author: JUSTICE STAMOS

text:
    THE PEOPLE ex rel. CLARITA VALLE, Plaintiff-Appellant, v. MARIO VALLE, Defendant-Appellee.
    First District (2nd Division)
    No. 82—338
    Opinion filed March 29, 1983.

      Richard M. Daley, State’s Attorney, of Chicago (Robert J. Repel, Cynthia G. Brown, and Sophia A. Lopez, Assistant State’s Attorneys, of counsel), for appellant.
    A. Donald Baumgartner, of Mt. Prospect, for appellee.
   JUSTICE STAMOS

delivered the opinion of the court;

Plaintiff Clarita Valle filed a complaint for support under the Revised Uniform Reciprocal Enforcement of Support Act (URESA). (111. Rev. Stat. 1979, ch. 40, par. 1201 et seq.) The complaint alleged that defendant Mario Valle was the father of plaintiff’s two children and owed them a duty of support, and that defendant was in arrears in support payments. In his answer, defendant denied that he was the father of the children and that he owed them a duty of support. On January 13, 1981, an order was entered which purportedly dismissed plaintiff’s complaint and which continued the matter for further proceedings. On June 2, 1981, an order was entered which again dismissed plaintiffs complaint with prejudice. Following this latter order, plaintiff filed a motion for rehearing which was denied on January 11,1982. Plaintiff instituted this appeal on February 5, 1982.

Plaintiff and defendant were married in the Philippines on March 6, 1967. The record reveals that defendant had previously married Felisa Bactat on June 11, 1961. There is no evidence in the record that this earlier marriage was ever terminated. The record indicates that under Philippine law, bigamous marriages are void ab initio.

Two children were bom into the marriage between plaintiff and defendant. They were bom on April 9,1967, and January 31,1969.

On March 17, 1980, plaintiff instituted this action for support against defendant. On July 24, 1980, an order was entered in the circuit court of Cook County instructing the parties to submit to blood tests. Plaintiff was to bear the cost of the tests because of the court’s finding that “no marriage existed between the parties.” Apparently, the tests were never taken.

On January 13, 1981, an order was entered that purportedly dismissed plaintiff’s cause with prejudice. That same order, however, scheduled further proceedings and granted plaintiff leave to produce evidence that defendant’s first marriage had been terminated. On June 2, 1980, an order was entered which again dismissed plaintiff’s complaint with prejudice due to plaintiff’s failure to produce evidence that defendant’s first marriage had been terminated. Plaintiff then filed a timely motion for rehearing. On January 11, 1982, plaintiff’s motion was denied.

The motion for rehearing was denied because the court found that its order of January 13, 1981, was its final order and that therefore, plaintiff’s motion for rehearing was untimely. The court also held that plaintiff’s action should have been brought under the Paternity Act (111. Rev. Stat. 1979, ch. 40, par. 1351) and that under that Act, plaintiff’s action was now time-barred. Following denial of her motion for rehearing on January 11, 1982, plaintiff instituted this appeal.

Plaintiff first contends that the trial court erred in ruling that its order of January 13, 1981, rather than its order of June 2, was its final order. The order of January 13 stated that:

“Now therefore, it is hereby ordered as follows:
1. That this matter and proceeding be and it is hereby dismissed with prejudice.
2. That [plaintiff] is granted leave to secure proof of an annulment of dissolution of the marriage of [defendant] and Felisa I. Bactat, on or before June 2, 1981.
3. This matter is set for status to ascertain compliance with Paragraph 2 of this Order only at 9:30 a.m. on June 2, 1981, until further notice.”

Although the order purported to dismiss plaintiff’s cause with prejudice, a later hearing was scheduled to allow plaintiff the opportunity to produce evidence which the trial court believed would affect its order.

If the court retains jurisdiction for future determination of matters of substantial controversy, an order is not final. (Joliet Federal Savings & Loan Association v. O’Hare International Bank (1973), 12 Ill. App. 3d 1012, 1013-14, 299 N.E.2d 350.) “An order is final if ‘it determines the ultimate rights of the parties with respect to distinct matters which have no bearing on other matters left for further consideration or if the matters left for future determination are merely incidental to the ultimate rights which have been adjudicated by decree.’ ” (Kulins v. Malco, Inc. (1979), 79 Ill. App. 3d 982, 985, 398 N.E.2d 1144, quoting Barnhart v. Barnhart (1953), 415 Ill. 303, 309, 114 N.E.2d 378.) The trial court cannot make a nonfinal order appealable merely by saying it is a final order. An order must be final in its character, apart from the express finding. See O’Donnell v. Sears, Roebuck & Co. (1979), 71 Ill. App. 3d 1, 6, 388 N.E.2d 1073.

Here, it is apparent that the June 2 order was the court’s final order. The trial court clearly retained jurisdiction following its order of January 13 to allow plaintiff time to secure evidence relevant to the central issue in the case — paternity. The evidence plaintiff was given leave to secure bore directly on the issue of paternity because if plaintiff was able to produce evidence invalidating defendant’s first marriage, the trial court was prepared to treat defendant’s second marriage as valid and to deem defendant to be the father of the two children bom into defendant’s marriage to plaintiff. The trial court’s order of January 13 was not made final merely because it purported to be a dismissal “with prejudice.” The finality of the order was clearly contingent on plaintiff’s inability to produce evidence which would have invalidated defendant’s first marriage.

Under these circumstances, we find that the June 2 order was the final order in this cause.

Defendant contends, however, that even if the June 2 order is viewed as the court’s final order, plaintiff’s motion for rehearing was insufficient to toll the period for filing a notice of appeal and that, therefore, the appeal was not timely. Specifically, defendant contends that plaintiff’s motion does not allege that the trial court committed any error, nor does it allege the discovery of new evidence that would change the court’s ruling. Plaintiff’s motion for rehearing requested that a record be made with a court reporter present and it brought to the court’s attention three cases. Plaintiff’s memorandum in support of her motion indicated that, under the three cases cited, the fact of a bigamous marriage does not obviate the duty to support the children of the marriage. Plaintiff was thus requesting a rehearing on the ground that the trial court misapprehended the applicable law. Misapprehension of law is clearly a sufficient ground to support a motion for rehearing. Fulwider v. Fulwider (1972), 8 Ill. App. 3d 581, 583, 290 N.E.2d 264.

In the instant case, the trial court’s orders provided sufficient cause for plaintiff to conclude that a misapprehension of law had occurred. These orders indicated that if the parties’ marriage was valid, defendant would have owed a duty of support. The court’s finding that the marriage was invalid prompted it to conclude that no duty of support was owed by defendant unless plaintiff could prove parentage under the Paternity Act. (111. Rev. Stat. 1979, ch. 40, par. 1351 et seq.) But in Cardenas v. Cardenas (1956), 12 Ill. App. 2d 497, 140 N.E.2d 377, the court held that a bigamous marriage which is void does not relieve the husband of his duty to support the children of the marriage. (12 Ill. App. 2d 497, 508.) Had the trial court here been cognizant of Cardenas, it may have been inclined to impose a duty of support on defendant, or at least to have subjected defendant to the presumption of paternity. Plaintiff thus had sufficient grounds for requesting a rehearing and her motion was sufficient to toll the period for filing her notice of appeal.

Plaintiff next contends that because defendant failed to disprove that he was the father of the children born into his bigamous marriage, he owes a duty to support those children. Defendant agrees that the central issue is whether or not he is the father of the children, but he asserts that the trial court properly ruled in his favor on this issue. What the trial court ruled, however, was that plaintiff failed to prove that her marriage to defendant was valid. The court did not definitively resolve the issue of paternity and, in any event, the court erred by failing to subject defendant to the presumption of paternity.

Plaintiff filed her claim for support under URESA. (111. Rev. Stat. 1979, ch. 40, par. 1201 et seq.) Under that act, the law of Illinois controls the issue of support in the instant case. (111. Rev. Stat. 1979, ch. 40, par. 1207.) Under Illinois law, the birth of a child to a husband and wife creates a strong presumption that the child is legitimate and that the husband is the father. (In re Ozment (1978), 61 Ill. App. 3d 1044, 1047, 378 N.E.2d 409.) This presumption of legitimacy prevails even if the marriage is subsequently voided. (111. Rev. Stat. 1979, ch. 40, par. 303.) Like the presumption of legitimacy, the presumption of paternity should prevail despite the fact that a bigamous marriage is subsequently declared to be void. The right of children born into a valid marriage to be supported is protected by the strong presumption that the husband is the father. (See People v. Askew (1979), 74 Ill. App. 3d 743, 747, 393 N.E.2d 1124.) There would appear to be no logical reason for granting that protection to children of valid marriages while denying it to children of bigamous marriages. (Cf. Cardenas v. Cardenas (1956), 12 Ill. App. 2d 497, 508, 140 N.E.2d 377 (fact of bigamous marriage, by itself, does not obviate duty of support).) We hold that the presumption of paternity applies to husbands of bigamous marriages into which children are born.

In resolving the issue of paternity here, however, the trial court erroneously looked to the Paternity Act and subjected plaintiff to the burden of proving that defendant was the father of plaintiff’s children. The Paternity Act applies only to children “born out of wedlock” and it expressly excludes children born into a marriage which is subsequently declared void. (111. Rev. Stat. 1979, ch. 40, par. 1351.) A bigamous marriage constitutes a marriage subsequently declared void. Thus, the paternity of children born into such a marriage is not determinable under the Paternity Act and the trial court erred by imposing the burden of proof applicable under that act. It follows that the court also erred in finding that plaintiff’s cause was time-barred under the Paternity Act.

Plaintiff brought her action under URESA. Under that act, child support arrearages, which accrue during a child’s minority, constitute vested rights which may be enforced even after the child reaches majority. (Dorsey v. Dorsey (1980), 86 Ill. App. 3d 1043, 1045, 408 N.E.2d 502.) In the instant case, unless defendant can disprove paternity on remand, plaintiff will be entitled to collect all support arrearages owing even if the children have reached their majority.

For the reasons stated herein, we reverse the trial court’s order dismissing this cause and remand for further proceedings consistent with the views expressed herein.

Reversed and remanded.

DOWNING and HARTMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    EDWARD RONWIN, Plaintiff-Appellant, v. PIPER, JAFFRAY & HOPWOOD, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 82—1588
    Opinion filed March 29, 1983.

      Edward Ronwin, of Urbandale, Iowa, for appellant, pro se.

    Judith A. Rogosheske and James M. Odland, both of Drake & Larson, P.A., of Minneapolis, Minnesota, and Michael A. Reiter, of Katten, Muchin, Zavis, Pearl & Caller, of Chicago, for appellee Piper, Jaffray & Hopwood, Inc.
    William F. Conlon and David F. Johnson, both of Sidley & Austin, of Chicago, for other appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Edward Ronwin, appeals from the dismissal of his complaint against defendants Piper, Jaffray & Hopwood, Inc. (hereinafter Piper), George C. McKann, Paul M. Steinbrink, Paul W. Fairchild (hereinafter the panel or the arbitrators), and the New York Stock Exchange (hereinafter N.Y.S.E.).

Ronwin, who possessed a juris doctorate in law and an advanced degree in biochemistry, attributed his substantial losses in the com-modifies market to Piper. He and Piper agreed to submit his claim to arbitration. After a lengthy hearing, conducted under the auspices of the N.Y.S.E., Ronwin’s claim was denied. Thereafter, Ronwin filed a complaint in the circuit court of Cook County seeking to have the arbitrators’ decision vacated. The complaint was dismissed. Ronwin appeals. We affirm.

At the arbitration hearings, Ronwin testified that he had acquired a substantial amount of stock which he later sold for approximately $81,000. He learned of the $13,000 tax consequences on the sale and asked Robert Westlund, general manager of Piper’s Des Moines, Iowa office, if the $81,000 could be used to generate the $13,000 tax payment he would have to make. Westlund suggested gold futures and bond futures markets. He told Ronwin that as interest rates went down the price of bond futures would go up; the price of gold would “bottom out” at $550; and bond futures would bottom at $65. None of these predictions proved to be correct.

At his request, Westlund spoke with one of Piper’s more experienced commodities brokers who was “cautiously optimistic” about the bond futures market. Ronwin relied upon this man’s opinion, but continued to suffer substantial losses. He had authorized Piper to withdraw money from his money market account to cover these losses, but complained that because these withdrawals were sometimes not recorded until a day after they were made he was given a “false picture” of the magnitude of his losses.

On cross-examination, Ronwin admitted that he had read, signed and received a copy of a commodity account agreement and risk disclosure statement prepared by Piper which explained that commodities trading involved a very high degree of risk. He also admitted that he kept a running log of all the transactions he entered into, that he knew that he had lost approximately $4,000 in his first two gold futures trades, but explained, “It’s like a drug. You get high ***.” Ronwin then rested.

Piper called Westlund, who testified that after two weeks of consideration and three or four telephone conversations, Ronwin expressed the desire to trade in the commodities market. Ronwin came in to sign the commodity account agreement and risk disclosure statement, which Westlund asked him to read or, at least, take with him to read at his leisure. Westlund explained the market requirements and trading limits in the gold futures market to Ronwin, and the volatility of the market. Westlund then suggested they not rush into the gold futures market, but wait until the time was right, and even then buy only one gold contract. It was never his intention that Ronwin trade in a large number of contracts.

When the price of Ronwin’s original contract dropped, Westlund suggested that Ronwin either stay in and hope that the price would rise or sell out and take the loss, but Ronwin insisted upon “spreading his position.” Ronwin suffered a later loss and Westlund suggested that they take the loss and get out of the market; however, Ronwin insisted upon staying in and trying to get his money back.

Ronwin began trading in the bond futures market. Westlund told Ronwin that he was becoming overexposed, but Ronwin refused to take a more conservative position because he was convinced that both markets would improve dramatically in the near future. Often, when Westlund was out to lunch, Ronwin would call and direct another broker in the office to buy or sell for him. Westlund would learn of the transaction only later that afternoon.

Ronwin knew exactly how much money he had in his money market account because Westlund had one of his assistants calculate what his balance was for him daily after Ronwin had informed him that his (Westlund’s) secretary had given him an incorrect total one day. After Ronwin had suffered substantial losses in both markets, he asked Westlund to lend him enough money to allow him to continue trading on the exchange. Westlund responded that he did not have that much money and that, even if he had, his lending it to Ronwin would be illegal. Shortly thereafter Ronwin closed his accounts with Piper. After Ronwin had cross-examined Westlund, Piper rested.

The arbitrators denied Ronwin’s claim. Ronwin then filed a pro se complaint in the circuit court of Cook County alleging that he was an actively practicing Iowa attorney, seeking to have the arbitrators’ award vacated and the dispute re-tried by the court. Piper, the arbitrators and the N.Y.S.E. filed motions to strike and dismiss the complaint pursuant to sections 45 and 48 of the Illinois Civil Practice Act (111. Rev. Stat. 1979, ch. 110, pars. 45, 48), now sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, pars. 2 — 615, 2 — 619). After considering the memoranda submitted and oral arguments made by the respective parties, the circuit court granted defendants’ motions to dismiss.

I

Ronwin first contends that the arbitrators’ award should be vacated because Piper, through its agent, Robert Westlund, induced him to trade on the commodities market and then concealed the size and number of his losses in that market in violation of public policy of the United States and Illinois, which is “to substitute a philosophy of full disclosure for one of caveat emptor and to thereby protect the investing public against the sharp practices of promoters whether or not such practices meet the requirements of common-law fraud.” (Norville v. Alton Bigtop Restaurant, Inc. (1974), 22 Ill. App. 3d 273, 281, 317 N.E.2d 384.) Although not specifically mentioned as a ground upon which an arbitrator’s award may be vacated in section 12(a) of the Uniform Arbitration Act (111. Rev. Stat. 1979, ch. 10, par. 112(a)), public policy in general has been recognized as an additional ground upon which an arbitrator’s award may be vacated. Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 386 N.E.2d 47.

Neither the judgment of the circuit court nor the arbitrators’ award were accompanied by findings of fact. All controverted facts and issues therefore must be presumed as having been resolved in favor of the prevailing party. (Wood v. Price (1868), 46 Ill. 435; National Acceptance Co. of America v. Pintura Corp. (1981), 94 Ill. App. 3d 703, 707, 418 N.E.2d 1114; Notzke v. Art Gallery, Inc. (1980), 84 Ill. App. 3d 294, 299-300, 405 N.E.2d 839.) Among these presumptive findings are that Piper neither induced Ronwin to enter the commodity market nor concealed from him the size and number of his losses. The record supports such a presumptive finding. We find no violation of public policy under these circumstances.

II

Ronwin next argues that on two occasions the arbitrators “countenanced” and thereby became parties to Piper’s fraud. The first such alleged “countenance” was the panel’s acceptance of a “doctored” copy of Ronwin’s account card which indicated that he was an experienced trader. Ronwin contends that the card clearly had been altered shortly before the hearing; however, Westlund explained that the card was current and was updated after Ronwin had already bought and sold several gold contracts, at which point Ronwin was considered an experienced trader. The second allegedly “countenanced” fraud was when the panel ignored Piper’s “lie” in its answer to Ronwin’s claim. Ronwin had asserted that Westlund had “induced” him to enter the commodities market, which Piper’s answer denied. At the hearing, Westlund acknowledged that he had suggested that Ronwin enter the market, but explained that Ronwin discussed the idea with him on three or four occasions. Ronwin told him two or three weeks later that he was interested in getting into the market. The arbitrators were made the triers of fact by agreement of the parties. Judicial review of an arbitrator’s award is more limited than appellate review of a trial court’s determination. (Garver v. Ferguson (1979), 76 Ill. 2d 1, 8, 389 N.E.2d 1181.) As the United States Supreme Court observed, cited and quoted with approval in Garver (76 Ill. 2d 1, 9):

“ ‘Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally and without appeal. As a mode of settling disputes it should receive every encouragement from courts of equity. If the award is within the submission, and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error either in law or fact. A contrary course would be a substitution of the judgment of the Chancellor in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation.’ (Burchell v. Marsh (1854), 58 U.S. (17 How.) 344, 349, 15 L. Ed. 96, 99.)”

The arbitrators here apparently found Westlund’s testimony more credible than Ronwin’s. We find no basis upon which to disturb their findings.

Ill

Ronwin next asserts that the arbitrators were biased against him as manifested in a number of ways: First, Piper’s conduct clearly violated public policy, yet the panel did not rule in his favor, which raises a “healthy” inference of bias on their part in and of itself. We have earlier in this opinion found no such violation. Second, Stein-brink, one of the arbitrators, allegedly demonstrated his bias by “leaping” to" Westlund’s aid at one point in the proceeding. The record, however, reflects that at that point, Steinbrink was simply attempting to clarify, as much for Ronwin’s benefit as the panel’s, when Westlund had updated Ronwin’s account. Third, another arbitrator, McKann, manifested his bias on two occasions, once when McKann prevented Ronwin from cross-examining Westlund as to what he meant by the words “experienced trader.” The record reflects that Westlund explained what he meant by these words, that Ronwin acknowledged that he had, but continued to pursue the matter until McKann indicated that the question had been answered and suggested that Ronwin proceed with his next question. The next occasion was when counsel disputed to whom a denial in Piper’s answer to Ronwin’s claim might be attributed — Ronwin claiming that it should be attributed to Westlund as well as Piper. At that point, McKann interjected, “Let’s not get far afield. Let’s stick with the redirect please.” Alleged bias must be shown with clear and convincing evidence, not that which is remote, uncertain or speculative. (Saville International, Inc. v. Galanti Group, Inc. (1982), 107 Ill. App. 3d 799, 800, 438 N.E.2d 509.) The alleged instances of bias are neither clear nor convincing. They instead demonstrate consideration and attentiveness to both parties.

IV

Ronwin next identifies certain circuit court errors. One of these allegedly occurred when the court refused to recognize public policy as a permissible ground upon which to vacate the award. At the commencement of the hearing on defendants’ motions to dismiss Ronwin’s complaint, the court made clear that it believed public policy was a valid ground upon which to vacate, stating, in effect, that an arbitration award may be vacated if it violates public policy as well as for any of the specific reasons set out in section 112(a) of the Arbitration Act.

Ronwin contends that the circuit court erred in dismissing that part of his complaint which alleges that the N.Y.S.E. uses the arbitration proceedings to protect its members from having to pay money awards to which claimants like himself are rightfully entitled. The record bears no support for such an accusation. A court has inherent power to protect itself from frivolous and vexatious litigation. (Patterson v. Northern Trust Co. (1919), 286 Ill. 564, 567, 122 N.E. 55.) The circuit court here properly dismissed this portion of Ronwin’s complaint as well.

Finally, error is claimed in the circuit court’s denial of attorney fees to Ronwin because of defendant’s alleged bad faith in presenting doctored evidence to the panel and in filing false pleadings before the circuit court. Neither contention is substantiated by the record. The circuit court in its discretion properly denied attorney fees to Ronwin under this state of facts. Village of Evergreen Park v. Spangler (1976), 40 Ill. App. 3d 947, 949, 353 N.E.2d 257.

For the foregoing reasons, we affirm the order of the circuit court dismissing Ronwin’s complaint.

Affirmed.

DOWNING, P.J., and STAMOS, J., concur.


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CAROL LUMPP et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 80—549, 80—680 cons.
    Opinion filed March 30, 1983.

      Ralph Ruebner and Stewart M. Weltman, both of State Appellate Defender’s Office, of Chicago, for appellant William Carr.
    James J. Doherty, Public Defender, of Chicago (Timothy P. O’Neill, Assistant Public Defender, of counsel), for appellant Carol Lumpp.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Lester M. Joseph, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Defendants, William Carr and Carol Lumpp, were charged by information with murder and conspiracy. Lumpp waived her right to trial by jury, and after a bench trial, was found guilty of the offenses charged and sentenced to a term of imprisonment of 25 years. Carr was tried simultaneously by a jury and was also found guilty of both offenses. He was sentenced to a 40-year term of imprisonment.

Each defendant admitted a role in the October 26, 1978, shooting death of Richard Bernoski in separate written statements which were received into evidence at trial. Each argues on appeal that the trial court erred in denying his motion to suppress his statement because the State failed to prove it voluntary and because the statement was the fruit of an illegal arrest. Both motions raised these two issues.

I

Each defendant argues that the prosecution failed to prove his statement was voluntary because it failed to produce all material witnesses connected with the taking of the statement or to explain their absence at the hearing on his motion to suppress statements. Carr argues that the State failed to produce or explain the absence of four material witnesses: Assistant State’s Attorney Julia Nowicki and Chicago police officers Spinks, Savage and McCabe. Lumpp makes the same argument as to Spinks and Spinks’ partner.

When the voluntary nature of a statement is brought into question by a motion to suppress, the burden of proving that it is voluntary is assumed by the State. (111. Rev. Stat. 1979, ch. 38, par. 114— 11(d); People v. Armstrong (1972), 51 Ill. 2d 471, 475-76, 282 N.E.2d 712.) The State discharges this burden by producing all material witnesses connected with the taking of the statement or by explaining their absence. In re Lamb (1975), 61 Ill. 2d 383, 389, 336 N.E.2d 753, cert. denied (1976), 425 U.S. 938, 48 L. Ed. 2d 180, 96 S. Ct. 1672; People v. Armstrong (1972), 51 Ill. 2d 471, 475-76.

If the State fails to call a material witness, the defendant must object in the trial court or the matter is waived for purposes of appeal. (People v. Clay (1981), 98 Ill. App. 3d 534, 541, 424 N.E.2d 814; see 111. Rev. Stat. 1979, ch. 38, par. 114 — 11(d).) Thus, since Carr did not object to the failure of the prosecution to call Officer McCabe as a witness at the hearing on his motion, he may have waived any requirement that the prosecution produce McCabe. Carr, however, did object at the hearing on his motion to the failure of the prosecution to produce Assistant State’s Attorney Nowicki, who took his written statement. Although the State correctly points out that Carr did not testify at the hearing that Nowicki coerced him in any way or that she was present during acts of coercion, Carr did testify that she ignored his request to call his attorney. The State responds to this by referring to Nowicki’s trial testimony that Carr never asked her if he could call an attorney.

Notwithstanding any error in the failure to produce McCabe or Nowicki, we believe that the trial court erred in failing to suppress the written statement of each defendant, because Officer Spinks was a material witness connected with the taking of both statements, and his absence was not adequately explained.

Evidence at the hearings on the motions shows that Chicago police officer Hans Heitmann and two other officers located Carr and Lumpp in a room at the Acres Motel in Chicago during the evening hours of November 12, 1978. From there, defendants were taken to Area Six Homicide Headquarters. According to Heitmann, they arrived there shortly after 9 p.m. Lumpp and Carr were placed in separate interview rooms.

The prosecution produced the testimony of two witnesses to establish voluntariness at each defendants’ hearing: Heitmann and Chicago police officer Lawrence Flood. Assistant State’s Attorney Nowicki also testified in rebuttal at Lumpp’s hearing. These witnesses, however, did not testify as to the period of time between when Heitmann went off duty at approximately 12 a.m. on November 13, 1978, and when Officer Flood first saw each defendant at approximately 9:30 a.m. on that date. Lumpp made her written statement at approximately 6:15 p.m. on that date, and Carr made his written statement at approximately 8 p.m. on that date.

At the hearing on his motion, Carr gave the following testimony as to the time not accounted for by the prosecution witnesses. At approximately 10:15 p.m. on November 12, 1978, certain officers left the room he was in. Before doing so, an officer handcuffed him to the wall and to the chair in which he was sitting. No one entered the room until 1:30 a.m. on November 13. At that time, Officers Spinks and Savage entered the room. Spinks told Carr that the police knew that he knew something about Bernoski’s death. Spinks accused Carr of being an enforcer for one Colini, and told Carr that if he did not cooperate with him, “he would let Detective Dave Paul in on [him].” At this time, Spinks opened the door and Carr saw Paul. According to Carr, he had had a heated argument with Paul the previous September, and Paul had told Carr to stay away from a certain woman and threatened him with physical violence and jail if he did not. Carr also asked Spinks if he could call his attorney, and, in response, Spinks became angry and told Carr that he had better start cooperating. Carr’s conversation with Spinks lasted approximately an hour, and he was handcuffed during the conversation. Although Officer Savage left the room on a couple of occasions, Spinks remained in the room during the entire conversation. Spinks and Savage left Carr’s room at approximately 2:30 a.m., and it was not until approximately 10:30 a.m. that another police officer entered Carr’s room. During that time he was handcuffed.

At the hearing on her motion, Lumpp gave the following testimony as to the time not accounted for by the prosecution. Approximately one-half hour after she last saw Officer Heitmann, a police officer named Spinks entered the room with his partner, whom Lumpp was unable to name. Spinks and his partner left the room, returned with some coffee for Lumpp, and questioned her. When Lumpp asked them if she could call her attorney, Spinks refused her request, shouting, “Quit the bullshit, quit beating around the bush.” Lumpp began to cry. She persisted in her request for an attorney, and Spinks told her that if she cooperated, she would “get a pass.” She understood this to mean she would not be charged. Lumpp spoke with Spinks three or four times over an eight-hour period. She continued to ask for her attorney, and he continued to tell her that if she cooperated with the police and told all that she knew, she would not be charged with murder. Spinks also told her that she would be his number one witness, that she would receive protective custody, and that he would help her get a “fresh start.” Lumpp also testified that: at this time her face was noticeably swollen from a toothache; that she asked to use the washroom; that Spinks at first denied this request but later relented; and that when she complained of stomach pains, he brought her coffee and continued the questioning. Lumpp last saw Spinks at approximately 8 a.m. At this time, he said that she would be his number one witness and that she would be released after she retold her story to another investigator.

The State argues that Officers Spinks and Savage were not material witnesses to the defendants’ statements. As to Carr, the State notes that Carr testified that Officers Spinks and Savage only spoke to him from 1:30 a.m. until 2:30 a.m. on November 13, and that Carr made his statement much later that day. Thus, according to the State, their alleged threats did not play a part in procuring Carr's confession. We observe, however, that Carr testified that Spinks not only threatened to let another police officer “in on me,” but also Spinks denied his request for his attorney. As to Lumpp, the State argues that Spinks and Savage did not play a significant role in procuring her statement, because she only made her statement because she feared Carr would incriminate her. Lumpp testified at the hearing on her motion that she spoke to Spinks three or four times over an eight-hour period which ended at approximately 8 a.m. on November 13. She testified that during that time, Spinks shouted at her, refused her requests for an attorney, and told her that if she cooperated with the police she would not be charged with murder.

Clearly, Officer Spinks was a material witness to the statement of each defendant. A witness may be material even though he was not present when the statement involved was made. (People v. Armstrong (1972), 51 Ill. 2d 471, 476.) Further, the determination of whether a statement is voluntarily given depends upon the totality of the circumstances. (In re Lamb (1975), 61 Ill. 2d 383, 388; People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731.) Although Spinks was not present when the written statements of defendants were taken, his questioning of each defendant was a significant part of the totality of circumstances leading to each statement, and he should have been produced at the hearings below. We further believe that Officer Savage was a material witness to the extent that he was present when threats or promises were made to either defendant and when requests for counsel were denied.

The State observes that the prosecution attempted to explain the absence of Officers Spinks and Savage at the hearing on Carr’s motion. At that hearing, the prosecution stated that Officer Savage had quit the police force and no longer resided in the city of Chicago, and that Officer Spinks was on furlough and would return to Illinois in 21/2 to three weeks. The record of the hearing on Lumpp’s motion contains no explanation of the absence of Spinks and Savage. The State, however, relying on a statement by Lumpp’s counsel at her hearing, argues that her counsel knew the reasons given at Carr’s hearing for the absence of Spinks and Savage.

We do not address the question of the knowledge of Lumpp’s counsel, because we are of the opinion that the explanations of the absence of Spinks and Savage were clearly insufficient. In Armstrong, our supreme court discussed explanations given for the absence of two material witnesses. The court held that testimony that a police officer “ ‘should be’ on furlough did not even attempt to explain the State’s failure to produce him.” (51 Ill. 2d 471, 477.) The court also found that testimony that another police officer was on vacation and could not be contacted “did not justify the State’s failure to produce [him] during the hearing.” (51 Ill. 2d 471, 477; see also People v. Thomas (1974), 22 Ill. App. 3d 854, 858, 318 N.E.2d 342.) Like the Armstrong court, we are of the opinion that the State’s attempt to explain the absence of Officers Spinks and Savage was insufficient. The explanation that the former was on furlough and that the latter no longer worked for the police department and no longer resided in Chicago, standing alone, did not excuse the failure to produce them.

The State also argues that its attempted explanation of the absence of Officers Spinks and Savage was sufficient as to Carr, because at the hearing on his motion, the prosecution offered to continue the hearing until Officer Spinks returned from furlough, and Carr made no further protest of the absence of the two officers. That Carr made no further protest is simply not true. Rather, at the hearing on Carr’s motion, his counsel subsequently argued to the court that the State had failed to produce all material witnesses, including Spinks and Savage. The State further suggests that both Lumpp and Carr cannot complain of the prosecution’s failure to call Officers Spinks and Savage, because neither defendant, at his respective hearing, requested a continuance. The State cites no cases to support this theory, and in light of the fact that the State has the burden of proof on the question of voluntariness, we do not agree with the State’s suggestion.

The State’s last argument with respect to this material witnesses issue is that the failure of the prosecution to produce Spinks and Savage at the hearing on each defendant’s motion should be excused, because each motion failed to “state facts showing wherein the confession is involuntary.” (See Ill. Rev. Stat. 1979, ch. 38, par. 114— 11(b).) The State relies on In re Lamb and People v. Lopez (1981), 93 Ill. App. 3d 152, 416 N.E.2d 1127. In each case, the court relied in part on the lack of specificity in the motion to suppress to hold that there was no prejudicial violation of the material witness rule. However, in Lamb, our supreme court observed that “the State presented witnesses who accounted for the entire time respondent was in custody until giving the written statement.” (61 Ill. 2d 383, 390.) Similarly, in Lopez, the court stated that “the State offered the testimony of Officer Battaglia who accounted for the entire time defendants were in custody until the statement was given.” (93 Ill. App. 3d 152, 157.) Unlike those cases, the State here failed to offer any testimony at either defendant’s motion hearing to account for the time between midnight, when Officer Heitmann went off duty, and 9:30 a.m. when Officer Flood saw the defendants. Lamb is also distinguishable because in that case there was uncertainty whether a police officer, claimed to be an absent material witness, was present at the time of the alleged coercion. Further, in Lamb, unlike the instant case, defense counsel made equivocal comments regarding that officer’s absence. (61 Ill. 2d 383, 392.) Thus, Lamb did not hold that lack of specificity in a motion to suppress, by itself, negates the State’s burden to produce all material witnesses, and we are not willing to so hold.

In sum, we hold that the prosecution failed to meet its burden of producing all material witnesses connected with the taking of each defendant’s statement or explaining their absence. Accordingly, their statements should have been suppressed. For that reason, their convictions must be reversed, and the causes must be remanded for new trials.

II

Having reached this conclusion, we do not address the arguments of each defendant that the trial court’s finding of voluntariness was against the manifest weight of the evidence. (See People v. Prim (1972), 53 Ill. 2d 62, 70.) We observe, however, that where each defendant’s testimony was contradicted by the testimony of witnesses for the State, the trial court could properly have believed the testimony of the latter.

Lumpp also argues that her statement should have been suppressed because police officers ignored her repeated requests for counsel. This issue is largely a matter of credibility. Lumpp asserts that her testimony that she made requests for an attorney to Officers Heitmann and Flood was more credible than the testimony of Heitmann and Flood that she did not do so. In making this argument, she relies on the fact that Heitmann wrote his name and phone number on the reverse side of a business card of Lumpp’s attorney. However, Lumpp admitted on cross-examination that she sometimes used business cards for keeping notes or information. With respect to Flood, she argues that it is unrebutted that Lumpp made a telephone call to attorney Howard Gilman at approximately 11:30 a.m. on November 13. She contends that it is “patently unbelievable” that Lumpp would call an attorney, but then not tell the police she had done so. However, Flood testified that Lumpp was permitted to make a telephone call and that she did not tell him she was calling an attorney. Although the attorney’s card and the telephone call tend to corroborate Lumpp’s testimony, the conflict between the testimony of Lumpp and the officers was a question of credibility to be resolved by the trial court. In arguing that her requests for an attorney were not honored, Lumpp also asserts that her testimony that Officer Spinks failed to honor her requests for an attorney was never rebutted. We feel that our holding on the material witness issue satisfactorily addresses this contention. In a similar argument, Lumpp also asserts that her testimony that Spinks made promises of leniency to her was unrebutted. In our opinion, our holding on the material witness issue is also dis-positive of this issue.

Ill

Lastly, we address each defendant’s contention that his written statement was the fruit of an illegal arrest.

In the trial court, the time of the arrests was never fixed. At the hearing on Carr’s motion, Officer Heitmann testified that Carr agreed to go to the police station, that Carr was free not to accompany him to the police station, and that Carr was free to leave the police station after he arrived there. At the hearing on Lumpp’s motion, Heitmann testified that he asked Carr to accompany him to the police station, and that Lumpp came along with them. We note, however, that at trial Heitmann testified that both Lumpp and Carr replied that they would “be glad to” go to the police station. He also testified at the hearing that Lumpp was free to leave the police station on November 12. The State concedes, however, that Lumpp and Carr were under arrest at 9 a.m. on November 13. Officer Flood testified at the hearings on the motions that neither defendant was free to leave the police station at that time. (See Dunaway v. New York (1979), 442 U.S. 200, 206-16, 60 L. Ed. 2d 824, 832-38, 99 S. Ct. 2248, 2253-58; People v. Townes (1982), 91 Ill. 2d 32, 36-39, 435 N.E.2d 103, cert. denied (1982), 459 U.S. _, 74 L. Ed. 2d 143, 103 S. Ct. 174.) The State suggests that the time of the arrest of each defendant is not consequential because Officer Heitmann had probable cause to arrest both of them at the Acres Motel. We agree that it is not important to determine whether the seizure occurred at the Acres Motel, at the police station at 9 o’clock the next morning, or at some time in between, because the record does not show that the police had any more evidence of probable cause at 9 o’clock the following morning than they had at the Acres Motel the previous evening.

Probable cause for an arrest exists when “the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.” (People v. Moody (1983), 94 Ill. 2d 1, 7; People v. Creach (1980), 79 Ill. 2d 96, 101, 402 N.E.2d 228, cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564; Ill. Rev. Stat. 1979, ch. 38, par. 107-2.) “This standard requires more than mere suspicion, but it does not require the arresting officers to have in their hands evidence sufficient to convict the defendant.” (People v. Moody (1983), 94 Ill. 2d 1, 7; People v. Jones (1967), 38 Ill. 2d 427, 431, 231 N.E.2d 580.) And our supreme court has repeatedly stated:

“ ‘Whether or not probable cause for an arrest exists in a particular case depends upon the totality of the facts and circumstances known to the officers when the arrest was made. [Citations.] In deciding the question of probable cause in a particular case the courts deal with probabilities and are not disposed to be unduly technical. These probabilities are the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act.’ [Citation.]” (People v. Creach (1980), 79 Ill. 2d 96, 102; People v. Robinson (1976), 62 Ill. 2d 273, 276-77, 342 N.E.2d 356; People v. Clay (1973), 55 Ill. 2d 501, 504-05, 304 N.E.2d 280.)

Where the trial court has conducted a lengthy hearing on the issue, and has determined that the officers had probable cause to arrest the defendant, a court of review will not disturb this finding unless manifestly erroneous. (People v. Clay (1973), 55 Ill. 2d 501, 505; People v. Thompson (1981), 93 Ill. App. 3d 995, 1002, 418 N.E.2d 112, cert. denied (1982), 458 U.S. 1109, 73 L. Ed. 2d 1371, 102 S. Ct. 3490.) Moreover, a reviewing court, in passing upon a trial court’s ruling that probable cause to arrest a defendant existed,, may consider testimony adduced at trial as well as the pretrial hearing. People v. Thompson (1981), 93 Ill. App. 3d 995, 1002.

The State argues that there was probable cause to arrest Carr at the Acres Motel. At the hearing on Carr’s motion, Officer Heitmann testified that on November 12, 1978, he read certain police reports concerning the shooting of Bernoski, which had occurred on October 26, 1978. One of the reports contained a description of the two assailants, a black male and a white female. The black man was described as being between five feet, 10 inches and six feet tall, and approximately 160 to 180 pounds and 25 to 30 years old. He also learned that Chicago police officer John Valaitis had made a photographic identification of Carr as the black male that he had seen near the scene of the murder, and that Carr, at that time, was accompanied by a white female. Heitmann had also obtained a photograph of Carr from the daily bulletin issued by the police department. He possessed this information when he encountered Carr at the Acres Motel. Officer Valaitis testified at Carr’s hearing that on October 26, 1978, he went to the scene of the crime after he received a call over police radio. He heard descriptions of the assailants and later told investigators that prior to the homicide, he had seen two people who fit the descriptions walking in the direction of the place where the homicide occurred. He picked a photograph of Carr from among seven photographs as being the picture of one of those persons, and testified that Carr was in the company of a white female. Valaitis’ trial testimony placed the couple within one city block of the scene of the killing at approximately 1:30 a.m., the approximate time of the offense. The State also relies on Officer Heitmann’s trial testimony that the black man in the motel room bore a “very strong resemblance” to the picture he had of Carr, and that at the motel room, Carr identified himself by a name other than Carr.

We are of the opinion that these facts, viewed cumulatively, constituted probable cause to arrest Carr. Probable cause is determined from viewing the evidence as a whole, and a court can find probable cause even though the pieces of evidence individually would not amount to probable cause. (People v. Moody (1983), 94 Ill. 2d 1, 8.) Here, the evidence showed: Carr matched the general physical description given by an eyewitness; he was near the scene of the homicide at 1:30 a.m., the time of the homicide, in the company of a white woman; and the offense was committed by a black man and white woman. In reaching this conclusion, we recognize that a general description does not, by itself, establish probable cause to arrest a person fitting that description. (People v. Williams (1977), 53 Ill. App. 3d 266, 272, 368 N.E.2d 679; In re Woods (1974), 20 Ill. App. 3d 641, 646, 314 N.E.2d 606; see People v. Gabbard (1979), 78 Ill. 2d 88, 93, 398 N.E.2d 574.) But the general description here was supported by other relevant facts known at the time of arrest. In short, we believe there were too many coincidences pointing to Carr to enable us to say that his guilt was not probable in the fourth amendment sense. (See People v. Moody (1983), 94 Ill. 2d 1, 9.) Accordingly, we will not disturb the trial court’s finding of probable cause as to Carr as being against the manifest weight of the evidence.

Carr also argues that the police did not have probable cause to arrest him because he and a white woman were brought before Wayne Meskill, the only eyewitness to the offense, shortly after the homicide, but were not identified by him. In fact, Chicago police officer Michael Atkins had testified at the hearing on Carr’s motion that in the early morning hours of October 26, he and his partner received a message over police radio describing a black male and a white female involved in the shooting. About 10 minutes later, Atkins and his partner detained Carr and a white woman, and transported them to the scene of the crime for a show-up, but they were not identified by the eyewitness. Carr had given similar testimony at the hearing. Carr now asserts that Officer Atkins’ knowledge of this should be imputed to the other officers involved in the case, although Officer Heitmann testified at trial that he did not know of the show-up. In our opinion, this fact alone does not destroy the inference of probable cause.

The State argues that there was probable cause to arrest Lumpp at the Acres Motel. At the hearing on Lumpp’s motion, Officer Heitmann gave testimony similar to his testimony at Carr’s hearing. According to Heitmann, police reports described the white woman as five feet, five inches to five feet, seven inches tall, weighing 120 to 130 pounds, 25 to 30 years of age, with blond or light brown hair. He also had another description of the white woman as being five feet, two inches to five feet, five inches tall. Heitmann also testified that Lumpp was the white woman in the motel room with Carr; that in the motel room, Lumpp was wearing gold rimmed glasses; and that she appeared to be heavier than the woman in the description. At trial, Heitmann testified that the description he had of the white female assailant included the fact that she wore wire-rimmed glasses, and that Lumpp, in the motel room, appeared to weigh more than 170 pounds, but the woman sought was described as between 120 and 130 pounds.

As we observed above, a general description, by itself, does not establish probable cause to arrest a person fitting that description. Even if such a description were sufficient, Lumpp did not match the general description. The female assailant was described as weighing between 120 and 130 pounds, yet Heitmann testified that when he saw her at the motel, she did not fit the description. Furthermore, there was no testimony that the glasses worn by the assailant or the glasses that Lumpp wore at the motel were unusual.

It appears that the only other reason that Lumpp was seized was because on November 12, she was a white woman in the same motel room with Carr. But our supreme court has stated: “[P]robable cause to arrest a particular individual does not arise merely from the existence of probable cause to arrest another person in the company of that individual.” (People v. Creach (1980), 79 Ill. 2d 96, 102-03.) It does not appear from the transcript that the trial court made an express finding of probable cause; however, we are of the opinion that any finding of probable cause implicit in the denial of Lumpp’s motion was against the manifest weight of the evidence.

A conclusion that the police lacked probable cause to arrest, however, does not automatically require suppression of a statement following the arrest. Although the court below did not address the question of whether the taint of the illegal arrest of Lumpp was sufficiently attenuated, the State argues on appeal that Lumpp’s written statement was sufficiently an act of free will to purge the taint of any illegal seizure.

The State relies on Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254. In that case, the Supreme Court identified several factors that should be considered in determining whether a confession has been obtained by exploitation of an illegal arrest: “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, *** and, particularly, the purpose and flagrancy of the official misconduct.” (Taylor v. Alabama (1982), 457 U.S. 687, 690, 73 L. Ed. 2d 314, 319, 102 S. Ct. 2664, 2667, quoting Brown v. Illinois (1975), 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261.) Brown also observed that “Miranda warnings, alone and per se, cannot always make the act [of confession] sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession.” (Brown v. Illinois (1975), 422 U.S. 590, 603, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261.) The court did, however, state that “Miranda warnings are an important factor *** in determining whether the confession is obtained by exploitation of an illegal arrest.” (422 U.S. 590, 603, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261.) And the burden of showing that a confession is admissible because not obtained by exploitation of an illegal arrest rests on the prosecution. Taylor v. Alabama (1982), 457 U.S. 687, 690, 73 L. Ed. 2d 314, 319, 102 S. Ct. 2664, 2667; Brown v. Illinois (1975), 422 U.S. 590, 605, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261.

In maintaining that Lumpp’s statement was purged of the taint .of any illegal arrest, the State observes that she was repeatedly advised of her Miranda rights. The State further asserts that intervening circumstances were present. First, the State argues that interrogation by Officer Flood was such an intervening circumstance, because Flood had testified that Lumpp said she would speak to him because she knew and trusted him. Secondly, the State contends that Lumpp’s fear that Carr would implicate her as the murderer was another intervening event. See People v. Gabbard (1979), 78 Ill. 2d 88, 99-100, 398 N.E.2d 574.

Notwithstanding the State’s contentions, we are of the opinion that the record on appeal fails to support the State’s claim that the taint of any illegal arrest of Lumpp was purged. The United States Supreme Court has stated on several occasions that “[t]he voluntariness of the statement is a threshold requirement.” (Brown v. Illinois (1975), 422 U.S. 590, 604, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2262; see also Taylor v. Alabama (1982), 457 U.S. 687, 690, 73 L. Ed. 2d 314, 319, 102 S. Ct. 2664, 2667; Dunaway v. New York (1979), 442 U.S. 200, 217, 60 L. Ed. 2d 824, 839, 99 S. Ct. 2248, 2259.) We have already held that the State failed to meet its burden of proof on the issue of voluntariness. Accordingly, we must conclude that the State also failed to meet its burden of showing that Lumpp’s statement was not obtained by exploitation of her illegal arrest.

Having reached the aforementioned conclusions, we do not address the remaining issues presented by defendants. Defendants’ convictions must be reversed and the causes must be remanded for new trials.

Reversed and remanded.

McNAMARA, P.J., and McGILLICUDDY, J., concur.

       The State, in its brief, assumes that Officer Savage was Officer Spinks’ partner. Lumpp, at the hearing on her motion, testified that she was interrogated by Spinks and his partner. For purposes of this opinion, we will accept the State’s assumption.

       We also note that if Carr requested counsel of Spinks, we would have to impute notice that counsel had been requested to those officers interrogating him subsequently. People v. Blanchard (1967), 37 Ill. 2d 69, 73, 224 N.E.2d 813.

       The hearing on Carr’s motion occurred before the hearing on Lumpp’s motion.

       Valaitis placed the couple at the intersection of Wolfram and Sheffield streets at 1:30 a.m. Other testimony showed that the crime occurred on the 900 block of West Wolfram and that the intersection of Wolfram and Sheffield is at 1000 West Wolfram.


author: PRESIDING JUSTICE ROMITI

text:
    MARSHALL D. LEIB, Plaintiff-Appellant, v. TOULIN, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—1932
    Opinion filed March 24, 1983.

      Mark S. Lieberman and David J. Letvin, both of Chicago (Rosenthal and Schanfield, of counsel), for appellant.
    Nathan H. Dardick and Fern S. Netzky, both of Chicago (Dardick & Jadwin, of counsel), for appellee Bank of Lincolnwood.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 307(a)(2) (87 Ill. 2d. R. 307(a)(2)) from an order appointing a receiver to manage and liquidate a joint venture. Plaintiff also appeals from the refusal of the trial court to disqualify defendants’ attorneys.

We reverse the order appointing a receiver and remand for further proceedings and determine we have no jurisdiction in an appeal pursuant to Rule 307(a)(2) to review the refusal to disqualify defendants’ attorneys.

The somewhat involved background of the controversy follows:

On November 4, 1964, Marshall D. Leib (Leib), a licensed architect, contractor and real estate broker, entered into a joint venture agreement with the Bank of Lincolnwood (the Bank), a State banking association, to develop a parcel of real property located in Lincolnwood on which Leib already owned an option to purchase. At that time, the Bank was controlled by Richard Goodman. The joint venture thereby created provided for the construction of a banking facility which would also contain other rentable commercial space. On October 18, 1965, the 1964 joint venture agreement was amended to substitute a newly created corporation, defendant Toulin, Inc. (Toulin), for the Bank as Leib’s joint venturer. At that time, all of the stock of Toulin was owned by the Bank.

Long-term financing for the joint venture was arranged through a 53/4% mortgage; the Bank is not the mortgagee. This mortgage remains in place, and has a present outstanding indebtedness of approximately $933,000. The final payment on the mortgage is due in 1992. The mortgage specifies that the entire indebtedness is accelerated “if the premises are placed under the control of any court” and contains the usual prohibitions against permitting mechanic’s liens to attach or remain against the mortgaged premises. The mortgage does not expressly provide for acceleration if such lien attached although the paragraph permitting acceleration in case of nonpayment, bankruptcy, or actual or threatened demolition or placing of premises under control of court, concludes by stating “or if the mortgagor fails to perform fully any other act or agreement required of the mortgagor hereunder.”

The joint venture agreement as amended provided that:

“The Joint Venturers shall receive no compensation for any services rendered to the Joint Venture except as mutually agreed upon, it being understood and agreed that such parties shall mutually agree to and make provision for the payment of compensation to either of the Joint Venturers rendering special services to the Joint Venture not being rendered by the other Joint Venturer, including without limiting the foregoing, management and similar services.”

In May 1966, Leib and Toulin signed a memorandum regarding leasing commissions for Leib and resident manager fees for Toulin; a revised memorandum was signed on April 11, 1969. While under these written agreements the duties were split between the two parties, in fact, according to Leib’s uncontradicted testimony, the parties orally agreed that Leib (through MDL Realty which he owned) assumed all management duties except for the maintenance of certain financial records and accounts which were maintained by an assistant cashier of the Bank, without charge to the joint venture.

From the beginning the Bank has rented 40% of the building. While the lease itself is not in the record, it appears from the original joint venture agreement that the lease was to be for 25 years with certain options to renew. The base rent was $3.15 per square foot but escalated rent based on increases in the cost of maintaining and operating the building and on increases in real estate taxes was also provided for.

In the late 1970’s control of the Bank was transferred to defendant, GSC Enterprises, Inc. (GSC), which now owns 96% of the Bank stock. GSC was at one time a publicly traded corporation. Majority control of GSC was obtained by the Engle group (so-called because of the dominance of Clyde W. Engle in the investment group) in the mid-1970’s, who made GSC private. (See generally Issen v. GSC Enterprises, Inc. (N.D. Ill. 1981), 508 F. Supp. 1278.) Clyde W. Engle is chairman of the board of GSC; Roger Weston is its president; William Weaver, of the law firm of Sachnoff, Weaver and Rubenstein, Ltd. (present counsel for all defendants herein), is its secretary; and Nathan Dardick of the firm of Dardick & Jad win (additional counsel for the Bank herein) is its registered agent. Clyde W. Engle and Roger Weston are two of GSC’s three directors. The officers of the Bank include Clyde W. Engle, chairman of the board, James Hamilton, president, and Roger Weston, vice-president.

The officers of Toulin include Roger Weston, president, and Nathan Dardick, secretary. Roger Weston and Clyde W. Engle are its two directors. Toulin has no assets other than its 50% interest in the joint venture. It has no employees. Its offices are at 625 North Michigan Avenue, Chicago, on the premises of GSC. It is not listed in the phone book, building directory, or on its own front door. It was not until after June 26, 1981, that it even had stationery printed. Although the joint venture agreement as amended in 1965 provided that “there will be no transfers, assignments (or any interest therein) except to Goodman, his spouse or descendants,” sometime in late 1977, or early 1978 the Bank transferred all of its stock in Toulin to GSC. Toulin in its pleadings alleged that Leib, who was then a director of the bank, approved the transfer. This allegation was denied, however, and Toulin has pointed to no evidence in the record establishing such consent. The provision in the 1965 amendment prohibiting transfers replaced a provision in the original agreement giving Leib a right of first refusal to purchase Toulin’s stock at whatever price the Bank’s intended transferee was to pay.

For some years prior to the takeover by the Engle group, the accounting firm of Miller, Cooper & Co. had been both the Bank’s auditors and the accountants for the joint venture. At about the same time that Miller, Cooper was replaced by the Bank the joint venture, with Toulin’s full approval, engaged the services of the accounting firm of Weiss and Company to do its accounting work, including preparation of rental escalation calculations. While from 1973 to 1978 the Bank paid the rental escalation as calculated by Miller, Cooper, in 1979 Leib allegedly discovered that those calculations had understated the amount of escalated rent owed by the Bank and, on the other hand, the Bank allegedly determined that its accountant had overstated the escalation of operating costs. Thereafter the Bank refused to pay any of the escalated rents relating to operating costs although it has paid the real estate tax escalation.

Because of this dispute over the amount of rent owed by the Bank, Toulin attempted to invoke the buyout provisions of the joint venture agreement offering to sell its interests for $800,000. After five months of unsuccessful negotiations Leib filed the instant lawsuit. The original complaint filed on July 20, 1979, was in two counts. Count I seeks a declaration of rights relating to the alleged notice of termination, asking the court to determine that the notice was not an offer within the meaning of the 1965 amendment to the joint venture agreement, or alternatively, that an injunction issue precluding defendants from refusing to permit Leib to accept or reject the proposal contained in the notice. Count II sought a declaration of rights relating to the 1978 transfer of Toulin’s stock from the Bank to CSC. Leib requested a declaration that he was entitled to purchase the Toulin stock upon payment of the same consideration paid by GSC. The defendants filed an appearance but did not file an answer until late 1981. The parties attempted in the interim to settle their differences but in January 1981 Leib refused to sign a tentative settlement agreement because, while he would have waived his claims with prejudice, Toulin’s withdrawal of its notice of termination did not prevent it from sending a new notice of termination.

In April 1981, as found by the trial court, Toulin began to refuse to sign checks to Leib for his services. Toulin has made no contention that the service contracts were not still in effect at that point.

Since the Bank was still refusing to pay the rent allegedly due, Leib, on June 22, 1981, unilaterally served the Bank with notice of default and termination of its lease for failure to pay rent escalations due the joint venture according to Leib’s calculations. Although Weston admitted at trial that it was to the interest of the joint venture to maximize its revenues, Toulin wrote Leib on June 26, 1981, that his action against the Bank was not authorized and that he was no longer authorized to act for the joint venture. On July 14, 1981, Leib filed a forcible detainer action against the Bank. This action was later dismissed, that court determining that Leib and Toulin must settle their differences before suit could be brought against the Bank.

Notwithstanding Toulin’s alleged barring of Leib from their managerial and service positions on behalf of the joint venture in June 1981, those entities in fact continued to perform and contract for all management and related services for the building. Toulin, on the other hand, on October 1, 1981, unilaterally employed Romanek-Golub and Company to act as its agent to manage the building. Under this management agreement, the joint venture had no control over the operations of the building. While all expenses were to be paid by the joint venture, only Toulin could authorize or approve expenditures. Furthermore, although the joint venture agreement as amended provided that:

“The funds belonging to the Joint Venture or held by it for others shall be kept in such bank or banks as may be designated by the Joint Venturers and prior to such designation in the Bank, and the same shall be subject to withdrawals upon checks for drafts drawn in the name of the Joint Venture by the Joint Venturers jointly, or by either of such parties or such other person who may be designated by the Joint Venturers jointly.”

Romanek-Golub was directed to deposit the revenues of the joint venture into a bank account selected only by Toulin and not by the joint venturers as required by the contract. Furthermore disbursements from that account were to be made at Toulin’s direction only although the joint venture agreement gave Leib equal authority to make disbursements with Toulin, and, as apparently found by the trial court, required any other person making withdrawals to be designated by both joint venturers. The contract also provided that only Toulin could approve leases.

On October 1, 1981, Romanek-Golub sent computerized rental statements to the tenants in the building directing that they send their rent to Romanek-Golub at 625 North Michigan Avenue. Also on or about October 2, 1981, Romanek-Golub sent correspondence to the tenants in the building announcing that it was taking over “responsibility for all property related functions including day-to-day maintenance and administration,” and asking that rental payments be forwarded to Bernice Cantor at the Bank of Lincolnwood. A bank account was opened in the name of Romanek-Golub, in which all rental income was deposited, subject only to the signature of Romanek-Golub, which in turn took its “marching orders” exclusively from Toulin.

Thereafter, on October 26, 1981, Leib obtained leave of court to file an amended complaint. The amended complaint prayed for a declaratory judgment relating to the alleged termination notice served on February 12, 1979, which was the subject of count I of the original complaint herein, and in count II sought a preliminary and permanent injunction prohibiting the continued retention of Romanek-Golub as manager of the building, and requiring all joint venture funds received by any of the defendants or their agents to be deposited in the joint venture bank account subject to withdrawals only upon the signature of both Toulin and Leib. Leib also sought an order enjoining interference with his function as property manager of the building, enjoining interference with Leib’s interest as a joint venturer, and an accounting. The trial court on November 12, 1981, prohibited Romanek from disbursing joint venture funds without 48-hour notice to all parties. Apparently Romanek has interpreted this order to bar distribution of funds not approved by both joint venturers as from that time forward it sought Leib’s approval before disbursing any funds. Romanek still did not pay the bills submitted by vendors engaged by Leib for work done prior to October 1, 1981, although it would appear the joint venture owes such monies since Leib would have had at least apparent authority to bind it. Because of the refusal to pay such bills pursuant to instructions from Toulin, there has been a threat of possible mechanics’ lien filings.

On November 13, 1981, defendants answered the amended complaint, denying the material allegations and raising a variety of affirmative defenses. Toulin also requested an accounting and liquidation of the joint venture.. Thereafter on November 30, 1981, Toulin filed a motion to appoint a receiver alleging:

“3. For some time prior to June, 1981 Toulin and Leib had been involved in disputes with respect to numerous matters concerning the management, operation, maintenance and leasing of the Bank Building including, but not limited to:
a. ) The amount, if any, of escalated rents due from the Bank of Lincolnwood to the Joint Venture or whether the Bank of Lincolnwood had paid excess rents to the Joint Venture and was entitled to a refund or rent abatement and the proper accounting method for making such calculation.
b. ) Fees due the Bank of Lincolnwood for bookkeeping services rendered to the Joint Venture and reimbursement for postage advanced by the Bank of Lincolnwood on behalf of the Joint Venture.
c. ) The amount of fees charged by Leib and companies controlled by Leib for services rendered to the Joint Venture. d. ) The unilateral action of Leib sending the principal tenant of the Bank Building, being the Bank of Lincolnwood, a notice of default and termination of tenancy based upon nonpayment of the rent escalation when there was substantial dispute about how to compute the escalation,
e.) Toulin’s distrust of Leib and its belief that Leib intended to harm the Joint Venture and that Leib had been causing the Joint Venture to pay for services rendered at higher than the reasonable costs for such services, including payments to Leib and/or companies controlled by him.
* * *
4. On June 26, 1981 Toulin served a notice on Leib demanding that he stop performing any services for the Joint Venture at the Bank Building, that he withdraw his notice of termination of tenancy to the Bank of Lincolnwood and that he cease taking actions which were designed to harm the Joint Venture.
5. After June 26, 1981 the relationship between the parties further deteriorated and the disputes between the parties began to substantially interfere with the management, operation, maintenance and leasing of the Bank Building, such disputes including but not limited to:
a. ) Inability of Toulin and Leib to agree upon who should manage the Bank Building insofar as Toulin desired to have the professional management services of a qualified real estate management company and selected Romanek-Golub & Company and Leib insisted that he should be paid for and had the right to manage the Bank Building.
b. ) Inability of Toulin and Leib to agree on who should be the accountants for the Joint Venture, Toulin requesting that one of the major national accounting firms be selected and Leib insisting that a local small accounting company that Toulin believes takes instructions from Leib on accounting matters in dispute (procedures for computing escalated rents) do the accounting for the Joint Venture.
c. ) Toulin’s continued distrust of Leib caused by substantial questions being raised about Leib’s past practices with respect to building maintenance, reserves for repairs, rental policies as to rate and term, selection of vendors without competitive bids, charging over-rides of 20% (10% for MDL Construction and 10% for Marshall D. Leib and Associates Architects) on tenant improvements, as well as other management matters.
d. ) Leib’s filing a forcible entry and detainer action against the Bank of Lincolnwood in July, 1981, in spite of the fact that Toulin specifically directed Leib not to do so and specifically disputed Leib’s conclusion that the Bank of Lincolnwood was in default under its lease.
e. ) Leib’s continued attempt to bind the Joint Venture to certain vendors despite specific instructions not to do so.
f. ) Leib’s filing his amended complaint on October 22, 1981 seeking to enjoin and prevent Romanek-Golub & Company from managing the Bank Building.
6. Toulin and Leib are presently joint venturers who are deadlocked with respect to the status of the Joint Venture and with respect to the managing, operating, maintaining and leasing of the Joint Venture’s asset, to wit, the Bank Building.
7. The joint venturers are no longer capable of maintaining their partnership relationship and the size and complex problems involved in the management, operation, maintenance and leasing of the Bank Building requires active and constant attention which, if neglected and not provided, will result in damage, deterioration and waste of the property to the substantial detriment of all parties hereto. ***”

The trial court over Leib’s objection decided to hear the motion to appoint the receiver prior to the motion for preliminary injunction. The only witnesses were Richard Abraham, vice-president of the Commercial Property Management Division of Romanek, Roger Weston and Leib.

Abraham testified he took his “marching orders” only from Toulin and stated “we treat the Bank differently or separately than the way we treat the rest of the tenants in the Building.” While he collected the base rent from the Bank he was instructed by Toulin not to collect any escalated rents based on operating expenses from the Bank. Romanek was not told both sides of the dispute. He was also told not to pay any bills submitted by Leib or Leib’s entities for services rendered to the joint venture, including those rendered prior to October 1, 1981. Toulin also instructed them not to pay any vendors for work Romanek had not authorized. Because of Toulin’s instructions, vendors performing services prior to October 1, 1981, have not been paid even though there is no dispute they did the work. Toulin refused to permit the vendors to be paid despite the possibility the vendors might file mechanics’ liens and even though its lawyers informed them this might constitute a default in the mortgage. There was no evidence any of the vendors were incompetent or improperly selected. To the contrary, many of the same people obtained by Leib were retained and used by Romanek.

Abraham testified that the building is 18 years old and structurally in “pretty good shape.” Inside, there was some obsolescence and some things were “behind the times.” He felt the mechanical system was “on the verge” of needing some sort of capital improvement program. Furthermore windows had not been washed in several years; he admitted however that they still had not been washed at the time of trial five months after Romanek took over. He believed that for the building to be competitive the lobby, interior corridors and ceilings should be improved. At present the Bank’s base rent is only $3.15 per square foot. Other tenants pay average rents of- $9 per square foot. This he felt was not competitive with other suburban bank buildings in the area; $12 per square foot would be, and this building would command such charges if certain basic changes in matters such as decor were made. In fact, however, Leib obtained several leases at that price. He agreed that the outstanding leases were not below the market given the age of the leases. He also agreed that if the Bank was ejected and replaced with another tenant, the building would get more revenue; the lobby space they occupied was valuable space.

According to Abraham the building was 7% vacant. Despite the disputes between the joint venturers, persons wishing to renew leases had managed to do so although in some instances they stayed without a signed lease. The building had been making a profit when Romanek took over and it was still making a profit.

Abraham testified that there was some confusion among the tenants as to what responsibilities were to be performed by whom. For example when there was a small fire at the Bank of Lincolnwood, MDL (Leib’s corporation) was contacted and handled the matter on a short-term basis.

At the time of trial, according to the witness, Romanek had not been paid for its services. If it was not paid within a reasonable time, it would not continue to manage the building.

Roger Weston is the vice-president of the Bank, and the president of both GSC and Toulin. He is only paid by the Bank. He did not go on the Bank’s payroll until 1979 although he became vice-president in 1977. When and after he came to the Bank the Bank acted for Toulin in doing its resident management functions. Weston did not know if Leib had consented to this. He also did not know what either the Bank or Leib did on a day-to-day basis. The Bank never charged for the services of Bernice Cantor until the spring of 1981.

Weston testified that Miller, Cooper were used as the joint venture accountants until they ceased doing any accounting work for the Bank. Then he said “we” hired Weiss & Company as the new accounting firm for the joint venture to prepare the tax returns, prepare financial statements and to resolve the escalator issue. Only after Weiss resolved that latter issue unfavorably to the Bank did Weston demand that another accountant be used on the grounds that since Weiss reached conclusions which inured to Leib’s benefit, Weiss could not be considered sufficiently independent to act as accountants for the joint venture.

Weston testified he hired Romanek as a response to the notice to terminate the lease, because Leib was harming not only the joint venture but the Bank, and that the joint venture was losing a hundred thousand dollars worth of income and had a negative cash flow. Weston cited no facts to support the last statements and indeed admitted that the building had a surplus cash flow and was profitable.

He testified that Romanek was doing the management jobs given to it and that it was doing a reasonable job. It had been instructed to collect only the base rent from the Bank and not the escalated rent, he also told it to pay only the vendors selected by it and no others. At that time he was aware that there were unpaid vendor bills for services rendered prior to October 1981. He did not investigate the vendor bills and his instruction not to pay was without regard to whether the services had been performed or the bills were fair and reasonable. Weston admitted that Leib had the right to act on behalf of the joint venture without him or Toulin. Weston did not know if he had the right to hire a new manager as he did.

Although there was a 7% vacancy in the building Weston refused to allow Leib to lease space on the building at $12 per square foot. Weston did not even review the lease.

Weston conceded that there was a conflict of interest between his positions for the Bank and GSC and his role as joint venturer. On occasion he did not know “which hat he was wearing.” He tried to do the best he could. He did not know which hat he was wearing when he was attempting to resolve the escalated rents issue. It was to the interest of the joint venture to maximize the rent but it was to the tenant’s interest to minimize the rent.

Leib testified that there was a dispute between the parties as to who should manage the building. It was his position that since it had been jointly agreed that he should manage it, that relationship could not be terminated unilaterally. He also explained that certain payments were made to MDL Realty in 1980 for invoices dated 1977 because he had agreed with Toulin to defer his fees during the recession until the building was fully rented and funds were available.

While the court concludes, as hereinafter discussed, that the facts do not warrant the appointment of a receiver, we sympathize with the trial court’s exasperation with the parties which led to the appointment. For example, although both Leib and Toulin had signed a written agreement with Weiss & Co. for that company to do the tax returns for 1981 Toulin refused to turn over the books to Weiss until ordered to do so by the trial court. Likewise Leib refused to allow GSC and Toulin to have the joint venture records for the period January 1 through September 30, 1981, until ordered by the trial court; GSC needed these records in order to file certain reports required by law. Such conduct on the part of both parties cannot be justified by the fact they were in litigation.

I

The principal issue in this case is whether a trial court can appoint a receiver because the joint venturers have been in disagreement over who can manage the business although the business has been and is making a profit. We hold that mere disagreement is insufficient to permit the appointment of a receiver and reverse and remand for further proceedings. We further hold that since the trial court’s order appointing a receiver was appealed under Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)), this court has no jurisdiction to consider the trial court’s refusal to disqualify defendants’ attorneys although the law firm is defending plaintiff in a Federal case involving in part some related issues.

The trial court appointed a receiver to liquidate the assets of the joint venture and removed Romanek as manager since it was hired unilaterally. In appointing the receiver it pointed to the dissension between the parties saying “the dangers these disagreements pose for the continued profitability of the joint venture require this Court to act.” It also referred to the possible encumbrance by mechanic’s lien claims or mortgage foreclosure. Finally, it found that it was in the best interest of the joint venture for Leib to be allowed to become a tenant of the building.

It is true that the appointment of a receiver resides in the arsenal of equitable remedies to be used when in the sound discretion of the chancellor it is needed to insure complete justice is done between the parties. (Hurst v. Papierz (1973), 16 Ill. App. 3d 574, 306 N.E.2d 532, cert. denied (1974), 419 U.S. 835, 42 L. Ed. 2d 62, 95 S. Ct. 62.) It is also true that the appointment of a receiver is within the sound discretion of the trial court. (First Federal Savings & Loan Association v. National Boulevard Bank (1982), 104 Ill. App. 3d 1061, 433 N.E.2d 1036.) Nevertheless it is a harsh remedy and should not be exercised doubtingly, but only after the court has been convinced that such remedy is absolutely necessary to prevent irreparable losses. (Iowa Structures Unlimited, Inc. v. First National Bank (1981), 99 Ill. App. 3d 180, 425 N.E.2d 64.) As this court stated in Poulakidas v. Charalidis (1979), 68 Ill. App. 3d 610, 614, 386 N.E.2d 405, 408:

“However, in such cases the standards by which the court’s appointment of a receiver must be measured are exceptionally stringent. A court of equity has the power to appoint a receiver of a corporation only when conditions of dissension, dispute, fraud or mismanagement exist, which make it impossible for the business to continue or to preserve its assets. (Duval v. Severson (1973), 15 Ill. App. 3d 634, 304 N.E.2d 747.) It is well recognized that the appointment of a receiver is an extraordinary and drastic remedy to be exercised with great caution. (Bagdonas v. Liberty Land & Investment Co. (1923), 309 Ill. 103, 140 N.E. 49; Steinwart v. Susman (1968), 94 Ill. App. 2d 471, 238 N.E.2d 200; Cohen v. Financial Acceptance Co. (1965), 56 Ill. App. 2d 359, 206 N.E.2d 308.) The appointment of a receiver is appropriate only in cases of urgent necessity where there is a present danger to the interests of the investors, consisting of a serious suspension of the business and an imminent danger of dissipation of the corporate assets. (Firebaugh v. McGovern (1949), 404 Ill. 143, 88 N.E .2d 473.) Even where the appointment of a receiver is temporary and for the limited purpose of preserving property and continuing the business until the dispute between the parties can be resolved, these rigid standards must be applied. Firebaugh v. McGovern (1949), 404 Ill. 143, 88 N.E.2d 473.” (In accord, Prassas v. Nicholas W. Prassas & Co. (1982), 102 Ill. App. 3d 319, 430 N.E.2d 28.)

Despite the appellees’ allegations, there was absolutely no evidence of fraud or mismanagement. It is undisputed that the parties are in disagreement but that in itself is insufficient to warrant the appointment of a receiver. (Prassas; Poulakidas.) Rather, it must be shown that the dissension made it impossible for the business to continue to preserve its assets or created a danger that it might be placed beyond the jurisdiction of the court. (Prassas.) While there was proof that the joint venture was in grave danger of losing its only asset if a receiver was appointed, there was no proof that the business assets were in immediate danger of dissipation or loss. To the contrary the evidence established that the business was flourishing. There was some concern that the assets would be impaired at some future time but such a speculative fear is insufficient to warrant the appointment of a receiver. (W. E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1983), 112 Ill. App. 3d 847.) Furthermore, much of this concern arose out of the possibility Romanek would resign if not paid, and the building would be left without a manager. This danger could have been avoided, however by an expeditious hearing of Leib’s injunction action which raised the issue of who had the right to manage the building. Finally it would be inappropriate for the court to rely on the possibility of mechanic’s liens to appoint a receiver at Toulin’s request when it was Toulin who has refused to pay the claims and thus made the lien possible particularly since Toulin has presented no justification in law for its refusal to allow their payment. It would be inequitable to allow Toulin an advantage from its own wrongful acts. Gerard v. Gateau (1876), 84 Ill. 121.

In addition the appointment of a receiver is warranted only when there is no other adequate remedy or means of securing the desired result. (Poulakidas v. Charalidis (1979), 68 Ill. App. 3d 610, 386 N.E.2d 405.) Here a resolution of the issues raised in Leib’s complaint plus the issuance of an injunction requiring the parties to cooperate with the manager of the building, once Leib’s injunction claim is decided, would appear to be adequate.

II

Leib on appeal also contends that the trial court should have granted his motion to disqualify defendants’ attorneys. As already noted, in the mid-1970’s the Engle group took over GSC. A lawsuit ensued. (See Issen v. GSC Enterprises, Inc. (N.D. Ill. 1981), 508 F. Supp. 1278.) Leib and the Bank are among the defendants in that suit which was still continuing at the time of trial in the present case and were represented by the firm of Schnoff, Weaver and Rubenstein, Ltd. Nathan Dardick originally was. a member of that firm. Among the issues in that case is the reasonableness of the rent paid by the Bank, which at least indirectly is an issue in this case. Leib did not move to disqualify the attorneys until approximately two weeks before trial was scheduled to commence. The trial court denied the motion because of the delay which would ensue.

While we recognize the seriousness of the issue, this court is without jurisdiction to review this action of the trial court. Only final judgmént or orders are appealable unless the particular judgment or order comes within one of the specified exceptions set forth by the rule. (City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 380 N.E.2d 1106.) The refusal to disqualify an attorney is not a final order nor does any supreme court rule authorize an appeal from an interlocutory order of that nature.

This court does have jurisdiction under Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)), of the appeal from the order to appoint the receiver. But the only question properly before this court on that appeal is whether there was a sufficient showing to sustain the trial court’s order granting the receivership. (S & F Corp. v. American Express Co. (1978), 60 Ill. App. 3d 824, 377 N.E.2d 73.) This court does not have jurisdiction to consider other interlocutory orders not listed in Supreme Court Rule 307. City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 380 N.E.2d 1106.

Because we have already determined that the trial court’s order appointing a receiver was without foundation, we reverse and remand the case for further proceedings on Leib’s complaint.

Reversed and remanded.

JOHNSON and JIGANTI, JJ., concur.