author: PRESIDING JUSTICE MEJDA

text:
    PHILIP BERTLING, Plaintiff-Appellant, v. ROADWAY EXPRESS, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—554
    Opinion filed January 6, 1984.
    Arnold & Kadjan, of Chicago (L. Steven Platt, of counsel), for appellant.

      Vedder, Price, Kaufman & Kammholz, of Chicago (James C. Franczek, Jr., and Andrea R. Waintroob, of counsel), for appellees.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff appeals from a final order of the circuit court which dismissed his complaint with prejudice on defendants’ motion pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619). The complaint alleged that plaintiff had been discharged from his employment as a dock worker with the corporate defendant in retaliation for his filing of workers’ compensation claims. Defendants’ motion to dismiss asserted that plaintiff’s cause of action for retaliatory discharge was barred by his submission of the controversy to arbitration. The trial court’s order stated that the complaint was dismissed because “the matters contained therein are barred by a final binding arbitration decision.” For the reasons which follow, we affirm the judgment of the trial court.

The complaint alleged that plaintiff was employed by the corporate defendant (Roadway) at all relevant times. While performing his normal duties on the job, plaintiff sustained a spinal injury and subsequently filed a workers’ compensation claim against Roadway. Plaintiff sustained another injury on February 10, 1982. Plaintiff filed a claim pertaining to the second injury on March 22, 1982. On April 9, 1982, the first claim was settled and on April 21, 1982, Roadway discharged plaintiff. Plaintiff contended that from the time that he filed his first claim for compensation until his discharge, Coulsen (also referred to as Coulson), Lewis, Drack and Warren (the individual defendants), as Roadway’s agents and employees, engaged in a pattern and practice of harassment designed to intimidate plaintiff and to induce him not to pursue his workers’ compensation claims. The complaint concluded that as a result of these actions, plaintiff had suffered financial and other damage, and prayed for money damages and reinstatement.

Defendants filed a motion to dismiss pursuant to section 2 — 619(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 619(9)). The basis for the motion was that plaintiff’s cause of action was barred by a final and binding arbitration decision. The affidavit of John Coulsen, one of the individual defendants and terminal manager of the facility at which plaintiff was employed, was submitted in support of the motion. The affidavit stated that Roadway and Local 710 of the International Brotherhodd-of Teamsters were parties to a series of collective bargaining agreements which prescribed the terms and conditions of employment of dock workers, including plaintiff. A copy of the agreement was appended to the affidavit. Under article 24 of the agreement, an employee could only be terminated for “just cause.” Article 17, section 1 of the agreement created a Joint Committee to settle disputes between the employer and the local union. Subparagraph A of section 1 provided that “[wjhere a Joint Committee by a majority vote settles a dispute no appeal may be taken. Such a decision will be final and binding on both parties.”

Coulsen’s affidavit stated that on April 28, 1982, plaintiff grieved his discharge to the Joint Committee which, on June 1, 1982, determined that plaintiff’s discharge had been for “just cause” under the collective bargaining agreement. Plaintiff’s grievance, a copy of which was appended to defendants’ motion to dismiss, stated that:

“I am appealing my discharge of 4-21-82. I strongly deny all allegations of failure to perform work assignments at Roadway Terminal (309) Chicago Heights. I also protest termination brought upon me by such allegations. Last month I received a suspention [sic] for insubordination charges subsequently the greivance [sic] board ruled in my favor and suspention [sic] was ruled unjustified. I appeal vehemently to the greivance [sic] board at this time to stop Roadway Express (309) and Terminal manager John Coulson and his staff of managers from harrassment [sic] and mental cruelty which I feel has been brought upon me because of injuries sustained while at work.”

On October 15, 1982, the trial court dismissed the complaint on the ground that the cause of action was barred by a final and binding arbitration decision. Plaintiff filed a “motion to reconsider” together with an affidavit stating substantially that the arbitration committee did not consider plaintiff’s filing of workers’ compensation claims in making its decision. On February 23, 1983, the trial court denied plaintiff’s motion and plaintiff thereafter perfected an appeal to this court.

Opinion

Section 2 — 619(a) of the Code of Civil Procedure (formerly section 48 of the Civil Practice Act) provides that “[defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit: *** (9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(9).) “An ‘affirmative matter’ under this section is ‘something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint.’ Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 96; [citation].” (Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 252, 433 N.E.2d 1350.) In light of the procedural posture of the instant case, the issue before us is whether a prior arbitration decision that an employee was terminated for “just cause” precludes that employee from maintaining a retaliatory discharge action grounded on the same factual basis upon which the arbitration proceeding was founded. As a preliminary caveat to our discussion, we note that neither party has invoked the doctrine of Federal preemption (see generally Thompson v. Monsanto Co. (Tex. Civ. App. 1977), 559 S.W.2d 873), and we accordingly have no occasion to apply that doctrine in the decision of this case.

The supreme court recognized the tort of retaliatory discharge in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. In that case the court held that “an employer’s otherwise absolute power to terminate an employee at will should [not] prevail when that power is exercised to prevent the employee from asserting his statutory rights under the Workmen’s Compensation Act.” (74 Ill. 2d 172, 181, 384 N.E.2d 353.) “In Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053, this court stated that to allow a cause of action for retaliatory discharge to an employee at will while denying it to a union member, would lead to an absurd result since punitive damages would be available to an employee at will, but would not be available to an employee protected by a union contract, despite the fact that union contracts are specifically designed to protect against discharge other than for cause.” (Midgett v. Sackett-Chicago, Inc. (1983), 118 Ill. App. 3d 7, 9; contra, Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407 N.E.2d 95; Deatrick v. Funk Seeds International (1982), 109 Ill. App. 3d 998, 441 N.E.2d 669; Lamb v. Briggs Manufacturing (7th Cir. 1983), 700 F.2d 1092; see also Carnation Co. v. Borner (Tex. 1980), 610 S.W.2d 450.) The parties have not questioned the applicability to this case of the rule announced in Wyatt. The question posed in this case is whether a union member who does exercise the grievance procedure established by a collective bargaining contract and receives a determination that his discharge was for “just cause” may nonetheless litigate the issue of the employer’s motivation in discharging him in a subsequent and separate proceeding.

Our analysis of this issue takes two steps. First, we must determine whether, as plaintiff contends, the Joint Committee could not have decided the issue of retaliatory discharge because the authority of the arbitrators was limited by the collective bargaining agreement. This argument, however, is not appropriately addressed to the instant proceeding. The legislature has provided a method for a direct attack on arbitration awards in section 12 of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 112). The failure to utilize the statutory procedure precludes consideration of an attack on the validity of an arbitration award in a collateral proceeding. (Schroud v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 1092, 1095, 398 N.E.2d 103; Donoghue v. Kohlmeyer & Co. (1978), 63 Ill. App. 3d 979, 983, 380 N.E.2d 1003; see also Board of Education v. Chicago Teachers Union, Local 1 (1981), 86 Ill. 2d 469, 476, 427 N.E.2d 1199 (failure to present argument to arbitrator waives subsequent consideration of argument); Hughey v. Industrial Com. (1979), 76 Ill. 2d 577, 580, 394 N.E.2d 1164.) In view of plaintiffs failure to challenge the award under the statutory procedure, the matters decided therein are conclusive upon him.

The second step in our analysis is to determine whether the effect of the award is to preclude, as an affirmative defense, plaintiffs assertion of his cause of action. An arbitration award is “a full and final adjustment of the controversy, having all the force of an adjudication and effectually concluding the parties from again litigating the same subject.” (White Eagle Laundry Co. v. Slawek (1921), 296 Ill. 240, 244, 129 N.E. 753.) Moreover, arbitrators, by authority of the parties’ submission of the controversy for decision, become the judges of both the law and the facts of the case. (White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 602, 77 N.E. 327.)

“[W]hen the parties have expressly or by reasonable implication submitted the questions of law as well as the questions of fact arising out of the matter in controversy, the decision of the arbitrators on both subjects is final. It is upon the principle of res judicata, on the ground that the matter has been judged by a tribunal which the parties have agreed to make final ***.” (White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 609, 77 N.E. 327.)

In the instant case the arbitrator determined that plaintiff was discharged for “just cause.” Plaintiff contends that this finding of “just cause” does not defeat his cause of action for retaliatory discharge because the issues in arbitration were not the same as the issues raised by the instant lawsuit. Defendants argue that plaintiff’s grievance alleged substantially the same accusations of unfair treatment which the complaint alleged. The grievance filed with plaintiff’s union stated that he denied that he had failed to perform work assignments properly and that defendants were harassing him “because of injuries sustained while at work.” The Joint Committee decision found that plaintiff had been terminated for just cause, and implicitly rejected plaintiff’s contention that he was fired for other reasons. In such a case, “ '*** the determination in the former suit of the fact or question, if properly presented and relied on, will be held conclusive on the parties in the later suit, regardless of the identity of the cause of action, or lack of it, in the two suits.***’ ” (Consolidated Distilled Products, Inc. v. Allphin (1978), 73 Ill. 2d 19, 26, 382 N.E.2d 217, quoting Charles E. Harding Co. v. Harding (1933), 352 Ill. 417, 426-27, 186 N.E. 152.) Therefore, we conclude that plaintiff may not now assert that he was discharged for other than just cause and accordingly may not now allege that he was discharged for filing workers’ compensation claims. The circuit court properly granted the motion to dismiss.

We note that this result is consistent with the observation in Wyatt v. Jewel Cos. that an employee who files an unsuccessful grievance proceeding is for that reason barred from recovering in tort. Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 842, 439 N.E.2d 1053 (harmonizing Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407 N.E.2d 95).

For all the foregoing reasons, the order of the circuit court is affirmed.

Affirmed.

SULLIVAN and WILSON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    STEVE’S EQUIPMENT SERVICE, INC., Plaintiff-Appellant, v. HENRY RIEBRANDT, a/k/a Hank Brandt, d/b/a H & D Transport Corporation, et al., Defendants-Appellees (Paul Esposito, d/b/a C.H.H., Inc., Defendant).
    Second District
    No. 83—171
    Opinion filed January 12, 1984.
    Rehearing denied February 15, 1984.
    Keith E. Roberts, Robert R. Verchota, and Rodney W. Equi, all of Donovan & Roberts, P.C., of Wheaton,, for appellant.

      Henry Riebrandt, of Chicago, for appellees, pro se.

   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Steve’s Equipment Service, Inc., appeals from a judgment entered after a bench trial, in favor of defendant, Henry Riebrandt, a/k/a Hank Brandt, d/b/a H & D Transport Corporation. Plaintiff sought to recover $2,300.13 from defendant and Paul Esposito, d/b/a C.H.H. (C.H.H.), for repairs plaintiff made to a 1974 Hendrickson truck tractor. The trial court entered judgment in favor of defendant and Esposito and against plaintiff, but entered judgment for plaintiff and against H & D Transport Corporation (H & D) in the amount of $2,300.13 plus $618.51 in interest. On appeal, plaintiff seeks to vacate the judgment in plaintiff’s favor against H & D, to reverse the judgment in favor of defendant, and to have judgment against defendant entered in plaintiff’s favor. Plaintiff does not challenge the judgment in Esposito’s favor, and Esposito is not a party to this appeal.

The only issue plaintiff raises on appeal is whether the trial court erred in entering judgment against H & D, a dissolved corporation, rather than against defendant, who plaintiff claims purported to act on behalf of that dissolved corporation. Defendant did not file a brief on appeal. Therefore, we consider this case under the principles set forth in First Capital Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Plaintiff filed its original complaint in this matter on March 28, 1978. Plaintiff amended this complaint several times so that immediately prior to September 15, 1982, the named defendants in this suit were H & D Transport Corporation, a corporation, and Paul Esposito, d/b/a C.H.H. On September 15, 1982, pursuant to plaintiff’s motion, the trial court substituted defendant as a party defendant for H & D. Plaintiff’s motion for substitution was based on plaintiff’s contention that H & D had been involuntarily dissolved on December 1, 1976, prior to the time plaintiff repaired the 1974 Hendrickson tractor. This case proceeded to trial on November 15,1982.

At trial Steven L. Martines testified that he was plaintiff’s president; that on February 2, 1977, he first saw the 1974 Hendrickson tractor involved in this case which was hauled in for repairs by C.H.H.; that the tractor had rolled over and plaintiff had repaired all visible damages and the bill was $14,822.13; that after the tractor went back on the street, it was determined there was additional transmission damage, which plaintiff repaired, and the bill was $2,041.85; that he talked with Paul Esposito of C.H.H. on the telephone about the first repairs and worked up an estimate for the insurance company; that an insurance investigator came in, worked with him on the estimate, and told him H & D was the owner; that he was also told by the insurance investigator that defendant was the owner of the tractor; that he contacted defendant who then gave him authority to repair the tractor; that he was paid for the first work by a check from defendant, not from the insurance company; that he had a conversation with Esposito concerning release of the tractor after the additional transmission repairs had been made; that Esposito had told him, “as soon as Hank gets a check, why you’ll get your money”; and that he sent bills to C.H.H. and contacted defendant about payment and never was paid.

On cross-examination, Martines testified that he concluded H & D owned the tractor because the insurance investigator told him H & D was the insured; that defendant never said he owned H & D; that he thought Esposito and another person owned C.H.H.; that he had dealt with C.H.H. and defendant once previously on a similar repair of a truck; and that C.H.H.’s name was on the tractor.

Plaintiff called defendant under section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102). Defendant testified that he was an employee of H & D and vice-president of H & D from its inception in approximately 1974 to “its conclusion” in approximately 1979, and that he also was a director of this corporation. He testified that H & D owned the 1974 Hendrickson tractor; that it was leased to C.H.H. both at the time the original repairs were made and at the time the additional repairs were made; and that plaintiff had performed both sets of repairs. Defendant stated that he and another person had the authority tb conduct the day-to-day business of H & D. Defendant stated that H & D received insurance checks to cover these repairs; that he personally delivered the insurance check for the original repairs to plaintiff and that he forwarded the insurance check for the additional repairs to C.H.H. He testified that sometime subsequent to these repairs H & D sold the Hendrickson tractor.

On examination by Esposito, defendant testified that his mother and another person owned the stock of H & D; that he told Martines H & D owned the repaired tractor; and that the title to the tractor was in H & D. Defendant identified plaintiff’s exhibit No. 5 as a certificate of dissolution of H & D Transport Corporation dated December 1,1976. This certificate was admitted into evidence.

Paul Esposito testified on his own behalf that he did maintenance work for C.H.H. and had no ownership interest in C.H.H.; that he personally never received any insurance funds from defendant concerning the additional repairs to the Hendrickson tractor; and that he remembered a discussion defendant had with Gene Ross of C.H.H., and defendant giving Ross a check.

Plaintiff submitted into evidence a check for $1,742.85 payable to H & D and Dorothy Riebrandt from Protective Insurance Company. It was endorsed and deposited to an account of C.H.H.

The trial court found, inter alia, that plaintiff provided services to H & D and C.H.H., that defendant acted as an agent for H & D, that there was no evidence that plaintiff “was doing business with [defendant] in an individual capacity ***,” that defendant did not “hold himself out in an individual capacity as being the principal of H & D Transport Corporation,” and that Esposito was only an employee of C.H.H. However, the court entered judgment for plaintiff against H & D, which was not an actual party defendant. Judgment was entered for defendant and Esposito and against plaintiff on the claim against them as sued in their individual capacities.

Plaintiff contends that the trial court erred in entering judgment against H & D rather than against defendant. Plaintiff asks this court to vacate the judgment against H & D and, instead, to enter judgment against defendant. It is clear from the record that H & D was no longer a party defendant in this action after the trial court’s September 15, 1982, order substituting defendant for the corporation as party defendant. Thus, the judgment against H & D was erroneous and, therefore, is vacated.

Plaintiff does not challenge on appeal the trial court’s finding that defendant was not acting in his individual capacity. Rather, plaintiff maintains that defendant is liable because he purported to act for a nonexistent corporation. While plaintiff asserted this argument below, the trial court failed to address this contention when it made its findings and judgment.

Plaintiff contends that defendant is personally liable under section 150 of the Business Corporation Act (111. Rev. Stat. 1981, ch. 32, par. 157.150) because he assumed to exercise corporate powers without authority. On December 1, 1976, the Secretary of State dissolved H & D for failure to pay its annual franchise tax.

At the time H & D was dissolved, section 82a of the Business Corporation Act (Ill. Rev. Stat. 1975, ch. 32, par. 157.82a) provided that any corporation, which failed to pay its franchise tax on or before July 31 of the year in which the tax was due, and which after notice, as provided in the statute, had failed to pay this franchise tax on or before the last day of November, would be dissolved by the

Secretary of State. Section 92 of the Business Corporation Act (Ill. Rev. Stat. 1975, ch. 32, par. 157.92) directed the Secretary of State in the case of a dissolution pursuant to section 82a to issue a certificate of dissolution. Upon the issuance of this certificate of dissolution, the corporation ceased to exist. (Ill. Rev. Stat. 1975, ch. 32, par. 157.92.) While section 82a provided for reinstatement of a corporation dissolved under section 82a upon compliance with certain statutory requirements (Ill. Rev. Stat. 1975, ch. 32, par. 157.82a), nothing in the record reflects that H & D was ever reinstated. Thus, at the time the repairs in question were made in May 1977, H & D did not exist.

Section 150 of the Business Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 157.150) makes “[a]ll persons who assume to exercise corporate powers without authority ***” personally liable for “all debts and liabilities incurred or arising as a result thereof.” An officer of a corporation dissolved for nonpayment of franchise taxes, who enters into contracts on behalf of the corporation after dissolution, may be held personally liable under this statute. (In re Estate of Plepel (1983), 115 Ill. App. 3d 803, 806, 450 N.E.2d 1244; see also Kessler Distributing Co. v. Neill (Iowa App. 1982), 317 N.W.2d 519, 521-22; Mobil Oil Corp. v. Thoss (Fla. App. 1980), 385 So. 2d 726, 727.) In Mobil Oil Corp. v. Thoss (Fla. App. 1980), 385 So. 2d 726, 727, the court held that liability under the statute was limited to those persons who knew, or because of their position should have known, of the dissolution. In Kessler Distributing Co. v. Neill (Iowa App. 1982), 317 N.W.2d 519, 522, the court held that such knowledge was not required for a person to be personally liable. This issue was not discussed in In re Estate of Plepel (1983), 115 Ill. App. 3d 803, 450 N.E.2d 1244, and no other Illinois case appears to have addressed this issue. We believe the better rule to be that a person who enters a contract on behalf of an involuntarily dissolved corporation is only personally liable under section 150 of the Business Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 157.150) when, at the time he enters the contract, he knows, or because of his position should know, of the dissolution.

Plaintiff also contends that defendant is personally liable under "well recognized principles of agency law.” Plaintiff relies on Joesph T. Ryerson & Son v. Shaw (1917), 277 Ill. 524, 531-32, 115 N.E. 650, for the proposition that “a person who assumes to act as agent for a legally incompetent principal renders himself personally liable to the person with whom he deals unless such person knows of the want of authority.” However, Joseph T. Ryerson & Son v. Shaw (1917), 277 Ill. 524, 115 N.E. 650, is distinguishable from the case at bar since it dealt with individuals contracting on behalf of a foreign corporation not registered to do business in Illinois, rather than with an involuntarily dissolved corporation. Moreover, the court there specifically noted that it was acting in the absence of a “statute declaring a liability of officers or agents representing a corporation not permitted to transact business in this State.” (277 Ill. 524, 531, 115 N.E. 650.) Here, a statute does impose liability on a person who assumes to exercise corporate powers without authority. We, therefore, believe that Joseph T. Ryerson & Son v. Shaw (1917), 277 Ill. 524, 115 N.E. 650, is inapposite and that plaintiffs argument seeking to impose agency liability must fail.

Thus, the question whether defendant is liable here must be resolved under section 150 of the Business Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 157.150) and depends on whether defendant entered a contract on behalf of H & D and knew, or because of his position should have known, at that time, that H & D had been dissolved. Plaintiff bears the burden of proof on this question. See Eastman Kodak Co. v. Fair Employment Practices Com. (1981), 86 Ill. 2d 60, 74, 426 N.E.2d 877.

The record discloses that the trial court did not consider whether defendant was personally liable in acting for H & D, a dissolved corporation. The trial court found only that defendant had acted as an agent for H & D, and had not acted as an individual. In light of our holding that defendant may be liable if he knew or because of his position should have known of H & D’s dissolution, we conclude that plaintiff has shown prima facie reversible error (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493), and, because relevant factual determinations were not addressed on this issue below, we remand this case for a new trial.

For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed and remanded in part, and vacated in part.

Reversed and remanded in part, vacated in part.

VAN DEUSEN and NASH, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES STOKES, Defendant-Appellant.
    Second District
    No. 83—179
    Opinion filed January 12, 1984.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Charles Stokes, the defendant, was convicted by a jury of forgery (Ill. Rev. Stat. 1981, ch. 38, par. 17 — 3) and sentenced by the court to probation for 18 months, the first six months of which to be imprisoned.

On appeal, the defendant contends that he was prejudiced by the State’s failure to provide him with requested discovery material relating to the prior criminal record of a key State’s witness. The defendant also claims that he was prejudiced by the alleged ineffective assistance of his trial counsel. The defendant’s first claim of error is meritorious, and accordingly, we reverse and remand for a new trial.

The State’s case hinged upon the testimony of two witnesses: Betty Barnes and James E. Bullard.

Barnes testified that on four occasions, the defendant came to her house with checks payable to her, and drawn on the account of “All American Publishing.” The defendant asked her to cash the checks and threatened to damage her car if she did not. Four times Barnes allegedly drove the defendant to area stores or banks to cash the checks. The first three times, Barnes was successful. Barnes testified that the defendant kept the proceeds of all the checks. On her last attempt, Barnes was arrested and charged with forgery. The defendant was not found in her car when the police arrived.

Barnes’ testimony was significantly impeached in several respects. Her testimony that the defendant received all of the proceeds of the first three check cashing attempts was impeached by her post-arrest statements to police that she received a total of $375 in such proceeds. It was further stipulated that from the two checks involved in Barnes’ unsuccessful, fourth cashing attempt, she requested the cashier to pay her gas bill from the proceeds, and also to issue her a money order in the amount of $150.

Barnes was temporarily disabled at the time of these incidents, and her income was limited to $25 weekly alimony, and sums earned baby sitting. She told the police that she cashed the checks because she needed money.

It was also shown that Barnes lied to police regarding how she obtained the checks. Initially, Barnes told the police that she obtained the checks while employed as a housekeeper in a Barrington residence.

On cross-examination, Barnes could not recall whether she had been offered leniency on forgery charges arising from her check cashing incidents, in exchange for her testimony against the defendant. It was stipulated that Barnes was offered probation on those pending forgery charges, in exchange for her testimony.

After the testimony of witness Barnes was concluded, the circuit court entertained an oral defense motion in limine to exclude testimony by James Bullard, relating to certain admissions allegedly made by the defendant in the presence of Bullard. When it became apparent that the State failed to disclose the existence of those statements in its answer to the defendant’s discovery request, the circuit court granted the motion in limine.

James Bullard thereafter testified on behalf of the State that he observed the defendant forge seven different All American Publishing checks on seven occasions. On cross-examination, Bullard admitted his involvement in the cashing of yet another All American Publishing check. Bullard gave that check to Denise Darst, drove her to a store where she could cash it, and thereafter kept the proceeds.

Bullard admitted his involvement in the cashing of two forged checks drawn on the account of Velma Rolling, the mother of Bullard’s child. It was disclosed that Rolling was the complainant in a misdemeanor battery charge brought against Bullard. The jury was apprised, over the State’s objection, that Bullard was placed on supervision for that offense.

It is unclear from the record whether Bullard was charged with forgery in connection with either the All American Publishing check he gave to Darst, or for the forged Rolling checks he gave to other women. It was Bullard’s understanding that no charges would be placed against him regarding those offenses. Bullard denied that the State’s failure to charge him with those incidents was related to his willingness to testify against the defendant.

The defendant testified on his own behalf, denying involvement in the offense. Denise Darst testified on behalf of the defendant that Bullard gave her an All American Publishing check, drove her to an area store, requested her to cash it, and kept the proceeds.

The jury found the defendant guilty of forgery.

The defendant raises two issues:

1. Whether the defendant was prejudiced by the State’s failure to disclose the prior criminal record of a key State’s witness, thus requiring that the defendant be accorded a new trial.

2. Whether the defendant enjoyed the effective assistance of counsel below.

The defendant’s formal discovery request sought the disclosure, inter alia, of the prior criminal record of State’s witness James E. Bullard. The State failed to disclose such information, and the defendant is well taken in his observation that the State’s failure to comply with its continuing discovery obligation was unexcused.

Supreme Court Rule 412 (87 Ill. 2d R. 412) creates an affirmative continuing duty on the State to disclose the criminal records of its witnesses to the accused. (People v. Pearson (1981), 102 Ill. App. 3d 732, 735; People v. Higgins (1979), 71 Ill. App. 3d 912, 930.) Noncompliance with that obligation is excused only where the prosecution did not know, and could not, through the exercise of due diligence have become aware of the matter in question. People v. Eliason (1983), 117 Ill. App. 3d 683, 693.

Here, the prosecutor confessed that he simply did not request information relating to Bullard from either the Elgin police or other State authorities. Clearly, the prosecutor did not in good faith attempt to discharge his discovery obligation toward the defendant. This want of good faith on the part of the prosecutor is further shown by his failure to disclose to the defendant the existence of his prior statements made in the presence of Bullard; a discovery violation which was properly sanctioned by the court’s grant of the defendant’s motion in limine.

Having found a discovery violation on the part of the State, the inquiry must turn to whether the defendant was prejudiced by that violation. (See, e.g., People v. Greer (1980), 79 Ill. 2d 103, 120.) Here the defendant was prejudiced by the discovery violation, and he is entitled to a new trial.

The State’s case against the defendant was premised on the testimony of two impeached witnesses, each of whom was involved in the crime. Each was accorded leniency by the State regarding their involvement in the offense, in exchange for their testimony against the defendant. Neither witness presented a particularly noble character to the jury.

The State’s witnesses, particularly James Bullard, were shown to be less than credible witnesses below. This fact forms the basis for the State’s present contention that the evidence of Bullard’s 1973 burglary convictions was merely cumulative evidence affecting Bullard’s already impeached credibility. Of course, that evidence would be highly relevant to the subject of Bullard’s credibility; although to that extent, the evidence might be deemed cumulative.

The defendant was entitled to apprise the jury of this relevant fact respecting Bullard’s credibility during trial. Because the trial basically hinged on the issue of credibility, the denial of this evidence regarding the credibility of the State’s witness Bullard cannot be considered harmless beyond a reasonable doubt. Therefore, we reverse and remand. Because of our disposition of the first issue, it is unnecessary to consider the issue as to whether the defendant enjoyed the effective assistance of counsel.

However, it is necessary to review the sufficiency of the evidence against the defendant because a failure to do so might subject him to double jeopardy upon retrial. (See People v. Eliason (1983), 117 Ill. App. 3d 683, 695.) We conclude that the jury’s verdict finding the defendant guilty of forgery was supported by the evidence.

The jury, as finder of fact, could have determined that the State’s witness, Betty Barnes, testified truthfully at trial, regarding the defendant’s involvement in the offense. (People v. Novotny (1968), 41 Ill. 2d 401, 412.) The testimony of Barnes alone, if considered positive and credible, would be sufficient to support a conviction although contradicted by the defendant. People v. Sparkman (1979), 68 Ill. App. 3d 865, 871.

Reversed and remanded for a new trial.

HOPF and NASH, JJ., concur.


text:
      In re M.D.B., a Minor—(The People of the State of Illinois, Petitioner-Appellee, v. M.D.B., Respondent-Appellant).
    Second District
    No. 83—139
    Opinion filed January 12, 1984.

      G. Joseph Weller, Josette Skelnik, and Kathleen J. Hamill, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Charles R. Hartman, State’s Attorney, of Freeport (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Respondent, M.D.B., a minor, appeals from an order committing him to the Department of Corrections. A petition for adjudication of wardship was filed against the minor-respondent, M.D.B., in which it was alleged that the minor was delinquent due to his involvement in four incidents of burglary and theft and one of residential burglary.

The cause proceeded to a hearing at which, after conferring with his appointed counsel, the minor waived his right to a preliminary hearing and admitted to the allegations set forth in the petition. Thereupon the court properly admonished the minor regarding his rights and the sanctions which could be imposed upon him. The State then presented a factual basis for the minor’s admissions, which the minor stated was accurate. Thereafter, the minor was found to be delinquent and made a ward of the court.

A dispositional hearing was had on the instant cause. Prior to the hearing, the court had been furnished with a social investigation report on the minor and a written psychiatric evaluation of him by Dr. Marvin Ziporyn. Neither the State’s Attorney nor counsel for the minor called any witnesses nor offered additional evidence at the hearing. In its argument, the State urged the court to place the minor in the Department of Corrections. The minor’s counsel then made the following remarks on behalf of his client:

“THE COURT: Mr. Rodkey?
MR. RODKEY: Well, your Honor, I really can’t argue too much against that because the minor was having problems getting involved in some pretty heavy matters here, it was criminal conduct, but he also was just not attending school on a regular basis either and so it seems to me that when he gets these authority problems worked out that he just hasn’t been functioning very well, he does need good protection and help and I think that he will get it, we really don’t have any facilities to handle somebody with his problems, so I think that under the circumstances [the Department of Corrections] is probably the best solution.”

The minor was then committed to the Department of Corrections. The court also filed a written “Basis for Commitment of Minor” which concluded as follows:

“Based upon the testimony heard at the Dispositional Hearing and on the contents of the social history and the psychiatric evaluation submitted to the court, the minor needs a structured and rehabilitative setting that can best be supplied by the Department of Corrections. The community resources and facilities are unavailable to this minor. The minor has both a history of delinquency and as such presents a threat to both persons and property. The best interest of the minor and the public requires the minor be committed to the Department of Corrections, Juvenile Division, State of Illinois.”

Two issues are raised in this appeal:

(1) Whether there is a record basis for the court’s finding that the minor’s parents are unable to care for, protect, train and discipline him and that the best interests of the minor and society would not be served by placing him pursuant to section 5 — 7 of the Juvenile Court Act.

(2) Whether the minor received ineffective assistance of counsel at the dispositional hearing and is entitled to a new dispositional hearing with different counsel.

The Juvenile Court Act provides that a minor may be committed to the Department of Corrections only if the court finds that (a) his parents are unfit or unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor or are unwilling to do so, and (b) the best interest of the minor and the public will not be served by placement under section 5 — 7 of the Act (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 10(1)). The basis of the respondent’s appeal is that the evidence presented at the dispositional hearing did not sustain the court findings mandated by section 5— 10(1) of the Act and that respondent was therefore improperly committed to the Department of Corrections. The evidence at issue consisted of two written reports, namely, the required social investigation report (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 1(1)) and a psychiatric evaluation by Dr. Marvin Ziporyn.

With respect to subsection (b) of section 5 — 10(1) cited above, respondent claims that neither the social investigation report nor the psychiatric evaluation mentioned any placement or program alternatives to the Department of Corrections and because of this deficiency the court could not have given fair consideration to alternative placement dispositions under section 5 — 7 of the Act. The respondent contends that the court’s decision that the minor’s and society’s best interests would not be served by a section 5 — 7 disposition lacked a sufficient basis in fact.

In support of respondent’s argument is the fact that the instant case was the minor’s first appearance in juvenile court and probation or placement had never been tried. Nevertheless, the respondent concedes that very unusual circumstances could have furnished a basis for the court’s findings. It is our conclusion that the record of this case reveals that both unusual circumstances existed and that alternative placements were considered by the court when reaching its decision of commitment to the Department of Corrections.

It is well established that it is the function of the trial court to determine the dispositional order to be entered and the decision will not be disturbed unless there is an abuse of discretion demonstrated. (In re C.O. (1979), 73 Ill. App. 3d 369, 373, citing In re Wilson (1976), 40 Ill. App. 3d 619, 622.) Also, the statute gives the juvenile court wide discretion in determining an appropriate disposition. In re Scott (1978), 62 Ill. App. 3d 367, 370.

At the adjudicatory hearing the court expressly admonished the minor that among the possible alternative dispositions, were the Department of Corrections, probation or supervision. At that time the court also warned that the allegation of residential burglary was an offense for which an adult would receive a mandatory prison term and be denied probation, a fact which the court said would carry much weight in determining a disposition in the present case.

The record of the dispositional hearing indicates that the court was well aware that the instant proceeding was the minor’s first appearance in court and that under those circumstances the Department of Corrections is rarely a first consideration before any other alternative. The court then proceeded to specifically enumerate the factors which weighed heavily against the probation alternative. Among the factors considered by the court were the minor’s expressed negative attitude toward probation, the number and seriousness of the offenses, especially that of residential burglary, the minor’s attitude improvement since his stay at the Department of Corrections, the fact that the minor continued his truancy from school even after his knowledge that the petition had been filed, the absence of any facility other than the Department of Corrections equipped to handle the minor’s specific needs as he perceived them, and the realization that in less than two years the minor would be an adult possibly facing a penitentiary sentence for such offenses.

The court’s written basis for commitment supplemented the above-stated factors with conclusions based on evidence adduced first from a school guidance counselor’s report indicating poor behavior and social skills, verbal threats to students and staff and truancy on a regular basis for the entire year; second, from the social investigation report indicating among other things the minor’s desire to be dead; and third, the psychiatric evaluation by Dr. Ziporyn stressing the need for a structured setting and close control to offset the strong likelihood of the commission of further criminal offenses and of destructive behavior to the minor, himself, as well as the property and persons of others. The court again expressed its awareness that at present the only existing facility which could meet the needs and best interests of the minor and the public was the Department of Corrections. Thus, contrary to respondent’s allegation, the record reveals that the alternative disposition of probation was properly considered by the trial judge in rendering the dispositional order. It is logical to assume that a juvenile court, a juvenile probation officer and a correctional facility psychiatrist are well aware of possible alternative placements. It is to be noted that the judge need not enumerate all possible alternatives when making a disposition (In re S.R.F. (1980), 80 Ill. App. 3d 738), and that the remarks of the trial judge can illustrate a consideration of alternatives (In re Thomas (1978), 56 Ill. App. 3d 587, 594).

A review of the investigation report indicates a basis for the doubt expressed therein by the probation officer when the alternative of probation was considered. To be noted is the fact that the probation officer expressed recognition that the present case was the minor’s first appearance in a juvenile court for delinquency and that a consideration of probation was in order. Because of these concerns, the probation officer recommended a psychiatric evaluation by Dr. Ziporyn to aid in the proper disposition of the case.

The psychiatric report indicated that the minor suffered from severe psychopathology in that he was operating at the boundary line of panic and under stress could seriously attempt to harm himself and others. The pathology was described as being so great that extreme consequences could occur unless the condition was remedied as soon as possible before further magnification of the problem. Because of the seriousness of the case, Dr. Ziporyn stated that he did not feel that the minor could be successfully treated on an outpatient basis. Respondent argues that Dr. Ziporyn did not mention any alternative placement. Such a discussion would have been moot, however, since it was understood that no other alternative placement existed which could afford the therapy recommended other than on an outpatient basis, which was strongly discouraged.

The respondent also takes issue with the court’s finding under section 5 — 10(1) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 10(1)) that the minor’s parents were unfit or unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor, or are unwilling to do so. He argues specifically that the mother attributed her son’s problems to her diminished time at home with him because of her work schedule and contends that this was certainly a financial circumstance. Although the record does not state whether working the third shift was by choice or compulsory, since the father was unemployed, the mother’s working some shift appeared to be an economic necessity. It is also true, as respondent contends, that the minor’s father and his parenting abilities are not discussed. Nevertheless, if the court relied heavily on both the social investigation report and the psychiatric report which indicated that the minor had a good deal of resentment against his mother and that she was the cause of his general resentment of authority, that the minor’s older sister had been imprisoned on several occasions, that a brother was in trouble with the law and that the minor stole from his family, the court could have reasonably concluded from the evidence that increased time spent with the family in the home would have been more of a disadvantage than an advantage to the minor, a finding not connected in any way with financial circumstances. The minor’s apparent progress during his stay at the Department of Corrections could have reinforced this view.

Although commitment is to be used only when less severe placement alternatives would not be in the best interests of the minor and the public (In re Stead (1978), 59 Ill. App. 3d 1012, 1014), a juvenile court may consider a variety of factors such as prior arrests (In re Seibert (1975), 29 Ill. App. 3d 129), station adjustments or curfew violations (In re Sneed (1976), 38 Ill. App. 3d 1041, 1042), and the social investigation (In re Stead (1978), 59 Ill. App. 3d 1012, 1014) in determining whether to commit to the Department of Corrections. Although the court must consider the diagnostic examination report, it does not have to accept the recommendations. (In re C.O. (1979), 73 Ill. App. 3d 369, 372.) In In re C.O., the court rejected the Department of Corrections’ recommendation not to commit the minor there because the judge could see no realistic alternative. In the present case, the facts also strongly suggest that the court accepted the recommendation of the reports for lack of a realistic alternative.

A factual situation somewhat similar to the present case is found in the case of In re Young (1978), 63 Ill. App. 3d 897. The minor had no prior delinquency adjudications, but had a series of station adjustments involving serious offenses. The minor’s home situation revealed that other children in the family were in trouble with the law. Although the probation officer recommended probation, the trial court rejected this recommendation and found that the minor’s best interest required his commitment to the Department of Corrections.

We believe that contrary to the respondent’s argument, the record of his case reveals that the court’s decision to commit the minor to the Department of Corrections for the purpose of intensive therapy in a highly structured environment was rendered with due consideration of other alternative placements and the ability of the parents apart from financial considerations to care for the minor. The courts have regularly reaffirmed the fact that delinquency proceedings are protective, not penal in nature. The purpose of the Juvenile Court Act is not to punish but to correct and rehabilitate. (In re Dow (1979), 75 Ill. App. 3d 1002; In re Beasley (1977), 66 Ill. 2d 385; In re Armour (1974), 59 Ill. 2d 102.) The court in the present case did not act contrary to statutory intent.

The minor contends he did not receive effective assistance of counsel at the dispositional hearing and is, therefore, entitled to a new dispositional hearing with different counsel.

In order to successfully claim incompetence, it must be shown that counsel’s performance amounted to actual incompetence which produced substantial prejudice without which the outcome would probably have been different. (People v. Royse (1983), 99 Ill. 2d 163.) Many cases reveal that mere errors in judgment, discretion and unsuccessful trial tactics, though perhaps relevant to some extent, could not necessarily be said to deprive the defendant of a fair adjudication of his case. Neither is the fact that, in the light of hindsight, another attorney might have acted differently, a necessary indication of counsel’s incompetence. (People v. Baer (1976), 35 Ill. App. 3d 391; People v. Witherspoon (1973), 55 Ill. 2d 18.) Those inadequacies which would amount to incompetence must be of such weight as to preclude the trier of fact from reaching a fair and impartial verdict. Furthermore, the determination of incompetence must be based on the totality of counsel’s conduct viewed against the particular facts and circumstances of each case. The entire record must be considered rather than a narrow focus on isolated instances occurring during the course of the trial. People v. Williams (1981), 94 Ill. App. 3d 241; People v. Talley (1981), 97 Ill. App. 3d 439.

Even though juvenile proceedings have been characterized as civil in nature, certain due process safeguards normally associated with criminal proceedings have been extended for the protection of juveniles. (In re S.R.H. (1983), 96 Ill. 2d 138, 144; In re Beasley (1977), 66 Ill. 2d 385, 390.) Among these is the right to counsel as found in the fourteenth amendment to the United States Constitution. (In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428.) The right to counsel is specifically included in the Juvenile Court Act. (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 20(1).) Several courts have made reference to section 1 — 20(1) and have determined that implicit within the right to counsel is that such representation be effective (In re Johnson (1981), 102 Ill. App. 3d 1005, 1011), and that effective counsel entitles the individual to undivided loyalty of the attorney. In re Lackey (1979) , 71 Ill. App. 3d 705, 707, aff’d sub nom. People v. Lackey (1980) , 79 Ill. 2d 466.

In the present case, respondent contends that his appointed counsel presented no evidence in his behalf, no evidence regarding the fitness of his parents to care for him, failed to bring alternative dispositions to the trial court’s attention, concurred in the recommendations of the State’s Attorney and did not afford him the opportunity to speak on his own behalf. Because of these omissions respondent claims that his appointed counsel breached his duty to protect respondent’s best interests and that as a result he was denied his due process right to effective assistance of counsel. He asks the court to appoint new counsel and grant him a new dispositional hearing.

A review of the dispositional hearing substantiates respondent’s claim of passive representation by his appointed counsel, the most extreme example being counsel’s complete concurrence with the State’s Attorney’s recommendation for commitment to the Department of Corrections. Certainly counsel was not required to make losing objections in order to provide effective representation (People v. Johnson (1970), 45 Ill. 2d 501) nor did he have a duty to manufacture a defense when none existed (People v. Greenlee (1976), 44 Ill. App. 3d 536). Moreover, the record does not support the conclusion that counsel’s failure to call any witnesses in respondent’s behalf necessarily deprived him of beneficial testimony.

If this court perceived the role of respondent’s counsel as representing the best interests of the minor by arguing against commitment to the Department of Corrections at any cost, despite his personal belief that the goals of the Juvenile Court Act could best be served by such commitment, rather than any other alternative, then a finding of actual incompetence must lie due to counsel’s concurrence with the State’s Attorney’s recommendations. However, to satisfy the Royse standard, the incompetence shown must have produced substantial prejudice without which the outcome would probably have been different. For the reasons stated earlier in this opinion, namely, the court’s awareness of alternative possibilities and its statement of factors leaning heavily against probation grounded in its heavy reliance on the social investigation report and psychiatric report, we conclude that even if respondent’s attorney was incompetent, it is quite unlikely that the outcome of the dispositional hearing would have been different. See People v. Tucker (1981), 99 Ill. App. 3d 606, 613.

For the reasons stated, we find sufficient record basis to uphold the trial court’s disposition of the respondent to the Department of Corrections.

Applying the Royse standard, we do not grant a new dispositional hearing with different counsel because there was no substantial showing of prejudice which would support the conclusion that the outcome of the dispositional hearing probably would have been different.

The judgment of the circuit court of Stephenson County is affirmed.

Affirmed.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


author: JUSTICE WEBBER

text:
      In re MARRIAGE OF GEORGE ELLIS MULLINS, Petitioner-Counterrespondent-Appellee and Cross-Appellant, and WINIFRED MULLINS, Respondent-Counterpetitioner-Appellant and Cross-Appellee.
    Fourth District
    No. 4—83—0400
    Opinion filed January 11, 1984.

      Jerome J. Bromiel and Richard L. Thies, both of Webber & Thies, P.C., of Urbana, for appellant.
    John C. Hirschfeld, of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, of Champaign, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal lies from an order of the circuit court of Champaign County which dissolved the marriage of the parties, established valuations for marital and nonmarital property and then divided such properties between the parties, and awarded the wife her attorney fees and costs and maintenance. The wife appeals the property division and the award of maintenance; the husband cross-appeals the award of the wife’s attorney fees and costs. We affirm.

The dissolution was ordered upon the counterpetition of the wife; the court found that the children of the parties were of age and emancipated. Neither of these matters is disputed on appeal.

The trial court’s order allocating property gives approximately 60% to the husband and 40% to the wife. Because of this division, the husband was ordered to pay certain marital debts. By subtracting these from his aliquot share, the division then becomes roughly equal. In her appeal the wife does not contest the 60/40 division as inequitable per se; she does maintain that the trial court abused its discretion in the valuation of certain assets, that the award of maintenance was inadequate, and that the calculation of the debts assigned to the husband was erroneous. She claims that by revaluing the assets and by correctly calculating the debts downward, the husband in fact received more than 60% and she received proportionately less.

Much of the valuation testimony was uncontroverted. A major controversy was over the valuation of the stock in Brown, Davis, Mullins and Associates (BDM), a consulting engineering firm, of which the husband is president and sole stockholder.

The fundamentals of division of marital property are well known. The reviewing court will not substitute its judgment for that of the trial court unless an abuse of discretion may be shown and such abuse exists only where no reasonable man could adopt the trial court’s position. (In re Marriage of McDonald (1983), 113 Ill. App. 3d 116, 446 N.E.2d 559.) There is no requirement that a trial court place a precise figure on each item of property, but only that there be competent evidence of value and that the court’s division be supported by that evidence. (In re Marriage of Cuisanee (1983), 115 Ill. App. 3d 551, 450 N.E.2d 1302; In re Marriage of Miller (1983), 112 Ill. App. 3d 203, 445 N.E.2d 811.) It is a matter of common knowledge that the valuation of a closely held corporation, especially one dealing in services and largely dependent upon the personalities and abilities of its principals, is not an exact science. One need only to view the mountain of Federal tax litigation on the subject in order to come to this conclusion.

The wife maintains that the trial court did not receive adequate evidence of valuation of BDM shares. We disagree. The court heard evidence from the husband, BDM’s accountant (Max Tarble), the other current principal participant in BDM (Jerry Ramshaw), and the secretary-treasurer of the corporation (Robert Ogden). This testimony revealed that a buy-sell agreement had been in effect among the three original shareholders of BDM, namely Brown, Davis, and husband. When Brown died in 1978, the agreement’s formula was used to value his shares. Although no longer in effect after Brown’s death, the agreement was also used as the basis for a valuation of Davis’ shares when he retired in 1979. The trial court expressly stated in its opinion that it considered these valuations of BDM stock in the recent past in arriving at a corporate valuation. The court also heard testimony concerning the corporate profit-loss trend over the years, and the outlook at the time of the trial. The court considered the current financial statements of BDM. Further, the trial court considered evidence of BDM stock sale negotiations between husband and Ramshaw occurring from 1980 until the present divorce proceedings began.

Stock is generally valued at its market value. (In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488.) This is true even in the case of a closely held corporation providing that there is a market for the shares. Therefore, the negotiations between Ramshaw and husband are competent evidence of value. Similarly, stock valuations in the recent past are indicative of present value. In the present case the court was also aided by detailed documentary evidence concerning the present and historical financial status of BDM. The evidence was provided by persons intimately involved with BDM and was unrefuted. While only the husband’s opinion as to the actual present value of the stock was presented, such specific opinion testimony should not be required. Evidence of arms-length valuations in the recent past may be at least as helpful to the court. It appears then that this evidence would provide an ample basis upon which the court could arrive at a valuation for the BDM stock.

Of major significance, in our opinion, apart from the valuation testimony and exhibits introduced by the husband, is the failure of the wife to present any evidence at all on the question of the valuation of the BDM stock. We acknowledge that there is a line of authority holding that a litigant need not present evidence of value of marital assets at trial in order to raise the issue on appeal. (In re Marriage of Reib (1983), 114 Ill. App. 3d 993, 449 N.E.2d 919.) Other recent cases have questioned the principle. In In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 54-55, 448 N.E.2d 545, 550, the court said:

“We again emphasize that it is the parties’ obligation to present the court with sufficient evidence of the value of the property. Reviewing courts cannot continue to reverse and remand dissolution cases where the parties have had an adequate opportunity to introduce evidence but have failed to do so. Parties should not be allowed to benefit on review from their failure to introduce evidence at trial. (In re Marriage of Miller (1983), 112 Ill. App. 3d 203, 209; see In re Marriage of Melton (1981), 93 Ill. App. 3d 338, 341, 417 N.E.2d 220, 223.) Remanding cases such as the one before us would only protract the litigation and clog the trial courts with issues which should have been disposed of at the initial hearing. As the trial court here said after numerous hearings in this case, at some point we must ‘ring the curtain down.’ ”

(Accord In re Marriage of McCartney (1983), 116 Ill. App. 3d 512, 452 N.E.2d 114.) We, too, express our agreement with the Smith and McCartney courts.

In sum, the trial court had before it a plethora of testimony and exhibits on valuation of the stock, all provided by the husband, and nothing from the wife. Its valuation was well within the range of the evidence. There was no abuse of discretion, and we find no basis upon which to gainsay its finding.

The wife’s next contention is that the trial court erred in assigning a zero valuation to certain limited partnerships which the husband had purchased as tax shelters. At trial the husband testified that he had very little knowledge of the investments; that two of them obliged him to invest an additional $40,000 and $34,000 respectively; that they could not be assigned without consent of the general partner; and that any assignee must be in a 50% tax bracket and have a net worth of $100,000. To assist the court, the husband presented a prospectus from each entity. These stated, among other things, that each investor should be prepared to lose his entire investment and to expect little liquidity.

As in the case of the BDM stock, the wife failed to introduce any countervailing evidence as to the valuation of the limited partnerships. In the light of the husband’s evidence, the court's valuation of zero does not appear unreasonable. It might well have considered the interests a liability. There was no abuse of discretion and hence no basis for our intervention.

The wife’s next complaint concerns the husband’s nonmarital farm land. It is beyond dispute that in making a property division a trial court must take into consideration the value of nonmarital property set apart to each spouse. (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(2).) The wife argues that there was no evidence of valuation of the husband’s farm land before the court. The record is otherwise. Unlike the cases of the BDM stock and the tax shelters, the wife herself introduced such evidence. She presented the husband’s financial statement for 1981 showing a value of the farm at $180,000; also, in her affidavit in support of her motion for temporary relief she stated the value of the farm to be $190,000.

The confusion apparently arises from the trial court’s temporary lapsis memoriae. In his written memorandum of judgment he stated that no evidence had been received as to the value of the farm. However, he went on to say that “it may not be ignored in the final allocation.” The implication of the latter is that the court was aware of some value. With the great mass of evidence, testimonial and demonstrative, before him, it is understandable that the court might overlook temporarily an item or two in preparing his written judgment.

In any event, the wife cannot be heard to complain about evidence which she herself introduced into the record.

Finally, in the area of valuations, the wife maintains that the trial court incorrectly calculated certain debts which were assigned to the husband. The total amount of these debts was $71,000; the wife does not contest $17,000 of these; she does contest $40,000 which the husband purportedly owes to BDM, and $14,000 borrowed against the husband’s life insurance policies.

As to the $40,000 debt to the corporation, this arose out of the testimony of Ogden, BDM’s secretary-treasurer, who, while reading from the corporate balance sheet for July 31, 1982, stated that the corporation had borrowed $41,471.61 from the husband; immediately prior thereto, he had testified that the husband had borrowed $40,000 from the corporation but was uncertain as to whether he possessed any evidence of such debt.

In discussing the BDM debt, the trial court stated:

“Respondent argues that there is some offset to the debt of the corporation as a result of a debt of the corporation to petitioner. The evidence was insufficient to establish the extent of this, if any. In any event, the Court rules that the petitioner shall be obligated for the payment of these debts and shall hold respondent harmless from liability for same.”

The trial court found the evidence of offset insufficient, a conclusion with which we agree. It is also significant that the court assigned the debt “in any event.” We interpret this to mean that the debt is assigned regardless of its exact amount.

As to the insurance policies, the record is clear that the husband possessed four policies with a total cash surrender value of about $14,000; it is also clear that he had borrowed against the policies to the full extent of that value. In its allocation the trial court assigned zero value to the policies as an asset and further assigned, the $14,000 to the husband as a liability. The wife appears to argue that they should have been valued at $14,000 as an asset with a corresponding liability in the same amount, thus canceling each other out. We fail to understand the argument. The present value, as distinguished from the face value, of an insurance policy is its cash surrender value. In the instant case that is nil; if the policies were surrendered, the borrowing would be deducted from the payment. If the policies were not surrendered, the debt must be paid; it is a present obligation, notwithstanding it might continue until the face value of the policies becomes payable; i.e., upon the death of the husband or his outliving the mortality tables. The record contains no indication of any intent on the part of the husband to surrender the policiés now. The trial court’s assessment was proper.

In summary, we find no abuse of discretion in the valuation of the parties’ property.

We turn next to the award of maintenance which the wife claims is inadequate and will compel her to deplete some of the marital property assigned to her.

The record demonstrated that the wife was a registered nurse and had worked in this profession part-time during the years 1978-1980. However, she had temporarily abandoned her remunerative work to care for her aged and ailing father. This care required her services approximately six hours per day, seven days per week. She received no monetary compensation for this, but her father furnishes most of her food and gasoline for her automobile.

The trial court awarded her $750 per month maintenance until such time as she is no longer required to care for her father. At that time the award is to be reviewed. The trial court stated that this amount, together with her share of the husband’s pension plus interest from her nonmarital investments, would be sufficient to maintain her in an appropriate life style.

The record indicates that the trial court carefully considered each of the factors set forth in section 504(b) of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1981, ch. 40, par. 504(b)) before making the award. Although the wife may weigh these factors differently, we cannot say that the court abused its discretion. The total available to the wife based on the court’s calculations is about $1,500 per month, a sum which we consider reasonable.

The wife further argues that the court’s order will compel her to deplete a marital asset, viz., her share of the husband’s pension. The argument misapprehends the nature of a pension. It is specifically intended for living expenses. Theoretically, if the pension were large enough, there would be no need for maintenance. As was said in In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 38, 411 N.E.2d 238, 242:

“Where the property available to the defendant spouse is sufficient to satisfy that spouse’s needs and entitlements, the use of maintenance should be limited. [Citation.] Thus, if sufficient marital property is found, an award of maintenance may be unnecessary.”

We find no abuse of discretion in the trial court’s award.

We turn finally to the husband’s cross-appeal from the award of attorney fees and costs to the wife. He acknowledges that the fees requested are reasonable. However, he argues that the wife has the ability to pay them; that she should be compensated for the care of her father, or in the alternative, she should abandon him and seek compensated nursing work. We find such an attitude considerably lacking in compassion. The services which she is performing are generally gratuitous and done out of a sense of filial piety, honored and commended since the time of Aeneas and Anchises. We know of no rule of law which requires a child to abandon a parent in order that a former spouse may save a few dollars.

The order of the circuit court of Champaign County is affirmed.

Affirmed.

TRAPP and MILLER, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES O. WICK, Defendant-Appellant.
    Second District
    No. 82—511
    Opinion filed January 19, 1984.
    Rehearing denied February 15, 1984.
    William R. Beu, of Rockford, for appellant.
    Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of Elgin, for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Charles 0. Wick, was convicted of aggravated arson (Ill. Rev. Stat. 1981, ch. 38, par. 20 — 1.1(a)(3)), a Class X felony, and was sentenced to a six-year term of imprisonment. He appeals contending, inter alia, that the aggravated arson statute violates due process guaranteed by article I, section 2 of the Illinois Constitution of 1970 as an unreasonable exercise of the State’s police power.

Defendant was charged by an amended information with committing the offense of aggravated arson in that he “by means of fire knowingly damaged a building of Meuret/Sechler Insurance Company, being a tavern located at RR, Byron, Ogle County, Illinois, when the defendant should have known that Chris Millard a fireman who was present at the scene acting in the line of duty was injured as a result of the fire.” Ill. Rev. Stat. 1981, ch. 38, par. 20 — 1.1(a)(3).

As relevant to this issue, evidence was offered in trial that defendant was the owner and operator of Charlie O’s, a supper club and tavern located in Ogle County. On October 29, 1980, at 1:30 a.m., a fire was reported at the tavern to which the Byron Fire Department responded. Fire Lieutenants Millard and Hogan went upon the roof of the building to ventilate it, and while doing so Lieutenant Millard inhaled smoke. Although Lieutenant Hogan was wearing an air pack to protect himself from smoke, as were many of the other firemen at the scene, Lieutenant Millard did not do so as he considered it to be too heavy, creating a risk of falling through a roof. As a result of the smoke inhalation, Lieutenant Millard regurgitated and felt a burning sensation in his throat. He was treated with oxygen and salt water and had the burning sensation and a cough for one week.

Other evidence was offered that no one was on the premises when the firemen arrived and the building was locked. Defendant arrived at the scene at 2:20 a.m. and stated he had locked up and left the premises at 1:10 a.m. He signed a release form permitting investigation of the cause of the fire which disclosed there were four separate points of fire origin in the building and some evidence an accelerant had been used. Defendant denied having any knowledge of the cause of the fire.

On submission to the jury it was instructed, inter alia,

“A person commits the offense of Aggravated Arson, when by means of fire he knowingly damages, partially or totally, any building and a fireman who is present at the scene acting in the line of duty is injured as a result of the fire.”

The issues presented to the jury to sustain the charge of aggravated arson were as follows:

“First: That the defendant, by means of fire, knowingly damaged, partially or totally, any building; and Second: That Chris Millard, a fireman who was present at the scene acting in the line of duty, was injured as a result of the fire.”

In Illinois, arson is regulated by section 20 — 1 of the Criminal Code of 1961, which provides:

“A person commits arson when, by means of fire or explosive, he knowingly:

(a) Damages any real property, or any personal property having a value of $150 or more, of another without his consent; or

(b) With intent to defraud an insurer, damages any property or any personal property having a value of $150 or more.

Property ‘of another’ means a building or other property, whether real or personal, in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property.

(c) Sentence. Arson is a Class 2 felony.” (Ill. Rev. Stat. 1981, ch. 38, par. 20.1.)

Aggravated arson is set forth in section 20 — 1.1 of the Criminal Code of 1961 as follows:

“(a) A person commits aggravated arson when by means of fire or explosive he knowingly damages, partially or totally, any building or structure, including any adjacent building or structure, and (1) he knows or reasonably should know that one or more persons are present therein or (2) any person suffers great bodily harm, or permanent disability or disfigurement as a result of the fire or explosion or (3) a fireman or policeman who is present at the scene acting in the line of duty, is injured as a result of the fire or explosion.
(b) Sentence. Aggravated arson is a Class X felony.” (Ill. Rev. Stat. 1981, ch. 38, par. 20 — 1.1.)

As charged in the present case, the aggravated arson statute is violated when a person by means of fire knowingly damages any building or structure (section (a)), and a fireman at the scene in the line of duty is injured as a result of the fire (subsection (3)). We do not consider in this case the validity of the statute as it relates to section (a) when combined with subsections (1) or (2).

Defendant notes arson is committed when a person by means of fire knowingly damages real or personal property of another, either without the consent of an owner or with intent to defraud anfinsurer. Aggravated arson, however, occurs whenever any building or structure is knowingly damaged by fire, without regard to its ownership or whether there is an intent to defraud if, as charged in the present case, a fireman is injured at the scene while acting in the line of duty. Defendant suggests the only apparent purpose for this exercise of the police powers is to protect the health and safety of firemen who may be injured while fighting a fire. He contends the statute, which subjects a person having no culpable motive in burning a building or other structure to Class X penalties, is not reasonably designed to effeet the purpose intended by the legislature. Defendant offers, hypothetically, an example wherein the owner of a structure located remotely on his own property wishes to destroy it and who notifies the fire department requesting the firemen not to put out the fire; the owner would be guilty of aggravated arson should a fireman be even slightly injured if he persists in fighting the fire.

The State agrees with defendant’s understanding of the legislative purpose in enacting the statute, arguing it encompasses a legitimate and reasonable public purpose to deter people from the burning of buildings or other structures because of the general hazard implicit therein should it burn out of control or should a fireman be injured. It asserts the legislature has by this statute sought to encourage people to seek professional help in destroying buildings or structures, rather than doing it themselves.

When considering whether a statute violates due process in exercising the police powers of the State the standard is “whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.” (Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159, 128 N.E.2d 691.) The due process clauses of the Federal and State constitutions limit only the unreasonable or arbitrary exercise of the police power. (Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 453, 389 N.E.2d 529.) To constitute a legitimate exercise of the police power, the legislation in question must bear a reasonable relationship to the public interest sought to be protected and the means adopted must constitute a reasonable method of accomplishing the intended objective. Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill. 2d 131, 138, 379 N.E.2d 290; Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 389 N.E.2d 529.

We consider the title of the offense of aggravated arson to be somewhat an anomaly as, in the aspect which is considered here, it has little relationship to arson. Arson has traditionally required proof of an unlawful purpose on the part of a defendant who has burned property; either that it be owned, at least in part, by another who has not consented to the burning, or that the burning was done with intent to defraud an insurer of the property. Aggravated arson, however, requires only that a person have knowingly caused any building or structure to be damaged by fire and that a fireman is injured at the scene. Arson is not a lesser included offense of aggravated arson, and one does not have to be guilty of committing the lesser Class 2 offense of arson in order to be convicted of the more serious Class X offense of aggravated arson.

The Illinois courts have not addressed the constitutionality of the aggravated arson statute and we look to other jurisdictions. In State v. Spino (1963), 61 Wash. 2d 246, 377 P.2d 868, the court held unconstitutional that State’s second degree arson statute as an arbitrary and unreasonable exercise of the police power. That offense was essentially defined as the wilful burning of property “under circumstances not amounting to arson in the first degree.” (State v. Spino (1963), 61 Wash. 2d 246, 247, 377 P.2d 868, 869.) The court noted that the term wilful means intentionally or designedly and that there was no requirement in the statute the burning be done either with malice, to the property of another or with intent to defraud. The Washington Supreme Court found a person could be convicted of burning his own worthless property, or for any other beneficial fire, without proof the fire was harmful or so intended. The court concluded the statute imposed unreasonable and unnecessary restrictions upon the use of private property and the pursuit of lawful activities, thus violating due process. Again, in State v. Dennis (1969), 80 N.M. 262, 263, 454 P.2d 276, 277, the reviewing court considered a statute which defined arson as “the intentional damaging by any explosive substance or setting fire to any *** structure” and found it to be constitutionally invalid as an unreasonable exercise of, the police power. The New Mexico court noted that aggravated arson in that State differed from arson only in that it required the damaging of property be wilful or malicious and cause great bodily harm.

These Washington and New Mexico statutes were similar to the Illinois aggravated arson provision in that the latter also does not require a criminal intent on the part of a defendant, and the Illinois statute differs as it additionally requires proof that a fireman or policeman was injured. We must then consider whether the legislative object of preventing injury to police or fire officers has been reasonably met within constitutional limitations.

If the legislature intended, as urged by the State, by this means to discourage the burning of buildings or structures in order to protect the public generally from the hazard of fire, it more likely would have provided that injury to any person as a result of the burning constituted aggravated arson. Subsection (2) of the statute does so provide where any person receives great bodily harm as a result. The protections of subsection (3), however, are directed solely to fires causing injury to fire or police officers. They must, and regularly do, respond to the scene of fires in the performance of their duties and are more likely than are other members of the public to be exposed to those hazards. While the objective is laudable, we do not consider the statute to be a constitutionally reasonable means to attain it.

The proscriptions of the statute and its severe penalty are directed equally to the innocent as well as to the culpable. A farmer who wishes to destroy an old shed by fire; a home owner who in renovating his house burns off old paint; a fire chief who conducts a practice burning of a structure for training purposes; or, a demolition expert who breaks apart a useless building by explosives would all be guilty of aggravated arson if a fireman or policeman were even slightly injured at the scene. As noted, in State v. Spino “[n]o conceivable public purpose can be served by the prosecution and punishment of those who set fires for innocent and beneficial purposes.” (State v. Spino (1963), 61 Wash. 2d 246, 250, 377 P.2d 868, 870-71; compare People v. One 1979 Pontiac Grand Prix Automobile (1982), 89 Ill. 2d 506, 511-12, 433 N.E.2d 1301; Brennan v. Illinois Racing Board (1969), 42 Ill. 2d 352, 358, 247 N.E.2d 881; Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159-62, 128 N.E.2d 691.) Fire and police officers will be at the scene of a fire regardless of whether it was started by an arsonist or a person having no culpable motive. Making an arsonist subject to more severe penalties for the offense should fire or police officers be injured would be more understandable, and that may well have been the intention of the legislature when it considered adoption of the new offense of aggravated arson. .

We have concluded that the aggravated arson statute, as charged against defendant, is an unreasonable and arbitrary means of achieving the object sought of protecting fire and police officers from injury. It is unlikely that persons who may innocently burn a building or a structure, believing they are acting within their rights to do so, could be aware they subject themselves to Class X penalties if, as a result, an officer is injured, and it is thus questionable whether this provision gives any further protection to the officers.

In view of our disposition of this issue we need not consider other matters asserted as error by defendant.

Accordingly, the judgment of the circuit court must be reversed.

Reversed.

SEIDENFELD, P.J., and LINDBERG, J., concur.