author: JUSTICE REINHARD

text:
    STEVEN ROBERTS, Plaintiff, v. ROBERT J. HEILGEIST, Defendant and Third-Party Plaintiff-Appellee—(Alan H. Durkee et al., Third-Party Defendants; Behanna and Pasquesi, P.C., Third-Party Defendant-Appellant).
    Second District
    No. 2—83—984
    Opinion filed June 20, 1984.
    Rehearing denied July 20, 1984.

      George W. Spellmire, Thomas P. McGarry, and Stephen R. Swofford, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellant.
    Robert M. B oilman, of Diver, Bollman, Grach & Quade, of Waukegan, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

This interlocutory appeal is brought by third-party defendant, Behanna and Pas.quesi, P.C. (B & P), pursuant to this court’s granting B & P leave to appeal under Supreme Court Rule 308 (87 Ill. 2d R. 308). On appeal, B & P seeks reversal of the trial court’s order denying its motion to dismiss count III of the amended third-party complaint filed by third-party plaintiff, Robert Heilgeist (Heilgeist). In count III of this complaint, Heilgeist seeks contribution from B & P, in the event he is held liable for legal malpractice to plaintiff, Steven Roberts (Roberts). B & P is a law firm, which currently represents Roberts in his malpractice action against Heilgeist. Heilgeist previously represented Roberts, who was the plaintiff in a personal injury action.

The following questions have been certified for review in this interlocutory appeal:

1. Whether an attorney breaches any legal duty to his client by not filing a lawsuit which is barred by the applicable statute of limitations, where the statutory period had already expired at the time that the attorney-was retained.
2. Whether a defendant attorney who is sued in a legal malpractice action based on his former representation of the plaintiff may file a third-party action for contribution against the plaintiff’s present attorneys.
3. Whether public policy prohibits such a third-party action.

On January 27, 1982, Roberts filed a legal malpractice action against Heilgeist alleging that he retained Heilgeist to represent him in a personal injury case and that Heilgeist negligently allowed the statute of limitations to run without filing a suit against Alan and Robert Durkee. Roberts was a passenger in a car driven by Alan Durkee and owned by Robert Durkee at the time it collided with a vehicle owned and operated by Abacue Escobar on August 8,1978.

On February 25, 1982, Heilgeist filed a third-party complaint against the Durkees seeking indemnification and contribution. On February 3, 1983, Heilgeist filed an amended third-party complaint adding count III against B & R This count alleged that B & P substituted its appearance for Heilgeist’s on Roberts’ behalf on May 4, 1981; that B & P “proved-up the case before a jury on September 13, 1982, as to Abacue Escobar, defendant, only”; that as of that date the Durkees had failed to appear (after six months) in the third-party action brought by Heilgeist and were in default in that case; that B & P knew of this failure to appear; that B & P is charged with knowledge that the statute of limitations is “not a bar to the bringing of an action for personal injuries but an affirmative matter to be either waived or pleaded by a tortfeasor;” that B & P was negligent in failing to file suit against the Durkees (even though the statute of limitations had run) and in failing to take steps to locate Escobar and execute the judgment against him; that this negligence damaged Roberts “in that he does not have any money recovery from a tortfeasor ***”; and that Heilgeist is therefore entitled to contribution from B & P under “An act in relation to contribution among joint tortfeasors” (Contribution Act) (Ill. Rev. Stat. 1983, ch. 70, par. 302) for any recovery Roberts obtains against Heilgeist.

On May 6, 1983, B & P filed an amended motion to dismiss count III for failure of Heilgeist to state a cause of action. B & P contended that it had no duty to file a lawsuit that is barred by the statute of limitations; that it had no duty of care to Heilgeist, a nonclient; and that public policy prohibits a third-party action for contribution by a plaintiff’s former attorney against his current attorney, because it denies the plaintiff the right to counsel of his choice. The trial court denied this motion, and certified the above questions for review.

Heilgeist advances two theories under which he believes he is entitled to contribution from B & P. He maintains B & P was negligent in failing to sue the Durkees. He contends that since they may not have raised the statute of limitations as a defense, B & P’s failure to bring suit against them was negligent and contributed to Roberts' failure to obtain recovery from them. He also claims that B & P negligently failed to collect the judgment it obtained for Roberts against Escobar. Heilgeist maintains that this negligent failure to collect the judgment contributed to Roberts’ failure to obtain recovery from any tortfeasor. Heilgeist argues these two negligent acts on B & P’s part entitle him to bring this action for contribution.

The first question we address is whether an attorney has a duty to bring a suit that has been time barred. Third-party liability in contribution can only exist where the party from whom contribution is sought would be liable to the original plaintiff. (Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 349, 459 N.E.2d 935.) Thus, if B & P had no duty to Roberts to bring suit against the Durkees after the statute of limitations had run, then Heilgeist would not be entitled to contribution from B & P for its failure to bring such a suit. No Illinois case appears to have addressed the question whether a plaintiff, or his attorney, must bring a time-barred suit on the chance that the statute of limitations would not be raised as a defense.

“[A] cause of action for legal malpractice arises at the time of the negligent act.” (Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill. App. 3d 455, 459, 304 N.E.2d 677.) In a case where the negligent attorney has allowed a claim to become time barred, the time of the negligent act is the time the client’s cause of action became barred. (15 Ill. App. 3d 455, 459, 304 N.E.2d 677.) Other jurisdictions have held that a legal malpractice plaintiff need not first sue the tortfeasor, and have the tortfeasor raise the statute of limitations, before suing his attorney for malpractice based on the attorney’s allowing the statute to run. (King v. Jones (1971), 258 Ore. 468, 472-73, 483 P.2d 815, 818; Walker v. Porter (1974), 44 Cal. App. 3d 174, 177, 118 Cal. Rptr. 468, 470; Fuschetti v. Bierman (1974), 128 N.J. Super. 290, 294-96, 319 A.2d 781, 783-84; Hege v. Worthington, Park & Worthington (1962), 209 Cal. App. 2d 670, 676-77, 26 Cal. Rptr. 132, 135.) The Oregon Supreme Court stated, in King v. Jones, that the argument that the tortfeasor might not raise the statute of limitations “is too speculative and unrealistic for serious consideration.” (King v. Jones (1971), 258 Ore. 468, 473, 483 P.2d 815, 818.) We agree. Requiring a plaintiff to sue the tortfeasor first, to determine if the statute of limitations defense would be raised, would impose a useless burden on a plaintiff. In essence, it would require a plaintiff to bring suit in the hope that the tortfeasor, or his attorney, would be negligent in failing to raise the statute of limitations defense. We discern no useful purpose in requiring such extra, and almost certainly fruitless, litigation.

Since we hold that a plaintiff need not bring suit against the tortfeasor, where the statute of limitations has run as to the tortfeasor, prior to bringing suit against his former attorney for allowing the statute of limitations to run, we likewise hold that plaintiff’s attorney would normally have no duty to his client to bring such a suit. B & P under the pleadings here has no duty to Roberts to bring suit against the Durkees, cannot be liable to Roberts for not filing suit against the Durkees and, therefore, is not liable to Heilgeist for contribution arising from a failure to sue the Durkees. (See Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 459 N.E.2d 935.) The fact, as alleged by Heilgeist, that the Durkees failed to answer his third-party complaint against them, is an insufficient factual basis to show that they would not raise the statute of limitations in a suit brought against them by Roberts. Under the facts alleged, B & P had no duty to bring suit against the Durkees.

The next question we address is whether Heilgeist could seek contribution from B & P on the alternate basis of B & P’s failure to collect the judgment obtained against Escobar.

The Contribution Act provides for a right of contribution “*** where 2 or more persons are subject to liability in tort arising out of the same injury ***.” (Ill. Rev. Stat. 1981, ch. 70, par. 302.) Heilgeist, therefore, may obtain contribution from B & P if he shows that Roberts suffered a common injury, which Heilgeist’s acts and those of B & P combined to bring about, and for which each is subject to liability in tort. (Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 349, 459 N.E.2d 935.) If Heilgeist were to make such a showing, then B & P could be held to contribute its “pro rata share of the common liability as measured by the extent to which [its] acts or omissions, whatever their nature, proximately caused the injury.” (99 Ill. 2d 344, 349, 459 N.E.2d 935.) Contribution is allowed “where co-tortfeasors are concurrent [citations] or successive [citation] as long as the same injury is involved.” (Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App. 3d 914, 918, 444 N.E.2d 504.) Thus, Heilgeist would be entitled to contribution only if the injury caused by his negligence were the same injury as that caused by B & P’s negligence.

Heilgeist contends that the common injury is Roberts’ failure to obtain any recovery arising from the automobile accident in which he was involved. However, Heilgeist’s liability arises, not from the accident, but from the injury he caused Roberts by failing to bring suit against the Durkees within the statute of limitations. This injury is the loss of the cause of action against the Durkees due to the time bar. (See Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill. App. 3d 455, 459, 304 N.E.2d 677.) The injury allegedly caused by B & P is the subsequent failure to collect a judgment against Escobar. Thus, the damage Heilgeist caused was the loss of a cause of action against separate tortfeasors, the Durkees, while the alleged injury caused by B & P related to a different cause of action against another tortfeasor, Escobar. Therefore, the respective liabilities of Heilgeist and B & P do not arise from the same injury. Since a common injury is required for contribution (Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 349, 459 N.E.2d 935), Heilgeist is not entitled to contribution on this basis.

The third question certified by the trial court is whether public policy considerations prevent a malpractice plaintiff’s former attorney, who is the defendant in the malpractice action, from seeking contribution in that action from the plaintiff’s current attorney. Since we have decided that B & P is not liable to Heilgeist for the reasons stated above, we note only that there is substantial merit to the rationale of other courts that have considered this question and have held that because of the potential for conflicts of interest and because of the possible impingement on the undivided loyalty owed to the client, suits by a former lawyer against a current or succeeding lawyer contravene public policy. Hughes v. Housely (Utah 1979), 599 P.2d 1250, 1254; Held v. Arant (1977), 67 Cal. App. 3d 748, 752, 134 Cal. Rptr. 422, 424; see also R. Mallen & V. Levit, Legal Malpractice sec. 82 (2d ed. 1981).

For the foregoing reasons the order of the circuit court of Lake County denying B & P’s motion to dismiss is reversed and the cause remanded with directions to dismiss count III of Heilgeist’s third-party complaint with prejudice.

Reversed and remanded with directions.

HOPF and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
      In re MARRIAGE OF CAROLYN A. DAVIS, a/k/a Carolyn A. Freeman, Petitioner-Appellant, and GERALD C. FREEMAN, Respondent-Appellee.
    Third District
    No. 3—83—0065
    Opinion filed June 22, 1984.

      Raymond L. Huff, of Peoria, for appellant.
    Franklin L. Renner, of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The petitioner, Carolyn A. Davis (former Carolyn A. Freeman), appeals from the trial court’s order terminating the obligation of the respondent, Gerald C. Freeman, to pay maintenance as of the date of the petitioner’s remarriage pursuant to section 510(b) of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1981, ch. 40, par. 510(b) (hereafter the IMDMA).

A brief review of the facts is necessary before we address the issue in this case. On March 18, 1982, the petitioner and respondent were granted a judgment of dissolution of marriage with all ancillary aspects reserved for subsequent hearing. On May 3, 1982, the Honorable Stephen J. Covey, Chief Judge of the Tenth Judicial Circuit, entered an order entitled “Judgment for Disposition of Property, Custody, Child Support, Visitation and all Other Pending Matters” (hereafter Initial Order). Paragraph C of the Initial Order of May 3, 1982, provided:

“C. For maintenance of the Petitioner, the Respondent shall make payments to her for a period of thirty-six (36) months in the following manner: the sum of Seven Hundred and Fifty Dollars ($750) during the period of time she is receiving unemployment insurance payments and Eight Hundred and Fifty Dollars .($850) per month when said payments terminate except that such payments shall cease upon the remarriage of the Petitioner, death of either party, continuous cohabitation with another person by Petitioner or upon further order of Court after a change in economic status of either party justifies a change. Such payments are solely for the maintenance of the Petitioner.”

The petitioner filed a post-trial motion and an amendment to post-trial motion. In the post-trial motion and at hearing, the petitioner asserted certain inequities in the distribution of property by the Initial Order of May 3, 1982. Among the petitioner’s assertions was that she should have been awarded a greater share of the property before the court awarded maintenance and that the maintenance award should have been an award in gross to insure its receipt, to offset the disproportionate distribution of property to the respondent, and to change the tax consequences.

On June 24, 1982, Judge Covey entered a “Modified Judgment for Disposition of Property, Custody, Child Support, Visitation and all Other Pending Matters” (hereafter First Modified Order). Paragraph C of the First Modified Order provided:

“C. For maintenance in gross of the Petitioner the Respondent shall pay the- sum of Twenty-seven Thousand Dollars ($27,000) at the rate of Seven Hundred and Fifty Dollars ($750) per month for a total of thirty-six (36) months.”

All other property disposition provisions of the Initial Order entered May 3,1982, were retained.

On July 9, 1982, Judge Covey entered an order entitled “Second Modified Judgment for Disposition of Property, Custody, Child Support, Visitation and all Other Pending Matters” (hereafter Second Modified Order). Paragraph C of the Second Modified Order provided:

“C. For maintenance in gross of the Petitioner the Respondent shall pay the sum of Twenty-seven Thousand Dollars ($27,000) at the rate of Seven Hundred and Fifty Dollars ($750) per month for a total of thirty-six (36) months. Said payments to be terminable upon the death of either Petitioner or Respondent. First payment to be made on May 5, 1982, and on the 5th of each month thereafter until paid in full.”

All other property disposition provisions of the First Modified Order entered June 24,1982, were retained.

On August 21, 1982, the petitioner remarried. The respondent did not pay the September installment of the maintenance award. On December 17, 1982, the respondent filed a petition to terminate the maintenance obligation. On December 21, 1982, the Honorable Donald C. Corn-son, found “[t]hat the Petitioner was remarried on August 21, 1982, and pursuant to Section 510(b) of Chapter 40 of the Illinois Revised Statutes, the Respondent’s obligations to pay maintenance to the Petitioner terminated on that date.” Judge Courson entered an order providing that “[t]he maintenance to be paid by the Respondent to the Petitioner is terminated as of August 21, 1982.” It is from that order that the petitioner appeals.

Section 504(b) of the IMDMA (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)) provides that “maintenance *** may be in gross ***.” Section 510(b) (Ill. Rev. Stat. 1981, ch. 40, par. 510(b) provides that “the obligation to pay future maintenance is terminated upon *** the remarriage of the party receiving maintenance ***.” The issue in the instant case requires that we construe these statutory provisions. We must ultimately determine whether the maintenance in gross awarded the petitioner in the Second Modified Order under section 504(b) is future maintenance which, pursuant to section 510(b), must terminate upon remarriage.

As a preliminary matter, we note that both section 504(b) and section 510(b) of the IMDMA were amended in 1982. Section 510(b) was amended by Public Act 82 — 194, effective January 1, 1982. (1981 Ill. Laws 1130.) Section 504(b) of the IMDMA was amended twice in 1982; first by Public Act 82 — 566, effective January 1, 1982 (1981 Ill. Laws 2850), and a second time by Public Act 82 — 716, effective July 1, 1982. (1981 Ill. Laws 716.) Article III of the 1982 Revisory Act resolved these multiple actions of the 82nd General Assembly. (1982 Ill. Laws 231.) While the effective date of the 1982 Revisory Act was July 13, 1982, it was not intended to make substantive revisions in the law and its effective date was not intended to prevail over the July 1,1982, effective date of Public Act 82 — 716.

The dates and language of the amendments, their relationship to the orders in this case, and other dates important to our consideration are presented below in chronological order:

September 25,1981 - Petition for dissolution of marriage, filed by petitioner;
January 1,1982 - Effective date of Public Act 82 — 194, adding the following indicated language to section 510(b) of the IMDMA (Ill. Rev. Stat. 1981, ch. 40, par. 510(b)):
“(b) Unless otherwise agreed by the parties in a written separation agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance ***.” (Additions indicated by underlining.) (1981 Ill. Laws 1130.)
March 18,1982 - Entry of judgment of dissolution of marriage;
May 3,1982 - Entry of Initial Order;
June 24,1982 - Entry of first Modified Order;
July 1,1982 - Effective date of Public Act 82 — 716, adding the following indicated language to section 504(b) of the IMDMA (Ill. Rev. Stat. 1981, ch. 40, par. 504(b):
“(b) The maintenance order shall be in such amounts and for such periods of time as the court deems just, made without regard to marital misconduct and may be in gross or for fixed or indefinite periods of time and the maintenance may be made from the income or property of the other spouse after consideration of all relevant factors, including: ***.” (Additions indicated by underlining.) (1981 Ill. Laws 3817.)
July 9,1982 - Entry of the Second Modified Order;
August 21, 1982 - Petitioner was remarried;
December 27,1982 - Entry of order terminating maintenance in gross award as of August 21, 1982; and
January 20,1983 - Notice of appeal filed by petitioner.

We must determine, among other matters, whether sections 504(b) and 510(b) as amended properly apply to the case at bar.

In In re Marriage of Mass (1981), 102 Ill. App. 3d 984, 1002, 431 N.E.2d 1, 13, the court held that the amendment of section 510(b) by Public Act 82 — 194 was intended by the legislature to clarify the original legislative intent of the paragraph which existed when the IMDMA was enacted in 1977. The Mass court held, therefore, that the provisions of section 510(b) as amended were fully applicable to proceedings conducted prior to the effective date of the amendment. Likewise, the provisions of section 510(b) as amended are fully applicable to the proceedings in this case. See Krug-Etheridge v. Krug (1982), 111 Ill. App. 3d 780, 783, 444 N.E.2d 690, 692.

The above reasoning also applies to the amendment of section 504(b). As discussed below, there has been disagreement between the districts of our appellate court as to whether section 504(b), prior to amendment by Public Act 82 — 716, authorized awards of maintenance in gross. We believe that the amendment of section 504(b) by Public Act 82 — 716 was intended by the legislature to clarify the original legislative intent of that section as it existed when the IMDMA was enacted in 1977. Therefore, the provisions of section 504(b) as amended are fully applicable to the proceedings in this case conducted prior to the effective date of the amendment. We hold that the amendments to section 504(b) and to section 510(b) are fully applicable in this appeal.

Having determined that sections 504(b) and 510(b) as amended are applicable to the case at bar, we may now address the merits of this appeal. The petitioner argues that the award of maintenance in gross in the Second Modified Order is equivalent to nonmodifiable alimony in gross and is not future maintenance. Therefore, the petitioner asserts, section 510(b) was not authority for terminating the maintenance in gross award upon her remarriage. The respondent argues in response that the award of maintenance in the Second Modified Order is modifiable and therefore all installments of the maintenance award due after the petitioner’s remarriage were properly terminated by operation of law pursuant to section 510(b) of the IMDMA.

We must initially determine whether, under the facts and orders in the case at bar, the petitioner is correct in her assertion that maintenance in gross under section 504(b) is equivalent to awards of non-modifiable alimony in gross.

It was not until July 1, 1982, when section 504(b) was amended by Public Act 82 — 716, that the IMDMA specifically authorized awards of maintenance in gross. While the IMDMA does not define maintenance in gross and we are unaware of any cases defining that phrase subsequent to the amendment of section 504(b), we may turn to cases decided before the IMDMA was passed for assistance in determining the characteristics of maintenance in gross.

Prior to October 1, 1977, the effective date of the IMDMA, there were four distinct methods by which a divorced spouse could make support payments. These four methods were: periodic alimony, alimony in gross (also called lump sum settlement in lieu of alimony), property settlement payments (also called lump sum settlement in lieu of all the wife’s interests), and contractual support. (In re Marriage of Mass (1981), 102 Ill. App. 3d 984, 994-98, 431 N.E.2d 1, 8-11.) Only the first two methods, periodic alimony and alimony in gross, are important to this case.

Periodic alimony, now called maintenance, was defined as an allowance in a divorce decree carved out of one spouse’s estate for the support of the other. (Adler v. Adler (1940), 373 Ill. 361, 369, 26 N.E.2d 504, 508, cert. denied (1940), 311 U.S. 670, 85 L. Ed. 430, 61 S. Ct. 29.) The distinguishing characteristic of periodic alimony was that it was for an indefinite period of time. (Walters v. Walters (1950), 341 Ill. 561, 567, 94 N.E.2d 726, 729, aff'd (1951), 409 Ill. 298, 99 N.E.2d 342.) Since periodic alimony was based on the spouse’s common law duty to support the other, the payments could be changed or terminated by a court upon a “change in circumstance” of the husband or wife. The obligation usually terminated on the death of the obligor or the recipient, and future installments were never a charge on the obligor’s estate. (Ihle v. Ihle (1981), 92 Ill. App. 3d 893, 895, 416 N.E.2d 366, 368.) It was a mere expectancy which could not vest until the day of payment. Walters v. Walters (1950), 341 Ill. App. 561, 581, 94 N.E.2d 726, 735 (Niemeyer, P.J., specially concurring).

Alimony in gross was distinguishable from periodic alimony because it took the form of an order to pay the recipient a definite sum of money. It was payable absolutely and not conditionally or contingently, in a single payment or in installments, and was a vested right in the beneficiary from the date the decree was entered. (Walters v. Walters (1950), 341 Ill. App. 561, 581, 94 N.E.2d 726, 735 (Niemeyer, P.J., specially concurring).) Alimony in gross was not modifiable; it could not be changed or terminated by a court due to a “change in circumstance” of the parties. In re Marriage of Mass (1981), 102 Ill. App. 3d 984, 994-95, 431 N.E.2d 1, 8.

The most important distinction between periodic alimony and alimony in gross was that the latter could not be changed by a court due to a “change in circumstance” of the parties, while periodic alimony was modifiable.

An analysis of the maintenance provisions of the Initial Order and the First and Second Modified Orders utilizing the above distinction reveals that the First and Second Orders have the characteristics of alimony in gross, rather than periodic alimony. In both modifications, Judge Covey used the phrase “maintenance in gross.” He ordered the respondent to pay a definite total sum of money ($27,000), in a definite number of installments (36), until paid in full. Finally, he did not retain the sentence from the Initial Order terminating the maintenance award upon the petitioner’s remarriage.

There is additional support in the record for the view that when Judge Covey used the phrase “maintenance in gross,” he meant the award to have the same characteristics as “alimony in gross.” The court found that the respondent was an able-bodied person capable of paying maintenance to the petitioner and that the petitioner was a college graduate who was employable, even though she had been unemployed for 20 years prior to the divorce. When Judge Covey modified the Initial Order in response to the petitioner’s request for more property, the only changes he made pertained to the maintenance award. The provisions pertaining to disposition of property, custody, child support, and visitation were not changed. It seems apparent that Judge Covey’s purpose in making those changes was to insure that the petitioner would receive a definite, nonmodifiable sum of money that could be used for her rehabilitation and to enable her to become self-supporting.

Next, we must determine whether Judge Covey’s award of maintenance in gross terminated on the petitioner’s remarriage pursuant to section 510(b) of the IMDMA. In this regard, section 510(b) must be read in conjunction with section 504(b).

We are unaware of any cases interpreting section 504(b) as amended by Public Act 82 — 716 and section 510(b) as amended by Public Act 82 — 194 that have determined whether awards of maintenance in gross are terminated by operation of law upon the recipient’s remarriage.

Subsequent to the passage of the IMDMA in 1977, it was unclear whether maintenance in gross/alimony in gross awards were authorized by the Act. (See Ill. Ann. Stat., ch. 40, par. 504, Supplement to Historical and Practical Notes, at 83-84 (Smith-Hurd 1983).) Section 18 of the prior act, “An Act to revise the law in relation to divorce” (Ill. Rev. Stat. 1975, ch. 40, par. 19), entitled the recipient to receive the unpaid installments of any settlement in lieu of alimony ordered to be paid or conveyed in the decree regardless of the death of either party or remarriage of the recipient. That led this court to hold in Ihle v. Ihle (1981), 92 Ill. App. 3d 893, 896-97, 416 N.E.2d 366, 369, that the absence of such a provision effectively eliminated alimony in gross, although section 504(b) did provide and still provides that maintenance should be “in such amounts and for such periods of time” as a court deems just.

We believe that the amendment to section 504(b) of the IMDMA, for the first time since 1977, gives courts statutory authority to award maintenance in gross. Section 504(b) as amended provides that maintenance may be in gross. As previously noted, the nomenclature of the IMDMA does not include the term alimony. Instead the Act refers to maintenance (Ill. Rev. Stat. 1981, ch. 40, par. 504), a term previously considered the equivalent to periodic alimony. Ihle v. Ihle (1981), 92 Ill. App. 3d 893, 896, 416 N.E.2d 366, 369.

We interpret maintenance in gross as provided for in new section 504(b) to be equivalent to alimony in gross. By definition, awards of maintenance in gross are not modifiable. Therefore, even in the absence of a separate written separation agreement by the parties, the provision in section 510(b) terminating a spouse’s obligation to pay future maintenance upon the recipient’s remarriage does not apply to maintenance in gross. Section 510(b) does not state that all maintenance (periodic maintenance, maintenance in gross, property settlement payments, and contractual support), terminates upon remarriage. Rather, section 510(b) is specifically limited to “future maintenance.” If we were to interpret section 510(b) as terminating all maintenance, including maintenance in gross, upon remarriage in the absence of a written separation agreement by the parties stating otherwise, then section 510(b) would effectively eliminate what section 504(b) as amended now specifically authorizes.

The respondent argues that Judge Courson’s interpretation and construction of the Second Modified Order must be upheld unless it is found to be contrary to the manifest weight of the evidence. However, a question of law is involved here. We do not believe that Judge Courson misinterpreted the facts in this case. Rather, Judge Courson interpreted section 510(b) of the IMDMA to mean that all maintenance terminates on remarriage unless parties agree otherwise in a written separation agreement set out in the judgment or otherwise approved by the court. We believe that he erred.

At the final hearing on December 21,1982, Judge Courson stated:

“THE COURT: *** Status of the law is that unless agreed by the parties, written, set forth in the judgment, or otherwise approved by the Court, I think that it means the parties have to agree that maintenance is going to continue beyond marriage.
In reviewing the judgment orders before the Court, these were not the result of agreements between the parties. We’re under the law that exists at this time, I don’t think the Court has any choice to deem subsequent to August 21, 1982, the obligation to pay maintenance ceases. That would be the ruling of the Court on those particular matters.
Now—
MR. HUFF: [Petitioner’s Attorney] I thought the statute indicates or otherwise approved by the Court?
THE COURT: Agreement set forth in writing or agreement otherwise approved by the Court. It has to come by way of agreement by the parties. That’s my understanding of the law. And I think maintenance payments are terminated by operation of law when the marriage to Mr. Davis took place on August 21st. That would be the September payment and all subsequent payments.”

Obviously, Judge Courson considered the language in section 510(b) which terminates future maintenance on remarriage without also giving consideration to the language in section 504(b), as amended by Public Act 82 — 716, which specifically authorizes maintenance in gross. We do note, though, that at the final hearing there were several matters before Judge Courson in addition to the question of terminating the maintenance award. Judge Courson simply summarily addressed the maintenance issue according to his interpretation of section 510(b).

In its Second Modified Order, Judge Covey ordered that the respondent pay maintenance in gross to the petitioner at the rate of $750 per month for a total of 36 months. Allowing the respondent to meet his obligation over a period of three years does not transform the nature of the award from maintenance in gross to future maintenance. It would be a harsh rule that would require one spouse to pay the full amount at one time for the award to qualify as nonmodifiable maintenance in gross. If this were the rule it would, in effect, deprive one spouse of maintenance in gross if the other spouse could not meet the entire obligation in one payment. (Walters v. Walters (1950), 341 Ill. App. 561, 571, 94 N.E.2d 726, 730-31.) Even though the payment of the amount awarded as maintenance in gross is postponed and is to be made in installments, we believe and hold that the right to the whole award vests in the beneficiary on the entry of the decree. Walters v. Walters (1950), 341 Ill. App. 561, 579, 94 N.E.2d 726, 734 (Niemeyer, P.J., specially concurring).

Finally, we turn to the provision in the Second Modified Order terminating the installments on the death of either party. This “death contingency” was the only substantive change made by Judge Covey from the First Modified Order. The record indicates that it was added solely for tax purposes.

Under section 215 of the Internal Revenue Code, the payor spouse is allowed to deduct maintenance payments if they are includible in the gross income of the recipient spouse under section 71. (I.R.C. secs. 215, 71 (1984).) However, where payments under a decree are to be paid over a period of 10 years or less from the date of the decree, they are generally not includible under section 71 in the recipient spouse’s gross income. An exception exists if the payments are subject to any one or more of the contingencies of death of either spouse, remarriage of the recipient, or change in the economic status of either spouse, and the payments are in the nature of alimony or an allowance for support. Treas. Reg. sec. 1.71 — 1(d)(3)(i) (1984).

As stated above, the main reason that Judge Covey modified the Initial Order was to award the petitioner a definite, nonmodifiable sum of money. It is also apparent that an attempt was made to provide the respondent with a tax benefit by adding the death contingency in the Second Modified Order. We have already determined that the maintenance in gross award made by Judge Covey has the same characteristics as past awards of alimony in gross. Yet, if the death contingency is given effect it will terminate the installment payments on the maintenance in gross award on the death of either party. Therefore, since maintenance in gross by definition is nonmodifiable, the death contingency must fail.

The order of the circuit court of Peoria County entered December 27, 1982, terminating the respondent’s obligation to pay the balance due on the maintenance in gross award, as of the date of the petitioner’s remarriage, is reversed, and the cause is remanded for hearing on the allowance and award to the petitioner of attorney fees and court costs.

Reversed and remanded.

STOUDER, P.J., and HEIPLE, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
      In re MARRIAGE OF ROBERT LORD, Petitioner and Counterrespondent-Appellant, and ARLENE LORD, Respondent and Counterpetitioner-Appellee
    Second District
    No. 2—83—0505
    Opinion filed June 20, 1984.

      Richard L. Lucas, of Addison, and Ann S. Kenis and Marilyn F. Longwell, both of Kerr & Longwell, of Chicago, for appellant.
    Dann Duff, of Loftus, Riggs, Redmond & Duff, Ltd., of Addison, for ap-pellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Robert Lord appeals from a supplemental judgment entered in a dissolution-of-marriage proceeding. He contends that the trial judge abused his discretion in reserving maintenance until March 1985, erred in distribution of the marital property, and erred in ruling on attorney fees.

I

A preliminary question, which has not been raised by the parties, is whether the judgment reserving maintenance is appealable. Our analysis of' the recent supreme court case of In re Marriage of Leopando (1983), 96 Ill. 2d 114, is central to this.

Leopando decides that only a single claim is presented in a proceeding for dissolution of marriage; and that other issues such as custody, property disposition, maintenance, support, and attorney fees, are not separate claims, but rather interrelated issues which are merely ancillary to the cause of action. 96 Ill. 2d 114, 119.

The supplemental decree entered here on April 28, 1983, found, based on medical testimony, that Arlene Lord has consistently shown symptoms of Raynaud’s disease, and that she “might develop a disabling collagen disease within ten (10) years of the initial symptom and that this disease, if it is to occur, should be apparent by 1985.” The court found that if she did develop the disease the amount of marital property assigned to her would not be adequate to support her without assistance from Robert Lord. Based on these findings the court ordered:

“That maintenance for ARLENE LORD is reserved and may be set in the future if she shall be found within the time from entry of Judgment until March, 1985, to be suffering from a known collagen disease or other potentially disabling condition resulting from or associated with Raynaud’s disease or Ray-naud’s phenomena.”

The reservation of maintenance has statutory authority based on the agreement of the parties or motion of either party and a finding by the court that appropriate circumstances exist. (Ill. Rev. Stat. 1983, ch. 40, par. 401(3); see also In re Marriage of McNeely (1983), 117 Ill. App. 3d 320, 329.) While the authority to reserve issues does not directly speak to finality and appealability, we consider that it does so indirectly. Where jurisdiction is appropriately reserved, the public policy against fragmented litigation referred to in Leopando (In re Marriage of Leopando (1983), 96 Ill. 2d 114, 119-20) will not be significantly undercut by granting finality to the judgment. (Cf. In re Marriage of Parks (1984), 122 Ill. App. 3d 905, 908.) In Parks, the trial court resolved all issues over which it had in per-sonam jurisdiction. The fact that it reserved substantial issues, including distribution of property, maintenance and child support, which it lacked personal jurisdiction to adjudicate, was held to distinguish Leopando, and the judgment was found to be final and appealable.

We perceive a parallel policy here. The reservation of jurisdiction here was neither arbitrary nor designed solely for convenience, but was motivated by a legitimate concern for Arlene’s circumstances which may not have been able to be dealt with in any other manner. As in Parks, the circumstances of this case are also unique. There is a finding that a party has organic symptoms of a disease which may or may not manifest itself in a disabling disease, but that question is determinable, based on expert medical testimony, within a certain period of time. Implicitly, the trial court is finding that no maintenance is justified under the present circumstances but that if the condition develops the distribution of property would be inadequate to protect the ■wife. If properly based, the' trial court’s decision would appear to be the wise one. On the other hand it would be extremely unfair to the husband, should the order be shielded from appellate review for a considerable period of time if, in fact, the court’s discretion has not been properly exercised.

In Leopando, the appeal of questions of custody was protected by Supreme Court Rule 306(a)(1) (87 Ill. 2d R. 306(a)(1)), providing for application for leave to appeal from interlocutory custody orders. (In re Marriage of Leopando (1983), 96 Ill. 2d 114, 118.) Here, absent our resolution in favor of the appealability of the order reserving maintenance, there is no apparent avenue for interlocutory appeal, as judgments for dissolution which reserve some issues do not fall within the scope of the provision for review of interlocutory orders under Leopando, since no multiple claims are involved. See 87 Ill. 2d Rules 306-08.

It should also be noted that in Leopando only one issue, custody, was resolved. Here, only one issue was reserved and the policy against piecemeal appeals is not so severely impacted. In effect, there was a final conclusion on the present lack of need of maintenance and retention of jurisdiction to modify the decree and to award maintenance if the known symptoms developed into a debilitating disease. The substance of the judgment was to decide fully that which could fairly then be decided.

For these reasons we conclude that Leopando is distinguishable, and that the judgment is final and appealable.

II

On the merits, we conclude that the trial court’s ruling is an appropriate exercise of the court’s discretion.

The determination as to the necessity for an award of maintenance is a matter left to the discretion of the trial court, and the court’s decision is not to be set aside unless it is against the manifest weight of the evidence. (In re Marriage of Carini (1983), 112 Ill. App. 3d 375, 381.) The court may grant maintenance only if it finds that the spouse seeking the award lacks sufficient property to provide for his or her own reasonable needs and is unable to support him or herself through appropriate employment or is otherwise without sufficient income. (Ill. Rev. Stat. 1983, ch. 40, par. 504; In re Marriage of Asch (1981), 100 Ill. App. 3d 293, 296-97.) Here, Arlene was employed as a secretary, with net monthly income of less than $1,000. Monthly expenses for Arlene and the children were $1,768. The deficit would be largely, if not completely, met by child support payments of $400 per month and monthly payments of approximately $400 from a land contract awarded to the wife. Thus, the trial court could have legitimately concluded that Arlene was not entitled to receive maintenance currently, especially if she received substantial marital property and was not requesting current maintenance.

However, as previously noted, there was legitimate doubt as to Arlene’s ability to support herself in the future. Arlene had been hospitalized in April 1981 for further testing, showing a positive RF factor, and markedly positive results on an AHA test, which is described as extremely accurate for diagnosing collagen diseases and specific for systemic lupus erythematosus. However, since such results could also be obtained due to other diseases, as of April 1981, the doctor was unable to diagnose a specific collagen disease. Arlene returned to the hospital in January of 1982 and the enlargement of her lymph nodes and spleen was consistent with collagen disorders. The difference in results of testing as opposed to the April 1981 test also suggested that the process was increasing. Yet the test results could have been due to other conditions. While the doctor was unable to make a definite diagnosis of a collagen disorder, he continued to have a high degree of suspicion that Arlene had a collagen disease and was of the opinion that she would develop the disease within the next 18 to 24 months so that the court could then be better informed as to her medical condition. We conclude that under these circumstances the trial court’s decision to reserve maintenance was proper.

III

The husband has also contended that the trial court erred in its distribution of marital property. The total value of the property awarded to Arlene amounted to $130,700, representing approximately 60% of the property divided between the parties. The total amount of marital property awarded to Robert was $61,500, approximately 32% of the property divided between the parties. The savings accounts were divided evenly.

Particularly in dispute by the husband is the court’s finding that he had dissipated marital assets in cashing life insurance policies with proceeds of $13,900 just prior to separation, and in withdrawing $16,000 from a joint savings account, following the separation of the parties. The trial court could properly deny credibility to Robert’s testimony that he had used the insurance proceeds to pay a $12,000 debt to another, whom he had not mentioned either in his deposition testimony or in his answers to Arlene’s interrogatories. The court could also deny credibility to Robert’s explanations of how he had used the balance of the money. The court’s calculations as to the amount dissipated were within the range of the evidence. Under these circumstances the trial court did not err in finding that Robert had dissipated marital assets and in charging the amount dissipated against Robert’s share of marital property so as to compensate Arlene. In re Marriage of Block (1982), 110 Ill. App. 3d 864-71.

The differing portions of property awarded to the parties also was not an abuse of the court’s discretion, viewing the entire record. It is significant that Arlene, who is a secretary and earns less than $1,000 a month, has less opportunity for future acquisition of assets than does Robert, an architect whose income has typically been substantial. (See In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 37-38.) Especially given the 24-year duration of the marriage and Arlene’s contributions as a homemaker and her gratuitous services in her husband’s business, there is adequate support for the property disposition.

IV

While Robert has questioned the portion of the court’s order granting Arlene $7,200 from a $17,209 marital savings account, the balance to be divided equally between the parties’ attorneys for attorney fees, we find no error. In effect, the ruling was one which required each spouse to pay the fees for his or her own attorney. There is no showing on the record before us that the fees were not reasonable. Moreover, Robert has waived his right to a hearing on attorney fees, as there is no indication that he ever requested such a hearing before the trial court. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 466.) The judge, who presided over the trial and was familiar with the attorneys’ work, did not abuse his discretion in awarding fees without a hearing. 100 Ill. App. 3d 452, 466.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

LINDBERG and HOPE, JJ., concur.


author: JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT GASTON, Defendant-Appellant.
    First District (2nd Division)
    No. 83—774
    Opinion filed June 19, 1984.

      James J. Doherty, Public Defender, of Chicago (Donna Hickstein-Foley, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Pamela Martin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

After a jury trial, the defendant was found guilty of armed robbery and home invasion, and sentenced to concurrent terms of 25 years in the Department of Corrections. On appeal, he contends both that he was not proved guilty beyond a reasonable doubt of either offense, and that he was denied his constitutional right to a fair trial, where failure to question all the prospective jurors as to their associations with the police department enabled one man who worked part-time as a police officer to be named as the jury foreman.

At the trial itself, the crux of the State’s case was the testimony of four eyewitnesses, who testified that the defendant, who had a handgun, and two other armed men entered an apartment in Chicago and took money, a gun, jewelry, a bag of marijuana, and several other items. One of the victims was struck in the face with a pistol; the robbery lasted about 15 minutes. When one of the victims happened to see the defendant in traffic court about a month later, he pointed him out to a police officer. The defendant ran out of the courtroom but was apprehended. He was then identified by two of the other victims in a lineup that afternoon. An alibi witness stated that on the night in question, he and the defendant bought marijuana from one of the victims, but that no robbery occurred while he was there. However, the victim who had seen the defendant in traffic court testified that the alibi witness for the defendant offered to return some of his property if he would not press charges.

Before trial, during jury selection, the trial judge had examined nearly 40 prospective jurors, asking about two-thirds if they had any close family members or friends affiliated with police work or police officers, questioning several about part-time work, and even asking two whether they had worked as part-time police officers, and whether such affiliations might bias them. Although the prospective juror in question, who eventually was chosen and named foreman, was not specifically interrogated on this point, when he was asked his occupation he responded only that he was an engineering assistant for Commonwealth Edison, and made no mention of his employment with a suburban police department. He stated that he felt he could give the defendant a fair trial.

During voir dire, defense counsel did not object to the judge’s failure to uniformly question all the jurors for possible bias or supplement the trial judge’s questioning along these lines. While both counsel and the judge recessed several times in the course of jury selection, defense counsel did not object to this juror’s being chosen.

However, in a post-trial motion for a new trial that also raised a number of other issues, defense counsel asserted that several days after the jury rendered its verdict he had discovered that the jury foreman was a part-time suburban police officer who had arrested people, usually for traffic violations. After reviewing defense counsel’s affidavit to this effect and hearing argument, the trial judge concluded that the juror was not “terribly biased” and denied the motion for a new trial. He noted in particular that the affidavit gave no information about the juror’s duties or length of employment as a police officer, and that the juror did not disclose his part-time status as a police officer because he was not asked about this point.

Initially, we find that there was sufficient evidence to support the jury verdict that the defendant was proved guilty beyond a reasonable doubt. Here, four eyewitnesses identified the defendant at trial. They testified clearly and consistently as to the details of the crime. When one of the victims pointed out the defendant to a police officer about a month later, the defendant immediately raced out of the courtroom. Soon after he was captured, two of the other victims also identified him. Although the defendant points to minor inconsistencies in the investigating police officer’s and the victim’s accounts, the absence of the defendant’s fingerprints at the apartment, and one victim’s tentative lineup identification, we find that the victims’ testimony and identifications, as well as the defendant’s flight, were sufficient evidence to support the jury verdict of guilt beyond a reasonable doubt. See People v. Montgomery (1981), 93 Ill. App. 3d 498, 417 N.E.2d 686.

Next, we consider the question of whether the presence on the jury, as foreman, of a man employed as a part-time police officer denied the defendant his constitutional right to a fair trial.

Initially, we must state that contrary to the defendant’s assertion, the status of a juror as a part-time police officer or employee does not in itself require the conclusion that the juror was so biased as to necessitate a new trial. Although it is true that police officers are statutorily exempted from jury duty in this State (Ill. Rev. Stat. 1981, ch. 78, par. 4), and statutory law provides that a juror may not be “exempt” (Ill. Rev. Stat. 1981, ch. 78, par. 2), exemption is clearly different than disqualification in its rationale; also exempted from jury duty in this State are such diverse groups as newspapermen, attorneys and doctors, Christian Science Practitioners, coroners and the Governor of the State. Clearly, mere inclusion in this statutory scheme does not indicate bias, as the defendant suggests. (See also North Chicago Electric Ry. Co. v. Moosman (1899), 82 Ill. App. 172.) In addition, the case law does not support a conclusion that mere status as a police officer is automatic grounds for dismissal as a juror. Initially, we note that although there is some support for the general proposition advanced by the defendant, more recent authority suggests instead that courts throughout the country are tending to reject a per se disqualification rule, and instead are inquiring more into whether an individual juror was in fact biased. (See, e.g., United States v. Kelton (8th Cir. 1975), 518 F.2d 531; State v. McIntyre (La. 1978), 365 So. 2d 1348; Depree v. State (1980), 246 Ga. 240, 271 S.E.2d 155; Commonwealth v. Fletcher (1976), 245 Pa. Super. 84, 369 A.2d 307; 47 Am. Jur. 2d Jury secs. 265-66, 313-38.) While we are not aware of any Illinois appellate case which has ruled on this precise issue, our research indicates that the critical issue in such a case is whether a juror is biased in fact. (See People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705; People v. Witte (1983), 115 Ill. App. 3d 20, 449 N.E.2d 966; People v. Hunt (1983), 112 Ill. App. 3d 138, 445 N.E.2d 408.) Similarly, the United States Supreme Court’s recent split holding on this general point of law in a related context again suggests that the crucial concern is whether the defendant could prove actual bias in a post-trial hearing. See Smith v. Phillips (1982), 455 U.S. 209, 71 L. Ed. 2d 78, 102 S. Ct. 940 (O’Connor, J., concurring).

In this particular case, as the State correctly points out, the defendant had opportunities during voir dire to supplement the trial judge’s questions to the prospective jurors; he also was alerted to the question of police-related bias by the judge’s pattern of questioning. Further, his post-trial affidavit did not enumerate in detail the length of the juror’s employment or the scope of his duties, or explain how the juror was specifically biased in determining this particular defendant’s guilt or innocence of these particular offenses because of his duties as a part-time police officer, although it is possible that the juror simply refused to provide this information. In addition, it must be recognized that the testimony of the arresting police officer, though relevant, was not the crux of the case against the defendant; the alleged offense was not directed at a police officer; and the juror in question was a part-time police officer in the suburbs, while the crime took place in Chicago.

Nevertheless, as both parties properly agree, a defendant’s right to trial by a fair and impartial jury is a constitutional cornerstone of our judicial system. This right should be guarded zealously; neither a trial judge’s inadvertent omissions nor a juror’s failure to divulge possibly pertinent information nor a trial attorney’s laxness can be allowed to impair this fundamental right. Here, the juror’s failure to disclose his employment with the police department under circumstances where it would have been natural to volunteer that information raises some question as to his motivation. The trial judge’s statement here that the juror — especially a juror who acted as jury foreman, and so may have had disproportionate influence with his fellow jurors (see People v. Witte (1983), 115 Ill. App. 3d 20, 449 N.E.2d 966) — was not “terribly biased,” indicates that the judge himself had some doubt about whether the juror was in fact wholly unbiased. And the abbreviated hearing on the defendant’s motion for a new trial could not be considered a meaningful inquiry, where no testimony was heard on allegations which might have shed light on the juror’s actual prejudice. Accordingly, we vacate the judgment and remand the case to the trial court for an evidentiary hearing, where the juror may be questioned in person or an affidavit detailing his involvement with police work may be evaluated, to determine whether he was in fact so biased that a new trial would be necessary. See Smith v. Phillips (1982), 455 U.S. 209, 71 L. Ed. 2d 78, 102 S. Ct. 940; People v. Witte (1983), 115 Ill. App. 3d 20, 449 N.E.2d 966; People v. Hunt (1983), 112 Ill. App. 3d 138, 445 N.E.2d 408.

However, we find no merit in the defendant’s other claim of reversible error. Therefore, in the event that even after a proper hearing the trial court does not determine that the defendant is entitled to a new trial because of juror prejudice, the conviction and sentence will be reinstated; otherwise, the defendant must be afforded a new trial. See People v. Witte (1983), 115 Ill. App. 3d 20, 449 N.E.2d 966.

In the event' that the hearing is resolved against the defendant, pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that the defendant be assessed $50 as costs for the State’s defending this appeal, and incorporate it as part of the judgment.

Vacated and remanded with directions.

HARTMAN, P.J., and DOWNING, J., concur.


author: JUSTICE LINDBERG

text:
    DAVID E. WAGNER, JR., Plaintiff-Appellant, v. GEORGE KRAMER, Sheriff of Kane County, et al., Defendants-Appellees.
    Second District
    No. 2—83—0621
    Opinion filed June 13, 1984.
    Rehearing denied July 19, 1984.
    Stanley H. Jakala and Daniel P. Jakala, both of Berwyn, for appellant.
    Robert J. Morrow, State’s Attorney, of Geneva (David R. Akamann and William F. Barrett, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Sergeant David E. Wagner, Jr., a deputy sheriff of the Kane County Sheriff’s Department, appeals the dismissal of his complaint for administrative review by the circuit court of Kane County. The court ruled that no extraordinary circumstances existed to authorize its review of a five-day disciplinary suspension. Plaintiff on appeal contends that the facts of his case constituted extraordinary circumstances authorizing judicial review. Defendants maintain that certain precautionary measures taken by the sheriff’s department before giving plaintiff a direct order were established by the evidence and that the order was reasonable.

Plaintiff was suspended for a period of five days for violations of departmental standard operating procedures, regulation 6 — 3, sections 7 — 2 and 7 — 35:

Rule 7 — 2, Disobedience of Orders. “Failure to obey and fully execute any lawful orders, written or oral, given by a superior officer ***.”
Rule 7 — 35, Insubordination. “*** Any failure or deliberate refusal to obey a lawful order given by a superior ***.”

On Tuesday, May 4, 1982, a writ for detention and quarantine was forwarded to the sheriff’s office from the State’s Attorney’s office requiring transportation of an individual infected with tuberculosis from her Aurora home to the Aurora Mercy Center Hospital. The written order was shown to both duty sergeants, one of whom was plaintiff. Both men expressed some concern about ordering their men to handle this type of call.

Included in the Rule and Order of Quarantine and Isolation was the following language:

“[The patient] *** is infected with Tuberculosis in a communicable state, and WHEREAS Tuberculosis in a communicable state is dangerous to the health of the public, as well as the individual, and, as a matter of protection of the public health, such communicable cases of Tuberculosis ought to be quarantined and confined. ***”

No further action was taken on May 5 relative to the transportation of the patient or the actions of plaintiff since it was determined that the patient was unavailable that day in any event. On May 6 the sheriff’s office received a call that the patient was at her home and was to be transported to the hospital. Plaintiff was then contacted by his superior officer, Lieutenant Grimes, and directed to follow, in his police vehicle, another officer and vehicle that were transporting the patient. He was to act as “back-up.” He was advised that he would not have to leave his car unless there was trouble.

Plaintiff refused to obey the order. He was then told to go home.

On May 7 a disciplinary hearing was held by the sheriff’s board of inquiry at which the charges were detailed for plaintiff and the basis for the charges was explained to him. Plaintiff explained that he felt the order in question was unjustifiable in that he was never trained to transport individuals with communicable diseases, “especially diseases for which there is no known cure or method of prevention available to assure him that he would not contact [sic] the disease.” He further explained that he believed he was being asked to put himself, as well as his family and fellow officers, in a dangerous situation and that other alternatives should have been considered, especially since it was not an extreme emergency situation. He considered this type of order as calling for more than was required by his job description and that it was not an “ordinary police duty.” Under these circumstances he believed that he was not in violation of a legal order.

During the hearing it was disclosed that plaintiff’s superior officer had talked to the registered nurse who accompanied the patient during the transportation of the patient to the tuberculosis facility. The superior officer said he was advised by the nurse that the disease was not as communicable as had been publicized. He further stated the nurse at the TB clinic did inform him that the disease was communicable by means of saliva but that infected persons on medication are not contagious. In the present case, however, the individual was being returned to the clinic because she was found not to be taking her medication. The superior officer also added that he considered the possibility of transportation via ambulance, but the cost would have been charged to the department, and if the individual refused to cooperate with the ambulance personnel, the department would still have been responsible for execution of the court order.

The record fails to disclose that prior to refusing the order of Lieutenant Grimes, plaintiff was advised of the information provided Grimes by the registered nurse. Further, it does not appear in the record that the plaintiff was told of a letter written by the medical director of the Kane County Tuberculosis Clinic to the sheriff three weeks earlier dated April 14, 1982. Thus, plaintiff was not told by his superiors of Dr. Richard C. Bodie’s statement that:

“[Fjortunately Tuberculosis is not a highly contagious infection. It is primarily and almost exclusively acquired by inhalation of organisms coughed out by the patient who had an active disease and whose sputum contains viable Tuberculous organisms. Generally the amount of contact needed to acquire Tuberculous infection is considerable. Casual contact is rarely a source of Tuberculous infection. Therefore in terms of contagion only those people who have been in close contact with an active case of Tuberculosis, primarily family Members [sic] are at any appreciable risk.*** Tuberculosis is not acquired by handling patient’s clothing or other personal effects or using even the same eating utensils. The infection is an air borne one and people become infected solely by that route.”

Dr. Bodie also stated: and that he hoped his explanation would be of help to the sheriff’s personnel in understanding the modern-day concept of tuberculosis.

“[0]ur experience in the past has been that considerable fear has been engendered among a large number of people needlessly when an active case of pulmonary Tuberculosis has been part of their environment ***”

The testimony at the hearing further disclosed that when Under-sheriff Perez was. consulted by Lieutenant Grimes regarding plaintiff’s refusal, he stated that he understood plaintiff’s reasons but if given a direct order by a superior officer, an officer must comply or suffer the consequences. Whether his excuses were valid or invalid, “an order is an order.” Perez indicated that had an ambulance been summoned to transport the patient it is to be assumed that a “backup” would still have been necessary.

Lieutenant Grimes related that upon arrival at the hospital no extraordinary services were provided for the patient even though she was being admitted for a communicable disease. No special precautions were taken by persons in close proximity to the patient, such as masks or gowns. The patient was taken to her room in an elevator in which were riding several other persons. The hospital had been aware of the patient’s pending arrival and admission.

The hearing before the sheriff’s board of inquiry concluded with the imposition of the five-day suspension by the sheriff.

On May 12, 1982, plaintiff telephoned the sheriff’s merit commission of Kane County and requested a hearing on the suspension. The request was denied. Upon appeal to the trial court for administrative review, the case was remanded with the requirement that the plaintiff file a written request for a hearing with the commission and obtain a written answer. On November 9, 1982, the written request for review was also denied. The commission indicated that by law there was no right to a merit commission hearing to review a suspension of five days or less. It also stated however, that it had requested the sheriff to provide other relevant documents which were then examined. The conclusion reached by the merit commission was that there was no extraordinary circumstances present which would warrant an exception to the general rule.

On December 13, 1982, the plaintiff again filed a complaint for administrative review of the merit commission’s denial of review of the sheriff’s imposition of a five-day suspension. It appears however that the court interpreted the complaint for administrative review .as a complaint for judicial review of the sheriff’s order as its final order of June 9, 1983, provides “that there being no extraordinary circumstances present giving the Court judicial authority to review the Sheriff’s Department order in question, the Motion to Dismiss is granted.” Plaintiff’s notice of appeal filed June 6, 1983, asks for review of the trial court’s order and the issues addressed by the parties on appeal relate to the review of the sheriff’s order of the five-day disciplinary suspension.

Plaintiff contends his due process right to review of his five-day disciplinary suspension was denied when his complaint for administrative review was dismissed by the circuit court. He argues that the facts in his case constitute extraordinary circumstances warranting judicial review under this court’s opinion in Buege v. Lee (1978), 56 Ill. App. 3d 793, 372 N.E.2d 427. He concludes that if he were infected by tuberculosis he could be discharged (People ex rel. Ballinger v. O’Connor (1957), 13 Ill. App. 2d 317, 142 N.E.2d 144). He also argues that he had an obligation to prevent transmission by himself of communicable diseases by requiring that appropriate precautionary measures be taken by his superiors.

Defendants do not appear to directly contest plaintiff’s assertion to a due process right of review for a five-day disciplinary suspension other than to argue to this court that the sheriff’s department took proper precautionary measures. Defendants contend the sheriff based his formulation of the transportation procedure upon the expert written medical opinion of the medical director of the tuberculosis center, Dr. Richard C. Bodie. However, defendants do not contend that plaintiff was made aware of Dr. Bodie’s letter.

Defendants further argue that the order was reasonable because the sheriff was ordered by the circuit court to transport the patient and plaintiff’s refusal to do so would subject the sheriff to contempt. Defendants maintain that use of a private ambulance would, nonetheless, require the use of sheriff’s personnel to insure that the court order was executed. Defendants also contend that the administrative agency findings of the sheriff’s board of inquiry are held to be prima facie true and correct (Ill. Rev. Stat. 1981, ch. 110, par. 274), and that a court is only authorized to set them aside if they are against the manifest weight of the evidence and this same standard applies to review in the appellate court. (Pratico v. Board of Fire & Police Commissioners (1967), 82 Ill. App. 2d 377, 387, 226 N.E.2d 505, 510.) Defendants maintain that the order was not arbitrary, unreasonable or unrelated to the requirements of the sheriff’s service. (See Lakin v. Gorris (1983), 113 Ill. App. 3d 1034, 1039, 448 N.E.2d 215, 219.) Disobedience of a proper order, contends defendants, constitutes a cause for suspension. Zinser v. Board of Fire & Police Commissioners (1961), 28 Ill. App. 2d 435, 439, 172 N.E.2d 33, 34-35.

First, we note that plaintiff is not appealing here the denial of the Kane County Sheriff’s Merit Commission to grant plaintiff a hearing. The commission, like the circuit court, grounded its denial on the lack of extraordinary circumstances. However, we note that under the Sheriff’s Merit System Act (Ill. Rev. Stat. 1983, ch. 125, par. 151 et seq.), merit commissions have no authority to review disciplinary actions of the sheriff. Rather, disciplinary suspensions cumulating more than 30 days in any 12-month period are initiated by the sheriff before the merit commission (Ill. Rev. Stat. 1983, ch. 125, par. 164), while those cumulating 30 days or less in any 12-month period are administered by the sheriff exclusive of the merit commission (Ill. Rev. Stat. 1983, ch. 125, par. 163). It is the latter type of disciplinary suspension which is implicated in the present case. Finally, the record does not disclose that the Sheriff’s Merit Commission of Kane County or any other body has been established by ordinance in Kane County to review the disciplinary actions reserved to the sheriff under the Sheriff’s Merit Systems Act following his imposition of discipline upon the findings of his board of inquiry.

In Kropel v. Conlisk (1975), 60 Ill. 2d 17, the supreme court construed section 10 — 1—18.1 of the Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 10 — 1—18.1), which provided that “[n]othing in this Section limits the power of the superintendent to suspend a subordinate for a reasonable period, not exceeding 30 days.” The court held that the superintendent’s power, nonetheless, was limited by the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and section 2 of article 1 of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2). The court said:

“If, then, it is clear that there are outer limits to the superintendent’s power of suspension and that the public policy of this State has generally provided for some form of review of suspensions, if section 10 — 1—18.1 of the Municipal Code is to survive constitutional attack on due process and equal protection grounds, we must construe it to provide for some manner of review of suspensions for less than 30 days.
* * *
It is clear from all of the statutes and rules set forth above that a major difference between a suspension for less than 30 days and a suspension for more than 30 days is that the latter requires a hearing before the sentence can be imposed. In effect, the department has the duty to go into a hearing and prove its case for suspension of more than 30 days. In the former instance, the burden is on the employee to seek review and establish why the suspension is unwarranted. Therefore, we hold that the plaintiff is entitled to an opportunity to review his suspension, and that, in order to uphold the suspension, it must be approved by a majority of the police board. If the board does not approve the suspension, it shall enter appropriate orders to place the plaintiff in the same position as had the suspension not been levied in the first instance.” (Kropel v. Conlisk (1975), 60 Ill. 2d 17, 26-27.)

While Kropel decided issues arising under the Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 10 — 1—18), and the court also analyzed the Personnel Code (Ill. Rev. Stat. 1973, ch. 127, par. 63bl01 et seq.), the holding in Kropel controls the disposition of this case, and plaintiff is entitled to review of his suspension.

Plaintiff’s reliance on this court’s decision in Buege v. Lee (1978), 56 Ill. App. 3d 793, 372 N.E.2d 427, is misplaced. The Buege court applied the “extraordinary circumstances” test in determining whether the circuit court should entertain a complaint for declaratory judgment involving orders of a chief of police. By contrast, the instant question is whether a police officer is entitled to administrative review of a disciplinary suspension for disobedience of an order. The Buege court observed that Buege would be a different case if charges were pending in a disciplinary proceeding (56 Ill. App. 3d 793, 798, 372 N.E.2d 427, 432). The court acknowledged that in a disciplinary proceeding the party aggrieved cannot seek review in the courts until he has exhausted his administrative remedies citing Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358. However, the court distinguished a declaratory judgment action from review of a disciplinary proceeding as one allowing the court to take hold of a controversy before claims arise for damages or other relief. In sum, Buege does not purport to establish a standard of extraordinary circumstances before judicial review of an administrative action can be undertaken in the circuit court.

We conclude that plaintiff is entitled to administrative review of his five-day suspension (see Kropel v. Conlisk (1975), 60 Ill. 2d 17; see also Zook v. Hedrick (1977), 52 Ill. App. 3d 736, 367 N.E.2d 1356), without regard to the declaratory judgment standard of extraordinary circumstances involved in Buege v. Lee (1978), 56 Ill. App. 3d 793, 372 N.E.2d 427. Further, since the Sheriff’s Merit System Act (Ill. Rev. Stat. 1983, ch. 125, par. 151 et seq.) does not provide for review by the sheriff’s merit commission nor is any review afforded under the ordinances of Kane County based upon the record before us, then the appropriate method of review of the sheriff’s imposition of the suspension, as a final administrative action, is in the circuit court (Lakin v. Gorris (1983), 113 Ill. App. 3d 1034, 1038, 448 N.E.2d 215, 218; see also Robinson v. Cook County Police & Corrections Merit Board (1981), 93 Ill. App. 3d 1051, 1052, 418 N.E.2d 170, 172), by writ of certiorari (see Drury v. Hurley (1949), 339 Ill. App. 33, 88 N.E.2d 728). We view plaintiff’s complaint for administrative review in the circuit court to be a cause of action for common law certiorari (see Buccieri v. Wayne Township (1982), 111 Ill. App. 3d 396, 444 N.E.2d 249), and remand the cause to the circuit court for administrative review.

We are aware of the prior decision of the appellate court in McCoy v. Brown (1981), 100 Ill. App. 3d 988, 427 N.E.2d 619. In McCoy the court reversed the trial court’s dismissal of the defendants’ affirmative defense, which pleaded:

“[Constitutional provisions for due process do not require a hearing before the Sheriff’s Department Merit Commission where the suspension is for a period of 5 days; that plaintiff was notified that within 72 hours he might appeal the suspension to the ‘Departmental Disciplinary Appeal Board’ established by the sheriff, and further alleged alternatively, that prior to the suspension the sheriff conducted an investigation of the misconduct for which suspension was imposed, including an interview between the sheriff and the plaintiff in December 1978; two interviews between the sheriff, his chief deputy and plaintiff in March 1979; a polygraph examination of plaintiff in February 1979, and interviews and polygraph examinations of potential witnesses and suspects in the matter of the alleged misconduct. It is further alleged that in the interviews with plaintiff, the sheriff explained the misconduct charged and plaintiff was given an opportunity to respond and explain his version of the events. The answer and affirmative defenses were verified by the sheriff, and no denial of the allegations appears in the record.” (McCoy v. Brown (1981), 100 Ill. App. 3d 988, 989, 427 N.E.2d 619, 620.)

As in the case at bar, the plaintiff was a deputy sheriff who had been suspended by the sheriff for five days.

McCoy may be distinguishable from the case at bar on the grounds that the McCoy court observed that the plaintiff there was entitled to a review of his suspension by the Sheriff’s Departmental Disciplinary Appeal Board. We are not made aware of whether the McCoy plaintiff attempted and was refused review by that board as well as the merit commission. Nonetheless, the mechanism of departmental review was not available in the instant case. Failure of the plaintiff in McCoy to exhaust his administrative remedies ordinarily would be a basis for denial of judicial review. See Illinois Bell Tele phone Co. v. Allphin (1975), 60 Ill. 2d 350.

We agree with that part of McCoy which appears to hold that a deputy sheriff is not entitled to a review of the sheriff’s suspension by the sheriff's merit commission. As noted earlier in this opinion, there appears to be no statutory obligation on the merit commission to review suspensions by the sheriff cumulating 30 days or less in any 12-month period. Ill. Rev. Stat. 1983, ch. 125, par. 151 et seq.

However, we are compelled to disagree with reasoning in McCoy which appears to suggest no review is required of suspensions of deputy sheriffs of one week of scheduled working days or less. In so doing we address ourselves to the holding of Kropel v. Conlisk (1975), 60 Ill. 2d 17, which contains the language upon which the McCoy court appears to rely for its reasoning:

“[I]t is clear from the statutes and rules above set forth that the public policy of this State, regardless of any constitutional considerations, is that a disciplinary suspension of more than 1 week of scheduled working days cannot be levied without providing some means of review of the suspension.” Kropel v. Conlisk (1975), 60 Ill. 2d 17, 25.

It is apparent from the holding in Kropel that the supreme court’s analysis of certain statutes, and its statement of public policy derived therefrom, does not preclude review of suspensions of less than one week. In light of the Kropel holding, the above-quoted statement cannot be fairly construed as authority that suspensions of deputy sheriffs for five days or less are not renewable. The court held:

“[I]f, then, it is clear that there are outer limits to the superintendent’s power of suspension, and that the public policy of this State has generally provided for some form of review of suspensions, if section 10 — 1—18.1 of the Municipal Code is to survive constitutional attack on due process and equal protection grounds, we must construe it to provide for some manner of review of suspensions for less than 30 days.” Kropel v. Con-lisk (1975), 60 Ill. 2d 17, 26.

The McCoy court also relied in part on Goss v. Lopez (1975), 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729. There, the United States Supreme Court held that students suspended from educational institutions for less than 10 days were entitled to the rudimentary due process of being advised of the accusation against them, the basis of it and an opportunity to respond so as to avoid arbitrary suspensions and mistakes. We believe Goss is distinguishable on its facts from the cases of suspended deputy sheriffs as in both McCoy and the instant case. In Goss the court’s concern was to avoid overwhelming the educational system with full hearings for countless brief suspensions. The court said:

“In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is.” (419 U.S. 565, 582, 42 L. Ed. 2d 725, 739, 95 S. Ct. 729, 740.)

The court further stated:

“We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and *** cost more than it would save in educational effectiveness. ***
On the other hand, requiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect.” (419 U.S. 565, 583-84, 42 L. Ed. 2d 725, 740, 95 S. Ct. 729, 740-41.)

The court continued:

“We should also make it clear that we have addressed ourselves solely to the short suspension, not exceeding 10 days. Longer suspensions *** may require more formal procedures.” 419 U.S. 565, 584, 42 L. Ed. 2d 725, 740, 95 S. Ct. 729, 741.

To the extent that the holding in McCoy was based upon the existence of Departmental Disciplinary Appeal Board and the plaintiff’s failure to exhaust his administrative remedies, we distinguish McCoy from the case at bar. To the extent that McCoy interprets Kropel and Goss as precluding a right to review of suspension of deputy sheriffs of five days or less, we decline to follow it.

Upon remanding this cause to the trial court we observe that the permissible scope of judicial inquiry concerning factual determinations of the sheriff is limited to ascertaining if the sheriff’s findings were contrary to the manifest weight of the evidence. (See Basketfield v. Police Board (1974), 56 Ill. 2d 351; Carrigan v. Board of Fire & Po lice Commissioners (1984), 121 Ill. App. 3d 303, 459 N.E.2d 659.) The standard to be applied as to the adequacy of cause for the five-day suspension is whether the decision was arbitrary, unreasonable or unrelated to the requirements of the service. See Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill.2d 547; Carrigan v. Board of Fire & Police Commissioners (1984), 121 Ill. App. 3d 303, 459 N.E.2d 659; Lakin v. Gorris (1983), 113 Ill. App. 3d 1034, 448 N.E.2d 215.

We reverse the judgment of the circuit court of Kane County and remand for further proceedings.

Reversed and remanded.

SEIDENFELD, P.J., and HOPF, J., concur.


author: JUSTICE McNAMARA

text:
    AMAL HAJAWII, Plaintiff-Appellant, v. VENTURE STORES, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83—532
    Opinion filed June 13, 1984.

      William S. Keck, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Thomas J. Keevers, of Chicago (Thomas J. Keevers and Daniel N. Janich, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Amal Hajawii brought this action for malicious prosecution and false imprisonment against defendants Venture Stores, Inc., and James Bellair, after she was detained and criminally charged with retail theft. The trial court granted defendants’ motion to dismiss both counts, finding that the disposition of the criminal case imposing three months’ supervision on plaintiff was not a favorable termination and that plaintiff could not maintain her action. She appeals.

The facts as gleaned from the pleadings and answers to interrogatories are as follows. On January 3, 1981, plaintiff was a customer at a Venture store in Oak Lawn. Bellair, a security representative for Venture, observed plaintiff opening a package of screws and placing several in her pocket. He also saw her switching a bracket from a box priced at $4.99 to a box marked $3.49. Plaintiff was detained and defendants filed criminal charges against her.

The report of proceedings of the criminal proceedings reveals the following. On February 23, 1981, plaintiff and her attorney appeared and demanded trial. After a discussion between defense counsel and prosecutor, the prosecutor informed the court that plaintiff waived a jury and stipulated that Bellair, if called, would testify in accordance with the complaint on file. Plaintiff did not stipulate as to the truth of Bellair’s testimony. In accordance with the prosecutor’s recommendation, the court placed plaintiff on three months’ court supervision. On May 21, 1981, the supervision was terminated and the criminal charges were dismissed. In July 1981, plaintiff brought this present action.

On appeal, plaintiff contends an order of supervision and subsequent discharge was a favorable termination of the prior criminal proceeding and that the trial court erred in dismissing her claim for malicious prosecution. She also contends that a favorable termination of the prior criminal proceeding is not an element of a claim for false imprisonment and that the court erred in dismissing her second count. In this court, plaintiff has also attacked the sufficiency and form of defendants’ motion to dismiss. Since this issue was not raised in the trial court, plaintiff has waived appellate review. Schuman v. Pekin House Restaurant & Lounge (1981), 102 Ill. App. 3d 532, 430 N.E.2d 145.

In order to prevail on a claim of malicious prosecution, plaintiff must allege and prove five elements: the commencement or continuation of criminal or civil proceedings by the defendant; the termination of the proceedings in favor of plaintiff; the absence of probable cause for such proceedings; the presence of malice; and damages resulting to the plaintiff. (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229.) An action for malicious prosecution will not lie if the prior criminal proceedings terminate “in a manner not indicative of plaintiff’s innocence.” (Stanger v. Felix (1981), 97 Ill. App. 3d 585, 588, 422 N.E.2d 1142.) Such actions are not favored in the law since public policy favors the exposure of crimes and encourages the cooperation of citizens in reporting them. Schwartz v. Schwartz (1937), 366 Ill. 247, 8 N.E.2d 668; Stanger v. Felix (1981), 97 Ill. App. 3d 585, 422 N.E.2d 1142.

In the present case, plaintiff was placed on supervision in the underlying criminal proceeding. Supervision was first incorporated by the legislature into the Unified Code of Corrections in 1976. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6—1(c).) Where on a misdemeanor charge there has been a plea of guilty, a stipulation by the defendant to the facts supporting the charge, or a finding of guilt, the court may enter an order of supervision. Supervision is appropriate where the court finds the offender is not likely to commit further crimes, the defendant and the public would be best served if the defendant did not receive a criminal record and in the interest of justice supervision is more appropriate than a sentence otherwise provided under the Code. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1(c).) Following the successful completion of the supervision, the defendant is discharged and judgment is entered dismissing the charges. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—3.1(f).) Such a discharge and dismissal is deemed without adjudication of guilt. Ill. Rev. Stat. 1981, ch. 38, par. 1005— 6 — 3.1(g).

In Stanger v. Felix (1981), 97 Ill. App. 3d 585, 422 N.E.2d 1142, this court held that supervision was not a termination favorable to plaintiff. We believe that the Stanger holding is dispositive here. Plaintiff urges that Stanger is inapposite because the court here did not make an express finding of guilt and because she did not stipulate as to the truth of Bellair’s statements. Plaintiff also argues that supervision here was consistent with her innocence because she pleaded not guilty and agreed to supervision out of expediency. She further maintains that the supervision was not imposed in accordance with the statutory criteria.

We find that these distinctions are insignificant. Plaintiff did not appeal the order of supervision and may not collaterally attack the order in this proceeding. (See People v. Floyd (1973), 14 Ill. App. 3d 1009, 303 N.E.2d 826.) We must presume the order of supervision was validly entered in accordance with the statutory criteria.

As the Stanger court held, supervision is not indicative of plaintiff’s innocence. In discussing supervision, the statute refers to offenders, imposing sentences and committing further crimes. Although plaintiff pleaded not guilty, the court’s imposition of supervision clearly indicates that it did not agree. That plaintiff was motivated by financial expediency to waive a jury trial and proceed by stipulation or that her successful completion of supervision resulted in a dismissal of the theft charge does not affect our holding. Contrary to plaintiff’s assertion, supervision was a mild form of disposition and it acts as a bar to a malicious prosecution claim. Likewise, plaintiff’s contention that we must look to the dismissal at the end of the supervision period to determine whether the proceedings terminated in plaintiff’s favor is without merit. Plaintiff is not entitled to recover damages for malicious prosecution because the court, in its discretion, imposed a mild disposition without the stigma of a criminal record.

We also hold that the trial court properly dismissed count II of plaintiff’s complaint claiming false imprisonment.

False imprisonment is an unreasonable restraint of plaintiff’s liberty against his will caused or procured by the defendant. (Shelton v. Barry (1946), 328 Ill. App. 497, 66 N.E.2d 697.) Plaintiff has the burden of proving that the restraint was unreasonable or without probable cause. (Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 426 N.E.2d 604.) We believe the stipulation that Bellair would testify that he saw plaintiff knowingly alter a price tag followed by the court order of supervision results in the inescapable conclusion that probable cause existed for plaintiff’s detainment.

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

Judgment affirmed.

McGILLICUDDY and WHITE, JJ., concur.