguous, the defendant contends the parol evidence rule precludes the admission of the personal note. We disagree.

The rule of law applicable here is that where different instruments are executed at the same time between the same parties for the same purpose and in the course of the same transaction, all the instruments must be read and construed together. To prove that the two documents constitute but one contract, parol evidence is admissible because it tends to identify what the contract is rather than to vary or change the terms of the contract. (Sudeikis v. Chicago Transit Authority (1980), 81 Ill. App. 3d 838, 401 N.E.2d 1114.) In the instant case the purchase agreement and personal note were executed at the same time, for the same purpose and in the course of the same transaction. There is also an identity of parties, despite the fact that the purchase agreement was payable to the corporation and the personal note was payable to McKown. McKown was the president of the corporation and owned 80% of the stock. The note was made as part of the purchase of the travel agencies and the proceeds belonged to the corporation. The fact that the president of the corporation was named as the payee rather than the corporation does not alter the fact that the parties were the same for both the purchase agreement and the note. Therefore, we find the note was properly admitted to establish the terms of the contract.

Having determined the note was properly admitted, the second issue is whether the trial court erred in finding the note was illegal and that McKown and Davis were in pari delicto. The personal note called for payments of $100,000 to McKown, Davis had already paid $60,325 on the note and $39,675 was due. Finding the note to be a fraud on the minority stockholders, the trial court held it was illegal. Because the trial court found McKown and Davis to be in pari delicto, neither was able to recover from the other.

We believe the trial court erred in finding the note illegal. The note was part of the consideration to be paid for the sale of the travel agencies. The fact that it was payable to McKown does not make it illegal. While McKown’s subsequent actions may have perpetrated a fraud on the corporation and, derivatively, on the minority stockholders, this does not invalidate the contract to sell the travel agencies for $240,000.

To permit no remedy on the personal note would provide a windfall to Davis and work a hardship on the corporation. Davis would obtain the travel agencies for almost $40,000 less than he had promised to pay and the corporation would be deprived of that sum, which it is entitled to. Requiring Davis to pay the full purchase price neither enforces an illegal contract nor does it permit Davis to benefit at the corporation’s expense. Therefore, we believe the corporation is entitled to the balance due and owing on the personal note as well as the balance owing on the purchase agreement.

The judgment of the circuit court of Peoria County is affirmed in part, reversed in part and remanded with directions to proceed in accord with the views expressed herein.

Affirmed in part, reversed in part and remanded.

BARRY and SCOTT, JJ., concur.


author: JUSTICE BARRY

text:
    RICHARD OSTERGREN, Plaintiff-Appellant, v. FOREST PRESERVE DISTRICT OF WILL COUNTY, Defendant-Appellee—(Forest Preserve Board of Will County, Defendant).
    Third District
    No. 82—852
    Opinion filed September 19, 1983.

      James A. Corrigan, Bernard R. Nevoral, and Bryan J. O'Connor III, all of Nevoral and Corrigan, Ltd., of Chicago, for appellant.
    Thomas C. Broderick, of Quinn and Broderick, of Chicago, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

This action was brought by Richard Ostergren to recover damages for personal injuries alleged to have been caused by the negligence of the Forest Preserve District of Will County, the Forest Preserve Board of Will County and the County of Will, in maintaining and supervising the forest preserve for use by snowmobilers. The plaintiff’s complaint states that he was severely injured when the snowmobile he was operating “struck an excavation, trench or mound at the [Sauk Trail] Forest Preserve and [he] was thrown from [the] snowmobile.” Upon motion by the County of Will, the court granted summary judgment in the county’s favor, and that defendant is no longer a party to this suit. The Forest Preserve District similarly sought to be dismissed, initially on grounds that plaintiff’s cause of action is barred by section 3 of “An Act to limit the liability of landowners who make their land and water areas available to the public for recreation purposes” (Ill. Rev. Stat. 1981, ch. 70, par. 33), and later on grounds that the cause of action is barred by force of section 5 — 1(1) of the “Snowmobile Registration and Safety Act” (Ill. Rev. Stat. 1981, ch. 95V2, par. 605 — 1(1)). The trial court denied the former motion and granted the latter. It is from the granting of the Forest Preserve District’s motion to dismiss that plaintiff appeals. The sole issue presented for our review is whether the statutory authority upon which defendant Forest Preserve District’s motion was based is constitutional.

While the precise question before us is one of first impression in this State, the arguments presented by the plaintiff in urging a reversal based on a finding that the statute is unconstitutional are not novel.

The statute, in pertinent part, reads as follows:

“An owner, lessee, or occupant of premises owes no duty to keep the premises safe for entry or use by others for snowmobiling, or to give warning of any unsafe condition or use of or structure or activity on such premises. This subsection does not apply where permission to snowmobile is given for a valuable consideration other than to this State, any political subdivision or municipality thereof, or any landowner who is paid with funds from the Snowmobile Trail Establishment Fund.” (Ill. Rev. Stat. 1981, ch. 95V2, par. 605 — 1(1).)

Plaintiff initially contends that the statute is unconstitutional because it creates an arbitrary classification in violation of equal protection and special legislation clauses of the Illinois and United States constitutions. Plaintiff’s alternative argument is that the statute unconstitutionally denies the plaintiff his right to due process of law by totally extinguishing a common law cause of action.

The statutory provision before us contains two sentences which initially categorize snowmobilers depending upon whether they give “valuable consideration” for permission to use the premises and grants immunity to landowners/occupiers who are not recipients of “valuable consideration.” The second sentence provides a further breakdown for the category of landowners/occupiers who are given such consideration, depending upon whether the recipient is: (1) a body politic or a private landowner paid by funds from the Snowmobile Trail Establishment Fund (Ill. Rev. Stat. 1981, ch. 951/2, par. 609 — 2); or (2) any other landowner/occupier. Immunity is granted in the former subcategory.

The plaintiff in this case was granted leave to amend his complaint to add the allegation that “fpjlaintiff is a taxpayer of the State of Illinois and the FOREST PRESERVE DISTRICT OF WILL COUNTY, Illinois.” In his appeal, plaintiff urges that, by force of this allegation, he acquires standing to challenge the constitutionality of the subclassification in the second sentence between private and public landowners/occupiers on equal protection grounds. We cannot agree. Clearly, the legislative intent in separating the categories of landowners/occupiers between those accepting “valuable consideration” and those who do not is to recognize that the duty owed by persons or entities who are paid for the use of their property by snowmobilers is greater than that owed by persons or entities not so paid. This distinction between the gratuitous provider and the paid is not uncommon in the law (see Pashinian v. Haritonoff (1980), 81 Ill. 2d 377, 410 N.E.2d 21 (analyzing and approving the “premises doctrine” as it affects the duty owed for the protection of trespassers, invitees and social guests); see also Clarke v. Storchak (1943), 384 Ill. 564, 52 N.E.2d 229 (wherein the court analogizes the guest statute’s distinction between gratuitous host drivers and those who accept payment for transportation to the common law’s distinctions between gratuitous bailees and bailees for hire, common carriers and private drivers, and innkeepers and social hosts)), and it is well within the police power of the State to recognize this distinction by passing legislation for the protection of gratuitous hosts. Clarke.

The mere payment of taxes by the plaintiff, without more, is not sufficient to take the governmental defendant out of the category of gratuitous landowners/occupiers for whom the statutory provision grants immunity in the first sentence. Were we to hold otherwise could lead to absurd results, since any landowner/occupier who benefits from tax-supported programs would likewise be subject to the higher standard of care contemplated in the second sentence. Ultimately, by extending this line of reasoning, the distinction could be rendered meaningless. Obviously, the General Assembly did not intend that the term “valuable consideration” be construed as the plaintiff suggests.

Having thus determined that the plaintiff in this case did not pay valuable consideration for the use of the defendant’s land, we hold that he lacks standing to complain of any unequal protection aspects of the second sentence of the statutory provision.

Our inquiry does not end here, however. The plaintiff, as a nonpaying user of the defendant’s land for the purpose of snowmobiling, has clearly alleged sufficient facts to bring himself within the class of persons affected by the first sentence of section 5 — 1(1). That provision, without regard to the landowner/occupier’s public or private character, totally abolishes the plaintiff’s cause of action. Prior to the enactment of this statute, the plaintiff had a common law cause of action for negligence, subject, of course, to any common law defenses that might be available. The complaint alleges that the defendant purchased liability insurance, thereby waiving its governmental tort immunity (Ill. Rev. Stat. 1981, ch. 85, pars. 3 — 106, 9 — 103). Plaintiff contends that the effect of the statute as it applies to the facts of his case is to deprive him of his right to due process of law.

The fundamental constitutional rights to which plaintiff’s arguments are directed are succinctly stated in article I, section 2, of the Illinois Constitution of 1970: “No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.” The right of due process of law is found as well in section 1 of the fourteenth amendment to the United States Constitution. Article I, section 12, of the Illinois Constitution of 1970 further provides that “[ejvery person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly.” Thus stated is the philosophy by which plaintiff’s charge of a statutory due process violation must be considered. Sullivan v. Midlothian Park District (1972), 51 Ill. 2d 274, 281 N.E.2d 659; Koskela v. Martin (1980), 91 Ill. App. 3d 568, 414 N.E.2d 1148.

These constitutional provisions were considered by our supreme court in the context of a challenge to the Illinois “guest statute” (Ill. Rev. Stat. 1941, ch. 95V2, par. 58a) in Clarke v. Storchak (1943), 384 Ill. 564, 576, 52 N.E.2d 229, 236. There, the court outlined the parameters of the constitutional issue by which we are guided today:

“[S]ections 2 and 19 of article II of our constitution [presently, sections 2 and 12 of Article I], *** [provides] a broad field for the protection of persons in their property and reputation, but this does not give a vested right not subject to change by legislative power, provided the change is reasonably necessary to promote the general welfare of the people and does not destroy a remedy. With the growth and development of the State the police power necessarily develops, within reasonable bounds, to meet the changing conditions. [Citations.] The power is not circumscribed by precedents arising out of past conditions, but is elastic and capable of expansion in order to keep pace with human progress. [Citations.]”

The court in Clarke ultimately determined that the “guest statute” did not violate due process under either the State or Federal constitutions and was a valid exercise of the police power of the State. In reaching its decision, the court distinguished the Illinois statute from the State of Oregon’s guest statute which was declared violative of constitutional rights in Steward v. Houk (1928), 127 Or. 589, 271 P. 998. The Oregon statute then in effect relieved the host driver/operator from all liability, without regard to the degree of negligence. Later, the Oregon legislature enacted another guest statute which, similar to the Illinois guest statute, restricted the automobile’s guest’s cause of action to claims of gross negligence, intoxication and reckless conduct. The new statute was held to be clearly within the police power of the State and not violative of constitutional guarantees. Perozzi v. Ganiere (1935), 149 Or. 330, 40 P.2d 1009.

The Clarke court’s comprehensive survey of “guest statutes” in sister States, and particularly, its reliance on the distinction between those statutes which totally abolished all duty of care to nonpaying passengers and those which merely restricted the owner/operator’s duties, indicate to us that the court would not have hesitated to strike down as unconstitutional a guest statute of the former category. This conclusion is apparent as well from dicta by the Illinois Supreme Court’s more recent decision in Delany v. Badame (1971), 49 Ill. 2d 168, 274 N.E.2d 353. In Delany Justice Ryan, writing for the court, succinctly summarized decisions considering the constitutionality of “guest statutes” on equal protection challenges. Justice Ryan observed that statutes in Kentucky (Ludwig v. Johnson (1932), 243 Ky. 533, 49 S.W.2d 347) and Arkansas (Emberson v. Buffington (1957), 228 Ark. 120, 306 S.W.2d 326) has been “held unconstitutional because they denied any cause of action to a guest passenger.” (Delany v. Badame (1971), 49 Ill. 2d 168, 173, 274 N.E.2d 353, 355.) The argument advanced by the plaintiff against the guest statute in Delany (Ill. Rev. Stat. 1967, ch. 95x/2, par. 9 — 201, repealed and superseded, see Ill. Rev. Stat. 1981, ch. 95V2, par. 10 — 201) was that it granted a special immunity to owners and operators of motor vehicles in violation of section 22 of article IV of the Illinois Constitution of 1870 (presently section 13 of article IV). The plaintiff relied on Harvey v.

Clyde Park District (1964), 32 Ill. 2d 60, 203 N.E.2d 573, wherein our supreme court struck down section 12.1 of the Park District Code (Ill. Rev. Stat. 1963, ch. 105, par. 12.1 — l) on grounds that the statute violated the equal protection clause of the fourteenth amendment to the Constitution of the United States and section 22 of article IV of the Illinois Constitution. The Delany court, however, distinguished the statute at issue in Harvey from the Illinois guest statute with the observation that the park district statute denied any cause of action to the injured party, whereas the guest statute “does not preclude a cause of action to the injured party but changes the degree of fault necessary for a recovery from that of the common law.” (Emphasis added.) Delany v. Badame (1971), 49 Ill. 2d 168, 174, 274 N.E.2d 353, 355-56.

In the case before us plaintiff makes essentially the same arguments to attack the constitutionality of section 5 — 1(1) of the snowmobile statute as were advanced by plaintiffs in Clarke, Harvey and Delany. Having analyzed those decisions, we conclude that the statute in question is in violation of due process of law and cannot be reconciled with Illinois’ philosophy of the nondestruction of remedies. Although snowmobiles may well be considered dangerous instrumentalities by some, they afford recreation for others and a convenient, useful mode of travel at times when other motor vehicles cannot be operated safely. In enacting the Snowmobile Registration and Safety Act, the legislature declared that “the policy of this State [is] to promote safety for persons and property in and connected with the use, operation and equipment of snowmobiles and to promote uniformity of laws relating thereto” (Ill. Rev. Stat. 1981, ch. 95x/2, par. 601 — 1). We fail to perceive of how section 5 — 1(1) can be said to promote this policy. In our opinion, the rights of landowners/occupiers, generous enough to permit snowmobiles to use their property without charge, should be carefully weighed against the rights of the snowmobilers who benefit from such landowners/occupiers. Absolute tort immunity regardless of the degree of fault on the landowner/occupier’s part is not required to strike an appropriate balance. Absolute tort immunity deprives the injured party of an opportunity to be heard, destroys a remedy that existed at common law, and cannot be justified as a legitimate exercise of the police power. The statutory provision as presently written is invalid.

Furthermore, we hold that the second sentence of this provision is not severable from the first without jeopardizing the intent of the legislature. (Cf., Mills v. County of Winnebago (1969), 104 Ill. App. 2d 366, 244 N.E.2d 65.) It is obvious to us that the General Assembly would not have passed the subsection with the invalid portion eliminated (Livingston v. Ogilvie (1969), 43 Ill. 2d 9, 23, 250 N.E.2d 138, 146). Under the circumstances here presented, even though we have no occasion to reach the constitutionality of the classifications contained within the second sentence of subsection 5 — 1(1), it must be stricken along with the invalid provision, at least until such time as the General Assembly may choose to reenact a less comprehensive provision to protect landowners from claims for injuries caused to snowmobilers by ordinary negligence on the landowner’s part.

For the foregoing reasons, the judgment of the circuit court granting dismissal of plaintiff’s cause of action against the Forest Preserve District of Will County is hereby reversed and this cause is remanded for further proceedings.

Reversed and remanded.

SCOTT and HEIPLE, JJ., concur.

      “[S]ection 12.1 of the Park District Code *** provides: ‘Any park district shall not be liable for any injuries to person or property, or for the death of any person heretofore or hereafter caused by or resulting from the negligence of its agents, servants, officers or employees in the operation or maintenance of any property, equipment or facility under the jurisdiction, control or custody of the park district, or otherwise occasioned by the acts or conduct of such agents, servants, officers or employees.’ Ill. Rev. Stat. 1963, chap. 105, par. 12.1 — 1. [Repealed by 1967 Ill. Laws 3561, eff. Sept. 1, 1967].” Harvey v. Clyde Park District (1964), 32 Ill. 2d 60, 61-62, 203 N.E.2d 573, 574.

      We note in passing that section 5 — 1(1), to the extent that it immunizes landowners/occupiers from charges of wilful or malicious misconduct, is in conflict with sections 3 through 5 of “An Act to limit the liability of landowners who make their land and water areas available to the public for recreational purposes.” (Ill. Rev. Stat. 1981, ch. 70, pars. 33 through 35; Miller v. United States (N.D. Ill. 1976), 442 F. Supp. 555, aff'd (7th Cir. 1979), 597 F.2d 614.) In this respect, section 5 — 1(1) fails to promote the uniformity of laws relating to snowmobiling. As indicated earlier, however, the circuit court determined that this act does not apply to the forest preserve district defendant. Neither party has requested that we review that ruling and we express no views thereon.


text:
    ROGER CUMMINGS, Plaintiff-Appellant, v. IRON HUSTLER CORPORATION et al., Defendants-Appellees.
    Third District
    No. 3—83—0052
    Opinion filed September 19, 1983.

      James M. Janovetz, of Harvey & Stuckel, Chartered, of Peoria, for appellant.
    J. Reed Roesler, of Kavanagh, Scully Sudow, White & Frederick, P.C., of Peoria, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff, Roger Cummings, appeals from the dismissal of a four-count complaint filed in the circuit court of Peoria County against his former employer, Iron Hustler Corporation, the successor corporation' American Pulverizer Company, American Pulverizer’s wholly owned subsidiary Hustler Conveyor Corporation, and certain individual defendants who had allegedly participated to various degrees in the plaintiff’s discharge at a time when the plaintiff was on disability leave. In count I plaintiff charged the tort of retaliatory discharge; in count II he alleged breach of an employment contract; in count III plaintiff alleged negligence and discrimination on the part of the successor corporations for failure to hire him; and in count IV plaintiff charged various supervisory personnel and Iron Hustler’s corporate president with negligence.

The plaintiff, in addition to his court action for money damages and injunctive relief, had previously instituted a “Complaint of Civil Rights Violation” with the Illinois Department of Human Rights. (Ill. Rev. Stat. 1981, ch. 68, par. 2 — 102(A).) The civil rights action was still pending before the Illinois Human Rights Commission, and, to the best of our knowledge, has not been finally resolved as of this writing. Essentially, that complaint charges discrimination against a handicapped person.

All of the defendants joined in a motion to dismiss plaintiff’s lawsuit on two bases: section 48(l)(c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(c), repealed, currently Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(3)); and that plaintiff’s cause, if any, was subsumed by his union’s collective bargaining agreement with the employer corporation. It is from the trial court’s granting of defendants’ motion on section 48 grounds that plaintiff now appeals.

The issue before us as framed by the plaintiff-appellant is whether the complaints advanced on plaintiff’s behalf with the Department of Human Rights and in the circuit court are “between the same parties” and “for the same cause,” as those phrases are used in section 48(l)(c) of the Civil Practice Act. The defendants, in addition to arguing in favor of an affirmance on this basis, vigorously argue that the trial court’s order should be affirmed on the alternative basis that the plaintiff was covered by a collective bargaining agreement which, they contend, subsumed all other potential causes of action arising out of the termination of the plaintiff’s employment. In effect, the defendants are urging us to reaffirm the principles set forth by the majority opinion in Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407 N.E.2d 95, and extend the philosophy there expressed in favor of promoting industrial peace. Defendants would have this court, in addition to approving the trial court’s dismissal of this lawsuit, declare that the plaintiff’s pending complaint before the Human Rights Commission must fail as well by force of the exclusivity of the collective bargaining contract between the employer and the plaintiff’s union and the grievance-arbitration remedies provided therein. In so arguing, the defendants acknowledge that the United States Supreme Court’s decision in Alexander v. Gardner-Denver Co. (1974), 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011, on analogous facts, runs counter to their position. We decline defendants’ invitation to indulge in mental exercises to distinguish Alexander and find no need to use the instant case as a vehicle for refueling the dispute that already rages over the wisdom of this count’s opinion in Cook v. Caterpillar. (Compare Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App. 3d 396, 449 N.E.2d 203, Lamb v. Briggs Manufacturing (7th Cir. 1983), 700 F.2d 1092, and Deatrick v. Funk Seeds International (1982), 109 Ill. App. 3d 998, 441 N.E.2d 669, to Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053, and Petrik v. Monarch Printing Corp. (1982), 111 Ill. App. 3d 502, 444 N.E.2d 588.) Rather, we agree with the trial court that the instant lawsuit was subject to dismissal under section 48(l)(c) for the reason that the plaintiff’s lawsuit represents the same cause between the same parties as that previously filed and pending before the Illinois Human Rights Commission.

Plaintiff resists this conclusion primarily by attempting to distinguish various opinions in which dismissals under section 48(l)(c) have been upheld or ordered by courts of review. (E.g., Skolnick v. Martin (1964), 32 Ill. 2d 55, 203 N.E.2d 428; People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286, 215 N.E.2d 806; People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 357 N.E.2d 534.) Plaintiff urges that our supreme court’s pronouncement in A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 419 N.E.2d 23, would support a reversal of the trial court here. Plaintiff's argument fails to persuade however, because, unlike Staley, the issue before us is not whether the circuit judge failed to exercise his discretion in granting the defendant’s motion to dismiss, but rather whether the trial court abused its discretion in so ruling. A discussion of Staley is, nonetheless, warranted because of the insight it provides on appropriate factors to be considered in exercising discretion on section 48(l)(c) motions.

In Staley, the plaintiff corporation sued Swift, the defendant corporation, for damages allegedly sustained upon Swift’s failure to complete construction of a soy bean processing plant located in Iowa. This suit was commenced in the circuit court of Macon County, Illinois, at a time when another action, instituted by Swift and seeking recovery of money retained by Staley to secure construction of the plant, was pending in the district court in Iowa. Swift, after losing on its initial motion to dismiss for forum non conveniens, filed a second motion to dismiss under section 48(l)(c) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(l)(c)). The Illinois trial court granted the latter motion upon determining that the Iowa suit had preceded the filing of Staley’s Illinois suit by 41 to 71 minutes.

On appeal, the appellate court determined that the trial court had erred in its determination that the time factor compelled dismissal of the later-filed suit. The appellate court remanded the cause, directing the trial court to exercise its discretion in ruling on the motion. The Illinois Supreme Court, however, chose to grant appeal and to exercise its supervisory authority to rule on the merits of the section 48(l)(c) motion. The high court analyzed the legislative intent implicit in section 48(l)(c) of avoiding duplicative litigation as applied to the procedural aspects of the Illinois/Iowa suits under consideration. The majority opinion distinguished those cases in which section 48(l)(c) motions had been granted when intrastate conflicts might have developed, thereby “ '*** diminishing] respect for and public confidence in our judiciary. ***’ ” (A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 256, 419 N.E.2d 23, 28, quoting from People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 257, 357 N.E.2d 534, 538.) Finally, the court determined that the purposes of section 48(l)(c) would not be served or promoted by either dismissing or staying Staley’s Illinois suit and forcing a counterclaim merely because the action instituted by Swift was pending in a sister State. Accordingly, the supreme court remanded Staley’s suit to the trial court with directions to proceed with litigation.

Subsequently, the Illinois Supreme Court granted leave to appeal in People ex rel. Department of Public Aid v. Santos (1982), 92 Ill. 2d 120, 440 N.E.2d 876, a case coming before the court in a procedural context similar to that of Staley, and held that dismissal under section 48(l)(c) was not appropriate, but a stay was. In Santos, a class action was filed in the United States District Court for the Northern District of Illinois by public aid recipients challenging on Federal grounds the practice of the Department of Public Aid of obtaining and enforcing promissory notes to recover overpayments of AFDC benefits. The class action was filed on September 11, 1979. Named as defendants in the Federal suit were the director of the Department and the supervisor of the Department’s Collection Division. On October 24, 1979, the Illinois Attorney General, on behalf of the Department of Public Aid, filed three complaints in the circuit court of Cook County to collect on three such promissory notes executed by public aid recipients. As in Staley, the trial court determined that it had no discretion under section 48(l)(c), and dismissed the later-filed State suit.

The Illinois Supreme Court reiterated its position, as expressed in Staley, that the remedies delimited by section 48(l)(c) are addressed to the sound discretion of the trial court and are not mandated by the pending of another cause between the same parties arising out of the same operative facts. As in Staley, the high court determined that judicial economy would be served by ruling on the merits of the section 48(l)(c) motion, rather than merely remanding to the circuit court with directions to exercise its discretionary authority. This time the court, again prefacing its analysis with reference to the statutory purpose of avoiding duplicative litigation, concluded that the issues presented to the Federal and State courts were sufficiently distinct to warrant litigation on both fronts. However, the court found that the several factors relevant to the question of staying an action under section 48(l)(c), as set forth in Staley, weighed in favor of granting a stay of the State court action pending resolution of the Federal suit.

While Staley and Santos are both instructive of the Illinois Supreme Court’s reasoning process in exercising the discretionary authority granted under section 48(l)(c), as previously indicated in this opinion, those cases do not compel the conclusion that the trial court committed error in dismissing the plaintiff’s complaint in the instant case. Unlike Staley and Santos, in this case there is no indication that the trial court was of the opinion that section 48(l)(c) mandated dismissal of the lawsuit. Therefore, we assume, in the absence of any evidence to the contrary, that the trial court was aware that granting dismissal or denying it on the basis of section 48(l)(c) is a matter addressed to the court’s sound discretion and that the judgment which forms the basis of this appeal represents the court’s exercise of such discretionary authority.

Plaintiff argues next that the matter pending before the Illinois Human Rights Committee is sufficiently distinct from that pursued in the circuit court as to render a section 48(l)(c) motion to dismiss inappropriate. We disagree.

It is by now well settled that neither the parties nor the causes referred to under section 48(l)(c) need be identical, but are required only to be substantially similar. (Theodore v. Elmhurst College (1981), 99 Ill. App. 3d 126, 425 N.E.2d 59.) So long as both causes are based upon substantially the same underlying facts or issues, the “same cause” element is satisfied. (Skolnick v. Martin (1964), 32 Ill. 2d 55, 203 N.E.2d 428.) At the heart of both causes in the instant case are the plaintiff’s disablement caused by a work-related injury, absence during a period of disability and his allegedly wrongful discharge. For purposes of section 48(l)(c), we hold that use of the same set of operative allegations in the two actions here renders them the “same cause.”

Plaintiff points out, however, that if successful in his lawsuit for retaliatory discharge, he could seek punitive damages, and this remedy is not available under the Human Rights Act. This distinction, without more, does not mandate a reversal on grounds that the “causes” are different or that the trial court abused its discretion in ordering dismissal. (Catalano v. Aetna Casualty & Surety Co. (1982), 105 Ill. App. 3d 195, 434 N.E.2d 31.) We do not find that the purpose of section 48(l)(c) of avoiding duplicative litigation is outweighed by the public policy furthered by allowing the extraordinary remedy of punitive damages, in addition to compensatory relief, in retaliatory discharge awards. Finally, the fact that the legal theories for the causes are not identical does not destroy the “same cause” element. Catalano.

Plaintiff’s attempt to distinguish the parties is unconvincing. The “same parties” element is satisfied where the litigants’ interests are sufficiently identical even though differing in name or number. (Catalano; International Games, Inc. v. Sims (1982), 111 Ill. App. 3d 922, 444 N.E.2d 736.) The relationships between the individual named defendants in the State suit and the “employer” named in the civil rights action, and the obvious privity among Iron Hustler, American Pulverizer and Hustler Conveyor Corporation, render the parties sufficiently similar in interest to survive plaintiff’s challenge to the “same party” element.

In sum, we find that the litigation instituted by plaintiff in the circuit court of Peoria County involved substantially the same parties and the same cause as the action pending before the Illinois Human Rights Commission. Whether or not, given the same facts, we might have ruled differently and stayed the court proceedings or allowed both actions to proceed simultaneously is not an issue in this case. Public policy of Illinois is not violated by dismissing the plaintiff’s lawsuit. For the foregoing reasons, we hold that the trial court did not abuse its discretion under section 48(l)(c) in dismissing the plaintiff’s cause.

Affirmed.

STOUDER, P.J., and SCOTT, J., concur.


author: PRESIDING JUSTICE HARRISON JUSTICE WELCH,

text:
    TANYA RODGERS, Plaintiff-Appellee, v. MELVIN RODGERS, Defendant-Appellant.
    Fifth District
    82—732
    Opinion filed September 30, 1983.
    WELCH, J„ dissenting.
    Melvin W. Trotier, of East St. Louis, for appellant.
    Jack L. Giannini, of Belleville, for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

The issue on appeal is whether the trial court, after entering an order suspending a husband’s child-support payments during a period when the husband is disabled, may subsequently hold the husband responsible for payments accruing after the disability has ended, when the court has failed to reinstate the obligation according to the terms of its own order. We determine that a court may not properly so hold, and vacate the order requiring the husband to make such payments.

Plaintiff Tanya Rodgers secured a divorce from defendant Melvin Rodgers on September 10, 1971. Plaintiff was awarded custody of the two children, and defendant was ordered to pay $40 per week in child support. Defendant’s alleged failure to make these payments prompted three separate actions by plaintiff, the last of which culminated in a judgment entered on November 9, 1976, in which defendant was ordered to pay $2,430 in overdue child support. A new balance of $1,930 was determined when the court credited a $500 payment by defendant on November 23,1976.

On March 25, 1977, defendant petitioned the court to suspend temporarily his obligation to pay child support, stating that personal injuries resulting from an automobile accident had rendered defendant unable to work. This request was granted when an order of the circuit court was entered on May 6, 1977, in which the court suspended defendant’s obligation to make payments until defendant resumed his job, at which time a hearing would be held to determine future obligations. The order required defendant to notify the court and plaintiff’s counsel when .defendant returned to work. In a letter dated September 13, 1977, and filed in the circuit court on September 27, 1977, defendant’s attorney notified the court that defendant was returning to work. A copy of the letter was addressed to plaintiff’s counsel. The record discloses no subsequent action on plaintiff’s part until October 11, 1981, when plaintiff filed a petition alleging that defendant owed $15,800 in overdue child support. On November 18, 1982, the circuit court found defendant in arrears in the amount of $11,280. As part of its calculation on the debt, the court retroactively set support at $40 per week owing from the date of July 22, 1977. Defendant was also ordered to pay $638 in attorney fees. From this judgment, defendant appeals.

“It is well established that a court’s jurisdiction in a dissolution of marriage action is conferred only by statute and it must act within the statutory grant and may not rely upon its general equity powers.” (Garrison v. Garrison (1981), 99 Ill. App. 3d 717, 720, 425 N.E.2d 518, 521.) In such cases, a court must exercise its authority only within the limits conferred by statute. (Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 60, 389 N.E.2d 1170, 1172-73.) The procedure for enforcement and modification of judgments regarding dissolution of marriages, including provisions for maintenance and support, is governed by section 511 of the Illinois Marriage and Dissolution of Marriage Act:

“Sec. 511. Procedure. A judgment of dissolution or of legal separation or of declaration of invalidity of marriage may be enforced or modified by order of court pursuant to petition.
(a) Any judgment entered within this State may be enforced or modified in the judicial circuit wherein such judgment was entered or last modified by the filing of a petition with notice mailed to the respondent at his last known address, or by the issuance of summons to the respondent.” Ill. Rev. Stat. 1981, ch. 40, par. 511.

In the instant case, that part of the judgment of dissolution pertaining to child support was last modified by the court order of May 6, 1977, in which defendant’s obligation to make payments was suspended. The definite terms of the order directed that defendant’s subsequent obligation, and the terms according to which the obligation should be fulfilled, would be determined at a later hearing. The hearing was to take place after the defendant, pursuant to the same order, notified the court and plaintiff’s counsel that defendant had returned to work. Defendant returned to work and duly notified the court and plaintiff’s counsel of this fact. Despite this notification, plaintiff did not file a petition seeking modification of the order suspending defendant’s child support payments for some five years. Having failed to follow the necessary procedure for modification of a support decree, plaintiff would have the circuit court award retroactive child support on equitable grounds.

Plaintiff argues, in effect, that since defendant acknowledged at the hearing of November 18, 1982, that he did in fact have an obligation to pay support during the period from January 24, 1974, until the November 18, 1982, hearing, it was proper for the circuit court to disregard the fact that after May 6, 1977, defendant was not subject to a court order requiring him to pay such support. The transcript of the November 18, 1982, hearing is not a part of the record before us. Nevertheless, plaintiff’s argument fails to recognize the fundamental issue. A claim to child support, by definition, can arise only from a court order issued pursuant to a properly filed petition. Such a claim cannot arise from a personal acknowledgment of an ethical obligation. Moreover, a court may not impose such an obligation on equitable grounds. In light of these principles, we cannot agree that the circuit court properly ordered defendant to pay child support owing after the date of May 6, 1977, since the court order entered on that date terminated defendant’s legal obligation to make such payments until a subsequent court order would reinstate the obligation. Accordingly, we vacate the judgment of the circuit court.

Judgment vacated.

JONES, J., concurs.

JUSTICE WELCH,

dissenting:

The issue in this case is not whether a petition is a prerequisite to an order enforcing or modifying child support payments. It is obvious that it is (Ill. Rev. Stat. 1981, ch. 40, par. 511(a)), and equally obvious that the plaintiff in this case did so. The question presented is instead whether, once such a petition is filed, an award for child support accrued before the date of the petition may be granted under the general procedures outlined in the Illinois Marriage and Dissolution of Marriage Act and under the specific orders entered by the trial court in this case.

It is, of course, routine for a party to whom child support is owed to petition to receive past due child support, and the courts have occasionally granted the petitioner judgment for arrearages accrued long before the filing of the petition. (See Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12 (arrearages dated back to 11 years before the petition was filed).) The only significance of the date of filing the petition is that a court may order retroactive modifications of support payments only to that date. (In re Marriage of Matzen (1979), 69 Ill. App. 3d 69, 387 N.E.2d 14; Dixon v. Dixon (1977), 45 Ill. App. 3d 934, 360 N.E.2d 486.) The fact that the plaintiff was required to file a petition to institute an action for enforcement or modification or child support, then, does not lead to the conclusion that the jurisdiction invoked by that petition was limited to a grant of support payments accrued after that date. To imply so confuses the issue of the scope of the court’s statutory jurisdiction with the issue of the nature of the appropriate remedy under such a petition.

It is proper in Illinois for a court to order support payments to be partially or completely suspended during a period in which the party required to pay support is unable to do so. (Martinec v. Martinec (1974), 17 Ill. App. 3d 402, 308 N.E.2d 161 (abstract).) Such an order is impermissible if the date selected by the court for the resumption of payments is arbitrary and unrelated to the party’s ability to pay. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785.) In Martinec, the court’s order provided that the $140 monthly support obligation of the father, who returned to school, would be reduced to $60, while the additional obligation of $80 per month would continue to accrue during that time. When the father completed or terminated his education and became available for full-time employment, the court would determine the extent of the obligation which had accrued to that point.

Martinec did not address the precise question presented here, namely, whether the father’s return to work or the mother’s filing of a petition triggered the resumption of support payments at earlier levels. Nonetheless, the approval of the mechanism used by the trial court in Martinec for the temporary reduction of support shows that such a reduction here, being geared to the defendant’s return to work and not to an arbitrary future date, was a permissible order. That order provided, in part:

“that payments are hereby temporarily suspended until the defendant returns to work. Defendant to notify the Plaintiff’s attorney through his attorney and the court [sic] of his return to work. Upon such notice, a hearing to be held to set future payments based on the circumstances of the parties at that time.”

While, in this order, the court certainly contemplated that a hearing would be held after the defendant returned to work, nothing in that order makes either a hearing or the filing of a petition a condition precedent to the resumption of earlier determined support payments. In fact, the order specifically stated that payments were to be “temporarily suspended until the defendant returns to work.” At that point, the defendant’s support obligations resumed. The trial court so interpreted the wording of this order, and it should be remembered that in matters pertaining to the enforcement and modification of child support, the decision of the trial court should not be disturbed absent an abuse of discretion. (In re Marriage of Roth (1981), 99 Ill. App. 3d 679, 426 N.E.2d 246.) In addition to departing from this standard of review, the majority also renders the phrase in the original order “suspended until the defendant returns to work” a nullity.

Consequently, it must be seen that nothing under the Illinois Marriage and Dissolution of Marriage Act prohibits a trial court from entering a judgment for support arrearages accrued before the filing of a petition for enforcement, nor does the Act proscribe the temporary reduction or suspension of support payments until the party obliged to pay is again able to do so. I agree with the trial court that the proper reading of the suspension order is to require the automatic resumption of the defendant’s support obligations upon his return to work, instead of continuing to suspend them until a petition is filed or a hearing is held, and I therefore disagree with the majority’s conclusion to the contrary. Also, even if I accepted that reasoning, it would not justify vacating the entire order pertaining to child support, and I believe that the majority has given no reason to vacate that portion of the order granting child support in the amount of $40 per week from October 11,1981, the date of filing of the petition.

For these reasons, I must respectfully dissent from the decision of the majority.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH PERRUQUET, Defendant-Appellant.
    Fifth District
    No. 81—67
    Opinion filed September 14, 1983.

      Randy E. Blue and Richard J. Bennett, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John R. Clemons, State’s Attorney, of Murphysboro (Stephen E. Norris, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, Joseph Perruquet, who was charged by information with rape and deviate sexual assault, was tried by a jury and convicted of both offenses. He was sentenced to 20 years’ imprisonment on each offense, and these terms were to run concurrently.

On appeal defendant argues that: (1) he was denied a fair trial because the State’s cross-examination of a defendant’s character witness improperly elicited evidence of other crimes and constituted improper impeachment; (2) the trial court erred by granting the State’s motion in limine which sought to preclude an expert witness on eyewitness testimony; and (3) his concurrent 20-year sentences were an abuse of discretion.

Prior to trial, the prosecution filed a motion in limine to preclude the testimony of Dr. Elizabeth F. Loftus, a psychologist who would testify for the defense as an expert witness on the subject of eyewitness testimony. At the hearing on the State’s motion, defense counsel argued that Dr. Loftus’ testimony would not concern matters within the common knowledge and experience of the average juror. According to defense counsel, Dr. Loftus would testify regarding the effect of stress upon a crime victim’s recall of events when a weapon had been used in the commission of an offense and the phenomenon called “unconscious transference” which may occur when a victim of a crime sees a person prior to a lineup and mistakenly identifies that person as the assailant. He also represented that Dr. Loftus would give testimony similar to that which she gave in a 1978 California criminal trial, which was outlined in the appendix of Dr. Loftus’ book entitled Eyewitness Testimony. At this trial, Dr. Loftus discussed various psychological findings regarding perception and memory as applied in the context of criminal incidents. After the trial court had reviewed Dr. Loftus’ book, as requested by defense counsel, the trial court refused to allow Dr. Loftus to testify and granted the State’s motion in limine.

At trial, the complainant testified that as she was leaving from a doctor’s appointment at the Carbondale Clinic on June 30, 1980, at approximately 11 a.m., she was accosted by defendant who was armed with a knife. According to complainant, defendant held the knife at her back and taped her hands together. Complainant stated that defendant took her car keys and drove to a rural wooded area. Complainant related that, while defendant was driving, she noticed that one of defendant’s fingers was black at the top and had stitches in it. Complainant said that upon their arrival at the wooded area, she was blindfolded with a thin, light cloth through which she was able to see. She stated that after the two walked a short distance into the woods, she was sexually attacked. She said she was forced to perform fellatio and to have sexual intercourse with her attacker. Complainant said that defendant then tied her clothes into a knot to impede her departure and then ran away. She said that after she dressed, she walked to a road and flagged down a car whose driver agreed to take her to the DeSoto crime lab. On the way, they encountered two State policemen and complainant related to them what had occurred.

Complainant testified that she informed police that her assailant was 20 to 30 years of age, of slender build, weighing about 150 pounds, was 5 feet 10 inches tall, had wavy blondish-brown colored hair, and wore black horn-rimmed glasses.

Complainant testified that on September 26, 1980, she viewed a lineup at the Williamson County courthouse consisting of five men. She said that she identified the defendant from among the men in the lineup. Complainant further testified that she had no doubt that defendant was the man who attacked her.

Bill Stanhouse, a special agent with the Illinois Department of Criminal Investigation, testified that complainant had taken him to the scene of the alleged rape and he there found a wad of tape, a cotton cloth tied in a knot and a pair of women’s underpants, all of which he identified at trial. He also corroborated complainant’s testimony that she had identified defendant from a lineup.

Andrew Wist, a forensic scientist with the Department of Law Enforcement, testified that seminal material was found in complainant’s vagina and the halter top which she wore on the day she was attacked. Mr. Wist testified that from his analysis of defendant’s blood and biological secretions, he concluded that the seminal stains found on complainant’s clothing could have come from defendant.

It was stipulated at trial that defendant on June 20, 1980, while using an electric hedge trimmer, had lacerated and fractured the distal phalanx of his left fifth finger.

Karen Vreeland, defendant’s ex-wife, testified that defendant had a good reputation for being chaste and law-abiding. On cross-examination the prosecutor repeatedly asked Ms. Vreeland if defendant had ever been arrested and, if so, what he was arrested for and how many times he was arrested. Defense counsel objected once “about arrests if not convicted” but was overruled by the trial court.

George Flanagan, a minister who had known defendant for two to three years, testified that defendant had a good reputation for chastity.

Defendant testified in his own behalf. He admitted that he had been convicted of burglary and had been arrested on a number of occasions for other alleged offenses. According to defendant, he could not have attacked complainant because on the day of the attack he was at his mother’s house in Royalton, Illinois. Defendant testified that he arrived at his mother’s house at about 9 a.m. on June 30, 1980, with his wife and children and did not leave there until about 1 p.m.

Defendant’s account of his whereabouts on June 30, 1980, was corroborated by his sister, E Stella Short; his mother, Hazel Perruquet; and his wife.

Frank Cooper, a crime scene technician for the Illinois Department of Law Enforcement, testified that a latent print removed from complainant’s vehicle did not match defendant’s fingerprints.

It was stipulated that Karen Having, who was at the Carbondale Clinic on June 30, 1980, at approximately 12:30 p.m., had observed a white male in the vicinity but, after viewing a lineup, could not identify defendant as the man she saw.

In rebuttal, the State presented the testimony of James Drake, who was incarcerated with defendant in the Jackson County jail. Mr. Drake testified that defendant admitted to him that he had abducted a woman from a clinic or hospital, drove her into the country south of Carbondale, raped her and “[m]ade her suck his dick.”

It was stipulated at trial that the State offered to Mr. Drake’s attorney a recommendation of a minimum sentence on Mr. Drake’s forgery charge and a dismissal of his burglary charge in return for his testimony concerning conversations Mr. Drake had with defendant.

In surrebuttal, defendant presented the testimony of Ronald Driver and Kenneth Fortya who were also incarcerated with defendant in the Jackson County jail, Both testified that they could over hear a conversation in the defendant’s jail cell and neither heard defendant admit his guilt. Defendant also testified in surrebuttal and denied that he had told Mr. Drake that he had committed the offenses in the case at bar.

The defendant’s presentence report indicated, inter alia, that in 1966 defendant had been adjudicated delinquent for three car thefts and breaking into two houses; in 1968 defendant’s parole for the above offenses was revoked as a result of his commission of breaking and entering and criminal damage to property; in 1969 defendant’s parole was again revoked because defendant had written a bad check; in 1970 defendant was convicted of theft; and in 1974 he was convicted of burglary.

At defendant’s sentencing hearing defendant’s wife testified that she and defendant supported four children and that since defendant’s incarceration pending the resolution of the instant charges, his family had been forced to receive public aid.

The trial court sentenced defendant to concurrent terms of 20 years’ imprisonment for each offense. In doing so, the trial court noted in aggravation defendant’s prior history of delinquency and criminal activity, “the embarrassment, the humiliation and the danger” imposed on the victim; and the need to deterrence. In mitigation, the trial court found that some hardship would be imposed on defendant’s family as a result of his incarceration.

The defendant first argues that it was reversible error for the State to cross-examine one of the defendant’s character witnesses, Karen Vreeland, regarding defendant’s prior arrests. The defendant maintains that he was denied a fair trial because the State improperly elicited evidence of other crimes and because the State utilized improper impeachment by evidence of defendant’s prior bad acts. We agree with defendant that error occurred; however, we do not agree that defendant suffered such substantial prejudice as would warrant the reversal of his conviction. (Cf. People v. Jordan (1974), 18 Ill. App. 3d 133, 136, 309 N.E.2d 274, 277; People v. Bost (1980), 80 Ill. App. 3d 933, 950-51, 400 N.E.2d 734, 747-48.) Here, as in Jordan, we have a complainant with adequate opportunity to observe and identify her assailant and who gave police a reasonably adequate description of him. Additionally, the complainant’s testimony was well corroborated. At the scene of the assault the police found the tape used to tie complainant’s hands, the cloth with which defendant attempted to blindfold complainant, and complainant’s underpants. Serology tests suggested that defendant was the assailant. Defendant also had an injury to a finger on his left hand which matched the description given by the complainant. We conclude that reversible error did not occur in the trial of this cause.

Furthermore, as in Bost, we have a situation where defendant, after making an objection, vigorously pursued the line of inquiry he had objected to. We have recognized that such conduct may amount to a waiver of the error for purposes of appeal. (80 Ill. App. 3d 933, 951-52, 400 N.E.2d 734, 748.) Here, defendant himself testified regarding prior arrests and defense counsel referred to such arrests numerous times in his closing argument. We find that the error was waived in the instant case.

Defendant next contends that the trial court erred by granting the State’s motion in limine which sought to preclude the testimony of an expert witness on eyewitness testimony. Illinois courts have held that because the trustworthiness of eyewitness observations is not generally beyond the common knowledge and experience of the average juror, it is not a proper subject for expert testimony. (People v. Johnson (1981), 97 Ill. App. 3d 1055, 1069, 423 N.E.2d 1206, 1216; People v. Brown (1981), 100 Ill. App. 3d 57, 71-72, 426 N.E.2d 575, 584; People v. Dixon (1980), 87 Ill. App. 3d 814, 818-19, 410 N.E.2d 252, 256.) The trial court correctly followed the rule established in Illinois, and its decision granting the State’s motion in limine was correct.

Finally, defendant maintains that his sentence was an abuse of discretion. In support of this contention he points to the fact that he has no history of violent offenses, has supported a wife and four children, has an adequate work history, was not an alcohol or drug user, and has close community and family ties. While these factors arguably support the imposition of a lighter sentence, they do not, in our opinion, indicate that the trial court abused its discretion in imposing the sentence which it did. The trial court properly noted as factors in aggravation that defendant’s conduct caused or threatened serious harm, that defendant had a history of prior delinquency and criminal activity, and the necessity of deterring others from committing the same crime. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 5— 3.2(aXl), (a)(3), (a)(7).) It is not the function of a reviewing court to substitute its judgment regarding sentencing for that of the trial court. (People v. Lykins (1979), 77 Ill. 2d 35, 40, 394 N.E.2d 1182, 1185.) The standard of review of a sentence is whether the trial court abused its discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884.) In the instant case we find that no abuse of discretion occurred.

For the foregoing reasons, the judgment of the circuit court of Jackson County is affirmed.

Affirmed.

JONES and EARNS, JJ., concur.