text:
    RICHARD A. FERRARA et al., Plaintiffs-Appellants, v. GERTRUDE COLLINS, Defendant-Appellee.
    Second District
    No. 82—571
    Opinion filed November 22, 1983.

      Mark Schuster, of Gromer, Wittenstrom & Strom, of Elgin, for appellants.
    Wiley W. Edmondson and Wayne Jensen, both of Brady, McQueen, Martin, Collins & Jensen, of Elgin, for appellee.
   JUSTICE "VAN DEUSEN

delivered the opinion of the court:

Following trial on plaintiffs’ complaint for declaratory judgment, accounting, injunction against forfeiture, and damages, and on defendant’s counterclaim for forcible entry and detainer, judgment was entered against plaintiffs on their complaint and in favor of defendant on her counterclaim for forcible entry and detainer. Plaintiffs have appealed that judgment.

Plaintiffs, Richard A. Ferrara and Howard A. Diercks, entered into a contract to purchase certain commercial property from defendant, Gertrude Collins. A closing meeting for this sale was held on January 15, 1980. The instant dispute arises from that closing and the resolution reached, if any, by the parties concerning credits for rents, utilities, attorney fees and taxes. The dispute climaxed in April 1980 when plaintiffs asked defendant about payment on the anticipated 1979 property taxes. Defendant refused to pay the 1979 tax bill on the grounds that as a result of the agreement reached at closing concerning credits, she owed the plaintiffs no further money. Plaintiffs, to the contrary, claimed that they had credits due for rents and advised defendant that they would withhold the contract installments for May and June 1980 for the purpose of paying the 1979 real estate taxes. When the monthly installment for May was not made, the defendant, on May 13, 1980, served a notice of default on plaintiffs. Among other things, the notice advised the plaintiffs that they were in default for failure to make the May 1 monthly payment, and that it was the intent of the defendant to declare a forfeiture if the default was not corrected within 35 days.

On June 17, plaintiffs filed their lawsuit and defendant answered and counterclaimed for possession under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1979, ch. 57, par. 13). On July 13, 1980, plaintiffs were served with a declaration of forfeiture by defendant on the grounds that plaintiffs had failed as of that date to make May and June installment payments on the contract. Plaintiffs did .not make any monthly payments on the contract during the months of May and June of 1980, but during the pendency of the lawsuit did thereafter make payments in July, August, September and November of 1980, and January, February, April and May of 1981. The trial court, in its judgment order, found inter alia, that as of June 26, 1981, the plaintiffs were in arrears on their monthly payments, as per the articles agreement, in the sum of $5,731, together with interest for late payment of $981.84.

Before considering the issues raised by the plaintiffs on this appeal, we first note that the defendant’s assertion regarding the failure of the record to demonstrate that plaintiffs have standing to bring this appeal is, under the state of this record, without merit.

With reference to their action for an accounting, plaintiffs contend that the trial court erred in finding that all prorations were agreed at the January 15, 1980, closing and plaintiffs were not entitled to an accounting. Citing Nieberding v. Phoenix Manufacturing Co. (1961), 31 Ill. App. 2d 350, plaintiffs correctly concede that whether a party has established a cause of action for an accounting is a question of fact for the court, and the court’s finding "on the question will not be disturbed unless it is against the manifest weight of the evidence. (31 Ill. App. 3d 350, 356.) Plaintiffs then proceed to urge that the more believable testimony did establish, by the manifest weight of the evidence, their right to an accounting. Our review of the record indicates that there was sufficient, credible evidence presented for the trial court to conclude that the parties had finalized the closing accounts. Factual support for the trial judge’s conclusion was so extensive that he opined that the plaintiffs’ request for a formal accounting had been, in substance, fulfilled. In an equitable proceeding it is largely a matter within the discretion of the trial court as to whether an accounting will be ordered. (Bung-Orn Netisingha v. End of the Line, Inc. (1982), 107 Ill. App. 3d 275, 278; Dailey v. Sunset Hills Trust Estate (1975), 30 Ill. App. 3d 121, 125.) No precise guidelines exist for determining when an accounting is warranted, since the right depends upon the circumstances of the particular case and the relief sought. (30 Ill. App. 3d 121, 125.) The trial court did not abuse its discretion in denying an accounting, and its finding in this regard is not against the manifest weight of the evidence.

Plaintiffs principal contention on appeal is that the trial court erred in entering its contract forfeiture order and granting possession to defendant because defendant, by her conduct, had waived her right to declare a forfeiture of plaintiffs’ rights under the articles of agreement between the parties. We are unpersuaded by defendant’s initial argument that the trial judge abused his discretion in allowing this issue to be raised by an amended pleading. The granting of leave to amend pleadings rests in the sound discretion of the trial court and the record presented on this appeal does not reveal an abuse of that discretion. Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 579; Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 616(a),(c).

A

The merits of plaintiffs’ waiver argument can be divided into two branches. Plaintiffs’ initial argument is that defendant, by her acceptance of tardy monthly payments prior to May 1980, waived her right to declare a forfeiture because of a delinquent May installment. This contention has no merit. First, it was not raised in the trial court and therefore cannot be raised for the first time on appeal (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147); secondly, it has no application under the facts of this case. Plaintiffs’ theory of waiver applies when the contract seller, having established a pattern of accepting late payments and lulling buyer into a belief that such late payments would be accepted, refuses to accept a subsequent late payment and declares a forfeiture. (Kingsley v. Roeder (1954), 2 Ill. 2d 131, 139.) This theory has no application in a case such as the present one, where the buyers were not merely tardy in paying installments but deliberately suspended payments for May and June of 1980. See Hartman v. Hartman (1973), 11 Ill. App. 3d 524.

B

The second and critical basis of plaintiffs’ waiver argument was that defendant, by her acceptance of numerous contract payments after her declaration of forfeiture and during the pendency of the litigation, is estopped from proceeding on her forcible entry and detainer action. The gist of plaintiffs’ case is that “equity abhors a forfeiture” and a court must give land purchasers the benefit of any possible equitable relief to avoid such a harsh result. (See Allabastro v. Wheaton National Bank (1979), 77 Ill. App. 3d 359; Krentz v. Johnson (1976), 36 Ill. App. 3d 142; Miles Homes, Inc. v. Mintjal (1974), 17 Ill. App. 3d 642.) Plaintiffs argue that a provision for forfeiture should be deemed waived if the seller subsequently accepts contract payments after notice of forfeiture. Zeta Building Corp. v. Garst (1951), 408 Ill. 519, 524.

Illinois precedent states that whether a real estate seller’s conduct constitutes a waiver of contract forfeiture rights is ordinarily a question of fact. (Aden v. Alwardt (1979), 76 Ill. App. 3d 54, 60; Brown v. Jurczak (1947), 397 Ill. 532, 545.) The law governing this factual determination begins from the touchstone that courts of equity recognize the right of competent parties to incorporate forfeiture provisions in their contracts and will give effect to such clauses whenever declared in the manner prescribed by contract. MacDonald v. Barlett (1927), 324 Ill. 549, 558; Bade v. Brownlee (1963), 29 Ill. 2d 214, 219; Allabastro v. Wheaton National Bank (1979), 77 Ill. App. 3d 359, 366.

The court in Miles Homes, Inc. v. Mintjal (1974), 17 Ill. App. 3d 642, succinctly summarized the guiding principles of the relevant body of law as follows:

“Courts of equity recognize the right of parties to incorporate forfeiture provisions in contracts. However, equity will only permit a forfeiture where the right is clearly and unequivocally shown. If the forfeiture was properly declared, no subsequent performance, or offer to perform, no matter how strictly in compliance with the terms of the contract, will relieve the offending party from a forfeiture. Kingsley v. Roeder, 2 Ill. 2d 131,117 N.E.2d 82.
The foregoing notwithstanding, forfeitures are not favored by courts of equity. Purchasers will be protected against forfeiture to prevent wrong or injustice. This is especially true where the agreement is simply one for the payment of money. A forfeiture of land caused by the nonperformance of the agreement will be set aside on behalf of the defaulting party or other relief granted on the payment of the debt with interest and costs, unless the purchaser has barred himself by his own conduct. Rose v. Dolejs, 1 Ill. 2d 280, 116 N.E.2d 402.” (17 Ill. App. 3d 642, 646.)

Plaintiffs, in the mistaken belief that defendant owed them money, deliberately chose not to make the May and June installment payments despite the fact that they had received notice that forfeiture would be declared if the contract defects were not cured. The plaintiffs remained in default at the time the forfeiture was declared. It is true that during the course of the litigation plaintiffs did make substantial payments on the contract, but at all times they remained in arrears and were correctly found by the trial court to be in arrears at the time of judgment. Thus, while defendant correctly notes that the Illinois Supreme Court in Zeta Building Corp. v. Garst (1951), 408 Ill. 519, found a seller could waive his forfeiture rights, the court in that case also gave considerable weight to the fact that the purchasers made proper and sufficient tender of the amounts due, as well as offering to pay any sum the court found still owing and promising to fully comply with all contract terms. (408 Ill. 519, 520.) Unlike the plaintiff in the Zeta Building Corp. case, the purchasers in the immediate dispute did not make a proper tender of all payments due, nor did they offer to pay any sum the court might find due and owing or promise to comply fully with the parties’ contract.

We also take note and agree with the lower court’s reliance on the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1979, ch. 57, par. 13, now found at Ill. Rev. Stat. 1981, ch. 110, par. 9 — 110) in granting defendant possession of the rental property. This statutory device permits a court to give defaulting contract purchasers, regardless of the reasons for default, a grace period in which to cure all defects and thereby avoid forfeiture of their contract rights. (See Mallin v. Najarian (1979), 76 Ill. App. 3d 441.) Once the judge in the instant case found plaintiffs’ waiver defense to be without merit and gave possession to the defendant, plaintiffs still had a 60-day grace period in which to comply with the court’s default decree and resurrect their contract rights. Thus, irrespective of waiver principles, plaintiffs could have salvaged their ownership rights by compliance with the lower court’s judgment.

Under these circumstances, we cannot say that the trial court’s determination that defendant, by her conduct in accepting late payments during the course of the litigation, had not waived her right to a forfeiture of the contract was against the manifest weight of the evidence.

Plaintiffs further contend that the court erred in awarding attorney fees because they were not provided for in the contract between the parties. The agreement between the parties provides that in case the purchasers fail to make payments or to perform any other contract covenant, the seller may serve any notice or take any legal action to force collection or performance and the costs of reasonable attorney fees thereof will be added to the principal of the agreement. Plaintiffs take the position that an action to compel forfeiture of the contract is not an action to “enforce the contract” and therefore associated legal costs are not their burden. While it is true, as defendant states, that contract provisions regarding attorney fees will be strictly construed (see Verni v. Imperial Manor of Oak Park Condominium, Inc. (1981), 99 Ill. App. 3d 1062), those provisions are to be enforced in the discretion of the trial court. (Aluminum Coil Anodizing Corp. v. First National Bank & Trust Co. (1978), 64 Ill. App. 3d 256, 259.) Where attorney fees are authorized by contract, a court may properly award them according to the specific language of the contract. (Qazi v. Ismail (1977), 50 Ill. App. 3d 271, 273.) Since the instant contract included provisions for termination of the agreement, enforcement of those provisions is the same as enforcement of any other covenant of the contract; therefore, the purchasers are liable for the fees incurred in enforcing the termination provisions.

The court’s award of attorney fees is further supported by section 13 of the Forcible Entry and Detainer Act which permits the court, if the parties’ contract so allows, to assess reasonable attorney fees against the defaulting purchaser for actions taken by the seller under the Act. (Ill. Rev. Stat. 1979, ch. 57, par. 13, now found at Ill. Rev. Stat. 1981, ch. 110, par. 9 — 110.) Since the defendant’s notice of default included a notice of intention to proceed under the Act, intertwining all relevant legal matters, the costs involved can be assessed to plaintiffs. The trial court properly awarded attorney fees to the defendant.

The judgment of the trial court is affirmed.

REINHARD and HOPF, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
    MINOOKA HIGH SCHOOL EDUCATION ASSOCIATION et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF MINOOKA COMMUNITY HIGH SCHOOL DISTRICT NO. 111, Defendant-Appellee.
    Third District
    No. 3—83—0030
    Opinion filed December 7, 1983.
    BARRY, J., specially concurring.

      Ralph H. Loewenstein, of Drach, Terrell & Deffenbaugh, RC., of Springfield, for appellants.
    John E. Peterson, of Saxon, Niznik, Peterson & Selfridge, of Plainfield, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

At issue in the instant appeal is whether section 3 — 14.24 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 3 — 14.24) imposes upon school boards a duty to refrain from negotiating with individual teachers after the election and certification of an exclusive bargaining representative. Section 3 — 14.24 provides the following, as a duty of the regional superintendent of schools:

“Recognition of exclusive bargaining representatives. To administer the recognition of exclusive representatives of bargaining units, making certain that each bargaining unit contains employees with an identifiable community of interest and that no unit includes both professional employees and nonprofessional employees unless a majority of employees in each group vote for inclusion in the unit.
A public school employer may voluntarily recognize a labor organization for collective bargaining purposes if that organization appears to represent the greatest number of employees, and such recognition shall continue pending certification by the regional superintendent that the labor organization represents a majority of employees in the unit.
A labor organization may also gain recognition as the exclusive representative by an election of the employees in the unit. Petitions requesting an election may be filed with the regional superintendent:
A. by an employee or group of employees or any labor organization acting on their behalf alleging and presenting evidence that 30% or more of the employees in a bargaining unit wish to be represented for collective bargaining or that the labor organization which has been acting as the exclusive bargaining representative is no longer representative of a majority of the employees in the unit; or
B. by an employer alleging that one or more labor organizations have presented a claim to be recognized as an exclusive bargaining representative of a majority of the employees in an appropriate unit or that it doubts the majority status of an exclusive bargaining representative.
The regional superintendent shall investigate the petition and if he has reasonable cause to suspect that a question of representation exists, he shall give notice and conduct a hearing. If he finds upon the record of the hearing that a question of representation exists, he shall direct an election. Nothing prohibits the waiving of hearings by the parties and the conduct of consent elections.
No election may be conducted in any bargaining unit during the term of a collective bargaining agreement covering such unit or subdivision thereof, except the regional superintendent may direct an election after the filing of a petition between January 15 and February 15 of the final year of a collective bargaining agreement. No election may be conducted in a bargaining unit, or subdivision thereof, in which a valid election has been held within the preceding 12 month period.
Elections shall be by secret ballot. The regional superintendent may establish rules and regulations for the conduct of elections. Only labor organizations supported by 15% or more of the employees in the bargaining unit are eligible for placement on the ballot. The ballot must include, as one of the alternatives, the choice of ‘no representative.’ No mail ballots are permitted except where a specific individual would otherwise be unable to cast a ballot.
The labor organization receiving a majority of the ballots cast shall be certified by the regional superintendent as the exclusive bargaining representative. If the choice of ‘no representative’ receives a majority, the employer shall not recognize any exclusive bargaining representative for at least 12 months. If none of the choices on the ballot receives a majority, a runoff shall be conducted between the 2 choices receiving the largest number of valid votes cast in the election. The regional superintendent shall certify the results of the election within 5 working days after the final tally of votes unless a charge is filed by a party that improper conduct occurred which affected the outcome of the election. The regional superintendent shall promptly investigate the allegations, and if he finds probable cause that improper conduct occurred and could have affected the outcome of the election, he shall set a hearing on the matter on a date falling within 2 weeks of when he received the charge. If he determines, after hearing, that the outcome of the election was affected by improper conduct, he shall order a new election. If he determines upon investigation or after hearing that the alleged improper conduct did not take place or that it did not affect the results of the election, he shall immediately certify the election results.
Any labor organization that is the exclusive bargaining representative in an appropriate unit on the effective date of this amendatory Act shall continue as such until a new one is selected under this Section.” Ill. Rev. Stat. 1981, ch. 122, par. 3— 14.24.

The following pertinent facts are disclosed in the record. Plaintiffs Linda Andracke and Patrick Luther were tenured teachers employed by the Board of Education of Minooka High School District No. Ill (hereinafter referred to as Board). On December 11, 1981, the teachers of the school district filed a petition with the regional superintendent of schools, pursuant to section 3 — 14.24, seeking a representation election to select a representative for the teachers of the district. The election was then scheduled for March 16, 1982.

In January 1982, the superintendent requested that the teachers form a committee to discuss with the Board various issues, including salary and other terms and conditions of employment for the 1982-1983 school year. A similar “meet and confer” procedure between the Board and a teachers’ committee had been utilized in years past. Discussions between the Board and the committee continued through the weeks prior to the scheduled election and included the exchange of a series of proposals and counterproposals. On March 16, 1982, the election was held and the Minooka High School Education Association, a plaintiff herein, was elected as exclusive bargaining representative for the teachers. The same date as the election, the Board suspended all further negotiations.

Thereafter, on March 31, 1982, without having conducted further negotiations or meetings, the Board sent a letter to each teacher in the district, setting forth two separate contract proposals. The letter offered each teacher the choice of being re-employed for the 1982-1983 school year at the same salary and on the same terms as 1981-1982, or being re-employed at a higher salary and different terms and conditions of employment, one of the changes being a no-strike clause in the contract. The letter clearly set forth the alternatives for each teacher:

“You have the election of being employed for the 1982-1983 school year either on the basis of an extension of your 1981-1982 contract (Enclosure 1); or on the basis of the new employment contract (Enclosure 2).”

Plaintiffs Andracke and Luther declined to sign either of the contract proposals. They informed the Board that they intended to return to work as teachers for the upcoming year. They maintained that since the Minooka High School Education Association (hereinafter MHSEA) had been selected as the exclusive bargaining agent for the teachers, that it was in violation of section 3 — 14.24 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 3 — 14.24) for the Board to negotiate with the individual teachers. Upon this refusal by them to sign a contract, they were paid under the provision of the prior contract.

On June 21, 1982, plaintiffs Andracke, Luther and the MHSEA brought the instant suit against the Board, seeking declaratory and injunctive relief, as well as damages. MHSEA sought to have the court declare that it was the exclusive bargaining representative and to enjoin the Board from negotiating with the individual teachers. The teachers sought the same declaratory and injunctive relief, as well as damages in the amount of the difference in salary between the two contracts.

The Board responded by motion to dismiss, with supporting affidavits and exhibits. The motion was granted. The trial court, in its dismissal order, found that section 3 — 14.24 was not intended as a comprehensive collective bargaining statute and that it did not require the Board to engage in bargaining. It further found that the provision does not forbid the Board from negotiating with individual teachers regarding employment contracts. The court also found that the letter by the Board submitting alternative contracts did not constitute negotiations. For these reasons, the court dismissed plaintiffs’ complaint for failure to state a cause of action. Notice of appeal followed.

On appeal, the plaintiffs contend that section 3 — 14.24 imposed upon the Board an obligation to refrain from negotiating with individual teachers after certification of an exclusive bargaining representative, via the statutory election procedure. Reliance is placed upon the statutory language and upon a variety of cases. (Medo Photo Supply Corp. v. National Labor Relations Board (1944), 321 U.S. 678, 88 L. Ed. 1007, 64 S. Ct. 830; Morio v. North American Soccer League (S.D.N.Y. 1980), 501 F. Supp. 633; West Hartford Education Association v. DeCourcy (1972), 162 Conn. 566, 295 A.2d 526; Pennsylvania Labor Relations Board v. Eastern Lancaster County Education Association (1981), 58 Pa. Commw. 78, 427 A. 2d 305; Hetland v. Board of Education (1973), 295 Minn. 338, 207 N.W.2d 731.) As to the language of the statute, its plain meaning imposes no bargaining duties or obligations upon the Board. The statute is basically procedural. It sets forth the manner in which an exclusive bargaining representative may be elected by the teachers and certified by the regional superintendent. Nothing in the express language of the provision imposes affirmative or negative duties upon school boards, vis a vis the exclusive bargaining representatives. The provisions of the School Code setting forth Board duties were not amended in conjunction with the adoption of section 3 — 14.24 so as to impose any additional duties or obligations. (See Ill. Rev. Stat. 1981, ch. 122, par. 10 — 20 et seq.) It is to be noted that section 3 — 14.24 is part of the code delineating the duties of the regional superintendent of schools, not boards of education. The primary focus of the provision relates to his duty to oversee the certification of bargaining representatives. Plaintiffs emphasize the legislature’s use of the word “exclusive” in section 3 — 14.24, and from it, and it alone, find an intent to impose substantive duties upon school boards within the collective bargaining context. However, “exclusive” in the statutory provision modifies “bargaining representative.” We find the clear intendment of the provision to be to set forth a procedure for certifying the exclusive bargaining representative for the teachers. The meaning of “exclusive,” in this context, is that the Board may not bargain with any other agent or representative for the teachers, should the Board choose to bargain collectively. This prohibition relating to collective bargaining does not prevent the Board from bargaining on an individual basis, directly with the principals involved. There is nothing in the law of agency making it unlawful for a third party to deal with the principal after he has appointed an agent. We find the only intendment of the statute, as taken from its plain language, to be that the Board must not bargain collectively with any other agent or representative for the teachers, other than the representative certified by the regional superintendent. This provision does not prevent individual bargaining with the individual teachers, should the Board reject collective bargaining. Plaintiffs concede that the Board, under present law, had no duty to bargain collectively or individually.

Plaintiffs, under the cases cited, argue that the statute created a negative duty to refrain from bargaining with anyone else but the exclusive bargaining representative. However, in the cases relied upon by plaintiffs, the courts were applying comprehensive collective bargaining statutes which expressly imposed collective bargaining duties and obligations upon employers. While Hlinois now has comparable statutory provisions, a comprehensive bargaining provision cannot be read into section 3 — 14.24. The negative duty to refrain from individual bargaining, which is found in some of the cases, is an outgrowth of the affirmative duty to bargain collectively imposed by the comprehensive collective bargaining statutes. (Medo Photo Supply Corp. v. National Labor Relations Board (1944), 321 U.S. 678, 683-84, 88 L. Ed. 1007, 1011, 64 S. Ct. 830, 833.) As noted, Illinois has no comprehensive collective bargaining statute for public school teachers and employees, and there is no affirmative duty imposed upon school boards to bargain collectively. Thus, the basis for creation of a negative duty to refrain from bargaining individually is absent under Illinois statutes. Without such statutory basis, and we find no basis in section 3 — 14.24 for the imposition of the alleged duty, the duty does not exist.

We find that the circuit court correctly dismissed plaintiffs’ complaint.

We affirm.

Affirmed.

SCOTT, J., concurs.

JUSTICE BARRY, specially concurring:

I concur in the result reached by the majority.

      See 83 H.B. 1530, as amended by the Governor, establishing the Illinois Educational Labor Relations Act, effective January 1,1984.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DONALD VILT, Defendant-Appellee.
    Third District
    No. 3-83-0041
    Opinion filed November 23, 1983.

      L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Verlin R. F. Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is an appeal by the State from an order vacating the conviction of the defendant, Donald Vilt, for deviate sexual assault. The issues raised on appeal concern the following procedural sequence.

The defendant was charged in a four-count indictment with rape, aggravated kidnaping, and two counts of deviate sexual assault. One count of deviate sexual assault charged that the defendant sodomized the victim. The State called as a witness a woman who had previously been assaulted by the defendant in order to prove the defendant’s mo-dus operandi. This witness, while testifying as to her experience with the defendant, made no mention of anal intercourse. The "victim apparently testified as to the defendant’s assault upon her. A part of that assault was anal intercourse.

At the close of the State’s case, the defendant orally moved for a directed verdict on the grounds that the State failed to prove venue. In so arguing, counsel for the defendant confused the modus operandi witness with the victim. After the State corrected counsel’s misstatement, the trial court denied the motion. The defendant then orally moved for a directed verdict on the count charging deviate sexual assault based on the act of sodomy. The following colloquy occurred:

“THE COURT: That motion will be allowed.
MR. GERTS (The assistant State’s Attorney): May I ask why?
THE COURT: Wasn’t any evidence of anal sodomy.
MR. GERTS: I think she testified that - Theresa testified of the contact.
THE COURT: Or am I thinking, am I thinking of the other girl?
MR. GERTS: Tami George there was no anal act with.
THE COURT: I am sorry, I am sorry, I am talking, I am-thinking of Tami George, that is right.
MR. GERTS: Tami was in the dress.
THE COURT: That motion will be denied.
MR. KIELIAN: Could I be -
THE COURT: Yes you may be heard on it but I am sorry, I had the wrong, the wrong cases.”

The court allowed and then denied the defendant’s motion for a directed verdict. The jury later found the defendant guilty of deviate sexual assault and of three counts of contributing to the sexual delinquency of a child as lesser included offenses of the charges of deviate sexual assault and rape. The defendant was found not guilty of one count of deviate sexual assault, of rape and of aggravated kidnaping.

The defendant filed a post-trial motion which included a motion to vacate the judgment on the charge of deviate sexual assault. The trial court granted the motion to vacate, finding that the defendant had been placed in double jeopardy. It is from the granting of the motion to vacate that the State now appeals.

Our initial inquiry must be whether this appeal is properly before this court. The State’s right to appeal is defined in Supreme Court Rule 604, which provides in relevant part:

“(a) Appeals by the State.
(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963 ***.” 87 Ill. 2d R. 604.

The State argues that this appeal is proper because the “substantive effect” of the trial court’s ruling is that the charge against the defendant is dismissed on the grounds of double jeopardy. Double jeopardy is one of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 1.) We agree.

The defendant argues that the order vacating the guilty verdict had the effect of reinstating the court’s directed verdict, thus constituting an acquittal following a factual resolution in favor of the defendant which is not appealable by the State. Ill. Const. 1970, art. VI, sec. 6.

In this case, defendant’s motion for directed verdict was an oral motion. It is obvious from the record that the trial judge, acting under a misapprehension of the facts, orally allowed this motion and then immediately reversed himself when his mistake was pointed out. No passage of time intervened. The scenario is plain to see. Under these circumstances, we believe there simply was no directed verdict to reinstate when the defendant’s post-trial motion to vacate was granted. As a result, when the court vacated the guilty verdict, it had the substantive effect of dismissing the charge against the defendant, thus giving the State the right to appeal.

We are not persuaded by the defendant’s argument that the court had absolutely and irrevocably entered a directed verdict for the defendant which could not be withdrawn. The cases cited by the defendant (In re R.R.R. (1983), 112 Ill. App. 3d 982; In re L.R. (1982), 106 Ill. App. 3d 244; People v. Stout (1982), 108 Ill. App. 3d 96; People v. Hutchinson (1975), 26 Ill. App. 3d 368; People v. Gallas (1966), 77 Ill. App. 2d 132) are distinguishable; none of them involve a situation where, as in the present case, the trial judge, virtually with the same breath, indicted that he would allow and then deny a motion for a directed verdict.

Our resolution of the first issue also disposes of the second issue, that is, whether the defendant was twice placed in jeopardy for the same offense. Since the trial judge allowed and then immediately denied an oral motion for directed verdict for the defendant, the defendant was never acquitted of the charge of deviate sexual assault. Accordingly, a jury verdict of guilty at the close of trial did not have the effect of placing the defendant in jeopardy a second time.

The order of the circuit court of Kankakee County granting the defendant’s motion to vacate is reversed. The jury verdict finding the defendant guilty of deviate sexual assault is reinstated and the cause is remanded for further proceedings.

Reversed and remanded.

ALLOY and BARRY, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    DENNIS WINN, Plaintiff-Appellant, v. GEORGE INMAN, d/b/a George’s Village Tap, Defendant-Appellee.
    Third District
    No. 3-83-0076
    Opinion filed November 23, 1983.

      Brian Allen Kuehn, of Lester Berry Smith, Ltd., of Peoria, for appellant.
    Robert M. Hansen and T. Donald Henson, both of Herbolsheimer, Lan-non, Henson, Duncan and Reagan, P.C., of La Salle, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

In an action to recover damages for personal injury which the plaintiff, Dennis Winn, alleged was the result of a battery by defendant, George Inman, d/b/a George’s Village Tap, the jury returned a verdict in favor of the defendant. The circuit court of Marshall County entered judgment on the verdict and denied plaintiff’s post-trial motions.

The testimony at trial discloses this controversy arose out of a fight in a tavern owned and operated by the defendant in which the plaintiff was a patron on March 1, 1980. The details of the fight are not vital to our decision. The plaintiff and his brother-in-law were the occurrence witnesses for the plaintiff, and they testified to an unprovoked assault and battery by the defendant in the latter’s tavern. The defendant and his bartender-employee contradicted the version of the incident testified to by the plaintiff in many of its essential elements. There was also testimony of serious personal injury to the plaintiff and in particular an injury to the plaintiff’s eye caused by a blow from a pool cue or a fist. On this appeal the plaintiff makes several assignments of error. First, the plaintiff argues the trial court erred in giving instructions and a special interrogatory as well as refusing other instructions; second, plaintiff argues the trial court erred in refusing to permit impeachment of the defendant’s testimony by allegations in his answer and third, the plaintiff argues the trial court erred in excluding evidence tending to show the bias of the bartender where it appeared the bartender was paid in cash without taxes being withheld.

We first consider defendant’s instructions Nos. 2 and 3 and the special interrogatory which he submitted. Each was objected to by plaintiff but the objections were overruled and the instructions and special interrogatory were given.

Instruction No. 2 provided:

“The plaintiff claims he was injured and sustained damage when defendant, without any provocation or cause, intentionally struck him about the head and face with a pool cue. The plaintiff further claims that the foregoing was a proximate cause of the claimed injuries. The defendant denies that he, without any provocation or cause, intentionally struck the plaintiff about the head and face with a pool cue and denies that the claimed act was a proximate cause of the claimed injuries. Defendant further denies that Plaintiff was injured or sustained damages to the extent claimed.
The defendant also sets up the affirmative defense that in reasonable apprehension for his own well-being, he struck the plaintiff in defense of his own person.”

Instruction No. 3 provided:

“The plaintiff has the burden of proving each of the following propositions:
First, that the defendant, without provocation or cause, intentionally struck him about the head and face with a pool cue.
Second, that the plaintiff was injured.
Third, that the claimed act of the defendant was a proximate cause of the injury to the plaintiff.
In this case, the defendant has asserted the affirmative defense that he struck the plaintiff in defense of his own person. The defendant has the burden of proving that in striking the plaintiff, he reasonably believed that there was immediate danger of his being injured and that he used reasonable force to defend himself as appeared to him to be necessary under the circumstances.
If you find from your consideration of all of the evidence that each of the propositions required of the plaintiff has been proved and that defendant’s affirmative defense has not been proved, then your verdict should be for the plaintiff. If, on the other hand, you find from your consideration of all the evidence, that any of the propositions the plaintiff is required to prove has not been proved, or that the defendant’s affirmative defense has been proved, then your verdict should be for the defendant.”

The special interrogatory provided:

“Did the defendant, in striking the plaintiff, use reasonable force to defend himself as appeared to him to be necessary and reasonable under the circumstances?”

According to the plaintiff, defendant’s instructions Nos. 2 and 3 quoted above are erroneous statements of the law in two respects. First, they require the plaintiff to prove that his injury was caused by the defendant without any provocation or cause which requires that he prove defendant was not acting in self-defense. Second, instructions Nos. 2 and 3 erroneously describe the circumstances under which force may be employed in self-defense by omitting the reasonable-man standard and substituting therefore the belief of the defendant. The special interrogatory, according to plaintiff, not only fails to employ the reasonable-man standard but also fails to deal with an ultimate issue in the case.

We believe the instructions and the special interrogatory were erroneously given, and since the evidence was substantially conflicting concerning the very issues covered by the instructions and the special interrogatory, we believe the errors were prejudicial and reversible.

Although it well may be that the defendant’s issues instruction No. 3 refers to the burden of proof so far as self-defense is concerned, requiring the plaintiff to prove defendant acted without provocation or cause does require the plaintiff to prove an element unnecessary to his case. Provocation and self-defense are certainly related terms since of course the right to employ self-defense depends on the provocation of opposing force. See Walker v. Dominick’s Finer Foods, Inc. (1980), 92 Ill. App. 3d 645, 415 N.E.2d 1213.

According to Illinois Law and Practice:

“Unless it is admitted by defendant, plaintiff has the burden of proving the assault and battery. On the other hand, defendant pleading self-defense or defense of another has the burden of proving that plaintiff made the first assault, that his own acts were made in self-defense or in defense of such other, and that no more force was used than was necessary for the purpose.” 3 Ill. L. & Prac. Assault & Battery sec. 22. (1953).

Instructions which suggest in part that each party has a burden of proof with respect to the same issue, although phrased in different language, are at best confusing and should not be given.

We also believe the failure of the instructions to incorporate the reasonable-man standard to justify the use of force is also erroneous. It is a long settled rule as asserted in Doyle v. Cavanaugh (1908), 139 Ill. App. 359, 362-63, that “[t]he instructions should have told the jury that his belief must have been such as a reasonable person would have entertained under the circumstances. Hulse v. Tollman, 49 Ill. App. 490. In Ogden v. Claycomb, 52 Ill. 365, a suit arising out of an assault and battery, the rule is stated in the following language: ‘No more violence can be used than a reasonable man would under the circumstances regard necessary to his defense.’ ” (See also Ewurs v. Pakenham (1972), 8 Ill. App. 3d 733, 290 N.E.2d 319.) Defendant has directed our attention to any contrary authority or offered any support for the instruction and special interrogatory as given merely suggesting that the language was not ideal. We conclude however that the instruction did not properly advise the jury of the standard to be employed in determined whether the defendant had properly used force of self-defense.

Plaintiff’s instruction No. 21 which was refused and, we believe, erroneously, provided:.

“A person is justified in defending himself if he reasonably believes that he is being threatened with immediate bodily harm.
In deciding whether a person is reasonable in his belief that he is being threatened with immediate bodily harm, you must determine whether a reasonable man who found himself in that person’s situation would have believed that he was threatened with immediate bodily harm.
A person, while defending himself, may only use such force as is reasonably necessary under the circumstances.”

Although the objection to the giving of this instruction was sustained on the ground that other instructions had been given on the same subject, the fact is the other instructions on the subject were erroneous and consequently this instruction should have been given.

What we have already said also applies to the special interrogatory which as the defendant asserts requires only that he act reasonably. Such a standard of conduct is not an ultimate issue where the defense of self-defense is raised.

Plaintiff’s instruction No. 22 was also refused by the trial court primarily for the reason that it was not an Illinois Pattern Jury Instruction. It provided:

“If you determine that the defendant was acting in self defense, you must then determine whether or not the defendant exceeded the limits of self defense in striking the plaintiff.
The defendant may not strike the plaintiff in self defense after all danger has passed.
The defendant may not strike the plaintiff in self defense for purposes of revenge or retaliation.
The defendant may not use more force than is reasonably necessary for his defense.”

Under Supreme Court Rule 239(A) nonpattern jury instructions may be given where the issue is not covered by an Illinois Pattern Jury Instruction. Even though plaintiff’s instruction No. 22 might have been appropriate prior to the adoption of the Illinois Pattern Jury Instructions, we believe it lacks the neutrality and generality required by our present instruction practice and tends to be argumentative regarding factual issues not now appropriately included in instructions. This instruction was neither necessary nor desirable to present the plaintiff’s theory of excessive force, and its contents are matters primarily of argument, persuasion and exposition.

Plaintiff also argues that the court erred in refusing to give three other instructions which he tendered. We find it necessary to discuss the rulings on these instructions since they are dependent on the facts in the case, and since we have already determined a new trial is required, the propriety of the instructions will depend on the posture of the case as retried.

The next issue which we will discuss is the plaintiff’s claim the trial court erred in refusing to permit him to use defendant’s unverified answer as impeachment of the defendant’s testimony.

Prior to the commencement of trial, plaintiff’s motion in limine sought to exclude any evidence by defendant relating to an affirmative defense because until that time the defendant had not pleaded any affirmative defenses. This motion was taken under advisement. On the last day of trial the defendant moved for leave to plead the affirmative defense of self-defense which motion was allowed. However, prior to the amendment, the defendant’s answer was generally a paragraph by paragraph denial of the allegations of the complaint.

Since the defendant in his testimony did admit striking the plaintiff, the plaintiff proposed to impeach this testimony by claiming the defendant in his answer pleading had denied striking the defendant. Pursuant to the defendant’s objection the trial court declined to permit the use of the answer for impeachment purposes.

We believe the trial court’s decision was correct. Plaintiff has cited and referred to numerous Illinois precedents authorizing the use of pleadings either as admissions or as impeachment of testimony. See Winston v. Sears, Roebuck & Co. (1967), 88 Ill. App. 2d 358, 233 N.E.2d 95, and Precision Extrusions, Inc. v. Stewart (1962), 36 Ill. App. 2d 30, 183 N.E.2d 547.

We agree with the general proposition that pleadings may be utilized for impeachment purposes if contrary to testimony presented at trial and this is true whether the pleading be withdrawn or superseded. However, the flaw in plaintiff’s argument in this case is that the answer is not contrary to the defendant’s testimony because the allegation of the complaint which was denied by the defendant did not allege that it was the defendant who struck the plaintiff. On the contrary the complaint alleges in each count that a “servant” of the defendant was the culprit, and nowhere in the complaint does it allege liability or misconduct on the part of the defendant other than the doctrine of respondeat superior. The answer denies the plaintiff was struck by the defendant’s servant, which of course is consistent with his testimony.

The plaintiff also argues the trial court erred in unduly limiting his cross-examination of one of the defendant’s witnesses, namely, the bartender.

During the cross-examination of Brown, the bartender, plaintiff’s counsel sought to illustrate the close relationship of Brown to the defendant. After denying cross-examination of Brown on the subjects, plaintiff’s counsel by way of an offer of proof proposed to show no withholding was deducted from the wages which defendant paid Brown, that defendant paid him in cash, that he knowingly failed to report the wages which defendant paid to him as income on his tax return and that defendant did not prepare a form W-2 for Brown.

On cross-examination, questions which tend to impeach the impartiality of the witness, while not directly relevant to the issue on trial, are relevant in the sense that the persuasive quality of the proof is affected by the discrediting testimony. (Phenix v. Castner (1883), 108 Ill. 207.) Because the evidence already introduced showed Brown was the defendant’s employee and that Brown and the defendant were friendly, the defendant argues that such additional cross-examination was properly limited because redundant and prejudicial to the defendant. The fact that there may be some evidence of the bias or lack of impartiality of the witness Brown should not preclude further inquiry into the qualify and intensity of the relationship. The nature and extent of the relationship could affect the degree of credibility of the witness’ testimony. The information disclosed in the offer of proof might well give rise to an inference by the jury of the relationship between Brown and the defendant far closer and more mutually dependent than the usual employment relationship. Although the defendant suggests the facts proposed to be elicited would be prejudicial to the defendant, the effect on the credibility of the witness may be substantial outweighing any other indirect effects. We believe the proposed cross-examination should have been permitted.

The final issue which we will consider is the plaintiff’s assertion that the trial court erred in directing a verdict in the defendant’s favor at the close of the plaintiff’s case on the negligence count. At the time defendant moved for the directed verdict he claimed that such result was authorized and required by Korhorn v. Smith (1971), 3 Ill. App. 3d 532, 278 N.E.2d 864. The trial court in granting the motion for directed verdict in favor of the defendant in his comments indicated that he was considering the Korhorn case a controlling precedent and indicated that the decision was the basis of his judgment. The Korhorn case is not applicable to the facts of this case since it dealt with the propriety of instructing both on negligence and intentional misconduct when only intentional misconduct had been pled. Defendant concedes that Korhorn is not authority for the action taken by the trial court but argues that in any event the judgment of the trial court was correct because only intentional misconduct was shown by the evidence.

We are unable to hold as a matter of law that the evidence failed to support substantial inferences that the defendant may have acted carelessly, recklessly or mistakenly. Clearly, there is no unanimity in the evidence concerning the nature and extent of the conduct of either party and accordingly the legal consequences are also in dispute. The court erred in directing a verdict on the negligence count.

The plaintiff has made other assignments of error, but since they will in all probability not reoccur during a retrial of this case, no useful purpose would be served in discussing them in this opinion.

For the foregoing reasons the judgment of the circuit court of Marshall County entered on a verdict directed in favor of the defendant on the negligence count and the judgment of said court entered on the verdict of the jury in favor of the defendant on the intentional misconduct count are each reversed and remanded to the trial court with directions that plaintiff be granted a new trial on all issues.

Reversed and remanded with directions.

ALLOY and BARRY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LINDA K. ALLEN, Defendant-Appellant.
    Third District
    No. 3 — 83—0112
    Opinion filed November 16, 1983.
    David C. Thomas and Mark Christerson, both of Chicago, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

Following a jury trial, the defendant, Linda Allen, was found guilty of criminal trespass to property resulting from her participation in an antinuclear demonstration at Commonwealth Edison’s La Salle County Nuclear Station. The court sentenced the defendant to a seven-day term of imprisonment as a condition of one year’s probation and a $200 fine plus costs. On appeal, the defendant argues that the court improperly sentenced her to a term of imprisonment. We affirm.

The defendant contends that at the sentencing hearing, the trial court improperly considered certain evidence as aggravating factors. In particular, the State was permitted to show that the actions of the defendant and her companions cost Commonwealth Edison several thousand dollars in overtime wages and resulted in substantial inconvenience to several hundred employees who were unable to leave because the demonstrators had blocked the roads to the plant.

According to the defendant, our statutes do not permit courts to consider such “relatively minor inconveniences” as aggravating factors. No authority is cited for this proposition.

It is true that the legislature has decided that certain statutory factors are to be given weight in determining whether a more severe sentence should be imposed. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2.) But it is incorrect to say that a trial court may not consider nonstatutory factors in aggravation.

A hearing in aggravation and mitigation is an inquiry into pertinent facts and circumstances which will enable the trial judge to exercise his discretion in determining the length of sentence. The court is not bound by the usual rules of evidence but may search anywhere within reasonable bounds for other facts tending to aggravate or mitigate the sentence. People v. Jackson (1980), 89 Ill. App. 3d 461, 483.

In trespassing upon Commonwealth Edison property, it was the objective of the defendant and her companions to obstruct, or at least interfere with, the operation of the power plant. Therefore, the expense and inconvenience caused to Commonwealth Edison and its employees were relevant factors to be considered by the court in passing sentence.

The defendant next argues that her sentence is not in proportion to the offense as required by the Illinois Constitution. Ill. Const. 1970, art. I, sec. 11.

The defendant was convicted of a Class C misdemeanor which carried a maximum sentence of 30 days’ imprisonment. Thus, the court’s sentence of seven days’ imprisonment is well within the permissible sentencing range. The determination and imposition of a sentence is a matter involving considerable judicial discretion and the standard of review to be applied in determining whether a sentence is excessive is whether the trial judge abused his discretion in imposing sentence. People v. La Pointe (1981), 88 Ill. 2d 482.

At her sentencing hearing, the defendant stated that she was proud of what she had done and only regretted that the plant had not been shut down permanently. She also indicated that she would continue to work to shut down the plant. Before imposing sentence, the trial judge noted the defendant’s pride in what she had done and her lack of remorse. The judge concluded that he was unable to say that the defendant’s activities would not happen again. Based on this record, the trial judge did not abuse his discretion in sentencing the defendant to seven days in jail. For this court to modify the sentence would be to substitute judicial clemency for the trial court’s considered judgment. People v. Barnett (1972), 7 Ill. App. 3d 185.

The judgment of the circuit court of La Salle County is affirmed.

Affirmed.

STOUDER, P.J., and ALLOY, J., concur.


text:
    DAVID M. NOVAK, Indiv. and as Adm’r of the Estate of Beverly Ann Novak, Deceased, Plaintiff-Appellee, v. A. RATHNAM, M.D., et al., Defendants-Appellants (Robert Lee Endicott, Defendant).
    Third District
    No. 3-83-0203
    Opinion filed November 30, 1983.

      Neil F. Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellants.
    Leonard M. Ring and Judith E. Fors, both of Leonard M. Ring and Associates, of Chicago, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from an interlocutory order (certified question of law under Supreme Court Rule 308). On March 7, 1983, the Peoria County Circuit Court granted an order compelling defendants Rathnam, a psychiatrist and Girmscheid, a psychologist to submit to discovery depositions and testify as to their treatment of the third defendant Endicott. The underlying claim is a wrongful death action brought on behalf of Beverly Novak who died after being shot in the face by defendant Endicott. Plaintiff alleges that Rathnam and Girms-cheid, the two treating therapists, breached a duty to the general public and to the victim to protect them from injury by allowing Endicott to be released from the Zeller Mental Health Center.

At his homicide trial in Florida, Endicott called Rathnam and Girmscheid who testified as to their treatment of Endicott while at the Zeller Mental Health Center. Endicott was subsequently found not guilty by reason of insanity. Plaintiff contends that by testifying at the earlier proceeding the two therapists waived their right to assert a testimonial privilege on behalf of Endicott. We find that Rathnam and Girmscheid did not waive the privilege conferred by the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 91½, par. 810) and, therefore, that the therapists may assert the privilege in this proceeding.

Neither plaintiff nor defendant contends that the Mental Health and Developmental Disabilities Confidentiality Act does not apply. Both parties agree that the testimonial privilege described in section 10 of the Act is applicable. Section 10 provides that

«*** |n any (.^1^ criminal, administrative, or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communication.” (Ill. Rev. Stat. 1981, ch. 91½, par. 810(a).)

No party contends that any of the exceptions enumerated in sections 10(aXl) through (8) is applicable. Ill. Rev. Stat. 1981, ch. 91½, pars. 810(a)(1) through (8).

Therefore, because the statutory privilege applies in this case the sole issue before this court is whether the right to assert the privilege was waived by Rathnam and Girmscheid testifying at the previous homicide trial. No court in Illinois had decided the specific issue before this court. However, in People v. Stufflebeam (1974), 19 Ill. App. 3d 462, 311 N.E.2d 601, this court decided that the constitutional privilege against self-incrimination waived in one proceeding was not a waiver in a subsequent proceeding even though both cases were based upon the same body of facts. We find the reasoning of this court in Stufflebeam analogous to the facts in this case. We also find that the Florida homicide trial and this wrongful-death action are not related as were the proceedings in People v. Leppert (1982), 105 Ill. App. 3d 514, 443 N.E.2d 21.

Furthermore, the Act itself restricts consent to the disclosure of medical records and treatment by therapists. The consent must be in writing. (Ill. Rev. Stat. 1981, ch. 91½, par. 805.) The Act prohibits blanket consent (Ill. Rev. Stat. 1981, ch. 91½, par. 805(c)) and advance consents unless “the nature *** of the consent is indicated.” (Ill. Rev. Stat. 1981, ch. 91½, par. 805(c).) No agreement to waive any provision of the Act is valid. (Ill. Rev. Stat. 1981, ch. 91½, par. 814.) Plaintiff’s contention that once testimony has been elicited concerning treatment the privilege is forever waived is inconsistent with these statutory restrictions on disclosure. This court, therefore, finds that the previous disclosure of privileged information at the homicide trial did not waive the therapists’ rights and obligations to assert the privilege on behalf of defendant Endicott in the wrongful death proceeding.

Accordingly, we reverse the judgment of the circuit court of Peoria County and remand for further proceedings consistent with this opinion.

Reversed and remanded.

ALLOY and SCOTT, JJ., concur.


text:
    GARY KAHLE, Plaintiff-Appellee, v. JOHN DEERE COMPANY et al., Defendants-Appellants.
    Third District
    No. 3 — 83—0270
    Opinion filed December 7, 1983.
    Robert J. Noe, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellants.
    David A. Novoselsky and Ronald G. Fleisher, both of Karlin & Fleisher, Ltd., of Chicago, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal by defendants John Deere Company and Deere & Company (hereinafter Deere) from the trial court’s dismissal, without prejudice, of plaintiff’s action on plaintiff’s motion for dismissal without prejudice. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1009.) The focus of this appeal is section 2 — 1009:

"Voluntary dismissal, (a) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter the plaintiff may dismiss, only on terms fixed by the court ***.” (Ill. Rev. Stat. 1983, ch. 110, par. 2-1009.)

Pertinent facts on appeal are that both parties appeared for commencement of trial in this action on March 14, 1983. The trial court heard and ruled upon a variety of motions, including motions in limine by both parties. Those matters were heard prior to the presentation of any evidence by either party, and prior to any opening arguments. After rulings on the preliminary motions, plaintiff’s counsel moved to dismiss the suit, voluntarily and without prejudice, under section 2 — 1009 of the Code of Civil Procedure. The trial judge, after consideration of authorities presented and argument by counsel, dismissed the cause, on plaintiff’s motion, without prejudice to refiling the same action. Defendants seek appellate review over the order dismissing the suit without prejudice.

We are met at the outset with the plaintiff’s contention that this court lacks jurisdiction to review that order, because it was not a final, appealable order of the circuit court. We reluctantly agree, based upon the decisions by the Illinois Supreme Court in Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480, and Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, 449 N.E.2d 112. While both of those cases dealt with dismissals for lack of prosecution, the basis for decision in the majority opinions applies as well to voluntary dismissals, without prejudice, on plaintiff’s own motion. In Flores, the majority stated:

“A final judgment has been defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit. [Citations.] We have also stated on many occasions that a judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. [Citations.] The order or judgment in this case, dismissing the cause for want of prosecution, is not a final order since the plaintiffs had an absolute right to refile the action against the same party or parties and to reallege the same causes of action. [Citations.]” Flores v. Dugan (1982), 91 Ill. 2d 108, 112-13.

In Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, 112, 449 N.E.2d 112, the court reaffirmed its position, quoting with approval the above language from the Flores opinion.

In the instant case, both the language of section 2 — 1009 and the specific direction of the trial court in its order of dismissal permits the plaintiff to refile the action against the same defendants and to reallege the same cause of action. Furthermore, in the instant case there has been no determination of the issues and fixing absolutely and finally the rights of the parties in the lawsuit, nor has there been any determination on the merits, so that all that remains is execution of the judgment. Although this court is inclined to agree with the dissenters in Flores, the Illinois Supreme Court has spoken on the matter, and the basis of that decision controls the instant case.

We are mindful of the court’s opinion in Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157, 441 N.E.2d 318, wherein the precise issue in the case at bar was raised, but where the Illinois Supreme Court did not address the issue. There the court found that the only part of the dismissal order appealed from was that pertaining to costs, which the court found clearly appealable. (92 Ill. 2d 157, 161.) The court in that opinion, by way of dicta, intimated that voluntary dismissals may well be final, for purposes of appeal.

“While this court has never directly addressed the issue, ‘[t]here are numerous rulings to the effect that a dismissal may be final for the purpose of appeal although it is without prejudice to the bringing of another action.’ (4 Am. Jur. 2d Appeal and Error sec. 108 (1962); see Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 575-76; Mutual Reserve Fund Life Association v. Smith (1897), 169 Ill. 264, 265; Restatement of Judgments sec. 41, comment b (1942).) In Williams v. Breitung (1905), 216 Ill. 299, the court held that the defendant could not appeal from an order dismissing the plaintiff’s bill for an injunction on plaintiff’s motion and his costs, because the decree was entirely in the defendant’s favor. The court noted, however, that the defendant would have a right of appeal ‘where the court, entering the judgment has committed some error prejudicial to him, or where by the judgment he has not obtained all that he is entitled to.’ 216 Ill. 299, 303.” (92 Ill. 2d 157, 161.)

Both Brauer Machine & Supply Co. and Mutual Reserve Fund contain dicta indicating such a conclusion.

“A final judgment means, not a final determination of the rights of the parties with reference to the subject matter of the litigation, but merely of their rights with reference to the particular suit. It is not at all necessary that the judgment should be upon the merits, if it definitely puts the case out of court. It is the termination of the particular action which marks the finality of the judgment. A judgment of non-suit or dismissal is final. (1 Black on Judgments, sec. 21; Ross v. Evans, 30 Minn. 206.)” (Mutual Reserve Fund Life Association v. Smith (1897), 169 Ill. 264, 265. Contra, Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480.)
“In Freeman on Judgments, vol. I, sec. 22, it is said: ‘According to the common law rule, by a final judgment is to be understood, not a final determination of the rights of the parties, but merely of the particular suit. Therefore, as will be seen in the next section, a judgment of dismissal or non-suit, though not determining the merits, may be final for the purposes of appeal.’ In section 27 in the same volume, the author says: ‘No hard-and-fast definition of “final” judgment, applicable to all situations, can be given since its finality depends somewhat upon the purpose for which and the standpoint from which it is being considered, since it may be final for one purpose and not for another ***. A judgment may be final so as to authorize an appeal from the court in which it was rendered, without being final as to the subject matter in litigation ***.’ ” (Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 575.)

However, as indicated, the basis and underlying reasoning of the Flores opinion runs contrary to the above-quoted dicta concerning the requisites of finality for appeal purposes. The decision in Williams v. Breitung (1905), 216 Ill. 299, 74 N.E. 1060, quoted by the court in Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157, 161, lends support to the lack of finality in the instant case. There, though stating that a party in whose favor a judgment is rendered may sue out of writ of error, and obtain a reversal for an error prejudicial to him, the court found that a voluntary nonsuit was a termination in favor of a defendant, and the fact that he might have to appear, at some future time, to defend, did not create sufficient prejudice to make the dismissal appealable. The defendants herein argue that they have expended time and money in preparing for trial as a prejudice resulting from dismissal, but that was equally true in Williams and will be true in any number of cases wherein a voluntary dismissal is taken. Additionally, Williams rejected defendant’s contention that because he wanted a dismissal with prejudice and did not get it, he did not receive all of the relief requested, so as to make the dismissal appealable. 216 Ill. 299, 305.

While this court is inclined to adopt the view expressed in dicta in Godowich and by way of dissent in Flores v. Dugan, we find that the decision in Flores and in Williams v. Breitung requires a conclusion that the order in the instant case is not a final, appealable order. We would note that in the light of the substantial dispute over this important area of appeal among members of the Illinois Supreme Court, this is a case which the court may well want to review on leave to appeal, so as to finally determine the matter.

Based on the above, the appeal is dismissed.

Appeal dismissed.

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


author: JUSTICE BARRY

text:
    FARMERS STATE BANK OF LEWISTOWN, Plaintiff and Counterdefendant-Appellee, v. DONALD R. THOMAS, Defendant and CounterplaintiffAppellant.
    Third District
    No. 3—82—570
    Opinion filed November 23, 1983.

      David B. Barber, of Springfield, for appellant.
    Gregg Grimsley, of Vonachen, Cation, Lawless, Trager & Slevin, of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Farmers State Bank of Lewistown obtained a judgment by confession for $268,075 against its former president, defendant Donald R. Thomas, who had signed notes for several unsecured loans from plaintiff. Proceedings to confirm the confession of judgment were instituted by plaintiff, to which defendant responded with a motion to vacate the judgment and dismiss the complaint. The trial court denied the defendant’s motion with leave to file a motion to open the judgment under Supreme Court Rule 276 (87 Ill. 2d R. 276).

Thereafter, defendant filed an answer, affirmative defenses, and a 12-count counterclaim which included, inter alia, claims for a set-off of funds and personal property belonging to him which were seized by plaintiff. Defendant alleged that the funds in three checking accounts, the contents of his safety deposit box, rare coins, foreign gold, and assorted documents and personal property were seized by plaintiff, and that he is also entitled to unpaid salary and dividends and other claims. Defendant requested a trial by jury on his claims.

Plaintiff filed a motion to strike the answer and affirmative defenses, a motion to dismiss the counterclaim, and a request that the judgment by confession be confirmed. After hearing arguments, the trial court ruled that plaintiff was entitled to have the judgment by confession confirmed but ordered that plaintiff be barred from using wage deduction proceedings to enforce the judgment. The court also stated that defendant was entitled to a trial on the counterclaim which was transferred to the jury division of the circuit court. During oral arguments before this court, both parties admitted that the counterclaim is still pending. Under Rule 276, it is a matter for the discretion of the trial court whether to allow the filing of a counterclaim; and if a counterclaim is filed, the trial court “to the extent justice requires may stay proceedings on the judgment by confession until the counterclaim is disposed of.” Here the trial court refused to stay the proceedings on the judgment by confession, and defendant perfected this appeal from the confessed judgment.

Supreme Court Rule 304(a) provides as follows:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. *** In the absence of such a finding, any judgment that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (87 Ill. 2d R. 304(a).)

Rule 304(a) has been held applicable to counterclaims and consequently bars an appeal where a counterclaim by the defendant remains pending although the plaintiff’s claims have been disposed of. Bell v. Home Federal Savings & Loan Association (1976), 38 Ill. App. 3d 652, 348 N.E.2d 527.

Here the trial court did not make the finding required by Rule 304(a). Accordingly, we conclude that we lack jurisdiction and that this appeal must be dismissed.

Appeal dismissed.

STOUDER, P.J., and ALLOY, J., concur.


text:
    THE BOARD OF EDUCATION OF MINOOKA COMMUNITY HIGH SCHOOL DISTRICT NO. 111, GRUNDY, KENDALL AND WILL COUNTIES, Plaintiff-Appellee, v. JACK CARTER, Fire Marshal of the State of Illinois, Defendant-Appellant — (Illinois State Board of Education, Intervenor-Appellee).
    Third District
    No. 82—755
    Opinion filed December 7, 1983.
    Neil F. Hartigan, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of counsel), for appellant.
    Julia Quinn Dempsey, David A. Thompson, and Harry A. Blackburn, all of Chicago, for appellee State Board of Education.
    John E. Peterson, of Saxon, Niznik, Peterson, and Selfridge, of Plain-field, for appellee Board of Education of Minooka Community High School District No. 111.
   JUSTICE ALLOY

delivered the opinion of the court:

The office of the State Fire Marshal, State of Illinois, appeals from the decision of the circuit court which set aside an order of the Fire Marshal directing the Board of Education of Minooka Community High School District No. Ill (hereinafter Board of Education) to remedy certain conditions at the high school building. The Fire Marshal’s order would have brought the building into compliance with the Fire Marshal’s Rules and Regulations for Fire Prevention and Safety. (See Ill. Rev. Stat. 1981, ch. 127½, par. 9.) The court, in reversing the order of the Fire Marshal, found that the school building was in compliance with rules and regulations set forth in the Life Safety Code (see Ill. Rev. Stat. 1981, ch. 122, par. 2 — 3.12), promulgated by the State Board of Education. The court concluded that the applicable rules and regulations for fire safety in the school building were those of the Life Safety Code, not the Fire Marshal’s Rules and Regulations. The issue on this appeal is which set of safety regulations and requirements were applicable to the high school building.

The record reveals that the Minooka High School building was constructed in 1970, with additions added in 1976 and 1977. At the time of its construction, it was built in compliance with the Life Safety Code, promulgated by the State Board of Education. The Life Safety Code was originally promulgated by the State Superintendent of Schools (now the State Board), pursuant to legislation directing that he had a duty:

“To prepare for school boards with the advice of the *** State Fire Marshal specifications for minimum requirements for *** safety against fire which will conserve the health and safety of the pupils of the public schools.” (Ill. Rev. Stat. 1981, ch. 122, par. 2 — 3.12.)

Such obligation and authority had been conferred upon the State Superintendent of Schools since early in this century. The Life Safety Code, addressing all manner of construction requirements for school buildings, was promulgated and adopted in 1965, and numerous school buildings in the State have been built in accordance with its specifications and standards. The State Fire Marshal has, pursuant to statutory direction above stated, provided advice concerning the rules respecting fire safety for school buildings.

The Minooka High School building was inspected by the State Fire Marshal in 1970, after construction, and approved at the time. It was examined by the Regional Superintendent of Schools in 1980 and 1981, and he certified its continued compliance with the Life Safety Code. In July 1981, deputies from the office of the State Fire Marshal, acting under authority set forth in section 3 — 14.22 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 3 — 14.22) and section 9 of “An Act relating to the investigation and prevention of fire“ (III. Rev. Stat. 1981, ch. 127½, par. 9), inspected the Minooka High School building. After the inspection, the Fire Marshal cited the plaintiff Board of Education for a variety of violations. These violations were premised not upon the rules and regulations of the Life Safety Code, under which the building had been constructed and operating, but rather upon rules and requirements of the Rules and Regulations for Fire Prevention and Safety (hereinafter Grey Book) promulgated by the State Fire Marshal. The Grey Book is a promulgation by the Fire Marshal, pursuant to his authority and obligation to adopt rules necessary for safe construction of buildings within the State. (Ill. Rev. Stat. 1981, ch. 127½, par. 9.) There appears to be no dispute between the parties that this school building met the requirements of the Life Safety Code and did not meet the requirements of the Grey Book.

The evidence indicated that compliance with the order of the Fire Marshal would cost somewhere between $9,000 and $31,000, and possibly more if replacement of the air system were required as a result of the removal of louvered doors in the building. Funds were not allocated for the changes, the Board taking the position that its compliance with the Life Safety Code was sufficient. The Board appealed to the circuit court (Ill. Rev. Stat. 1981, ch. 127½, pars. 10, 11) for review of the Fire Marshal’s order. The Illinois State Board of Education petitioned for and was granted leave to intervene in the matter.

The circuit court found that it was faced with two facially applicable codes for fire safety at the school building, which codes were conflicting as to their requirements. The trial court applied the general rule of statutory construction favoring a specific provision over a general provision where two are in conflict, and it found that the Life Safety Code applied to this building, since it was considerably more specific in the requirements and specifications relating to fire prevention and fire safety. From the order of the circuit court the Fire Marshal appeals, and he argues the court erred in its construction of applicable statutory provisions.

Rules respecting statutory construction are well established, the cardinal rule being that such interpretation is to determine the intent of the legislature and to effect that intent. (General Motors Corp. v. Industrial Com. (1975), 62 Ill. 2d 106, 112, 338 N.E.2d 561; People ex rel. Anastasia v. Civil Service Com. (1973), 10 Ill. App. 3d 583, 586, 295 N.E.2d 127.) The legislature’s intent is to be ascertained from an examination of the language used, the evil to be remedied and the object to be attained. (City of Champaign v. Hill (1961), 29 Ill. App. 2d 429, 444, 173 N.E.2d 839.) The initial and primary source for determining legislative intention is the plain meaning of the language used, and where unambiguous, that plain meaning of the language controls. General Motors Corp. v. Industrial Com. (1975), 62 Ill. 2d 106, 112; Hah v. Stockier (1978), 66 Ill. App. 3d 947, 951, 383 N.E.2d 1264.

The defense’s principle argument focuses upon an amendment to the School Code adopted by the legislature in 1975. Section 3 — 14.22 of the School Code, prior to its amendment, imposed a duty upon county superintendents to request inspections of buildings by various offices or persons when it appeared to him that the building or buildings were unsafe, unsanitary or unfit for occupancy. The second paragraph of that provision stated:

“The provisions of this Section shall not preclude inspection of school premises and buildings pursuant to Section 9 of ‘An Act in relation to the investigation and prevention of fire and dangerous conditions in and near buildings and other structures,’ approved June 15, 1909, as now or hereafter amended, although not requested as hereinabove provided. However, the findings of any such inspection shall be advisory only.”

The 1975 amendment deleted the final sentence of the second paragraph, which had stated that the findings of the Fire Marshal would be advisory only. The Board here admits that the intent behind this change was to give the State Fire Marshal the authority to inspect public schools, without prior request, and to make binding findings concerning violations. In this, the Board agrees with the Fire Marshal. However, disagreement arises as to which standards will be applied by the Fire Marshal in his inspections and findings. The Fire Marshal contends that by virtue of the reference to section 9 of “An Act relating to the investigation and prevention of fire,” section 3— 14.22 of the School Code must be construed to establish the Grey Book, promulgated under the same section 9, as the standard to be applied in such inspections.

Although the Fire Marshal’s construction is an arguably correct construction, we do not find it clearly evident from the statutory provision in issue. In the first place, the emphasis in the second paragraph of section 3 — 14.22 of the School Code is upon inspections, absent requests for such by the Superintendent. The plain language of the provision indicates a concern that the grant of authority, respecting requesting inspections, to the State Board and Superintendents not be construed to preclude inspections by the Fire Marshal. The legislative debate on the 1975 amendment focused on the right to inspect without prior request and to make binding findings after such inspection. In both the House and Senate debates, explanations of the bill focused upon this aspect and several legislators indicated that there was no intent to change or affect the Life Safety Code and its applicability to school buildings. Even apart from such legislative history, which always is of limited value, it is to be noted that section 3 — 14.22 is a provision of the School Code addressing the duties of the Board and State Superintendent to request inspections. This context of the provision, as well as its specific focus upon inspections, argues against our construing it as a definitive and explicit statement on the duties and the authority of the Fire Marshal relating to school buildings. We would also note, in passing, that the subparagraph of section 9 of “An Act relating to the investigation and prevention of fire,” which sets forth the authority of the Fire Marshal and his deputies to make inspections, being the fourth paragraph, envisages two distinct situations: (1) where “such dangerous condition or fire hazard is found to exist contrary to the rules herein referred to,” and (2) where “a dangerous condition or fire hazard is found to exist as specified in the first paragraph of this Section, and the rules herein referred to are not applicable to such dangerous condition or fire hazard.” (Ill. Rev. Stat. 1981, ch. 127½, par. 9.) Thus, section 9 itself acknowledges, without specifying, that there may be circumstances wherein the Fire Marshal’s rules and regulations do not apply. Considering the context of section 3 — 14.22, as well as the specific language used therein and the language- in the pertinent part of section 9 of “An Act relating to the investigation and prevention of fire,” the issue of which set of applicable rules and regulations the Fire Marshal is to enforce remains open and unanswered by the legislature. There is an ambiguity under these provisions concerning the standards to be applied by the Fire Marshal in making his inspections and findings.

Additionally, there are two sets of standards, different and in some respects conflicting, which apply to school buildings and which were promulgated under legislative direction and enactment. These are the Life Safety Code standards, from the Board of Education, and the Grey Book standards, from the Fire Marshal. The Life Safety Code is directed to school buildings, covering all aspects of their construction and design, including fire safety. This Code, by legislative direction, is prepared with the advice of the Fire Marshal. (Ill. Rev. Stat. 1981, ch. 122, par. 2 — 3.12.) The Fire Marshal’s Grey Book, on the other hand, has general applicability, respecting fire safety, to all buildings within the State of Illinois. (Ill. Rev. Stat. 1981, ch. 127½, par. 9.) The statutory provisions respecting promulgation of the rules and requirements for school buildings are more specifically and narrowly focused than those respecting promulgation of the Grey Book. Further, even in the area of fire safety requirements, as the trial court found, the provisions of the Life Safety Code are more specific and extensive than the requirements of the Grey Book. Under accepted and established rules for statutory construction (Board of Edu cation v. City of West Chicago (1965), 55 Ill. App. 2d 401, 404, 205 N.E.2d 63), the more specific provisions prevail over the more general ones, in cases of conflict.

Our conclusion herein takes into consideration that special circumstances and factors pertain to the design and construction of school buildings, which do not pertain to all buildings within the State. Nor does our conclusion deprive the Fire Marshal of his authority and duty to ensure the safety of school buildings. Under section 3 — 14.22 of the School Code, he has the authority and duty to make inspections and issue binding findings. While the standards he is to apply are to be based upon the provisions of the Life Safety Code, in the first analysis, he also has authority, under section 9, to order changes if he finds that dangerous conditions or fire hazards exist within a school building. The legislature clearly meant to have the enforcement of fire standards to lie with the State Fire Marshal, as well as with the school boards and the Superintendent. We do not find, however, in the legislative enactments a clear intention to have the Grey Book take precedence over the Life Safety Code as to standards to be applied to school buildings. Such a construction of the statutory provisions would have a potentially devastating statewide effect on our already financially troubled school districts. Since 1965, schools have been constructed based upon the accepted minimum standards for fire safety set forth in the Life Safety Code. As noted previously, the Fire Marshal is directed to give his advice respecting the Life Safety Code’s requirements, and this was done. Further, this school building was approved by the Fire Marshal in 1970, at the time of construction. There is, in some sense, an incongruity and unfairness, absent clear legislative direction, to permit the Fire Marshal to cite the Board for violations of minimum standards for fire safety where he has previously concurred that the school building satisfied minimum standards for fire safety. Further, we note that the differences between the codes, as pertains hereto, is over matters and issues of policy and necessity on which experts can reasonably disagree. There is no serious contention that the requirements of the Life Safety Code are insufficient and leave school children in danger as a result of fire hazards.

If the legislature intended that the Grey Book was to be the standard for enforcement to govern school buildings in this State, then they should have clearly evidenced that intention. Their pronunciations to date have not done so, and given consideration of the practical and equitable factors involved, as well as the established and accepted rules of statutory construction, we conclude that the trial court did not err in its judgment.

For the reasons stated, the judgment of the circuit court of Grundy County in this matter is affirmed.

Affirmed.

BARRY and HEIPLE, JJ., concur.


text:
    JAMES A. BISSET, Plaintiff-Appellee, v. THE VILLAGE OF LEMONT et al., Defendants-Appellants.
    Third District
    Nos. 3—83—0201, 3—83—0165 cons.
    Opinion filed November 23, 1983.

      Byron D. Knight and Gregory G. Lawton, both of Judge & Knight, Ltd., of Park Ridge, for appellant Village of Lemont.
    Harry B. Bainbridge and Dario A. Garibaldi, both of Chicago Heights, for appellant Joseph A. Schudt & Associates, Inc.
    James E. Garrison, of Garrison, Fabrizio and Hanson, of Joliet, for ap-pellee.
   JUSTICE ALLOY

delivered the opinion of the court:

This action for money damages (by reason of personal injuries) was brought by the plaintiff-appellee, James A. Bisset, against defendants-appellants, village of Lemont and Joseph A. Schudt & Associates, based upon the provisions of the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.). Plaintiff was injured on August 31, 1979, in the course of construction of a public sewer improvement project located on McCarthy Road in the village of Lemont. At the time of the accident, plaintiff was employed by Central States Engineering, the general contractor on the job.

Plaintiff filed suit against the village of Lemont, the owner of the project, and Joseph A. Schudt & Associates, the project engineer, on the theory that the two defendants were “in charge” of the construction and had violated the provisions of the Structural Work Act by failing to take adequate safety precautions on this construction site. The jury trial was held on the issues on December 9, 1982, through December 15, 1982. At the conclusion of the trial, the jury rendered a general verdict in favor of both defendants. In answer to special interrogatories submitted by the defendants, the jury found that neither the village nor the engineer was in charge of the work. Judgment was entered on the verdict.

Plaintiff’s post-trial motion was filed on January 13, 1983. On February 9, 1983, the trial judge entered an order granting plaintiff a new trial on all issues and as to both defendants.

On appeal in this court, the defendants contend that the trial judge abused his discretion in overturning the jury’s general and special verdicts and in ordering a new trial on all issues as to defendant village of Lemont and defendant Schudt. The plaintiff asserts that his timely objections were sufficient to preserve the errors and his right to ask for a new trial. Plaintiff also contends that the trial court was correct in ordering a new trial as to both defendants even though only the attorney for defendant Schudt made improper remarks in his closing argument.

Plaintiff contends that defense counsel for Schudt engaged in an ongoing process of improper conduct, including prejudicial closing argument and other utterances designed to be prejudicial and constituting reversible error. Plaintiff also asserts that the trial court erred in failing to admit into evidence admissions by the defendants in certain pleadings filed in the cause.

It is clearly established that improper argument and misconduct by an attorney is a sufficient basis for the award of a new trial. (Panelle v. Chicago Transit Authority (1964), 31 Ill. 2d 560, 202 N.E.2d 484.) Furthermore, it is established that a trial court’s decision to grant a new trial on that basis is to be accorded great deference, and will not be disturbed on appeal absent a clear abuse of discretion. (Allen v. Dhuse (1982), 104 Ill. App. 3d 806, 433 N.E.2d 356.) This is because the attitude and demeanor of counsel, as well as the atmosphere of the courtroom, cannot be reproduced in the record, and the trial court is in a superior position to assess and determine the effect of improper conduct on the part of counsel. It is the court’s duty to prevent prejudicial conduct at trial, and to grant a new trial where such conduct has occurred. Manninger v. Chicago & Northwestern Transportation Co. (1978), 64 Ill. App. 3d 719, 381 N.E.2d 383.

As noted, the trial court in the instant case determined that counsel for Schudt had engaged in improper and prejudicial misconduct requiring that plaintiff receive a new trial. We find no abuse of discretion in that decision.

Counsel for Schudt, in his opening statement, announced that “anybody with a few dollars can bring a lawsuit.” Counsel also engaged in overzealous and repeated objections during the trial, despite the court’s actions in overruling the objections. There is no point in detailing that conduct. Counsel, in closing argument, then continued in his improper behavior. He began by arguing to the jury that the plaintiff has “omitted to sue the right person.” Objection was made and sustained with the court informing the jury that this issue was not for their consideration. Counsel’s comment was clearly improper. Then he argued to the jury that plaintiff had to prove that a' scaffold was being used in order to recover. This statement was clearly wrong, and counsel had to know it. The court sustained objection and informed the jury that it had previously ruled that a trench was covered by the Act. This was part of a pattern of conduct by counsel in referring to the Act, which was obviously designed to confuse and confound the jury by emphasizing the literal words and ignoring established judicial construction. On another occasion, counsel for Schudt asserted that Central States had safety engineers on the job site, but there was no evidence of that before the court. Counsel, after objection and sustention, asked the jury to disregard his comment. He also engaged in improper speculation concerning judicial construction of the Scaffold Act, including informing the jury that there would be no issue instruction concerning what the words “in charge of” or “having charge of” meant and that mere inspection is not enough. During trial, counsel also made disparaging remarks about plaintiff’s expert, as well as asked baseless questions obviously designed to put plaintiff in an unfriendly light before the jury.

We have no difficulty in concluding that the trial court did not abuse its discretion in finding that the conduct of Schudt’s counsel constituted prejudicial and reversible error.

The defendant Schudt argues that plaintiff’s failure to seek a mistrial waived the issue of his right to a new trial. We disagree. Other courts have found that even where there were no objections, or where objections were sustained but there was no motion for mistrial, the plaintiff may still seek and obtain a new trial. (Bale v. Chicago Junction Ry. Co. (1913), 259 Ill. 476, 102 N.E.2d 808; Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266.) We find that the plaintiff’s timely objections to counsel’s improper conduct were sufficient to preserve the error and his right to ask the trial court for a new trial. (Appel v. Chicago City Ry. Co. (1913), 259 Ill. 561, 102 N.E.2d 1021.) Further, as noted, the trial judge, the person best positioned to assess the effect of the misconduct by counsel, determined that it had a prejudicial effect and required a new trial.

Schudt, in an attempt to prevent a retrial, also attempts to resurrect the requirement of a “motion to withdraw a juror.” It is no longer necessary, in order to preserve the issue of improper conduct of counsel before the jury, for counsel to move to withdraw a juror. (See Torrez v. Raag (1976), 43 Ill. App. 3d 779, 357 N.E.2d 632.) Such technical requirements no longer prevent a court from assessing the issue of prejudicial conduct, where timely objections to such conduct are made and where the issue is presented by way of post-trial motion. To premise any review of improper conduct by counsel upon the rather arcane motion to withdraw a juror is to preserve a remnant of the old pleading rules, and defeat the ends of justice. We reject counsel’s suggestion regarding the necessity of the motion to withdraw a juror. We also reject his suggestion that it is necessary to move to have the jury instructed to disregard a comment or statement in order to subsequently premise a new trial request upon that conduct. Such a requirement, in many cases, would only serve to underline and emphasize improper statements, to the objector’s disadvantage. There is no such requirement.

Although it was only counsel for Schudt who engaged in prejudicial and improper conduct, constituting reversible error, nevertheless the trial court ordered that a new trial as to both defendants, Schudt and the village of Lemont, be held. We find that this action by the trial court was correct, in light of the circumstances of the case.

The village of Lemont, understandably, contends that the court abused its discretion in ordering a new trial as to the village, complaining that its counsel engaged in no prejudicial or improper conduct. However, it must be noted that the issues respecting liability were the same as to both defendants, and hinged upon whether they were in charge of the construction and whether a violation of the Act occurred. Thus, while there were certainly differences in the substance of their defenses and arguments, their general positions before the jury were essentially the same. Furthermore, the basis for the court’s award of a new trial is its determination that the jury’s decision in the case was not based upon the merits, but was improperly influenced by prejudicial conduct. That the positions of the defendants were different does not alter the fact that the court determined, assessing all the circumstances, that the verdicts were the result of prejudice, not a consideration of the merits. We find no basis to distinguish or sort out the prejudicial influence as it relates to each defendant. The prejudice was to the plaintiff, and the court concluded that it was significant enough to effect the jury’s verdict as to both defendants. We find no abuse of discretion in that decision.

Where it is impossible to separate the defendants as to the harm that might have been done in the minds of the jury, justice requires a retrial as to both. (Blake v. Mahaffey (1976), 39 Ill. App. 3d 724, 350 N.E.2d 883; Roberts v. Hyland Builders Carp. (1962), 34 Ill. App. 2d 276, 181 N.E.2d 197.) That is the situation in the instant case.

We find no abuse of discretion in the court’s decision to grant a new trial as to both defendants, and, accordingly, we affirm.

Affirmed.

STOUDER, P.J., and SCOTT, J., concur.