author: JUSTICE HEIPLE PRESIDING JUSTICE BARRY,

text:
    EMMY LOU SPILLER et al., Plaintiffs-Appellees, v. THE CONTINENTAL TUBE COMPANY, Defendant and Counterplaintiff-Appellant.—(CLIFFORD E. SPILLER, Counterdefendant-Appellee.)
    Third District
    Nos. 81-306, 81-290 cons.
    Opinion filed April 14, 1982.
    Rehearing denied May 18, 1982.

      BARRY, P. J., dissenting.
    Louis E. Olivero, of Peru, for appellant.
    Anthony C. Raccuglia & Associates, of Peru, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

Emmy Lou and Clifford E. Spiller, plaintiffs, filed a suit in La Salle County to recover on three promissory notes which defendant, Continental Tube Company (Continental), allegedly owes them. Defendant filed a counterclaim for breach of contract and sought indemnification. The trial judge dismissed the counterclaim for what he perceived was defendant’s abuse of discovery. Then, plaintiffs obtained summary judgment. Defendant’s appeal followed.

Spiller and Spiller Inc. (Spiller Inc.) is a small manufacturing concern. Prior to September 1,1974, Emmy Lou and Clifford Spiller loaned that company $26,811 and $28,500, respectively. In exchange, they received two promissory notes, payable on demand, at 7% yearly interest. L. P. Industrial Corporation, wholly owned by Clifford Spiller, also loaned Spiller Inc. $37,322 on the same terms of repayment. As of September 1, 1974, these three notes were debts of Spiller Inc.

On the latter date, Spiller Inc. was sold to Continental. The purchase agreement provided that, as part of the purchase price, defendant would assume the outstanding liabilities of Spiller Inc. The contract contained a clause whereby Spiller Inc. warranted that its contractual representations were true. In another clause, Spiller Inc. stated the company was then in compliance with all Federal, State, and local laws concerning the operation of its manufacturing works.

On October 6, 1975, the Spillers obtained judgment by confession against Spiller Inc. in La Salle County on the three promissory notes. Continental was not named as a defendant in those proceedings. On February 11, 1976, Continental, as Spiller Inc.’s assignee, unsuccessfully sought to intervene and vacate such judgments, claiming it received untimely notice of such proceedings and that it had a good defense. Defendant was given three weeks to replead. Continental did not respond until September 15, 1976. Then it petitioned the court to file an amended answer wherein it claimed Spiller Inc. had breached the September 1, 1974, sales contract. Specifically, it alleged that Spiller Inc. was cited on May 1, 1974, by the Illinois Environmental Protection Agency for dumping industrial waste into the Illinois and Michigan Canal. On September 27,1976, this petition was denied, thereby confirming the confessed judgments. No appeal(s) was taken.

The instant cause was filed November 23, 1976. Inexplicably, it lay dormant for almost four years. Originally, trial was set for June 30,1980. It has yet to be tried.

Discovery began in March 1980. Plaintiffs filed 72 interrogatories, a request to produce, and asked the defendant to produce Richard Schreck, Bernard Hofmann, and Henry Hofmann, allegedly Continental employees, for depositions. Continental’s response to these requests was deemed inadequate. Plaintiffs moved for sanctions on June 20, 1980. A hearing occurred. Some of defendant’s objections to the interrogatories were sustained, most were not, and others required redrafting. At that hearing defendant stated Henry Hofmann was no longer in its employ, having retired to Florida in February 1976. Defendant was ordered by the trial judge to respond to the production request and interrogatories by September 2, 1980. Defendant finally answered on October 23, 1980. Additional compliance was directed by the court on November 18,1980. That is, defendant was ordered to answer certain interrogatories, verify its answer to the production request, and make arrangements for plaintiffs to depose of Mr. Schreck, and Bernard and Henry Hofmann.

On February 2, 1981, plaintiffs filed another motion for sanctions, claiming noncompliance with the November court directive. Also, the Spillers filed more interrogatories. A hearing commenced on March 10, 1981. Allegedly, at this hearing, defendant’s counsel stated it would produce Henry Hofmann and the other two men to be deposed by plaintiffs on March 21, 1981. Defendant disputes this. The hearing was not transcribed.

On March 16, by letter, defendant informed the Spillers that Henry Hofmann would not be produced for a deposition but the other men could be deposed between March 23 and March 25. On March 19, plaintiffs again sought sanctions for defendant’s failure to comply with the court’s prior order. The Spillers wanted defendant’s counterclaim dismissed. The trial court agreed, and stated:

“This is the oldest case I have got on my docket. I have put up with your failure to supply information as long as I’m going to. You have had all the time you’re going to have and I’m going to enter sanctions. And I will tell you what the sanctions are. Either these discovery depositions go forward as originally agreed on March 21, or your counterclaim will be dismissed.”

The depositions did not go forward. On March 30, 1981, defendant’s counterclaim was dismissed. The Spillers obtained summary judgment three days later.

This appeal presents two issues. Was dismissal of Continental’s counterclaim a proper discovery sanction? Was entering summary judgment proper? On both questions the answer is no. We reverse.

This cause is earmarked by both parties’ failure to comply with our supreme court’s rules concerning discovery. (Ill. Rev. Stat. 1979, ch. 110A, pars. 201 through 219.) Neither party did anything in this lawsuit for four years. Defendant perpetually postponed responses to interrogatories and supplying documents pursuant to plaintiffs’ production requests. Plaintiffs attempted to impose on Continental the obligation of producing a nonparty for a deposition. Finally, when defendant did not comply with plaintiffs’ various discovery requests, the Spillers repeatedly brought such neglect before the trial judge. In sum, these actions manifest the squandering of time, money, and judicial resources.

For the discovery rules to possess the effect for which intended, counsel on both sides must inform themselves of what the rules say, observe them, and interpret them so justice can be administered efficiently. This means cooperation, not harassment, delay, and pettifoggery. Since Henry Hofmann was no longer an employee of defendant, Continental had no obligation to produce him for a deposition on plaintiffs’ request. That is the law. (Ill. Rev. Stat. 1979, ch. 110A, par. 204(a)(3).) Plaintiffs should have requested a subpoena to compel Mr. Hofmann’s attendance. The Spillers urge that Continental agreed to produce Mr. Hofmann. Continental denies this. The hearing at which this agreement supposedly transpired was not recorded. We cannot make decisions where no record exists.

In lieu of obtaining a subpoena, the Spillers began filing motions for sanctions for discovery abuse. Such legal artifice is exactly the type of conduct which our supreme court has rebuked. (Williams v. A. E. Staley Manufacturing Co. (1981), 83 Ill. 2d 559, 565-66.) The parties, not the trial judge, must provide discovery. Information must be exchanged by the parties so the actual facts and controlling issues can be discerned. If legitimate differences exist, of course, a trial judge can intervene. But the trial court cannot become the catalyst upon which one party seeks to force the other party to act. In this regard we note the absence of affidavits accompanying plaintiffs’ several sanctions motions. Such affidavits should indicate the parties have conferred about their differences and have reached an irreconcilable impasse. The rules so provide. (Ill. Rev. Stat. 1979, ch. 110A, par. 201 (k).) One or two letters, without response, are insufficient to warrant dismissing a party’s counterclaim. Williams v. A. E. Staley Manufacturing Co.

This does not mean Continental was blameless. Defendant’s dilatory finesse displays a lack of participation concerning plaintiffs’ interrogatories and the request to produce. Certainly, this incensed the trial judge. Even so, dismissing a claim is a severe sanction. Generally, striking a claim would be warranted where the dismissal is reasonably related to the information withheld. The sanction should address those issues affected by the refusal to comply. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 196-97.) The trial judge went beyond this. Continental had no duty to produce Henry Hofmann for plaintiffs to depose. Concerning defendant’s recalcitrance on the other discovery matters, penalties such as the imposition of costs or attorney fees should have been considered.

Awarding, summary judgment to plaintiffs was wrong. Apparently, the trial court thought the prior, confessed judgments were a bar to Continental’s counterclaim. Such a view confuses the distinction between res judicata, and its variant strains, estoppel by judgment and estoppel by verdict. (See generally People v. Bone (1980), 82 Ill. 2d 282, 287.) Res judicata is:

“* e » a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. [Citations.] 600 When a former adjudication is relied upon as an absolute bar to a subsequent action, the only questions to be determined are whether the cause of action is the same in both proceedings, whether the two actions are between the same parties or their privies, whether the former adjudication was a final judgment or decree upon the merits, and whether it was within the jurisdiction of the court rendering it.” (People v. Kidd (1947), 398 Ill. 405, 408-09.)

Assuming that identity exists between Continental as assignee and Spiller Inc. as assignor, we conclude the causes of action in the respective proceedings are different. Hence, res judicata is inapplicable.

A cause of action is a right one party possesses for a wrongful act or omission done by another party in violation of the former right. (Varley v. Pickens (1981), 98 Ill. App. 3d 884, 886.) All ultimate facts necessary to prove or defend that right are part of the cause of action violation of the right creates.

In the confession of judgment proceedings two things were decided: existence of a debt owed by Spiller Inc. to the Spillers; and, whether payment was made. In those hearings no evidence was adduced on Continental’s duty to pay the debts of Spiller Inc. pursuant to the contract whereby defendant purchased that enterprise. In the present suit, however, the ultimate issue to be tried is not the existence of unpaid debts to the Spillers, but whether Continental has an obligation to pay such indebtedness, and if so, how much. The right averred in defendant’s counterclaim is the breach of contract by Spiller Inc. by allegedly misrepresenting the company’s compliance with State environmental laws prior to September 1,1974. Continental’s liability on the promissory notes is created only by such sales contract. Proof of such can only stem from the promises and declarations the latter instrument contains. Thus, the wrong Continental complains of is clearly distinguishable from the issue of whether a debt is merely owed and unpaid.

Likewise, estoppel by verdict is inapposite. This theory applies where the parties and subject matter are the same, even if the causes of action in the two suits are different. (Accord, Skolnik v. Petella (1941), 376 Ill. 500, 503.) In the prior proceedings the existence of the debt owed by Spiller Inc. was established. Such cannot be relitigated in the cause at bar. But the facts surrounding the alleged breach of contract, and any consequential damages flowing therefrom were not litigated. Estoppel as to such facts, the centerpiece of defendant’s counterclaim, does not result.

If the material facts admit of more than one conclusion or inference, a motion for summary judgment must be denied. As hereinbefore stated, the dismissal of the counterclaim was error. Issues of fact must be resolved based on the contract between Spiller Inc. and Continental. The possibility of damages due to Spiller Inc.’s apparent misrepresentation, and therein a setoff against the liabilities defendant assumed in purchasing Spiller Inc. is very real. These inquiries concern facts in dispute based on the pleadings and supporting documents pertinent thereto.

For the reasons stated, the judgments of the Circuit Court of La Salle County are hereby reversed. This cause is remanded to that court for further proceedings consistent with the views expressed herein.

Reversed and remanded.

STOUDER, J., concurs.

PRESIDING JUSTICE BARRY,

dissenting:

I cannot agree with my colleagues that it was error to dismiss defendant’s counterclaim as a sanction for failing to comply with orders of the trial court relating to discovery. The majority opinion has overlooked some pertinent facts and has, in my view, preempted the decision-making authority of the trial court in complete disregard for the basic principle of appellate review, that the party claiming error has the burden of establishing that error occurred. Error is never presumed by the reviewing court but must be affirmatively shown by the record. Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.

Henry Hoffmann was president of defendant corporation at the time of the transactions between the plaintiffs and defendant, and Hoffmann personally communicated to the Spillers notice that the plant was not in compliance with environmental laws of Illinois. By the time this lawsuit reached the discovery stage, Henry Hoffmann had retired.

The following chronology of events is relevant to this appeal:

1. August 9,1979 — Case was set for trial on June 30, 1980.

2. March 17, 1980 — Plaintiff served interrogatories and a request to produce upon defendant.

3. June 20,1980 — Plaintiff filed a motion for sanctions for defendant’s failure to furnish discovery. A hearing was held, and various orders were entered.

4. June 23, 1980 — Upon motion of defendant for substitution of judge, case was assigned to Judge Hoffman, who ordered trial reset for March 30, 1981, with all discovery to be concluded by February 1, 1981, “no exceptions.”

5. October 23,1980 — Plaintiffs filed a second motion for sanctions.

6. November 18,1980 — Defendant was ordered to furnish additional answers.

7. January 13,1981 — Defendant’s counsel wrote to plaintiffs’ attorney supplying supplemental answers to interrogatories (unverified) and stating that counsel would “make the necessary arrangements” for the discovery deposition of Henry Hoffmann “as has been discussed.”

8. February 2, 1981 — Plaintiffs filed a third motion for sanctions.

9. March 10, 1981 — Parties apparently agreed to the depositions of three persons, including Henry Hoffmann, on March 21,1981, in Pennsylvania.

10. March 12, 1981 — Notices of these three discovery depositions were filed.

11. March 16, 1981 — Defendant’s counsel informed plaintiffs’ attorney that of the three witnesses to be deposed, Henry Hofmann would never be available and the other two would only be available between March 23 and 25,1981.

12. March 19, 1981 — Plaintiffs filed a fourth motion for discovery sanctions, and the court ruled: “Either these discovery depositions go forward as originally agreed on March 21, or your counterclaim will be dismissed.” (Emphasis added.)

13. March 30,1981 — The dismissal order was entered.

In reversing the dismissal of the counterclaim, the majority relies upon the fact that the record does not contain a transcription of any oral agreement by defendant to produce Henry Hofmann. The majority does not mention that the trial court stated for the record that defendant, in order to avoid sanctions, agreed on March 10 in chambers to produce Hofmann on March 21 for a deposition. That statement by the court is corroborated in the record by the notice which was sent to Hofmann on March 12 and by an earlier letter from defendant’s counsel stating that arrangements for Hofmann’s deposition would be made. The burden is on defendant to show by positive evidence that the trial court was wrong and that defendant did not agree to produce Hofmann. Defendant has made no such showing, and I believe the finding of the trial court is sufficiently supported in the record to be affirmed. I must decline to substitute my judgment for that of the trial court.

I also wish to state that I do not agree that plaintiffs abused the discovery process by seeking sanctions for this out-of-State defendant’s noncompliance with discovery requests. Far from being a “legal artifice,” a motion for sanctions is the appropriate remedy to use when confronted with an opponent who uses delaying tactics to gain additional time on the eve of trial. When one party refuses to provide discovery, the trial judge is supposed to “become the catalyst” for compelling compliance, as was properly done here.

I believe plaintiffs’ actions here were appropriate to protect their interest in preparing adequately for trial and to prevent defendant from delaying the case in defiance of court orders. The experienced and respected trial judge concluded that defendant has “so flaunted the jurisdiction of this court that the process of judicial administration in this case had completely broken down and failed.” (March 30, 1981, dismissal order.) Such a grave finding should not be treated lightly, especially when supported by a record showing a pattern of delays in furnishing discovery over a period of more than a year.

Finally, I would note that the absence of affidavits accompanying plaintiffs’ motions for sanctions was not raised in the trial court, and any such error was, therefore, waived for purposes of review. Fullerton v. Robson (1978), 61 Ill. App. 3d 93, 377 N.E.2d 1044.

Since I would affirm the dismissal of the counterclaim, the factual issues raised by the counterclaim would be eliminated. Therefore, summary judgment for the plaintiffs would not be erroneous. I would also affirm the judgment for plaintiffs.

       This letter is a part of some material which defendant has sought to file in this court pursuant to a motion to amend the record on appeal. That motion was taken with the case and should have been granted since the material is relevant. It is the record of defendant’s agreement to furnish Hofmann for a deposition.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    ROBERT BATTERTON, Plaintiff-Appellee, v. CLIFFORD THURMAN, Defendant-Appellant.
    Third District
    No. 81-455
    Opinion filed April 20, 1982.
    Rehearing denied May 20, 1982.

      David F. Buysse and John E. Cassidy, Jr., both of Cassidy, Cassidy, Mueller & Price, of Peoria, for appellant.
    Ronald Weber, of Froehling, Taylor & Weber, of Canton, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Plaintiff, Robert Batterton, brought suit against defendant, Clifford Thurman, for assault and battery. The two-count complaint sought compensatory and punitive damages. After a three-day trial, a Fulton County jury returned a verdict for plaintiff. Compensatory ($13,000) and exemplary ($33,000) damages were awarded. Defendant’s motion for a remittitur was granted, decreasing the punitive damage award to $10,000. Plaintiff appeals the allowance of a remittitur (Ill. Rev. Stat. 1979, ch. 110A, par. 366(b)(2)(ii)). Defendant appeals from the general judgment entered on the verdict and the denial of his motion for a new trial.

On February 6, 1978, Mr. Thurman struck plaintiff in the face with his físt. Mr. Batterton’s jaw broke in two places. The genesis of the striking was a verbal dispute over the death of several hogs owned by Mr. Thurman. Plaintiff resided in a farm dwelling which he rented from defendant. On that farm, Mr. Thurman kept hogs. According to defendant, plaintiff’s dog killed the hogs. Plaintiff, on the other hand, said the hogs were killed by coyotes frequenting the area.

Trial testimony reflects that the parties had opposite views as to what transpired on the day plaintiff was injured. Both agreed they conversed outside the Batterton dwelling. Batterton showed Mr. Thurman a letter wherein Thurman’s insurer wrote Mr. Batterton it would not pay for the loss of the hogs. Plaintiff reiterated his dog did not kill the hogs. Then, either Thurman began pummelling plaintiff, or, according to Mr. Thurman’s self-defense theory, Mr. Batterton began pushing him and slugged him in the neck. After that defendant had no recollection of what happened, until, as he testified:

* * I found myself just standing there. I looked down and there Bob laid. * 90 I was — there I was, and I said, ‘Christ, what have I done now?’ I thought I’d killed him. He wasn’t breathin’. His eyes was [sic] closed — completely out * #

Eventually, Mr. Batterton came to. Surgery, required to repair the fractures, was partially successful. Plaintiff, a heavy equipment operator at a coal mine, lost 400-500 work hours. His hourly wage was about $10. At the time of trial he still experienced bouts of dizziness, headaches and a popping sound in his ears. Medical bills approximated $3,000.

Because of the incident, Mr. Thurman was charged with the criminal offense of battery. Following a period of court supervision, an order of expungement was entered which impounded that court record. Judge Bath, who presided at those proceedings, was allowed to testify in the case at bar over defendant’s objection.

This appeal has seven issues: (1) Were admissions of defendant from his expunged criminal case properly admitted? (2) Was refusal to allow defendant’s character witness testimony proper? (3) Did prejudicial closing argument by prosecutor occur? (4) Was a special interrogatory properly given? (5) Was a certain jury instruction on punitive damages properly given? (6) Were the verdict forms prejudicial? and, (7) Was the trial court correct in ordering a remittitur?

On the second day of the civil trial, plaintiff filed a motion to open up the expunged criminal case file charging Mr. Thurman with battery. Judge Bath presided at those proceedings. The motion was allowed. Judge Bath then testified in the civil trial from the criminal file’s docket sheet and read those facts to which Mr. Thurman had stipulated. In that criminal cause Mr. Thurman did not plead guilty but admitted striking the plaintiff, or those facts necessary to sustain a criminal battery charge. Judge Bath could not personally recall the case, Mr. Thurman, or the matters the cause entailed.

On appeal, defendant urges allowing such testimony was error since the trial judge had no jurisdiction to remove the criminal case file for plaintiff’s benefit without notice to defendant. He also maintains such hearsay testimony was inadmissible since nonprobative and unduly prejudicial. We disagree.

The trial judge was not overruling the expungement order. The latter merely deleted the defendant’s arrest record and other identifying materials from police records. That order is still valid and binding. Plaintiff’s motion did not seek identification information but only those facts which defendant admitted pertaining to the criminal battery charge. Judge Bath did not read from such arrest records but only from the court’s own docket sheet as well as the charging instrument and defendant’s response thereto. Although defendant now claims surprise because of plaintiff’s motion, this contention is belied by his failure to indicate unpreparedness to the trial judge either orally or by moving for a continuance.

Defendant’s contention that such testimony was prejudicial and without probative value is unpersuasive. The ramifications of an order of supervision may be different than a criminal conviction or plea of guilty. (Smith v. Andrews (1964), 54 Ill. App. 2d 51, 57-61.) We perceive no error in the manner in which Judge Bath’s testimony was introduced. The scope of such testimony was limited to prior admissions of fact. In order for Mr. Thurman to be eligible for supervision he had to stipulate to the facts underlying the criminal battery charge or plead guilty to the offense (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1(c)). He chose the former. In so doing he made a binding admission to the fact he struck plaintiff and injured him. In other words, he indicated his acts amounted to battery in order to obtain favorable terms as to punishment. (People v. Bodine (1981), 97 Ill. App. 3d 42, 45.) Such an admission is recognized by the majority of jurisdictions as being admissible in a subsequent civil trial. (Annot., 90 A.L.R.3d 1173, 1177 (1979).) We think such a rule of evidence manifests logic and common sense. Thus, we adopt it.

During trial Mr. Thurman sought to introduce character evidence, through the testimony of Richard Hopkins, that defendant was genial and law-abiding. Plaintiff’s objection was sustained. Defendant contends that such ruling was erroneous.

In essence, Mr. Hopkins’ testimony was presumably elicited for the purpose of showing that Mr. Thurman acted in conformity with his general character for peacefulness, the resulting inference being that on February 6, 1978, defendant conducted himself peacefully, thereby circumstantially rebutting plaintiff’s claim he was the aggressor. Such use of character evidence is proper. The ruling which sustained the objection was erroneous. In a case where the proofs amount to a criminal act involving intent, the party charged may introduce evidence of good character to overcome such proofs. (People ex rel. Collins v. Matt (1922), 224 Ill. App. 210.) However, defendant failed to make an offer of proof concerning the content of Mr. Hopkins’ testimony. Hence, the error was not properly preserved and is now deemed waived.

During closing argument plaintiff’s attorney reminded the jury Mr. Thurman did not plead self-defense to the criminal charges which arose out of the altercation. Defendant’s objection was sustained. A curative instruction was not requested by defense counsel. Mr. Thurman says the prejudicial aspects of this statement mandate a new trial.

We might agree with defendant if the remark had been reiterated after objection. But it was not. The remark was made once. The trial judge quickly sustained an objection to it. A limiting instruction was not requested. This one comment was not reversible error.

At the jury instructions conference, one of defendant’s attorneys requested the following special interrogatory be given the jury:

“Do you find that the injury suffered by plaintiff was the proximate result of an intentional act by defendant?
Yes_
No__”

Plaintiff’s attorney as well as defendant’s other counsel objected. The trial court gave the interrogatory and the jury answered it affirmatively. Defendant contends this was error since plaintiff’s complaint did not allege the commission of the intentional tort of battery, and either response by the jury to the interrogatory would not control the general verdict. In a word, since the interrogatory did not relate to those facts necessary to sustain the pleaded causes of action it should not have been given.

The giving of a special interrogatory is proper if it pertains to the ultimate facts differentiating the respective liabilities of the parties, and if the jury’s response thereto would be inconsistent with the general verdict on the issues of the case. (Wicks v. Cuneo-Henneberry Co. (1925), 319 Ill. 344, 349-350.) The giving of the interrogatory was error since the finding of an intentional act is not inconsistent with negligent or wilful or wanton conduct. The error, however, was harmless. We fail to see any detriment accruing to defendant because the interrogatory was given. Indeed, it was defendant’s counsel who offered it.

Plaintiff’s instruction No. 26 requested punitive damages if defendant was found guilty of wilful and wanton conduct. Defendant argues this admonition was improper since the trial produced no evidence of defendant’s financial worth.

The parties theorize at length whether proof of financial worth must be in evidence before an award of exemplary damages can be returned. Although the position in Illinois is not well defined (compare Mullin v. Spangenberg (1884), 112 Ill. 140, with Annot., 9 A.L.R.Sd 692, 697 (1966) (Illinois cases)), such is not the point. The record in this case forms the basis for decision. Trial testimony indicated that as of February 6, 1978, Mr. Thurman farmed three different properties as a tenant. He owned a 70-cow dairy operation and was fattening 90-100 of his own hogs. Although such evidence is by no means conclusive as to defendant’s financial status, neither does it leave the jury to guesswork in fixing an award. He had substantial assets. Plaintiff’s instruction, the standard IPI version, was correctly given.

Defendant’s final contention is that the verdict forms submitted to the jury were prejudicial. The itemized form indicated:

“We, the Jury find for the plaintiff and against the defendant. We assess the damages in the sum of $_itemized as follows:
(a) Economic loss $_
(b) Non-economic loss -
(c) Exemplary damages--”

By statute (Ill. Rev. Stat. 1979, ch. 110, par. 65.1) defendant claims such forms were unduly prejudicial for two reasons. They did not include the term, “if any.” And, the statute mandates that only damages pertaining to economic or noneconomic loss be itemized.

The statute in question (Ill. Rev. Stat. 1979, ch. 110, par. 65.1) says:
“Itemized verdicts. In every case where damages for injury to the person are assessed by the jury the verdict shall be so itemized so as to reflect the monetary distribution among economic loss and non-economic loss, if any.”

The purpose of the statute is to provide the parties more information concerning the makeup of the jury’s award. Although we recognize the statute does not include the term “exemplary damages,” including such an item in a verdict form was not improper. The jury was informed of those circumstances where they could return an exemplary award. The hypotheses under which exemplary damages might be awarded was clearly set out in plaintiff’s pleadings and instruction No. 26. The latter was given without objection and clearly stated the law. The instruction neither invited nor told the jury to return an exemplary award. They could have left the item blank. The itemization of the verdict form concerning exemplary damages furthers the purpose of the statute by providing the parties with more information concerning the content of the verdict. Also, the omission of the term “if any,” although perhaps an oversight, is not statutorily required. Doering v. Janssen (1979), 76 Ill. App. 3d 62, 67.

The trial judge granted a remittitur of $33,000 to $10,000 concerning the jury’s award of exemplary damages. The trial judge noted the jury’s verdict “shocked the conscience of the court.” Plaintiff says this was error. We agree.

Generally, a jury verdict should not be disturbed unless it is the product of passion or prejudice. (Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 453.) Each verdict must be assessed based on the distinct facts presented in the cause. A trial judge does not have the power to speculatively and gratuitously negate a jury’s verdict. In this cause, the record supports the verdict both as to actual and punitive damages. The trial judge offered neither his reasons nor his conclusions as to why the jury erred in computing the punitive award. The amount of the award apparently seemed excessive to the trial judge. But he cannot overturn such an award merely because he, for subjective and unknown reasons, would have computed damages differently. A basis in fact, evidenced by the record, must exist showing the award was erroneous or was the result of prejudice or passion before it can be reduced. The trial judge indicated no such facts, and we see none. Thus, the trial judge was in error in granting a remittitur.

For the reasons stated we affirm the general verdicts of the jury. The remittitur awarded to defendant is reversed and judgment entered pursuant thereto is hereby vacated. The original jury award as to punitive damages is hereby reinstated and judgment is ordered entered thereon.

Affirmed in part. Reversed in part. Judgment of trial court vacated. Judgment ordered entered in favor of plaintiff on jury’s verdict.

ALLOY and STOUDER, JJ, concur.


author: JUSTICE NASH

text:
    THOMAS H. STERN, Plaintiff-Appellant, v. MYRNA Y. STERN, Defendant-Appellee.
    Second District
    No. 81-670
    Opinion filed April 19, 1982.

      Garry L. Smith, of Chicago, for appellant.
    Ward P. Fisher, of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Thomas H. Stern, appeals from an order dismissing his complaint for declaratory judgment brought against his wife, defendant herein, Myrna Y. Stern.

The complaint sought a declaration of the rights of the parties under an agreed order entered by the trial court on September 9,1981. It alleged that on that date the parties negotiated an agreement for settlement of an action for dissolution of their marriage which was then pending between them; that the agreement was in the form of a “Partial Marital Settlement Agreement” pursuant to sections 502 and 503(a)(4) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, pars. 502 and 503(a)(4)); that the terms of the agreement, which related to the disposition between them of certain of their property, were incorporated in the agreed order and a copy was attached to the complaint. The complaint further alleged the pending dissolution action had been dismissed by the trial court in accordance with the terms of the agreement, but that defendant had thereafter failed and refused to comply with its provisions.

Defendant filed a motion to dismiss the complaint on the grounds the agreement was void because, while purportedly made pursuant to section 502 of the Marriage and Dissolution of Marriage Act, no judgment dissolving the marriage had been entered. Defendant further alleged plaintiff’s complaint was an effort by him to adjudicate marital rights and obligations outside of the framework of the Act.

After a hearing, the trial court granted defendant’s motion to dismiss the complaint on the grounds that an action for declaratory judgment would not lie where it appears that to do so would not terminate the controversy or some part thereof and that further relief would likely become necessary in this case. Section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.1) provides:

“(1) No action or proceeding is open to objection on the ground that a merely declaratory judgment or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any ” ” ” contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy. The court shall refuse to enter a declaratory judgment or order, if it appears that the judgment or order, would not terminate the controversy or some part thereof, giving rise to the proceeding. ” * (Emphasis added.)

In his complaint, plaintiff requested that the court declare the duties and obligations of the parties under the agreement of September 9, 1980, and specifically that it do so with respect to those interests in certain marital property (a residence and the beneficial interest in a land trust) which under the agreement were assigned to him. In support of the trial court’s conclusion that such a judgment would not terminate the present litigation, defendant argues that the trial court may have believed that distribution of the parties’ property should have been the subject of a dissolution of marriage proceeding rather than one for declaratory judgment. She also asserts that statements made by plaintiff’s counsel at the hearing of the motion to dismiss that the dissolution action might be revived gave rise to the possibility that further litigation would be necessary to resolve the present controversy.

“The issue in an action seeking declaratory relief is whether, considering all the circumstances, under the facts alleged, there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant issuance of declaratory judgment.” (Wood v. School District No. 65 (1974), 18 Ill. App. 3d 33, 36, 309 N.E.2d 408, 411.) “It is well settled that a declaratory judgment should not be granted if to do so would entail a piecemeal litigation of the matters in controversy, nor unless the court can by such judgment dispose of the controversy between the parties. It is not the intent of the declaratory judgment statute to confer jurisdiction on the courts to be legal advisers.” Farmers Insurance Group v. Harris (1972), 4 Ill. App. 3d 372, 376, 279 N.E.2d 789, 791.

Inasmuch as the complaint pleaded the existence of an agreement in settlement of pending litigation and requested that the court construe the agreement’s terms and declare the rights of the parties, it constituted a request for the construction of a contract and was properly brought in a suit for a declaratory judgment. While it has been established, in cases construing the former Divorce Act, that in the absence of a decree of divorce a court cannot determine as between husband and wife such questions as property rights, alimony or child custody (Ollman v. Ollman (1947), 396 Ill. 176, 71 N.E.2d 50; Bateman v. Bateman (1949), 337 Ill. App. 7, 85 N.E.2d 196), this rule does not appear to preclude the courts from enforcing otherwise valid agreements between spouses concerning ownership of their property. The mere possibility, always at least potentially present, that proceedings for dissolution of marriage might be commenced during the term of an agreement between spouses relating to their property or business dealings, should not preclude the availability of declaratory relief where an actual controversy has arisen with respect to the construction of the agreement. Thus, in Trossman v. Trossman (1960), 24 Ill. App. 2d 521, 165 N.E.2d 368, involving an action for a declaratory judgment of an antenuptial agreement that the parties’ property rights would be separate and distinct as though no marriage had taken place, regardless of whether the marriage were terminated by death or divorce, the reviewing court found that a spouse’s assertion of the agreement’s invalidity and announcement of intent to seek dower and intestate succession in the event of the other’s death, gave rise to an actual controversy suitable for determination in a declaratory judgment case. The trial court’s dismissal of the complaint for declaratory judgment was therefore reversed. Although Trossman may be distinguished on its facts from the case at bar, it demonstrates that a case of actual controversy exists between spouses when there has been a challenge to the validity of an agreement by which they had provided for the disposition of their property, notwithstanding that the time for performance of the agreement’s terms had not yet arrived. By contrast, in the present case defendant raised her challenge to the agreement’s validity after the time for performance of its terms had passed and after demand for performance had been made upon her. To the extent that the trial court may have declined to adjudicate plaintiff’s complaint for declaratory judgment because of the possibility that dissolution of marriage proceedings might eventually have ensued, its dismissal of the complaint was error.

The second justification advanced by defendant for the dismissal, that further litigation might be necessary to resolve the controversy, relates to remarks made during the oral argument on the motion to dismiss. It was noted at that hearing that not only had there been a settlement agreement between the parties, but that the agreement had been incorporated into the court order dismissing the original proceedings for dissolution. A colloquy took place between counsel and the court as to the reason why plaintiff had originally wanted the agreement merged in the order of dismissal, and it was in that context that plaintiff’s counsel noted that any challenge defendant might make to the dismissal order incorporating the terms of the settlement might be brought as a section 72 petition to that original proceeding. There is no indication that defendant has commenced or contemplated such a petition, and the mere possibility that a section 72 petition might at some stage be brought does not indicate that a declaratory judgment would fail to resolve the present controversy relating to the validity and construction of the settlement agreement. We conclude that the trial court erred in dismissing the complaint on this basis.

This court’s authority to affirm the trial court on any basis appearing in the record is well established (Metropolitan Life Insurance Co. v. Hansen (1981), 102 Ill. App. 3d 354, 430 N.E.2d 57), and plaintiff’s further argument that review of this case is restricted to the single ground relied upon by the trial court for dismissal of the complaint is without merit. We will, therefore, address the issue presented by defendant’s motion to dismiss, although not ruled upon by the trial court: whether a property settlement agreement purportedly arrived at under section 502 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 502) is valid when no judgment for dissolution of marriage has been entered.

Section 502(a) of the Act provides:

“To promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage, the parties may enter into a written or oral separation agreement containing provisions for disposition of any property owned by either of them ” * V’

The annotations to this section note that its language was derived from section 306(a) of the Uniform Marriage and Divorce Act (9A Uniform Laws Annotated (1979)), but that the language of the Illinois enactment differs from the Uniform Act in that the latter provides for separation agreements attendant upon either legal separation or dissolution of marriage. No such provision is found in section 502 of the Illinois act, as Illinois does not authorize the adjudication of property rights in legal separation proceedings. (Ill. Ann. Stat., ch. 40, par. 502, Historical and Practice Notes, at 399 (Smith-Hurd 1980).) It is not clear at this stage of these proceedings whether the agreement was one attendant upon legal separation or upon reconciliation of the parties. (In her testimony at the hearing for dismissal of the dissolution action, defendant referred to the matter as a reconciliation.) In either event, it seems clear that in Illinois a property settlement agreement based upon section 502 must be attendant to a dissolution of marriage.

Defendant contends that plaintiff’s repeated references to the contract as a section 502 marital settlement agreement have irrevocably committed him to the position that the agreement was one entered solely pursuant to that section. Since section 502 applies only to agreements attendant upon a dissolution of marriage, and since the parties’ marriage has never been dissolved, defendant asserts that the agreement is a nullity.

We note, however, that the agreement recites that it was arrived at “pursuant to Section 502 * * * and Section 503(4) [sic] of the Illinois Marriage and Dissolution of Marriage Act.” The latter section, properly cited as section 503(a) (4), recognizes that the parties may agree inter se to treat certain property as nonmarital. (Ill. Ann. Stat., ch. 40, par. 503, Historical and Practice Notes, at 462 (Smith-Hurd 1980).) As the reference to section 503 appears on the face of an exhibit incorporated in the complaint, defendant’s effort to restrict review of the sufficiency of the complaint to the question of whether this was a valid section 502 agreement must fail. While defendant posits some doubt as to whether the agreement in settlement of the pending litigation would have been reached if it had been recognized that section 502 could not be utilized, no question was raised in that regard at the September 9, 1980, hearing on the settlement. Defendant testified at the hearing that she had voluntarily signed the agreement after consulting her attorney, was satisfied with its terms and wished the pending dissolution proceeding to be dismissed. Inasmuch as these factual matters are deemed admitted for the purpose of evaluating the sufficiency of the complaint (Scutt v. La Salle County Board (1981), 97 Ill. App. 3d 181, 423 N.E.2d 213), and since the designation of the statute pursuant to which the agreement was reached was not an operative provision of that agreement, defendant’s claim that the settlement must be viewed as a nullity is erroneous. See In re Marriage of Maher (1981), 95 Ill. App. 3d 1039, 420 N.E.2d 1144.

We do not here determine whether the agreement in issue is a valid and subsisting post-nuptial contract between the parties or what rights, if any, either may have under it. We do hold that plaintiff’s complaint for declaratory judgment was sufficient to withstand the motion to dismiss it.

Accordingly, the judgment of the circuit court of Lake County dismissing plaintiff’s complaint is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

REINHARD and UNVERZAGT, JJ„ concur.


author: JUSTICE LONDRIGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK SANDERLIN, Defendant-Appellant.
    Fourth District
    No. 17442
    Opinion filed April 15, 1982.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Defendant was charged with the offense of armed robbery. The charge arose from the armed robbery of the Burger Chef restaurant in Bloomington, Illinois, on March 14,1981.

Prior to trial, defendant filed motions to quash his arrest and to suppress testimony regarding a pretrial identification. Defendant alleged that he had been arrested without probable cause and forced to appear in a lineup without counsel.

At the pretrial hearing, it was established that defendant was arrested by Macon County authorities on March 24, 1981, and charged with the armed robbery of a Decatur establishment. Defendant was held in the Macon County jail. Although a finding of probable cause was made at preliminary hearing, the armed robbery charge was dismissed on April 7, 1981. Defendant continued to be detained in Macon County because a parole hold had been issued against him.

On April 8, 1981, Bloomington police officer Richard Hoeniges was advised by Macon County authorities that defendant was in custody as a suspect in a Decatur robbery. The modus operandi of the Decatur robbery was similar to that of the Bloomington Burger Chef robbery.

Hoeniges relayed this information to William Ingram, a McLean County parole officer. Ingram instituted a parole hold on the defendant in McLean County. On April 9,1981, Bloomington police officer John Swearingen traveled to Macon County, obtained custody of defendant and transported him to the McLean County jail. Officer Swearingen did not have a warrant for defendant’s arrest. On April 10, 1981, defendant was placed in a lineup. James Palmer identified the defendant as the perpetrator of the Burger Chef armed robbery.

The trial court denied defendant’s motion to quash his arrest and to suppress evidence.

At trial, the evidence established that at approximately 11 p.m. on March 14, 1981, a masked man entered the Burger Chef restaurant in Bloomington, Illinois. He produced a long-barreled pistol and ordered the employees to empty the safe. After taking the money, the intruder fled. Two restaurant employees gave descriptions of the man. Ms. Stearns described the man as being between 5 feet 10 inches and 6 feet tall, weighing 165 pounds, and wearing a ski mask, blue jeans and an army surplus jacket. Ms. Donaldson described the man as being 6 foot 1 inch tall, slim, and wearing a ski mask, blue jeans and a long green coat.

James Palmer testified that he left the Burger Chef restaurant at approximately 11 p.m. As he was leaving the restaurant, he saw a man wearing an army jacket and blue jeans. As this man reached the door of the restaurant, he pulled a ski mask down over his face. Palmer further stated that he observed the man’s face for 5 to 10 seconds before the man pulled the ski mask down. Palmer described the man as being 6 feet 1 inches tall, slim, with dark hair and a mustache.

Palmer also testified that he viewed a lineup on April 10,1981. Palmer stated that he identified defendant as the man who had committed the Burger Chef robbery.

Defendant presented alibi testimony by his cousin and another woman which indicated that defendant was in Decatur on the evening of March 14,1981.

The jury found defendant guilty of armed robbery. Defendant was sentenced to a term of 8 years’ imprisonment.

Defendant argues that his detention by the Bloomington police constituted an illegal arrest and that the identification testimony must be suppressed as fruit of the illegal arrest. He argues that the McLean County parole hold was merely an attempt to subvert the constitutional requirement of probable cause.

Section 3 — 14—2(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1003-^-14 — 2(c)) provides, in part:

“A sheriff or other peace officer may detain an alleged parole or release violator until a warrant for his return to the Department can be issued. The parolee or releasee may be delivered to any secure place until he can be transported to the Department.”

The supreme court dealt with the question of whether an arrest of a parolee must be supported by probable cause in People ex rel. Jefferson v. Brantley (1969), 44 Ill. 2d 31, 253 N.E.2d 378. In Brantley, petitioner was a parolee who had been arrested by means of a warrant issued by the warden of the penitentiary and charged with a parole violation. Petitioner argued that the warrant was issued without probable cause and that his arrest was improper. The supreme court rejected this argument, stating:

“The warrant for Jefferson’s arrest was issued and certified to by the warden pursuant to section 7(g) of the Sentence and Parole Act (Ill. Rev. Stat. 1967, ch. 108, par. 204(g),) but was not supported by a complaint setting forth probable cause. The warrant initiated an administrative proceeding to determine whether parole had been violated, and in no way deprived a free citizen of his right to liberty. It therefore did not have to meet the ‘probable cause’ requirements of the fourth amendment.” 44 Ill. 2d 31, 33-34, 253 N.E.2d 378.

Similar results have been reached by the courts of sister States. See, e.g., People v. Prochnau (1967), 251 Cal. App. 2d 22, 59 Cal. Rptr. 265 (detention of a parolee is not an arrest since the parolee is at all times in custodia legis); Reeves v. Turner (1972), 28 Utah 2d 310, 501 P.2d 1212 (standards governing arrest in search of parolee are not as stringent as those governing arrest in search of citizen with full civil rights).

The standard required to be met in order to detain a parolee in Illinois was recently discussed in People v. Finch (1980), 86 Ill. App. 3d 493, 408 N.E.2d 87. In Finch, detectives were investigating the murder of two service station attendants. Defendant, a parolee, had been seen in the station a short time before the bodies were found. Officers went to defendant’s apartment. Defendant consented to a search of the premises. Defendant’s girlfriend told one of the officers privately that defendant had a gun but that she had never seen it. Defendant later agreed to go up to the station and answer more questions.

Defendant gave a statement at the police station, describing his actions on that day. Police informed defendant’s parole officer of what defendant’s girlfriend had said about a gun and that defendant’s story “did not jive” with the facts. A parole hold was placed on defendant and he was held in custody. A few hours later, defendant confessed to the crime.

Defendant argued on appeal that his confession should be suppressed because his arrest was not based on probable cause. The Second District held that defendant’s fourth amendment rights were not violated. It was arguable as to whether the detention was supported by probable cause to arrest the defendant. However, a detention for parole violation was proper because reliable information existed that defendant had violated his parole.

In the present case, defendant was arrested on March 24,1981, for the February 12, 1981, armed robbery of Vilmure’s Market in Decatur. Vilmure’s was robbed by a white male in his 20’s, 6 feet tall, 150-175 pounds, wearing a blue face mask and a blue or green hooded jacket or parka. The suspect was armed with a long-barreled pistol. The robbery occurred just before the closing time of the market. Probable cause was found to exist at a preliminary hearing. The Decatur charges were later dropped, but Decatur detectives were in contact with Bloomington detectives regarding the Burger Chef robbery. Defendant fit the description of the robber given by the Burger Chef employees and had a similar modus operandi.

We find that sufficient grounds existed to detain defendant under section 3 — 14—2(c). Defendant fit the description of the Burger Chef robber and had a very similar modus operandi. Therefore, his detention for parole violation was proper because reliable information existed that defendant had violated his parole.

Even if defendant had been illegally detained, the in-court identification of the defendant by James Palmer would not have been suppressed. Palmer’s identification of defendant was based upon an independent recollection of his initial encounter with defendant at the Burger Chef restaurant. See United States v. Crews (1980), 445 U.S. 463, 63 L. Ed. 2d 537, 100 S. Ct. 1244.

Defendant next argues that the trial court erred when it failed to suppress a pretrial identification made in violation of his sixth amendment right to counsel.

In Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877, the supreme court held that the sixth amendment right to counsel does not attach prior to the time that adversary judicial proceedings are commenced. In People v. Burbank (1972), 53 Ill. 2d 261, 291 N.E.2d 161, our supreme court relied on Kirby in holding that defendant’s right to counsel had not attached since adversary judicial proceedings had not been initiated by the State at the time of lineup. Defendant was in custody, but had not yet been charged at the time of the lineup.

Defendant argues that he had been formally charged with the Decatur armed robbery and that the only reason he was taken to Bloomington was because of similarities in the commission of the two offenses. He argues that the formal charge in the Decatur armed robbery operated to bring his right to counsel into play in the Bloomington matter.

The First District dealt with the issue in People v. Earl (1979), 78 Ill. App. 3d 188, 397 N.E.2d 97. Defendant was arrested on an unlawful use of weapons charge. A preliminary hearing was held the next day. Two weeks later, while still in custody awaiting arraignment, defendant participated in a lineup related to investigation of an armed robbery. The victim identified him as one of the perpetrators of the armed robbery. Defendant was represented by counsel on the weapons charge, but counsel was not present at this lineup. Defendant was later convicted of armed robbery.

On appeal, defendant contended that his sixth amendment rights were violated. The First District rejected this claim. The court found that adversary criminal proceedings had not yet been initiated against defendant for the armed robbery at the time of the lineup. Therefore, the right to counsel for that crime had not yet attached.

In sum, defendant’s sixth amendment right to counsel was not violated by the use of identification testimony resulting from the Blooming-ton lineup.

Defendant argues that the identification evidence was obtained in violation of defendant’s rights under sections 103 — 3 and 103 — 4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 103 — 3, 103 — 4). Section 103 — 3 gives the accused the right to communicate with his attorney and family members. Section 103 — 4 provides that the accused shall be allowed to consult with an attorney after being taken into custody.

We need not reach this issue, because defendant did not raise the issue of statutory violation in his motion to suppress or in his post-trial motion. By failing to move for suppression on a specific ground at trial, defendant has waived his statutory claim on appeal. See People v. Nilsson (1970), 44 Ill. 2d 244, 255 N.E.2d 432.

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

Affirmed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE WEBBER JUSTICE TRAPP,

text:
    ESTERGARD, EBERHARDT & ACKERMAN, INC., Plaintiff-Appellant, v. GEORGE CARRAGHER, Defendant-Appellee.
    Fourth District
    No. 17356
    Opinion filed April 21, 1982.
    TRAPP, J., dissenting.
    Francis J. Davis, of Maloney & Davis, of Urbana, for appellant.
    James L. Capel, Jr., of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, of Champaign, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents questions of agency law; specifically, the nature of the relationship of an insurance agent to an insurance broker and the scope of any duty growing out of that relation. In a suit over an uncollected, and presumably uncollectible, premium the circuit court of Champaign County in a trial held at bench found in favor of the defendant, both as to the plaintiff’s complaint and as to defendant’s counterclaim. Plaintiff appeals and we affirm.

Plaintiff is a general insurance agency licensed to do business in this State; defendant is an insurance broker licensed to sell all types of insurance in this State. Over a period of about 15 years prior to the events in controversy here the parties had had a continuing business relationship. Defendant’s business consisted principally of life, health and accident insurance which he generally placed through one particular carrier. When defendant obtained business which his usual carrier could not, or would not, underwrite, he placed the business with plaintiff, who would in turn place the risk with one of the companies represented by it. Plaintiff and defendant would then divide the commission. Plaintiff would bill defendant through his open brokerage account, and defendant generally would pay within 30 days. No written agreement to this effect was ever executed, but both parties were in agreement as to the relationships. Defendant dealt with the insureds and plaintiff dealt with the carriers.

In 1977 defendant placed with plaintiff the business of obtaining a worker’s compensation and liability policy which was requested by one of his customers, East Central Mechanical Contractors, Inc. (East Central). Plaintiff placed the risk with one of the companies it represented, Indiana Group, Inc. (Indiana). Plaintiff’s relationship with Indiana was spelled out in an agency agreement which was placed into evidence. The portion of that agreement which is pertinent to this appeal states as follows:

“Agent shall be liable and fully responsible for payment of premiums to Company on all insurance and bonds (other than ‘Company Collectible’ renewal premiums), placed by or through Agent with Company including earned premiums on binders, whether or not such premiums are collected or collectible from insureds, provided however, that Agent is relieved of responsibility for any additional or renewal premiums for non-cancellable bonds, or developed by audit on any policy or bond subsequent to the termination of same, by waiving the commission thereon and sending written notice of such waiver to Company within 60 days from the billing date of such additional or renewal premiums, and in such event Company shall have the right to collect such premiums in any manner.”

This provision is commonly referred to as the “relief clause” and we gather from the evidence in this case that it is a usual one in insurance agency contracts. Under its provisions, any additional or renewal premiums developed by audit after the termination of a policy may become the responsibility of the carrier, provided the agent waives his commission and gives timely notice.

The relief clause is the focal point of the instant case. East Central went out of business in December 1978, and the policy was not renewed. A final audit was made in April 1979, and a substantial sum was found due. In May 1979 East Central requested a review of the audit. However, defendant testified that he viewed this as a delaying tactic and felt that the premium generated by the audit would be uncollectible. He further testified that he informed plaintiff that collection would be a problem.

Two principal points are in dispute over the relief clause, and the evidence is in conflict over them: (1) whether defendant asked plaintiff to exercise the clause, and if so, when; and (2) whether plaintiff told defendant that the relief clause was a 30-day clause when in fact it was a 60-day clause.

It is not disputed that plaintiff paid the audited premium to Indiana in June 1979 and received its commission; and that it then billed defendant, who attempted to collect from East Central. In July 1979 defendant requested plaintiff to arrange a meeting among plaintiff, defendant, and the principals of East Central. This meeting was held in the latter part of that month, and it is not disputed that the East Central people explained that they could not pay the item and refused to sign a personal note in favor of defendant for the amount due.

The evidence then falls into conflict. Plaintiff’s president testified that at the July 1979 meeting defendant for the first time asked him to invoke the relief clause. He also stated that he had not turned the matter back, to Indiana because defendant had never notified him of the difficulty; further, that he was reluctant to involve Indiana because Indiana would take a “dim view” of the matter, but that he would have done so if requested by defendant.

Defendant’s testimony was quite to the contrary. He stated that he told plaintiff in December 1978, when East Central went out of business, that there would be trouble collecting the audited premium; that he so informed plaintiff again after the April 1979 audit; that after the May 1979 review, he asked plaintiff to get Indiana involved; and that he made the statement to plaintiff again at the July 1979 meeting.

Defendant further testified that when he asked plaintiff in May 1979 to get Indiana involved, plaintiff’s president told him that the relief clause was a 30-day clause and that the time had passed.

In September 1979 defendant made a payment to plaintiff in an effort to satisfy what he believed to be his obligation. This payment is the subject matter of his counterclaim. According to his testimony, it was after this payment was made that he discovered the 60-day provision of the relief clause.

Plaintiff’s basic position is that relief clauses are a well-known provision of agency contracts and that defendant, as an experienced insurance man, should have been aware of it and requested its timely exercise; since he did not, plaintiff should prevail. Defendant, on the other hand, while admitting knowledge of a relief clause, claims that plaintiffs president misrepresented it to him.

In making its finding and entering judgment for the defendant, the trial court based its decision on a breach of the fiduciary duty which it found was owed by plaintiff to defendant. It found this duty in the long relationship which existed between the parties. While we agree with the trial court that a fiduciary duty existed and that it was breached, we do not believe that the duty found its origin in the general relationship of the parties, nor was its scope quite so broad. In our opinion plaintiff, upon accepting from defendant the placement of defendant’s business, became the subagent of defendant and within the scope of the particular business, i.e., the policy for East Central, owed the duty of loyalty and obedience to defendant. A part of this duty involved the invocation of the relief clause and the conflicting evidence on this matter was for the trial court to decide. (William Aupperle & Sons, Inc. v. American National Bank & Trust Co. (1975), 28 Ill. App. 3d 573, 329 N.E.2d 458.) We discern no basis for upsetting its finding in favor of defendant on this matter. Therefore, a breach of the duty occurred and plaintiff may not recover.

In the realm of insurance the common law concepts of agency give way to specialized definitions because of the tripartite, or quadripartite, relationships of insurer, insured, and agent and/or broker. Section 490 of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 1065.37) is applicable:

“(a) ‘Insurance agent’ means an individual, firm, partnership, association or corporation appointed by an insurer to solicit, negotiate or bind coverages for or on applications or policies of insurance on its behalf, covering property or risks located in this State.
(b) ‘Insurance broker’ means an individual, firm, partnership, association or corporation, while not acting as a duly licensed insurance agent, who solicits, negotiates, procures, renews or continues a policy of insurance on behalf of insureds or prospective insureds other than himself.” Ill. Rev. Stat. 1979, ch. 73, pars. 1065.37(a) and (b).

The definitions have been adopted in Roby v. Decatur Steel Erectors, Inc. (1978), 59 Ill. App. 3d 720, 375 N.E.2d 1355. (See also Davidson v. Comet Casualty Co. (1980), 89 Ill. App. 3d 720, 412 N.E.2d 19.) Under the evidence in the instant case, defendant was a broker and the agent for East Central, the insured; plaintiff was the agent of Indiana and the subagent of defendant. Roby.

The potential for conflict under the circumstances is patent. Plaintiff is at once the agent of Indiana and the subagent of defendant. It is elementary that any agent owes a duty of loyalty to his principal and the relationship is one of trust and confidence. (1 Ill. L. & Prac. Agency §61 (1953).) Unless otherwise agreed, a subagent owes the agent the duties of an agent to his principal. (Restatement (Second) of Agency §428(2) (1958).) However, the crux of this case, the relief clause, in effect limits and defines the duty of plaintiff.

Invocation of the relief clause violates no duty which plaintiff owes either to Indiana or to defendant; it would be to the benefit of both plaintiff and defendant to avail themselves of the greater resources of the carrier in the collection of the audited premium. It is something which Indiana agreed to do, despite plaintiff’s apprehension about its “dim view,” and the evidence is plain that it is something upon which defendant was depending. The relief clause by its own terms applies to premiums placed “by or through” the agent. It is not limited to business generated by the agent himself. To fail to invoke the clause makes plaintiff derelict and to mislead defendant as to the time limitations is an outright breach of duty.

Plaintiff argues that, even admitting the existence of a duty, the evidence does not support any finding of its breach. We have already indicated that this is a factual matter for the trial court to resolve. Aupperle.

Plaintiff’s final claim is that the trial court erred in finding for the defendant on his counterclaim and argues that the payment by defendant to plaintiff concedes that the lawsuit is based on rescission of contract principles and not on a breach of fiduciary duty. From this plaintiff further argues that defendant has not alleged nor proved any mistake of fact which would support an action for rescission. We disagree. The mistake of fact, i.e., the time limitation of the relief clause, was directly attributable to the breach of fiduciary duty by the plaintiff.

Money paid under the impression of the truth of a fact which is untrue may be recovered back, however careless the party paying may have been in omitting to use due diligence to inquire into the facts. (29 Ill. L. & Prac. Payment §56 (1957).) In Board of Education v. Holt (1976), 41 Ill. App. 3d 625, 354 N.E.2d 534, the plaintiff had paid the defendant for services not rendered and sought to recover the payment. The court held that if money has been paid under a mistake of fact and would not have been paid if the facts were known, it may be recovered. The fact that the payee is not guilty of deceit or unfairness does not prevent recovery, even if the payor were negligent.

In the instant case we have already held that the evidence supports the finding that plaintiff misled defendant into thinking that the time for invoking the relief clause had expired. This mistake of fact, engendered by plaintiff, constitutes a basis for recovery of money mistakenly paid. It is irrelevant that defendant, as he testified, felt frustrated and believed that there was no relief available to him. He expressly testified that he received no cooperation on the matter.

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

Affirmed.

GREEN, P. J., concurs.

JUSTICE TRAPP,

dissenting:

I must dissent from the principal opinion in its conclusion that the transactions between plaintiff and defendant were such that the former became a fiduciary as a subagent for the latter, and that the failure to invoke the “relief clause” constituted a breach of a fiduciary duty.

It is agreed that by statutory definition defendant was a broker with the insured as his principal, and that by the same measure, plaintiff was an agent with the insuring company as its principal. The opinion points to the “potential for conflict” but without citation of authority transforms the plaintiff, an agent of the insurer, into a contemporaneous subagent of the defendant, a broker. Such result is fairly characterized as contrary to clearly defined dichotomy stated in section 490 of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 1065.37) as quoted in the principal opinion.

In City of Chicago v. Barnett (1949), 404 Ill. 136, 88 N.E.2d 477, the issue was whether or not the city could constitutionally include an insurance broker within the generic class of “broker” for purposes of imposing a license requirement. In its rationale the court had occasion to consider the obligations and the powers of a “broker,” both genetically and in the field of insurance. The opinion noted that occasionally a broker is declared by statute, as presently in Illinois, to be an agent of the insurer for certain purposes. The opinion quoted dictionary statements that in limited instances a broker may be the agent of both parties in the execution of acts but only when the “bargain or contract has been definitely settled, * * One finds no comparable modification of the obligations and powers of an agent.

Having created a fiduciary relationship between the agent of the insurer and the broker, the majority opinion finds a duty of the agent to invoke the “relief clause” for the benefit of the broker, and concludes that because plaintiff failed to invoke such clause for such benefit he committed a breach of the fiduciary duty.

This result is rationalized only by saying that the agent’s placing of the broker’s application for a policy for the insured transforms the former into an agent or subagent of the broker. Such reasoning would require the conclusion that where an insurance agent, as statutorily defined, procures an insurance policy for an applicant insured he thereupon becomes the agent of that insured. It is stated that this is a reasonable result for the reason that the insurer has provided for the “relief clause” in its contract with its agent and has agreed to relieve the agent. One finds no language in that contract as heretofore set out which suggests that there is any third-party beneficiary implication in the contract. It is apparent that as between plaintiff, an agent for the insurer, and defendant, a broker for the insured, the plaintiff would clearly violate the obligation of an agent to his principal in releasing any possible liability of the broker.

While there is conflicting testimony as to whether defendant advised plaintiff of the default or requested the exercise of the “relief clause,” that question is of no relevance where there is an obvious conflict of interest in the respective representative capacities of the parties. I would hold that there is no duty in plaintiff to either invoke the clause or to accede to defendant’s request to do so.

The trial court found that, as a matter of law, there was a breach of duty as a fiduciary which bars recovery by the plaintiff. This court affirms but chooses a different reason for imposing a fiduciary obligation. Thus, the record does not disclose whether or not other facts created any contractual obligations between these parties.

For these reasons, I would reverse the judgment of the trial court and remand for further proceedings.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DOROTHY EDWARDS, Defendant-Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GREG LANGE, Defendant-Appellee. —THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAWN LANGE, Defendant-Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAWN LANGE, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY LANGE, Defendant-Appellant.
    Fourth District
    Nos. 17021,17022,17023,17226,17227 cons.
    Opinion filed April 21, 1982.

      Michael M. McFatridge, State’s Attorney, of Paris (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    John P. O’Rourke, of Dukes, O’Rourke, Stewart, Martin & Helm, Ltd., of Danville, for appellees Gregory Lange and Dawn Lange.
    Daniel D. Yuhas and Diane N. Cherry, both of State Appellate Defender’s Office, of Springfield, and Mike Southworth, law student, for appellee Dorothy Edwards.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

I

In January and February 1981 the State charged the three defendants here, Dorothy Edwards, Greg Lange, and Dawn Lange, and a fourth person, Brandon Edwards, with firing a shotgun at a man June 15, 1977, and with other offenses related to the shooting. The State pleaded several exceptions to the statute of limitations; the trial court ruled that Brandon Edwards was amenable to prosecution but dismissed the charges against the others as barred by the three-year statute of limitations for felonies. All three defendants here were charged with attempted murder, conspiracy to commit murder, aiding a fugitive, and conspiracy to obstruct justice. In addition to these offenses Greg Lange and Dawn Lange were charged with solicitation to commit murder. The State appeals the dismissal of the charges in causes Nos. 17021,17022, and 17023.

A

The State first argues that the statute of limitations does not bar prosecuting the defendants for attempted murder because that offense was neither a felony nor a misdemeanor in 1977 and, alternatively, that attempted murder should be treated like murder, which may be prosecuted at any time.

Section 3 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 3 — 5) provides general rules regarding limitations and said:

“(a) A prosecution for murder, manslaughter, treason, arson, or forgery may be commenced at any time.
(b) Unless the statute describing the offense provides otherwise, or the period of limitation is extended by Section 3 — 6, a prosecution for any offense not designated in Subsection (a) must be commenced within three years after the commission of the offense if it is a felony, or within one year and six months after its commission if it is a misdemeanor.”

The State argues that in 1977 attempted murder was an anomaly, neither a felony nor a misdemeanor, and therefore not governed by section 3 — 5(b). Section 8 — 4(c)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4(c) (1)) said that “the sentence for attempt to commit murder shall not exceed the sentence for a Class 1 felony”; at that time the maximum term of imprisonment for a Class 1 felony was “any term in excess of four years” and the minimum was four years (Ill. Rev. Stat. 1977, ch. 38, pars. 1005 — 8—1(b)(2), (c)(2)). But the language used in section 8 — 4(c)(1)—“shall not exceed” — meant that attempted murder had no minimum sentence. (People v. Moore (1978), 69 Ill. 2d 520, 522-23, 372 N.E.2d 666, 668.) Public Act 80-1099, effective February 1,1978, changed section 8 — 4(c)(1) to say that “the sentence for attempt to commit murder shall not exceed the sentence for a Class X felony” (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 8 — 4(c)(1)), and Public Act 81-923, effective January 1, 1980, substituted “is” for “shall not exceed” in section 8 — 4(c)(1) (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(c)(1)), making explicit the classification of attempted murder. The phrase “shall not exceed” is the cause of the confusion here. The case must be decided under the statute in effect when the offense allegedly occurred. The election in section 8 — 2—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1008 — 2—4(b)) applies only to changes made by Public Act 80-1099. See People v. Peoples (1979), 71 Ill. App. 3d 842, 390 N.E.2d 554.

The State points to the definitions of “felony” and “misdemeanor” to show that without a minimum sentence attempted murder was unclassified. A felony is “an offense for which a sentence to death or to a term of imprisonment in a penitentiary for one year or more is provided,” and a misdemeanor is “any offense for which a sentence to a term of imprisonment in other than a penitentiary for less than one year may be imposed.” (Ill. Rev. Stat. 1977, ch. 38, pars. 2 — 7, 2 — 11.) The State concludes from Moore and the definitions of “felony” and “misdemeanor” that in 1977 the classification of attempted murder depended on the sentence imposed in the particular case; classification of an offense, the State believes, must be apparent at the outset of the prosecution to determine whether the statute of limitations is a bar; when the classification of an offense is not immediately ascertainable, the time periods specified in section 3 — 5(b) cannot be used.

This argument fails for several reasons. Moore should not be read as saying that attempted murder was neither a felony nor a misdemeanor; that case held only that no minimum sentence was prescribed for the offense. Indeed, attempted murder fit the statutory definition of “felony,” for section 8 — 4(c)(1) provided a term of imprisonment “for one year or more” — a person convicted of attempted murder could be sentenced to the same sentence as one convicted of a Class 1 felony, namely “any term in excess of four years.” Because attempted murder had no minimum term, the result of the State’s argument is that sentencing a person convicted of that offense to one day in jail would transform the crime into a misdemeanor. An offense is a felony when more than a year in prison “is provided” as the sentence; we read this phrase as referring to the maximum prison term provided by the statute rather than the minimum possible sentence, if any, or the sentence actually imposed. Therefore, at the time in question attempted murder was classifiable as a felony.

In People v. Musial (1980), 90 Ill. App. 3d 930, 414 N.E.2d 61, and People v. Calvert (1980), 82 Ill. App. 3d 350, 402 N.E.2d 638, the defendants argued that attempted murder was a Class 4 felony under the rules regarding unclassified offenses. Section 5 — 5—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 5—2(a)) provided:

“The particular classification of each felony is specified in the law defining the felony. Any unclassified offense which is declared by law to be a felony or which provides a sentence to a term of imprisonment for one year or more shall be a Class 4 felony.”

In rejecting the defendant’s argument Musial said:

“While Moore stands for the proposition that the sentence for attempt murder cannot exceed that for Class 1 felonies, we see nothing either in Moore or in the statutory language which leads us to the conclusion that defendant apparently discerns. We think it would be anomalous for any court to hold that attempt murder should be downgraded by three categories with a commensurate reduction in the sentencing range simply because the prohibited act is not completed. Defendant’s contention is, therefore, without support in law or logic.” (90 Ill. App. 3d 930, 936, 414 N.E.2d 61, 66.)

Calvert reached the same result. To have downgraded attempted murder to a Class 4 felony would have nullified the provision for a sentence equal to that of a Class 1 felony.

We conclude that attempted murder was a felony and therefore governed by the three-year limitations period in section 3 — 5(b).

The State also argues that attempted murder is so similar to murder that it should be governed by section 3 — 5(a) and not by section 3 — 5(b). Section 3 — 5(a) is precise and unambiguous, specifying the offenses that may be prosecuted at any time, murder, manslaughter, treason, arson, and forgery. Although in certain cases the only difference between murder and attempted murder may be whether the victim dies, they are distinct offenses and include different elements: like all attempts, attempted murder requires proof of specific intent. The legislature chose not to include attempted murder or any other inchoate offense in section 3 — 5(a), and we see no reason to undo this choice by interpretation. The State’s argument in this regard is also vitiated by the inclusion of manslaughter, a lesser included offense of murder, in section 3 — 5(a); this signifies that the legislature did not believe that specifying murder alone implicitly included manslaughter within its meaning.

B

The trial court ruled that Brandon Edwards, the fourth person charged in connection with the 1977 shooting, was amenable to prosecution because of the length of time he was absent from Illinois (Ill. Rev. Stat. 1977, ch. 38, par. 3 — 7(a)). The State argues that the three defendants here are accountable for Brandon Edwards’ acts and therefore may be prosecuted now. The State applies this argument with respect to the charges of attempted murder, conspiracy to commit murder, aiding a fugitive, and conspiracy to obstruct justice.

The periods of limitations in section 3 — 5(b) govern except when “the statute describing the offense provides otherwise, or the period of limitation is extended by Section 3 — 6 * * Section 3 — 6 extends the general limitations periods for several types of offenses. (Ill. Rev. Stat. 1977, ch. 38, par. 3 — 6.) Section 3 — 7, which the trial court applied to Brandon Edwards, tolls the limitations clock in several instances. We see no reason to hold the defendants accountable for Brandon Edwards’ absence from Illinois; the State has not proved that they too were absent for a sufficiently lengthy period of time, and nothing in the accountability provisions (Ill. Rev. Stat. 1977, ch. 38, par. 5 — 1 et seq.) makes them responsible for his absence.

The State relies mainly on Bompensiero v. Superior Court (1955), 44 Cal. 2d 178, 281 P.2d 250, which rejected Bompensiero’s petition challenging a trial court’s jurisdiction to try him. The indictment against Bompensiero alleged that he had sought and obtained bribes in behalf of a public official. One of the counts in the indictment alleged the acceptance of a bribe about 3% years earlier; California law provided a three-year limitations period for most felonies and a special six-year period for the offense of accepting a bribe by a public official or employee. Bompensiero argued that because he was neither a public official nor a public employee the six-year period did not apply to him.

The court held that Bompensiero was subject to the six-year period because by statute he was liable for the offense as a principal. This result is based on an application of accountability law to the particular offense allegedly committed by the principal; the offense itself constituted an exception to the general limitations period. In this case, all the offenses are felonies and they all fall within the general three-year limitations period; only because Brandon Edwards was outside the State for a certain period of time following his alleged participation in the offense may the State now prosecute him. An accomplice is liable for conduct that is an element of an offense (Ill. Rev. Stat. 1977, ch. 38, par. 5 — 1), but Brandon Edwards’ absence does not constitute an offense. Whether an accomplice may receive the same sentence as his principal depends on the terms of the particular sentencing statute (compare People v. Tibbs (1981), 103 Ill. App. 3d 73, 430 N.E.2d 681, with People v. Sangster (1981), 95 Ill. App. 3d 357, 420 N.E.2d 181, appeal allowed (1981), 85 Ill. 2d 572). Neither the express nor the implied terms of section 3 — 7 suggest that that provision applies to the accomplices of someone whose acts have tolled the statute of limitations with respect to his own prosecution.

C

As another way of avoiding the statute of limitations the State argues that conspiracy to commit murder, aiding a fugitive, and conspiracy to obstruct justice were continuing offenses and that acts supporting these charges occurred within three years of January and February 1981, when the charges were filed. Each of the three defendants was charged with these offenses. The statutory rule on continuing offenses says:

“When an offense is based on a series of acts performed at different times, the period of limitation prescribed by this Article starts at the time when the last such act is committed.” (Ill. Rev. Stat. 1977, ch. 38, par. 3—8.)

The only acts mentioned by the State at trial and on appeal are visits among the defendants during 1979.

The trial judge rejected the State’s theory, ruling that these visits were not sufficient to show that the offenses had continued. On review we must assume that the defendants visited each other. The trial judge was correct, however, in his decision.

Conspiracies are not completed until the commission of the last overt act done to further the underlying offense; every act in furtherance of the scheme renews the conspiracy. (People v. Konkowski (1941), 378 Ill. 616, 39 N.E.2d 13; People v. Levinson (1979), 75 Ill. App. 3d 429, 394 N.E.2d 509.) The conspiracy to commit murder ended when the last shot was fired at the intended victim; the visits did not revive this conspiracy, for there is no evidence that the defendants planned to try again to kill the victim. Aiding a fugitive and conspiracy to obstruct justice also were not furthered by the visits. In People v. Criswell (1973), 12 Ill. App. 3d 102, 298 N.E.2d 391, the court reversed the defendant’s conviction for obstructing justice. On September 18, 1966, Criswell arrived home and discovered his stepfather’s dead body with a knife sticking out of it. The defendant got rid of the knife, cleaned up the blood, and put the body in the basement; the next day he buried the body in the backyard. Criswell was charged with murder and with obstructing justice, a misdemeanor, October 24, 1969; he was acquitted of murder. After quoting the definition of “obstructing justice” the court said:

“It should be noted that failures to dig up a body or to indicate to the authorities that evidence has been concealed are not defined as acts obstructing justice and probably could not constitutionally be made so in view of the fifth amendment to the Constitution of the United States. Hence the defendant’s failure to inform the authorities does not and cannot constitute a ‘continuing offense’.” (12 Ill. App. 3d 102, 105, 298 N.E.2d 391, 393.)

Each of the defendants here was charged with aiding a fugitive for not telling the police that the others had participated in the crime (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 5). By revealing that information, though, each would have implicated himself. Family visits alone, therefore, do not operate to continue an offense or to further a conspiracy. We therefore affirm the trial court’s dismissal of the charges in causes Nos. 17021, 17022, and 17023.

II

In causes Nos. 17226 and 17227 Greg Lange and Dawn Lange appeal an order by the trial court concerning their bail bonds. After the charges were filed in this case they each were released on bonds of $100,000, which required them to deposit $10,000 with the clerk of the circuit court (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(a)). When the charges against the Langes were dismissed the State asked that bond be set pending its intended appeal. The court reduced the bonds to $10,000 and said that the Langes were entitled to refunds representing the reductions; the precise amounts to be refunded to them were to be decided later. From their original deposits of $10,000, each received a refund of $8,000: the clerk retained $1,000 as costs (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(f)) and $1,000 as 10 percent of the appeal bond. The Langes then moved for a return of their entire bonds, and in a letter to counsel denying the motions the court explained that the appeal bonds represented new bonds rather than continuations of the appearance bonds. The Langes filed a notice of appeal within 30 days of this.

The Langes argue that because the original bonds were intended to continue in force, although at reduced amounts, the clerk had no authority to assess costs against the amounts of the original bonds and alternatively that the circuit court abused its discretion in not ordering the clerk to return a greater percentage of the bail bonds. The State argues that the trial court’s denial of the motions concerning bail is not a final, appealable order and points out that the Langes’ motions were not made or decided until after the State had already appealed the dismissal of the charges.

Supreme Court Rule 604(c)(1) (73 Ill. 2d R. 604(c)(1)) says in part: “Before conviction a defendant may appeal to the Appellate Court from an order setting, modifying, revoking, denying, or refusing to modify bail or the conditions thereof.”

Section 110 — 7(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(e)) says:

“After the entry of an order by the trial court allowing or denying bail pending appeal either party may apply to the reviewing court having jurisdiction or to a justice thereof sitting in vacation for an order increasing or decreasing the amount of bail or allowing or denying bail pending appeal.”

The State argues that these provisions are inapplicable to appeals concerning retention of bail bond costs. We find nothing in the provisions, however, that precludes a review of the question. This dispute concerns the interpretation of the appeal bonds and the relationship, if any, between those bonds and the appearance bonds. The State did not prematurely appeal the dismissal of the charges because those orders were interlocutory and appealable under Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)).

The trial court’s decision that “compelling reasons” existed to require the Langes to post bonds pending the State’s appeal (73 Ill. 2d R. 604(a)(3)) was not an abuse of discretion. The appeal bonds are better viewed, however, as reductions in the Langes’ original bail bonds than as new and distinct bonds. The trial judge’s statements regarding this are contradictory; we choose to follow his original indication that the bonds were being continued but reduced. Throughout these proceedings the Langes have been subject to bonds, and we see no reason for the trial court to terminate a bond and immediately impose a fresh one. The retention of fees was thus premature, for only “[w]hen the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause” may fees be retained (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(f)). Given this result, the Langes’ alternative argument need not be addressed.

We therefore reverse the trial judge’s order directing the clerk to retain $1,000 as costs from each of the Langes’ deposits and remand the cause to the circuit court to order refunds in this amount.

Affirmed in part, reversed in part, and remanded.

GREEN, P. J., and WEBBER, J., concur.