author: JUSTICE BARRY JUSTICE STOUDER,

text:
    CHARLES H. BLAKEMORE, Plaintiff-Appellant, v. THEODORE PANAS et al., Defendants-Appellees.
    Third District
    No. 3—83—0591
    Opinion filed February 25, 1985.
    Rehearing denied April 17, 1985.
    STOUDER, J., dissenting.
    Hartman E. Stime, of Peregrine, Stime, Newman & Ritzman, Ltd., of Wheaton, for appellant.
    Melvin H. Hoffman, of Hoffman, Mueller & Creedon, of Ottawa, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

In 1966 Charles and Anita Blakemore purchased some property within the Lake Holiday real estate development and also acquired the exclusive rights to the retail sale of food and beverage within the development. The Blakemores also leased a portion of a lodge building for 99 years and proceeded to establish a lodge restaurant. In 1978 the Blakemores contracted to sell their interest in the lodge restaurant to the Lake Holiday Property Owners Association, Inc. The sales agreement was signed on behalf of the buyer by Theodore Panas as president and Rolande Gottlieb as treasurer and by Charles and Anita Blakemore as sellers.

After the contract of sale was executed, suit was filed by Douglas Mariner, an owner of certain lots within the Lake Holiday development and a member of the Lake Holiday Property Owners Association, Inc., against that not-for-profit corporation, the members of its board of directors, and the Blakemores. The complaint asked that the sales agreement be cancelled and the parties enjoined from carrying out the agreement on the ground that the contract was ultra vires. Following a bench trial, the circuit court of La Salle County ruled in favor of Mariner, holding that the contract was ultra vires in violation of article 4, section 11, of the bylaws of the corporation, which provided that the board of directors could not vary more than 5% from the operating budget of the corporation adopted at the annual meeting without calling a special meeting of the membership. In its order, the court directed the Blakemores to return all cash and other property received from the corporation, enjoined the corporation, its officers, agents, employees and board of directors from conveying any property to the Blakemores pursuant to the contract, and ordered that all parties to the agreement be “restored to their respective original status prior to the execution of said agreement.” That order was dated July 27,1980.

In February of 1981 Charles H. Blakemore filed a complaint for injunction and other equitable relief against the corporation, alleging that Blakemore had resumed operation of the lodge restaurant and that the corporation was interfering with the access to his restaurant by potential customers. This complaint was filed in Kane County, and the suit was later transferred to La Salle County. Apparently an amended complaint was filed at some point, but it is not included in the record on appeal. However, an amendment to the amended complaint is in the record, and it sets forth count IV, which complains of defendants Theodore Panas, Clarence Meyer, Warren Musick, Robert Middleton, Vivian Vermeland, and Rolande Gottlieb. Count IV seeks to recover monetary damages against the individual members of the board of directors and the officers of the corporation on the ground that defendants breached their express and implied warranties that they had authority to execute the contract of sale with plaintiff.

Defendants filed a motion for summary judgment, and the trial court entered judgment on the motion. No findings of fact or statement of reasons were filed by the trial court. Plaintiff has appealed from that judgment and has stipulated that there are no issues of fact in dispute.

On appeal, plaintiff contends that defendants should be held personally liable for breach of their express or implied warranties of authority to enter into the contract, that the prior action is not a bar to the present cause, and that defendants have no statutory defense under section 6 of the General Not for Profit Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 163a5). After examining the briefs and the record on appeal, we find that we need not consider the issues presented by plaintiff.

Paragraph 6 of defendants’ motion for summary judgment asserts that the issues raised in count IV of the amended complaint were fully litigated in the previous lawsuit, that the court determined that the parties should be restored to the status quo and that no further damages should be awarded to either of the parties, and that the trial court here should take judicial notice of the pleadings, transcript of proceedings, orders, and other matters contained in the common law record of the prior suit. Since both lawsuits were heard in La Salle County, the trial court in this cause would take judicial notice of the filé of the earlier suit in disposing of this issue. An appellate court can reverse the judgment of the trial court only upon plaintiff’s demonstration that the court erred. Here, the common law record of the previous proceeding has not been included in the record on appeal, and we cannot, therefore, say that the court erred in its ruling.

The applicable law regarding legal presumptions on appeal is as follows:

“On appeal, error is never presumed. Instead all reasonable presumptions are in favor of the action of the trial court. Error must be affirmatively shown by the record. The burden of supplying a record which contains all matter relied on by the trial court rests with the party claiming error. [Citation.] Where the record is incomplete, a reviewing court will indulge every reasonable presumption favorable to the judgment, order, or ruling from which the appeal is taken. Moreover, when the record on appeal is incomplete, it will be presumed that the trial court heard sufficient evidence and argument to support its decision. [Citation.] Any doubt arising from the incompleteness of the record will be resolved against the appellant.” (Aetna Life Insurance Co. v. Strickland (1975), 33 Ill. App. 3d 52, 56, 337 N.E.2d 285, 288.)

There is nothing in the record before us to indicate that the trial judge did not take judicial notice of the record, and so we are required to assume the court did so and that the present judgment is supported by whatever is contained therein. The appellants have not met their burden of demonstrating error by showing that the record did not support the trial court.

The only document from the Mariner proceeding, which is a part of the record in the instant case, is the final order, and that order is not sufficient for a determination of all the issues that were litigated or that could have been litigated in that cause. For example, Blake-more could have raised the personal liability issues by a third-party complaint in the first proceedings.

Having found that the final order is not sufficient for a determination of all possible issues, we accordingly affirm the judgment of the circuit court of La Salle County.

Affirmed.

HEIPLE, J., concurs.

JUSTICE STOUDER,

dissenting:

I respectfully disagree with the majority. The majority has decided that the failure to include a complete record of the prior proceeding upon which defendant’s defense of res judicata or collateral estoppel was based is fatal to the plaintiff’s appeal of the trial court’s finding that this proceeding was barred by res judicata. First, I do not agree that the defendant’s request that the trial court take judicial notice of the prior proceeding is indicative of any necessity to do so, nor is it dispositive of the fact that the trial court actually took judicial notice in order to decide as it did that this case was barred.

The only reference to judicial notice in the record appears in defendant’s motion for summary judgment, in which defendant alleged:

“6. That the issues raised in Count IV were fully litigated in the Circuit Court of La Salle County, Illinois, in the aforementioned lawsuit, Mariner v. Lake Holiday Property Owners’ Association, et. al., and the Court pursuant to the Illinois Not-For-Profit Corporation Act, determined that the parties should be restored to the status quo and that no further damages should be rewarded to either of the parties. The said Order is now res judicata, and the Defendants requested this Court to take judicial notice of the entire file in the said matter of Martner v. Lake Holiday Property Owners’ Association, et. ah, including the pleadings, transcript of proceedings, Orders entered by the Court and any other matters contained in the common law record of said proceedings.”

However, in granting summary judgment, the trial court makes no reference to the record in Martner, nor is there any indication that the judge took anything into account except what was contained in the affidavits and exhibits to the motion. I do not think we are entitled to conclude that judicial notice was taken in the absence of any indication that it was. This is especially true when none of the briefs, including appellee’s brief, refer to anything not now before this court.

Even more curious is the fact that this proceeding was filed in Kane County, where much of it took place, while Martner was filed and was conducted totally in La Salle County, and when this case was transferred to La Salle County it was assigned to a different judge. Therefore, there was no way that this judge could have taken judicial notice of his own knowledge. In the absence of anything in the record which suggests that the trial judge took judicial notice of the entire record of the Martner case, I believe we must assume that the trial court did not do so and that this record is complete and the same as the record before this trial judge.

Furthermore, the test as I see it is not whether the record of proceedings contains everything which the trial court had before it, but whether the record before us is sufficient to decide the issues presented to us for review. It is clear that the failure to present a report of the proceedings does not require dismissal or affirmance where the issues can be resolved on the record as it stands. (Venturini v. Affatato (1980), 84 Ill. App. 3d 547, 405 N.E.2d 1093; Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 389 N.E.2d 182.) Here, the summary judgment attached a copy of the previous judgment. The prior proceeding was a suit by Martner and members of the Association against the Association and the Blakemores to enjoin the Association from proceeding with an agreement entered into between the Association and the Blakemores for the purchase of real estate. The court in Martner found the directors of the Association acted ultra vires and consequently declared the agreement void. The Martner suit said nothing about the liability of the officers acting individually, nor were the parties to this lawsuit aligned as adversaries in the Martner suit. The Blakemores and the Association officers were all defendants in the prior proceeding.

Principles of agency apply generally to corporations. (19 C.J.S. Corporations sec. 993 (1940).) The court in Martner found that the officers of the Association had no authority to authorize an expenditure which would exceed the Association’s budget more than 5%. Therefore, no actual authority existed for Panas et al. to enter into the agreement, nor was there implied authority, as officers of the Association did not enter into agreements to sell land in the ordinary course of business. (See Harris Trust & Savings Bank v. Joanna-Western Mills Co. (1977), 53 Ill. App. 3d 542, 368 N.E.2d 629.) At most, the prior summary judgment in Martner established that no authority existed which could have bound the Association, and the agreement was ultra vires and unenforceable. This in no way establishes whether the officers have any liability to the Blakemores for exceeding their authority.

Because these parties were not in an adversarial relationship in the Martner proceeding, no counterclaim could have been properly maintained. Therefore, it could not be successfully maintained that the issue of the officers’ individual liability should have been litigated in the first proceeding. Therefore, in my opinion neither res judicata nor collateral estoppel bars this proceeding, and the judgment entered by the court in Martner is sufficient to establish that this issue was never litigated.

I would have held that it was error for the trial court to grant summary judgment on the basis that this suit was barred.


source: Caselaw Access Project

author: PRESIDING JUSTICE JONES JUSTICE HARRISON,

license: Public Domain

text:
      In re MARRIAGE OF MARGARET C. KORPER, Petitioner-Appellee and Cross-Appellant, and CHRISTOPHER C. KORPER, Respondent-Appellant and Cross-Appellee.
    Fifth District
    No. 5—83—0350
    Opinion filed February 26, 1985.
    Rehearing denied April 10, 1985.

      HARRISON, J., dissenting.
    Robert J. Hillebrand, of Belleville, for appellant.
    Robert E. Wells, Jr., of Pessin, Baird & Wells, of Belleville, for appellee.
   PRESIDING JUSTICE JONES

delivered the opinion of the court:

Respondent Christopher Korper appeals, and petitioner Margaret Korper cross-appeals, from the property disposition and maintenance provisions of an amended judgment of dissolution of marriage entered by the circuit court of St. Clair County on April 19, 1983. On appeal, respondent contends (1) the trial court erred in its choice of method of apportioning respondent’s military pension, (2) the trial court erred in its finding that petitioner was entitled to maintenance, and (3) the trial court erred in ordering respondent to pay a portion of petitioner’s legal fees. On cross-appeal, petitioner argues that the trial court failed to apportion the marital property justly. In addition, petitioner has sought an order requiring respondent to pay petitioner’s legal fees in connection with the defense of this appeal.

The parties were married on April 18, 1961, and were separated on November 22, 1980. At the time the proceedings were commenced petitioner was 42 years old and respondent was 43 years old. During the course of their marriage two children were born and two children were adopted. At the time the proceedings were commenced the two children born to the marriage were still minors and were living with petitioner. Respondent was a lieutenant colonel in the United States Air Force stationed at Scott Air Force Base. Petitioner worked at home as a homemaker.

The judgment from which this appeal and cross-appeal are taken awarded custody of the two minor children born to the parties to respondent. There is no dispute with regard to that award. The disputed portions of the judgment, detailed below as necessary, disposed of the parties’ marital property, awarded maintenance to petitioner and ordered respondent to pay a portion of petitioner’s legal fees.

Respondent’s first contention of error concerns the trial court’s choice of method used to dispose of the retirement benefits to which respondent was entitled under his military pension. At the outset, we note that respondent is appealing the method of disposition used by the trial court, not the value placed on those benefits nor that the value of those benefits was subject to division as being marital property. Based upon a stipulation of the parties, the trial court found the present value of the retirement benefits respondent was entitled to under his military pension to be $296,000. The trial court then found respondent’s rights to the retirement benefits acquired during the marriage of the parties to be marital property and awarded petitioner $145,000 as her interest therein. The trial court ordered respondent to pay the petitioner the entire $145,000 within 30 days of the date the judgment of dissolution became final. Until that payment was made, respondent was required to pay petitioner interest thereon in the form of additional maintenance.

Respondent contends that Federal law precludes any allocation of military retirement benefits prior to such time as the benefits are actually received by the retiree. Respondent’s argument is based on the United States Supreme Court’s ruling in McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728, wherein the court held that Federal law precluded the division of military pensions in dissolution proceedings held pursuant to State law. Respondent is cognizant of the subsequent enactment by Congress of the “Uniformed Services Former Spouses’ Protection Act” (Pub. L. No. 97— 252, 96 Stat. 718, 730-38 (1982)), and that the law was enacted by Congress as a response to the McCarty decision. Section 1002(a) of the Act (96 Stat. 718, 730-31) amends 10 U.S.C. sec. 1408(c)(1) to read as follows:

“(c)(1) Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” (Emphasis added.)

Respondent argues that since “disposable retired or retainer pay” is subject to various payroll-related deductions, the amount thereof can only be finally determined once the payment is actually made to the retiree. Respondent maintains that by this use of the phrase “disposable retired or retainer pay,” Congress “clearly” intended that the Federal law preemption of State laws that allow division of military retirement benefits remain in effect until those benefits are actually paid to the retiree. Thus, it is respondent’s position that by enacting the law Congress intended to create only a narrow exception to the holding in McCarty. We disagree.

We find respondent’s statutory interpretation to be unduly technical and contrary to the express intent of Congress as reflected in the following legislative history of the Act.

“The purpose of this provision is to place the courts in the same position that they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of nondisability military retired or retainer pay. The provision is intended to remove the federal pre-emption found to exist by the United States Supreme Court and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining whether military retired or retainer pay should be divisible. Nothing in this provision requires any division; it leaves that issue up to the courts applying community property, equitable distribution or other principles of marital property determination and distribution. This power is returned to the courts retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of this provision.” (S. Rep. No. 502, 97th Cong., 2d Sess. 16 (1982), U.S. Code Cong. & Admin. News 1982, 1596, 1611.)

It is evident from this legislative history that Congress’ intent in enacting the law was to abrogate all applications of the McCarty decision by placing the courts of the several States into a pre-McCarty position. (See, e.g., Walentowski v. Walentowski (1983), 100 N.M. 484, 672 P.2d 657; In re Marriage of Frederick (1983), 141 Cal. App. 3d 876, 190 Cal. Rptr. 588; In re Marriage of Steczo (Ariz. App. 1983), 135 Ariz. 199, 659 P.2d 1344; In re Marriage of Buikema (1983), 139 Cal. App. 3d 689, 188 Cal. Rptr. 856.) Respondent’s argument, relying as it does on the continuing partial application of the McCarty decision, must therefore fail.

Our law prior to McCarty recognized a marital property interest in retirement benefits where the rights thereto were acquired during marriage. (In re Marriage of Coram (1980), 86 Ill. App. 3d 845, 408 N.E.2d 418.) This is true regardless of whether the interest is matured, vested or nonvested, or contributory or noncontributory. In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 398 N.E.2d 868; In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511.

Our law prior to McCarty likewise recognized a marital property interest in retirement benefits from military pensions. (In re Marriage of Musser (1979), 70 Ill. App. 3d 706, 388 N.E.2d 1289.) Following the McCarty decision our supreme court overruled the appellate court’s decision in Musser, concluding that the “case [was] governed by McCarty.” (In re Marriage of Musser (1981), 87 Ill. 2d 68, 70, 429 N.E.2d 530, 531.) The effect of the Uniformed Services Former Spouses’ Protection Act is, in turn, to overrule our supreme court’s decision in Musser, leaving us free to apply the law as it was before that decision.

In general, the distribution of marital property is a matter that rests within the sound discretion of the trial court, the exercise of which will not be disturbed absent an abuse thereof. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.) Such an abuse of discretion occurs only where no reasonable person would take the view adopted by the trial court. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) The choice of the method of apportioning the present value of the marital property interest in the retirement benefits to which a spouse is entitled is similarly a matter left to the discretion of the trial court. (In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300; In re Marriage of Papeck (1981), 95 Ill. App. 3d 624, 420 N.E.2d 528.) It is with these principles in mind that we review the decision of the trial court relating to the allocation and payment of the pension. Illinois courts have held that in valuing employment benefits of this nature, the benefits that have accrued should be considered marital property, regardless of whether the benefit is vested or nonvested. In re Marriage of Fairchild (1982), 110 Ill. App. 3d 470, 442 N.E.2d 557; In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511; In re Marriage of Donley (1980), 83 Ill. App. 3d 367, 403 N.E.2d 1337; In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300.

As already related, the court, based upon a stipulation of the parties, found the value of respondent’s pension to be $296,000, awarded $145,000 thereof to petitioner and ordered it paid within 30 days. The only source of funds available to the respondent for payment of the $145,000 within the time limited was a money management account in the amount of $208,000. The money management account originally had been created by respondent with $162,000 he had inherited from his parents and thereafter enlarged with its earnings. Petitioner had never made any contribution to this account. The court found the money management account to be marital property and awarded the petitioner $15,000 as her share. Respondent raised no issue with regard to finding of the court that the money management account was marital property. The $15,000, together with the $145,000 share of the value of respondent’s pension, made a total cash payment due from respondent to petitioner of $160,000, the entirety of which was to be paid within the 30 days.

There is a sharp dispute over the method chosen by the trial court to give the petitioner her interest in respondent’s military pension. It should be mentioned that the' pension is not a contributory one on the part of respondent; it does not accumulate any cash value and has no provision for a survivor’s benefit. Respondent objects to the petitioner’s receiving the entirety of her interest in the pension in cash payable from marital property other than the pension itself. He asserts this to be inequitable in that it affords the petitioner her full interest now, whereas he must fulfill all the assumptions made by the actuary in arriving at the value of the pension in order to collect the portion of the pension settled upon him by the court’s order. Respondent claims there is no reason why he should be made to bear all the uncertainty and supposition that will attend the eventual realization of the value of the pension as fixed by an actuarial process.

The stipulated value of the pension was derived by an actuary re-tamed by petitioner. The actuary utilized the assumptions ordinarily and necessarily indulged in by actuaries. The value derived was necessarily the result of projections based upon certain assumptions such as respondent’s age, remaining work years, age at retirement, life expectancy, and so forth. The figures used by an actuary to predict life span are unavoidably averages, since some persons live longer than others. This being so, the projections used cannot speak with certainty as to the time of death of a particular person. The ultimate value of the pension depends upon respondent’s survival for the projected term of years, the preservation of his pension entitlement rights and the constancy of a fund (in this case, the continuing will of Congress) to make the pension payments for the duration of respondent’s life.

Thus, there are several areas of uncertainty that surround respondent’s receipt of his pension benefits. The order of the trial court completely relieves the petitioner of any uncertainty the future may hold by awarding her the entirety of her assigned portion at this time. The respondent bears the entire burden of uncertainty, including the possibility that he may receive no part of his pension at all.

Respondent argues that “since the husband’s retirement is about five years in the future, the most equitable way to handle the military retirement [pension] would be to wait until retirement occurs and divide the income as it is received by the husband under the reserved jurisdiction approach.” The petitioner, on the other hand, argues that the trial court had a choice between “immediate offset and deferred distribution of husband’s retirement benefits. Its choice of immediate offset was not only clearly within its discretion, but was the preferable approach. The virtues of the immediate offset method are that it is final, equitable, and immediate.”

The terms “reserved jurisdiction approach” and “immediate offset” have evolved in case law as courts have considered the problem of apportionment and payment of pension entitlement by the parties to a marriage dissolution proceeding. Illinois cases have acknowledged both methods of disposition. (In re Marriage of Evans (1981), 85 Ill. 2d 523, 426 N.E.2d 854.) In an appropriate case, the court can reduce the pension plan to present value and award an offsetting value of money or property to the nonemployee spouse. This is the immediate offset approach. (In re Marriage of Degener (1983), 119 Ill. App. 3d 1079, 458 N.E.2d 46; In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 441 N.E.2d 336; In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300.) In other cases, the court can order the employee spouse to pay the allocated portion of the fund, as disbursed, retaining jurisdiction to enforce the decree. This is the reserved jurisdiction approach. In re Marriage of Degener (1983), 119 Ill. App. 3d 1079, 458 N.E.2d 46; In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300; In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511.

Variations in ages, amounts of property, both marital and non-marital, duration of marriages, health, types of pension, amount of benefits to be received and other circumstances that may be encountered in dissolution proceedings make it impractical to hold that the disposition of pension entitlement in a dissolution proceeding pursuant to section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 503) must always be limited to one approach or the other. All pension disposition cases cannot be fitted into the same mold, and a unitary approach would prove unwise.

Notwithstanding the availability of the two methods of allocation, our review of the Illinois cases that have considered the problem of disposition of pensions as marital property has led to the conclusion that the “immediate offset” approach has been much more acknowledged than used. The reason for hesitancy in using the “immediate offset” approach is obviously because of the disparity in which the parties are placed; the one receives the pension payment or a property disposition offset immediately while the other must undergo the attendant uncertainties in the collection of pension benefits and may receive the apportioned share, part of it, or nothing at all. The supreme court stated in In re Marriage of Evans (1981), 85 Ill. 2d 523, 528, 426 N.E.2d 854, 857:

“[I]f the payment of benefits is contingent upon future events, such as the continuation of employment, a present award based on the discounted value of future payments to the employed spouse will prove excessive if the amount of benefits which he actually receives is less than the amount which was assumed.”

The case of In re Marriage of Fairchild contains a well-reasoned analysis of the problem that arises when statistically generated actuarial assumptions are adopted as the determinant of value and benefits to be received in a particular case. We need not quote at length from that case, since the conclusion will suffice:

“A potentially unfair situation thus arises, as the employee spouse risks making a final division of property with the non-employee spouse based upon a fixed value of future pension/ savings benefits which may, in fact, be valueless if the actuarial assumptions for the hypothetical person are inapplicable to the very real person before the court.
* * *
The dilemma, then, is that while it is unfair to ignore the value of nonvested benefits in the division of marital property, those benefits in some instances being the only significant marital asset, it is also unfair to effect a present division of the marital property utilizing an actuarial value of those benefits computed in reliance on speculative, albeit actuarily accepted assumptions.” In re Marriage of Fairchild (1982), 110 Ill. App. 3d 470, 474-75, 442 N.E.2d 557, 560.

In In re Wisniewski the court stated that it would be possible to make a division of a nonvested pension by taking a value as determined by actuarial evidence and then discounting that amount to an extent in consideration of the probability it will not vest, further discount the new amount to present value and then determine the marital portion of that amount. “In some cases,” the Wisniewski court said, “the trial court may be able to evaluate this risk in determining the value.” (In re Wisniewski (1982), 107 Ill. App. 3d 711, 717, 437 N.E.2d 1300, 1305.) Understandably, the Wisniewski court did not adopt the suggested procedure. The assumptions required would be too many and too farfetched for use by a court seeking to make an equitable disposition of marital property pursuant to section 503 of the Illinois Marriage and Dissolution of Marriage Act. The court in the Wisniewski case thought the “reserved jurisdiction” approach was the more reasonable one for the facts it had under consideration. Likewise, we think that approach the more reasonable one for the case now before us.

Petitioner argues that respondent cannot contest the court’s allocation of the pension because he stipulated at the trial that its value was that fixed by the actuary, $296,000. But we agree with respondent that although there was an agreement as to value, there was no agreement that payment of the share of the pension assigned to petitioner could be made at present out of other marital property. The figure assigned as value was one based upon actuarial assumptions that well may not transpire. Since the valuation of the pension is so great a part of the total marital assets, we can find no basis to justify an order that casts the entire burden of uncertainty upon the respondent, and it was inequitable to do so.

Respondent in his brief has addressed issues and arguments to the court regarding the amount and duration of maintenance he was ordered to pay petitioner and regarding the award of petitioner’s attorney fees to be paid by him. In a cross-appeal, petitioner argues that the division of marital property made by the court was inequitable and asks relief on that issue. However, since we have overturned the order of the trial court as it related to the disposition of the pension, and that action will have a very marked effect upon the disposition of the marital property, we deem it best to set aside the entirety of the judgment of the court as it pertains to the disposition of marital property, maintenance and attorney fees, and remand the case for a reconsideration thereof. Our action with regard to the pension will doubtless call for variation in the disposition as originally provided by the court. Our only instruction upon remand is that in making disposition of respondent’s military pension, the court should allocate the portion of the pension found to be marital property upon an “as received” basis, the so-called “reserved jurisdiction” method.

Finally, petitioner has filed a motion to dismiss respondent’s appeal under the release of errors doctrine. We have considered the motion to dismiss and respondent’s response thereto and have concluded that no change of position has been effected that will work a detriment or prejudice to petitioner and that ample assets remain under the designation of marital property to afford the court full opportunity to make any compensating orders that may be indicated upon rehearing. For these reasons, petitioner’s motion to dismiss respondent’s appeal is denied.

Reversed and remanded with instructions.

KASSERMAN, J., concurs.

JUSTICE HARRISON,

dissenting:

As recognized by the majority, the distribution of marital property upon a dissolution of marriage rests within the sound discretion of the trial court and will not be disturbed by a reviewing court absent an abuse of discretion. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.) While a pension distribution of the type made by the trial court in this case might constitute such an abuse under different circumstances, it does not constitute one here. This is not a case where use of the “immediate offset” approach operates to impose an intolerable financial burden on the pension holder; indeed, it seems apparent from the record that respondent can readily comply with that provision of the judgment directing him to pay petitioner $160,000. Moreover, while the majority discusses in detail the problems inherent in determining the present value of pension plans, the fact remains that the parties stipulated to a value here, and thus provided the trial court with an undisputed basis upon which to utilize the “immediate offset” approach. Lastly, as noted by petitioner, an award of the type made here ends the economic ties between the parties and allows them to plan for their futures with a reasonable degree of certainty. In view of these significant factors supporting the judgment, I simply cannot say that it constitutes an abuse of discretion.


author: JUSTICE EARNS

text:
    CARL LEET, Plaintiff-Appellee, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Defendant-Appellant.
    Fifth District
    No. 5—84—0393
    Opinion filed February 26, 1985.
    Walker & Williams, P.C., of Belleville (Dale L. Bode, of counsel), for appellant.
    Eric D. Jackstadt, of Callis & Hartman, of Granite City, for appellee.
   JUSTICE EARNS

delivered the opinion of the court:

We granted defendant’s petition for leave to appeal, pursuant to Supreme Court Rule 306(a)(l)(ii) (87 Ill. 2d R. 306(a)(l)(ii)), from the order of the circuit court of St. Clair County denying its motion to decline jurisdiction because St. Clair County was not a convenient forum in which to litigate the instant case.

On October 25, 1982, plaintiff brought this action for damages against the defendant railroad under the Federal Employers’ Liability Act (45 U.S.C. sec. 51 et seq. (1976)) because of injuries he received while working as a switchman near Louisville, Kentucky, on March 31,1980.

Defendant appeared by filing a motion to dismiss, claiming that plaintiff had executed a release for any claim arising out of said occurrence. The motion was subsequently denied after plaintiff had filed an amended complaint pursuant to court order, and defendant then answered on February 24, 1983. Extensive discovery was conducted thereafter, including lengthy interrogatories and the discovery deposition of plaintiff and plaintiff’s doctors. On May 18, 1983, defendant filed its motion to decline jurisdiction on the grounds of forum non conveniens, which was denied by the trial court on July 18, 1983. On May 5, 1984, defendant filed a motion to reconsider the denial of its forum motion, and this motion was also denied on May 23, 1984. This petition for leave to appeal was then filed on June 22, 1984.

This case would be governed by the reasoning and holding in our recent case, Herbert v. Louisville & Nashville R.R. Co. (1985), 130 Ill. App. 3d 624, wherein we stated that fairness and effective judicial administration justified the trial court’s denial of a forum motion where the railroad had unduly delayed the filing of the motion. We would affirm the exercise of the trial court’s discretion on this basis alone.

We are required, however, to dismiss this appeal for the reason that the petition for leave to appeal under Supreme Court Rule 306 must be “filed in the Appellate Court in accordance with the requirements for briefs within 30 days after the entry of the order” (87 Ill. 2d R. 306(a)(1)). Here, the original order of the trial court denying defendant’s forum motion was entered on July 18, 1983. It was not until May 5, 1984, over eight months later, that defendant filed its motion to reconsider.

In Trophytime, Inc. v. Graham (1979), 73 Ill. App. 3d 335, 391 N.E.2d 1074, the court held that “[a] motion directed against an interlocutory order will not toll the running of the 30-day deadline for the filing of the notice of appeal.” (73 Ill. App. 3d 335, 335, 391 N.E.2d 1074, 1074.) There, the appellant brought an interlocutory appeal under Supreme Court Rule 307 from the denial of an injunction. A motion to vacate the trial court’s order was filed within 30 days and denied more than 30 days after original entry. The appellant argued that the motion to vacate filed within 30 days of the denial of the original motion extended the time for filing the notice of appeal. The court rejected this argument, citing Seaman v. Lawn Savings & Loan Association (1970), 128 Ill. App. 2d 181, 262 N.E.2d 823, where the court held that a motion filed within 30 days under the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 68.3) to vacate or modify final decrees or judgments in nonjury cases did not extend, nor have any effect on, the time within which notice of interlocutory appeal must be filed. (Here defendant’s motion to reconsider was not even timely under the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203) if the Code provisions had otherwise been relevant.)

Supreme Court Rules 306 and 307 both provide that petitions for leave to appeal must be filed within 30 days after the entry of the order in the trial court from which the appeal is taken. There is no provision in either rule for extending the time for filing notice of appeal other than by permission of the reviewing court under Rule 306(a). We see no reason why the considered reasoning of the appellate court in Trophytime, Inc. should not govern our disposition here. There the court stated:

“The grant or denial of the extraordinary relief of an injunction ordinarily has a substantial impact upon one of the parties. Rule 307 is an exception to the final judgment rule and allows a party to take an appeal from such interlocutory orders. We are aware of no authority, however, which would allow a motion (filed subsequent to the entry of an interlocutory order) to postpone the time in which to file a timely notice of appeal.” (Trophytime, Inc. v. Graham (1979), 73 Ill. App. 3d 335, 336-37, 391 N.E.2d 1074, 1075.)

Trophytime, Inc. was followed in In re Adoption of Anderson (1980), 88 Ill. App. 3d 42, 410 N.E.2d 374, which pointed out that while review is precluded if not sought within 30 days, the trial court is not precluded from reviewing its order. In Greco v. Coleman (1984), 127 Ill. App. 3d 806, 469 N.E.2d 631, we stated that a petition for leave to appeal from an order granting a new trial, also governed by Supreme Court Rule 306 (87 Ill. 2d R. 306(a)(l)(i)), being interlocutory in nature, is governed entirely by supreme court rule and must be filed within 30 days from the entry of the order in the trial court, or within such extension of time as may be granted by the reviewing court, in order to vest the appellate court with jurisdiction. In that opinion we considered both Supreme Court Rules 306 and 307 to be governed by the same time constraints.

We hold, therefore, that we are without jurisdiction to consider the petition before us, and the appeal is accordingly dismissed.

Appeal dismissed.

JONES, P.J., and WELCH, J., concur.


author: PRESIDING JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. EUGENE TAYLOR et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0746
    Opinion filed February 27, 1985.
    Rehearing denied April 2, 1985.

      John Baricevic, State’s Attorney, of Belleville (Kenneth Boyle, Stephen E. Norris, and Karen L. Stallman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Randy E. Blue and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellees.
   PRESIDING JUSTICE JONES

delivered the opinion of the court:

We have consolidated for disposition three cases involving the same issue, that being whether a trial court may act upon its own motion to dismiss a criminal case for lack of prosecution.

Defendant Lonnie Eugene Taylor was indicted on August 4, 1983, on charges of armed violence, attempted murder and aggravated battery. On October 26, 1983, the State orally moved for a continuance, giving as a reason that further investigation of the case was necessary. The court continued the case to the next day, October 27, 1983. After the court’s ruling on the continuance, the State filed a written motion for continuance, asserting as grounds that laboratory analysis of evidence was incomplete and that the complaining witness was absent. On October 27, 1983, the trial court, after hearing argument, denied the motion for continuance and, upon ascertaining that the State was not ready to proceed to trial, acted upon its own motion and dismissed the case “for lack of prosecution.”

Defendant Kenneth Thomas was indicted on August 4, 1983, for burglary. On September 29, 1983, the State filed a written motion for continuance alleging that a material witness, Detective Richard Scott, would be on vacation until October 21, 1983. The motion was granted, and the case continued to October 24, 1983. On the latter date the State filed another motion for continuance, alleging this time that the victim was unavailable for trial because he was hospitalized with a heart condition. The second motion for continuance was denied and the case set for trial on October 26, 1983. On that date the State indicated that the victim was still unavailable and consequently it was not ready for trial. The State then made a motion for dismissal without prejudice. That motion was denied and, upon its own motion, the court dismissed the case for lack of prosecution.

Defendant James Wilkerson was charged by information filed oh March 10, 1983, with unlawful possession of cannabis. The case was called for trial on October 26, 1983, but continued to October 27, 1983, because a witness subpoenaed by the State failed to appear. On that date the State moved for a further continuance because it had been unable to locate the subpoenaed witness. The court denied further continuance and, on its own motion, dismissed the case for lack of prosecution.

The State filed timely notice of appeal in each of the cases, and we find that each must be reversed.

Disposition of the appeal in each of these three cases is controlled by People v. Ralston (1983), 120 Ill. App. 3d 187, 457 N.E.2d 1046, and People v. Abel (1974), 21 Ill. App. 3d 314, 315 N.E.2d 136, wherein it was held that the only statutory grounds authorizing discharge of a defendant without trial are found in section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 1), and a dismissal for want of prosecution does not come within any of the grounds set forth in that statute. Also see People v. Bragg (1984), 126 Ill. App. 3d 826, 467 N.E.2d 1004.

We would note that the case of People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244, describes an exception to and enlargement of the grounds set forth by section 114 — 1, but the exception described there has no application to any of the cases under consideration.

People v. Ralston also considers the question of dismissals pursuant to section 114 — 4(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(e)), where the State has moved for a continuance and the court has found that there was a lack of diligence in its prosecution of the case. Section 114 — 4(e) is important to the cases under consideration because of the provision in its second paragraph that after a hearing has been held on the State’s diligence, and a lack of diligence has been found, the court may not dismiss an indictment or information without granting one more court date upon which the prosecution may proceed, such date to be not less than 14 nor more than 30 days from the date of the- court’s finding. Since each of the three cases before us was instituted less than one year before dismissal, we are not concerned with the one year application referred to in the first paragraph of 114 — 4(e).

With regard to the second paragraph of 114 — 4(e), the State contends that upon remand it should not be bound to adhere to the 14- to 30-day time constraint for trial because in none of the cases before us did the trial court make a finding, as the State contends the second paragraph of 114 — 4(e) requires, that the State has failed to use diligence in pursuing the prosecution. We must disagree with the State’s argument for we find the statutory scheme to be plain in providing to the contrary. The first sentence of 114 — 4(e) provides that all motions for continuance are addressed to the discretion of the court and shall be considered in light of the diligence shown on the part of the movant. In deciding upon the issue, we have coupled that language with section 114 — 4(h), which provides:

“This Section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial.” Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(h).

In view of this language in sections 114 — 4(e) and 114 — 4(h), we believe that any time a court denies the State’s motion for a continuance there is an attendant finding that there has been a failure to use due diligence in pursuing a prosecution and that if the finding is not expressed, it must be implied. Accordingly, where the prosecution of a case was commenced less than one year before the order of dismissal upon denial of the State’s motion for a continuance, the court must grant one more court date for the State to commence its prosecution, that date to be within the 14- to 30-day time constraint provided in the second paragraph of section 114 — 4(e).

Our interpretation of section 114 — 4(e) is applicable to the cases of defendants Taylor and Wilkerson before us. Therefore, upon remand the trial court must grant one more court date for trial of their cases, not less than 14 nor more than 30 days from the date of our mandate.

Defendant Thomas has raised an issue peculiar to his case. Of the three defendants before us, only he was being held in custody pending trial of his case, presumably because he was unable to post bail. He remained in custody for a total of 110 days, until October 26, 1983, when the charge against him was dismissed for lack of prosecution. Thomas concedes that the trial court was without authority to dismiss the charge against him “for lack of prosecution” since that is not one of the grounds provided by sections 114 — 1 and 114 — 4(e). He argues, however, that the dismissal in his case can be justified for failure to provide a speedy trial pursuant to sections 103 — 5 and 114 — l(a)(l) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, pars. 103 — 5, 114 — l(a)(l)). The essence of defendant’s argument is that the State simply does not have sufficient time remaining on the 120-day term imposed by section 103 — 5(a) to bring him to trial. He relies on People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244 (trial court has the inherent authority to dismiss a criminal case where there is a clear denial of due process) and People v. Brown (1982), 92 Ill. 2d 248, 442 N.E.2d 136 (dismissal of a case on the 158th day of the 160-day rule upheld because it was clear the State could not have brought defendant to trial within the 160 days).

We think the argument of defendant Thomas is not well taken. Although this appeal by the State tolls the application of the 120-day rule (see 87 Ill. 2d R. 604(aX4)), the State would, as defendant concedes, have an additional 10 days in which to bring defendant to trial. That time span may well be sufficient to bring the defendant to trial before a jury. At any rate, the time span is sufficiently long that we cannot make the decision on behalf of the State. The 10 days remaining to them is five times longer than the two days considered in the Brown case. Ten of the 120 days remain, and we see no fundamental unfairness to the defendant, nor do we see any denial of due process as explained in the Lawson case.

Reversed and remanded as to all three cases.

WELCH and KASSERMAN, JJ., concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH L. FICO, Defendant-Appellant.
    Fifth District
    No. 5—83—0514
    Opinion filed March 5, 1985.

      Randy E. Blue and Patricia M. Sarter, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kathleen M. Ailing, State’s Attorney, of Mt. Vernon (Kenneth R. Boyle, Stephen E. Norris, and Samuel J. Cahnman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The defendant, Joseph L. Fico, was charged with the offenses of residential burglary and criminal damage to property. He was found guilty of both offenses in a bench trial and sentenced to 12 years’ imprisonment on the burglary conviction. He was not sentenced on the criminal-damage-to-property conviction. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt of the offense of residential burglary where the State failed to prove a felonious intent and secondly, that the case must be remanded to the circuit court with directions to vacate the defendant’s conviction of criminal damage to property because no sentence was imposed on this conviction.

The victim, Janet Beckham, testified at trial that when she entered her home during the early morning hours of January 1, 1983, she observed a man whom she identified as the defendant standing inside the house. She ran to the bedroom to get her gun and, while in the bedroom, she heard a crash and later discovered her patio door broken. The victim’s two daughters, who entered the house with her, also testified, and their testimony substantially paralleled Janet Beck-ham’s. They both identified the defendant as the man they discovered in their home. One of the daughters testified that she saw the defendant pick up a log and throw it through the patio door and then escape. The other daughter, fearing that defendant was going to throw the log at her, ran away and later heard a crash. The court found the defendant guilty on count I (residential burglary) and guilty on count II (criminal damage to property) after reducing that charge to a misdemeanor. Judgment was entered on both charges. At the sentencing hearing defendant was sentenced to a term of 12 years on the residential burglary charge, but no sentence was imposed for the offense of criminal damage to property.

The crux of defendant’s argument on his first issue is that the proof at trial did not conform to the charges in the information. The information charged defendant with the offense of residential burglary in that he “entered the dwelling place of Janet Beckham *** with the intent to commit therein a felony.” Defendant maintains that the State failed to prove beyond a reasonable doubt that the defendant had the intent to commit a felony when he entered Janet Beck-ham’s residence on the morning of January 1, 1983. He contends that the State failed to present any evidence of felonious intent and therefore failed to meet its burden of proof that he entered the victim’s dwelling with the intent to commit a felony, the offense with which he was charged. Defendant argues that he was not charged with burglary with the intent to commit a theft and therefore cannot be convicted of that offense. Defendant cites People v. Toolate (1984), 101 Ill. 2d 301, 461 N.E.2d 987, for the proposition that proof of unlawful breaking and entering is sufficient to infer the intent to commit theft, but cannot be used to infer an intent to commit any other felony. In Toolate, however, the defendant was charged with breaking and entering with intent to commit rape. The supreme court held there that you cannot infer an intent to commit rape from proof that a defendant broke and entered a dwelling. In the instant case, however, the defendant was not charged with intent to rape or any other specific felony. Thus Toolate is inapplicable. People v. Johnson (1963), 28 Ill. 2d 441, 192 N.E.2d 864 (distinguished by People v. Toolate (1984), 101 Ill. 2d 301, 308, 461 N.E.2d 987, 990), held that in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an inference of an intent to commit larceny. It logically follows that defendant’s actions in breaking and entering the victim’s dwelling, which contained personal property of a value greater than $300 that could be the subject of theft, gives rise to an inference of an intent to steal personal property worth more than $300, which is an intent to commit a felony. We therefore find that the State proved, beyond a reasonable doubt, that the defendant had the intent to commit a felony when he entered the victim’s residence.

Additionally, we note that defendant’s argument that he was charged with the wrong type of intent is not material to his defense because it does not operate to exculpate him. Defendant was neither misled in preparing his defense, nor subject to the danger of double jeopardy by any alleged variance between the information and the proof at trial. The defendant did not defend himself at trial by saying, “Yes, I broke into and entered the victim’s house, but I had no intention of committing a felony therein.” Rather, his defense was that he did not break into the victim’s house at all. Therefore, the variance, if it exists, is not a ground to reverse the defendant’s conviction. See People v. Davis (1980), 82 Ill. 2d 534, 413 N.E.2d 413.

Defendant’s second contention on appeal is that the failure of the trial court to impose a sentence on his criminal-damage-to-property conviction means that it must be vacated. Defendant does not contest the propriety of both the burglary conviction and criminal-damage-to-property conviction on the basis of his actions at the victim’s home. The offenses of burglary and criminal damage to property contain different elements and are not lesser included offenses, and therefore it was proper to convict the defendant on both offenses, and it would have been proper for the trial court to have entered concurrent sentences on both offenses. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) The defendant contends that when a trial court fails to impose a sentence on a conviction, the proper remedy is to vacate the conviction. In support of his contention, defendant cites two appellate court cases: People v. Thoms (1977), 50 Ill. App. 3d 398, 365 N.E.2d 717, and People v. Donalson (1977), 50 Ill. App. 3d 678, 365 N.E.2d 658. We would note, however, that there is a split of authority in the First Appellate District as to the proper procedure to be followed when a trial court fails to impose a sentence on a conviction. (People v. Zuniga (1981), 99 Ill. App. 3d 396, 425 N.E.2d 1094.) This court has held that when a trial court fails to enter a sentence on a conviction, the cause should be remanded with instructions to enter a sentence. People v. Davis (1982), 105 Ill. App. 3d 129, 135, 434 N.E.2d 13, 18.

Consequently, we affirm the defendant’s conviction on count I (residential burglary) and count II (criminal damage to property) and remand to the circuit court of Jefferson County with instructions to impose a sentence on count II.

Affirmed and remanded.

JONES, P.J., and WELCH, J., concur.


text:
    JAMES MILLER, Plaintiff-Appellant, v. DONALD ROKITA et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0866
    Opinion filed February 27, 1985.

      Edward J. Kionka, of Kionka & Associates, of Murphysboro, for appellant.
    David I. Hares, of Strubinger, Keller, Hares and Soraghan, of Belleville, for appellees.
   PRESIDING JUSTICE JONES

delivered the opinion of the court:

Plaintiff, James Miller, appeals from a judgment on a jury verdict for defendants, Donald and Steve Rokita, rendered in plaintiff’s action for personal injuries incurred in the course of his employment. Plaintiff claimed he was injured when the left rear axle of the 1975 International Harvester Travel-all he was driving became displaced due to a bearing failure.

Plaintiff was a lead worker for the State of Illinois Department of Transportation. He used a State-owned 1975 International Harvester Travel-all to haul tools and crew members to various job locations. Part of his job was to see that the Travel-all was properly maintained and serviced. On June 12, 1979, plaintiff sustained personal injuries when a bearing failure caused the left rear axle of the Travel-all to leave its housing, and, as a result, plaintiff was thrown violently about the vehicle.

The defendants had had a contract with the State of Illinois for repair work to be performed on State vehicles for 12 years prior to the plaintiff’s injury. The State had also performed some of its own repairs at a State garage and had sent vehicles to the Rokitas’ garage at times.

The Travel-all had been giving trouble prior to the accident and had been in defendants’ shop a number of times. Plaintiff testified to a rear brake problem that had occurred in March 1979. One of his crew had volunteered to replace the brake shoes if the State garage was too busy. Such work was commenced but then stopped by one of the State mechanics. How far the work had proceeded was not shown, but it had been completed by State garage mechanics. Plaintiff testified further that the vehicle had worked well until May 1979, when it was taken to defendants’ shop for repairs consisting of rebuilding the transmission and rear-end. The axle had been removed in this operation. Plaintiff then drove the vehicle for a few days until he heard rear-end noise. The vehicle was returned to defendants for repairs at that time and at two or three other times between May and the accident on June 12, 1979. Plaintiff stated that he had complained that the vehicle was smoking from the right rear wheel and that it was not handling properly. He testified that he had seen defendants replace the brake shoes on the right side. On June 12, 1979, plaintiff picked up the truck from defendants. Shortly thereafter, as plaintiff drove to the first job site, the Travel-all began to jump up and down. As a result plaintiff was thrown about and injured.

Steve Rokita testified at trial that he worked on the Travel-all assigned to plaintiff on two occasions. On May 2, 1979, he had rebuilt the transmission and the rear-end of the vehicle. On May 18, 1979, he had worked on the right rear brake. He further testified that the rear-end work did not involve any repair to the left rear axle or bearing.

Since plaintiffs action was founded on charges of negligent repair, the parties called expert witnesses. The plaintiff sought to establish that defendants had failed to install and lubricate the left rear wheel bearings properly during the several repair procedures, and the defendants attempted to show that the failure of the left rear wheel bearing was the result of overload stemming from inadequate design by the manufacturer, International Harvester. Plaintiff’s principal expert witness was Mr. Mund, an automobile mechanic of many years’ experience, and defendants’ principal expert witness was Mr. Armstrong, automobile field mechanic for the State of Illinois.

As might be expected, the expert opinions offered by the parties differed sharply as to the cause of the accident. The plaintiff makes no attempt to discredit the testimony of the defendants’ witnesses; rather, he relies on trial errors allegedly committed by the trial court in support of his request for a new trial.

Earl Schuff, shop superintendent for the Department of Transportation, was called by plaintiff. He stated that the left rear axle had come off in the accident and that this had had nothing to do with the right side, which was the side last worked on by defendants. Mr. Schuff examined photos and stated that the axle and bearing had been properly installed. He also stated that both rear wheel bearings had been replaced by the State garage on March 23,1979.

Mr. Mund testified for plaintiff and gave his opinion that the bearing failure that caused the accident was the result of re-installation of the bearing without proper lubrication and without proper lubrication seals. Mr. Armstrong testified for defendants that the cause of the bearing failure was an overload of the Travel-all that resulted from an improper design of the bearing or the use of a bearing that was too small for the job reasonably to be required of it.

During trial plaintiff raised the question of defendants’ use of International Harvester repair manuals. First, Steve Rokita was asked if he had looked at the repair manuals since his deposition had been taken. The defendant answered yes. Later in the trial, the same defendant was recalled to the stand and asked if the repair manuals he had with him in the courtroom were related to the case at bar. The defendant answered no. Plaintiff’s expert witness, Mr. Mund, testified that the International Harvester repair manuals were the “bible” of the industry and that he had relied on them to form his opinions. He read portions of the manuals as he explained his testimony to the jury. The plaintiff offered the manuals into evidence. The defendant objected to the manuals as hearsay, and the objection was sustained by the court.

On appeal, the plaintiff asserts that the trial court erred (1) in allowing Herman Armstrong to testify as an expert witness for the defendants, (2) in allowing Mr. Armstrong to give his opinion as to other rear-axle failures on the State’s International Harvester vehicles, and (3) in failing to admit the International Harvester repair manuals into evidence.

The trial judge possesses a wide area of discretion in allowing expert testimony that he feels will aid in the understanding of the issues of the case. (Brendel v. Hustava (1981), 97 Ill. App. 3d 792, 423 N.E.2d 503; Presswood v. Morris (1979), 70 Ill. App. 3d 513, 388 N.E.2d 844.) Whether a witness is competent to give an expert opinion is a question of fact for the trial court, and the court’s determination will be disturbed only upon a clear showing of abuse of discretion. (Tuttle v. Fruehauf Division of Fruehauf Corp. (1984), 122 Ill. App. 3d 835, 462 N.E.2d 645; Penrod v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1979), 68 Ill. App. 3d 75, 385 N.E.2d 376.)

Mr. Armstrong had been an automotive field mechanic for the State of Illinois for the past 11 years. Additionally, he had worked in the State garage as a mechanic for IOV2 years prior to becoming a field mechanic. He had also worked for various car dealerships in their garages.

The knowledge required of an expert witness may be obtained from study or experience or both. (Cannell v. State Farm Fire & Casualty Co. (1975), 25 Ill. App. 3d 907, 323 N.E.2d 418.) A witness whose knowledge is based upon practical experience is no less an expert than one who possesses academic or scientific knowledge. (Dauksch v. Chamness (1973), 11 Ill. App. 3d 346, 296 N.E.2d 592.) Accordingly, we cannot find that the trial court abused its discretion by allowing Mr. Armstrong to testify as an expert witness.

The second point the plaintiff raises concerns the fact that Mr. Armstrong testified to previous rear-axle failures in some of the other International Harvester Travel-alls owned by the State. Mr. Armstrong testified that he was familiar with the vehicle involved in this case. He stated, without objection, that the bearing had failed on the vehicle in question just as it had in eight to 10 other International Harvester Travel-alls. No objection was made by plaintiff to Mr. Armstrong’s testimony that the axle failure was due to a weak design. Furthermore, plaintiff did not object to the defendants’ closing argument, in which defendants’ counsel stated:

“I think when you get right down to it, they [plaintiff should take their complaints to International Harvester not to Steve and Don Rokita.”

Whether evidence of other similar accidents is admissible is a matter for the exercise of sound discretion by the trial court. (Stambaugh v. International Harvester Co. (1982), 106 Ill. App. 3d 1, 435 N.E.2d 729; Johnson v. Amerco, Inc. (1980), 87 Ill. App. 3d 827, 409 N.E.2d 299.) It need not be shown that all of the accidents occurred in an identical manner. Substantial similarity is all that is required. Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534; see also E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 401.15 (4th ed. 1984).

In any event, failure of counsel to object at appropriate times to the evidence constitutes a waiver of that objection, and the evidence is given its natural probative effect and force even if the evidence is improper or generally incompetent. Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 418 N.E.2d 1079; Marth v. Illinois Weather-Seal, Inc. (1977), 50 Ill. App. 3d 577, 365 N.E.2d 588.

In view of the foregoing, we find that Mr. Armstrong’s testimony was properly considered and cannot be termed an abuse of discretion or a trial error.

The third issue the plaintiff raises on appeal concerns the admissibility of the International Harvester manuals from which plaintiff’s expert witness testified. The repair manuals in this case were prepared and issued by International Harvester and furnished detailed instructions for repairs to the Travel-all model in question, including the rear wheel bearings. Mr. Mund testified that these books were generally accepted as the authoritative manuals for the maintenance of a Travel-all. He used the manuals to form his opinions and was even allowed to read excerpts from them to the jury as part of his testimony.

Plaintiff offered the repair manuals, his exhibit No. 21, into evidence on two separate occasions during the testimony of witness Mund. The first occasion arose early in the direct examination of the witness as follows:

“[Plaintiff’s attorney]: Your Honor, we have the two volume manual here, but we would offer into evidence the excerpted material marked as Plaintiff’s Exhibit 21 because so much of it is extraneous to the situation we have here.
[Defendants’ attorney]: I have objection to this as being hearsay, your Honor.
THE COURT: Objection is sustained except insofar as the witness may say that he has read the material and relied on it.”

The second offer, made at the close of Mund’s examination, was as follows:

“[Plaintiff’s attorney]: Okay. Your Honor, we would again offer the portions of the manual from International Harvester into evidence. That is Plaintiff’s Exhibit No. 21, I believe, and further pages regarding the weight of that vehicle or the weight capabilities of that vehicle as part of Plaintiff’s Exhibit No. 21.
[Defendants’ attorney]: I would object to the manual as being hearsay, your Honor.
THE COURT: Yes. The objection is sustained.”

The foregoing colloquies regarding the offer, objection and ruling show the entirety of plaintiff’s effort to have the manuals introduced into evidence. The defendants objected that the manuals were hearsay, and they were. So, as far as the court had been taken at that point, its ruling was correct. The plaintiff now contends in his brief that the court erred because the excerpts from the manuals were admissible to show that instructions for the proper installation of the axle and bearings were available to defendants and that defendants therefore had constructive knowledge of this information. Thus, the manuals were admissible as an exception to the hearsay rule in that they furnished standards or instructions that would indicate what was feasible and indicated what defendants should have known and done in their work on the bearing. With this argument we can only agree. Lockett v. Bi-State Transit Authority (1983), 94 Ill. 2d 66, 445 N.E.2d 310; Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 273 N.E.2d 809; E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 406.5 (4th ed. 1984).

Plaintiff also argues that the manuals were admissible to show defendants’ state of mind regarding the correct manner of installation of the axle and bearings, citing People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738, and Gass v. Carducci (1962), 37 Ill. App. 2d 181, 185 N.E.2d 285. However, since there is no indication in the record that defendants knew of or used the manuals in making their repairs, this latter argument is more tenuous.

We think the plaintiff’s contention regarding error in failure to admit the excerpts from the repair manuals into evidence is not well taken. Although the excerpts from the manuals would have been properly admitted into evidence as an exception to the hearsay rule or, with the proper foundation, to show the defendants’ state of mind, they were not offered by the plaintiff for either of those purposes. They were just offered, period. When defendants’ objection on the grounds of hearsay was sustained, the plaintiff did not offer the court any further explanation regarding the propriety of the ruling, the alternative theories under which the excerpts would be admissible, or the purpose for which the offer of the excerpts was being made. The court does not have a duty to sort out all possible theories and purposes under which proffered testimony or exhibits might be admissible into evidence and advise the parties of such as it makes its ruling. Its duty extends only to making rulings based upon that which is presented to it. Here, the court was correct as it ruled upon the hearsay objection. Since nothing further was presented on the matter, no error intervened. (Cf. Sinopoli v. Chicago Rys. Co. (1925), 316 Ill. 609, 147 N.E. 487 (company rule on operation of car incompetent to show negligence cannot be admitted on question of credibility of witnesses where not offered for that purpose); Byler v. Asher (1868), 47 Ill. 101 (it is not error for a court to refuse to admit evidence which constituted no defense to an action, but which may have been proper for the purpose of mitigating damages, when such proof was offered as a defense alone. To have made it admissible, it should have been offered to mitigate damages and not as a defense); see also Spelina v. Sporry (1935), 279 Ill. App. 376; Lemke v. Mueller (Iowa 1969), 166 N.W.2d 860; 88 C.J.S. Trial sec. 76 (1955).) Appropriate and succinct here is the following from Lemke v. Mueller (Iowa 1969), 166 N.W.2d 860, 871:

“We recognize evidence may be clearly inadmissible for one purpose yet the same evidence may be proper and admissible for some other legitimate purpose. However, after defendant’s objections had been sustained plaintiff never made known to the trial court the legitimate purpose now claimed for its admissibility.”

In closing, on plaintiff’s final issue, we would comment that the failure of the court to permit excerpts from the manuals to be introduced as substantive evidence could not have prejudiced the plaintiff in any way. Witness Mund testified at length regarding the proper procedure to be followed by a mechanic in removing the bearings and axle from the particular model of the Travel-all. He repeatedly advised the jury that the methods he was describing were those prescribed by the manuals. Reference to the manuals was made at least 17 times by the witness or his questioner, and, at one point, the witness read verbatim from the manuals. Thus, the jury was broadly advised regarding the correct bearing repair and installation procedure as prescribed in the manuals and had that information in hand as it considered its verdict. Had the excerpts from the manuals been admitted into evidence, they would have been of no further assistance to the jury.

The jury that heard the evidence in this case believed that the plaintiff had failed to prove that the accident in question was a result of negligence of the defendants. Such verdict finds ample support in the evidence. We think that the trial court committed no errors that in any way contributed to the verdict of the jury, and we therefore affirm.

Affirmed.

EARNS and KASSERMAN, JJ., concur.


author:
JUSTICE WELCH
      JUSTICE HARRISON,

text:
    LAKE KA-HO, INC., et al., Petitioners-Appellees, v. JOHN KRAMER, Director, Department of Transportation, Defendant-Appellant.
    Fifth District
    No. 5—84—0429
    Opinion filed March 13,1985.
    Rehearing denied April 16,1985.

      HARRISON, J., dissenting.
    Neil F. Hartigan, Attorney General, of Springfield (D. A. McGrady, Special Assistant Attorney General, and Roy E. Frazer, Jr., Assistant Attorney General, of counsel), for appellant.
    Ronald C. Mottaz, of Thomas, Mottaz, Eastman & Sherwood, of Alton, for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

Petitioners Lake Ka-Ho, Inc., and J. C. Smith, Billy R. Summers, and William L. Peipert, Jr., trustees of Lake Ka-Ho Subdivision, commenced this mandamus action in the circuit court of Madison County to compel defendant John Kramer, Director of the Department of Transportation, State of Illinois (the Director), to institute eminent domain proceedings with respect to real property located in Lake KaHo Subdivision in Macoupin County. The Director objected to venue in Madison County and also moved that the petition be dismissed for want of jurisdiction. From denial of said motions, the Director appealed to this court pursuant to Supreme Court Rule 308. (87 Ill. 2d R. 308.) This court dismissed the appeal. The Director then moved that the circuit court reconsider its prior orders in the case. From the denial of the latter motion, the Director sought leave to appeal pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306.) This court granted said petition. We reverse.

The pertinent facts include this court’s opinion in Department of Transportation v. Lake Ka-Ho, Inc. (1981), 98 Ill. App. 3d 1052, 425 N.E.2d 50 (hereinafter Lake Ka-Ho I). To accomplish the construction of Interstate Route No. 55 in the area, the Department of Transportation condemned an L-shaped tract of land in Lake Ka-Ho Subdivision. Lake Ka-Ho, Inc., cross-petitioned for damages to land not taken. At trial, the circuit court refused to allow proof of damages caused to the lake by siltation, that court ruling that the siltation came from earthen dikes about 600 feet away from the condemned tract. This court affirmed, stating:

“We therefore hold that the siltation was not the direct result of the taking and even if it were, neither the pleadings nor the evidence was sufficient to sustain an award.
We offer no opinion as to any possible alternative remedy available to the defendants against the State of Illinois.” 98 Ill. App. 3d 1052, 1056, 425 N.E.2d 50, 53.

In the instant petition, petitioners sought that the Director be compelled to institute eminent domain proceedings “for the taking of land and damages to land not taken” for lots 1, 2, 3, and 5 and Outlot B of Block 1 in Lake Ka-Ho Subdivision and that portion of the lake adjacent to and between said lots. Said petition set forth as a factual basis

“that at the time of construction, and thereafter, of Interstate Route 55, through Macoupin County, in and near [the property] *** said lake has silted and a portion thereof is no longer usable as a lake area. *** That as a result of said siltation ***, Lake Ka-Ho, Inc., has been deprived of its right of access from its lots hereinabove described to the remaining lake area. *** That said siltation has destroyed *** access to the lake area and has damaged and reduced in value [the property] ***.”

The Director’s motions for transfer to a proper venue and to dismiss for want of jurisdiction were denied in an order reciting that there was no good cause to delay an appeal. The Director’s appeal to this court pursuant to Rule 308 was dismissed for failure of the trial court to identify the question of law certified for appeal. (See 87 Ill. 2d R. 308.) The circuit court, on June 8, 1984, denied the Director’s motion for reconsideration. This court granted leave to appeal. 87 Ill. 2d R. 306.

From the pleadings and affidavits it appears uncontradicted that the real estate in question is located entirely within Macoupin County, and that the Department of Transportation maintains its principal office in Sangamon County and two branch offices in Madison County.

We first consider petitioners’ contention that the Director’s appeal is not proper under Rule 306. Rule 306 provides for petition for leave to appeal to. the appellate court, inter alia, from an order granting or denying a motion for transfer of venue based on the assertion that the defendant is not a resident of the county in which the action was commenced, and no other legitimate basis for venue in that county has been offered by the plaintiff. (87 Ill. 2d R. 306(a)(l)(iv).) Here, petitioners concede that the location of the real estate has no bearing on the venue issue. It is not alleged that the Director is a resident of Madison County. Petitioners urge, instead, that venue is proper in Madison County due to the presence there of the two Department of Transportation branch offices.

With exceptions not pertinent here, actions against a “public, municipal, governmental or quasi-municipal corporation” must be brought in the county in which its “principal” office is located. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 103(a); see Harrell v. Board of Trustees (1977), 48 Ill. App. 3d 319, 321, 362 N.E.2d 441, 443-44.) We conclude that this is a case in which no “other” legitimate basis for venue in Madison County has been offered by plaintiff. The Director’s appeal is properly before this court pursuant to Rule 306.

While the parties have chosen to address the merits of the venue issue next, we proceed to the jurisdictional issues which are potentially dispositive of the appeal. The Director argues that the petition for mandamus should have been dismissed because the matter of eminent domain proceedings as to siltation damage to the lake is res judicata after Lake Ka-Ho I. We have carefully examined the instant record and the arguments of counsel, and have found nothing to contradict our impression that the siltation of the lake alleged in the petition for mandamus is the same siltation for which petitioners sought recovery in Lake Ka-Ho I. Petitioners do not contend otherwise. As we read Lake Ka-Ho I, this court agreed with the circuit court that if the defendants (petitioners here) had any remedies available against the State of Illinois, the remedy of eminent domain proceedings was not among them. The doctrine of res judicata is based on the requirements of justice and public policy that a matter once adjudicated should be deemed finally and conclusively settled in any subsequent litigation between the same parties where the same question arises. (City of Chicago v. Walker (1978), 61 Ill. App. 3d 1050, 1054, 377 N.E.2d 1214, 1217.) We hold that insofar as eminent domain proceedings are concerned, damage suffered by petitioners on account of the alleged siltation of the lake is res judicata. The trial court should have dismissed the petition for mandamus, as the Director’s lack of authority to compensate petitioners for the damages alleged had been conclusively determined in Lake Ka-Ho I.

Aside from our conclusion that the extent of the Director’s authority in this matter was conclusively decided in a prior adjudication, what petitioners allege is a damaging of property without a taking, a matter within the exclusive jurisdiction of the Illinois Court of Claims, not a matter for eminent domain proceedings in the circuit court. The parties agree that a “taking” is a matter for the circuit court and that a “damaging” without a “taking” is for the Illinois Court of Claims. (Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill. 2d 265, 271, 449 N.E.2d 852, 855.) A loss or impairment of access does not involve an actual physical invasion of the property, and it therefore constitutes a “damaging,” rather than a “taking,” of the property. An abutting property owner is not entitled to have condemnation proceedings instituted to determine damages to his property occasioned by a public improvement where no part of his property is physically taken. (Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill. 2d 265, 449 N.E.2d 852.) Petitioners argue that the subdivision lots in question are totally worthless to them now. This was not pleaded. Even if it had been pleaded, such would be a mere conclusion of the pleader, entitled to no weight on motion challenging the pleadings. (See People ex rel. Waite v. Bristow (1945), 391 Ill. 101, 103, 62 N.E.2d 545, 547.) The same must be said as to petitioners’ reliance on the petition’s allegation that a “taking” had occurred. This, again, is a mere conclusion, which the facts well pleaded do not support.

In summary, we conclude that the circuit court of Madison County was without jurisdiction to issue the writ of mandamus as sought in petitioners’ petition. For the foregoing reasons, the June 8, 1984, order of the circuit court of Madison County is reversed; the petition for mandamus is dismissed.

Order reversed; petition for mandamus dismissed.

JONES, P.J., concurring.

JUSTICE HARRISON,

dissenting:

Defendant’s motion to dismiss this case for want of jurisdiction was denied on May 6, 1983. Defendant then filed a motion to reconsider the court’s order. This motion to reconsider was not denied until June 20, 1983, more than 30 days after entry of the original order, and defendant did not seek to appeal the order until that time. This court has recently decided that the filing of a motion to reconsider in the trial court does not extend the time for filing a Rule 306 (87 Ill. 2d R. 306) petition beyond the “30 days after the entry of the order” allowed by the rule (Leet v. Louisville & Nashville R.R. Co. (1985), 131 Ill. App. 3d 763), and the majority’s implied conclusion that we have jurisdiction in this case is completely inconsistent with our holding in Leet. I would dismiss this appeal.


author: JUSTICE KARNS

text:
    WALTER R. CRAVENS, Plaintiff-Appellant, v. WILLIAM G. HUFF, d/b/a Huff Equipment Company, et al., Defendants-Appellees.
    Fifth District
    No. 5—84—0125
    Opinion filed March 13, 1985.

      John Long, of Troy, for appellant.
    Thomas F. Crosby, of Winters & Garrison, of Marion, for appellee William G. Huff.
    William Robin Todd, of Flora, for appellee Knapp Oil Company.
   JUSTICE KARNS

delivered the opinion of the court:

Appellant, Walter R. Cravens, appeals from the judgment of the circuit court of Williamson County which dismissed with prejudice his action against Knapp Oil Company, Inc., and William G. Huff, d/b/a Huff Equipment Company.

Knapp was a judgment creditor in an attachment suit brought in Clay County in which Knapp prevailed by default against H. E. & C. F. Blinne Contracting Company, Inc. (Blinne Co.), for nonpayment of a fuel bill. Knapp’s judgment in the amount of $6,925.84 plus costs was obtained in May 1978, and an execution sale was conducted in October of the same year, at which Huff purchased all of the equipment which had been levied upon by the sheriff. Cravens, an employee of Blinne Co., upon learning of the sale in December 1978, demanded from Huff the return of several items in which he claimed ownership: an Eimco bulldozer, a Diamond Reo semi-truck, and some chains and boomers from the semi and a winch truck.

In February 1979 Cravens intervened in the Clay County attachment case seeking recovery of his construction equipment. He was joined in this endeavor by H. E. Blinne, an officer of Blinne Co., who asserted individual ownership in certain other items purchased at the sale. In November 1979 Blinne Co. filed a petition to set aside the sale, asserting various irregularities, including Blinne’s claim that Cravens owned the Eimco bulldozer and the Diamond Reo semi-truck, both of which were sold in the execution sale.

In September 1981 the circuit court of Clay County entered an order dismissing Knapp from the case because Blinne Co. had failed to state a cause of action against it in the petition to set aside the sale. That order also noted that Cravens’ pleadings had been withdrawn. In December 1981 Cravens filed the instant complaint in Williamson County, asserting a common law action for compensatory and punitive damages for the improper seizure and sale of his construction equipment. After defendants Knapp and Huff moved to dismiss the Williamson County complaint, Cravens moved for and was granted a written order of voluntary dismissal without prejudice from the Clay County action.

On October 4, 1982, the Clay County circuit court entered a summary judgment against H. E. Blinne rejecting his claim of ownership in the sale items. In May 1983 the execution sale was upheld by summary judgment in Huff’s favor. Each of these judgments was upheld on appeal to this court. (Knapp Oil Co. v. H. E. & C. F. Blinne Contracting Co. (1984), 125 Ill. App. 3d 1178 (Rule 23 order).) Meanwhile, in response to a motion by Knapp and Huff, the Williamson County court ruled that the summary judgment of May 1983 and the dismissal of Knapp in 1981 operated by res judicata to bar Cravens’ prosecution of the instant suit. The question raised on the pleadings is whether Cravens’ claim is precluded by the Clay County judgments.

The rules of preclusion were reiterated by our supreme court in the recent case of Housing Authority for La Salle County v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959. The doctrine of res judicata provides that a final judgment on the merits concludes the rights of the parties and their privies and bars subsequent actions between them involving the same claim, demand or cause of action. When res judicata is applied, all issues which were or could have been raised in the prior suit are barred from subsequent consideration. The rule of collateral estoppel prohibits relitigation of issues actually decided in a prior suit between the same parties or those in privity with them. 101 Ill. 2d 246, 251-52, 461 N.E.2d 959, 961-62.

Applying the preclusion doctrines by traditional analysis, we hold that Cravens is not barred from pursuing his claim in Williamson County. The law is clear that one is not estopped or barred by a prior adjudication if he was not a party to such action and does not stand in the relation of privy to one who was a party. Cravens ceased to be a party to the Clay County case long before any substantive rulings occurred. Nor can he be considered a privy to the remaining Clay County plaintiffs, having no mutual or successive relationship to the property rights which were asserted by H. E. Blinne or the Blinne Co.

Another essential consideration in the imposition of res judicata is whether the facts and relief sought in the two actions are substantially the same. (101 Ill. 2d 246, 254, 461 N.E.2d 959, 963.) Though common questions of law and fact relate to the Clay County suit and the instant action, the causes are sufficiently dissimilar to avoid preclusive effect. The three items of construction equipment claimed by Cravens were not affected by the Clay County judgment because ownership of the equipment was never adjudicated. The Williamson County action includes not only Cravens’ claim of ownership, but a demand for remuneration of economic losses and punitive damages, which are recoverable in the distinct common law action brought in Cravens’ second lawsuit, but which could not have been adjudicated in the initial suit.

The unique circumstance in the instant case which appears to have chiefly concerned the trial court is the fact that Cravens voluntarily intervened in the Clay County litigation and caused Huff to be joined as a defendant; he then unilaterally chose to withdraw from the Clay County forum in order to litigate a more advantageous suit in Williamson County. This was attacked by defendants as impermissible forum shopping which should be prevented by the imposition of res judicata, referred to by the lower court as claim preclusion. The court acknowledged the rule set forth in Sweeting v. Campbell (1954), 2 Ill. 2d 491, 119 N.E.2d 237, which prohibits the preclusion of a claim which could have been asserted by intervention in a prior, completed suit, but distinguished the two situations by accenting Cravens’ exercise of his right to intervene. The order read, in relevant part:

“A nonparty may not be bound, ordinarily, by a judgment in a case into which he could have intervened; but, once he does intervene and then withdraws, circumstances may justify binding him to that judgment. Those circumstances exist here.”

The importance of the distinction was overemphasized. The rationale behind declining to impose a general duty to intervene is equally forceful in an evaluation of a forced duty to remain in a suit. Neither is demanded under current law, and we decline to approve an exception in Cravens’ case.

Knapp and Huff have urged that we look beyond the restrictions imposed under conventional preclusion doctrines and adopt the reasoning of the trial court articulated in its order of dismissal. The court’s analysis was influenced by commentaries which have described the incipient formulation of concepts of case preclusion which are broader in scope than the traditional application of res judicata. Such principles operate to preclude the claims of parties who bypassed earlier opportunities to litigate. See 18 Wright, Miller & Cooper, Federal Practice & Procedure sec. 4452 (1981); Note, Preclusion of Absent Disputants to Compel Intervention, 79 Colum. L. Rev. 1551 (1979); Comment, Nonparties & Preclusion by Judgment: The Privity Rule Reconsidered, 56 Cal. L. Rev. 1098 (1968).

Based principally on the promotion of judicial economy, more sweeping rules of case preclusion have been employed in Federal courts to bar the claims of nonparties who could have intervened in prior actions but failed to do so. For example, in Cauefield v. Fidelity & Casualty Co. (5th Cir. 1967), 378 F.2d 876, the court affirmed the dismissal of a cemetery desecration action on the basis of judicial estoppel. Several other actions identical in issues and subject matter had been filed in the State court, and Cauefield’s action was continued indefinitely pending a resolution of the first State case to come to trial. The evidence in the Federal case would have been exactly the same as that offered in the State court desecration suit. Therefore, the court relaxed the identity of parties requirements and precluded the Federal claim in order to “prevent fruitless relitigation of an issue” which had already been determined (378 F.2d 876, 878). The decisión in Cauefield was influenced by other cases in Louisiana which had been dismissed by preclusion in the absence of the privity requirement because of the unusual circumstances posed. 378 F.2d 876, 878-79.

The Federal cases which have extended claim preclusion are underpinned by compelling reasons for the consolidation of claims, usually concerning bankruptcies, corporate reorganizations, and huge merger cases. (See, e.g., Penn-Central Merger & N & W Inclusion Cases (1968), 389 U.S. 486, 19 L. Ed. 2d 723, 88 S. Ct. 602.) No such cogent reason applies in the instant case. Moreover, no real trend has developed in Federal courts or elsewhere which indicate that a departure from traditional preclusion analysis will be consistently expressed. Most importantly, no authorization exists in Illinois law to extend claim preclusion beyond traditional limits.

The order included an elaborate analysis of the reasons why the traditional concepts of claim preclusion should be discarded in order to- bar Cravens’ second lawsuit. We are mindful of the trial court’s painstaking efforts in assessing the facts presented and are frankly inclined to endorse a thoughtful decision which would effect the highly desirable policy of putting an end to protracted, piecemeal litigation. It may well be that claim preclusion is warranted in the instant case which began with a default judgment more than five years ago and has not yet been concluded. However, in our view we are constrained under existing Illinois law to reverse the order of dismissal.

Cravens additionally requests that we direct the trial court to grant leave to amend his complaint by interlineation so that he may respond to various objections raised by the defendants prior to the final order of dismissal. Because we have ordered reinstatement of the case, justice requires that the plaintiff be permitted to pursue his cause of action in accordance with the liberal policy which underpins Rule 2 — 616 of the Code of Civil Procedure. Ill. Rev. Stat. 1983, ch. 110, par. 2 — 616.

The judgment of the circuit court is reversed, and the court is ordered to reinstate plaintiff’s complaint and grant leave to amend.

Reversed and remanded with directions.

HARRISON and KASSERMAN, JJ., concur.