text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL NIKONOWICZ, Defendant-Appellant.
    Fifth District
    No. 5—83—0589
    Opinion filed September 4, 1984.

      Randy E. Blue and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

At issue in this appeal is whether the trial court should have allowed the defendant’s motion to withdraw his guilty plea where no verbatim transcript was kept of the plea proceeding and the defendant alleged an invalid waiver of counsel under Supreme Court Rule 401 (87 Ill. 2d R. 401).

On July 15, 1983, the defendant, Michael Nikonowicz, came before Judge Thomas Hildebrand on his first appearance. At that time the court accepted a guilty plea from the defendant to the charge of possessing less than 30 grams of cannabis (see Ill. Rev. Stat. 1983, ch. SGVz, par. 704(c)). No verbatim transcript was kept of this proceeding. The only record of the proceeding was made with a rubber stamp on a common law record card, which read as follows:

“Defendant advised of his rights, the charge and penalty thereunder, copy of complaint read and given. Defendant waives jury trial and pleads guilty. Court finds defendant guilty and after hearing in aggravation and mitigation assesses a fine of $1,000 and costs ***. Sentencing him to 6 months in the county jail. Mittimus to issue.”

The date as well as the amount of the fine and costs and the length of the sentence were written in on the appropriate blanks. Underneath, in the judge’s hand, was the postscript “Appeal rights given” and the judge’s signature.

On August 9, 1983, the defendant filed a motion to withdraw his guilty plea under Rule 604(d) (87 Ill. 2d R. 604(d)) in which he alleged, inter alia, that the court had failed to address the defendant in open court and inform him of and determine that he understood the nature of the charge, the possible penalties that could be imposed, and his right to counsel, including the right to appointed counsel if he was indigent. The defendant also asserted that the common law record did not reflect a waiver of counsel by the defendant and that a verbatim transcript had not been taken and made a part of the common law record as required by Rule 401(b). In addition, the defendant alleged that the court had failed to give the admonitions required by Rule 402 (87 Ill. 2d R. 402) or make the necessary determinations in accepting the defendant’s guilty plea.

At a hearing on this motion, the defendant presented the testimony of Martha Schumaker, a deputy clerk in the Madison County circuit clerk’s office. She stated that no record had been made of the July 15 guilty plea proceeding other than the common law record and that nowhere in the common law record did it appear that the defendant had waived his right to counsel. On cross-examination, Mrs. Schumaker testified that the defendant had had two other traffic court cases that same day but that it did not appear that counsel had been appointed to represent the defendant in those cases. The common law record of the July 15 proceeding showed that the public defender had been appointed for the defendant on August 4, 1983.

The State presented no evidence, and, after arguments by counsel, the court commented as follows:

“THE COURT: I would advise you at this time, gentlemen, that [the] court has utilized that rubber stamp and, of course,— only to the recent flurry of motions which have been filed regarding said rubber stamp, there is going to be a new and completely different rubber stamp utilized in the future as soon as it can be produced. But I will advise counsel, for the record, Mr. Nikonowicz appeared in front of me July 15, 1983, in custody and I will take notes since it’s my handwriting, since it was my case, and I was the judge. That — although that there is a rubber stamp and it doesn’t reflect the waiver of counsel, that Mr. Nikonowicz, when he was brought before me was advised of the charge. The charge was read to him, explained to him. And I said words to the effect that, ‘Mr. Nikonowicz, you understand what you're here for today, and you’re going to plead guilty or not guilty. If you plead guilty, the court will impose a penalty based on the nature of the offense and whether the prior record you have got [sic] taking into account your circumstances and the nature of this offense.’ ”

Upon objection by defense counsel, the court noted that he was “supplementing the record at this time” and continued:

“I further stated to Mr. Nikonowicz, ‘That if you plead guilty as I said, the court will impose a penalty. If you plead not guilty, you will have a trial. If you have a trial, you will have a jury or a non-jury trial. If you have a jury trial, six to twelve people called jurors — you have your choice of six or twelve. You get to help choose them, listen to the evidence and determine your guilt or innocence determined on that evidence. If you have a non-jury — judge, me, most likely sitting without a jury will make that decision. And I said do you follow me so far and then I said no matter what kind of trial you have, you have certain rights. You have a right to confront and cross examine the witnesses. That means you can see who’s testifying against you and ask them questions about what they say. You can also put on witnesses to tell your side of the story and testify if you want to, but you don’t have to if you don’t want to. The fact that you don’t, can’t be used against you because you’re presumed innocent. The State must prove you guilty beyond a reasonable doubt. That’s their job, not yours. You don’t have to prove anything. I said you have a right to have an attorney with you at all stages in these proceedings and if you’re charged with an offense that carries jail time, like this one, as a possible penalty and you can’t afford one, counsel will be appointed to represent you from the public defender’s office. And how much we pay for that representation, we take it up at a later time pursuant to state statute. If you plead guilty, you are giving [sic] your right to a trial, your right to a jury trial, your right to cross and confront witnesses, and your right to put on witnesses to tell your side of the story, and your right to testify. In other words, there’s no trial if you plead guilty. I advised Mr. Nikonowicz of the penalties for the charge; asked him how he pled.’ ”

The court, noting that one of the arguments in the case was lack of compliance with Rule 401, stated that “the problem *** was that this was not taped. Nobody asked for a bystander’s report, and there was not a tape recording made.” Subsequent to that time, he added, the court had commenced taping all appearances that might result in imprisonment in order to avoid such problems in the future. The court continued:

“And as I said, I advised Mr. Nikonowicz of his rights regarding counsel and all of his other substantial applicable rights as far as the factual basis. I asked him what happened. He said something to the effect that he had been stopped — exact statement he made, I don’t recall. I asked him is there anything he had to say for himself, and he said, ‘No.’ I had a copy of Mr. Nikonowicz’s record, rap sheet, his arrest card from the Granite City Police Department ***. I asked Mr. Nikonowicz about his prior records [sic] which consist of four arrest cards, at least three prior convictions for possession of cannabis. And in light of his prior record, I imposed upon him a penalty which I thought was commensurate with the statutory factors including the nature and circumstances of the offense and his prior record ***.”

The court concluded that “as far as the issue *** about supplementing the record by the court, I cannot help but take judicial notice of the proceedings when I was the judge in those proceedings.” The court then asked the defendant if he had any quarrel with anything the court had said. The defendant replied in the affirmative but, upon advice of counsel, made no further response. Noting that “[there was] no indication that [the defendant] didn’t understand what was going on in this case” and that it was the court’s understanding from talking to the defendant that “[the defendant] knew full well what was going on,” the court denied the defendant’s motion to withdraw his guilty plea.

On appeal from this judgment the defendant contends that where, in his Rule 604(d) motion, he specifically alleged the failure to give the admonitions required under Rule 401 for waiver of counsel, it was error to deny this motion in the absence of a record of the guilty plea proceeding that showed that such admonitions had been given. He asserts in this regard that the common law record was insufficient to show a valid waiver of counsel at the guilty plea proceeding and that the court’s attempt to supplement the record during the hearing on his motion to withdraw was improper and ineffective to provide an adequate record. It is the State’s position, however, that this case is controlled by the supreme court’s decision in People v. Hopping (1975), 60 Ill. 2d 246, 326 N.E.2d 395, and that the trial court thus acted correctly in denying the defendant’s motion to withdraw his guilty plea.

The court in People v. Hopping considered the contention, in three misdemeanor cases consolidated for appeal from the defendants’ respective guilty plea proceedings, that the defendants’ convictions should be set aside because the State had failed to provide verbatim transcripts of the plea proceedings and the record thus failed to show affirmatively that their guilty pleas had been accepted in compliance with Rules 401 and 402. At the time of the Hopping case, both Rule 401, dealing with waiver of counsel, and Rule 402, concerning admonitions to be given in guilty plea proceedings, provided that in felony cases, involving an offense punishable by imprisonment in the penitentiary, the relevant proceeding “[should] be taken verbatim, transcribed, filed, and made a part of the common-law record.” (50 Ill. 2d Rules 401, 402.) (Rule 401 was later extended to all offenses involving imprisonment, thus making it applicable as well to misdemeanor offenses punishable by imprisonment in the county jail. See Ill. Ann. Stat., ch. 110A, par. 401, Committee Comments, at 509 (Smith-Hurd 1976).) The Hopping court held, however, that there was no constitutional requirement of a verbatim transcript in misdemeanor guilty plea proceedings, as alternative means were available to provide a “record of sufficient completeness to permit proper consideration of the specific claims [made on appeal]” (60 Ill. 2d 246, 251-52, 326 N.E.2d 395, 398) as required by the Constitution. The court noted that none of the defendants in Hopping had made specific claims of error in their plea proceedings but had sought reversal solely because their pleas had not been recorded in a particular manner. Since the Hopping defendants had failed to pursue alternative means of providing a record on appeal under Rule 323 (87 Ill. 2d R. 323) and since the defendants there had appealed directly from entry of their guilty pleas rather than seeking to have their pleas set aside in the trial court so that any deficiency could be corrected at once, the Hopping court found no merit in their effort to have their convictions reversed for lack of a verbatim transcript of the plea proceedings.

Notwithstanding the similarity of issue between Hopping and the instant case, that decision is distinguishable on several grounds and so is not controlling of the result here. First, the Hopping decision was premised on the argument that Rules 401 and 402 stated a constitutional requirement of a verbatim transcript in felony cases that was applicable to misdemeanor plea proceedings on equal protection and due process grounds. At the time of the instant case, however, Rule 401 had been extended to require such a transcript for waiver of counsel in misdemeanor as well as felony cases. Thus, while, under Hopping, a verbatim transcript of the proceeding here was not per se constitutionally required, the failure to provide such a transcript of the defendant’s waiver of counsel nevertheless constituted a violation of the currently existing Rule 401.

As a further distinction we note that at the time of the Hopping case, Rule 604(d), requiring a defendant who wished to appeal from entry of a guilty plea to first file a motion to withdraw his plea in the trial court, had not yet been adopted. The Hopping court’s objection, then, that the defendants there had appealed directly from entry of their guilty pleas without seeking to have the alleged deficiencies in their plea proceedings remedied in the trial court, is not applicable in the instant case. Rather, the defendant here has followed the procedure envisioned by the Hopping court, and mandated by Rule 604(d), of filing a motion to withdraw in the trial court so that any defects in the plea proceeding could be remedied at once. Under this procedure, the record and report of proceedings of the defendant’s guilty plea were to have been examined prior to hearing on the motion to withdraw “to ensure an informed hearing on the motion and adequate advocacy of [the] defendant’s rights.” (People v. Sorensen (1977), 49 Ill. App. 3d 984, 986-87, 365 N.E.2d 171, 173.) Because of this change in procedure represented by Rule 604(d), the instant case arises in a different context than in Hopping and can be distinguished from Hopping on that basis.

Finally, while the defendants in Hopping sought reversal on the ground that the records made of their plea proceedings were insufficient to show compliance with Rules 401 and 402, the defendant here has specifically alleged that the trial court failed to advise him of and determine that he understood his right to counsel as required under Rule 401. In Hopping, the court held that, where the defendants had failed to pursue alternative means of providing appeal records showing noncompliance with Rules 401 and 402, the defendants were bound by the limited common law records available, which, in fact, reflected that they had been properly admonished of their rights. In the instant case, however, the common law record of the defendant’s plea proceeding contained no mention that the defendant either had been advised of or had waived his right to counsel at that proceeding. (Cf. People v. Hopping (1975), 60 Ill. 2d 246, 326 N.E.2d 295 (common law record stated that defendant Hopping had been advised of his right to counsel; common law record stated that defendant Young had been advised of his rights and had waived counsel).) In the absence of an additional record or report of proceedings, the record here, unlike in Hopping, was insufficient to show a valid waiver of counsel under Rule 401.

The case at bar is more similar to People v. McCarty (1981), 101 Ill. App. 3d 355, 427 N.E.2d 1382, modified (1983), 94 Ill. 2d 28, 445 N.E.2d 298, and People v. Lyons (1974), 19 Ill. App. 3d 294, 311 N.E.2d 370, in which it was held that the limited docket entries in question failed to demonstrate a knowing and intelligent waiver of counsel. In Lyons, as here, the record stated merely that the defendant had been “advised of his rights,” a statement which the court declined to interpret as showing that the defendant had understood and knowingly waived his right to counsel. In McCarty, although the docket entry stated that the defendant’s right to counsel had been explained to him, the court held that this was insufficient to show that the defendant had understood this right for purposes of waiver under Rule 401. The court noted that while trial judges are generally presumed to have performed their duties properly in admonishing defendants of their rights, when a record lacks any affirmative indication that a defendant has waived his right to counsel, the State has the burden of demonstrating a knowing and intelligent waiver of that right.

Similarly, in the instant case, the rubber stamp used to record the defendant’s guilty plea failed to state that the defendant had been advised of or had knowingly waived his right to counsel and so fell far short of the requirements for demonstrating a valid waiver of counsel under Rule 401. Moreover, while the State on appeal makes much of the defendant’s failure to utilize the alternative methods discussed in Hopping for supplying a report of the defendant’s plea in the absence of a verbatim transcript, the burden of providing such a record here properly rested with the State. (People v. McCarty (1981), 101 Ill. App. 3d 355, 427 N.E.2d 1382.) Unlike in Hopping, where the court seemingly imposed this burden on the defendants (see Illinois Supreme Court Review: Transcripts of Guilty Pleas in Misdemeanor Cases, 1976 U. Ill. L. F. 282, 289-91 (hereinafter Transcripts of Guilty Pleas)), the defendant here has specifically alleged that he was not advised regarding his right to counsel, and the limited record available contains no affirmative indication to the contrary. As stated by the McCarty court, the supreme court has ruled “that where the record [of a waiver of counsel] has no showing that the defendant has made an affirmative acquiescence in his relinquishment of his right to counsel, the State may not place the burden of showing nonwaiver on him.” (101 Ill. App. 3d 355, 360, 427 N.E.2d 1382, 1386.) We therefore find no merit in the State’s contention that the defendant is precluded from asserting his claim on appeal for failure to provide an alternative record of his plea proceeding.

While the trial court here attempted to supplement the record during hearing on the defendant’s motion to withdraw, this effort was likewise ineffective to show that the defendant’s plea had been entered in compliance with Rules 401 and 402. It is evident that the court’s reconstruction of the plea proceeding neither comported with the procedure for compiling a bystander’s report under Rule 323 nor constituted a proper subject for judicial notice. Although a court may take judicial notice of “readily verifiable facts which are capable of ‘instant and unquestionable determination’ ” (In re Abdullah (1981), 85 Ill. 2d 300, 308, 423 N.E.2d 915, 918), there could be no such verification of the pertinent facts here where no record had been made of the defendant’s plea and purported waiver of counsel. Moreover, while the compilation of a substitute report of proceedings under Rule 323 necessarily involves recollection, the court’s recollection of the plea proceeding could hardly suffice as such a report where it was rendered without participation by the parties and was disputed by the defendant. (See 87 Ill. 2d Rules 323(c), 323(d).) Without maligning either the court’s memory or integrity, we note that particularly in this proceeding involving admonishments under Rules 401 and 402, the court may have remembered the litany without specific recollection. “[F]ew judges are eager to admit that they failed to comply with proper procedures, [and] a judge’s [subsequent] memory of events at [a] hearing may be subconsciously modified to fit what should have occurred instead of what did occur.” (Transcripts of Guilty Pleas 292.) The trial court’s remarks, then, concerning his recollection of the defendant’s plea cannot be given effect as a record of the defendant’s waiver of counsel. Further, despite some indication that the court here may have made notes to himself of the proceeding, these notes are not part of the record and cannot be considered by us.

Since the common law record of the defendant’s plea was insufficient to show a valid waiver of counsel by the defendant, the order denying defendant’s motion to withdraw his plea of guilty must be reversed and remanded for further proceedings. In view of this result, we likewise refer to the trial court the State’s motion to revoke bond, which was taken with the case on appeal.

Reversed and remanded.

HARRISON and EARNS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JONES

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY LYNN WRIGHT, Defendant-Appellant.
    Fifth District
    No. 5—83—0515
    Opinion filed September 20, 1984.

      Robert L. Carter, of Alton, for appellant.
    Donald W. Weber, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Karen L. Stallman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

At issue in the instant appeal is whether the trial court erred in refusing to suppress the defendant’s confession after finding that the defendant had been promised leniency prior to making that confession. In view of the totality of circumstances surrounding the confession, we find no error in the trial court’s ruling.

The defendant was arrested around 10:30 a.m. on August 11, 1983, and charged with the murder and armed robbery of Alton cab driver Clarence Emery. A codefendant, D.C. Clark, was also arrested on that date. During the course of the day, the defendant was interrogated and gave two written statements and one video-taped statement in which he accused codefendant D.C. Clark of shooting Emery. Clark also gave a statement, which differed from the defendant’s in that he said that the defendant had shot Emery. To help resolve this inconsistency, both the defendant and Clark were given polygraph examinations at the Alton Police Department.

As the defendant was being returned to his cell following the exam, the defendant asked Detective David Whipple if the police really had codefendant Clark in custody. Detective Whipple showed Clark to the defendant through an opening in Clark’s cell door. When the defendant and Detective Whipple got back to the defendant’s cell, the defendant stated that he wanted to talk. He told Whipple, however, that he was worried about getting the death penalty and about D.C. Clark’s making a deal to testify against the defendant and “getting off without being prosecuted.” When asked if he could guarantee that this would not happen, Detective Whipple stated that he could make no guarantees but that he would get someone from the State’s Attorney’s office to talk with the defendant.

Whipple then left the defendant and returned with assistant State’s Attorney Randy Massey, who identified himself and read the defendant his Miranda rights. The defendant indicated that he understood his rights and wanted to make a truthful statement about the killing of Emery. The defendant asked Massey if he could guarantee that the defendant would not be given the death penalty, and Massey stated that no such guarantee would be made. The defendant then asked if Massey could guarantee that codefendant Clark would be prosecuted along with the defendant and would not be allowed to “make a deal” whereby he would receive probation. Massey assured the defendant that codefendant Clark would be prosecuted on the same charges as the defendant and that, if he were convicted, the State would not recommend probation.

Following this discussion the defendant made a third written statement at 6:35 p.m. in which he admitted that he had been the one who shot Emery. He read this statement in a second video-taped interview conducted at approximately 7:25 p.m. During this interview assistant State’s Attorney Massey asked why the defendant had requested to speak to him. The defendant responded:

“[Defendant] Wright: Because I wanted to be, I know I’m involved in ths crime and I told everything that happened in the statement, but I wasn’t involved in this crime by myself and I want to make sure that the other person that was with me is prosecuted right along with me.
Massey: O.K. Is that what you asked me to guarantee you when you asked to speak to me?
Wright: Yes.
Massey: O.K. Now, I explained to you at that time that there were no other guarantees being made to you under any circumstances. Do you understand that?
Wright: Yes.
Massey: And you voluntarily made a statement anyway?
Wright: Yes.
Massey: The agreement was that we would prosecute all people involved in this offense and that we would recommend penitentiary time for all people who were convicted of this offense.
Wright: Yes.
Massey: That includes you and your co-defendant.
Wright: Yes.
Massey: No other guarantees were made concerning any other type of sentence or any other type of situation in this case. Is that correct?
Wright: Correct.”

After the interview was completed, the video tape was viewed by several people in the State’s Attorney’s office. At 8:25 p.m. a third video-taped statement was made in which Assistant State’s Attorney Massey explained:

“We have since [the time of the previous video-taped statement] reviewed [that statement] and we have become aware that there is a portion of that tape which may possibly be misunderstood or misconstrued at a later time. The purpose of asking you to come back here now is to explain exactly the situation was [sic] and is now so that there can be no misunderstanding at a later date.”

Massey then asked the defendant:

“Massey: You had said earlier that you had asked me to come back and speak to you concerning this case. Is that correct?
[Defendant] Wright: Correct.
Massey: At that time you asked me to make some guarantees to you, is that correct?
Wright: Yes.
Massey: At that time, did I make any guarantee at all concerning the disposition of your case?
Wright: Not at that time.
Massey: Did I at any time?
Wright: No.
Massey: What was the guarantees [sic] that I made to you?
Wright: You said my co-defendant would be prosecuted along with me and that if he was to be found guilty, he would be sentenced to the Department of Corrections as I would.
Massey: O.K., yeah, in the earlier statements, the videotaped statements that you gave, I referred to a penitentiary sentence, is that correct?
Wright: Correct.
Massey: Did you understand that at that time I was referring to your co-defendant which is what was intended.
Wright: Correct.
Massey: The guarantee that I made you did not involve any guarantee at all as to anythings [sic] you might receive. Is that correct?
Wright: Correct.”

The defendant subsequently filed a motion to suppress his confession, and a hearing was held on the motion. In making its ruling denying the motion, the court found that the State had agreed to prosecute codefendant Clark in return for the defendant’s statement. The court further found, contrary to the State’s position that no promises had been made to the defendant regarding the disposition of his own case, that the State’s Attorney’s office had led the defendant to believe that, upon his giving a full and truthful statement, the State would recommend a penitentiary sentence for the defendant and would not seek the death penalty. Notwithstanding its ruling, however, that a binding agreement had been reached barring the State from seeking imposition of the death penalty, the court concluded that the defendant’s confession was voluntary and was not induced by the promises made to him. As a basis for this finding, the court noted that it was the defendant who asked to see if codefendant Clark was in custody and who actually initiated the discussions with the State’s Attorney’s office. Thus, the court stated, it did not appear that the defendant’s will had been overborne by improper techniques on the part of the State or that unsolicited promises had been made “to coax a statement from an unwilling suspect.”

Following denial of the motion to suppress, the defendant was found guilty, in a nonjury trial, of murder and armed robbery. He was subsequently sentenced to concurrent terms in the penitentiary of 80 years on the murder conviction and 30 years on the armed robbery conviction.

On appeal from these convictions, the defendant asserts initially that an agreement had been reached with Assistant State’s Attorney Massey that the State would forego seeking the death penalty in exchange for the defendant’s confession. The trial court’s ruling was indeed predicated on its finding of such an agreement, and the State makes no issue of this on appeal. Despite the ambiguity reflected in the record, then, as to whether the State promised not to seek the death penalty or whether it promised only to prosecute codefendant Clark on the same charges as the defendant, we will presume for purposes of this appeal that the promise was as found by the trial court.

From a review of the record we find no merit in the defendant’s contention that the trial court erred in finding that the defendant’s confession was voluntary following the State’s promise of leniency. It is well settled that a confession is not rendered involuntary merely because promises or suggestions of leniency have been made. (People v. Baine (1980), 82 Ill. App. 3d 604, 403 N.E.2d 57; People v. J.A.G. (1979), 75 Ill. App. 3d 177, 393 N.E.2d 1207.) Rather, such a promise is only one factor to be considered in determining whether, in the totality of circumstances, the defendant’s confession was voluntary. (People v. Baine (1980), 82 Ill. App. 3d 604, 403 N.E.2d 57.) The test in making such a determination is whether the confession was given without compulsion or inducement that would overcome the defendant’s will (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508; People v. Rogers (1984), 122 Ill. App. 3d 384, 461 N.E.2d 511), and a trial court’s finding in this regard will not be reversed unless it is contrary to the manifest weight of the evidence. People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 511; People v. Noe (1980), 86 Ill. App. 3d 762, 408 N.E.2d 483.

The trial court here specifically found that the defendant’s confession was not induced by the promises made by the State but that these so-called inducements were actually conditions originated and tendered by the defendant in return for which he was willing to give a truthful statement. Although, as the defendant notes, he expressed his concerns about the death penalty to Detective Whipple and agreed to make a statement only after meeting with Assistant State’s Attorney Massey, this is not sufficient to show that his confession was induced or compelled by the State’s promise of leniency. Rather, the fact that the defendant sought the promises made to him by the State indicates that his confession was voluntary. Since the defendant initiated the discussions and proposed the terms under which he would render his confession, the trial court could properly find that the defendant’s will was not overcome at the time of his confession but that his confession was a product of free choice.

Because of the initiative taken by the defendant here in making his confession, this case is unlike those cited by the defendant in which promises of leniency were made to coax a confession from an unwilling suspect. (Cf. People v. Koesterer (1976), 44 Ill. App. 3d 468, 358 N.E.2d 295 (defendant’s confession, after repeated urging by her parents, attorney and the police, found to have been prompted by the State’s promise not to oppose a recognizance bond if defendant “cooperated fully”); People v. Ruegger (1975), 32 Ill. App. 3d 765, 336 N.E.2d 50 (defendant found to have been compelled to make statement by officer’s indefinite promise to “go to bat for him”); People v. Jones (1972), 8 Ill. App. 3d 849, 291 N.E.2d 305 (defendant’s statement and grand jury testimony found to have been induced by State’s offer of probation).) We likewise find distinguishable the case of People v. Overturf (1979), 67 Ill. App. 3d 741, 385 N.E.2d 166, in which the defendant’s confession was found to be involuntary because rendered under the mistaken belief that the State’s promise of leniency, made in a plea bargaining situation, extended to the crime in question. In the instant case any confusion about the extent of the “bargain” between the defendant and the State rested with the State, and there is no indication that the defendant received less than he had expected when he negotiated the conditions under which he would make his confession.

The record here amply supports the trial court’s denial of the defendant’s motion to suppress his confession, and we accordingly affirm the defendant’s conviction based upon that confession.

Affirmed.

KASSERMAN and HARRISON, JJ, concur.


author: JUSTICE HOPF

text:
    DR. NORRIS A. ERICKSON, Plaintiff-Appellee, v. AETNA LIFE & CASUALTY COMPANY, Defendant-Appellant.
    Second District
    No. 2—83—0580
    Opinion filed September 24, 1984.

      David P. Meyer and Kendall D. Griffith, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellant.
    John P. Callahan, of Casey, Krippner & Callahan, of Geneva, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Plaintiff Dr. Norris A. Erickson filed this libel action in the circuit court of Kane County seeking damages from defendant Aetna Life & Casualty Company (Aetna). Dr. Erickson, a chiropractor, treated a patient insured by defendant. Subsequently, on the basis of information contained in the defendant’s file regarding plaintiff’s treatment of the insured, plaintiff brought a claim against defendant for libel. After a jury trial plaintiff was awarded both compensatory and punitive damages. Defendant appeals.

On appeal defendant Aetna contends that the statement contained in defendant’s file was not libel per se and that the statement was absolutely privileged because it was used in a workers’ compensation proceeding. Defendant argues it was entitled to judgment notwithstanding the verdict because the evidence overwhelmingly favored defendant on the following issues: (a) whether the statement was defamatory; (b) whether the statement was false; (c) whether the' defendant knew the statement to be false; and (d) whether defendant acted with actual malice on the punitive damages question. Defendant also contends that it is entitled to a new trial because the verdict is against the manifest weight and because the trial court failed to give defendant’s tendered special interrogatories.

Plaintiff treated Pauline Ratajczak for injuries she sustained while employed as a school bus driver. Ratajczak saw two other doctors after her November 16, 1979, injury. In early 1980 plaintiff sent a bill for chiropractic services. When a period of time had passed and he was not paid he contacted defendant. Plaintiff testified that John Markuson, a senior account supervisor for defendant Aetna, told him that the bill was not paid because plaintiff was not a physician. Markuson testified that he discussed the case with Sheila Lance, medical cost coordinator for defendant, and they determined that the treatment rendered was unnecessary and the amount of the bill was unreasonable.

The alleged defamatory publication in this case was made by defendant on a form entitled “Chiropractic Claims Review Committee of Illinois, Claim Evaluation Report.” In June of 1980 Aetna was advised of the existence of this committee. The purpose of the committee was to provide claims review of individual chiropractic claims that involved the relationship between the doctor, patient and “third party payer.” A blank “Claim Evaluation Report” accompanied the letter from the chairman of the committee.

The Ratajczak case was assigned to Richard O’Brien, a trainee claim representative for defendant. He was told to obtain a chiropractic claim review on the file. O’Brien testified that after a cursory reading of the instructions, he filled out the form himself. He conceded that it was a mistake for him to have filled out the form and that he did not discuss the contents of the form with anybody in his office. The form was filled out as follows:

The “Claim Evaluation Report” in issue was a printed form which contained six printed comments regarding the type of care received by the claimant. As is apparent from the form itself, O’Brien indicated that both the frequency of care rendered and the term of care was not what was usually and customarily seen in evaluating chiropractic claims, relative to the diagnosis, type of case, and information submitted. O’Brien also entered the following language: “The duration of the care and treatment in this case appears to be unreasonable and unnecessary for the injury involved. Pauline Ratajczak treated with Dr. Erickson from November 19, 1979, until June 3, 1980. The total charge for this treatment was $892.50.” O’Brien had no medical or chiropractic background other than his experience with workers’ compensation files.

O’Brien testified that the claim report he prepared required that a check be attached to it, but he did not know if a check was prepared or whether or not the form was ever sent to the chairman of the Chiropractic Claims Review Committee of Illinois. O’Brien had made two status reports on the file which noted that they were waiting for the outcome of the chiropractic review committee.

Defendant’s attorney, William Vanderwater, read O’Brien’s report and believed that it supported Aetna’s contention that the chiropractic care was not necessary and had been unnecessarily prolonged. Vanderwater showed the claim report to the attorney for Ratajczak, Richard Hannigan. Hannigan considered the report to be damaging to his client’s case, and testified that the report “blew his case out of the water.” Vanderwater introduced the report in evidence at the workers’ compensation hearing. Ratajczak did not receive the temporary benefits or payment of the chiropractor’s bill she had sought at that stage of the proceedings. Subsequently, Dr. Erickson contacted Hannigan and told him that the committee report had never been prepared by the chiropractic review committee. Later, Vanderwater also told Hannigan that the exhibit was a phony. Hannigan contacted the arbitrator and determined that it would be necessary to appeal the decision of the arbitrator to the full commission. After he discussed this with Aetna, Aetna was willing to negotiate a settlement for the first time. Aetna settled the case for $30,000, conditional upon Ratajczak paying her own chiropractic bills out of that sum.

In early June of 1981, Hannigan received a letter from Aetna, addressed to Dr. Erickson, which stated that Aetna would pay the chiropractic bill in full and conceded that it had made a serious error. Within a few days of receiving the letter Hannigan received a call from John Markuson of Aetna, who requested that Hannigan send the letter back because it was mailed by mistake. Hannigan responded by saying, “You’re kidding.”

Sheila Lance, medical cost controller for defendant Aetna, testified that she received a telephone call from a member of the chiropractic review committee inquiring about the Ratajczak file. Lance pulled the file. When she saw the report she realized it had been filled out by O’Brien, not by the Claims Review Committee. She showed it to Markuson, her supervisor, and told him what she had discovered. Lance and Markuson were both surprised at the development, and Lance contacted attorney Vanderwater. Vanderwater then talked to Hannigan, and they appeared before the arbitrator again. Lance wrote the letter explaining the “serious error” and offered to pay plaintiff’s bill. However, Lance testified that although she had written this letter, the offer to pay the bill had been retracted. They still refused to pay the bill and maintained that the treatment was not “reasonable and necessary.” She testified that on the basis of the other medical care received by Ratajczak, the chiropractic treatment was not needed. The Lance letter was never sent to plaintiff, but did go to other parties, including plaintiff’s attorney.

On June 10, 1981, John Markuson, Lance’s supervisor, wrote a letter which did not concede a serious error, but rather indicated that the request for chiropractic review was being resubmitted and that when the results of that review committee were received they would be substituted in the record before the Industrial Commission. Markuson did not know if the chiropractic review committee ever made a finding on this case. Markuson testified that even though he thought there had been a mistake made he felt that the treatment was not reasonable and necessary and that the bill should not be paid at that time.

Plaintiff presented evidence that workers’ compensation claims amounted to 19 to 20% of plaintiff’s practice in 1979 and at the time of trial in 1983 those claims represented 151/2% of his practice. After the trial the jury found in favor of plaintiff. Damages were assessed in the amount of $25,000 and punitive damages were assessed in the amount of $67,000.

Defendant’s first contention on appeal is that the trial court erred in denying its motions for summary judgment and directed verdict because plaintiff did not have a cause of action against defendant and/or failed to sustain his burden on essential elements of his cause of action for libel. The first consideration we discuss is the question of whether the words used in this case are actionable under the innocent construction rule discussed in Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195. Chapski modified that rule and found that a preliminary determination on this question should be made as a question of law. The Chapski court held that the alleged defamatory statement is to be considered in context, and, if it can reasonably be innocently interpreted or interpreted as referring to someone other than the plaintiff, it cannot be actionable per se.

Defendant, in its motion for summary judgment, urged that application of the modified innocent construction rule requires a finding that the statement is nonactionable and not libelous per se. We disagree. With regard to the present statement, we believe that there is no question as to whether the statement was directed to plaintiff— it referred to plaintiff and no one else. Further, considering the context of the statement made by defendant, we do not believe it can be given an innocent construction. Although, in the present case, the statement on its face was limited to comments on “the care and treatment in this case ***,” we nonetheless believe that when one considers the context of the entire statement, an innocent construction cannot be found.

Defendant compares the statement made in the instant case to that made by a physician about another physician’s report in the case of Anderson v. Matz (1978), 67 Ill. App. 3d 175, 384 N.E.2d 759. Anderson was decided before Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195. In Anderson, a physician made a statement about another doctor in a report to an insurance company. The doctor noted that there was a question about an EEG report and stated he would be “happy to review those reports, although, if they are the usual type of thing that Dr. Anderson puts out with her usual recommendations for anticonvulsive treatment they are of no clinical value and should not in any way influence your thinking in this case.” (Anderson v. Matz (1978), 67 Ill. App. 3d 175, 177, 384 N.E.2d 759, 760.) The trial court found that these statements were susceptible of innocent construction and were not libelous. This finding was affirmed by the appellate court, which noted that in the field of medicine doctors may arrive at different conclusions and libelous statements must be examined in that context. We believe that Anderson is entirely distinguishable from the present case. In the case at bar the report found to be libelous was not prepared by a doctor. Although it appeared to have been prepared by the Chiropractic Claims Review Committee of Illinois, it was actually prepared by defendant’s employee, who was not a doctor. Therefore we are presented with an entirely different situation than in Anderson. The present case does not involve a difference of opinion between doctors.

Defendant urges that the defamatory statement was limited to a particular case and is therefore not actionable per se. Citing Valentine v. North American Co. for Life & Health Insurance (1973), 16 Ill. App. 3d 277, 305 N.E.2d 746, defendant urges that the comments made by O’Brien in the instant case were nonactionable as a matter of law. Valentine was a case where the defendant described the plaintiff, an insurance salesman, as a “lousy agent.” The court noted that words were actionable per se if they tend to prejudice or injure a person in his profession or business, and those words must impute some incapacity or lack of due qualification to engage in the trade or profession. (16 Ill. App. 3d 277, 280, 305 N.E.2d 746, 748.) The court held that under the innocent construction rule adopted in Illinois the language “lousy agent,” considered in context, should be construed to be nonactionable as a matter of law. We believe Valentine is distinguishable from the present case. The statement made by the defendant in that case was not made by what purported to be a review committee of insurance agents. In the context of the present case the prejudicial effect of the defendant’s statement cannot be ignored. Further, the modified rule of Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195, has been applied with an emphasis on protecting an individual’s interest in vindicating his good name and reputation as well as first amendment interests. (Costello v. Capital Cities Media, Inc. (1982), 111 Ill. App. 3d 1009, 445 N.E.2d 13.) Valentine did not apply the modified rule.

If a statement is found to be libel per se, then special or pecuniary damages need not be proved. (Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 266, 371 N.E.2d 874, 879.) Considering the issue of whether the statement was libelous per se, it has been held that there are four categories of words which constitute libel per se. Only two of those categories are relevant here — words or statements which impute unfitness or want of integrity in performing the duties of an office and those which impute a lack of ability in a person’s business, trade or profession. (Howell v. Blecharczyck (1983), 119 Ill. App. 3d 987, 991, 457 N.E.2d 494, 497.) In Costello v. Capital Cities Media, Inc. (1982), 111 Ill. App. 3d 1009, 445 N.E.2d 13, a county board member brought an action against the local newspaper for libel. The paper had printed an editorial which repeatedly called the plaintiff a liar and included an exclusive reference to “two more years of the Costello brand of lying leadership.” (111 Ill. App. 3d 1009, 1011, 445 N.E.2d 13, 15.) This language was held to be an assault on the plaintiff’s character in general rather than an attack on his conduct in a particular instance. However, the Costello court then applied the innocent construction rule as clarified by the supreme court in Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195. Under Chapski, the Costello court held that a defamatory, rather than an innocent, meaning was more probable.

Plaintiff contends that both his integrity and reputation as a chiropractor were severely damaged by the report issued in this case. We note that plaintiff was a private person and that the law relating to public figures is not controlling in the instant case (see Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427, 444 N.E.2d 253, 258). Plaintiff argues that Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir. 1983), 713 F.2d 262, supports its position. The Brown & Williamson court found that a broadcast by Walter Jacobson which urged that a cigarette company had geared its advertising to “hook” youngsters on smoking was libelous per se. The court noted that libel and slander had merged in Illinois, but that a statement to be libelous per se must be not only within the four categories, it must be “sufficiently defamatory to justify an award of damages without proof of actual damage.” (713 F.2d 262, 268.) Quoting from Reed v. Albanese (1966), 78 Ill. App. 2d 53, 58, 223 N.E.2d 419, 422, the court stated that the statement must be “ ‘ “so obviously and naturally hurtful to the person aggrieved that proof of their injurious character can be, and is, dispensed with.” ’ ” (Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir. 1983), 713 F.2d 262, 268.) The court found Walter Jacobson’s statement to be libelous per se and found that some harm to the cigarette company was highly likely. In the instant case, the harm to plaintiff’s chiropractic practice was also likely.

Defendant argues that under the case of Britton v. Winfield Public Library (1981), 101 Ill. App. 3d 546, 550, 428 N.E.2d 650, 653, the defamatory statement must be of a general character rather than a criticism of plaintiff’s action in a single case. We disagree. We believe that under the facts of this case, where the statement was made on a report which purported to be a review by plaintiff’s peers in the chiropractic profession, the statement carried such great weight that it was libelous per se. Further, under the modified rule set forth by Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195, which was decided after Britton, we do not believe that when the publication is considered in context it can be innocently interpreted. Although, in the present case, it was argued that the publication was not actionable because it alleged a single act of misconduct, the context of the publication creates an aura of incompetence because it purportedly was the decision of a committee of plaintiff’s peers. Plaintiff analogizes this to an attorney being reprimanded by the Attorney Registration and Disciplinary Commission of the Bar Association for overcharging or doing unnecessary work. It creates the appearance of misconduct that reflects on one’s practice as a whole. While one accusation or mistake may not be actionable, if the statement imputes a “lack of qualities which the public has a right to expect of the plaintiff in his calling, it may be actionable.” (Prosser, Torts sec. 112, at 759 (4th ed. 1971).) As recently stated in Cartwright v. Garrison (1983), 113 Ill. App. 3d 536, 542, 447 N.E.2d 446, a false statement which imputes a lack of ability in one’s profession, or an unfitness to perform one’s employment, is actionable as defamation. In the context of the facts as presented to the trial court, we believe the trial court properly denied defendant’s motions for summary judgment and directed verdict.

Defendant next contends that because the report was used in a workers’ compensation proceeding it is absolutely privileged. Generally, it has been held that an absolute privilege protects anything said or written in a legal proceeding. (Weiler v. Stern (1978), 67 Ill. App. 3d 179, 384 N.E.2d 762.) Public policy forbids the maintenance of any action, the trial of which would inevitably lead to a disclosure of matters which the law itself regards as confidential and with respect to which it will not allow the confidence to be violated. (Krumin v. Bruknes (1930), 255 Ill. App. 503.) It has been held that the only requirement for application of the privilege is that the communication pertain to proposed or pending litigation. (Made v. Clark Equipment Co. (1972), 8 Ill. App. 3d 613, 615, 290 N.E.2d 912.) (Restatement (Second) of Torts sec. 586 (1977).) The Made court noted that the question of whether the statement was pertinent to the legal proceedings is not applied strictly and is a legal question for the court to decide.

On the other hand, defendant contends that in the instant case the statement, which concerned the reasonableness, frequency and duration of the claimant’s chiropractic treatment, was highly pertinent because the employer or the insurer is obligated to pay only reasonable and necessary costs resulting from the injury. Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a).

Defendant cites the case of Libco Corp. v. Adams (1981), 100 Ill. App. 3d 314, 426 N.E.2d 1130, to support its proposition that the subject statement is protected by judicial privilege. However, the Libco court noted that the purpose of the privilege was to secure to attorneys, as officers of the court, the utmost freedom in their efforts to secure justice for their clients. The privilege, it noted, is based on the tenet that conduct which otherwise would be actionable should escape liability because the defendant is furthering an interest of social importance. (100 Ill. App. 3d 314, 426 N.E.2d 1130, 1132.) By contrast, in the instant case, the statement was not made by an attorney, but rather by the insurance company which was going to be required to pay for the medical treatment which it alleged was unreasonable and unnecessary. Therefore, it is manifest that the purpose of the privilege would not be furthered by applying it to the present situation, where the author of the statement was not furthering an interest of social importance. Only when the interest sought to be protected is one of paramount importance can the defendant’s immunity for false statements be absolute. (Prosser, Torts sec. 114, at 776 (4th ed. 1971).) If the statement has relatively less weight from a social point of view, then immunity is a qualified immunity. A qualified immunity, unlike an absolute immunity, is conditioned upon publication in a reasonable manner and for a proper purpose. (Prosser, Torts sec. 115, at 786 (4th ed. 1971).) We cannot say the statement here was made in a reasonable manner. The defendant conéedes that the report filled out by O’Brien was, if not erroneous, then at least not what it appeared to be — a chiropractic claim review committee report. Therefore, despite the fact that the pertinency or relevancy requirement is a principle that is not applied in the strict sense (Made v. Clark Equipment Co. (1972), 8 Ill. App. 3d 613, 615, 290 N.E.2d 912), we do not believe the statement made in the instant case can be viewed as privileged.

The defendant’s next contention on appeal is that the plaintiff failed to sustain his cause of action for libel and failed to sustain an essential element of the claim, i.e., that the statement about which he complains is false. Defendant argues that the plaintiff had the burden of proving that the -frequency and duration of the care was usual and customary as well as reasonable and necessary for the injury received. However, this argument misses the point of the libel proceeding which occurred at the trial court level. Defendant concedes that a chiropractic review committee at no time reviewed the plaintiff’s treatment of defendant’s insured in this case. Therefore, the question of whether or not the plaintiff’s treatment was reasonable and necessary was not in issue below. The evidence clearly showed that the statement in the report was false in the sense that it was a phony report.

Defendant also argues that the plaintiff failed to prove that it knew the statement to be false or lacked reasonable grounds for believing the statement to be true. Similarly, it urges, plaintiff failed to meet his burden of proving that the defendant acted with actual malice. While it is true that the plaintiff must prove defendant had knowledge of the falsity, or in the alternative, lacked reasonable grounds for believing the truth of the statement and that punitive damages can only be awarded in libel if the defendant acted with actual malice, in the instant case there was evidence to support the jury’s decision that the statements were made with knowledge and malice. A number of defendant’s employees reviewed the file after O’Brien had placed the chiropractic review committee report in it. From this evidence the jury could have concluded that they saw the report and were aware that it was both false and that there was no reasonable basis for presuming that it was true. The testimony of these witnesses was sufficient to show with convincing clarity that the defendant acted with actual malice. (Troman v. Wood (1975), 62 Ill. 2d 184, 340 N.E.2d 292.) To prove “actual malice” the plaintiff need not show malice in the moral sense of hate, vindictiveness or animosity but may prove a wanton disregard of the rights of the others. (Bloomfield v. Retail Credit Co. (1973), 14 Ill. App. 3d 158, 302 N.E.2d 88.) Further, the question of whether clear and convincing evidence of “actual malice” was shown is a question for the trier of fact. (Guthrie v. Annabel (1977), 50 Ill. App. 3d 969, 973, 365 N.E.2d 1367, 1370; Durso v. Lyle Stuart, Inc. (1975), 33 Ill. App. 3d 300, 304, 337 N.E.2d 443, 447.) Plaintiff did meet his burden of proving actual malice, and the trial court properly denied defendant’s motion for a directed verdict.

Defendant’s next contention is that the verdict of the jury is contrary to the manifest weight of the evidence. The only argument defendant provides in support of this contention is to refer to those arguments previously raised and discussed. Defendant reiterates its contention that the plaintiff failed to prove one or more essential elements of his cause of action. However, as previously stated, if it is determined that the statement is libel per se, or if no innocent construction of the statement can be made, the determination of knowledge of falsity, actual malice, or reckless disregard of truth or falsity is a jury determination. In the instant case there was evidence presented to the jury from which they could conclude that such circumstances existed. Thus, we believe the verdict is within the manifest weight of that evidence.

Defendant’s final contention on appeal is that it was prejudiced by the trial court’s refusal of its special interrogatories. Defendant contends that the interrogatories tendered were proper for this case and dealt with an ultimate fact in the case. The Civil Practice Law provides:

“The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact submitted to the jury in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law.” (Ill. Rev. Stat. 1983, ch. 110, par. 2-1108.)

A special interrogatory is an interrogatory addressed to the jury on some material question of fact. Its purpose is to ask the jury to decide some controlling question which, if answered in the affirmative, would control the general verdict. Hunter, Trial Handbook for Illinois Lawyers sec. 87.8 (5th ed. 1983); Gasbarra v. St. James Hospital (1980), 85 Ill. App. 3d 32, 406 N.E.2d 544.

The defendant argues that the following special interrogatories were improperly refused by the trial court:

“Were the matters set forth in the documents substantially true? Answer:_yes_no.
Was the defendant, Aetna Life and Casualty Company, guilty of actual malice in publication offthe document in question? Answer: ._yes_no.”

Defendant argued, in its post-trial motion, that the trial court improperly denied these requested special interrogatories.

Defendant argues that these are proper interrogatories and that they deal with an ultimate fact of the case which is dispositive. However, with regard to the first interrogatory, as to whether or not matters set forth in the documents were true, as we have discussed, this was not an ultimate issue in the present case. Throughout the case the defendant argued that the question of whether or not the treatment rendered by plaintiff was reasonable and necessary was a proper issue to be decided by the jury. However, it is clear that the jury was not deciding the standard of chiropractic care, but rather was deciding whether or not the report prepared by defendant libeled the plaintiff. Further, there was no evidence by which the jury could determine whether the chiropractic treatment rendered by plaintiff was appropriate. Therefore the requested special interrogatory, which was directed to the truth of the document, was properly denied by the trial court.

The second requested interrogatory concerned the question of whether the defendant was “guilty of actual malice.” In New York Times Co. v. Sullivan (1964), 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726, the court characterized actual malice as the publication of libelous matter “with knowledge that it was false or with reckless disregard of whether it was false or not.” Actual malice is an element of a claim for libel when punitive damages are sought. (Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427, 441, 444 N.E.2d 253, 258; Durso v. Lyle Stuart, Inc. (1975), 33 Ill. App. 3d 300, 304, 337 N.E.2d 443, 447.) The question of whether or not clear and convincing evidence of “actual malice” exists is a question for the trier of fact. Guthrie v. Annabel (1977), 50 Ill. App. 3d 969, 973, 365 N.E.2d 1367, 1370.

Although the existence of actual malice is a “material question” which should be submitted to a jury, we are concerned about the use of the phrase “guilty of actual malice.” The term “guilty” was not defined in the instructions, and we believe it imposes a greater burden on plaintiff than would otherwise be required. The issue was not whether defendant was guilty or innocent of any charges but rather whether there was clear and convincing evidence that actual malice existed. It has been held that a special interrogatory should contain a single direct question and should not be repetitious, misleading, confusing or ambiguous and should use the same language or terms as are contained in the instructions. Zois v. Piniarski (1982), 107 Ill. App. 3d 651, 652-53, 437 N.E.2d 1251, 1252; Hocking v. Rehnquist (1968) , 100 Ill. App. 2d 417, 241 N.E.2d 337, rev’d on other grounds (1969) , 44 Ill. 2d 196, 254 N.E.2d 515.

In the instructions presented to the jury in this cause the term actual malice was defined, using the same definition as quoted above in New York Times Co. v. Sullivan (1964), 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726. The jury was also instructed that plaintiff was required to prove the first five elements of his case by a preponderance of the evidence. However, with regard to whether plaintiff established actual malice, it was instructed that the burden is stricter, i.e., actual malice must be shown by clear and convincing evidence.

Because plaintiff needed to prove actual malice by the standard of clear and convincing evidence (Guthrie v. Annabel (1977), 50 Ill. App. 3d 969, 973, 365 N.E.2d 1367, 1370), the use of the term “guilty” could create an unnecessary ambiguity for the jury. The word is most often used in a criminal law setting where proof beyond a reasonable doubt is the standard. Further, a special interrogatory should use the language or terms as contained in the instructions. (Saldana v. Wirtz Cartage Co. (1977), 55 Ill. App. 3d 440, 370 N.E.2d 1131, rev’d on other grounds (1978), 74 Ill. 2d 379, 385 N.E.2d 664.) Thus, the special interrogatory regarding actual malice was properly refused by the trial court in this case.

When the statement made by defendant is considered in context, it appears to be a very negative review of plaintiff’s conduct as a chiropractor. It did not refer to anyone other than plaintiff (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195, 199), and it imputed to plaintiff a want of integrity and honesty (Costello v. Capitol Cities Media, Inc. (1982), 111 Ill. App. 3d 1009, 1014, 445 N.E.2d 13, 17).

Accordingly, for the reasons set forth above, the trial court of Kane County is affirmed.

Affirmed.

LINDBERG and NASH, JJ., concur.


author: JUSTICE DOWNING JUSTICE DOWNING

text:
    ANTHONY MORIZZO, Plaintiff-Appellee, v. KAY LAVERDURE et al., Defendants-Appellees. (“K” Koncrete, Inc., et al., Third-party Plaintiffs-Appellees; Bena Associates, Inc., Third-Party Defendant-Appellant; Baranyk-Popwych, Ltd., Third-Party Defendant).
    First District (2nd Division)
    No. 83—1125
    Opinion filed September 18, 1984.
    DOWNING, J., specially concurring.

      Stephen E. Sward and David C. Gustman, both of Rooks, Pitts, Fullagar & Poust, of Chicago, for appellant.
    Aaron M. Spiezer, of St. Charles, and Eric Ferleger, of Chicago, for appellees “K” Koncrete, Inc., Ronald Laverdure, and Patricia Laverdure, d/b/a “K” Koncrete Company.
   JUSTICE DOWNING

delivered the opinion of the court:

Does a cause of action for active-passive indemnity continue to exist in Illinois as the result of the adoption of the Contribution Among Joint Tortfeasors Act (hereinafter the Contribution Act) (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.)? The trial court denied a motion to dismiss a third-party complaint based exclusively on active-passive indemnification, and certified three questions to this court. We granted interlocutory review. The pleadings allege the following facts.

Plaintiff Anthony Morizzo, the owner of Morizzo’s Ridgewood Funeral Home in Chicago, entered into a contract with Bena Associates, Inc. (hereinafter Bena), for the construction of a building addition according to the plans and specifications prepared by architect Barnyk-Popwych, Ltd. Bena, as the general contractor, entered into a subcontract with Kay Laverdure, William Laverdure, Ronald Laverdure and Patricia Laverdure, d/b/a “K” Koncrete Company, later incorporated as “K” Koncrete, Inc. (hereinafter “K” Koncrete), to perform concrete, foundation and flatwork services for the project.

In performing its excavation work according to the subcontract, “K” Koncrete relied upon plans drafted by the architect and provided by Bena. The plans of the original structure were inaccurate in that they showed an L-lot line footing on the building that did not, in fact, exist. “K” Koncrete excavated to approximately four feet, or to the bottom of the foundation of the original building, which led to its collapse on May 8,1979.

Plaintiff filed suit in November 1979, seeking compensation for the damages to his property and business; in his third amended complaint, he named both Bena and “K” Koncrete as defendants. Thereafter, a settlement agreement was reached between plaintiff and Bena. Plaintiff was paid the sum of $67,500, and Bena was dismissed from the action with prejudice.

“K” Koncrete, on November 6, 1981, initiated a third-party action against Bena and the architect. In its amended complaint, “K” Koncrete alleged, inter alia, that the architect and Bena submitted plans which were wrong and inaccurate; that it had to rely on the accuracy of the plans; that Bena and the architect had a duty to accurately inform it of the building’s foundation; that it worked only at the direction and under the control of Bena; and that, therefore, any liability to plaintiff would be based solely on its passive conduct in performing the contract pursuant to Bena’s direction and control. “K” Koncrete further alleged that any harm to plaintiff was the proximate result of the active and wrongful conduct of Bena and the architect. “K” Koncrete requested that if it was found liable to plaintiff, a judgment in like sum should be entered in favor of itself against the architect and Bena jointly and severally, and that it recover from the architect and Bena its costs and attorney fees.

In its motion to dismiss the third-party complaint, Bena claimed that section 2(c), (d) of the 1981 Contribution Act protects a settling defendant, such as itself, from further liability to any alleged joint tortfeasor. The trial court denied Bena’s motion to dismiss, and Bena thereafter requested that the court make a finding pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308), urging that the trial court’s order involved questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation.

The trial court certified the following questions of law as a result of Bena’s request:

“1. A question of law exists as to whether a cause of action for active-passive indemnity exists in Illinois in light of the Contribution Statute, Ill. Rev. Stat. Ch. 70 sec. 301 et seq.
2. If the answer to the first question is in the affirmative, a question of law exists as to whether a pretort relationship between the indemnitor and indemnitee is a necessary prerequisite to an action for active-passive indemnity?
3. If the answer to the second question is in the affirmative, a question of law exists as to whether a pretort relationship as follows:
a subcontractor, who is sued by plaintiff for acts of negligence that allegedly resulted in injury to the plaintiff, brings a third-party action against the general contractor for indemnity;
is within the scope of a pretort relationship as that term was used by the First District Appellate Court in Van Jacobs v. Parikh, 97 Ill. App. 3d 610 (1981) which will allow the potentially liable defendant to seek indemnity based on the active-passive theory.”

Application for leave to appeal to this court was subsequently granted.

I

On appeal, Bena contends that the Contribution Act has super-ceded the judicially created concept of active-passive implied indemnity, and that by enacting the statute, the legislature created an express and exclusive remedy for joint tortfeasors seeking apportionment of their relative culpabilities. As provided in the Act, a tortfeasor who settles with a claimant “is discharged from all liability for any contribution to any other tortfeasor.” (Ill. Rev. Stat. 1983, ch. 70, par. 302(d).) Bena thus argues that if “K” Koncrete is allowed to bring Bena, who has already settled with plaintiff, back into this lawsuit under the theory of indemnity, the legislative scheme will be undermined.

A

Pre-Contribution Act

Before this issue is addressed, the development of the theory of indemnification in Illinois will be briefly examined.

Indemnity is a common law doctrine which shifts the entire loss from one tortfeasor, who has been compelled to pay the loss, to another. (Prosser, Torts sec. 51, at 310 (4th ed. 1971).) Some cases have held that a pretort relationship with the indemnitor must be shown as well as some significant difference in the nature of their respective conduct which justifies a shifting of liability. (See, e.g., Muhlbauer v. Kruzel (1968), 39 Ill. 2d 226, 230-31, 234 N.E.2d 790.) Other cases have recognized such implied indemnity, even in the absence of a pretort relationship. (See, e.g., Loehr v. Illinois Bell Telephone Co. (1974), 21 Ill. App. 3d 555, 558, 316 N.E.2d 251.) In indemnity, the measure of recovery is all or nothing. (Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 349, 459 N.E.2d 935.) Illinois previously adhered to the common law rule barring contribution among tortfeasors. (See Sargent v. Interstate Bakeries, Inc. (1967), 86 Ill. App. 2d 187, 193-94, 229 N.E.2d 769.) The concept of implied indemnification based upon the active-passive negligence doctrine was developed and expanded by the courts in order to mitigate the harsh effects of the no-contribution bar.

The right to indemnity stands upon the principle that everyone is responsible for the consequences of his own acts. (Sargent v. Interstate Bakeries, Inc. (1967), 86 Ill. App. 2d 187, 190, 229 N.E.2d 769.) Indemnity can be express, based upon the agreement of the parties, implied by operation of law, or implied by the courts based upon the theory of active-passive negligence.

In 1977, the supreme court overturned the long-standing common law rule which prohibited contribution among tortfeasors. (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, cert, denied sub nom. Hinckley Plastic, Inc. v. Reed-Prentice Division Package Machinery Co. (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849.) In Skinner, which involved a workman’s compensation claim, the original defendant filed a third-party complaint against plaintiff’s employer claiming contribution. The supreme court held there was no valid reason for the continued existence of the no-contribution rule.

B

Post-Contribution Act

In 1979, the General Assembly adopted the Contribution Act. As was said in Doyle v. Rhodes (1984), 101 Ill. 2d 1, 8-9, 461 N.E.2d 382, “[t]he statute, as adopted in Illinois, was intended to codify the Skinner decision, not to diminish its scope”; and “ ‘[t]he rule adopted in Skinner was codified and clarified by the General Assembly in 1979 in the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.).’ These unanimous utterances filed so recently should put to rest any question as to whether this court believes that the Contribution Among Joint Tortfeasors Act as adopted in this State was intended to modify Skinner rather than to codify it.”

To respond to the first of the certified questions, we must look at the intent of the legislature. If legislative intent is clear and unambiguous and can be ascertained from the language of the statute, that intent must prevail. Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350, 167 N.E.2d 169; Franzese v. Trinko (1977), 66 Ill. 2d 136, 139, 361 N.E.2d 585; People ex rel. Callahan v. Mar shall Field & Co. (1980), 83 Ill. App. 3d 811, 813-14, 404 N.E.2d 368.

But, the Contribution Act is silent with respect to the interplay between its intent and the right of express or implied indemnity. We therefore examine some pertinent prepassage happenings.

In 1976 (prior to the Skinner opinion), an Illinois Judicial Conference Study Committee On Indemnity, Third Party Actions and Equitable Contributions, reported to the annual judicial conference. The committee recommended the adoption of the principle of contribution among joint tortfeasors in Illinois. It also recommended that the legislature adopt a statute similar to the New York statute modified, amongst other provisions, to state:

“Sec. 5 Rights of Persons Entitled to Damages Not Affected; Rights of Indemnity or Subrogation Preserved.
* * *
(b) Nothing contained in this article shall impair any right of indemnity or subrogation under existing law except that the right to indemnification of one personally at fault shall be limited to those circumstances where he merely fails to discover the dangerous condition created by another.” (Emphasis added.) Report of the Illinois Judicial Conference 198, 226 (1976).

The New York statute, as amended in 1974, provides, “Nothing contained in this article shall impair any right of indemnity or subrogation under existing law.” N.Y. Civ. Prac. sec. 1404(b) (McKinney 1976).

The Uniform Contribution Among Joint Tortfeasors Act (1955 rev.) provides in section 1(f):

“(f) This Act does not impair any right of indemnity under existing law. Where one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation.” (Emphasis added.) 12 Uniformed Laws Annotated 63-64 (1975).

In adopting the Contribution Act in 1978, the legislature ignored the New York statute, the Judicial Conference Committee’s recommendation, and the Uniform Act. The statute is silent with respect to the continued vitality of the common law doctrine of express or implied indemnity.

We have not been able to determine if the legislature intentionally rejected the suggested language. Senate Bill 308, as introduced into the legislature, did not contain any such language. And, we find no reference to this topic in the transcripts of either the Senate or House proceedings. We can assume that in the legislative process, prior to the adoption of the Contribution Act, the language of the New York statute, the Uniform Act, as well as the recommendations of the Judicial Conference Committee, were considered. Even if considered and rejected, this would only be a factor to consider but would not conclusively determine the legislative intent. (See People ex rel. Callahan v. Marshall Field & Co. (1980), 83 Ill. App. 3d 811, 815-16.) “K” Koncrete argues the legislature “did not act to curtail indemnity when it passed the Contribution Act.” But, on the other hand, failure by the legislature to preserve the right of express or implied indemnity strongly suggests an intent to eliminate the judicially created doctrine in active-passive tort cases.

Does the fact that the legislature, ignoring the various suggestions, failed to include specific language preserving the right of express or implied indemnity clearly indicate that it did not intend to preserve such right?

As the supreme court stated in Doyle, the legislature adopted the Contribution Act to codify the decision of Skinner. The Skinner court, in rejecting the continued existence of the no-contribution rule, acknowledged that the active-passive theory of indemnity was designed to mitigate the harsh effect of the application of the no-contribution rule. (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 12-13.) It seems reasonable to conclude that the legislature, in adopting the Contribution Act based on Skinner, was also rejecting the active-passive negligence theory of indemnity. Therefore the legislature intentionally did not include the suggested language that “[njothing shall impair any right of indemnity ***.”

In Heinrich, the supreme court did not answer the question. Citing numerous articles and the then one reported decision in this State (Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 422 N.E.2d 979), the court noted the issue “is an important one which awaits resolution in light of the developing law regarding the role of contribution in Illinois.” Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 350.

The first case to address the issue of the viability of indemnity in Illinois after the enactment of our contribution statute was Van Jacobs. There, the appellate court stated that “[t]he contribution act has not extinguished indemnity in Illinois but instead, permits the courts to place indemnity back upon its theoretical foundation.” (Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 613.) Decisions subsequent to Van Jacobs have interpreted it as authority for the principle that implied indemnification in tort cases is still a viable concept. (Bednar v. Venture Stores, Inc. (1982), 106 Ill. App. 3d 454, 457, 436 N.E.2d 46; LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App. 3d 729, 732-33, 442 N.E.2d 1367; Winfield Design Associates, Inc. v. Quincy Jefferson Venture (N.D. Ill. 1983), 569 F. Supp. 748, 749 n.4; Davis v. FMC Corp. (C.D. Ill. 1982), 537 F. Supp. 466, 467-68; see also Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 97, 463 N.E.2d 792, where the court recognized that “upstream” indemnity is allowable in strict liability cases.) However, none of these cases addressed the question raised by the failure of the legislature to provide for the specific preservation of the right of express or implied indemnity.

As we interpret Van Jacobs, this court held that implied indemnity is not extinguished by the passing of the Contribution Act for cases involving some pretort relationship between the parties which gives rise to a duty to indemnify, e.g., in cases involving vicarious liability (lessor-lessee; employer-employee; owner and lessee; master and servant). In Lowe, this court held that implied indemnity was still viable with respect to “upstream” claims in a strict liability action.

Except possibly for those causes of action based on the theories of indemnity just enumerated, it is our opinion that the Contribution Act extinguished a cause of action for active-passive indemnity in Illinois.

II

“K” Koncrete’s amended third-party complaint is based on the active-passive theory of indemnity in negligence. In fact, it alleges that although it was the subcontractor actually performing the work which caused plaintiff’s building to collapse, if negligent it was only passively negligent, whereas Bena and B aranyk-Popwy ch were actively negligent. The third-party plaintiffs’ complaint, not being based on any theory of vicarious liability, but rather on active-passive negligence, should have been dismissed by the trial court. The judgment must be reversed and the cause remanded to the circuit court of Cook County with the answer of “no” to the certified question of “whether a cause of action for active-passive indemnity exists in Illinois in light of the Contribution Statute, Ill. Rev. Stat. Ch. 70 sec. 301 et seq.”

In view of our resolution of the certified question, it is not important to dwell on the characterizations in the amended third-party complaint. Suffice it to say, however, an appropriate question might be raised based on the facts before us as to whether “K” Koncrete was passively negligent.

Reversed and remanded.

HARTMAN, P.J., and O’CONNOR, J., concur.

JUSTICE DOWNING

specially concurring:

My opinion before the court answered the question “no” as to “whether a cause of action for active-passive indemnity exists in Blinois in light of the Contribution Statute, Ill. Rev. Stat. Ch. 70 sec. 301 et seq.”

Before proceeding with the additional comments, may I point out that it is not unprecedented for a separate concurrence to be written by the author of an opinion. See, e.g., Justice Brennan’s concurrence to the Brennan opinion for the court in Abbate v. United States (1959), 359 U.S. 187, 196, 3 L. Ed. 2d 729, 735, 79 S. Ct. 666, 671; accord, Wheeling Steel Corp. v. Glander (1949), 337 U.S. 562, 576, 93 L. Ed. 1544, 1553, 69 S. Ct. 1291, 1299, where Justice Jackson noted, “It cannot be suggested that in cases where the author is the mere instrument of the Court he must forego expression of his own convictions.” See also Hawkins v. Superior Court (1978), 22 Cal. 3d 584, 595, 586 P.2d 916, 923, 150 Cal. Rptr. 435, 442.

In my opinion, I believe that with the passage of the Contribution Act, it is reasonable to conclude that the legislature intended that, without qualification, implied indemnity should no longer exist. I see no reason to distinguish between vicarious liability, indemnity in tort cases, or cases alleging “upstream” strict liability.

       The relevant portions of the Act are:
      “Sec. 2. Right of Contribution.
      * ** *
      (c) When a release or convenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.
      (d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor.” Ill. Rev. Stat. 1981, ch. 70, pars. 302(c), (d).

       See 2A Sutherland, Statutory Construction sec. 48.04, at 197 (4th ed. 1973): “History of enactment process.
      The events occurring immediately prior to the time when an act becomes law comprise a most instructive source for information indicative of what the legislature intended it to mean.”


author: PRESIDING JUSTICE WELCH

text:
      In re MARRIAGE OF LINDA LOU SHELTON, Petitioner-Appellant, and SAMUEL EDWIN SHELTON, Respondent-Appellee.
    Fifth District
    No. 5—83—0660
    Opinion filed August 23, 1984.

      James W. Sanders and Associates, of Marion, for appellant.
    Edward J. Kionka, of Kionka and Associates, of Murphysboro, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

At dispute in this appeal is whether petitioner Linda Lou Shelton receives 3.5 acres of land or is awarded its cash value of $3,185. The circuit court of Williamson County modified its judgment disposing of the property of the petitioner and respondent Samuel Edwin Shelton, and, as a result of that modification, she received the cash value of that land. We hold that the court was empowered to make that modification.

The original judgment of dissolution in this case, incorporating a settlement agreement entered into by the parties, was filed on April 28, 1978. Among other matters, it divided the parties’ marital property, including a tract of approximately 31 acres of rural Williamson County land. The judgment stated that

“[t]he petitioner shall have as her sole and exclusive real property the house and ten (10) acres of land contiguous to that house to include the garage building, but not the barn building or the lake, located in the Northwest Quarter of Section 36, Township 8 South, Range Two East of the Third Principal Meridian, Williamson County, Illinois. The respondent shall have as his sole and exclusive real property the balance of twenty-one (21) acres, including the barn and the lake, located in the aforedescribed tract.”

That tract, which is intersected by Interstate Highway 57, is represented by the diagram reproduced below.

On October 3, 1979, the petitioner filed a petition for rule to show cause, alleging that the respondent had not yet conveyed to her any of that land. The respondent admitted that this was true but contended, in his response, that the parties had been mistaken as to the dimensions of the land surrounding the house and garage. As he stated in his petition to modify the judgment, filed November 1, 1979, he and his counsel had assumed with the petitioner and her counsel that the house and garage were located on an approximately symmetrical 10 acres of land, “more or less in a square shape.” In that petition, the respondent sought to modify the judgment to grant the petitioner the house, garage and 6.5 acres of land contiguous to the buildings. That land is identified as Tract A in the diagram.

The petitioner denied that 10 acres of land do not adjoin the house and that she was mistaken about the dimensions of the land. A hearing on the respondent’s petition to modify was scheduled for March 7, 1980. At that hearing, surveyor Michael Wyant recalled that the respondent asked him to survey the 31-acre tract. The respondent instructed him to divide from the tract 10 acres, including the house and garage, but excluding the lake and barn. Wyant explained that he and the respondent intended to create a roughly rectangular 10-acre tract. Upon surveying the land, he discovered that the largest possible roughly rectangular lot he could establish would be Tract A.

The petitioner testified that when she negotiated the settlement-agreement with the respondent, she did not know what the 10-acre tract awarded to her would look like. She denied assuming that it would be rectangular, and indicated that she did not care about the shape, as long as she received 10 acres. Following the petitioner’s testimony, the respondent’s attorney offered in open court a quitclaim deed to the petitioner from the respondent covering “ten contiguous acres in accordance with *** that divorce decree.” His offer did not ■specify which land would be conveyed, as the surveyor had left the courthouse. Pending possible acceptance of that offer, the court recessed the hearing.

Four days later, the petitioner moved to reconvene the hearing. In her motion, she alleged that the respondent had tendered a quitclaim deed to her, but the 10 acres conveyed, consisting of the 5.81-acre portion of Tract A known as Parcel 1, the 2.56-acre Tract C and the 1.63-acre Tract D, were not contiguous. Presumably, the house is located on Parcel 1. The respondent, in turn, filed a petition for rule to show cause based on the petitioner’s failure to quitclaim her interest in the remaining 21 acres.

Repeated substitution of counsel delayed the reconvening of the hearing until July 10, 1981. The respondent testified that during negotiations with the petitioner and her counsel, he agreed to give her the house, the garage and 10 acres. When he had the land surveyed, however, he learned that it would be difficult to create a 10-acre tract including the house and garage. He then attempted to suggest alternative dispositions of the property, involving a grant of land and cash. The petitioner did not accept these suggestions.

At the conclusion of the hearing, the court granted the respondent’s petition to modify. In a written order entered December 3, 1981, the court found “that all parties and their counsel did in fact mistakenly assume that there were 10 regularly shaped acres attached to the house and garage not including the barn or lake ***.” The court ordered the respondent to convey to the petitioner the 6.5-acre Tract A and pay her the reasonable value of 3.5 additional acres of the land. Three appraisals of the entire 31-acre tract were obtained, and, based on those appraisals, the court set the value of 3.5 acres of land at $3,185, in an order of May 6, 1982.

The petitioner attacked the court’s modification of its original judgment in a petition filed under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—1401) on July 1, 1983. She asserted that it would have been possible for the respondent to give her 10 acres contiguous to the house and garage and that the court lacked jurisdiction to modify the distribution of the parties’ property. This petition was denied without a hearing. Among other court action, to be discussed below, the petitioner challenges the denial of this petition.

The petitioner argues that the trial court did not have the authority to alter the award of 10 acres to one consisting of 6.5 acres and the cash value of 3.5 acres. Section 510(a) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 510(a)) states, “The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” The respondent’s petition to modify was filed more than 30 days after the entry of judgment, but within two years of that time. The standards used in reviewing the sufficiency of that petition are therefore those governing section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), now section 2—1401 of the Code of Civil Procedure. See In re Marriage of Redmer (1982), 111 Ill. App. 3d 317, 320-21, 443 N.E.2d 1075, 1077.

The ground alleged in the petition, and found by the trial court, for reopening the judgment was that the parties were mistaken about the dimensions of the land. Relief is available under section 72 if a divorce decree incorporating a written agreement fails to express the real intentions of the parties because of mutual mistake concerning a property settlement. (Groak v. Groak (1965), 64 Ill. App. 2d 439, 212 N.E.2d 139; see also Kelly v. Kelly (1982), 105 Ill. App. 3d 136, 140, 434 N.E.2d 55, 58.) The court in Groak upheld the conclusion of the trial court that no mutual mistake had been shown. In proceedings on petitions for relief from judgments, the credibility of witnesses rests with the trier of fact, and we will not substitute our judgment for that of the trial court unless it is against the manifest weight of the evidence. (Collins v. Prestige Casualty Co. (1977), 54 Ill. App. 3d 762, 370 N.E.2d 103.) Here, the testimony of the parties was sharply contradictory on what they intended in dividing the land. We cannot say that the court erred in finding that they were mistaken about that provision of the judgment.

The petitioner contends that she should have received a hearing on her section 2 — 1401 petition because there is a question of fact as to whether the respondent could have conveyed her 10 contiguous acres. We recognize that, as the diagram makes plain, the respondent could have done so by granting her the 6.5-acre Tract A and the 3.5-acre Tract B. Surveyor Wyant acknowledged that in his testimony. But this is not the question raised by the respondent’s section 72 petition. Instead, that document questions whether the parties meant that L-shaped asymmetrical segment consisting of Tracts A and B when they entered into the agreement or whether they thought that 10 acres of land lay north of the lake and barn. In finding that the latter was the case, the court implicitly determined that the possibility of compliance with the original judgment was no longer at issue. We agree with this determination and hold that, inasmuch as the respondent’s section 72 petition invoked the statutory jurisdiction of the court, the petitioner’s allegations that the court lacked jurisdiction to grant that petition are not meritorious.

Next, the petitioner takes issue with two orders entered by the trial court after it granted the respondent’s section 72 petition. The first of these was entered on June 30, 1982, when the court ordered deeds to be executed from the petitioner to the respondent conveying her interest in the parties’ land, excluding Tract A. It is undisputed that the petitioner refused to execute the deeds, and, on May 19, 1982, the respondent filed a petition for rule to show cause. In a nonevidentiary hearing on the petition, held June 28, 1982, the court observed that a fine would be ineffective to compel compliance, as the petitioner could not afford to pay one. It concluded that imprisonment would be unduly drastic, given that it could issue the deeds. The petitioner now asserts that the court lacked the authority to do so.

In June 1982, section 46 of “An Act to regulate the practice of courts in granting equitable relief” (Ill. Rev. Stat. 1981, ch. 110, par. 396) provided,

“Whenever an order shall be entered, directing the execution of any deed or other writing, it shall be lawful for any judge of the court to execute or for the court to direct the sheriff to execute such deed or other writing, in case the parties under no disability fail to execute such deed or other writing, in a time to be named in the order, ***.”

This certainly applies to this case, because section 502(e) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 502(e)) states that the terms of a separation agreement set forth in a judgment “are enforceable by all remedies available for enforcement of a judgment ***.” The court’s order of May 6, 1982, required the petitioner to execute the deeds within 30 days, and she did not do so. By the terms of section 46 of “An Act to regulate the practice of courts in granting equitable relief,” the court was thus empowered to execute the deeds itself.

Finally, the petitioner claims that the court did not have the authority to enter a nunc pro tunc order of September 2, 1983, issuing two corrected deeds. On August 25, 1983, the respondent moved for the entry of that order, alleging that the court’s order of December 3, 1981, had omitted several phrases from the legal descriptions of the property to be conveyed. Following a nonevidentiary hearing, the court entered the nunc pro tunc order amending its earlier order by inserting the omitted phrases.

According to the petitioner, the court’s addition of the missing phrases was an improper use of its power to enter a nunc pro tunc order. The purpose of such orders is to correct clerical errors or matters of form so that the record reflects the actual order or judgment rendered by the court. (Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 399 N.E.2d 216.) Clerical errors or matters of form are those errors, mistakes or omissions which are not the deliberate result of judicial reasoning and determination. (Dauderman v. Dauderman (1970), 130 Ill. App. 2d 807, 263 N.E.2d 708.) We believe that the incorrect legal descriptions of the land to be conveyed were such errors, and not errors of substance, even though the original descriptions were defective in that they did not close. An error is not a judicial error merely because its correction alters a party’s obligations. In re Marriage of Gingras (1980), 86 Ill. App. 3d 14, 407 N.E.2d 788.

The petitioner further insists that even if the court had the authority to correct the legal descriptions in the deeds, it should not have done so in this case because there was no memorandum to show that the court intended to convey the property described in its amended order. Although a nunc pro tunc order may not be based on the court’s recollection alone (In re Marriage of McDavid (1981), 97 Ill. App. 3d 1044, 425 N.E.2d 442), it may be based on a definite and certain record (Dauderman v. Dauderman (1970), 130 Ill. App. 2d 807, 263 N.E.2d 708). The comments of the court at the close of the July 10, 1981, hearing indicate that it intended for the respondent to convey Tract A to the petitioner and for the petitioner to convey to the respondent her interest in the rest of the land. At that hearing, the parties referred to the dimensions of the land shown in a map prepared by surveyor Wyant and admitted as exhibit C-l. That map contained a legal description of the land and of certain divisions in the land made by Wyant. In comparing the court’s order with exhibit C-l, it is apparent that Wyant’s descriptions of Parcel 1 and of all the land east of Interstate 57, excluding Tract A, contain phrases not in that order. Moreover, the deed from the respondent to the petitioner conveying Parcel 1, Tract C and Tract D has the same legal description of Parcel 1 as in exhibit C-l and not as in the court’s order. This record sufficiently establishes that the court intended to order conveyance of the property described in its amended order, even though its original order did not provide as much. We must reject the contention that the nunc pro tunc order was based on the court’s recollection alone.

In the alternative, the petitioner argues that the court should not have issued the deeds from her to the respondent in the nunc pro tunc order. She maintains that she should have been allowed to execute the deeds, and observes that in civil contempt, a contemnor must have the opportunity to purge himself. However, as the respondent correctly observes, the petitioner was not in the same position as a contemnor and did not stand to be imprisoned or fined. She has not demonstrated that she was prejudiced in any way by the court’s failure to give her yet another opportunity to execute the deeds when she would not do so after the court’s earlier orders. We will not entertain assignments of error which are not prejudicial to the party complaining of them. (In re Marriage of Melton (1981), 93 Ill. App. 3d 338, 417 N.E.2d 220.) Nor is the court’s issuance of the deeds in the nunc pro tunc order rendered void by the repeal of section 46 of “An Act to regulate the practice of courts in granting equitable relief” by the Code of Civil Procedure, effective July 1, 1982. The amended order entered nunc pro tunc relates back to the date of the original order (Harbeck v. Holland (1980), 81 Ill. App. 3d 250, 401 N.E.2d 9), when the trial court certainly had the authority to order execution of the deeds.

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

Affirmed.

EARNS and HARRISON, JJ., concur.