author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE JENKINS, Defendant-Appellant.
    First District (4th Division)
    No. 83—1330
    Opinion filed November 21, 1984.

      Steven Clark and Jeffrey Walker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Timothy J. Frenzer, and Mary L. Ryan Norwell, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, George Jenkins, was charged with rape, deviate sexual assault, aggravated battery, intimidation, home invasion, unlawful restraint and unlawful communication with a witness. Following a bench trial, defendant was convicted of rape, deviate sexual assault and aggravated battery (Ill. Rev. Stat. 1981, ch. 38, pars. 11 — 1(a), 11 — 3(a), 12 — 4). He received concurrent sentences of 20 years for rape and deviate sexual assault, and 5 years for aggravated battery.

On appeal, this court is asked to consider (1) whether the sentences imposed upon defendant were abusive of the trial court’s discretion, and (2) whether defendant’s convictions should be reversed because they resulted from the illegal interception of a telephone conversation between the defendant and the complaining witness.

We affirm.

Testimony at trial established that complainant and defendant Jenkins met each other in the summer of 1981. They became involved in a romantic relationship which continued on and off for several months. Approximately three months after the relationship began, defendant broke several windows in complainant’s apartment and tore the mirror from her car. Complainant became fearful of defendant and attempted to end the relationship. Defendant physically attacked complainant on several occasions and frequently made threatening telephone calls to her. Complainant testified that defendant frequently threatened to harm her mother and son if she did not resume their relationship and submit to his sexual demands. Complainant denied that defendant had ever lived with her or had keys to her house.

In May 1982, complainant obtained a court order of protection against defendant, according to which defendant was to have no contact whatsoever with complainant. In June 1982, defendant forced his way into complainant’s apartment, threw complainant to the floor, and choked and beat her. Thereafter, complainant made several reports to the police regarding defendant’s behavior toward her. As a result of the June incident, complainant suffered a torn artery in her mouth and was hospitalized for 10 days.

Defendant was convicted of battery and criminal damage to property in connection with the June incident. He received 30 days in the county jail and one year’s probation. He was also ordered by the court to avoid all contact with complainant.

On the evening of July 10, 1982, as complainant entered her apartment, defendant pushed the door open and forced his way into the apartment with her. Complainant stated that she was frightened but tried to pretend that she was not. Shortly thereafter, defendant struck the victim several times on different parts of her body including the right side of her face, after which she could not hear and there was a ringing in her right ear. He also slammed a telephone into her abdomen. Defendant then forced the victim to engage in acts of oral sex and intercourse. Defendant remained in complainant’s house throughout the night.

The following morning, the victim assured defendant that she would not report him to the police. She offered to drive him home, which she did. She was afraid that defendant would kill both her and her son if he thought that she was going to report the incident to the police.

On July 12, 1982, defendant telephoned the victim more than 20 times at her place of employment. She refused to speak with him. At approximately 3:30 p.m., a brick was thrown through the front window of complainant’s place of employment. The police were called. Shortly thereafter, defendant telephoned the victim again. While the victim was talking on the telephone with defendant, the police arrived. At the direction of the victim’s employer, Chicago police officer Thun picked up an extension telephone and listened to approximately 20 minutes of the conversation. The victim sat approximately 15 feet away from the police officer and was aware that he was listening to her conversation. The officer made notes of some of the numerous threats he heard being made against complainant by a male voice on the telephone. The threats included promises of revenge and blowing the victim’s brains out as well as threats against the victim’s son.

During the conversation, Officer Thun became aware that the call was being placed from a tavern with which he (the officer) was familiar. A police car was dispatched to the tavern, and several minutes later the conversation ended abruptly. Officer Thun received a call shortly thereafter which informed him that a man had been arrested as he talked on the telephone at the tavern. The victim later identified the man who had been arrested while talking on the telephone as defendant. While in custody, defendant told Assistant State’s Attorney Bastone that on July 10, 1982, the victim telephoned him and asked him to come to her apartment. Once there, they engaged in several consensual sexual acts. The pair later argued, and defendant struck the victim a couple of times before leaving the apartment that evening (July 10, 1982). At trial, however, defendant denied having had that conversation with Bastone. He also denied having been at the victim’s apartment or seeing her at all on July 10, 1982, the day the crimes for which he was charged took place.

It was stipulated that on July 15, 1982, five days after the offenses, the victim’s physician found a massive hematoma, contusion and a large bruise on the victim’s right arm, contusions and a lump on her abdomen, and a perforated right eardrum.

There was testimony by Robert Vaughan, an acquaintance of defendant, that while defendant was awaiting trial for the current crimes he called Vaughan at least 40 times. During these calls, defendant tried to enlist Vaughan’s aid in convincing the victim to drop the charges. Vaughan did make one call to the victim but she refused to drop the charges.

Defendant was found guilty by the court of rape, two counts of deviate sexual assault, and aggravated battery. At a sentencing hearing, it was revealed that defendant had had numerous arrests and several convictions for violent crimes beginning in 1959. The trial court, in pronouncing sentence, noted that he found defendant’s testimony completely incredible. The court also commented on the violent nature of the acts. Defendant received concurrent sentences of 20 years for rape and deviate sexual assault, and 5 years for aggravated battery.

On appeal, defendant asks this court to reduce his sentence or, in the alternative, set it aside and remand for a new sentence. He argues that the trial court abused its discretion in imposing a 20-year sentence. Defendant points out that the court focused on the offense rather than considering all the factors such as protection of society and the rehabilitative potential of the defendant. Further, prior to the crimes against the victim in this case, defendant had had no convictions for five years and had never been convicted of a Class X felony.

Sentencing decisions are matters of judicial discretion, and so long as the sentence imposed is within the statutory limits, we may not exercise our power to reduce it absent a finding that the court has abused that discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883), since the trial court has a better opportunity to acquire information about the defendant and assess factors in aggravation and mitigation (People v. Gallardo (1983), 112 Ill. App. 3d 764, 775, 445 N.E.2d 1213, 1222). A rebuttable presumption arises that the sentence imposed was proper and is only overcome by an affirmative showing that the sentence imposed varies greatly from the purposes and spirit of the law or is manifestly violative of constitutional guidelines. 112 Ill. App. 3d 764, 775.

Rape and deviate sexual assault are Class X felonies, punishable by a sentence of not less than six nor more than 30 years’ imprisonment. Aggravated battery, a Class 3 felony, is punishable by a sentence of not less than two nor more than five years’ imprisonment. The sentences imposed by the trial court fell within these statutory guidelines.

The record shows that defendant committed numerous and repeated acts of violence against the victim. In fact, the crimes which gave rise to this appeal were committed after defendant had been convicted of other acts of violence against this same victim and had received a comparatively light sentence. The record suggests that defendant was not in any way deterred nor did he appear to respect the trial court’s earlier orders to stay away from the victim. Additionally, the trial court need not make an express finding that defendant lacked rehabilitative potential before imposing sentence, since that factor is not entitled to greater weight than the nature of the offense. People v. Gallardo (1983), 112 Ill. App. 3d 764, 776, 445 N.E.2d 1213, 1222, citing People v. Hayes (1979), 70 Ill. App. 3d 811, 388 N.E.2d 818.

Before imposing sentence, the trial judge made it clear that he had considered the cumulative evidence as well as other factors in mitigation and aggravation. The judge noted the brutal nature of the attacks upon the victim as well as defendant’s lack of remorse.

Neither defendant’s contentions nor the record gives us any basis for deviating from the established principle that the trial court’s decision in regard to sentencing is entitled to great weight. (People v. Metoxen (1983), 121 Ill. App. 3d 472, 478, 459 N.E.2d 975, 979.) We find no abuse of discretion in the trial court’s imposition of a 20-year sentence.

Next, defendant makes the claim that his conviction should be reversed because the conversation with the victim, which was the basis of his arrest and conviction, was intercepted by Chicago police officer Thun without the consent of either defendant or the victim. Defendant argues that the victim’s employer instructed Thun to listen to the conversation on a telephone extension. There was never any consent by the victim. Consequently, Thun’s action violated the United States and Illinois constitutional provisions by conducting a warrant-less interception of the conversation.

We reject defendant’s contentions. First, a telephone extension is not an eavesdropping device as defined by Illinois law. (People v. Gaines (1981), 88 Ill. 2d 342, 363, 430 N.E.2d 1046, 1056.) Second, People v. Richardson (1975), 60 Ill. 2d 189, 328 N.E.2d 260, cited by defendant, does not support his contentions, since Officer Thun’s act of listening on the telephone extension did not constitute an unreasonable interception of a communication, which is improper even if no eavesdropping device is employed. Defendant’s argument also fails on other grounds. Although the victim did not verbally ask Officer Thun to listen to the conversation, her behavior implied consent. The victim was seated approximately 15 feet away from Officer Thun when he (the officer) picked up the telephone extension. At no time did the victim indicate to defendant that someone was listening without her consent, not did she indicate to Thun in any way that he should not listen to the conversation. The cumulative evidence strongly supports the conclusion that the victim consented to Officer Thun’s act of listening to her conversation with defendant, albeit such consent was not expressed orally.

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

Affirmed.

LINN, P.J., and ROMITI, J., concur.


source: Caselaw Access Project

author: JUSTICE DOWNING

license: Public Domain

text:
    ALLEN R. DYMEK, Indiv. and as a Custodial Parent of Robert A. Dymek, a Minor, Plaintiff-Appellant, v. ROBERT E. NYQUIST et al., DefendantsAppellees.
    First District (2nd Division)
    No. 83—1651
    Opinion filed September 18, 1984.

      Edward L. Osowski, of Chicago, for appellant.
    Maurice J. Garvey, William J. Rogers, and Thomas E. Patterson, all of Wildman, Harrold, Allen & Dixon, of Chicago, for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff, Allen R. Dymek, appeals from the entry of an order dismissing his complaint at law with prejudice pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-615).

On March 9, 1982, plaintiff instituted the present action against defendant Robert E. Nyquist, a psychiatrist, and defendant Retha J. Dymek, plaintiff’s former wife. Essentially, plaintiff’s complaint alleged that Retha took their son, Robert, a nine-year-old minor over whom plaintiff had been awarded custody, to see Dr. Nyquist for a, period of one year for purposes of psychiatric treatment. Robert allegedly underwent psychotherapy without the knowledge or consent of plaintiff. Subsequent thereto, Dr. Nyquist testified on behalf of Retha at a hearing held in connection with her petition for change of custody.

By virtue of these allegations, plaintiff averred that he had suffered “severe emotional stress and disturbance to [his] mental tranquility” as a result of Dr. Nyquist’s conduct (count I); that Dr. Nyquist had breached the fiduciary duty of trust and confidence owed to Robert (count II); that Dr. Nyquist and Retha conspired “to gain physical and mental custody and control of [Robert] *** and to maliciously, unlawfully and wrongfully injure the plaintiff in his mental and emotional well-being” (count III); that Dr. Nyquist and Retha deprived, alienated and destroyed the affection of Robert toward plaintiff (count IV); and that Dr. Nyquist had engaged in malpractice through unauthorized treatment as well as unconsented revelation of privileged psychiatric information (count V).

Count IV, originally premised on alienation of affections, was amended by leave of court on January 25, 1983, so that the words “to alienate and destroy the affection” were replaced by the words “to injure and destroy the society and companionship.” On that same day, January 25, pursuant to Dr. Nyquist’s motion, the trial court entered an order dismissing counts II, IV, and V of the complaint, and striking counts I and III with leave to amend. Plaintiff, however, elected to stand on his pleadings and subsequently filed a motion for rehearing and to vacate the order of January 25, 1983. This motion was denied, and plaintiff’s complaint was thereupon dismissed with prejudice on June 6, 1983. It is the propriety of this dispositive order which plaintiff now contests on appeal.

I

The sole issue presented for review is whether the lower court properly dismissed plaintiff’s complaint with prejudice.

Count I

In order to state a cause of action for intentional infliction of emotional distress, facts must be alleged which establish: (1) that the defendant’s conduct was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant’s conduct, if alleged to have been “reckless,” was such that the defendant knew severe emotional distress would be certain or substantially certain to result. Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89-90, 360 N.E.2d 765.

Regarding the first element, the nature of defendant’s conduct, liability exists only where such conduct has been “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency ***.’” (Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 745-46, 431 N.E.2d 1175, quoting Restatement (Second) of Torts sec. 46, comment d (1965).) With respect to the second element, the severity of plaintiff’s distress, “ ‘[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining its severity.’ ” (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90, quoting Restatement (Second) of Torts sec. 46, comment j (1965).) Pertaining to the recklessness of defendant’s conduct, “liability extends to situations in which there is a high degree of probability that severe emotional distress will follow and the actor goes ahead in conscious disregard of it.” Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 746, citing Restatement (Second) of Torts sec. 46, comment i (1965), and Prosser, Torts sec. 12, at 60 (4th ed. 1971).

In order to determine whether a plaintiff has stated a cause of action for intentional infliction of emotional distress, a reviewing court must accept as true the allegations contained in the complaint. (Witkowski v. St. Anne’s Hospital of Chicago, Inc. (1983), 113 Ill. App. 3d 745, 752, 447 N.E.2d 1016, appeal denied, 96 Ill. 2d 552.) Here, plaintiff’s complaint charges that Dr. Nyquist surreptitiously performed psychotherapy on Robert twice a month for a period of one year. By virtue of this course of action, it is claimed that Dr. Nyquist intentionally or recklessly caused severe emotional distress to plaintiff’s mental tranquility.

It is our opinion that the psychiatrist’s conduct, performed at the request of Robert’s mother, cannot be characterized as so outrageous, so atrocious and so utterly intolerable that a person of ordinary sensibilities could not reasonably be expected to endure it. In support of a contrary conclusion, plaintiff cites and strongly relies on Burchfield v. Regents of the University of Colorado (D. Colo. 1981), 516 F. Supp. 1301. Such reliance, however, is seriously misplaced since Burchfield did not concern the tort of intentional infliction of emotional distress.

In addition, we note that plaintiff’s complaint is absolutely devoid of any allegation that the purported psychiatric treatment was in any way detrimental to Robert’s mental or physical state of health. In fact, there is no claim that Dr. Nyquist’s care was unnecessary. In view of these deficiencies, we simply cannot conclude that the psychiatrist’s actions reached such an extreme level of outrageousness and severity “beyond all bounds of decency” so as to give rise to a cause of action for intentional infliction of emotional distress. Count I of the complaint, therefore, was properly dismissed.

Count II

The trial court’s dismissal of count II was premised on the authority of McDonald’s Corp. v. Levine (1982), 108 Ill. App. 3d 732, 439 N.E.2d 475, appeal denied (1983), 92 Ill. 2d 575. Plaintiff contends that McDonald’s, which held only (as pertinent to this case) that there exists no affirmative, independent cause of action for a tortious interference with the attorney-client privilege, provides no basis for such dismissal. (McDonald’s Corp. v. Levine (1982), 108 Ill. App. 3d 732, 744.) The present case, however, concerns the psychiatrist-patient privilege — the invasion of which may constitute a recognized cause of action in Illinois. See Geisberger v. Willuhn (1979), 72 Ill. App. 3d 435, 438, 390 N.E.2d 945 (“The cases that have recognized the contract theory as a cause of action make it clear that the action lies for the disclosure of ‘personal’ information, e.g., information relating to the patient’s mental or physical condition ***.” (Emphasis added.))

Nonetheless, even if the lower court had, in fact, applied irrelevant case law in reaching its decision, “the judgment may be sustained upon any ground warranted, *** regardless of whether the reason given by the trial court was correct.” Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9.

A

Plaintiff asserts that Dr. Nyquist was in breach of his fiduciary duty through his unauthorized revelation of confidential information, i.e., by providing the results of Robert’s psychiatric evaluations to his mother, Retha, and her counsel.

It is settled law in Illinois that where a person makes statements to a therapist during a professional consultation, those statements are privileged. (In re Marriage of Semmler (1980), 90 Ill. App. 3d 649, 654, 413 N.E.2d 502; see also Martino v. Family Service Agency (1982), 112 Ill. App. 3d 593, 599-600, 445 N.E.2d 6.) Indeed, the Mental Health and Development Disabilities Confidentiality Act (hereinafter the Act) (Ill. Rev. Stat. 1983, ch. 91½, par. 801 et seq.) provides that “in any civil, *** proceeding, *** a recipient, *** has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications.” (Ill. Rev. Stat. 1983, ch. dlVz, par. 810.) Section 4 of the Act, however, provides in pertinent part that: “(a) The following persons shall be entitled, upon request, to inspect and copy a recipient’s record or any part thereof: (1) the parent or guardian of a recipient who is under 12 years of age; ***.” Ill. Rev. Stat. 1983, ch. 91V2, par. 804.

A recipient is defined in the Act as a person who has received mental health services (Ill. Rev. Stat. 1983, ch. 9IV2, par. 802(6)); mental health services include, but are not limited to, examination, diagnosis, evaluation and treatment (Ill. Rev. Stat. 1983, ch. 91^2, par. 802(3)); a record is defined in the Act as any record “kept by a therapist” in.the course of providing mental health services to a recipient (Ill. Rev. Stat. 1983, ch. §V-k, par. 80 — 2(7)); and a therapist, as used in the Act, includes psychiatrists (Ill. Rev. Stat. 1983, ch. 911/2, par. 802(9)).

At the time the instant action was commenced, Robert was under 12 years of age. Although Retha was not in custody of Robert at the time of the alleged psychotherapy, the fact still remains that she was a parent of Robert. Since the Act makes absolutely no distinction between a custodial or a noncustodial parent, we hold that Retha was entitled by statute, upon her request, to the results of Robert’s psychiatric evaluations. We think common sense suggests this humane position. Every parent, be he custodial or noncustodial, should be entitled to receive a copy of such a report unless it can be demonstrated a parent has no interest in the health, welfare or well-being of a child.

B

We next consider plaintiff’s claim that Dr. Nyquist’s treatment of Robert was, in fact, unauthorized by the Illinois Marriage and Dissolution of Marriage Act (hereinafter IMDMA) (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.). Specifically, plaintiff maintains that the following provision of the IMDMA prohibited the psychotherapy performed by Dr. Nyquist:

“Judicial Supervision. (1) Except as otherwise agreed by the parties in writing at the time of the custody judgment, the custodian may determine the child’s upbringing, including but not limited to, his education, health care and religious training, unless the court, after hearing, finds, upon motion by the noncustodial parent, that the absence of a specific limitation of the custodian’s authority would endanger the child’s physical health or significantly impair his emotional development.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 40, par. 608(a).

Our research has failed to disclose a single Illinois case wherein a private cause of action against a third party to a custody proceeding has ever been implied from section 608(a) of the IMDMA. Nonetheless, it is clear that “[sjection 608(a) *** speaks in terms of a single custodian with substantial authority.” (In re Marriage of Manuele (1982), 107 Ill. App. 3d 1090, 1094, 438 N.E.2d 691, appeal denied (1982), 92 Ill. 2d 568.) From a plain reading of the statutory language, it is also clear that the parties may agree “in writing at the time of the custody judgment” that a noncustodial parent retain specified rights to determine, or to participate in the determination of, matters concerning, inter alia, the minor child’s health care. (Cf. In re Marriage of Manuele (1982), 107 Ill. App. 3d 1090, 1094.) Regarding the case at bar, the record and briefs before this court are devoid of any indication that such a written agreement was, in fact, entered into at the time of the custody judgment.

Furthermore, under section 608(a), whenever circumstances arise wherein the custodian’s authority would endanger the child’s physical health or significantly impair his emotional development, the noncustodial parent, upon motion, can seek “specific limitations of such authority. We note, however, that there is no averment here of any circumstances regarding potential endangerment to Robert’s physical health, or significant impairment of his emotional development, by virtue of the custodial authority vested in plaintiff.

In view of the apparent secrecy of the psychiatric sessions involved herein, coupled with the fact that Dr. Nyquist testified as an expert witness on behalf of Retha at the hearing held in connection with her petition for change of custody, it is reasonable to conclude that the psychiatrist knew Retha as the noncustodial parent of Robert. There is no allegation here of an emergency situation, nor is there any allegation that Retha was precluded from seeking court permission for Dr. Nyquist’s treatment. The psychiatrist, therefore, simply had no authority to subject a young child to psychotherapy — twice a month for a period of one year — without lawful consent of either plaintiff, as Robert’s custodial parent, or the court having authority under section 608(a).

In essence, Dr. Nyquist’s actions over the one-year period of psychotherapy constituted a most severe interference with plaintiff’s custodial prerogatives and duties in the area of his minor child’s health care. Since neither the written agreement nor the exigent circumstances referred to in section 608(a) are present in this case, we are of the opinion that the lower court erred in refusing to recognize a cause of action for Dr. Nyquist’s alleged surreptitious, unauthorized psychiatric treatment of plaintiff’s son.

Count III

Count III of plaintiff’s complaint avers that Dr. Nyquist conspired “to gain physical and mental custody and control of [Robert] *** without regard to the physical and mental well-being of said minor child, and to maliciously, unlawfully, and wrongfully injure the plaintiff in his mental and emotional well-being.”

A civil conspiracy giving rise to a cause of action in Illinois involves a combination of two or more persons for the purpose of accomplishing, through concerted action, either an illegal object or a legal object by an illegal means. (Daley v. G’Sell (1981), 102 Ill. App. 3d 548, 553, 430 N.E.2d 556; Bau v. Sobut (1977), 50 Ill. App. 3d 732, 738, 365 N.E.2d 724.) The basis of the conspiracy is not the “combination”; rather, it is the wrongful act alleged to have been done in pursuance of the agreement that may result in liability. (Daley v. G’Sell (1981), 102 Ill. App. 3d 548, 553; Goetz v. Avildsen Tool & Machines, Inc. (1980), 82 Ill. App. 3d 1054, 1062-63, 403 N.E.2d 555, appeal denied (1980), 81 Ill. 2d 591.) The burden of proof in such cases always lies with the plaintiff to prove the conspiracy by clear and convincing evidence. Bergeson v. Mullinix (1948), 399 Ill. 470, 474-75, 78 N.E.2d 297; Alm v. General Telephone Co. (1975), 27 Ill. App. 3d 876, 880, 327 N.E.2d 523, appeal denied (1975), 60 Ill. 2d 595.

In our opinion, the allegations in count III are adequate to state a cause of action for a civil conspiracy to violate, if not vitiate, plaintiff’s court-decreed custodial rights in his child. Sufficient facts are set forth in the complaint at law so as to make it appear that the alleged wrongful acts of defendants did, indeed, result from a concerted action. This holds especially true in view of the fact, which we must accept as a verity (see Morrow v. L.A. Goldschmidt Associates, Inc. (1984), 126 Ill. App. 3d 1089, 1096), that Dr. Nyquist testified as an expert witness on behalf of Retha at the hearing held in connection with her petition for change of custody.

Without question, a conspiracy may be inferred from the circumstances peculiar to a specific case if the evidence is sufficient. (Bergeson v. Mullinix (1948), 399 Ill. 470, 475; Lurie v. Village of Skokie (1978), 64 Ill. App. 3d 217, 229, 380 N.E.2d 1120.) Plaintiff here has alleged the ultimate facts, albeit inferential, necessary to support a legally cognizable claim for civil conspiracy. We stress that “[w]hile ultimate facts necessary to support an action must be alleged, the pleader need not set forth evidence which very well may be derived from discovery subsequent to the filing of the complaint.” (Ingram v. Little Company of Mary Hospital (1982), 108 Ill. App. 3d 456, 459, 438 N.E.2d 1194, appeal denied (1982), 92 Ill. 2d 568, citing People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 430 N.E.2d 1005.) In addition, it is important to bear in mind that although a court-decreed custody change is certainly a legal object, plaintiff is nevertheless entitled to his day in court in order that he may attempt to prove, by clear and convincing evidence, a concerted action on the part of defendants to effectuate such a change through an illegal means.

“In sum, the pleadings are to be liberally construed with the view of doing substantial justice between the parties.” (Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 710, 425 N.E.2d 1174.) Hence, it is our conclusion that the lower court erred in dismissing count III of plaintiff’s complaint.

Count IV

Count IV of plaintiff’s complaint at law, which was amended on January 25, 1983, claimed that defendants conspired to separate Robert from plaintiff “so as to deprive the plaintiff of the relationship, and to injure and destroy the society and companionship of the child towards the said plaintiff ***.” It is plaintiff’s contention that a cause of action for the loss of a minor child’s society and companionship can be maintained by a parent in Illinois. We agree.

On July 5, 1984, the Illinois Supreme Court issued an opinion which reversed the trend of courts in this State to deny recovery for parental loss of a minor child’s society and companionship. This trend had been recently evinced in the case of Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 445 N.E.2d 485, aff’d and remanded with directions, (1984), 102 Ill. 2d 505, wherein the appellate court held that because there is a qualitative difference between the “society” of a spouse and that of a child, there existed no basis for including within the damage provisions of the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 1 et seq.) the loss of a child’s society. Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 390.

Our supreme court disagreed, however, holding that since recovery has been allowed in cases involving the loss of a spouse (Elliott v. Willis (1982), 92 Ill. 2d 530, 442 N.E.2d 163; Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157) and a parent (Hall v. Gillins (1958), 13 Ill. 2d 26, 147 N.E.2d 352), “it would be anomalous to now deny parents this form of recovery.” (Bullard v. Barnes (1984), 102 Ill. 2d 505, 515.) Although Bullard involved a wrongful death claim (whereas the conduct here is alleged to have nonfatal consequences, i.e., “brainwashing”), the fact remains that the supreme court specifically concluded that “parents are entitled to a presumption of pecuniary injury in the loss of a child’s society, ***. Defendants may rebut the presumption by presenting evidence that a parent and child were estranged.” (Emphasis added.) Bullard v. Barnes (1984), 102 Ill. 2d 505, 517.

In dismissing count IV of the instant complaint, the court below specifically relied on Koskela v. Martin (1980), 91 Ill. App. 3d 568, 414 N.E.2d 1148, appeal denied (1981), 83 Ill. 2d 570. In Koskela, the appellate court affirmed the dismissal of an autistic child’s action for the loss of consortium, companionship and society of her injured father. However, in view of the position recently taken by the Illinois Supreme Court in Bullard, and accepting all of the facts properly pleaded in count IV as true (including the averment that prior to the psychotherapy, “plaintiff and his son lived happily together in a harmonious family relationship”), it is our opinion that we should now recognize a cause of action for parental loss of a minor child’s society and companionship.

Furthermore, we note that contrary to Dr. Nyquist’s assertion, the present case does not concern the alienation of a child’s affections. Rather, as explained earlier, plaintiff’s complaint was amended by leave of court so that the words “to alienate and destroy the affection” were replaced by the words “to injure and destroy the society and companionship.”

Count V

Plaintiff’s final claim reiterates the breach of confidentiality allegations contained in count II, and then goes on to declare that Dr. Nyquist’s treatment of Robert was, in fact, unauthorized by the IM-DMA (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.).

First, as we have previously indicated, Retha was entitled by Illinois statutory law to the results of her son’s psychiatric evaluations. Dr. Nyquist’s release of this information thus did not constitute a breach of the psychiatrist’s fiduciary obligation of confidentiality.

Second, we note that count V, which “sounds in the tort of simple malpractice,” is devoid of the requisite elements necessary to establish such a claim, i.e., that the psychiatrist owed Robert a duty, which was breached or not performed, proximately causing injury, and resulting in damages. (See Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 813, 458 N.E.2d 1120.) While it is true that Dr. Nyquist’s psychiatric treatment of Robert was, indeed, allegedly surreptitious and unauthorized, we believe that in light of the foregoing deficiencies, such a circumstance, without more, simply cannot amount to actionable malpractice. The trial court thus correctly dismissed count V of plaintiff’s complaint.

CONCLUSION

A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle a plaintiff to recovery. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61.) We cannot say, as a matter of law, that there is no evidence under the instant allegations of fact which could prove unauthorized psychiatric treatment under section 608(a) of the IMDMA, a civil conspiracy, and parental loss of a minor child’s society and companionship. Rather, counts II, III and IV of plaintiff's complaint set forth sufficient factual allegations upon which to go forward "with a trial on the merits.

For the reasons set out herein, that portion of the judgment of the circuit court of Cook County dismissing counts I and V of plaintiff’s complaint is affirmed. That portion dismissing counts II, III and TV is reversed, and the cause is remanded for further proceedings.

Affirmed in part, reversed in part and remanded.

HARTMAN, P.J., and STAMOS, J., concur.

      Formerly known as Ill. Rev. Stat. 1979, eh. 110, par. 45.

      Defendant- Retha J. Dymek failed to file a brief with this court in accordance with Supreme Court Rule 343 (87 Ill. 2d R. 343). The trial court’s judgment as to this particular appellee is considered on the merits pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493.

      The dismissal order of June 6, 1983, indicates that Retha had, at some indeterminate point, joined in on Dr. Nyquist’s motion to strike and dismiss plaintiff’s complaint.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES GLASS, Defendant-Appellant.
    First District (1st Division)
    No. 83—1820
    Opinion filed November 13, 1984.

      Alan D. Goldberg, of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Frank Zelezinski, and Karyn Stratton, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

After a jury trial, defendant, Charles Glass, was found guilty of the murder of Howard Jackson and sentenced to 20 years. On appeal, defendant raises the following issues: (1) whether the trial court erred in failing to clarify the instructions given the jury; (2) whether the instructions given to the jury accurately stated the law to sustain a charge of murder; and (3) whether the defendant was rendered ineffective assistance of counsel.

The record discloses that the victim, Howard Jackson, was shot to death on January 30, 1983. Jackson resided on the second floor of a two-flat apartment building located at 6921 South Paulina in Chicago along with his girlfriend, a woman named Darlene. The defendant, Charles Glass, resided in the first-floor apartment with his common law wife, Dorothy Gregory, who owned the building. At the time of his death, the victim was 26 years old, weighed 303 pounds and was 5 feet 11 inches tall. The defendant was 57 years of age and weighed 135 pounds.

According to defendant, he had known Jackson for approximately one year and first met him when Jackson moved into the upstairs apartment. During this period of time, there had been several occasions when defendant would arrive home and find Jackson, in a drunken condition, in his apartment. The defendant would ask him to leave, and Jackson would refuse. Arguments would ensue, and eventually Jackson would depart.

On one particular occasion, approximately three weeks prior to January 30, 1983, defendant came home, found Jackson in his apartment and asked him to leave. Although defendant reiterated his request eight or 10 times, Jackson repeatedly refused. Defendant then called the police, who forcibly removed Jackson and took him into custody.

On the evening of January 30, 1983, defendant arrived at his apartment and once again found Jackson in his apartment, sitting on the couch, next to defendant’s common law wife, Dorothy Gregory. Defendant repeatedly asked Jackson to leave, but he refused and the two engaged in a heated exchange of words. Jackson put his hand in his back pocket and moved towards defendant. Defendant then shot Jackson three times.

At the close of the trial, the jury received a series of instructions which included instructions on murder and voluntary manslaughter. After four hours of deliberations, the jury sent a note to the trial judge inquiring whether it was necessary to return verdicts on both the murder and voluntary manslaughter charges. The judge responded by directing the jury to reach their verdict on the basis of the instructions already received. A few minutes later, the jury returned a verdict of guilty of murder, but returned the verdict forms on manslaughter unsigned.

Defendant initially contends that the trial court’s refusal to further instruct the jury was reversible error, since the inquiry regarding whether verdicts must be returned on each of the charges was a question which the court had a duty to clarify. We find that the jury was adequately instructed. It is a general rule that additional instructions may be given in a criminal case after the jury has retired, provided that the State, the defendant, and his counsel are present. (People v. Kucala (1972), 7 Ill. App. 3d 1029, 288 N.E.2d 622.) This rule, however, does not require the judge to issue additional instructions in all cases, especially if the trial judge determines that further instructions would serve no useful purpose. (People v. Jones (1976), 40 Ill. App. 3d 771, 353 N.E.2d 79.) In considering the adequacy of instructions, a reviewing court must take all of the instructions as a unit to ascertain whether they fully and fairly cover the law. People v. Mitchell (1979), 78 Ill. App. 3d 458, 397 N.E.2d 156.

In the case at bar, the jury was given instructions which extensively detailed the elements and definition of murder, voluntary manslaughter, justifiable use of force and reasonable belief. The instructions also outlined the State’s burden of proof for both murder and voluntary manslaughter. (See Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 1.01, 1.02, 1.03, 2.01, 2.02, 2.03, 3.02, 3.06-3.07, 3.10, 3.11, 7.01, 7.02 and 24-25.06A, 7.05, 7.06 and 24-25.06A, 24-25.06, 4.13 and 26.01 (2d ed. 1981).) The jury was fully and properly instructed on the law as it related to the instant set of facts. The instructions were clear and in common language which the jury could understand. Under these circumstances, we find that the court properly exercised its discretion in not answering the jury’s question or giving additional instructions. (People v. Vega (1982), 107 Ill. App. 3d 289, 294, 437 N.E.2d 919, 923; People v. Charles (1977), 46 Ill. App. 3d 485, 489, 360 N.E.2d 1214, 1217; People v. Jones (1976), 40 Ill. App. 3d 771, 775, 353 N.E.2d 79, 82.) Any response to the jury’s inquiry may have required a colloquy between the court and the jury, a further explanation of the facts, and perhaps an expression of the trial court’s opinion on the evidence. See People v. Tostado (1981), 92 Ill. App. 3d 837, 839, 416 N.E.2d 353, 355.

Defendant further contends that it was plain error for the murder issue instructions given to the jury to omit the element that the jury find the defendant did not believe that his actions were justified. Defendant relies on People v. Stuller (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593, and People v. Hoffer (1984), 122 Ill. App. 3d 13, 460 N.E.2d 824. In Stutter, the court found this element essential because the purpose of including the element “is to make the jury aware of the distinction between the crimes of murder and manslaughter.” (People v. Stuller (1979), 71 Ill. App. 3d 118, 122, 389 N.E.2d 593, 595.) The court held this omission to be plain error because the element cited was a required part of the IPI murder instructions at the time of the trial. (See IPI Criminal No. 27.01 (1st ed. 1968).) However, that element has been removed from the current set of murder issue instructions contained in the second edition of IPI Criminal. (See IPI Criminal No. 27.01 (2d ed. 1981).) In Hoffer, the jury was instructed on murder, voluntary manslaughter and involuntary manslaughter. In addition, the jury was instructed that where the defendant has intentionally or knowingly killed an individual, but acts with an unreasonable belief that the killing was justified, the offense committed is voluntary manslaughter, rather than murder. The jury returned guilty verdicts on all three charges. The appellate court reversed, holding that the verdicts were legally inconsistent, as they demonstrated that the jury was confused as to whether defendant believed that his conduct was justified or not. Hojfer, however, does not hold that the element that the jury find the defendant did not believe that his actions were justified must be included in a murder instruction.

In criminal cases, where Illinois Pattern Jury Instructions contain an applicable instruction, giving due consideration to the facts and governing law, the IPI instruction is to be used, unless the court determines that it does not accurately state the law. (87 Ill. 2d R. 451(a); People v. Mitchell (1979), 78 Ill. App. 3d 458, 397 N.E.2d 156.) Here, the jury received the IPI criminal pattern instructions on both murder and voluntary manslaughter. Although the current murder issue instruction omits the element of whether the defendant actually, but reasonably, believed that circumstances existed which justified the use of deadly force, the voluntary manslaughter instructions given to the jury did include this element. If the jury believed defendant was justified in using deadly force, it could have returned a verdict of guilty of manslaughter and have left the murder verdict forms unsigned. Therefore, we cannot say that the omission of this element from the murder issue instruction gave rise to plain error.

Moreover, defense counsel did not object to the instructions that were given, nor did he tender any alternate instructions. The failure to object at trial to an asserted error in jury instructions waives the question, and no party may raise on appeal the failure to give an instruction unless he tendered it at trial. (People v. Huckstead, (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.) Thus, defendant has waived this issue on appeal.

Finally, defendant contends that he received ineffective assistance of counsel when his attorney delivered a rambling, ineffective and confusing closing argument. The State responds that, under the totality of the circumstances, defendant received adequate assistance of counsel and his conviction should be affirmed. Defendant cites Strickland v. Washington (1984), 466 U.S. _, 80 L. Ed. 2d 674, 104 S. Ct. 2052, where the United States Supreme Court promulgated a new standard for considering claims of ineffective assistance of counsel. That standard is that “the defendant must show that counsel’s representation fell below an objective standard of reasonableness,” and that there is a “reasonable probability” that, but for counsel’s errors, the result of the proceeding would have been different. The court defined a “reasonable probability” as a “probability sufficient to undermine confidence in the outcome.” 466 U.S. _, _, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2069.

Our Illinois Supreme Court has adopted a similar standard in People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217. In analyzing a defense counsel’s trial performance, we must examine the record as a whole, rather than focusing on an isolated incident. (People v. Martin (1983), 122 Ill. App. 3d 486, 445 N.E.2d 795.) Appellate review will not extend to those areas of representation which involve the exercise of judgment, trial tactics and strategy. (People v. Gallardo (1983), 112 Ill. App. 3d 764, 445 N.E.2d 1213.) In view of defense counsel’s overall competent performance, we cannot conclude that any inadequacy in his closing argument rendered defendant ineffective assistance of counsel. We note that counsel did an able job in giving a very detailed opening statement and in extensively cross-examining the State’s witnesses. We therefore cannot say that but for the alleged rambling closing argument of defense counsel, the outcome of the defendant’s trial would have been different.

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

Judgment affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.


author: PRESIDING JUSTICE MILLS

text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, Plaintiff-Appellee, v. THE DYNASTY SYSTEM CORPORATION et al., Defendants-Appellants.
    Fourth District
    Nos. 4—84—0337, 4—84—0414 cons.
    Opinion filed November 15, 1984.
    Rehearing denied December 12, 1984.

      Stine & Wolter, P.C., of Springfield, and Thayer C. Lindauer, of Phoenix, Arizona, for appellants.
    Neil E Hartigan, Attorney General, of Springfield (John G. Abrell and Scott D. Spooner, Assistant Attorneys General, of counsel), for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Pyramid sales scheme.

TRO and preliminary injunction issued.

Interlocutory appeal.

We affirm.

The Dynasty System Corporation (TDSC), R. Keith Julian, Pat Julian, and Rachel McClelland — defendants here — bring this interlocutory appeal from denial of their motion to vacate a temporary restraining order and to vacate a preliminary injunction enjoining them from marketing TDSC’s products and services.

We affirm.

I. FACTS

The record discloses that TDSC is a Texas corporation,. R. Keith Julian and Pat Julian are the founders and sole shareholders of TDSC, and Rachel McClelland is a TDSC distributor who resides in Quincy, Illinois.

TDSC is a multilevel sales corporation which markets its products and services throughout the United States. Its sales program is designed both to sell its products and services and to recruit new distributors. A TDSC distributor may purchase the products and services for personal consumption or for resale to third parties. A distributor earns commissions on products and services purchased by other TDSC distributors he recruits into the “Dynasty System” and by those his recruits in turn recruit.

Each distributor is thus encouraged to develop a “down-line” organization by sponsoring other distributors into the System. Ideally, each distributor would recruit four individuals into the System, and each of them would recruit four additional persons, until the original distributor has a down-line organization consisting of seven levels and comprising 16,384 persons. A distributor only receives commissions on purchases of products and services by those distributors within his down-line organization.

TDSC’s marketing operation consists of five programs. Under the first program, a person becomes a “Dynasty distributor” and may sponsor other distributors. Under a second program — Dynasty System I — “free enterprise” — a person becomes a distributor in other multilevel sales companies recommended by TDSC. One of the two companies presently recommended by TDSC is a company wholly owned and operated by the Julians. These companies also pay commissions on products purchased by persons in the distributor’s down-line organization.

A third program — Dynasty System II “The Master Achiever’s Club” — offers a personal development course consisting of a series of 12 motivational tapes. The cost of this program is $70 per year. The fourth program — “Executive Management Information Service” — offers a monthly computer report of the recruitments and purchases of distributors in a-participant’s down-line organization. The fee for this service is $80 per month.

Upon sponsoring one additional participant, a distributor gains entry into the fifth program — Dynasty III, “The Millionaire’s Circle.” This entitles the entrant to enlist the aid of a computer service in filling their down-line organization with the System's extra recruits.

On April 24, 1984, the Attorney General of Illinois filed a multicount complaint against the defendants alleging that TDSC’s multilevel sales program constituted common law fraud, an illegal lottery, a pyramid sales scheme, and a chain referral sales technique. The Attorney General requested a temporary restraining order (TRO), a preliminary injunction, a permanent injunction and civil penalties.

After an ex parte hearing at which the court heard the testimony of the Attorney General's witness, the trial court issued a TRO enjoining the defendants from “advertising for sale, offering for sale, or selling multi-level goods and services, by or through the Defendant ‘The Dynasty System Corporation.’ ” The TRO was to be effective for nine days, and the court set a hearing on the Attorney General’s motion for a preliminary injunction on the day the TRO was to expire. On May 2, 1984, the defendants filed a motion to vacate the TRO.

•An evidentiary hearing regarding the defendants’ motion to vacate the TRO and the Attorney General’s motion for a preliminary injunction was held on May 2, 1984. The evidence offered by the Attorney General indicated that the various programs offered by TDSC were marketed as an entire system. Each witness who testified had participated in all of the programs and had made an initial investment of $256. Several of the products ordered and paid for by the distributors had never been received. Testimony also indicated that some of the products were of inferior quality and that others were not competitively priced.

The primary emphasis in the Dynasty System was placed upon recruiting other participants into the System in order to build a down-line organization, and little emphasis was placed upon retail sales of the products and services. None of the distributors testifying for the Attorney General had recruited an additional participant, nor had any of them made a retail sale of the products or services they had purchased.

The trial court denied the defendants’ motion to vacate the TRO and issued a preliminary injunction enjoining the defendants in the same manner as the TRO.

In issuing the preliminary injunction, the court stated that the Attorney General had shown that the defendants’ activities may constitute a pyramid sales scheme. The defendants then filed interlocutory appeals from both orders. The cases were consolidated on appeal.

II. ANALYSIS

The defendants raise the following issues on appeal: (1) Whether their activities may constitute a pyramid sales scheme; (2) whether they were erroneously held liable for the acts of other TDSC distributors; (3) whether the pyramid sales scheme statute is unconstitutional; and (4) whether the Attorney General was required to prove the traditional common law requirements for an injunction.

PYRAMID SALES SCHEME

The first issue to be considered on appeal is whether the evidence presented at the hearing on the Attorney General’s motion for a preliminary injunction established that TDSC’s activities may constitute a pyramid sales scheme in violation of the Consumer Fraud and Deceptive Business Practices Act (the Act) (Ill. Rev. Stat. 1983, ch. 1211/2, par. 262A(2)).

Section 1(g) of the Act (Ill. Rev. Stat. 1983, ch. 1211/2, par. 261(g)) defines a pyramid sales scheme to include:

“[A]ny plan or operation whereby a person in exchange for money or other thing of value acquires the opportunity to receive a benefit or thing of value, which is primarily based upon the inducement of additional persons, by himself or others, regardless of number, to participate in the same plan or operation and is not primarily contingent on the volume or quantity of goods, services, or other property sold or distributed or to be sold or distributed to persons for purposes of resale to consumers.”

. TDSC contends that its activities do not constitute a pyramid sales scheme because the Act requires that a person exchange money or other value for the right to benefit. TDSC argues that, under its programs, a person may become a “Dynasty distributor” without purchasing any products or services. TDSC points out that, due to a change in its policies effective April 1, 1984, a Dynasty distributor earns maximum commissions from purchases of products by distributors in his down-line organization without regard to his participation in the System. Prior to this change, a participant would not earn the full amount of the commission unless he purchased a minimum amount of products from the affiliated companies, the tapes and the computer reports each month. We do not, however, find this change in policy to be determinative.

An argument similar to that made by the defendants here was considered and rejected by the North Carolina Court of Appeals in State ex rel. Edmisten v. Challenge, Inc. (N.C. App. 1981), 54 N.C. App. 513, 284 S.E.2d 333. The North Carolina statute defined a pyramid distribution plan as “ '*** any program utilizing a pyramid or chain process by which a participant gives a valuable consideration for the opportunity to receive compensation or things of value in return for inducing other persons to become participants in the program; ***.’ ” (54 N.C. App. 513, 516-17, 284 S.E.2d 333, 336.) The defendants argued that their activities did not constitute an unlawful plan because an “Independent Sales Agent” need not purchase any products or services in order to earn commissions from the recruitment of new sales agents. In rejecting the defendants’ argument, the court held that the statute is violated if an individual pays consideration, whether or not he is required to pay it.

Following the rationale of the court in Edmisten, we hold that whenever a person exchanges money for a right to benefit in a pyramid sales plan, it is irrelevant whether he is required to do so. All of the TDSC distributors who testified at the hearing had paid money to participate in TDSC’s programs. Testimony also indicated that almost all of 269 distributors in Illinois had paid money to TDSC or its affiliated companies.

Thus, in view of our interpretation of the statute, TDSC’s change in policy does not affect its liability under the Act. It is apparent that the success of the Dynasty System is incumbent upon the continued participation by all of its members. The upward flow of commissions would come to an abrupt halt if the participants failed to make their monthly purchases. Active recruitment and continued participation were portrayed as the “Dynasty Way.”

The defendants also argue that the evidence fails to show that the benefits received by TDSC distributors are primarily based upon the inducement of others to participate and are not primarily contingent on the volume of goods sold to persons for purposes of resale to consumers. We disagree.

The evidence overwhelmingly demonstrates that the primary emphasis is on commissions earned by building a down-line organization. Testimony established that TDSC was represented as a consuming organization and not as a selling organization. Commissions are not dependent upon retail sales to ultimate consumers, but are paid solely upon purchases made by distributors in the participant’s down-line organization.

Although TDSC maintains that the Dynasty II tapes and the Executive Management Computer Reports are marketable products, none of the distributors testifying at the hearing had made a single sale of either item. A similar situation was before the court in Dare To Be Great, Inc. v. Commonwealth ex rel. Hancock (Ky. 1974), 511 S.W.2d 224, where the court considered a scheme involving the sale of a series of motivational tapes through distributorships. The court stated that the scheme constituted a fraudulent and deceptive trade practice and that the purpose of the tapes was to provide the defendant with “a flimsy and transparent claim of legitimacy for their fraudulent enterprise.” 511 S.W.2d 224, 226.

In their brief, the defendants acknowledge the current lack of retail sales but argue that the System’s operation cannot fairly be judged in its infancy. The defendants claim that as the distributorship network expands, retail sales will also expand. The statute, however, does not provide any dispensation for start-up activities, and we decline to create one.

In sum, we believe that the Attorney General established that TDSC’s activities may constitute a pyramid sales scheme as defined by the Act.

Because of this conclusion, we also reject the defendants’ contention that they were erroneously held responsible for the acts and omissions of other TDSC distributors. TDSC contends that the witnesses’ misconceptions of TDSC policy, fostered by the misrepresentations of other TDSC distributors, led the trial court to conclude that its activities fall within the ambit of the Act.

As we have previously stated, TDSC’s activities constitute a pyramid sales scheme under the Act, and its new policy does not change this result. Under the Act, it is unlawful “for any person, by himself or through others, to sell, offer to sell, or attempt to sell the right to participate in a pyramid sales scheme.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 121½, par. 262A(2).) Under the facts at bar, TDSC’s liability under the Act is inescapable. The evidence also demonstrates an effort to continue the scheme within the State. According to the testimony of TDSC’s witnesses, a TDSC field instructor training program was to be held in Quincy on April 28 and 29, but was canceled after the issuance of the TRO.

CONSTITUTIONALITY OF SECTION 1(g)

The next argument raised by the defendants is that section 1(g) of the Act setting forth the definition of a pyramid sales scheme is void for vagueness. That section provides that the right to benefit received in exchange for money or other value must be “primarily” based on recruiting others to participate and must not be “primarily” contingent upon the volume of goods sold for purposes of resale to consumers. (Ill. Rev. Stat. 1983, ch. 121½, par. 261(g).) The defendants contend that the word “primarily” does not inform a person of reasonable intelligence of what conduct is prohibited by the Act. We disagree.

“Primarily” means “pre-eminently” or “fundamentally.” (See Mid-South Chemical Corp. v. Carpentier (1958), 14 Ill. 2d 514, 153 N.E.2d 72.) This term is certainly less broad than other terms contained in the Act which have withstood void-for-vagueness challenges. In Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 289, 430 N.E.2d 1012, 1017, the court held that the terms “deception,” “false pretense,” “misrepresentation,” and “fraud” are “ ‘sufficiently explicit to inform those who are subject to [the Act] of the conduct on their part to which it applies’ (Stein v. Howlett (1972), 52 Ill. 2d 570, 580, [289 N.E.2d 409, 414]), and therefore cannot be said to be unconstitutionally vague.” The court further stated that “[g]reater leeway in definition is allowed the legislature in the context of regulatory statutes governing business activities.” (88 Ill. 2d 279, 290, 430 N.E.2d 1012, 1018.) We hold that the term “primarily” provides fair notice to those who are subject to the Act of the schemes and ventures which are prohibited.

We also reject the defendants’ contention that the statute is unconstitutional because it places an undue burden on interstate commerce. TDSC argues that the cost of requiring it to monitor the retail sales of its distributors to insure that the benefit they receive is primarily from retail sales would be prohibitive.

In Pike v. Bruce Church, Inc. (1970), 397 U.S. 137, 142, 25 L. Ed. 2d 174, 178, 90 S. Ct. 844, 847, the United States Supreme Court set out the test for determining whether a State statute which affects interstate commerce violates the commerce clause:

“Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. [Citation.] If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.”

Section 1(g) of the Act applies indiscriminately to all sales schemes, whether they involve business transactions within or outside of Illinois. The stated purpose of the Act is to protect consumers, borrowers, and businessmen from fraud, unfair or deceptive acts or practices, and business transactions. Frahm v. Urkovich (1983), 113 Ill. App. 3d 580, 447 N.E.2d 1007.

The inherently fraudulent nature of pyramid sales schemes was recognized and discussed in People ex rel. Fahner v. Walsh (1984), 122 Ill. App. 3d 481, 486-87, 461 N.E.2d 78, 82-83:

“Pyramid programs *** which induce a person to participate on the representation that he or she cannot only regain the purchase price, but also reap profits by selling the plan to others, are inherently deceptive and contrary to public policy. (Twentieth Century Co. v. Quilling (1907), 130 Wis. 318, 324-25, 110 N.W. 174, 176; Kugler v. Koscot Interplanetary, Inc. (1972), 120 N.J. Super. 216, 232, 293 A.2d 682, 690-91; State by Lefkowitz v. ITM, Inc. (1966), 52 Misc. 2d 39, 275 N.Y.S.2d 303; In re Holiday Magic, Inc. (Oct. 15, 1974), 84 F.T.C. 748.) The deception arises because the market eventually becomes saturated and the seemingly endless chain must end; consequently, many participants cannot even recoup their investments, let alone make a profit. (State ex rel. Sanborn v. Koscot Interplanetary, Inc. (1973), 212 Kan. 668, 675-76, 512 P.2d 416, 423; Lefkowitz v. ITM, Inc. (1966), 52 Misc. 2d 39, 275 N.Y.S.2d 303; In re Holiday Magic, Inc. (Oct. 15, 1974), 84 F.T.C. 748.)”

The eradication of such fraudulent schemes is clearly a legitimate and important State interest.

The defendants claim that in order to comply with the Act they would have to furnish forms to all TDSC distributors and require all distributors to provide the requested information concerning retail sales. They argue that this would be “extremely difficult, if not physically impossible.”

We note that the majority of TDSC distributors place an order each month for either products or the computer report, or both, and that TDSC, through its “Executive Management Information Service,” extensively monitors the activities of its distributors. We do not consider the additional administrative burden imposed in monitoring its distributors’ retail sales to be excessive or even significant when compared to the protection afforded by the Act to the residents of this State.

The defendants contend that the Illinois statute is unique in imposing such a restriction on multilevel sales companies. The defendants argue that this fact alone constitutes a violation of the commerce clause. This argument is without merit. Other States similarly prohibit only those sales schemes which place their primary emphasis on profits made by recruiting other participants. (Mo. Ann. Stat. sec. 407.400(5) (Vernon 1979); State v. Solem (1974), 301 Minn. 282, 222 N.W.2d 98.) Additionally, many States blanketly prohibit all pyramid schemes wherein participants receive value, other than payment based on the sales of goods and services to nonparticipants, for inducing other persons to become participants in the program. (See, e.g., Nev. Rev. Stat. sec. 598.100 (1979); N.C. Gen. Stat. sec. 14— 291.2(b) (1981); Ohio Rev. Code Ann. sec. 1333.91 (Page 1979); Pa. Stat. Ann. tit. XIII, sec. 201 — 2(4)(xiii) (Purdon 1983).) Thus, the Illinois statute is not unique and — in fact — is less restrictive than the acts in many States.

In conclusion, the pyramid sales scheme statute does not place an undue burden on interstate commerce.

REQUISITE SHOWING FOR INJUNCTIVE RELIEF

Next, we consider the defendants’ argument that the TRO was wrongfully issued. Any issue regarding a TRO is moot when the TRO has expired and the record does not indicate any possibility of damages. (Rotary Club v. Harry F. Shea & Co. (1983), 120 Ill. App. 3d 988, 458 N.E.2d 1002; City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 380 N.E.2d 1106.) Under the doctrines of sovereign immunity and public officials’ immunity, the defendants are barred from recovering monetary damages. (Ill. Rev. Stat. 1983, ch. 127, par. 801; People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 359 N.E.2d 149.) Thus, the question of whether the trial court abused its discretion in granting the TRO is moot.

The defendants also argue that the trial court erred in granting the preliminary injunction because the Attorney General failed to prove the common law requirements for injunctive relief. The Attorney General is specifically authorized to seek an injunction under section 7 of the Act, which provides in pertinent part, as follows:

“Whenever the Attorney General has reason to believe that any person is using, has used, or is about to use any method, act or practice declared by Sections 2 through 20 of this Act to be unlawful, and that proceedings would be in the public interest, he or she may bring an action *** to restrain by preliminary or permanent injunction the use of such method, act or practice.” Ill. Rev. Stat. 1983, ch. 121V2, par. 267.

In People ex rel. Edgar v. Miller (1982), 110 Ill. App. 3d 264, 441 N.E.2d 1328, this court held that when an injunction is authorized by statute, the traditional common law grounds for relief need not be established and that the requirements of the statute are controlling. This position is in accord with numerous other jurisdictions, which hold that where an injunction is sought pursuant to a statute which provides a governmental agent with the means to enforce public policy, the common law requirements for relief need not be proved as long as the statutory requirements are met. See State ex rel. Edmisten v. Challenge, Inc. (N.C. App. 1981), 54 N.C. App. 513, 284 S.E.2d 333, and cases cited therein.

The defendants rely upon Oscar George Electric Co. v. Metropolitan Fair & Exposition Authority (1982), 104 Ill. App. 3d 957, 433 N.E.2d 958, as support for their position. There the statutory provision was not a regulatory scheme and merely authorized the injured party, an aggrieved bidder on a governmental contract, to “bring a suit in equity.” Thus, Oscar George Electric is distinguishable and is not controlling here.

In conclusion, we find that the Attorney General, seeking an injunction pursuant to the Act, need only show a violation of the statute.

Accordingly, for the foregoing reasons, we affirm.

Affirmed.

GREEN and WEBBER, JJ., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE ex rel. DONELSON, Petitioner-Appellee, v. MICHAEL COWLING, Respondent-Appellant.
    First District (5th Division)
    No. 83—2840
    Opinion filed November 21, 1984.

      Gorman & Fenili, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Richard C. Anderson, Assistant State’s Attorney, of counsel), for appellant.
   JUSTICE LORENZ

delivered the opinion of the court:

Respondent appeals from an order denying his request that attorney’s fees be assessed against the State’s Attorney’s Office pursuant to section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611), for statements made within a petition for rule to show cause and a motion to vacate which respondent alleged were untrue and made without reasonable cause.

We affirm and pertinent to our decision are the following.

Upon respondent’s stipulation that he was the father of petitioner Letitia Donelson’s children, Kyle and Jillian, he was ordered on October 5, 1982, to pay her the sum of $100 per month as child support. She requested a rehearing on November 4, 1982, alleging that respondent’s financial affidavits concerning his ability to pay for support contained statements of questionable veracity. On April 5, 1983, after a rehearing, the court entered its modified order directing that respondent pay $125 monthly, retroactive to September 1, 1982. On April 13, 1983, respondent paid the clerk of the circuit court $1,000 as payment in full for September through April and made a further payment on May 24, 1983, of $125 as ordered. Letitia cashed the clerk’s $1,000 check on May 25, 1983.

On June 1, 1983, the State’s Attorney filed a petition requesting that the court issue to respondent a rule to show cause why he should not be held in contempt for his failure to make payments as ordered. The petition was dated May 26, 1983, and was signed'by an assistant State’s Attorney who swore that he had read the petition, and knew “the contents to be true in substance and in fact based on information and belief.” In addition, the State’s Attorney filed a petition signed by Letitia seeking to vacate the April 5, 1983, order urging the same reasons previously advanced, i.e., respondent’s misstatements as to his transportation and car expenses, and requesting new hearings on child support.

The rule was entered although neither respondent nor his counsel was given notice and neither was present in court.

At a hearing on June 27, 1983, the State’s Attorney withdrew the request for the rule to show cause and acknowledged that Letitia had received the payments due, but requested instead a hearing on petitioner’s motion to vacate the April 5, 1983, order. Pursuant to this request, the trial court considered petitioner’s motion, but denied it on the grounds that the same allegations contained therein had been settled by the court’s order of April 5, 1983.

Thereupon, respondent, alleging harassment at being required to defend allegations that he claimed were made without reasonable cause and found to be untrue, filed his petition for attorney fees pursuant to section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611). In his petition, he represented to the court that although he had already paid to the clerk of the circuit court the child support payments as ordered on April 5, 1983, he was never notified of the State’s Attorney’s petition for a rule to show cause and, further, he was being harassed by the petitioner’s motion to vacate the April 5, 1983, order, which he claimed contained the same representations of his alleged misstatements as had been previously ruled upon in the court’s order of April 5, 1983.

The State’s Attorney filed his answer to the petition for fees in which it denied respondent’s allegations. After hearings begun on September 23, 1983, and completed on October 13, 1983, the court denied respondent’s request for fees, and this appeal follows.

Opinion

Respondent contends the trial court abused its discretion in denying his petition for expenses and attorney fees incurred in defending against the State’s petition for a rule to show cause, as well as petitioner’s motion to vacate. The petition was brought pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611, formerly Ill. Rev. Stat. 1981, ch. 110, par. 41), which in part provides:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.
The State of Illinois or any agency thereof shall be subject to the provisions of this Section in the same manner as any other party.”

The purpose of section 2 — 611 is to prevent abuse of the judicial process by penalizing the litigant who brings vexatious or harassing actions based on false statements or brought without legal foundation. (Farwell Construction Co. v. Ticktin (1978), 59 Ill. App. 3d 954, 960, 376 N.E.2d 621.) Because the statute is penal in nature, it may be invoked only in cases falling strictly within its terms. (Fewer v. Grant (1982), 111 Ill. App. 3d 747, 750, 444 N.E.2d 628.) The movant bears the burden of proving that allegations or denials were untrue and that they were made without reasonable cause. (See Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 366, 383 N.E.2d 185.) The application of this statute should be limited to cases where a party has abused his right of free access to the courts by pleading untrue statements of fact which the party knew or reasonably should have known were untrue. (Third Establishment, Inc. v. 1931 North Park Apartments (1981), 93 Ill. App. 3d 234, 243, 417 N.E.2d 167.) The lower court’s decision regarding the assessment of attorney fees is entitled to great weight, and a court of review will not disturb that determination unless there is a clear showing that the court abused its discretion. Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 979, 370 N.E.2d 119.

Respondent initially seeks to impose attorney fees upon the State’s Attorney’s office because he received no notice of the petition for a rule to show cause filed on June 1, 1983. He also contends that he was never in arrears on child support owed, and further posits that the judgment of October 5, 1982, was stayed until the April 5, 1983, order was issued, and that he paid the $1,000 owed as a result of the latter order on April 13, 1983, just one week after the order was issued. Respondent concludes that the State’s Attorney’s office has the records of the clerk of the circuit court at its disposal, and that there is no reason why the State’s Attorney’s office should not make at least a cursory inquiry when substituting in a case, so as to determine whether a respondent is in arrears. Therefore, he concludes the State knew or reasonably should have known that its allegations, made in connection with the petition for a rule to show cause, were untrue and easily verifiable.

Additionally, respondent contends that the State showed bad faith in its “harassment” of respondent by going forward with petitioner’s motion to vacate the April 5, 1983, order. He posits that the State’s Attorney’s office should have known that the grounds presented by the State’s Attorney in conjunction with the motion to vacate had already been presented to the court on November 4, 1982, and acted upon accordingly on April 5, 1983.

The State conversely contends that it was not “the party pleading” the allegations contained in either the petition for rule to show cause or the motion to vacate the April 5, 1983, order, but was merely acting on behalf of petitioner. Moreover, as soon as the State was made aware that the payment in question had been made, it voluntarily withdrew its rule to show cause. The State further argues that, at its very worst, any characterization to be placed upon the actions of the State’s Attorney must be placed in the category of an “honest mistake” which is not within the purview of section 2 — 611, as there was evidence presented that the clerk’s check to petitioner was initially improperly addressed, thereby causing a delay in petitioner’s receipt of same.

Respondent relies solely upon the decision in State of Maine Department of Human Services ex rel. Smail v. Smail (1981), 100 Ill. App. 3d 997, 427 N.E.2d 636, for authority to impose the sanctions of section 2 — 611 against the State. In State of Maine, the appellate court affirmed the decision of the trial court to assess damages against the State of Maine, which had brought suit on behalf of a woman who alleged that her husband was in arrears in support. The State of Maine court found that the lower court could have properly-concluded that the Department of Human Services agents lacked reasonable cause to make the allegations of the complaint and proceed with the case without first attempting to contact the defendant, and found that the assessment of damages in that case was not an abuse of discretion. (100 Ill. App. 3d 997, 1000.) However, we do not believe that the State of Maine court addressed an important issue which is involved in cases of this nature: whether the State is the real “party” in interest in an ex rel. action.

This issue has been addressed in People ex rel. Reliford v. Roberts (1983), 112 Ill. App. 3d 351, 445 N.E.2d 482, where the appellate court determined that in a paternity suit and other types of special actions, the State is merely a nominal party while the complainant (petitioner) is the real party in interest. In the instant case, we believe that the petitioner, and not the State, is the real “party” in interest, and that the State was merely acting on petitioner’s behalf in filing her motion; to determine otherwise would violate the principle of strict construction that we must apply in dealing with section 2 — 611. (See People ex rel. Reliford v. Roberts (1983), 112 Ill. App. 3d 351, 355, 445 N.E.2d 482.) This court has held that section 2 — 611 refers to attorney fees which are “incurred by the other party,” and acts to effectively distinguish between a party and his attorney. Evans v. Stoval (1980), 83 Ill. App. 3d 257, 260, 403 N.E.2d 1321.

We note that it is assumed that attorneys, in the filing of their pleadings, have due regard for their duties and responsibilities as officers of the court, and they are permitted to exercise broad discretion, based on honest judgment, from the facts presented to them. (Horween v. Dubner (1965), 68 Ill. App. 2d 309, 320, 216 N.E.2d 288.) Also supporting our view is the public policy that holds that the very purpose of a court of law is to determine whether an action filed by a party has merit (see Lyddon v. Shaw (1978), 56 Ill. App. 3d 815, 822, 372 N.E.2d 685), and to impose these types of restraints upon attorneys would lead to a limiting of a litigant’s free access to the courts. Evans v. Stoval (1980), 83 Ill. App. 3d 257, 260, 403 N.E.2d 1321.

Furthermore, even assuming the State is the actual “party” in interest here, that fact would not in itself impose liability upon the State under section 2 — 611. It still remains the burden of respondent to show that the allegations in the petition for a rule to show cause were made without reasonable cause and found to be untrue. We believe that even if State of Maine stands as authority for the imposition of a duty of diligence upon the State’s Attorney’s office, the trial court would have been justified, in this case, as distinguished from State of Maine, in finding that the State’s Attorney’s office exercised sufficient diligence. Defendant argues that the State’s lack of diligence indicates that they did not have reasonable cause to plead the allegations contained within the petition for a rule to show cause. However, the assistant State’s Attorney made an offer of proof to the effect that the State’s Attorney’s office had attempted to check the clerk’s computer records of support payments, but even as of the hearing date those records failed to indicate the payment. We believe that this offer of proof, which we consider to be relevant and non-hearsay, distinguishes this present case from State of Maine.

We find the trial court could properly have concluded that respondent did not meet his burden in showing that the State’s petition for rule to show cause was untrue and made without reasonable cause. This motion was dated May 26, 1983, and given the volume of these types of motions that are filed by the State each month, it was possible that the motion was prepared days or weeks prior to petitioner’s receipt of her check. Further, if petitioner represented untrue facts to the State’s Attorney, it is possible that fees could be assessed against petitioner in the event that respondent’s burden could be met. Respondent’s attorney has already stated in open court that she will not charge respondent for the legal fees in question in the event that respondent is unsuccessful on appeal.

With regard to the “bad faith” alleged by respondent concerning petitioner’s motion to vacate, we note that an amendment to section 41 (Pub. Act 79 — 1434, sec. 8, eff. Sept. 19, 1976) removed the “good faith” requirement from what is now section 2 — 611 of the Illinois Code of Civil Procedure.

We therefore find that the trial court’s determination was not an abuse of its discretion.

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

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.


author: JUSTICE McNAMARA

text:
    PHILLIP EATON et al., Plaintiffs-Appellees, v. JAMES S. JACKSON et al., Defendants-Appellants.
    First District (3rd Division)
    No. 83—2506
    Opinion filed November 21, 1984.
    Crooks & Gilligan, Inc., of Chicago (John W. Gilligan, of counsel), for appellants.
    Gordon & Gordon, Inc., of Chicago (Gilbert W. Gordon, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Phillip and Phyllis Eaton, brought this action seeking damages for injuries sustained when Phillip Eaton was struck by a bus. On May 15, 1980, while exiting the Chicago International Art Exposition at Navy Pier, Phillip Eaton was struck by a shuttle bus driven by James S. Jackson and owned by Alpha School Bus Company, Inc. (Jackson defendants). Plaintiffs filed a two-count complaint seeking damages for Phillip’s personal injuries and Phyllis’ loss of consortium. Plaintiffs later amended the complaint to include an additional claim by Phyllis for negligent infliction of emotional distress.

In addition to Jackson, plaintiffs named as defendants the Chicago International Art Exposition and the city of Chicago (city defendants); the Chicago Motor Coach Company (which was voluntarily dismissed during trial); and Andy Frain, Inc. Counterclaims for contribution were filed among the various defendants.

On May 19, 1983, the first day of trial, the city entered into a settlement agreement providing for a $90,000 payment to Phillip and a $60,000 payment to Phyllis. On the same day, the trial court granted Frain’s motion for summary judgment. Plaintiffs did not oppose the grant of summary judgment, and Jackson did not oppose the city settlement or the Frain summary judgment.

The trial proceeded with only Jackson as defendants. Prior to the selection of the jury, plaintiffs voluntarily dismissed Phyllis’ claim for negligent infliction of emotional distress. At the conclusion of all the evidence, plaintiffs dismissed Phyllis’ claim for loss of consortium. The jury returned a verdict in favor of Phillip in the amount of $722,000 and reduced it by 58% for comparative negligence to $300,000. The trial court allowed an additur of $3,240 to correct the computational error and entered judgment. Jackson sought a remittitur of the judgment in the amount of plaintiffs’ settlement with other defendants and appeals the trial court’s denial of a complete set-off of all amounts received by plaintiffs.

Jackson filed a timely post-trial motion and then more than 30 days after judgment filed a motion to “Correct the Amount of Judgment” asking the trial court for a credit against the judgment for the amounts paid to plaintiffs by the city.

At the hearing on that motion, counsel for Jackson advised the court that he had heard rumors that Frain had paid consideration to plaintiffs. Frain’s counsel denied to Jackson’s counsel that it paid any money to plaintiffs. When ordered to do so by the court, plaintiffs’ counsel admitted that Frain had paid plaintiffs $60,000 for a “waiver of appeal.” Frain gave three checks, one payable to Phillip for $5,000 and two checks payable to both plaintiffs for $7,500 and $47,500. The waiver of appeal was dated May 19, 1983.

On July 21, 1983, Jackson filed a motion to dismiss and an amendment to the post-trial motion. Jackson argued that the waiver of appeal was a general release of all the defendants, requiring a dismissal, and that in any event Jackson was entitled to a $60,000 credit against the judgment.

The trial court denied the motion to dismiss. The court also found that the request to set off the $60,000 payment by the city to Phyllis was untimely, and it was denied. The court, however, allowed the motion with respect to the Frain payment and set-off $32,500 against the judgment, one-half of the $55,000 payments made to both plaintiffs and the full $5,000 payment made only to Phillip. The court also granted a credit to Jackson for the $90,000 payment to Phillip by the city. The court thereby reduced the judgment in favor of Phillip to $180,740.

On appeal Jackson contends that the trial court erred in denying a credit against the judgment for the $60,000 payment to Phyllis by the city and for the $27,500 payment by Frain.

We initially hold that the trial court properly refused to consider the payment by the city to Phyllis. Jackson was fully aware of that settlement agreement with Phyllis when it was approved by the trial court. Nevertheless, Jackson did not complain or allude to the payment by the city to Phyllis in the post-trial motion. Consequently, Jackson has waived that issue on appeal. Chloupek v. Jordan (1977), 49 Ill. App. 3d 809, 364 N.E.2d 650.

Jackson also contends that the trial court erred in evenly allocating the $55,000 payment by Frain to both plaintiffs. Jackson urges that the entire sum should have been credited against the judgment. According to Jackson, Phyllis’ damages, if any, were derivative to Phillip’s cause of action, and since she did not dismiss her claim until the conclusion of all the evidence, the jury awarded damages to the family unit. Relying principally on Dick v. Gursoy (1984), 124 Ill. App. 3d 185, 463 N.E.2d 1322 (supp. op. filed July 20, 1984), Jackson argues that he is entitled to all settlement amounts which Phyllis received from Frain.

In Dick v. Gursoy, plaintiff proceeded against one defendant on a claim for wrongful death and a survival action. The jury returned verdicts of $100,000 and $200,000 respectively. Following the verdict, plaintiff successfully maintained in the trial court that the $260,000 settlement with the other defendants was for a release of only the wrongful death claim and that the settlement could only be set off against the $100,000 verdict on that claim. This court pointed out the unfairness of allowing plaintiff to wait until after the verdict and then allocating the funds. We then held the long-standing policy of protecting nonsettling parties and preventing double recovery required reversal.

In the present case, however, plaintiffs and Frain demonstrated their intent to settle both the claim of Phillip and the claims of Phyllis by making checks payable to both plaintiffs and did so prior to verdict. This agreement did not grant plaintiffs a double recovery or expose Jackson to additional liability. Phyllis had viable claims, as evaluated by the settling defendants, and her dismissal of those claims against Jackson and the subsequent refusal to set off her share of the settlements did not result in double recovery for Phillip. Moreover, the jury was instructed to consider only Phillip’s injuries. In the entire trial, there was only one reference to Phyllis’ claims, and that was her nonresponsive answer to a question regarding the effect of Phillip’s injury. There is nothing in the record to suggest that the jury gave a verdict to the family or that the jury- considered Phyllis’ claims after they were instructed that she was no longer a party to the lawsuit. Although we do not approve of the covert nature of the settlement between Frain and plaintiffs, we find that the trial court properly divided the claim in setting off $32,500 of the $60,000 Frain settlement. The determination as to which of several claims a settlement should be attributable to is a matter addressed to the sound discretion of the trial court. (McDaniel v. Hoge (1983), 120 Ill. App. 3d 913, 458 N.E.2d 1063.) The trial court here did not abuse that discretion.

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

Judgment affirmed.

McGILLICUDDY and WHITE, JJ., concur.