author: JUSTICE TRAPP

text:
    BONNIE GIBSON, a/k/a Bonnie Barton, Plaintiff and Petitioner-Appellee, v. JAMES OLEN BARTON, Defendant and Respondent-Appellant.
    Fourth District
    Nos. 4—82—0663, 4—83—0125 cons.
    Opinion filed October 13, 1983.
    Rehearing denied November 9, 1983.

      Herrick, Rudasill & Moss, of Clinton (Ray Moss, of counsel), for appellant.
    Lamkin and Lamkin, EC., of Clinton (Fhillip Lamkin, of counsel), for appellee in 4 — 82—0663.
    No appearance for appellee in 4 — 83—0125.
    Stephen Myers, of Clinton, guardian ad litem.

   JUSTICE TRAPP

delivered the opinion of the court:

Respondent, James Barton appeals from an order modifying visitation rights, increasing child support, and, in cause No. 4 — 83—0125, from an order finding him in contempt for failing to pay child support. We affirm in part and reverse in part.

The current appeal arises out of a petition filed by petitioner, in September of 1981, to increase child support and modify visitation. Respondent denied the allegations of the petition and counterpetitioned for a change in custody, with a request that a guardian ad litem be appointed for the children. The matters were heard jointly and on June 8, 1982, the trial court entered a modified order reducing visitation rights, increasing respondent’s support obligation to $640 per month and denying the counterpetition for a change in custody. In cause No. 4 — 83—0125, respondent has appealed an order of December 23, 1982, finding him in contempt for failing to pay approximately $1,400 in accrued child support.

Respondent first contends that the trial court erred in reducing his visitation rights without making a finding or hearing evidence to support a finding that the current visitation arrangement was seriously endangering the children’s physical, mental, moral, or emotional health. Section 607(c) of the Illinois Marriage and Dissolution of Marriage Act provides, in part:

“[T]he court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral or emotional health.” Ill. Rev. Stat. 1981, ch. 40, par. 607(c).

The original divorce decree provided for “reasonable visitation” to be exercised by respondent. In 1974, the order was clarified by the court and specific visitation periods were prescribed. This order provided visitation on alternative weekends from 5 p.m. on Friday until 7 p.m. Sunday, with four weeks of summer vacation. The petition at issue here requested the court to modify these periods due to the fact that the children had weekend school activities which conflicted with the scheduling. No evidence was introduced, nor were allegations made, that the current visitation schedule was endangering seriously the children’s physical, mental, moral, or emotional health, but all of the children did testify that they had conflicting school activities and requested a change in the schedule. The court modified visitation “because of the activities of the children” from Saturday noon until Sunday at 7 p.m., summer visitation was reduced to two weeks, and specified holidays were to be alternated.

Respondent’s contention that explicit findings are required to “restrict” a parent’s visitation rights is premised on his assumption that the court’s decree was the equivalent of a restriction of visitation rights. We disagree. Section 607 of the Illinois Marriage and Dissolution of Marriage Act contains several standards concerning visitation. Section 607(a) states that a noncustodial parent “is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health.” (Ill. Rev. Stat. 1981, ch. 40, par. 607(a).) Section 607(c) requires the court to consider the children’s best interests whenever making any modification and the second sentence of that subparagraph prohibits a restriction of visitation rights unless the court finds that the visitation would endanger seriously the child’s physical, mental, moral, or emotional health.

In interpreting a statute a court must give consideration to each word and provision of the statute to ascertain the statute’s meaning and promote its essential purpose. (Miller v. Department of Registration & Education (1979), 75 Ill. 2d 76, 387 N.E.2d 300.) When the standard of section 607(a) is compared with that of the second part of section 607(c) we cannot escape the conclusion that some difference in the scope of the statute was intended by the legislature. Under respondent’s interpretation, the standard of section 607(c) would be subsumed within the provision of section 607(a) rendering section 607(c) essentially meaningless.

The word “restrict” in its ordinary sense means “to keep within certain limits.” (Webster’s New World Dictionary 1213 (2d col. ed. 1976).) Such restrictions might be a prohibition of overnight visitation (see Crichton v. Crichton (1979), 75 Ill. App. 3d 326, 393 N.E.2d 1319), a requirement that visitation occur in the custodial parent’s home, or a requirement that visitation occur outside the home of the noncustodial parent. (In re Marriage of Lawver (1980), 82 Ill. App. 3d 198, 402 N.E.2d 430.) The court’s reinterpretation of its 1974 decree was made with the children’s best interests in mind and is fully supported by the testimony at the hearing. The order is well within the broad measure of discretionary authority given the trial court in these matters and we cannot say that an abuse has been shown. (In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308.) In light of our interpretation of the statute, we need not consider whether specific findings are required to restrict a noncustodial parent’s visitation rights but merely note that the appellate court is split on the issue. In re Marriage of Solomon (1980), 84 Ill. App. 3d 901, 405 N.E.2d 1289; but see In re Marriage of Johnson (1981), 100 Ill. App. 3d 767, 427 N.E.2d 374.

Respondent’s next contention is that the trial court abused its discretion in modifying his child support obligation by increasing his support payments from $45 per week, as provided under a 1974 order, to $640 per month. We agree with respondent that this is a significant

increase from the 1974 order but do not agree that the modification is an abuse of discretion. In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 439 N.E.2d 1005.

In making or modifying an award of child support, the trial court must consider all relevant matters, including, the financial resources and needs of the parties, the standard of living the children would have enjoyed if the marriage had not been dissolved, the resources of the children, the physical and emotional condition of the children, and their educational needs. (Ill. Rev. Stat. 1981, ch. 40, par. 505(a).) The evidence indicates both increased needs of the children and an increased ability of respondent to pay. Without unduly lengthening this opinion by repetition of all the evidence of the parties’ financial circumstances, suffice it to say we believe that the evidence presented below supports the order entered.

In 1974, respondent was earning $540 net per month while in 1981 he was earning $1,600 net monthly. He emphasizes that the order is a 328% increase, but we note that a corresponding increase in his income occurred during this period. The record reflects a careful consideration by the trial court of the appropriate factors, and we cannot say that the current order is an abuse of discretion.

Within 30 days of the trial court’s order, respondent filed a motion to introduce additional evidence that he had suffered a reduction in salary of approximately $400 per month. This motion was denied, and in an offer of proof, respondent introduced check stubs and a letter from his employer indicating that his wages would be reduced approximately $300 per month. On appeal, respondent argues that this “newly discovered evidence” was not in existence at the time of trial and would probably have changed the result of trial. Respondent suggests that the court abused its discretion in refusing to consider this evidence.

Post-trial motions based on newly discovered evidence are not uncommon in dissolution actions. In In re Marriage of Hopkins (1982), 106 Ill. App. 3d 135, 435 N.E.2d 897, this court found no abuse of discretion in the denial of a post-trial motion to hear additional evidence regarding the nature of a marital debt. In that case we found that the additional evidence was immaterial to the resolution of the allocation of the parties’ marital debts and would not have affected the court’s decree. In In re Marriage of Sanborn (1979), 78 Ill. App. 3d 146, 396 N.E.2d 1192, the court upheld the denial of a post-trial motion which sought to introduce allegedly newly discovered evidence of an increase in the value of the parties’ marital residence. The increase in value was alleged to have occurred in between the date of a pretrial stipulation and the time that the court divided the marital estate. In upholding the denial of the post-trial motion, the appellate court stated that to justify granting a rehearing on the basis of newly discovered evidence, a party must demonstrate that the evidence is of a conclusive or decisive nature, making it probable that a different judgment would have been entered, and that the evidence could not have been discovered prior to trial in the exercise of due diligence.

At bar, the evidence which respondent sought to introduce to the court was not newly discovered evidence but rather was evidence which arose subsequent to the entry of the judgment. The standard for introducing newly discovered evidence by way of a post-trial motion presupposes that the evidence exists prior to judgment but is not discoverable in the exercise of due diligence until after the judgment. We agree with the trial court that the proper procedure would have been to file a motion to modify pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1981, ch. 40, par. 510.

Respondent next challenges the trial court’s order requiring him to pay 80% of the fee of the guardian ad litem. Respondent contends that the allocation of the burden of payment of the guardian’s fees was an abuse of discretion and that the award was improper because it did not differentiate between in-court and out-of-court time.

Section 605 of the Illinois Marriage and Dissolution of Marriage Act governs the appointment of an attorney or guardian ad litem for the minor children and provides that “[t]he court shall enter an order for costs, fees and disbursements in favor of the child’s attorney and guardian-ad-litem, as the case may be. The order shall be made against either or both parents, or against the child’s separate estate.” Ill. Rev. Stat. 1981, ch. 40, par. 506.

As for the amount of the guardian’s fees, the allowance of such fees rests with the sound discretion of the trial court, and the exercise thereof will not be interfered with unless such discretion is clearly abused. (Brophy.) The amount to be assessed depends upon the facts and circumstances of each case, and in determining the amount of payment, the trial court must consider the total circumstances of the mother and father; the skill and standing of the attorney employed; the importance, novelty, and difficulty of the questions raised, especially from a family law standpoint; the degree of responsibility involved from a management perspective; the time and labor required; the usual and customary charge in the community; and the benefits to the client. (Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56; Brophy.) Normally, a fee award is based upon a separate hourly rate for court time and noncourt time on the assumption that the former demands a higher degree of competency and therefore merits greater rewards. Brophy.

We are aware of no rule requiring that all fee awards be based on different charges for court versus noncourt time, and we do not find the award as a whole to be excessive or unreasonably high. The award of $1,898 was based upon the affidavit of the guardian ad litem and his testimony at the hearing for fees in which both parties participated. We conclude that the evidence supports the award made by the trial court. We also cannot say that the allocation of the burden of payment was an abuse of discretion. The appointment of a guardian ad litem was necessitated by respondent’s counterpetition for a change in custody and we think it proper that the party necessitating the guardian’s appointment should bear the greater part if not all of the expenses. In Roth v. Roth (1977), 52 Ill. App. 3d 220, 367 N.E.2d 442, the court considered as a factor in determining who should pay attorney fees, the party who precipitated the need for the fees. In that case, the court upheld an award of $3,500 in attorney fees against the husband noting, “Defendant had petitioned the court to appoint the guardian ad litem at the outset of these lengthy custody proceedings. At the conclusion of the proceedings the court, in its discretion, assessed the fees of the guardian ad litem to defendant.” 52 Ill. App. 3d 220, 227, 367 N.E.2d 442, 448.

The final issue is whether the trial court’s finding that respondent had wilfully and contumaciously violated the court’s modified support order is against the manifest weight of the evidence. We conclude it is, and reverse.

Following the entry of the trial court’s modified order, respondent paid support in full for June of 1982 but paid only approximately $400 per month in the following months. On November 1, 1982, petitioner filed a petition for rule to show cause why respondent should not be held in contempt for failing to make child support payments in full. At a hearing on the petition, respondent testified that he had spent $9,000 of a treasury bill and certificate of deposit in June in payment of his attorney fees, two loans, and hospital bills. Respondent also testified that he was informed as of July 1, 1982, that he would be making $300 less per month. Respondent denied that he was able to pay more than $400 per month in support. On December 8, 1982, the trial court found him in contempt but has stayed the order pending this appeal.

The failure to pay child support as required by court order is prima facie evidence of contempt. (Gentile v. Gentile (1980), 87 Ill. App. 3d 311, 409 N.E.2d 52.) If such a showing is made, it is incumbent upon the alleged contemner to show that the failure to comply was not wilful and contumacious. Gentile; People ex rel. Argo v. Henderson (1981), 97 Ill. App. 3d 425, 422 N.E.2d 1005.

The evidence at the show cause hearing indicates that respondent has made required support payments for nine years and was delinquent only after the modified order was entered. Although there was evidence that respondent had money available to him aside from his earnings, he testified that this was used to pay his attorney fees and loans which were currently due before he was advised that his wages would be reduced in July of 1982. Even after his wages were reduced $300 per month, he made child support payments of $200 from each bimonthly paycheck. Petitioner offered no evidence and elicited no testimony from respondent to establish that he was able to pay the support obligation and other debts. The record as a whole contains little evidence to suggest that respondent’s failure to pay support was wilful and contumacious. Rather, this appears to be the first such default of respondent, and in light of evidence of a significant increase in child support and reduction in salary, we believe that the failure to make the required support payments was due solely to respondent’s inability to make such payments. The trial court’s order finding respondent in contempt is reversed. In all other respects the orders are affirmed.

Affirmed in part and reversed in part.

GREEN and MILLER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE ROMITI

license: Public Domain

text:
    THOMAS KENNEDY, Plaintiff-Appellant, v. HOSPITAL SERVICE CORPORATION, Defendant-Appellee.
    First District (4th Division)
    No. 83—238
    Opinion filed September 29, 1983.

      John T. Kennedy, of Highland Park, for appellant.
    Michael I. Hyman, of Chicago (Peter G. McAllen and Donald J. Duffy, of Kirkland & Ellis, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff-appellant, Thomas Kennedy, appeals from an order of the circuit court of Cook County declaring that defendant-appellee, Health Care Service Corporation (sued as Hospital Service Corporation), had properly denied his claim for payment of hospitalization benefits for that part of a hospital stay exceeding a 120-day limitation contained in the Health Services Plan Certificate (the contract) issued to plaintiff by defendant. On appeal plaintiff contends (1) that there exists an ambiguity in the contract with respect to the existence of any limitation on the duration of hospitalization coverage and that such ambiguity should be resolved in his favor by a determination that no such limitation exists; (2) that in any event any such limitation was waived when defendant paid for a 60-day hospitalization period which had occurred after plaintiff had previously been hospitalized for more than 120 days.

We affirm.

The evidence at trial established the following: Plaintiff was hospitalized at Rush Presbyterian-St. Luke’s Hospital (Rush) in Chicago from April 12, 1981, until June 6, 1981, and again from June 16, 1981, until August 23, 1981. On August 24, 1981, plaintiff was admitted to a Hartford, Connecticut hospital, the Institute of Living, where he remained at the time this action was brought on March 23, 1982. There is no contention that the nature of plaintiff’s ailment was not covered under the contract.

Emma Luster, a supervisor in defendant’s direct account department, testified that the bill for plaintiff’s first stay at Rush was received August 5, 1981, and was paid August 26, 1981. Her department would compute the available days of coverage by subtracting the number of days for which payment had previously been made from the available days of coverage provided in the contract. The bill for plaintiff’s second stay at Rush was not received until December 9, 1981, and was paid December 23, 1981, to cover hospitalization until August 20, 1981, a period which together with the earlier Rush hospitalization was computed to be 120 days. According to Luster no other billing for hospitalization for defendant had been received by her department at that time.

Also testifying at trial was Angelo Fraticola, a supervisor in the defendant’s Interplan Bank, which handled billing for members confined to out-of-State hospitals. According to Fraticola when his department was notified by an out-of-State hospital of a patient’s admission the computer file would be checked and it would notify them of the number of days of coverage available. His department received notice of plaintiff’s Connecticut hospitalization on September 2, 1981, and the next day sent back approval of 60 days’ coverage. According to their practice payments were subsequently sent to the Connecticut hospital in October and November of 1981 for the 60 days that had been authorized. Fraticola testified that the computer would contain a history of hospitalization, including dates of admission and discharge. However when further questioned by defendant’s attorney he clarified this by saying that although the date of admission would be listed, the date of discharge would only be shown if defendant had made a payment for that period. If no such payment had been made then only an open admission would be contained in the computer entry. He had also testified that his department determined the number of days available to a patient in the same manner as Emma Luster’s department (by subtracting days paid from contract days available). However upon further examination by plaintiff’s attorney he also testified that “[t]here is something in the computer that they are utilizing the number of days” and that there was a continuing computation of days in the computer.

The contract itself provides in article 1(A)(1) that as to benefits:

“For admissions on and after the Effective Date and during the Benefit Period (see Article VIII(G)), a Beneficiary is entitled to ***
(a) INPATIENT HOSPITAL SERVICE ***.”

Article VIII(G) states:

“ ‘Benefit Period’ means the number of days specified in Article VIII(A) for all inpatient service in a Hospital ***.”

Article VIII(A) states:

“ ‘Subscriber’ means the individual under 65 years of age who has applied for this Certificate and to whom Blue Cross and Blue Shield have issued an Identification Card bearing the same number as this Certificate.”

However article IX states in bold capital letters “EXTENT OF BENEFIT AND RATE.” and then provides:

“(A) Benefit Periods
1.120 days
2.120 days
(B) Percentage Payment by Blue Cross and Blue Shield
1. Blue Cross 80%
2. Blue Shield 80%
* * * > >

When plaintiff sought payment of hospitalization charges for the period in Chicago in excess of 120 days and for the period in Connecticut beyond the initial 60 days defendant refused, contending that the contract provided a 120-day limitation (with certain exceptions not relevant to this dispute) and that it had paid for that period and had erroneously paid for an additional 60-day period. Plaintiff then brought this action for a declaratory judgment.

I

Plaintiff first contends that the contract provisions we have set out created an ambiguity as to the existence of any limitation on the duration of coverage for hospitalization and that because ambiguities in insurance contracts are to be construed against the insurer (Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247), he should be granted hospitalization coverage without any limitation on duration. However we find no such ambiguity. In determining whether a provision of an insurance contract can reasonably be said to be ambiguous, all the provisions of that contract should be read together rather than focusing on an isolated portion. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 429 N.E.2d 1203.) In examining the entire contract at issue here it is clear that the benefit period was clearly labelled and set out in the policy as being 120 days. The cross-reference to the benefit section merely contains a clerical error resulting in a reference to article VIII(A) rather than IX(A). Article VIII(A) obviously has nothing to do with the duration of benefits. Accordingly we find that the trial court correctly held that there was no ambiguity in the contract and that defendant properly limited the hospitalization benefit to 120 days.

In his reply brief before this court plaintiff for the first time has contended that even if a limited duration period is contained in the contract, that period is 240 days, because the 120-day period is listed twice in article IX(A). Because plaintiff did not raise this issue below no proof was adduced as to the reason for the dual listing. Having failed to raise the issue in the trial court plaintiff cannot now properly raise it for the first time in a reply brief on appeal, accordingly we will not consider it further. Consolidated Rail Corp. v. Liberty Mutual Insurance Co. (1981), 92 Ill. App. 3d 1066, 416 N.E.2d 758; Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417.

II

Finally plaintiff contends that because defendant extended coverage for the initial 60 days of his Connecticut hospital stay even though plaintiff had been hospitalized for more than 120 days in Illinois defendant waived the 120-day limitation. But in order to find such a waiver by an insurer it must be shown that the insurer had knowledge of all material facts before it acted. (Home Indemnity Co. v. Allen (7th Cir. 1951), 190 F.2d 490; 16C Appleman Insurance Law & Practice sec. 9367 (1981); see Hartford v. Doubler (1982), 105 Ill. App. 3d 999, 434 N.E.2d 1189.) In this cause plaintiff’s contention depends upon a finding that defendant provided coverage for a period in excess of its contractual limitations with knowledge that plaintiff had exceeded those limitations. However it was the clear testimony of Emma Luster that in evaluating a claim for in-State hospitalization coverage the number of remaining days of coverage would be computed by subtracting days for which payment had already been made from the contractually provided available days. The testimony of Angelo Fraticola was confused, but our summary of that testimony establishes that the trial court could have concluded that this same method was used by his department for out-of-State claims. He testified that a previous period of hospitalization would be included in his department’s computer records only if defendant had already paid out for that period. Thus in this case Emma Luster’s department paid for the initial Illinois hospitalization period on August 26, 1981. But the second period of Illinois hospitalization was not paid for until December 23, 1981, as no bill was received until December 9, 1981. When Angelo Fraticola’s department received the notice from plaintiff’s Connecticut hospital on September 2, 1981, defendant’s records would still have showed that he was entitled to additional coverage. Thus when defendant authorized an additional 60 days of hospitalization coverage it did not do so with the knowledge that the 120-day limitation had already been exceeded and defendant cannot be said to have waived that limitation.

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

Affirmed.

JOHNSON and LINN, JJ., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    GULLIVER’S EAST, INC., d/b/a Gulliver’s East, Plaintiff-Appellee, v. CALIFORNIA UNION INSURANCE COMPANY, Defendant-Appellant.
    First District (3rd Division)
    No. 83—368
    Opinion filed October 12, 1983.

      Lord, Bissell & Brook, of Chicago (Richard F. Johnson, Hugh C. Griffin, and William D. Frazier, of counsel), for appellant.
    Rabens, Formusa & Glassman, Ltd., of Chicago (Marvin Glassman, of counsel), for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, California Union Insurance Company, appeals from a declaratory judgment holding that a provision in its insurance policy issued to plaintiff, Gulliver’s East, Inc., is not against public policy and therefore is valid and enforceable against defendant.

The facts in this case are undisputed. Defendant issued a fire insurance policy to plaintiff insuring the premises of Gulliver’s East, a restaurant located in Skokie, Illinois. As part of the policy, defendant issued an endorsement which provides:

“Arson Clause — The company hereby agrees that a defense of arson to this policy will never be available to the company unless there is an indictment and conviction of the principle {sic\ stockholders of the corporation and assured.”

On January 19, 1981, a fire severely damaged the restaurant and plaintiff filed its claim. In September 1981, defendant denied the claim stating as one ground for denial that “our investigation revealed that the fire was intentionally set by the insured or by a person or persons acting on behalf of the insured.”

Plaintiff filed a complaint for declaratory judgment against defendant seeking a declaration of the validity of the rights of the parties under the insurance policy and damages. Defendant moved to dismiss the complaint alleging among other things that the arson clause violated Illinois public policy and therefore was void and unenforceable. Plaintiff filed a motion for summary judgment seeking a declaration that the arson, clause endorsement is valid and enforceable.

On October 7, 1982, the trial court found the arson clause valid and enforceable and, with respect to that issue, partially granted plaintiff’s motion for summary judgment and partially denied defendant’s motion to dismiss the complaint. Pursuant to Supreme Court Rule 308, the trial court certified the issue of whether the arson clause endorsement is valid and enforceable under Illinois law for immediate review by this court, and we granted leave to appeal.

Defendant contends that the arson clause endorsement, which it freely incorporated into its policy, allows an insured who is guilty of intentionally burning his property to be indemnified for the loss as long as he is not convicted of arson. It argues that this clause encourages the crime of arson and therefore is against public policy.

Parties have the right to incorporate any provision into an insurance contract as long as the provision is not prohibited by law or against public policy. (Mid-Century Insurance Co. v. Safeco Insurance Co. of America (1972), 7 Ill. App. 3d 408, 287 N.E.2d 529; Moscov v. Mutual Life Insurance Co. (1944), 387 Ill. 378, 56 N.E.2d 399.) Courts must consider the facts and circumstances of each case to determine whether a contract clause violates public policy. Board of Trustees v. College Teachers Union (1979), 74 Ill. 2d 412, 386 N.E.2d 47.

While Illinois has a public policy of discouraging the intentional burning of property for profit (Ill. Rev. Stat. 1981, ch. 38, par. 20 — 1(b)), we reject defendant’s contention that the clause in the policy before us encourages arson. The parties did not agree to indemnify unconvicted arsonists, but rather agreed in advance to the manner in which defendant could raise and establish the arson defense. For this reason, the cases relied upon by defendant, State Farm Life Insurance Co. v. Smith (1977), 66 Ill. 2d 591, 363 N.E.2d 785, Industrial Sugars, Inc. v. Standard Accident Insurance Co. (7th Cir. 1964), 338 F.2d 673, and Illinois Bankers’ Life Association v. Collins (1930), 341 Ill. 548, 173 N.E. 465, are inapposite. In those cases, the parties did not agree to the manner in which the alleged intentional bad act must be proved and the insurance companies retained their contractual rights to assert and establish the defense upon their own investigation.

In contrast, in the present case, rather than allow defendant to deny plaintiff’s claim based solely upon defendant’s opinion that the fire was intentionally set by or on behalf of plaintiff, the parties agreed to delegate the arson assessment to a disinterested party, the prosecuting authorities. Defendant specifically agreed to refrain from raising arson as a defense only until there was a conviction of the principal shareholders. Once there was a conviction, defendant could assert the defense in any proceeding, thereby in direct compliance with the public policy against arson and the general policy of preventing wrongdoers from profiting from their intentionally wrongful acts. The endorsement shifts the burden of proving arson from defendant to the prosecuting authorities. We do not believe that this procedural modification of the parties’ contractual rights is repugnant to public policy. Bather, it appears to be an effort by the parties to combat undue delays in recovering insurance proceeds while also preventing those guilty of arson from unjustly recovering such proceeds. Because of our holding that this provision does not violate public policy, we will not interfere with the express agreement of the parties. Accordingly, we find that the arson clause endorsement is valid and enforceable against defendant.

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

Order affirmed.

RIZZI and WHITE, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THOMAS R. NELSON, Special Adm’r of the Estate of Janet Nelson, Deceased, Plaintiff, v. MICHAEL BIEGEL et al., Defendants—(Claire Perez, Counterplaintiff and Petitioner-Appellant, v. Michael Biegel et al., Counter-defendants and Respondents-Appellees).
    Third District
    No. 82—858
    Opinion filed September 23, 1983.
    Rehearing denied November 2, 1983.

      William J. Harte, Ltd., and Katrina Veerhusen, of Kevin M. Forde, Ltd., both of Chicago, and Kent E. Ayers, of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet, for appellant.
    John J. McGarry, of Stefanich, McGarry & Wols, Ltd., of Joliet, for appellee Michael Biegel.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Claire Perez was severely injured as a result of a collision between the car she was driving and a truck driven by Michael Biegel which occurred on September 18, 1979. Janet Nelson, a passenger in Perez’ car, died as a result of the injuries she sustained in the accident. In December 1979, the Nelson estate filed a wrongful death action naming Perez and Biegel as codefendants. Perez was served with a summons, which she forwarded to her insurer, Allstate Insurance Company. Subsequently, plaintiff’s counsel and the respective insurers for Perez and Biegel negotiated a settlement of the plaintiff’s claims. On March 14, 1980, an order was entered by the circuit court of Will County granting the plaintiff leave to settle the case and dismissing the case with prejudice. Perez was never notified of the settlement by Allstate nor by counsel for Allstate.

Unaware of the settlement, Perez, by her personal attorney, filed a counterclaim against her codefendant, Biegel, on September 18, 1981, the last day before the statute of limitations expired. Thereafter, the order of March 14, 1980, was discovered. Because the original action had been dismissed, Perez moved for leave to amend the counterclaim by changing the caption to read “Complaint” and renaming the counterplaintiff and counterdefendant as plaintiff and defendant. The motion also requested that the case be assigned a new docket number and that a summons be issued against Biegel. The trial court denied the motion. Perez then filed a section 72 petition, asking the court to vacate the order approving the settlement. This motion was also denied.

The issues on appeal are (1) whether the trial court abused its discretion in denying Perez leave to amend her counterclaim and redesignate it as a complaint; and (2) if there was no abuse of discretion, should the section 72 petition have been granted. We believe the trial court should have granted Perez leave to amend the counterclaim and we reverse.

Section 2 — -603(c) of the Code of Civil Procedure provides that “[p]leadings shall be liberally construed with a view to doing substantial justice between the parties.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 603(c).) The counterclaim filed by Perez alleged that while Perez was exercising due care driving east on St. Francis Road in Will County, Illinois, Biegel, driving a pickup truck, negligently crossed over from the westbound lane of traffic and struck her automobile, causing Perez to suffer personal injuries and property damage. It is undisputed that had the counterclaim been filed as a complaint under a separate docket number, it would have been a proper complaint, timely filed. The fact that the original suit was settled, precluding the filing of a counterclaim, does not make the allegations of the pleading any less sufficient. To bar this pleading simply because it was mistitled would exalt form over substance.

Illinois courts have not hesitated to characterize a pleading by its content rather than by its title. In Farley v. Blackwood (1978), 56 Ill. App. 3d 1040, 372 N.E.2d 921, the defendant improperly filed a motion to reconsider under section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 68.3). The appellate court noted that the motion satisfied all of the requirements of a motion to set aside a default judgment under section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 50(5)) and, for purposes of the appeal, treated it as a motion to set aside a default judgment.

A similar situation exists in the instant case. The nature of the counterclaim was to bring an action against Biegel. The fact that it was improperly titled a counterclaim rather than a complaint does not change its nature. Had the motion been properly titled, Perez would have been able to bring the action. We do not see how not allowing Perez to bring the action simply because of a wrongly captioned pleading would provide substantial justice between the parties. Therefore, we believe Perez should have been allowed to amend her complaint, and the trial court erred in not allowing her to do so.

For the aforementioned reasons, the order of the circuit court of Will County is reversed and remanded with directions to proceed in accord with the views expressed herein.

Reversed and remanded with directions.

ALLOY and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE BOUSKA, Defendant-Appellant.
    First District (5th Division)
    No. 81—2448
    Opinion filed October 7, 1983.
    Laurence J. Bolon, of Frank, Melamed & Bolon, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Edward Barron, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant Eugene Bouska was found guilty of aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4) and was fined $1,000 for severely beating his girlfriend, Susan Forsberg. On appeal, he contends that: (1) the trial court erred in denying his motion for a new trial because the State’s failure to disclose that it had a letter from Mrs. Forsberg which stated that the charges against defendant were not true violated the rules of discovery; (2) the trial court erred in granting the State’s motion in limine which prohibited defendant from introducing evidence of the continued relationship between defendant and Mrs. Forsberg after the alleged crime; and (3) defendant was not proven guilty beyond a reasonable doubt. We affirm.

Defendant met Mrs. Forsberg in November 1978 when he was head of the flight instruction group at the Schaumburg airport. Mrs. Forsberg enrolled in the flight school to take lessons. Eventually she and defendant became close friends and they began seeing each other romantically. Mrs. Forsberg would stay in defendant’s apartment for long periods of time, although she would leave early in the morning and would never spend the night. Defendant resided at the airport because he also had night watchman duties.

The couple began to take trips together, including extended plane trips to Florida. Defendant would allow Mrs. Forsberg to sit in the left hand seat of the aircraft to enable her to gain flight experience. On August 1, 1980, they flew to Land 0’Lakes, Wisconsin, spent the night at a lodge and then flew to Oshkosh. The trip lasted six days. Defendant testified that he enjoyed the excursion and that Mrs. Furs-berg told him that “it was the ultimate of her life.” He also said that before the trip she advised that he be very cautious because she did not want her mother or father to know that she was traveling with him. She feared they would tell her husband and if he knew he would kill her. Mr. Forsberg had threatened defendant several times before the trip. He was unaware, however, that his wife and defendant had been planning their rendezvous for three months.

The events which precipitated this action began when defendant and Mrs. Forsberg attended a fund-raising party in Highland Park, Illinois, on August 9, 1980. Mrs. Forsberg testified that while she was there a man who she did not know began a conversation with her, commented favorably on her appearance and then reached for her and touched her arm. Mrs. Forsberg was standing near the edge of an asphalt floor and when she recoiled from the man’s approach she inadvertently stepped back into the mud. Defendant, who was nearby, came over to her, helped her out of the mud and asked whether Mrs. Forsberg knew who the man was. Defendant escorted her to his car to continue their conversation. Forsberg testified that inside the car, defendant forcibly grabbed her hair and hit her head against the window. She said that defendant hit her face with his fists and caused her mouth to bleed. They left the park shortly afterwards and defendant drove to his apartment. Forsberg testified further that they continued to argue in the apartment and that defendant struck her again and accused her of being interested in another man. While she was lying on the bed, defendant allegedly jumped on her with his feet.

Defendant testified that Mrs. Forsberg’s injuries were caused after they arrived in his apartment. He stated that they took a shower together, but because they had both been drinking they lost their balance and fell out of the bathtub. Mrs. Forsberg hit her head on a for-mica vanity top and the middle of her body fell over an open toilet seat. Defendant carried Mrs. Forsberg to the bed and offered to take her to the hospital but she refused. Mrs. Forsberg allegedly became despondent, complained about having so many problems with her home and marriage and, according to defendant, she became hysterical. When she reached for a revolver that he kept under the bed, they began to wrestle. Defendant admitted that he jumped on Mrs. Forsberg’s abdomen but explained that he did this in order to prevent her from picking up the gun. He said he did not intentionally injure her ribs, strike her or jump on her pelvis.

Defendant eventually drove Mrs. Forsberg to her home and then left. When her husband saw her physical condition he took his wife to the police station where she filed a complaint. Mrs. Forsberg then checked into a hospital. She remained there for 2V2 days. An examination revealed bruises on her face and a black and blue mark over her left eye. There was tenderness over her pelvic area. X rays revealed fractured ribs. A urinalysis disclosed that there was blood in Mrs. Forsberg’s urine. Dr. Lawrence Gluskin, who examined Mrs. Forsberg in the emergency room, testified that blood in the urine of a woman who is not menstruating caused him to worry about a possible laceration to the kidney.

Mrs. Forsberg’s babysitter, Diane Carbone, testified that when Mrs. Forsberg returned home from her date with defendant her eyes were swollen and she had a bruised face. Carbone stated that although Mrs. Forsberg was not staggering, her walk was stiff and less than normal. After closing arguments by counsel for both sides, defendant was found guilty of aggravated battery.

Two months after trial, on July 22, 1981, defendant filed a post-trial motion for a new trial alleging that the State had failed to reveal in its answer to his motion for discovery that it had received a letter from Mrs. Forsberg in which she stated that the charges against defendant were untrue and that she did not wish to prosecute. The letter in question was addressed to William J. Kunkle, Jr., an assistant State’s Attorney. It read as follows:

“October 6,1980
Please be advised that I am the complaining witness in the case entitled People of the State of Illinois -vs- Eugene Bouska. At the time the complaints were signed, I had just completed a lengthy [sic] hospital stay and it is my opinion that the allegations and facts as charged are untrue. It is my desire not to continue in the prosecution of this matter. I have previously made these statements to ASA Edward Ozog as well as other prosecutors. I feel that it is necessary that I make this request in writing to formalize my position. If you have any questions or comments, please feel free to contact me.
Sincerely,
[signed]
Suzanne M. Forsberg
cc: Bernard Carey
Ed Ozog
William A. Swano.”

In rebuttal to defendant’s motion the State argued that it could not be charged with suppressing this evidence because the notation at the bottom of the letter “cc: Bernard Carey [State’s Attorney of Cook County]; Ed Ozog [assistant State’s Attorney]; and William A. Swano [defendant’s attorney of record]” indicated that Swano had received a copy of the letter. The State alleged further that Swano had generated the letter and had it typed in his office.

Defendant’s motion was denied. This appeal followed.

Opinion

In our judgment the controlling issue herein is defendant’s contention that he was entitled to a new trial because the State violated the rules of discovery when it failed to disclose the letter from Mrs. Forsberg. The State responds that defense counsel was in fact in possession of the letter and that even if he was not, the overwhelming evidence of defendant’s guilt rendered the letter insignificant.

In considering whether an alleged trial error violates a defendant’s right to disclosure guaranteed by Illinois Supreme Court Rules and by the United States Constitution, it is necessary to first consider the nature of the defendant’s request. If the request was specific, the failure to respond “is seldom, if ever, excusable.” (United States v. Agurs (1976), 427 U.S. 97, 106, 49 L. Ed. 2d 342, 351, 96 S. Ct. 2392, 2399.) On the other hand, if the request was general, there is constitutional error only if the omitted evidence creates a reasonable doubt of guilt that did not otherwise exist. (427 U.S. 97, 108, 49 L. Ed. 2d 342, 352, 96 S. Ct. 2392, 2399; People v. Witherspoon (1979), 69 Ill. App. 3d 391, 398, 388 N.E.2d 1.) The Supreme Court has characterized a request which asked for “anything exculpatory” as a general request. 427 U.S. 97, 106-07, 49 L. Ed. 2d 342, 351, 96 S. Ct. 2392, 2399.

The record reveals that defendant filed a pretrial motion for discovery on September 24, 1980, which requested, inter alia, “any evidence which is favorable to defendant.” The State answered that it was unaware of any such evidence or witnesses. Under the criteria enunciated in the Agurs decision, we consider defendant’s request to have been general because it did not give the State notice of exactly what the defense desired. The question now turns to whether the suppressed evidence was material.

As stated above, the standard of materiality articulated by the Supreme Court in Agurs is that the evidence must create a reasonable doubt of guilt that did not otherwise exist. The mere possibility that an item of undisclosed information might have aided the defense or might have affected the outcome of the trial does not establish materiality in the constitutional sense, however. (United States v. Agurs (1976), 427 U.S. 97, 109-10, 49 L. Ed. 2d 342, 353, 96 S. Ct. 2392, 2400.) It has been further held that the suppressed evidence must be unknown to the defense and that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt, whether or not the additional evidence is considered, there is no justification for a new trial. (427 U.S. 97, 112-13, 49 L. Ed. 2d 342, 354-55, 96 S. Ct. 2392, 2401; People v. Kosik (1982), 110 Ill. App. 3d 930, 940, 443 N.E.2d 238.) Additionally, there is no exception to the disclosure rule for the innocent or inadvertent suppression by the State of favorable evidence since the controlling question is the materiality of the evidence. United States v. Agurs (1976), 427 U.S. 97, 110, 49 L. Ed. 2d 342, 353, 96 S. Ct. 2392, 2401; People v. Hovanec (1979), 76 Ill. App. 3d 401, 416, 394 N.E.2d 1340.

Our review of the record in the case at bar reveals that in considering defendant’s motion for a new trial, the court applied the standard of materiality set forth above. The court ruled that the State met its burden of proof that defendant was guilty beyond a reasonable doubt and that there was more than enough evidence upon which the court or jury could enter a finding of guilty. As to the question of whether defense counsel had received a copy of the letter, the court reasoned that because the letter included a “cc” (carbon copies) notation, copies had “apparently” been forwarded to defendant’s attorney of record, William Swano. The court further stated that defendant was responsible for knowing the contents of his attorney’s file of his case, that he must have been advised by his attorney when the attorney received the letter and that defendant either knew or should have known that his attorney had received the letter. It concluded that for the reasons just stated, defendant had the responsibility during trial to make reference to the letter.

Although we agree with the court’s decision denying defendant’s motion for a new trial, we do not believe that the “cc” notation was conclusive evidence that the letter had been received. Rather, we are of the opinion that a new trial was not warranted because the evidence failed to establish thgt Swano did not receive the letter. He was not called to testify and James P. Tatooles, who represented defendant at trial and at the hearing on the motion for a new trial, never affirmatively denied that he did not have a copy. Instead, the thrust of Tatooles’ argument was that because the letter exonerated defendant, it was material and should have been disclosed by the State. This argument, without more, was unpersuasive and did not merit the granting of a new trial.

Defendant next contends that evidence of his continued relationship with Mrs. Forsberg was relevant and should have been admitted to show that her testimony and conduct were inconsistent. He argues that it is unlikely that a victim would continue an intimate relationship with the person who allegedly kidnaped and beat her and that evidence of their intimate relationship was relevant to show “the whole picture of the situation.” We disagree.

The relevancy of a fact in controversy or a matter in issue as evidence of a possible defense lies within the sound discretion of the trial court. The court may reject evidence which it determines to be of little probative value because of its uncertainty or conjectural nature. (People v. Yuknis (1979), 79 Ill. App. 3d 243, 249, 398 N.E.2d 258.) If the record indicates a sufficient basis for the trial court’s decision and there is no abuse of discretion to the prejudice of the defendant, the trial court’s ruling will not be disturbed on appeal. People v. Therriault (1976), 42 Ill. App. 3d 876, 889, 356 N.E.2d 999.

In the case at bar, the trial court stated that it would not permit defendant to question Mrs. Forsberg about their continued intimate relationship because the probative value of such testimony would be outweighed by its prejudicial effect. The court ruled that the relationship was irrelevant to the issue of what happened on August 9, 1980, the date of the altercation. This ruling was correct. The standard for determining the relevancy of evidence is that it will be admissible if it renders a matter in issue more or less probable. (People v. Yuknis (1979), 79 Ill. App. 3d 243, 248, 398 N.E.2d 258.) Testimony detailing defendant’s continued intimate sexual relationship with Mrs. Forsberg would shed little or no light on whether defendant injured her on the night in question, however. The admission of such highly volative and inflammatory testimony would draw the jury away from the important issue of whether defendant was guilty of aggravated battery. Excluding this testimony therefore did not prejudice defendant on the issue of his guilt. By limiting the scope of cross-examination in this regard the trial court properly exercised its sound discretion.

As his final argument on appeal, defendant contends that he was not found guilty beyond a reasonable doubt. We disagree for the following reasons.

A jury’s determination of guilt will not be disturbed unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Stokes (1979), 71 Ill. App. 3d 773, 780, 389 N.E.2d 1352.) In the instant case, our examination of the testimony leads us to believe that contrary to defendant’s contention, the evidence, both circumstantial and direct, shows that defendant intentionally or knowingly inflicted great bodily harm. We believe it is improbable that Mrs. Forsberg sustained such severe injuries in the manner in which defendant alleged. The testimony reveals that Mrs. Forsberg was hospitalized for 2V2 days because of a bruised face, a black eye, fractured ribs and internal injuries. Her testimony, coupled with that of her babysitter, who immediately noticed that Mrs. Forsberg’s face was swollen and that of the physician who conducted an examination at the emergency room of the hospital leads us to believe that defendant intentionally injured her and was guilty beyond all reasonable doubt. Based on the foregoing evidence and the reasonable inferences drawn therefrom, we cannot say that the jury’s verdict was improbable or unsatisfactory. Accordingly, defendant’s conviction is affirmed.

Affirmed.

SULLIVAN and MEJDA, JJ., concur.

      The rule in Agurs as well as that of a prior Supreme Court ease which decided this issue, Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, has been codified in Illinois by Supreme Court Rule 412(c). Rule 412(c) requires that following a written motion “the State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor.” (73 Ill. 2d R. 412(c).) Also, Supreme Court Rule 415(b) imposes a continuing duty to comply with the rules of discovery. If additional material or information is discovered during trial, the court must be notified. 73 Ill. 2d R. 415(b).

      The State received Mrs. Forsberg’s letter approximately one month later in October; however, it neither amended its answer to discovery nor revealed the existence of the letter to defendant or his attorney.

      Defendant was represented by counsel at the preliminary hearing of this cause on August 20, 1980. Swano entered his appearance on September 24, 1980. He withdrew his appearance and James P. Tatooles entered his substituted appearance as defense counsel on February 4, 1981. Tatooles represented defendant at trial, which commenced March 24,1981.


author: JUSTICE SCOTT

text:
    HARNEY-MORGAN CHEVROLET OLDS COMPANY, Plaintiff-Appellee and Cross-Appellant, v. KENNETH RABIN et al., Defendants-Appellants and Cross-Appellees.
    Third District
    No. 82—651
    Opinion filed September 23, 1983.
    Rehearing denied November 8, 1983.

      James L. Frazin and Dinesh M. Lakhani, both of Frazin & Colombik, of Palatine, for appellants.
    Dwight L. Shoemaker, of Conway & Shoemaker, of Aledo, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This lawsuit began on April 7, 1981, when the plaintiff, HarneyMorgan Chevrolet Olds Company, filed a complaint to replevy a 1981 Oldsmobile from the defendants, Kenneth Rabin and his wife, Gertrude Rabin. When the property in question was not delivered up pursuant to a writ of replevin, the plaintiff amended its complaint seeking damages for the value of the 1981 Oldsmobile. After a hearing on the merits of plaintiff’s complaint in the circuit court of Mercer County, a judgment for the plaintiff in the sum of $13,510.57 plus attorney fees and costs was entered. The same court denied plaintiff any recovery based upon allegations of fraud. The defendants have appealed the decision of the circuit court, and the plaintiff has cross-appealed.

Kenneth Rabin, a resident of Morton Grove, Illinois, was a traveling furniture salesman. On March 19 or 20, 1981, while calling on a customer in Aledo, Illinois, Mr. Rabin mentioned that he was interested in purchasing a new car. Mr. Rabin’s customer offered to phone the local Chevrolet-Oldsmobile dealer, Lawrence Morgan, as an introduction to doing business.

Following the phone call, Mr. Rabin went to the dealership in Aledo where he was met by Mr. Morgan. Mr. Morgan was shortly thereafter forced to leave, but not before introducing Mr. Rabin to a salesman, Mr. Olson. At the same time, Mr. Morgan gave Mr. Olson a note that read: “Kenny Rabin had a 1978 Cadillac and was interested in an Oldsmobile.”

Mr. Rabin looked at a new Oldsmobile, and Mr. Olson inspected and test-drove the Cadillac which Mr. Rabin was driving that day and which was to be the subject of the trade-in. Mr. Olson offered a deal to sell the Oldsmobile to Mr. Rabin for the Cadillac and cash. After approximately one hour, Mr. Rabin left the Aledo dealership and returned to his home in Morton Grove. Thereafter, Mr. Rabin compared the offer he had received from the plaintiff dealership with trade-in deals he could make at automobile dealerships near his home. Discovering that the best price for a new car had been offered by the plaintiff dealership, Mr. Rabin phoned Harney-Morgan Chevrolet Olds Company to accept the offer.

Mr. Rabin returned to Aledo with his wife a day or two later. There he signed a retail buyer’s order setting forth the terms of the agreement, including a term which provided for the trade-in of a 1978 Cadillac. He also signed an odometer certificate representing the mileage stated on the odometer, 52,470 miles was correct. Finally, Mr. Rabin signed instruments of title turning the Cadillac over to the dealership as a trade-in. However, the Cadillac was not a 1978 model, but rather a 1976 model. The model year was correctly reflected on the instrument of title assigned to the dealership. Nevertheless, it would appear that during the entire negotiation process, the automobile dealer and his agents mistakenly concluded that the Cadillac was a 1978 model. There is no allegation that Mr. Rabin intentionally misrepresented the model year of the car he was trading in, and indeed the salesmen had ample opportunity to inspect and test drive the Cadillac which they mistook as a 1978 model.

Two days after the sale was consummated and Mr. and Mrs. Rabin drove away in their new Oldsmobile, the Aledo dealer discovered that the Cadillac was a 1976 model. Immediately the dealer demanded that Mr. Rabin return the Oldsmobile and rescind the sale. Mr. Rabin refused. Suit was filed by the dealership in the circuit court of Mercer County. On April 7, 1981, that court filed a temporary order restraining the defendants, Kenneth and Gertrude Rabin, from driving or using the new Oldsmobile. Thirteen days later the same court concluded that the plaintiff dealership had made a prima facie showing of its entitlement to possession of the Oldsmobile, and ordered the issuance of a writ of replevin restoring possession of the new Oldsmobile to the plaintiff. The defendants failed to comply with either the temporary order or with the writ of replevin.

When the Oldsmobile was not delivered up pursuant to court order, the plaintiff dealership filed additional counts to its complaint seeking damages for conversion, misrepresentation and fraud. Still, Mr. Rabin continued his possession and use of the new Oldsmobile. The matter proceeded to trial and the court found for the plaintiff, awarding damages on both the conversion theory and the misrepresentation theory, but deciding that no fraud occurred in the transaction.

The defendants, Mr. and Mrs. Rabin, have appealed, asserting

that a valid contract was entered into for the trade-in of the Cadillac which Mr. Olson inspected and test-drove, and that no legal basis for rescinding that contract has been demonstrated. The plaintiff dealership has appealed, urging that the circuit court should have found in its favor on the fraud theory alleged in its complaint.

The provisions of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 1 — 101 et seq.) apply to the transaction in question. That code provides that in contracts governed by its rules,

“(1) The price can be made payable in money or otherwise. If it is payable in whole or in part in goods each party is a seller of the goods which he is to transfer.” (Ill. Rev. Stat. 1981, ch. 26, par. 2-304(1).)

Thus, with the transaction in question, the plaintiff dealership was a seller of a new Oldsmobile, and the defendants were sellers of the 1976 Cadillac. It follows then that the plaintiff dealership, in attempting to set aside this transaction, would have the remedies granted to a party in the position of a buyer. Since the dealership had, in the terminology of the Code, “accepted” the Cadillac, its statutory remedies would be limited to revoking its acceptance. (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 608.) In addition, the dealership buyer would have certain remedies existing at common law and not supplemented by the Code. Ill. Rev. Stat. 1981, ch. 26, par. 1 — 103.

In the court below, the plaintiff relied on two of these common law theories to support its position that the contract never existed. First, the dealership urges that it was mistaken as to the vintage of the Cadillac trade-in. Secondly, it urges that the defendants misrepresented the actual mileage which the Cadillac had been driven. Generally, the unilateral mistake of one party to a contract may not be relied upon to relieve that party from the obligations of the contract where the party’s own negligence and lack of prudence resulted in the mistake. (Diedrich v. Northern Illinois Publishing Co. (1976), 39 Ill. App. 3d 851, 350 N.E.2d 857.) Here, the dealership had an opportunity to inspect and test-drive the 1976 Cadillac before entering into the agreement. It would not be inequitable to charge the dealership with superior knowledge concerning the values, styles, and appearances of used automobiles. That superior knowledge should have enabled the prudent and diligent dealer to correctly appraise the car and to correctly determine its model year. If the plaintiff here failed to exercise that diligence and prudence in inspecting the goods which were to be the subject of the bargain, it would not be inconsistent with established contract law to deny relief based upon a theory of unilateral mistake. However, in this case the dealer’s otherwise inexcusable mistake was induced, at least in part, by the actions of the defendants. Mr. and Mrs. Rabin signed the retail buyers’ order, which called for the trade-in of a 1978 Cadillac, when in fact they knew that their automobile was a 1976 Cadillac. This written misrepresentation was negligently accomplished, the defendants never taking time to read the document they were signing. To negligently sign an unread document does not relieve the signer of the legal consequences of the document’s contents. (Flannery v. Flannery (1943), 320 Ill. App. 421, 51 N.E.2d 349.) Yet, this retail buyer’s order was prepared by the plaintiff and the defendants urged that they relied on the plaintiff to accurately memorialize their agreement. Defendants further assert that such reliance was reasonable.

A more serious misrepresentation by the defendants, more se.rious because it is not excused by reliance on the actions of the plaintiff, is the certification of the odometer reading of the trade-in Cadillac. According to the findings of the circuit court, it appears from the evidence that the actual miles the Cadillac had been driven far exceeded the 52,470 miles that were represented in the certificate of the defendants. This discrepancy came to light from an examination of the mileage deductions claimed on the Federal tax returns filed by the defendants, and was unexplained by the defendants in their testimony at trial. Although the circuit court relied on the plaintiff’s unilateral mistake concerning the model year in concluding that there was no meeting of the minds and no contract, we must affirm the decision of the lower court upon any theory properly preserved for our review. We believe the inaccuracies in the odometer certificate constituted misrepresentation of sufficient materiality to rescind the contract. Hence, we conclude that the plaintiff was entitled to possession and ownership of the new Oldsmobile upon return to the defendants of the 1976 Cadillac.

It was just such an action for possession that the plaintiff filed. The circuit court, determining that the plaintiff had made the requisite showing of a prima facie case, issued a writ of replevin. It appears from the record that there were irregularities in the service of that writ. Nevertheless, the defendants had been duly served with summons and were before the court. Such an appearance before the court by the defendants and their attorney was sufficient to waive any defects in the service of the writ. (O’Brien v. Haynes (1871), 61 Ill. 494.) The defendants were, therefore, bound by the terms of the writ and obligated to deliver up possession of the Oldsmobile. Where, in a possessory action for replevin, the property is not delivered up in compliance with a writ, the plaintiff has the alternative remedy which was formerly identified as an action of trover. (S. T. Enterprises, Inc. v. Brunswick Corp. (1974), 57 Ill. 2d 461, 315 N.E.2d 1.) The measure of damages in the trover action is the market value of the property at the time of conversion. It follows then that the plaintiff correctly amended its complaint to seek money damages when the writ of replevin failed to result in a repossession of the property. It also follows that the circuit court’s award of damages in the amount of $13,510.57 was correct.

The defendants urge for the first time on this appeal that they were denied an opportunity in the circuit court to prove damages under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121V2, par. 261 et seq.) and under the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1981, ch. I2IV2, par. 311 et seq.). Neither of these statutory causes of action were pleaded in the defendant’s answer as is required by the Supreme Court Rules. (87 Ill. 2d R. 133(a).) Consequently, we cannot consider as a matter of first impression whether these causes of action will lie.

Finally, the defendants urge that the circuit court erred in awarding attorney fees to the plaintiff dealership. We know of no authority for awarding attorney fees under these facts. The plaintiff characterizes the award of attorney fees as a judgment for punitive damages, a form of relief that it prayed for in its complaint. While it is true that courts may consider attorney fees as one element in awarding punitive damages, these two elements of recompense are separate and distinct. To sustain an award of attorney fees as an item of exemplary damages, the intent of the trial court to do so must be clearly established by the record. (Glass v. Burkett (1978), 64 Ill. App. 3d 676, 381 N.E.2d 821.) As we find no indication in the record that the circuit court intended this award of attorney fees to serve as punitive damages, the award cannot be sustained.

The issues raised by the plaintiff’s cross-appeal concern the circuit court’s failure to enter a judgment for the plaintiff finding the defendants guilty of fraud. First it is urged that the allegations of fraudulent conduct as set forth in its affirmative defenses to defendants’ counterclaim were in fact admitted by the defendants when they failed to reply to those affirmative defenses. The defendants did file a motion to strike plaintiff’s affirmative defenses, and the circuit court ordered that motion to be taken and decided with the merits of the case. The defendants and the circuit court both understood that order as obviating the need for a reply to the affirmative defenses. Regardless of whether that understanding was correct, it would now be inequitable in light of that understanding to order that the allegations in the affirmative defenses were deemed to be admitted. Plaintiff also urges that fraud was proved in the discovery process by reason of the defendants’ failure to produce certain business mileage records which they admittedly maintained. Undeniably, the defendants were less than forthright in the discovery process. Whether their obfuscation was the result of mere complacency, or in the alternative of egregious malice, is essentially a question of fact. The circuit court weighed those facts and determined that no fraud was present, and it would be inappropriate for us to overturn that decision. For whatever reason the defendants lacked forthrightness, discovery sanctions may be appropriate, and a motion for such sanctions is still pending in the court below. The circuit court did not err in failing to find fraud in the defendants’ actions.

For the reasons herein set forth, and in reliance on the authorities cited, we affirm the decision of the circuit court of Mercer County, with the exception of its award of attorney fees, which cannot be sustained. Further, we remand the cause to the circuit court of Mercer County for a determination on the pending motion.

Affirmed in part; reversed in part; remanded.

ALLOY and BARRY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID P. BROWN, Defendant-Appellee.
    Third District
    No. 3-83-0013
    Opinion filed October 13, 1983.

      Gary L. Morris, Assistant Corporation Counsel, of Peoria, for the People.
    No brief filed for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from the dismissal of the charge against the defendant, David P. Brown, of driving with a suspended license. In its dismissal of the charge, the trial court ruled that the provisions of section 6 — 303(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95x/2, par. 6 — 303(a)), forbidding driving with a suspended or revoked license, do not apply to a nonresident driver whose license has been issued, and subsequently suspended by another State.

The relevant facts are few. The defendant, David Brown, was charged with driving while his license was suspended pursuant to section 6 — 303(a) of the Illinois Vehicle Code after he was stopped on August 13, 1980, by a Peoria police officer. At that time, the defendant was a resident of the State of Iowa and held an Iowa driver’s license. A check of his license number apparently revealed that his driving privilege had been suspended by the State of Iowa.

Defendant appeared in court on September 1, 1980, and requested a bench trial. When he failed to appear on November 3, 1980, a warrant was issued for his arrest. Two years later, he was apprehended on the warrant while again traveling through the city of Peoria.

Appearing before the court on November 5, 1982, the defendant indicated the he intended to plead guilty. The court requested a factual basis for the plea from the State and was informed that the defendant was driving with a suspended Iowa license at the time he was initially stopped. After two continuances, on November 29, 1982, the court, on its own motion, dismissed the charge against the defendant. The State appeals from the dismissal of the charge.

The defendant-appellee has not submitted a brief in the instant appeal. However, we have reviewed the record and the brief of the appellant and find the issue to be presented sufficiently to enable this court to reach a decision on the merits. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The sole issue in this case is whether section 6 — 303(a) of the Illinois Vehicle Code applies to nonresident as well as resident drivers within the State of Illinois.

The relevant statutory language of section 6 — 303(a) is as follows:

“Any person who drives a motor vehicle on any highway of this State at a time when his driver’s license or permit or privilege so to do or his privilege to obtain a license or permit under this Act is revoked or suspended as provided by this Act or any other Act, except as may be allowed by a restricted driving permit issued under this Act, shall be guilty of a Class A misdemeanor.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 95%, par. 6 — 303(a).

In its brief, the State takes the position that it is clear in reading this statute that persons who have Illinois licenses that are suspended by the Illinois Secretary of State can be charged with the above offense, and it is “maybe less clear” as to nonresident drivers whose licenses have been suspended by their home State. In addition, the State admits that it is unable to refer this court to any cases which support its position. Rather, the State argues that, while the prior language of the statute clearly did not apply to nonresident drivers, the present language, in contrast, does. Specifically, the State relies on the words “or any other Act” which were added by amendment in 1957 and which, according to the State, “must be given meaning.”

We agree that these words must be given meaning; however, we are unable to adopt the strained interpretation which the State suggests. Just as the term “Act,” by definition, refers to the Illinois Vehicle Code when used within chapter 95% (Ill. Rev. Stat. 1981, ch. 95%, par. 1 — 101.1), so is it reasonable to conclude that “other Acts” are those acts adopted by the Illinois General Assembly and not acts adopted by the legislatures of other States. See, e.g., Ill. Rev. Stat. 1981, ch. 38, par. 12 — 5 and ch. 37, par. 702 — 9, referred to in section 6 — 205 describing grounds for mandatory revocation.

It is an elementary rule of statutory construction that penal statutes are to be strictly construed against the State and in favor of the defendant. (Edwards v. Hill (1849), 11 Ill. 22.) Furthermore, the interpretation which is the most rational and sensible is the one to be adopted. (People v. Hudson (1970), 46 Ill. 2d 177, 263 N.E.2d 473.) In the instant case it is clear that, had the General Assembly intended to have included nonresident drivers whose licenses had been suspended from their home State within the bounds of section 6 — 303, it could have easily done so expressly. (People ex rel. Hansen v. Collins (1933), 351 Ill. 551, 184 N.E.2d 641.) However, it did not.

A reading of the second subparagraph of section 6 — 303 further supports this determination. (Ill. Rev. Stat. 1979, ch. 9572, par. 6 — 303(b).) That paragraph grants the Secretary of State the authority to extend the defendant’s period of suspension or of revocation upon receiving a report of a conviction under subparagraph 6 — 303(a). This subparagraph clearly refers to, and only to, licenses issued, and later suspended or revoked, by the Secretary of the State of Illinois.

We do not conclude that, under these facts, the defendant could not have been prosecuted. We only conclude that section 6 — 303(a) of the Illinois Vehicle Code was not the proper means to do it. People v. Johnson (1983), 115 Ill. App. 3d 987, 989.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

STOUDER and BARRY, JJ., concur.