text:
    FAIR AUTOMOTIVE REPAIR, INC., et al., Plaintiffs-Appellants, v. CAR-X SERVICE SYSTEMS, INC., et al., Defendants-Appellees.
    Second District
    No. 2—84—0222
    Opinion filed October 26, 1984.
    Rehearing denied December 18, 1984.

      Robert V. Gildo, Ltd., of Wheaton, for appellants.
    Mayer, Brown & Platt, Michael J. O’Rourke, of Winston & Strawn, and William A. Montgomery, Frederick J. Sperling, and Lori E. Simon, all of Schiff, Hardin & Waite, all of Chicago, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

This is an action between muffler repair chains for interference with business by means of slanderous statements. Plaintiffs filed a motion for a preliminary injunction on the basis of disparaging remarks made by defendants’ agents after the case had been filed. Before the hearing on the motion, the motion was dismissed as to individual defendant John Davis. During plaintiffs’ presentation at the hearing on the motion, the trial court struck the motion. Plaintiffs appeal both interlocutory orders.

Plaintiffs in this action, Fair Automotive Repair, Inc. (Fair Auto) and Gayle S. Wakefield, are a corporation which operates and franchises muffler shops and that corporation’s majority shareholder and chief executive officer. Defendants, Car-X Service Systems, Inc. (Car-X), and John G. Davis, are a corporation which is also in the muffler shop business and one of its employees. Plaintiffs filed a complaint against defendants on February 15, 1983, alleging tortious interference with their business by means of false statements disparaging of plaintiffs made to various persons. Plaintiffs sought both damages and injunctive relief.

Soon after this action was initiated, plaintiffs moved for a temporary restraining order. That motion was denied on March 1, 1983. On November 15, 1983, plaintiffs filed a motion for a.preliminary injunction on the basis of allegations that false statements disparaging to plaintiffs by Car-X employees and agents had continued after March 1 to plaintiffs’ detriment. On November 22, 1983, the trial court dismissed the motion as to defendant Davis only because there were no allegations of misconduct by Davis personally.

Also on November 22, the trial court denied Car-X’s motion to strike plaintiffs’ motion. Car-X had argued, in part, that misconduct by plaintiffs warranted application of the “clean hands” doctrine. The misconduct asserted was that of investigators hired by plaintiffs who went to Car-X shops, posed as customers, and made reference to a better estimate for services at a Fair Auto shop. In several instances, the Car-X shop employees responded with disparaging remarks about Fair Auto. The remarks observed by Fair Auto’s investigators were those alleged in plaintiffs’ motion.

The hearing on plaintiffs’ motion began on December 7, 1983. Among the witnesses presented by plaintiffs were four investigators who told of hearing disparaging remarks made by employees of several area Car-X shops against Fair Auto and Gayle Wakefield. The investigatory visits were made after one of the investigators had heard disparaging remarks at a Car-X shop while there as a customer and not as part of any investigation.

On January 12, 1984, during the course of the hearing and prior to the completion of plaintiffs’ case, counsel for Car-X represented to the court that two women had appeared at the Car-X shop that morning who were suspected of being more Fair Auto investigators. Counsel characterized this conduct as an “outrageous incident” and “harassment” and requested that plaintiffs agree to cease further visits. Counsel for plaintiffs admitted that two Fair Auto employees had gone to the Aurora shop, but represented there to be good cause and refused to agree to cease the visits unless Car-X agreed to cease making disparaging remarks. The trial court responded by inviting Car-X to reargue its motion to strike plaintiffs’ motion. After that argument and response by plaintiffs’ counsel, the court granted the motion to strike. Plaintiffs later sought a clarification order which the trial court entered on February 22, 1984. That order stated that plaintiffs’ motion was struck because of plaintiffs’ “improper conduct,” including both the visits by the hired investigators before the motion was filed and the Aurora visit by the Fair Auto employees during the hearing on the motion. The February 22 order did not specify a legal theory for the court’s action.

On March 13, 1984, plaintiffs filed a notice of interlocutory appeal from the orders striking their motion for a preliminary injunction and from the order dismissing that motion as to John Davis.

Striking Of The Motion

A. SUFFICIENCY OF PLAINTIFF’S EVIDENCE.

The trial court’s order striking plaintiff’s motion for a preliminary injunction came before plaintiffs completed their case-in-chief. A trial court may not enter judgment for a defendant on the basis of the insufficiency of the plaintiff’s evidence until the close of the plaintiff’s case. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1110; Scheurer v. Christopher (1967), 82 Ill. App. 2d 304 (abstract); Strzelecki v. The Fair (1939), 299 Ill. App. 113, 19 N.E.2d 624.) The trial court explicitly stated that its order was based upon plaintiffs’ “improper conduct,” not the inadequacy of plaintiffs’ evidence. The rule stated here makes it clear that the inadequacy of plaintiffs’ evidence cannot serve as an alternative basis to sustain the trial court’s order.

B. UNCLEAN HANDS.

Defendants’ appellate arguments for sustaining the trial court’s decision relate to the supposed impropriety of plaintiffs’ conduct in sending investigators to several Car-X shops to determine whether remarks disparaging to Fair Auto were being made to customers. The argument based on plaintiffs’ conduct which was emphasized in the trial court was that the conduct warranted application of the “clean hands” doctrine.

This doctrine holds that he who comes into equity must come with clean hands or, as otherwise stated, one seeking equitable relief cannot take advantage of his own wrong. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069; Metcalf v. Altenritter (1977), 53 Ill. App. 3d 904, 369 N.E.2d 498.) Equitable relief may be denied if the applicant is guilty of misconduct, fraud or bad faith toward the party against whom relief is sought, provided that it is in connection with the transaction under consideration. (Metcalf v. Altenritter (1977), 53 Ill. App. 3d 904, 369 N.E.2d 498.) This doctrine, however, is not a judicial straightjacket, and its application is a matter for sound judicial discretion. Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069.

No authority was suggested nor can be found suggesting whether the type of investigatory .conduct engaged in by plaintiffs here is improper and can serve as the basis of a clean hands defense. Plaintiffs put forth several arguments urging the propriety of their investigatory visits which, although unsupported by authority, are persuasive. Plaintiffs point out the following: (1) they had good reason to conduct their investigation because they had inadvertently learned of disparaging remarks made after the trial court had denied plaintiffs’ motion for a temporary restraining order; (2) there was no other reasonable alternative method available to plaintiffs to discover and prove whether disparaging remarks continued to be made because of the difficulty in using discovery methods to question past Car-X customers; (3) further harm could result to plaintiffs’ business if the disparaging remarks continued; (4) plaintiffs’ investigation employed procedures that were designed to avoid interference with Car-X’s business, such as the use of professional investigators, to observe conduct about Car-X which could have been witnessed by other customers, and the actual employment of Car-X to perform the work sought by the investigators; (5) the public was not harmed, but could only benefit by the pursued enforcement of laws fostering competition.

Defendants argue that the investigatory conduct was improper because it was misleading and tended to manufacture evidence. This argument lends itself to a comparison to the doctrine of entrapment in criminal law. That doctrine has been codified in section 7 — 12 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 7 — 12), which provides that a person is not guilty of a criminal offense if his conduct was incited or induced by the police for the purpose of obtaining evidence against him. However, the entrapment defense is not available to a person who has the intent and design to commit an offense and who does commit the essential acts constituting it, merely because a law officer, for the purpose of securing evidence, affords such person the opportunity to commit the criminal act, or purposely aids and encourages him in its perpetration. Ill. Rev. Stat. 1983, ch. 38, par. 7— 12; People v. Tipton (1980), 78 Ill. 2d 477.

While this rule does not apply to civil cases, its logic is compelling in the comparable situation found in this case. Here, the investigators merely created an opportunity for the Car-X employees to make disparaging remarks. If the investigators were police officers and if making the disparaging remarks were a crime, the Car-X employees could not successfully claim an entrapment defense. While the investigators’ purpose may have been to secure evidence, they did not manufacture evidence. While their method may have been misleading in that they were not ordinary customers sincerely interested in obtaining Car-X’s services, the use of artifice and deception to obtain evidence should not be viewed as improper where, as here, safeguards have been taken to ensure that there would be minimal interference with the other party’s business. (See People v. Gray (1963), 27 Ill. 2d 527, holding that artifice and deception is permissible in order to obtain evidence in a criminal case.) The Car-X shops were open for business and the investigators did no more than ordinary customers might and may have done. Thus, the investigators’ technique in general should not be deemed improper.

The trial court seemed to disapprove most strongly of the visit that occurred during the hearing on the subject motion by Fair Auto employees to the Car-X shop in Aurora. Because no evidence of this episode was presented and its occurrence was merely reported by counsel for Car-X, plaintiffs argue that the trial court could not permissibly rely on it for its decision. However, the trial court’s clarifying order of January 12, 1984, makes clear that the court was relying on the representations of defense counsel only to the extent of those facts admitted by counsel for plaintiffs. Statements of fact by a party’s attorney at a judicial hearing may be used as an admission of fact by the party. (Murphy v. Rochford (1977), 55 Ill. App. 3d 695, 371 N.E.2d 260.) Plaintiffs’ counsel admitted that during the hearing Gayle Wakefield authorized two employees from his office to go to the Aurora Car-X shop and attempt to determine whether disparaging conduct was continuing there and that no disparaging comments were made. Plaintiffs’ counsel represented that that visit was authorized as a result of an anonymous report made to Fair Auto of disparaging remarks by employees at the Aurora shop.

The Aurora incident was little different from the other investigatory visits. Plaintiffs’ counsel admitted to no conduct harmful to defendants. The trial court had previously been asked to strike the plaintiffs’ motion on the basis of the investigatory visits and had not taken that opportunity to condemn the practice or warn the plaintiffs to discontinue it. Thus, plaintiffs could not be faulted for believing their investigatory procedure to be permissible.

In short, under the general standards of the “clean hands” doctrine, plaintiffs’ conduct was not improper and did not warrant the trial court’s action in striking the motion for a preliminary injunction.

C. DISCOVERY AND ETHICS RULES.

Defendants also contend that the trial court’s decision can be justified as a sanction for plaintiffs’ violation of the rules of discovery and professional responsibility. Because defendants did not present this contention to the trial court, plaintiffs argue waiver. However, the judgment may be sustained on any ground warranted, regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382.

Defendants cite Supreme Court Rules 206(a) and 7 — 104(a)(1). The former requires notice be given to the other parties before a discovery deposition may be taken. (87 Ill. 2d R. 206(a).) The latter provides that a lawyer during the course of his representation of a client shall not “communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” 87 Ill. 2d R. 7 — 104(a)(1).

With regard to discovery, the relevant Supreme Court Rules control the pretrial search for matters relevant to the pending litigation once a lawsuit has been filed. (Bruske v. Arnold (1969), 44 Ill. 2d 132.) These rules do not bar all ex parte investigations after a complaint has been filed. (See 87 Ill. 2d Rules 201 through 219.) Defendants attempt to characterize the conduct at issue here as the pursual of depositions without proper notice. However, plaintiffs’ investigators did not seek statements from the employees at the Car-X shops for their information or impeachment value. Rather, when the investigators heard the statement, it was a form of observing conduct. The term “discovery” has been said to refer generally “to disclosure by defendant of facts, deeds, documents or other things which are in his exclusive knowledge or possession and which are necessary to party seeking discovery as a part of a cause of action pending, or to be brought in another court, or as evidence of his rights or title in such proceeding.” (Black’s Law Dictionary 419 (5th ed. 1979).) The statements of the employees at the Car-X shops did not constitute fact within the exclusive knowledge of defendants but rather constituted the conduct at issue in the lawsuit. Defendants have failed to show in what way discovery rules were violated by plaintiffs’ investigators’ conduct.

With regard to the rule of professional responsibility against attorney contact with the opposing party, defendants’ argument depends upon acceptance of the concept that the employees at the Car-X shops were “parties” to the lawsuit. Defendant John Davis was not contacted during investigatory visits, but it is questionable whether defendant Car-X, a corporation, was contacted. Plaintiffs put forth the “control group” test as enunciated in Consolidated Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103. That case held that, with regard to a corporation, the attorney-client privilege is applicable only to those employees within the corporation’s “control group,” which is defined as those top management persons who had the responsibility of making final decisions and those employees whose advisory roles to top management are such that a decision would not normally be made without those persons’ advice or opinion or whose opinions in fact form the basis of any final decision. Clearly, if the “control group” were applied here to corporate parties under Rule 7 — 104, that rule was not violated by the investigators’ contacts with the employees at the Car-X shops.

Our supreme court in Consolidated Coal adopted the “control group” test in the area of attorney-client privilege after balancing the policy of encouraging full and frank consultations between a client and a legal advisor and the policy of maximizing the amount of relevant factual material which is subject to discovery. (89 Ill. 2d 103, 117-19.) That same logic should apply to the concept of “party” for Rule 7 — 104. If a narrower test were used, the goals of Rule 7 — 104 could be nullified for corporate parties. If a broader test were used, too much relevant information would be barred from the fact-finding process. We conclude that the “control group” test should be adopted with regard to corporate parties for the purpose of Rule 7 — 104.

Applying the “control group” test, then, plaintiffs did not violate Rule 7 — 104 because the persons contacted by their investigators, the employees at the Car-X shops, were not shown to have sufficient decision-making or advisory responsibilities within the corporate defendant.

The cases relied upon by defendants for this issue are distinguishable. In Bruske v. Arnold (1969), 44 Ill. 2d 132, an investigator retained by the plaintiff’s counsel obtained a statement from the defendant without notice to the defendant’s attorney. While both Rule 206(a) and the predecessor to Rule 7 — 104 were violated by the conduct in Bruske, the statements obtained here were not “discovered” but observed conduct and the statements were not obtained from a “party.” A similar contrast can be made between the present case and Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc. (75th Cir. 1971), 440 F.2d 1216, where an investigator employed by the plaintiffs interviewed the defendant and his father without proper notice. In Poor v. DiMucci Home Builders, Inc. (1982), 103 Ill. App. 3d 543, 431 N.E.2d 1338, the defendant entered the plaintiffs’ lots and made soil borings without application to the court or notice to the plaintiffs. In addition to the same grounds discussed for Bruske and Trans-Cold, Poor is distinguishable from the present case because the Car-X shops were open for business to customers such as plaintiffs’ investigators, while the lots in Poor were private residences.

Even if the investigators’ conduct here were considered violative of the rules discussed, the trial court’s sanction, striking the motion, was unduly extreme. While Supreme Court Rule 219(c) (87 Ill. 2d R. 219(c)) does permit the striking of a pleading as a permissible sanction for a violation of discovery rules, the sanction approved in Bruske v. Arnold (1969), 44 Ill. 2d 132, Poor v. DiMucci Home Builders, Inc. (1982), 103 Ill. App. 3d 543, 431 N.E.2d 1338, and Trans-Cold Express, Inc. v. Arrow Motor Transit, Inc. (7th Cir. 1971), 440 F.2d 1216, was exclusion of the evidence improperly obtained. The trial court’s action here was not tantamount to such an exclusion because plaintiffs had not yet completed their case-in-chief and because there was some evidence of disparaging statements obtained inadvertently (i.e., Peter Dakuras’ visit to the Car-X shop in Hanover Park on October 17, 1983).

D. INTEGRITY OF PROCEEDINGS.

Defendants contend that the trial court’s decision may be sustained as a proper exercise of its inherent power to control the integrity of the proceedings. That integrity was threatened, defendants argue, when plaintiffs sent two employees to the Aurora shop during the course of the hearing and plaintiffs’ counsel refused to agree to cease such conduct.

A trial court possesses the inherent power to dismiss a cause for failure of a party to take some step as ordered where no sufficient excuse is provided. (Bejda v. SGL Industries, Inc. (1979), 73 Ill. App. 3d 484, 392 N.E.2d 38, aff’d in part, rev’d in part on other grounds (1980), 82 Ill. 2d 322.) However, dismissal for noncompliance with orders of the court is a drastic sanction and is proper only as a last resort where a party has shown a deliberate, contumacious and unwarranted disregard for the court’s authority. (Bejda v. SGL Industries, Inc. (1979), 73 Ill. App. 3d 484, 392 N.E.2d 38.) Here, the trial court had issued no orders prohibiting plaintiffs from further visits to Car-X shops, and those visits did not violate any Supreme Court Rules. .Plaintiffs’ refusal to agree to cease the visits was conditioned upon defendant’s refusal to agree to stop the disparaging comments. The trial court at the hearing where the Aurora visit was disclosed still did not request that plaintiffs stop the conduct that it found improper. In light of these circumstances, the trial court’s action could not be justified under its inherent power to control the integrity of the proceedings.

Dismissal Of Davis

A. JURISDICTION

The motion for a preliminary injunction was orally dismissed as against John Davis only on November 22, 1983, and plaintiffs’ notice of appeal challenges that order as well as the later order striking the motion. Davis earlier moved, on the basis of the lack of jurisdiction, that this court dismiss that part of the appeal challenging the November 22 order, but this court denied his motion. Davis now renews his jurisdictional argument. While plaintiffs suggest that this court’s earlier ruling must stand because no new arguments are raised, it is this court’s duty to reconsider the question of its jurisdiction if an earlier ruling seems to be erroneous. Allabastro v. Wheaton National Bank (1980), 91 Ill. App. 3d 222, 414 N.E.2d 537.

Plaintiffs’ appeal is from two orders which, in effect, denied preliminary injunctive relief. Orders relating to preliminary injunctions are interlocutory orders rather than final ones. (See Smith v. Goldstick (1982), 110 Ill. App. 3d 431, 442 N.E.2d 551.) Supreme Court Rule 307(a)(1) makes interlocutory orders which grant, modify, refuse, dissolve, or refuse to dissolve or modify an injunction appealable as a matter of right if notice of appeal is filed within 30 days. (87 Ill. 2d R. 307(a)(1).) Since the order of November 22, 1983, was not appealed until March 13, 1984, the appeal relating to that order was untimely.

Plaintiffs have pointed out that Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) makes appealable orders that are final as to fewer than all parties only if a finding had been made that there is no just cause for delaying enforcement or appeal and that no such finding was made here. Thus, as plaintiffs would have it, they could not appeal the November 22 order until after the “final interlocutory” order striking the motion as to the remaining defendant has been rendered. However, to be appealable under Rule 304(a), an order must be final in character as well as contain the requisite finding. (Smith v. Golstick (1982), 110 Ill. App. 3d 431, 442 N.E.2d 551.) Since the November 22 order was interlocutory, Rule 307 and not Rule 304 applies.

Nor can this court consider the propriety of the November 22 order within the scope of plaintiffs’ timely appeal of the orders of January 12 and February 22, 1984. An order from which an appeal might have been taken may not be reviewed on appeal from a subsequent order entered in the same cause. (Johnson v. Coleman (1977), 47 Ill. App. 3d 671, 365 N.E.2d 102.) Thus, this court may not consider the dismissal of plaintiffs’ motion for a preliminary injunction as against defendant John Davis.

The appeal from the order of the circuit court of Du Page County dismissing individual defendant Davis from plaintiffs’ motion for a preliminary injunction is dismissed as untimely. The order striking the motion for a preliminary injunction is reversed and remanded for a hearing on the motion, because the conduct by plaintiffs upon which the trial court based its decision was not improper.

Reversed in part, dismissed in part and remanded.

SCHNAKE and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LEE, Defendant-Appellant.
    First District (4th Division)
    No. 83—989
    Opinion filed November 8, 1984.
    Rehearing denied December 13, 1984.

      Steven Clark and Scott Graham, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Mary Ann Sullivan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

A jury in the circuit court of Cook County found the defendant, David Lee, guilty of rape. He was sentenced to a prison term of six years. On appeal, defendant claims that (1) his statement to a court-appointed psychologist during a fitness and sanity examination should have been held inadmissible to impeach his testimony; (2) the misrepresentation to defendant by an assistant State’s Attorney that defendant’s fingerprints had been found in complainant’s apartment rendered his subsequent confession involuntary; (3) the prosecutor’s prejudicial remarks during cross-examination of defendant and closing argument denied defendant a fair trial; and (4) evidence of his demotion in rank while in the army should not have been admitted.

We reverse and remand the case for a new trial.

Facts

At trial, complainant testified that on the evening of November 13, 1981, she and her young daughter had fallen asleep while watching television in the front room of their apartment. Although she was sure she had locked the front door after taking her dog for a walk, she awoke when the dog began barking at a man who had entered the apartment. She struggled with the intruder, but he held a knife to her face, told her to keep quiet, and began pushing her across the room. In the light from the kitchen window, she recognized her assailant as David Lee, a former co-worker of hers at National Van Lines with whom she had maintained contact after he left the company.

Holding the complainant in a headlock, Lee forced her into the bedroom and onto the bed, placed some blankets over her head, and removed her velour shirt and jeans. After forcible intercourse, he pushed her into the closet and told her he would kill her if she came out. When she heard the front door close, she pulled on a robe and awakened her daughter. She first called Robert Buti, her supervisor at work, and then called the police.

According to complainant, she had met Lee when she was assigned to train him as a data processor, and once they had drinks together in the data processing room. Lee had made several unsuccessful advances toward her, and once he came to her home to lend her a book on an unfamiliar computer language she was trying to learn. Complainant testified that Lee’s actions on the night in question were “meaner” than they had ever been in the past.

The remaining evidence in the State’s case pertinent to this appeal was presented through two witnesses, Bob Buti and the felony-review assistant State’s Attorney, who had interviewed defendant after his arrest and obtained his confession. Over objection, Buti related his phone conversation with complainant after her assailant had left the apartment, stating that she had said someone had broken into her apartment. He then described his actions after he and the police arrived at the victim’s apartment. Although Buti recalled noticing that the inside woodwork on the side of the door had come off, the police found no evidence of a forced entry.

The assistant State’s Attorney, who had also testified during the hearing on Lee’s unsuccessful motion to suppress his statement, related that he had been called to come to the Northlake police station to question Lee, who had been transferred from Maywood and was then in the custody of Detective Dilulio. According to the assistant State’s Attorney, he read Lee his Miranda rights, and Lee agreed to make a statement. During the next 20 to 25 minutes, Lee denied being at complainant’s apartment on the night in question. However, when the assistant State’s Attorney said that he had been positively identified and then misrepresented to Lee that his fingerprints had been found on the scene, Lee admitted that he had been in the apartment and went on to make several inculpatory statements, all of which were the subject of his unsuccessful motion to suppress. However, he did not admit to having intercourse with complainant.

Lee’s version of the events of November 13-14, 1981, and of his arrest and questioning was quite different from that presented by the State. Lee testified that he and the complaining witness had had an ongoing sexual relationship during the time they worked together, and they also had intercourse on the night he brought her the programming book. According to Lee, on the night in question he had been drinking with some new acquaintances when he decided to call complainant. She told him to come over in a couple of hours after her daughter had fallen asleep, and said that she would leave the door open. When he arrived, they embraced, went into the bedroom, and undressed. During their lovemaking, complainant suddenly became passive and began talking about Bob Buti, with whom she had been romantically involved.

At this point, Lee testified, he had a flashback to a humiliating experience he had had in an Okinawa brothel during his tour of duty in Vietnam, and he began to abuse the complainant verbally and to treat her roughly. She became upset and ordered him to leave, which he did. Lee subsequently went out of town to attend a funeral, and when he returned several days later to learn that a warrant had been issued for his arrest, he surrendered to the police.

Lee further testified that after he was taken from Maywood to the Northlake police station, he was first placed in a room with six officers; later, he was put in the custody of Detective Dilulio, who handed him a paper and told him to sign it “to save a lot of trouble.” Dilulio then told him he was wanted for raping a white girl.

When the assistant State’s Attorney arrived, he noted the signed waiver form, gave Lee his Miranda warnings, and began the questioning. After Lee persisted in denying that he had been in complainant’s apartment on the night in question, the assistant State’s Attorney offered to continue the questioning in the room with the six officers, and Lee began to fear bodily harm. Finally, when the assistant State’s Attorney told him that he had been positively identified and then knowingly misrepresented to Lee that Lee’s fingerprints had been found in the apartment, Lee broke down and confessed that he had gone to complainant’s apartment and had frightened her into undressing, but he denied having intercourse with her because he had been too intoxicated to achieve an erection.

Although Lee had filed and argued a motion to suppress his confession, the trial court denied the motion on the ground that nothing that had occurred during the questioning would be likely to produce an untrustworthy confession, and under the totality of the circumstances the statement was voluntary.

As part of his defense, Lee offered the testimony of Dr. Robert DeVito, a psychiatrist who had examined Lee after his arrest. According to DeVito, Lee was suffering from post-traumatic stress syndrome, a recognized disorder, most often found in war veterans, that is characterized by “flashbacks” to an earlier stressful situation and resulting behavior patterns inappropriate in the current circumstances. It was DeVito’s conclusion that the original stressor in Lee’s situation was his assignment to graves registration duty during the Vietnam war, a position in which he prepared dead bodies for shipment, sometimes by reassembling dismembered corpses. During this generally stressful period, the humiliating experience at the Okinawa brothel occurred, and it was DeVito’s opinion that Lee could have suffered a flashback during intercourse with complainant. He concluded by stating that in his opinion, on the night in question Lee was able to conform his conduct to the requirements of the law.

In rebuttal, and over vigorous defense objection, the State presented the testimony of Dr. Lisa Grossman, a clinical psychologist who had interviewed Lee at the court’s direction after Lee indicated in his answer to discovery that he might raise an insanity defense. Lee protested that the State was statutorily prevented from introducing his statement to Grossman because he had decided not to raise the defense of insanity. However, the court ruled that Lee “had created the situation” by presenting Dr. DeVito’s testimony, and therefore “fundamental fairness” required that the State be allowed to use his statement to Dr. Grossman for impeachment purposes.

Dr. Grossman then testified that Lee told her that he had been drinking heavily on the evening of November 13. He became increasingly angry at complainant over a problem she had created for him at work. He thought he wanted to beat her up, so he went to her apartment, and she let him in. Lee said that they went into the bedroom, where he put his hand under her robe, but he did not remember anything further except that he heard voices telling him to “get her, kill her, choke her, beat her.” He also commented to Grossman that the pen he carried was a good weapon because it was untraceable.

Following closing arguments, the jury returned a verdict of guilty, and Lee was sentenced to six years of imprisonment. This appeal followed.

Opinion

I

Defendant’s first contention on appeal is that the trial court’s decision to allow the testimony of Dr. Grossman was error sufficiently prejudicial to deny him a fair trial. We agree.

Section 104 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 14(a)) provides:

“Statements made by the defendant and information gathered in the course of an examination or treatment ordered under Section 104 — 13, 104 — 17 or 104 — 20 shall not be admissible against the defendant until he raises the defense of insanity or the defense of drugged or intoxicated condition, in which case they shall be admissible only on the issue of whether he was insane, drugged or intoxicated.”

Contrary to the trial court’s ruling, we do not find that defendant raised the defense of insanity. Instead, the testimony of his expert, Dr. DeVito, was intended to establish that defendant did not have the mental state necessary for the crime of rape. Because rape is a general intent crime that does not require an allegation of a specific mental state (People v. Gold (1967), 38 Ill. 2d 510, 232 N.E.2d 702, cert. denied (1968), 392 U.S. 940, 20 L. Ed. 2d 1400, 88 S. Ct. 2316), the State had to prove that defendant acted (1) with intent to rape, (2) with knowledge that his conduct was that defined as rape, or (3) with reckless disregard for the unjustifiable risk that his actions would constitute rape. Ill. Rev. Stat. 1981, ch. 38, pars. 4 — 4, 4 — 5, 4 — 6.

In his statements to Dr. DeVito and in his testimony at trial, defendant maintained that he and complainant had engaged in consensual intercourse until her comment triggered his flashback, at which point he became rough and verbally abusive. Dr. DeVito’s testimony, therefore, was intended to establish that defendant did not exhibit any of the culpable mental states and that defendant’s claim of consensual intercourse could be compatible with complainant’s accusation of non-consensual intercourse.

Having found that defendant did not raise a defense based on insanity, we are forced to conclude that the trial court’s ruling admitting the testimony of Dr. Grossman for impeachment purposes was a violation of the absolute prohibition contained in the statute quoted above. The restrictions contained in the statute are derived from a defendant’s fifth amendment privilege against self-incrimination (U.S. Const., amend. V) and clearly forbid the use of such statements in any circumstance other than those specifically set forth.

The content of Dr. Grossman’s testimony was so damaging and prejudicial that we cannot say that the outcome of the trial would have been the same absent that testimony. A judgment of conviction will not be reversed merely because error was committed at trial unless it appears that the finding of guilt may have resulted from such error. (People v. Morehead (1970), 45 Ill. 2d 326, 259 N.E.2d 8, cert. denied (1970), 400 U.S. 945, 27 L. Ed. 2d 251, 91 S. Ct. 251.) “Where the evidence in a criminal case is erroneously admitted, such error is presumed to affect the result unless the evidence is such that there is no other conclusion than that of guilt.” (People v. Sisti (1967), 87 Ill. App. 2d 107, 112, 230 N.E.2d 500, 503.) Accordingly, we reverse the conviction of defendant and remand the case for another trial from which testimony concerning the psychiatric examination will be barred unless the statutory requirements are met.

II

Defendant’s second claim on appeal is that the misrepresentation concerning his fingerprints, made by the assistant State’s Attorney during questioning, rendered his confession involuntary and therefore inadmissible. We agree.

Prior to trial, defendant filed a motion to suppress his confession, alleging that the statement had resulted from the impermissible mental coercion of defendant by the assistant State’s Attorney. (People v. Gunn (1973), 15 Ill. App. 3d 1050, 305 N.E.2d 598.) “[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver [of his fifth amendment privilege against self-incrimination] will, of course, show that the defendant did not voluntarily waive this privilege.” (Miranda v. Arizona (1966), 384 U.S. 436, 476, 16 L. Ed. 2d 694, 725, 86 S. Ct. 1602, 1629.) Similarly, the Illinois Supreme Court has established that a confession obtained through trickery is inadmissible. People v. Stevens (1957), 11 Ill. 2d 21, 141 N.E.2d 33.

The test by which the voluntariness of a confession is to be measured is found in People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, 606, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731:

“Whether a statement is voluntarily given depends on the totality of the circumstances. The test is whether it has been made freely, voluntarily and without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed. *** [T]he finding of the trial court that the statement was voluntary will not be disturbed unless it is contrary to the manifest weight of the evidence.”

It is true that, in other contexts, courts have considered the police tactic of misinformation and have found no constitutional violation. (People v. Moore (1981), 105 Ill. App. 3d 264, 434 N.E.2d 300.) Our examination of these cases, however, reveals that of the various subterfuges employed during the questioning process, those deemed harmless involved speculative statements made by the questioner concerning evidence against the defendant. For example, in People v. Boerckel (1979), 68 Ill. App. 3d 103, 385 N.E.2d 815, cert. denied (1980), 447 U.S. 911, 64 L. Ed. 2d 861, 100 S. Ct. 2998, the detective never told defendant that his fingerprints had been recovered from the victim’s residence. “He merely told defendant that some fingerprints had been found and that he believed they could be defendant’s.” (People v. Boerckel (1979), 68 Ill. App. 3d 103, 111, 385 N.E.2d 815, 822.) Similarly, in In re Willis (1980), 89 Ill. App. 3d 347, 411 N.E.2d 1126, the police indicated that they had some fingerprints and that they knew defendant had been at the scene, but they never represented that the fingerprints were those of defendant. In People v. Griffith (1976), 40 Ill. App. 3d 690, 353 N.E.2d 53, the police merely told defendant that fingerprint evidence would reveal whether or not defendant had removed complainant’s underpants, and the misrepresentation that witnesses had seen him occurred only after defendant had admitted having intercourse with the victim.

In contrast, in the instant case, defendant was told positively that his fingerprints had been found in the complainant’s apartment. Such a knowing lie is far more coercive than the speculative statements made in the cited cases. (See People v. Payton (1984), 122 Ill. App. 3d 1030, 462 N.E.2d 543.) Additionally, as noted in Jackson v. Denno (1964), 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, the truth or falsity of the confession is irrelevant insofar as the inquiry into its voluntariness is concerned. Accordingly, we find that the confession made by defendant in response to the knowing misrepresentation made by the assistant State’s Attorney was rendered involuntary and therefore inadmissible.

Ill

Of the several other claims of trial error raised by defendant, we conclude that none standing alone would amount to reversible error. However, we choose to discuss those errors likely to reoccur in a subsequent trial in order to prevent possible further litigation on those issues.

First, the hearsay statements made by complainant to Bob Buti over the telephone should not have been admitted. Although it is true that a victim’s claim of rape made immediately after the attack is admissible as a spontaneous declaration corroborating her accusation of rape (People v. Belcher (1980), 92 Ill. App. 3d 237, 415 N.E.2d 1120), the complainant in the instant case made no claim of rape in her call to Buti. All she said was that someone had broken into her apartment. Without a specific claim of rape, the conversation did not qualify under any other exception to the hearsay rule whereby a prior corroborative statement is admissible, i.e., a recent fabrication or a motive to falsify. (People v. Buckley (1976), 43 Ill. App. 3d 53, 356 N.E.2d 1113.) Further, the statement was not admissible as a spontaneous declaration, since at trial the State did not lay the necessary foundation of an absence of opportunity to fabricate the statement. (See People v. McKee (1977), 52 Ill. App. 3d 689, 367 N.E.2d 1000.) In light of defendant’s assertion that the intercourse was consensual, any improperly admitted evidence tending to show otherwise unfairly prejudiced the defendant.

Next, defendant claims that the trial court erred in overruling his objection to the State’s comment that defendant did not call as witnesses certain doctors to whom he allegedly had told the details of the Okinawa brothel incident during his hospitalization for psychiatric treatment. The names of these potential witnesses were revealed by defendant in his supplemental answer to the State’s request for discovery. It was therefore improper for the State to comment unfavorably on the failure of defendant to produce witnesses equally available to the State, for such remarks unfairly tend to shift the burden of proof to the accused. People v. Nodal (1980), 89 Ill. App. 3d 538, 411 N.E.2d 1087.

It was also improper for the prosecutor to phrase his questions of defendant on cross-examination in such a way that defendant was forced to state by implication that he had committed other criminal acts. For example, although defendant’s objection to the State’s question “And you didn’t go out and rape anyone else, did you?” was sustained, the prosecutor continued by saying, “You never went out and raped anyone in Okinawa?” Similarly, although there was no evidence that defendant had ever used narcotics, the prosecutor asked defendant if he had taken narcotics before going to the police station, thus implying that defendant used narcotics. The prosecution also called defendant a “con-man” for not requesting psychiatric help until after his arrest when “he had the advice of counsel,” and then repeatedly labelled defendant a liar. All of these tactics have been deemed prejudicial error. (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880 (improper implication of other criminal acts); People v. McCommon (1979), 79 Ill. App. 3d 853, 399 N.E.2d 224 (improper mention of narcotics); People v. Broadnax (1975), 26 Ill. App. 3d 67, 325 N.E.2d 23 (improper reference to defendant as a liar).) We have no doubt that the cumulative effect of the foregoing improper comments contributed to defendant’s failure to receive a fair trial. We trust that these and similar errors will not reoccur during retrial of this case on remand.

As to the question asked of defendant regarding his demotion in rank while in the army, we do not agree with defendant that this evidence improperly informed the jury that he was guilty of prior criminal acts. An army demotion can result from many causes and need not be a result of criminal behavior. Since no details of the incident were allowed into evidence, and defendant himself had presented extensive testimony concerning his army career, we do not find the admission of evidence of his demotion to be error.

For all of the foregoing reasons, we reverse the decision of the trial court and remand this cause for a new trial.

Reversed and remanded.

JIGANTI and ROMITI, JJ., concur.


author: JUSTICE WHITE

text:
    GUS A. PAVLAKOS et al., Plaintiffs-Appellants, v. THE DEPARTMENT OF LABOR, Defendant-Appellee.
    First District (3rd Division)
    No. 82—2635
    Opinion filed October 24, 1984.
    Rehearing denied December 7, 1984.

      Burke & Burke, Ltd., of Springfield (John M. Burke, of counsel), for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Orisha K. Zelisko, Special Assistant Attorney General, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiffs, Gus A. Pavlakos and G.H.P. Corporation, appeal from an order of the trial court affirming the decision of the Director of Labor finding plaintiffs liable, pursuant to section 2600 of the Illinois Unemployment Insurance Act (Ill. Rev. Stat. 1979, ch. 48, par. 750), for unpaid contributions, interest and penalties incurred by Metropolitan Nursing Care Service, Inc. (Metropolitan). On appeal plaintiffs contend that: (1) section 2600 violates the equal protection and due process clauses of the Illinois and United States constitutions; (2) the Department of Labor (Department) is barred by the doctrines of estoppel and laches from recovering the unpaid contributions, interest and penalties; and (3) the findings of fact of the Director of Labor are against the manifest weight of the evidence.

On October 5, 1979, plaintiffs agreed to purchase all the assets of Metropolitan, a medical personnel agency which furnished registered nurses, practical nurses, and nurses’ aides to hospitals, nursing homes and private homes. The assets of Metropolitan consisted of telephone numbers and listings, list of customers, list of licensed practical nurses, registered nurses and nurses’ aides, leasehold rights and improvements, logo of Metropolitan, and the interest of Metropolitan in that name and in the name of Metro Nursing, and good will. As consideration for the sale, plaintiffs were to pay certain liens which had been filed against Metropolitan by the FDIC, the Internal Revenue Service and the Illinois Department of Revenue.

Pursuant to sections 6 — 105 and 6 — 106 of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, pars. 6-105, 6-106), plaintiffs sent notice of bulk sale to the creditors of Metropolitan. A notice of bulk sale was also sent to the Department of Labor and received by it on October 17, 1979. The Department did not respond to the notice. Thereafter, on November 12,1979, plaintiffs consummated the sale.

On March 24, 1980, the Department of Labor mailed to plaintiffs a notice of determination and assessment against purchaser or transferee and demand for payment informing plaintiffs that Metropolitan was indebted to the Department for unpaid contributions, interest and penalties; that Metropolitan had failed to pay the amount of the contributions, interest and penalties; and that plaintiffs, as purchasers of all the assets of Metropolitan, were being assessed the sums due. The unpaid contributions, interest and penalties amounted to $99,829.42.

Plaintiffs contend that section 2600 of the Unemployment Insurance Act denies them the equal protection of the laws. However, the briefs submitted by plaintiffs leave this court in doubt as to whether plaintiffs maintain that section 2600 is unconstitutional because it imposes a higher burden on purchasers of businesses indebted to the Department or because it accords preferential treatment to the Department. We therefore address both arguments.

Under traditional equal protection analysis, a statute classifying persons or objects is not unconstitutional because it affects one class and not another, provided that it affects all members of the same class alike and provided that the classification is not arbitrary, but based upon some substantial difference in circumstances properly related to the classification. (Fujimura v. Chicago Transit Authority (1977), 67 Ill. 2d 506, 512, 368 N.E.2d 105.) Furthermore, the legislature may differentiate between persons similarly situated as long as the classification bears a reasonable relationship to a legitimate legislative purpose. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 578, 376 N.E.2d 1382; S. Bloom, Inc. v. Mahin (1975), 61 Ill. 2d 70, 76, 329 N.E.2d 213.) Section 2600 of the Unemployment Insurance Act in relevant part provides:

“The purchaser or transferee shall withhold sufficient of the purchase money to cover the amount of all contributions, interest and penalties due and unpaid by the seller or transferor or, if the payment of money is not involved, shall withhold the performance of the condition that constitutes the consideration for the transfer, until such time as the seller shall produce a receipt from the Director showing that the contributions, interest and penalties have been paid or a certificate that no contributions, interest or penalties are due. If the seller or transferor shall fail to pay such contributions within the 10 days specified, then the purchaser or transferee shall pay the money so withheld to the Director of Labor. If such seller or transferor shall fail to pay the aforementioned contributions, interest or penalties within the 10 days and said purchaser or transferee shall either fail to withhold such purchase money as above required or fail to pay the same to the Director immediately after the expiration of 10 days from the date of such sale as above required, or shall fail to withhold the performance of the condition that constitutes the consideration for the transfer in cases where the payment of money is not involved or is not the sole consideration, such purchaser or transferee shall be personally liable to the Director for the payment to the Director of the contributions, interest and penalties incurred by the seller or transferor up to the amount of the reasonable value of the property acquired by him.” (Ill. Rev. Stat. 1979, ch. 48, par. 750.)

Section 2600 treats purchasers or transferees of businesses which are indebted to the Department alike. These purchasers or transferees are required to withhold part of the purchase money or performance of the condition that constitutes the consideration for the transfer until the seller produces a receipt from the Department showing that the contributions have been paid or a certificate that no contributions are due. If the purchasers fail to withhold the money or other consideration, they will be held liable for the unpaid contributions. All members of the class affected by section 2600 are thus treated similarly.

Plaintiffs maintain that they are similarly situated to purchasers of businesses indebted to the Illinois Department of Revenue pursuant to the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 440 et seq.) or to purchasers of businesses indebted to private individuals. Plaintiffs argue that, pursuant to section 2600, they have a continuing obligation to discover a seller’s indebtedness and to withhold purchase money, unlike purchasers of businesses indebted to private creditors or to the Department of Revenue. Plaintiffs therefore conclude that section 2600 violates the equal protection clause.

Assuming, arguendo, that section 2600 treats similarly situated individuals differently, we believe that the section is nevertheless constitutional because the classification that it creates bears a reasonable relationship to a legitimate legislative purpose. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 578.) The Unemployment Insurance Act was enacted to prevent the spread of unemployment and to lighten its burden. Accordingly, the Act provides for the setting aside of reserves during periods of employment to be used to pay benefits during periods of unemployment. Section 2600 furthers the purpose of the Act by providing that the purchasers of a business which is indebted to the Department shall withhold sufficient of the purchase money to cover the amount of all contributions, interest and penalties due and unpaid by the seller or shall withhold performance of some condition until the seller provides proof of payment of the contributions to the Department. In the event that the seller does not pay the contributions and the purchaser fails to withhold money or performance of a condition, the purchaser will be held liable for the contributions. Section 2600 thus insures that contributions owed the Department are paid by either the sellers or the purchasers of businesses indebted to the Department. We conclude that the classification created by section 2600 is reasonably related to the purpose of the Unemployment Insurance Act.

We next consider whether section 2600 violates the equal protection clause because it accords preferential treatment to the Department. The alleged preferential treatment is that the Department can “ignore a notice of sale and still claim unpaid assessments from a purchaser.” Plaintiffs assert that no other creditor, public or private, is given such treatment.

The functions of the Department include enforcement of the Unemployment Insurance Act with the objective of preventing the spread of unemployment and alleviating its burdens. Enforcement of the Act generates unique operational problems. The Department is required to deal with and collect contributions from countless numbers of employers. Private creditors are not faced with collection problems of such proportions. Additionally, a requirement that the Department respond to every notice of sale sent to the Department or forego unpaid contributions would put an intolerable burden on the Department in light of the fact that purchasers of businesses which are not indebted to the Department may nevertheless send notices of sale to the Department. Further, section 2600 provides a simple process by which the purchaser of a business can avoid liability for moneys owed by the seller under the Act — merely withhold payment until seller produces a receipt showing that contributions have been paid or a certificate that none are due. Lastly, we are mindful of the fact that the contributions collected by the Department are used to alleviate the burdens of unemployed individuals. These considerations lead us to conclude that the difference in treatment accorded to the Department is justified.

Plaintiffs also maintain that the Department is accorded different treatment from that given other taxing agencies. Classifications of governmental entities based upon their functions and activities are frequently made and are clearly proper. (Fujimura v. Chicago Transit Authority (1977), 67 Ill. 2d 506, 513.) Moreover, the Department is not the only agency which is accorded different treatment. Section 5j of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 444j), in pertinent part, provides:

“The purchaser or transferee shall withhold enough of the purchase price to cover the amount of all tax, penalty and interest due and unpaid by the seller or transferor under this Act or, if the payment of money or property is not involved, shall withhold the performance of the condition that constitutes the consideration for the sale or transfer, until the seller or transferer produces a receipt from the Department showing that such tax, penalty and interest have been paid or a certificate from the Department showing that no tax, penalty or interest is due from the seller or transferor under this Act.”

Section 5j nowhere requires that the Department of Revenue respond to a notice of bulk sale before it can assess taxes, penalties and interest against the purchaser of a business indebted to the Department of Revenue. Thus, the Department of Revenue is accorded the same treatment as the Department of Labor.

We conclude that section 2600 of the Unemployment Insurance Act does not deny plaintiffs equal protection of the laws.

Plaintiffs next contend that section 2600 is unconstitutional because it allows the Department to assess contributions, interest and penalties against purchasers of businesses indebted to the Department without prior notice or hearing. Plaintiffs conclude that section 2600 violates the due process clauses of the Illinois and United States constitutions. Due process, unlike some legal rules, is not a technical concept with a fixed content unrelated to time, place and circumstances. (Mathews v. Eldridge (1975), 424 U.S. 319, 334, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 902.) “Due process is flexible and calls for such procedural protections as the particular situation demands.” (Mathews v. Eldridge (1975), 424 U.S. 319, 334, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 902; Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 51, 416 N.E.2d 1082.) In the present case the Department sent plaintiffs a notice of determination and assessment which informed plaintiffs that contributions, interest and penalties owed by Metropolitan were being assessed against plaintiffs pursuant to section 2600 of the Unemployment Insurance Act. The notice further informed plaintiffs that the Department’s assessment would not become final until 20 days from the date of service of the notice and that plaintiffs could file a written protest and demand a hearing from the Department pursuant to section 2200 of the Unemployment Insurance Act (Ill. Rev. Stat. 1979, ch. 48, par. 680). Plaintiffs availed themselves of the opportunity and were given a hearing. At the hearing plaintiffs were represented by counsel and were allowed to introduce testimony and exhibits into evidence. Following the hearing the Director of the Department affirmed the assessment against plaintiffs. Plaintiffs were then entitled to file a complaint for administrative review pursuant to section 2205 of the Unemployment Insurance Act (Ill. Rev. Stat. 1979, ch. 48, par. 685). This they did. We are of the opinion that the procedural protections afforded plaintiffs were such as the situation demanded.

Plaintiffs next urge us to apply the doctrine of estoppel to bar the Department from recovering the contributions, interest and penalties. “[W]here a party by his statements or conduct leads another to do something he would not have done but for the statements or conduct of the other, the one guilty of the expressions or conduct will not be allowed to deny his utterances or acts to the loss or damage of the other party.” (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 447, 220 N.E.2d 415, cert. denied (1967), 386 U.S. 934, 18 L. Ed. 2d 353, 87 S. Ct. 1302.) Our courts have been reluctant, however, to apply the doctrine of estoppel against public bodies. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 447.) “While situations may arise which justify invoking the doctrine of estoppel even against the State when acting in its governmental capacity, [citation] [our courts] have always adhered to the rule that mere nonaction of governmental officers is not sufficient to work an estoppel and that before the doctrine can be invoked against the State or municipality there must have been some positive acts by the officials which may have induced the action of the adverse party under circumstances where it would be inequitable to permit the corporation to stultify itself by retracting what its officers had previously done.” (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 448-49.) In the case at bar, the Department took no positive action to induce plaintiffs to consummate the sale. The Department merely failed to record a lien against the seller and failed to respond to a notice of bulk sale sent by plaintiffs pursuant to the Uniform Commercial Code. The Department was under no duty to record a lien or to respond to the notice of bulk sale. Moreover, receipt of the notice of bulk sale may have led the Department to believe that plaintiffs were aware of the seller’s indebtedness to the Department.

Additionally, whether the principle of estoppel is sought to be applied against a public body or against a private individual, the one asserting the principle must have relied upon the actions or representations of the other and must have had no knowledge or convenient means of knowing the true facts. (Pantle v. Industrial Com. (1975), 61 Ill. 2d 365, 371, 335 N.E.2d 491; Levin v. Civil Service Com. (1972), 52 Ill. 2d 516, 524, 288 N.E.2d 97.) Section 2600 sets forth the procedure which purchasers of businesses indebted to the Department must follow to avoid liability. There was no evidence in the record that plaintiffs consulted or attempted to consult the statutes to gain this information, or that they were dissuaded from doing so. In these circumstances, application of the doctrine of estoppel is inappropriate. Levin v. Civil Service Com. (1972), 52 Ill. 2d 516, 525.

Plaintiffs also urge us to apply principles of laches to bar recovery of the contributions, interest and penalties. Laches has been defined to be “such a neglect or omission to assert a right, taken in conjunction with lapse of time *** and other circumstances causing prejudice to an adverse party, as will operate as a bar in a court of equity.” (Freymark v. Handke (1953), 415 Ill. 360, 366, 114 N.E.2d 349; Perlman v. First National Bank (1973), 15 Ill. App. 3d 784, 305 N.E.2d 236.) We are of the opinion that principles of laches should not apply in the present case. Plaintiffs became liable for the contributions, interest and penalties on November 22, 1979, 10 days after purchase of the assets of Metropolitan. On March 24, 1980, the Department mailed to plaintiffs a notice of determination and assessment informing plaintiffs that the contributions, interest and penalties were being assessed against them. Thus, within five months of purchase the Department asserted its claim against plaintiffs. This period of time does not justify application of principles of laches.

Moreover, it is elementary that ordinary limitations statutes and principles of laches and estoppel do not apply to public bodies under usual circumstances. Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 447.

Lastly, plaintiffs contend that the Director of the Department’s findings of fact are against the manifest weight of the evidence. The Director’s findings of fact are as follows:

1. That plaintiffs purchased all the assets of Metropolitan;

2. Metropolitan was liable for unpaid contributions, penalties and interest to the unemployment compensation fund;

3. Plaintiffs did not withhold sufficient of the purchase money to cover the amount of all contributions, interest and penalties due and unpaid by Metropolitan, and did not obtain a receipt from the Director showing that the contributions, interest or penalties had been paid or a certificate that no contributions, interest or penalties were due.

The record amply supports the Director’s findings of fact. Gus A. Pavlakos, president of G.H.P. Corp., and an individual plaintiff in this case, testified that, on behalf of G.H.P. Corp., he purchased all the assets of Metropolitan and paid the full price for the purchase of the business as indicated by the closing statement. Mr. Pavlakos further testified that neither he nor any other representative of G.H.P. Corp. ever contacted the Department to inquire whether Metropolitan owed any money for unemployment insurance contribution. Lastly, it is uncontroverted that Metropolitan was indebted to the Department for unpaid contributions, interest and penalties. We therefore conclude that the Director of the Department’s findings of fact are not against the manifest weight of the evidence.

For the aforementioned reasons the judgment of the circuit court of Cook County is affirmed.

Affirmed.

RIZZI, P.J., and McNAMARA, J., concur.

      Plaintiffs were allegedly unaware of any outstanding debts to the Department but mailed the notice as a matter of good business practice.

      Metropolitan’s indebtedness to the Department spanned a period of seven years.

      The notice sent by plaintiffs was a notice of bulk sale pursuant to sections 6— 105 and 6 — 106 of the Uniform Commercial Code Bulk Transfers.

      Plaintiffs have cited only the Department of Revenue as an agency accorded nonpreferential treatment.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE GIERBOLINI, Defendant-Appellant.
    First District (4th Division)
    No. 83—3043
    Opinion filed November 15, 1984.
    Steven R. Decker, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Timothy J. Frenzer, and Phillip J. Bartolementi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Jose Gierbolini, appeals from the trial court’s denial of his motion to withdraw his pleas of guilty to two informations, each of which charged him with possession of a controlled substance (heroin) with intent to deliver. (Ill. Rev. Stat. 1981, ch. b&lz, par. 1401(c).) Defendant was sentenced to serve four years in the Department of Corrections on each conviction, the sentences to run concurrently. Defendant contends that the trial court erred in denying his motion to withdraw his guilty pleas and that he was denied the effective assistance of counsel.

I

The defendant entered his pleas of guilty to the informations pursuant to a plea agreement with the State which promised to recommend a sentence of three years’ imprisonment on each plea. The State fulfilled this promise. Prior to entering his pleas, the defendant did not seek the concurrence or conditional concurrence of the trial court to the plea agreement.

Supreme Court Rule 402(d)(3) provides:

“If the parties have not sought or the trial judge has declined to give his concurrence or conditional concurrence to a plea agreement, he shall inform the defendant in open court at the time the agreement is stated as required by paragraph (b) of this rule that the court is not bound by the plea agreement, and that if the defendant persists in his plea the disposition may be different from that contemplated by the plea agreement.” 87 Ill. 2d R. 402(d)(3).

In the course of taking defendant’s pleas, the trial judge advised the defendant that “it doesn’t make any difference how you’re found guilty, whether it’s after a plea or after a trial. It’s a judge who decides what your sentence will be. Now, the attorneys can make recommendations, but I don’t have to follow their recommendations, all I have to do is follow the law, do you understand that?” The defendant stated that he understood. The court then proceeded to inform defendant of the possible penalties for possession of a controlled substance with intent to deliver.

Relying on People v. Collins (1981), 100 Ill. App. 3d 611, 426 N.E.2d 1274, defendant now contends that by not warning him that if he persisted in his pleas of guilty the disposition might be different from that contemplated by the plea agreement, the trial judge failed to comply substantially with Rule 402(d)(3).

In Collins, the court held that where the trial judge has not been consulted regarding a plea agreement, Rule 402(d)(3) requires the judge “to inform the defendant that the court is not bound by the agreement and that ‘if the defendant persists in his plea, the disposition may be different from that contemplated by the plea agreement.’ (Emphasis added.) [Citation.] The rule clearly requires the court to make both explanations and to expressly give the defendant an opportunity to persist in or withdraw the plea.” 100 Ill. App. 3d 611, 613.

In Collins, the court also stated:

“[T]he court fully informed the defendant that it was not bound by the agreement but did not explain to defendant that if she persisted in the plea, a different disposition might be made. The court also failed to ask the defendant if she persisted in or wished to withdraw her plea. Had the court done so, the misunderstanding alleged here [i.e., that the plea agreement was binding upon the court] would not have occurred. As it was, the record was ambiguous as to whether the defendant knew the court did not have to follow the agreement, but thought she could withdraw the plea if the court did not.” 100 Ill. App. 3d 611, 613.

In reviewing the Collins decision, we note that the opinion does not indicate whether the trial judge advised the defendant of the range of possible penalties. In the present case, however, immediately after the defendant acknowledged that the trial court was not bound to follow the parties’ recommendation, the court informed defendant of the possible penalties. In light of these admonishments, defendant’s testimony at the hearing on his motion to withdraw his guilty pleas that he was not aware that he could be given a sentence in excess of the recommended three years is not credible.

In Collins, the reviewing court also held that under Rule 402(d)(3) “the [trial] court must tender to a defendant the opportunity *** to persist in or withdraw a guilty plea entered on a plea agreement after a court *** has explained its right to disregard the agreement and the consequences of its doing so.” (100 Ill. App. 3d 611, 613-14.) Here, after the defendant was advised of the penalties, the court again asked the defendant if he wanted to plead guilty to the informations. In this respect the facts in the case at bar more closely resemble those in People v. Lambrechts (1977), 69 Ill. 2d 544, 372 N.E.2d 641.

In Lambrechts, the trial court advised the defendant that it was not bound by the agreement that the defendant’s attorney had entered into with the State’s Attorney. The defendant acknowledged this warning. At some point later in taking defendant’s plea, the court asked defendant whether he still wished to plead guilty to the charge in the indictment, and the defendant said yes. On appeal, defendant argued that he had been denied due process because he had been sentenced to a substantially longer term than had been recommended by the prosecutor as part of the agreement to plead guilty. The court rejected this argument, concluding that there was no basis upon which to hold that defendant’s guilty plea was not properly accepted.

In our judgment, the supreme court’s decision in Lambrechts requires us to reject defendant’s argument that his guilty plea in the present case was not properly accepted. We note further that the decision in Collins, relied upon by defendant, appears to be inconsistent with an earlier appellate court decision. See People v. Myers (1976), 36 Ill. App. 3d 458, 461-62, 343 N.E.2d 613.

II

Defendant next contends that he was denied his constitutional right to the effective assistance of counsel because his trial attorney failed to file a motion to suppress evidence seized in his apartment.

To prevail on a claim of ineffective assistance of counsel, a defendant must establish clearly both that his attorney was actually incompetent as reflected in the performance of his duties as a trial attorney, and that that incompetence produced substantial prejudice to the defendant such that the outcome of the trial was probably changed. (People v. Albanese (1984), 104 Ill. 2d 504; People v. Martin (1983), 112 Ill. App. 3d 486, 493-94, 445 N.E.2d 795.) Failure of counsel to file a motion to suppress evidence is not per se incompetence. (People v. Henry (1982), 103 Ill. App. 3d 1143, 1146, 432 N.E.2d 359.) Whether or not a motion to suppress should be filed is a matter of trial tactics and almost invariably has no bearing on the issues of competency of counsel. People v. Ortiz (1981), 96 Ill. App. 3d 497, 503, 421 N.E.2d 556.

In the present case, defendant suggests in his brief that “[i]f the motion to suppress [had been filed and] had been successful, based upon an improper entry into the defendant’s apartment, the prosecution would have been prevented from introducing any evidence whatsoever of the defendant’s possession of various controlled substances.” This suggestion is wholly speculative. A claim of ineffective assistance of counsel cannot be based on mere conjecture. People v. Martin (1983), 112 Ill. App. 3d 486, 494, 445 N.E.2d 795.

In our judgment, defendant has failed to demonstrate that his trial counsel was incompetent. Whether a motion to suppress, if filed, would have been successful or not is not so clear as to admit of only the conclusion that the motion would have been successful. (People v. Henry (1982), 103 Ill. App. 3d 1143, 1146-47, 432 N.E.2d 359.) We therefore conclude that defendant has failed to show that a motion to suppress would have been granted or that the outcome of the trial would have been different had such a motion been granted. People v. Ortiz (1981), 96 Ill. App. 3d 497, 503, 421 N.E.2d 556.

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

Affirmed.

LINN, P.J., and JIGANTI, J., concur.


author: JUSTICE McGLOON

text:
      In re PETITION OF ILLINOIS JUDICIAL INQUIRY BOARD (Illinois Judicial Inquiry Board, Petitioner-Appellant, v. Chicago Bar Association et al., Respondents-Appellees).
    First District (1st Division)
    No. 84—266
    Opinion filed November 13, 1984.
    Samuel K. Skinner and Jeffrey R. Tone, both of Sidley & Austin, of Chicago, for appellant.

      John F. McCarthy, of Chicago (Richard William Austin, James W. Collins, Michael A. Pope, Gordon B. Nash, Jr., Kevin M. Forde, and Roseann Oliver, of counsel), for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

The Illinois Judicial Inquiry Board (Board) appeals the dismissal of its petition to enforce a subpoena ad testificandum and duces tecum issued to Thomas Z. Hayward, Jr., former president, Chicago Bar Association (CBA), for records relating to the CBA’s evaluation of the associate judges of the circuit court of Cook County. On appeal the Board argues: (1) the trial court erred in finding the CBA has a qualified privilege in the subpoenaed information which supersedes the Board’s subpoena; (2) the trial court erred in relying on information outside the record; and (3) the trial court erred in not holding an evidentiary hearing.

We affirm.

On May 23, 1983, the CBA issued a report to the chief judge of the circuit court of Cook County evaluating the 138 associate judges who were being considered for retention by the circuit court judges. On June 1, 1983, an article appeared in the Chicago Tribune indicating the report had recommended nine associate judges not be retained. The article named three judges who allegedly received not recommended ratings because “their integrity was questioned.”

The Board’s subpoena sought “all documents in whatever form *** which ‘either directly or indirectly’ reflect actual or potential violations of the Standards of Judicial Conduct ***.” The subpoena also sought all records underlying the recommendations “for non-retention of certain associate judges.”

In response to the Board’s petition for enforcement of the subpoena, the CBA filed a motion to dismiss the petition and a supporting affidavit. The affidavit, executed by Thomas Z. Hayward, Jr., former president of the CBA, states the CBA was established in 1874 and has made recommendations concerning the qualifications of judicial candidates and of judges seeking retention “throughout its history.” The recommendations are made by the CBA’s Committee on Evaluation of Candidates (CEC). The CEC undertakes investigations and hearings regarding the qualifications of candidates. The rules of the CEC specify that all information obtained by the CEC “shall be kept confidential and shall not be disclosed to any person including the candidate.” Every member of the CEC signs an oath of confidentiality not to disclose “any information received from any person or source during the course of the investigation and hearing.” People who supply information to the CEC are assured that the information is confidential. The CEC relies heavily on the right and ability of members of the CBA and other persons to voluntarily and in confidence relate their experiences and opinions of the professional qualifications and capabilities of a candidate. The affiant concluded that the subpoena would “destroy the confidentiality of this information,” impair the effectiveness of the evaluation process, and “may lead to its abandonment.” The Board did not file a counteraffidavit.

First, the Board contends that the trial court erred in finding the CBA has a qualified privilege in the subpoenaed information which supersedes the Board’s subpoena.

In his treatise on evidence, Professor Wigmore has established a four-part test for the creation of a privilege against disclosure of communication. 8 Wigmore, Evidence sec. 2285 (McNaughton rev. ed. 1961):

“(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.”

The unrefuted affidavit submitted by Thomas Hayward clearly satisfies the first two criteria. The affidavit specifies that the CBA pledges confidentiality to each participant in its judicial evaluation process, that the CBA relies heavily on the ability of the participants to advance their opinions and experiences in confidence, and that the CBA may abandon its evaluation if that confidence is eroded. In addressing the third and fourth criteria, we must consider the efficacy of the CBA’s judicial evaluation process and weigh the benefits it offers society against the benefits that would accrue in enforcing the instant subpoena.

However, before we address the public policy issue before us, we wish to stress that both the CBA and the Board are keenly concerned with the betterment of the judiciary in Cook County and the enhancement of public confidence in it. This litigation makes clear that both parties are primarily concerned with the public interest. We are left with the difficult task of determining how that public interest is best served.

We reject the argument put forth by the Board that because the Board was established by the Illinois Constitution to investigate the judiciary (see Ill. Const. 1970, art. VI, sec. 15(b)), the public interest is necessarily best served by enforcing the instant subpoena. The proceedings of the constitutional convention indicate the framers of the constitution envisioned an important role for the public and legal profession in the oversight of the judiciary. Circuit, appellate, and supreme court judges are elected by the public. (Ill. Const. 1970, art. VI, sec. 12(a).) We believe it is axiomatic that the public interest is best served when the electorate is well informed as to the qualifications of judicial candidates.

The delegates to the Illinois Constitutional Convention recognized the particular expertise of lawyers in evaluating the performance of judges as well as the qualifications of judicial candidates. 6 Record of Proceedings, Sixth Illinois Constitutional Convention, 1021-22:

“[TJhere is obviously no group of persons more able to serve the public interest in assuring the selection of an excellent judiciary than lawyers. They are the one group who by constant contact and opportunity to evaluate performance, and personal and professional attitudes and values, can make discriminating judgments as to the qualifications of judges or candidates for judicial office. *** [T]o deny lawyers a constitutional role in the nominating process would be a most incongruous principle.”

With regard to the election of judges, the roles of the public and the legal profession are interrelated. The CBA recommendations can be an important source of information from which the public can make rational decisions. We implicitly recognized this relationship in Anagnost v. Chicago Bar Association (1980), 83 Ill. App. 3d 466, 468, 404 N.E.2d 326:

“Recognizing the responsibility of the legal profession to ensure that qualified judges are elected, defendant has undertaken to make recommendations to the public as to whether a particular candidate is qualified.”

Similarly in Matchett v. Chicago Bar Association (1984), 125 Ill. App. 3d 1004, 1011, 467 N.E.2d 271, we referred to the publication of the CBA recommendations of judicial candidates as an element of the “crucially important” interest in the open public discussion of the “character and qualifications of candidates for public office.” We conclude that any interference with the continued oversight of the judiciary, through the publication of recommendations by organized bar associations, would denigrate the vitality of the public election of judges.

Courts in New York had recognized a public interest privilege in confidential information submitted to judicial nominating committees. These courts concluded that confidentiality is essential to ensure candor in the judicial evaluation process. Baumgarten v. Koch (1978), 97 Misc. 2d 449, _, 411 N.Y.S.2d 487, 489, quoting Lambert v. Barsky (1977), 91 Misc. 2d 443, __, 398 N.Y.S.2d 84, 85:

“ '*** both candidates and those who comment upon their qualifications would be reluctant to be entirely candid if they knew their disclosures were available to the prying eyes of outsiders. Confidentiality and candor are complementary to one another. Destroy one and the other vanishes.’ ”

The instant subpoena seeks sources for published material relating to issues of public interest. Therefore, we believe the instant case is analogous to an attempt to compel a journalist to reveal his sources. Recently, the court in Andrews v. Eli Lilly & Co. (N.D. Ill. 1983), 97 F.R.D. 494, 500-01, citing a wealth of authority, summarized the law regarding journalists’ privilege:

“[T]he lower federal courts have nearly universally concluded that where access is sought to a journalist’s confidential sources, the first amendment will not countenance a breach of confidentiality unless the need for the disclosure is carefully weighed against the injury to the free flow of information that would result from the disclosure.”

We also find the CBA judicial review process to be similar to peer review. Attorneys, including judges, are asked to relate their opinions of the performance of judges and the qualifications of judicial candidates. It has been recognized that professionals would be reluctant to offer candid and frank evaluations of their colleagues without the assurance of confidentiality. (Jenkins v. Wu (1984), 102 Ill. 2d 468; Equal Employment Opportunity Com. v. University of Notre Dame Du Lac (7th Cir. 1983), 715 F.2d 331, 336.) The same rationale would obviously be true in attorneys’ evaluations of judges or potential judges. An attorney would understandably be reluctant to publicly denounce the qualifications of a judge he must later practice before.

Once a qualified privilege is established, the party seeking disclosure must show a “particular need” for the information. Equal Employment Opportunity Com. v. University of Notre Dame Du Lac (7 th Cir. 1983), 715 F.2d 331, 338:

“A party must conduct thorough and exhaustive discovery to exploit each and every possible source of information prior to seeking those materials protected by the qualified privilege. ‘Exploratory’ searches will not be condoned. Similarly, the mere fact that certain information may be relevant or useful does not establish a ‘particularized need’ for disclosure of information. [Citations.] The party seeking disclosure of the privileged information must show a ‘compelling necessity’ for the specific information requested.”

See also Richards of Rockford v. Pacific Gas & Electric Co. (N.D. Cal. 1976), 71 F.R.D. 388, 390.

In the case at bar, the Board has not shown a particularized need for the privileged material. It has not shown how the particular material is crucial to its investigations nor that it has made any attempt to exploit every other possible source of information. It appears from the record before us that the Board has based its subpoena on nothing more than a newspaper article alleging that the CBA report questioned the integrity of three judges. With nothing more upon which to base its demand for compliance, the Board’s subpoena appears to be an “exploratory” search, which is not condoned. Equal Employment Opportunity Com. v. University of Notre Dame Du Lac (7th Cir. 1983), 715 F.2d 331, 338.

We find the authority cited by the Board distinguishable. In Wright v. Patrolmen’s Benevolent Association (S.D.N.Y. 1976), 72 F.R.D. 161, the plaintiff, a judge, had sought to depose the president of the New York Bar Association regarding the association’s investigation about the transfer of the plaintiff to another court. The court rejected the association’s claim of confidentiality because “the sources are known and the information that plaintiff wants to verify and expand is also known.” (72 F.R.D. 161, 164.) The court also noted the claim of confidentiality was eroded by the fact that the association had furnished the report to the plaintiff. 72 F.R.D. 161, 164.

In Board of Ethics v. Temporary State Com. (1973), 41 App. Div. 2d 486, 344 N.Y.S.2d 278, the court, in a three to two decision, compelled the Board to comply with a subpoena issued by the State commission. However, there, the mandate of the state commission was extremely broad, specifically requiring all city departments to supply the commission all “assistance and data as it deems necessary or desirable for the proper execution of its powers and duties.” (41 App. Div. 2d 486, 487, 344 N.Y.S.2d 278, 279.) The Board was mandated in its charter to issue advisory opinions “with such deletions as may be necessary to prevent disclosure of the identity of the officer or employee involved.” (41 App. Div. 2d 486, 488-89, 344 N.Y.S.2d 278, 280.) The majority concluded that because the target of the investigation had been disclosed to the public, “there [was] no further need for secrecy.” 41 App. Div. 486, 491, 344 N.Y.S.2d 278, 283.

The board also cites cases which support the general proposition that privileges should not be expanded because they “are in derogation of the search for truth.” (United States v. Nixon (1974), 418 U.S. 683, 710, 41 L. Ed. 2d 1039, 1065, 94 S. Ct. 3090, 3108.) However, in Nixon, the privilege sought would have worked to keep information secret; unattainable by the public. On the contrary, in the case at bar, the privilege sought by the CBA works to protect a continued source of public information. In short, we must stress that none of the cases cited by the Board involves the same policy interest involved in the publication of the CBA evaluations, namely, protection of public access to information concerning their elected officials and candidates.

Second, the Board contends that the trial court erred in relying on information outside the record.

In its memorandum opinion, the trial court lamented the loss of public confidence in the judiciary in Illinois. The trial judge cited statistics spanning several years regarding the number of complaints filed against judges by the Illinois Courts Commission and the number of judges the CBA has recommended not be retained. The judge concluded the loss of confidence was not justified based on those statistics. The court also criticized the recent Federal investigation regarding corruption in the circuit court of Cook County, which the judge believed contributed to that loss of public confidence. The Board argues these statements indicate the judge impermissively relied on matters outside the record in making his decision.

We have held that even an erroneous finding on a material fact by the trial court will not warrant reversal if there is sufficient factual basis in the record to sustain the judgment. Evanik v. Janus (1983), 120 Ill. App. 3d 475, 486, 458 N.E.2d 962.

In the case at bar, we have concluded that the evidence properly in the record before the trial court was sufficient to sustain the judgment. Therefore, any alleged impropriety in the incorporation of extraneous material in the memorandum opinion of the trial court does not warrant reversal.

Finally, the Board argues the trial court erred in dismissing its petition for enforcement of the subpoena without an evidentiary hearing. The Board urges the cause should be remanded for a hearing to determine “whether the CBA’s assertions have any merit.”

Where the party moving for dismissal files an affidavit, and the other party does not file a counteraffidavit in response, the facts alleged in the movant’s affidavit must be accepted as true. Loughman Cabinet Co. v. C. Iber & Sons, Inc. (1977), 46 Ill. App. 3d 873, 876, 361 N.E.2d 379.

In the case at bar, the CBA filed an affidavit in support of its motion. The trial court held a hearing on the motion. At no time in the litigation did the Board file a counteraffidavit challenging the sufficiency of the CBA’s affidavit, or seek to offer any evidence to refute the averments in the affidavit before the court. Therefore, the Board has accepted the allegations contained in the affidavit. By failing to alert the trial court of a possible question of fact, the Board waived the issue of the existence of a factual dispute. Upper Avenue National Bank v. First Arlington National Bank (1980), 81 Ill. App. 3d 208, 211, 400 N.E.2d 1105.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


text:
    THE MILES KIMBALL COMPANY, Plaintiff-Appellant, v. HORACE ANDERSON et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—1593
    Opinion filed November 13, 1984.

      Don H. Reuben, Samuel Fifer, and Daniel A. Edelman, all of Reuben & Proctor, of Chicago, for appellant.
    No brief filed for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff, Miles Kimball Company, appeals the dismissal of its complaint for declaratory judgment against Horace Anderson (defendant) and the Giftcraft Co. On appeal, plaintiff argues: (1) the trial court erred in dismissing plaintiff’s complaint sua sponte holding it sought an advisory opinion; and (2) plaintiff is entitled to judgment as a matter of law.

We reverse and remand.

For the purposes of adjudicating the instant dismissal, we accept all well-pleaded facts as true. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426, 430 N.E.2d 976.) However, we will not defer to unsupported conclusions of law alleged in the complaint. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426.

According to plaintiff’s complaint, plaintiff sells merchandise by mail order. Plaintiff purchased merchandise from defendant for direct shipment from defendant to plaintiff’s customers. Plaintiff received numerous complaints regarding the nondelivery or late delivery of merchandise plaintiff purchased from defendant. Plaintiff informed defendant of those complaints on several occasions. In late November of 1980, plaintiff informed defendant it no longer wished to do business with defendant. Defendant claimed plaintiff was under a legal obligation to continue purchasing merchandise from defendant. Defendant thereafter threatened to malign the reputation of plaintiff. Plaintiff asserts in its complaint that it is under no legal obligation to purchase merchandise from defendant.

The record before us also includes a letter purportedly authored by defendant addressed to plaintiff’s counsel. The letter, dated September 22, 1982, refers to the “controversy” between plaintiff and defendant. The letter indicates defendant would settle his claims against plaintiff for $150,000. Plaintiff’s complaint was filed on October 25, 1982. Plaintiff filed a request to admit facts which basically sought to verify the allegations in plaintiff’s complaint. Defendant filed a pro se appearance for himself and the defendant company. Defendant has not filed pleadings in the trial court nor a brief in this court. Nevertheless, we will address the merits of the instant appeal. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131, 345 N.E.2d 493.

First, plaintiff argues the trial court erred in holding there was no actual controversy between the parties.

The declaratory judgment remedy should be liberally applied without restriction by unduly technical interpretation. (Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 452, 389 N.E.2d 529.) Although courts will not present opinions on abstract or theoretical matters, there is no requirement that a specific wrong has already been committed for a party to seek declaratory judgment. (Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375, 362 N.E.2d 298.) “The mere existence of a claim, assertion or challenge to plaintiff’s legal interests, in which the ripening seeds of litigation may be seen and which cast doubt, insecurity, and uncertainty upon plaintiff’s rights or status, damages plaintiff’s pecuniary or material interest and establishes a condition of justiciability.” Roberts v. Roberts (1967), 90 Ill. App. 2d 184, 187, 234 N.E.2d 372.

In the case at bar, it is clear that “the ripening seeds of litigation may be seen.” From the documents in the record before us, it appears the parties disagree as to their respective legal obligations. The fact that defendant sent a letter to plaintiff’s counsel referring to the “controversy” between the parties and demanding $150,000 to settle his claim against plaintiff is evidence that an actual controversy exists. (See Armstrong v. Motorola, Inc. (7th Cir. 1967), 374 F.2d 764, 770.) Therefore, we conclude the trial court erred in dismissing plaintiff’s complaint for declaratory judgment.

Second, plaintiff argues he is entitled to judgment as a matter of law. We disagree.

The critical aspect of the controversy before us is whether plaintiff has a contractual obligation to continue to purchase merchandise from defendant. Plaintiff’s bald assertion in its complaint that it has no such obligation is a conclusion of law unsupported by allegations of fact, which we need not accept. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426.) We understand plaintiff’s frustration in dealing with the pro se defendant, who has not filed pleadings. Nevertheless, we believe the interests of justice are best served by allowing defendant an additional opportunity to present his evidence. Therefore, we remand the case and order plaintiff’s complaint for declaratory judgment to be reinstated.

For the foregoing reasons, the judgment appealed from is reversed and the cause is remanded.

Judgment reversed; cause remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.