author: JUSTICE TRAPP JUSTICE GREEN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAN D. LASHMETT, Defendant-Appellant.
    Fourth District
    No. 4—83—0318
    Opinion filed August 1, 1984.
    Rehearing denied August 30, 1984.

      GREEN, J., specially concurring.
    William S. Schildman, of Jacksonville, for appellant.
    Ronald F. Robinson, State’s Attorney, of Winchester (Robert J. Bider-man and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

A jury found defendant Dan Lashmett guilty of felony theft, three counts of official misconduct, and deceptive practice. The trial court sentenced defendant to concurrent terms of 27 months’ imprisonment for felony theft, one count of official misconduct, and deceptive practice, and ordered him to pay $5,800 in restitution. On appeal, defendant argues the trial court erred in refusing to allow him to impeach a State’s witness with a guilty verdict returned by a Federal jury and in refusing to instruct the jury on the testimony of an accomplice. We affirm.

In early April of 1982, defendant, commissioner of Road District No. 4 in Scott County, asked Robert Staples, vice-president of Winchester National Bank, for a loan. Defendant told Staples he wanted to purchase a used truck along with two other pieces of equipment for the road district. Staples advised defendant that he would need a copy of the bill of sale and the highway superintendent’s authorization before giving the loan.

On April 15, defendant told Richard Brown, superintendent of highways, that the road district needed to purchase a new truck. Defendant also informed Brown that he already had a truck in mind. Brown told defendant to purchase it after getting financing. Brown never checked out the truck, but he had seen defendant using a red two-ton Chevrolet, which he assumed defendant intended to purchase.

On the same day, defendant brought a bill of sale for a truck to Geraldine McQuire, clerk of Road District No. 4. McQuire drew a check for $5,800 payable to Dean Lindsey Auto Sales. Both McQuire and defendant signed the check.

Defendant also returned to the bank on April 15. He gave Staples a bill of sale for a truck. The bill of sale described a 1976 truck with serial number 416060H794129. Relying on the bill of sale and defendant’s statement that the truck was a 1976 two-ton Chevrolet, Staples executed a note for $7,500, $5,800 of which represented the purchase price of the truck. Defendant signed the note that morning, and Brown and McQuire signed it later in the day.

A few months later, McQuire received a certificate of title from the State. The date of transfer on the title was April 15. The title, however, described a 1968 International truck with serial number 416060H794129. McQuire delivered the title to the bank. She never received a title for a 1976 Chevrolet truck'.

In May 1982, police stopped defendant while he was driving a red 1971 Chevrolet truck. Illinois state police Corporal Paul Brown testified the truck was missing its vehicle identification number (V.I.N.). Brown investigated and discovered the truck had been stolen. Brown also testified that some V.I.N. tags were found at defendant’s home, and he believed the V.I.N. tag to the 1971 Chevrolet was recovered. The 1971 Chevrolet had municipal plates on it, but those plates were registered to a 1965 dump truck which the road district owned.

On May 14, 1982, the Scott County sheriff impounded the 1968 International truck. An appraiser estimated its present value at $1,200 and stated it probably sold for $5,700 when new. The title history of the truck showed defendant owned it and sold it to Dean Lindsey. Lindsey then transferred title to the road district. Defendant’s signature as commissioner appeared on the application to transfer title from Lindsey to the road district. Thus, the road district owns defendant’s 1968 International truck, while liable to the bank for $5,800 for the purchase of a 1976 Chevrolet truck.

Lindsey testified at trial for the State. Lindsey, the owner of Dean’s Auto Body & Auto Sales in Morgan County, had known defendant for three or four years. On April 14, 1982, defendant came to Lindsey with a proposition. If Lindsey purchased defendant’s 1968 International truck for $5,700, then he could resell it to the road district for $5,800 and keep the extra $100 for filling out the paper work. Lindsey did not understand why defendant did not sell his truck directly to the road district, except defendant stated it would look better coming to the clerk from a car dealer rather than himself.

Lindsey agreed to the transaction and wrote up a bill of sale. On April 15, Lindsey wrote a check for $5,700 without seeing the truck. Lindsey dated his check April 16 because the banks were already closed on the 15th. Defendant gave Lindsey a check for $5,800 drawn from the road district’s account. Both checks were cashed. Lindsey also filled out a title transfer application and a sales tax return reporting the sale of a 1968 International truck to the road district. Lindsey testified both he and defendant signed the sales tax return in front of a notary.

Defendant’s signature appears on both the title transfer application and the notarized sales tax return. Lindsey’s carbon copy of the bill of sale was also produced. There are two differences between Lindsey’s copy and the copy Staples received. The transfer date on Lindsey’s copy had been changed from April 14 to April 15. Lindsey admitted he changed the date so it would correspond to the date on the other documents. Lindsey’s copy was for a 1968 truck while Staples’ copy had been altered to read 1976. Lindsey denied changing those numbers.

Defendant’s version of the transaction differed substantially from Lindsey’s. Defendant had been acquainted with Lindsey for four or five years, and in 1981 Lindsey agreed to find a good four-wheel drive pickup for defendant. Defendant was to trade in several vehicles for the pickup. In December, Lindsey took possession of defendant’s 1971 Dodge pickup. Lindsey did not get the title because defendant had recently bought the pickup and had not yet received title from the State. Lindsey took defendant’s 1975 Cadillac in March 1982. Lindsey also took parts from defendant’s 1973 pickup. In April, Lindsey had the pickup that defendant wanted, but he did not yet have clear title. Defendant, therefore, asked to be paid for the vehicles Lindsey had already taken. Lindsey agreed to pay defendant $5,700 for those vehicles plus defendant’s 1968 International truck. Defendant signed a blank title application and a blank sales tax return. He then gave Lindsey the title to the 1968 truck but kept the titles to the other vehicles.

Defendant further testified he bought the stolen 1971 Chevrolet truck from Lindsey for the road district. In March 1982, defendant informed Lindsey he intended to buy a truck for the road district. Lindsey directed defendant to the farm of Rick Barrow, where defendant saw a red two-ton truck. Barrow later delivered the truck to defendant so defendant could test drive it. Defendant used the truck on road district business in the first part of April. On April 14, defendant agreed to buy the truck from Lindsey for $5,800. He took the bill of sale to McQuire and then to the bank. Defendant denied changing the numbers from 1968 to 1976 on the bill of sale. Defendant also had McQuire write a check to the State so he could transfer the license plates from the 1965 dump truck to the new truck. He placed the municipal plates on the new truck. Police later stopped defendant while he was driving the 1971 Chevrolet with the municipal plates.

At trial, defendant produced a Kentucky Department of Revenue bill of sale. It transferred a 1976 Chevrolet truck from Rick Barrow to Dean’s Auto Sales on April 15, 1982. Defendant also produced a Kentucky title showing Rick Barrow as the owner of a 1976 two-ton Chevrolet. Defendant claimed Lindsey had given him these documents in the first week of May. Defendant did not give these documents to police when they impounded the 1971 Chevrolet because the police never asked him for any documents. Defendant did not know the road district owned his 1968 International truck.

Dan Jeffery Lashmett, defendant’s son, corroborated his father’s testimony. In March 1982, Lashmett and his father were looking for a new truck for the road district. Lindsey directed them to Barrow’s farm. Barrow assured the Lashmetts that he owned the truck. Barrow allowed the road district to test drive the truck for a week. Lashmett himself used the truck on road district business. Other defense witnesses testified they saw road district workers using a red two-ton Chevrolet truck in April and May.

Lindsey testified he did not know anyone named Rick Barrow. He denied giving defendant the Kentucky title and bill of sale. He also denied taking possession of defendant’s Cadillac or Dodge truck. Lindsey stated he did not deal in large trucks, and he never sold defendant a red two-ton truck. Although his father was a road district commissioner, Lindsey claimed he did not know it would be unusual for a commissioner to sell his truck to the road district. Finally, Lindsey denied knowing that defendant intended to defraud the road district when he agreed to defendant’s proposed transaction.

On January 5, 1983, a Federal jury returned a guilty verdict against Lindsey for mail fraud. Lindsey’s trial, however, had not yet been completed at the time of defendant’s trial. The trial judge had to hear post-trial motions and sentence Lindsey. At trial, defendant argued the jury’s verdict was admissible to impeach Linsey as a prior conviction. The judge refused to admit the evidence because Lindsey’s conviction was not yet final.

The conviction of any witness may be shown for the purpose of affecting the credibility of the witness. (Ill. Rev. Stat. 1981, ch. 38, par. 155 — 1.) Generally, only convictions may be proved for impeachment purposes, and proof of arrests, indictments, charges, or actual commission of a crime are not admissible. People v. Mason (1963), 28 Ill. 2d 396, 400, 192 N.E.2d 835, 837.

Defendant argues the jury verdict amounts to a conviction. Section 2 — 5 of the Criminal Code of 1961 defines conviction:

“ ‘Conviction’ means a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury.” Ill. Rev. Stat. 1981, ch. 38, par. 2 — 5.

Because Lindsey had not yet been sentenced, the issue is whether a jury verdict equals a judgment of conviction, we hold that it does not. The judge, not the jury, renders judgment in a case. The jury’s verdict is not final until the court accepts it. The judge must still determine whether the verdict is consonant with the law, is properly rendered, is supported by the evidence, and is to stand, fall, or suffer modification in response to a post-trial motion. (People v. Vaughn (1981), 92 Ill. App. 3d 913, 914, 416 N.E.2d 681, 683.) Indeed, section 102 — 14 of the Code of Criminal Procedure of 1963 states:

“ ‘Judgment’ means an adjudication by the court that the defendant is guilty or not guilty and if the adjudication is that the defendant is guilty it includes the sentence pronounced by the court.” (Ill. Rev. Stat. 1981, ch. 38, par. 102 — 14.)

In a criminal case, therefore, the sentence comprises the judgment of the court. People v. Allen (1978), 71 Ill. 2d 378, 381, 375 N.E.2d 1283, 1284.

A conviction contemplates more than a mere finding of guilt. (People ex rel. Grogan v. Lisinski (1983), 113 Ill. App. 3d 276, 281, 446 N.E.2d 1251, 1254.) “If the term ‘conviction’ means anything at all, it means a conviction finalized on the trial court level. Otherwise it is simply not a conviction.” People v. Spears (1967), 83 Ill. App. 2d 18, 26, 226 N.E.2d 67, 71.

On appeal, defendant contends cross-examination concerning Lindsey’s Federal trial would have reasonably tended to show Lindsey’s interest, bias, or motive to testify falsely. (People v. Eddington (1979), 77 Ill. 2d 41, 46, 394 N.E.2d 1185, 1187.) We note, however, defendant never asserted any interest, bias, or motive on Lindsey’s part at trial. In his offer of proof, defendant emphasized the similarity between the mail fraud charge and the offense at bar. Defendant asserted Lindsey’s crime demonstrated a prior predilection toward untruthfulness. Defendant never raised the possibility that Lindsey expected leniency in return for his testimony. Where there is no showing that a witness has any expectation of leniency, cross-examination concerning pending charges would not tend to show bias or interest. (People v. Snyder (1979), 72 Ill. App. 3d 82, 84, 390 N.E.2d 598, 600.) Moreover, the State’s Attorney had neither the power nor the authority to determine the outcome of the sentencing hearing in Federal court. (People v. Siler (1980), 85 Ill. App. 3d 304, 307, 406 N.E.2d 891, 894.) Lindsey’s pending sentencing hearing, therefore, could not reasonably have affected his willingness to testify.

At the instruction conference, the trial court refused defendant’s instruction on the testimony of an accomplice. Defendant tendered Illinois Pattern Jury Instruction, Criminal, No. 3.17 (2d ed. 1981), which states:

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.”

An accomplice is one who knowingly, voluntarily, and with common intent unites with the principal offender in committing the offense. (People v. Hrdlicka (1931), 344 Ill. 211, 221, 176 N.E. 308, 313.) A finding that a witness is an accomplice entitles defendant to a cautionary instruction regarding the reliability of the witness’ testimony. .The test is whether there is probable cause to believe the witness is guilty, either as a principal or on an accountability theory. (People v. Cobb (1983), 97 Ill. 2d 465, 476, 455 N.E.2d 31, 35.) The court is not bound by the determination of the police or the State’s Attorney. Instead, the court should determine on its own whether probable cause existed to charge the witness. People v. Allen (1983), 119 Ill. App. 3d 186, 192, 456 N.E.2d 336, 340.

To be accountable, a person must have the mental state required for the offense, and before or diming the offense he must aid in its commission. (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2.) Merely showing a person’s acts facilitated another’s commission of an offense is not enough. It must be shown that the conduct, which facilitated the later offense, occurred with the intent that such offense be committed. People v. Ware (1980), 82 Ill. App. 3d 297, 306, 402 N.E .2d 762, 767.

Defendant asserts Lindsey knowingly participated in the crime. Defendant notes Lindsey took $100 merely for filling out the paper work. Defendant concludes Lindsey must have known a commissioner could not enter into this type of transaction because Lindsey’s father was also a road commissioner. Lindsey testified defendant suggested the transaction because it would look better coming from a car dealer rather than himself. Lindsey, however, did not believe it was unusual for a commissioner to sell his truck to the road district. Finally, defendant contends Lindsey knew the price was too high at the time of the sale. Lindsey testified he had read in the paper that a 1968 International truck was worth $1,200 to $1,500. The remainder of his testimony, however, shows he was not aware of this fact when the transaction occurred. He never saw the truck or checked out the price. The price did not indicate anything unusual to him because he never dealt in trucks that large.

While Lindsey’s acts may have aided defendant, the record reveals no common intent between them. Lindsey expressly denied sharing any criminal purpose with defendant. Defendant testified he did not believe Lindsey would have run the paper work through the dealership so defendant could defraud the road district. According to the State’s case, Lindsey unwittingly aided defendant. The defense proceeded on the theory that Lindsey duped defendant into buying a stolen truck. It was defendant who gave both the road district and the bank the false impression that he had purchased a 1976 Chevrolet truck. Nothing in the record demonstrates any knowledge on Lindsey’s part of this deception or the alteration of the bill of sale. The mere fact that Lindsey took $100 to make a deal look better is insufficient to establish probable cause that Lindsey is accountable for defendant’s offenses.

For the foregoing reasons, the judgment and sentence of the trial court are affirmed.

Affirmed.

MILLS, P.J., concurs.

JUSTICE GREEN,

specially concurring:

I concur in the decision to affirm.

I disagree with the holding of the majority that the trial court properly refused to give the accomplice instruction. Lindsey admitted that he participated in a transaction whereby defendant sold him a truck for $5,700 which he then sold to the district, without looking at the truck, for $5,800. He admitted that he knew defendant wished to conceal the fact that the vehicle had belonged to him. Before making a purchase of equipment of a price in excess of $5,000 for the district, defendant was required to take bids. (Ill. Rev. Stat. 1981, ch. 121, par. 6 — 201.7.) For defendant to knowingly do this was official misconduct. (Ill. Rev. Stat. 1981, ch. 38, par. 33 — 3.) For Lindsey to aid or abet defendant in committing the offense with the intent that the offense be committed would make Lindsey guilty as an accomplice. Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c).

The majority concludes that Lindsey’s statement did not provide a sufficient proof of Lindsey’s mental state to require the instruction, citing Ware. That case concerns the sufficiency of proof of mental state to convict on an accountability theory when all of the evidence is circumstantial. Here the proof need only show probable cause. The circumstantial evidence that (1) Lindsey knew that defendant was asking for his participation in order to conceal the true nature of the transaction, and (2) Lindsey proceeded with the transaction without examining the vehicle to see if the transaction was bona fide creates a sufficiently strong inference of the necessary mental state to make a showing of probable cause.

Because of the strength of the other evidence of defendant’s guilt and the flimsy nature of the explanation given by defendant, I consider the evidence of defendant’s guilt to be overwhelming without Lindsey’s testimony. Therefore, the refusal to give the accomplice instruction was harmless error. The affirmance was correct.


source: Caselaw Access Project

author: JUSTICE KASSERMAN

license: Public Domain

text:
    JOHN F. DUNKER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (D & B Contractors, Inc., Appellee).
    First District (Industrial Commission Division)
    No. 1—84—0378WC
    Opinion filed July 11, 1984.
    Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago (Charles E. Anesi and Arnold G. Rubin, of counsel), for appellant.
    Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago (Pamela Karoff Kesler, of counsel), for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, John E Dunker, filed three applications for adjustment of claims under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.). These applications involved three injuries alleged to have occurred February 23, 1977 (79WC32970), November 3, 1977 (79WC32971), and May 23, 1978 (79WC32972), while petitioner was employed by D & B Contractors, respondent.

At the outset we observe that it is not disputed that at all pertinent times Dunker was the sole owner of and was employed by D & B Contractors.

An arbitrator awarded petitioner benefits on each of the claims, and in a single decision the Industrial Commission reversed each of the awards. On certiorari, the circuit court of Cook County confirmed the decision of the Commission without opinion, and Dunker has perfected two appeals in which he contends that the Commission erred in rejecting his account of the incidents resulting in his injuries. Petitioner’s appeals have been consolidated by this court.

At a hearing held on May 21, 1980, Dunker testified before the arbitrator that on February 23, 1977, he was shoring a block retaining wall with railroad ties when the wall collapsed. The wall was six feet high and was 10 to 20 feet long. Dunker stated that his right leg twisted and locked and that he crawled out unassisted. He related that he may have been working alone at that location. Later, the leg swelled. Dunker testified that he tried to rebuild the wall the next day but could not. According to Dunker, the locking and discomfort continued for four to six weeks. Dunker visited the Lund-holm Surgical Group regarding the locking and lack of strength in the right leg. Dr. Donald W. Lyddon performed surgery on the right knee in April and again in May 1977. The first surgery was within five days of Dunker’s first visit to Dr. Lyddon.

In a report by Dr. Lyddon dictated June 23, 1977, Dr. Lyddon stated that Dunker had told him the injury occurred three months before. In an October 25, 1979, report, Dr. Eugene Leonard indicated that Dunker had told him that a wall had fallen over, knocking him down; that there was no real problem, and Dunker continued working; and that about a month later, Dunker noticed loss of full motion in extension of the knee.

David Raht testified that he was employed by LFAC Insurance Agency in 1977. Raht related that in late April 1977 he noticed Dunker limping and asked what had happened to his knee and that Dunker replied that he had injured it but did not know how. The record indicates that on the date of Raht’s conversation with Dunker, Dunker was the owner of LFAC Insurance.

At the October 15, 1980, hearing before the same arbitrator, Dunker was the sole witness. Testifying in support of his second and third claims, Dunker stated that on November 3, 1977, he was working alone and was using a cement saw to cut an opening in a 24-inch-thick concrete or masonry firewall for installation of a door when the wall fell over on him, knocking him down and twisting his left leg. Dunker stated that he went home then but worked the next day. According to Dunker, the left leg was snapping, cramping, locking, and collapsing. He related that several days later he consulted Dr. Lyddon. Dunker further testified that on May 23, 1978, he was backfilling, using a Caterpillar, when it tipped and threw him off against a wall and under the Caterpillar. Dunker related that he had difficulty rising and that his left leg ached, was unstable, and locked and cramped. When home heat treatments failed, Dunker consulted Dr. Lyddon, who performed surgery in June 1978. On cross-examination, Dunker testified that the whole wall had not fallen on him in the November 3, 1977, incident but only the door area, approximately 42 by 80 inches, which had fallen in several pieces.

Among several medical reports introduced into evidence as exhibits for respondent was an April 17, 1978, discharge summary in which Dr. Lyddon stated that Dunker “has been noticing frequent locking of the left knee over the past' 6 to 8 months” but that he “recalls no specific injury.”

Hearings were held before the Commission on December 18, 1980, April 23, 1981, and May 21, 1981. The first hearing concerned the claim relating to Dunker’s right leg (79WC32970); the second was a combined hearing on the two claims concerning Dunker’s left leg (79WC32971 and 79WC32972); and the third was a continuation of the second. At the third hearing, respondent offered into evidence a copy of a “Judgment and Probation/Conviction Order,” dated February 17, 1981, which recited that Dunker had been found guilty of knowingly, willingly and unlawfully using the United States Postal Service to fraudulently receive a United States Treasury check and of making a false statement to the Small Business Administration. This exhibit indicated that Dunker was sentenced to two years’ probation.

In its opinion dated July 20, 1982, the Commission found Dunk-er’s testimony concerning each of the three incidents to be “contradictory, uncorroborated, and unbelievable.” As to the February 23, 1977, incident, the Commission found incredible Dunker’s testimony that he was working alone shoring a wall with objects the size and weight of chemically treated railroad ties and that he extricated himself unassisted from under the fallen block wall he had described. The Commission also expressly considered that Dunker was the sole witness, that he sought no medical help for over a month, and that Dunker had told LFAC Insurance Agency’s employee, David Raht, that he did not know how he had injured his knee. As to the November 3, 1977, incident, the Commission found it unlikely that a door cut-out in a cement wall 24 inches thick would fall out in pieces or that it would fall without being knocked out and that, if it did so, it would be unlikely that Dunker would wait four months before seeking treatment. The Commission noted that, while Dunker stated that he sought treatment several days later, Dr. Lyddon’s records established that Dunker consulted him four months after the alleged incident and gave only a general history of locking of the left knee, which Dunker could not relate to any particular incident. The Commission also noted the absence of any corroborative evidence as to the November 3, 1977, incident. As to the May 23, 1978, incident, the Commission observed that, while Dunker testified that he sought treatment almost immediately or within a matter of days, Dr. Lyddon’s records indicated that it was three weeks before Dunker sought treatment and that while Dunker testified that he was thrown against a wall and under the Caterpillar, he told Dr. Lyddon that he hit his knee when a wall fell on him and the Caterpillar. The Commission also noted that Dunker’s account of the May 23, 1978, incident was uncorroborated and that there were no other witnesses.

Petitioner sets forth numerous challenges to the Commission’s conclusion that his testimony was not credible. We find each of them to be without merit. First and foremost, petitioner incorrectly asserts that the implicit findings of the arbitrator as to petitioner’s credibility somehow bound the Commission, which did not hear that testimony. It is well established in Illinois that it is the peculiar province of the Industrial Commission to determine the credibility of witnesses, to weigh the testimony, and to determine the weight to be given to the evidence. Regardless of whether or not the Commission hears testimony in addition to that heard by the arbitrator, it exercises original jurisdiction and is in no way bound by the arbitrator’s findings. Berry v. Industrial Com. (1984), 99 Ill. 2d 401, 405, 459 N.E.2d 963, 965.

Furthermore, petitioner’s present attacks on the findings of the Commission' have little if any support from the record. Petitioner urges that with respect to the February 25, 1977, incident, only the shoring of the wall fell on him, not the entire wall as the Commission erroneously concluded; however, the transcript reveals petitioner’s testimony to be that “the retaining wall collapsed upon me.” Additionally, we cannot say that the Commission erred in considering Mr. Raht’s testimony or the obvious difficulties that one man would encounter in positioning railroad ties. These are matters which tended to cast doubt on petitioner’s account of the events of that date. While the Commission made no reference to a medical report ascribed to Dr. Nyquist reciting a March 8, 1977, treatment of petitioner, such report suggests no etiology or time frame for the injury being treated and thus lends scant support for petitioner’s argument as to the credibility of his testimony.

Regarding the November 3, 1977, incident, petitioner now asserts that the Commission failed to understand that he was injured by a falling steel door. This accords with neither of petitioner’s two earlier versions of that incident, in which petitioner first stated that the wall fell and later that only pieces of the door area of the wall fell upon him. Petitioner also cites as error the Commission’s conclusion that Dr. Lyddon’s records showed that petitioner could recall no clear injury with respect to the knee problems later ascribed to the November 3, 1977, incident. Petitioner overlooks the report dictated April 17, 1978, in which Dr. Lyddon stated that petitioner had experienced frequent locking of the left knee over the last six to eight months but “recalls no specific injury.” The time frame indicated in said report also suggests that petitioner was suffering the symptoms complained of prior to November 3, 1977. As to the May 23, 1978, incident, Dr. Lyddon indicated in a May 31, 1978, record notation that petitioner claimed to have hit a wall with a Caterpillar three weeks previously, this differing with petitioner’s testimony as to when and how he was injured.

In summary, the Commission obviously concluded that petitioner had not proved his claims “by a preponderance of credible evidence.” (Republic Steel Corp. v. Industrial Com. (1980), 82 Ill. 2d 76, 85, 411 N.E.2d 233, 237.) We conclude that the Commission’s decision was not against the manifest weight of the evidence.

Petitioner further asserts that the Commission erred in considering his fraud conviction with respect to all three of his claims, despite the fact that it was introduced only at the last hearing before the Commission. Petitioner concludes that the conviction was so considered by reason of the fact that the Commission issued a single decision with respect to all three claims. Based upon the same deduction, petitioner assigns as error the Commission’s consolidation, sua sponte, of his three claims for decision.

The Commission is always entitled to consider evidence introduced and presented to it bearing on the credibility of a claimant, and it is not necessary that such evidence has been considered by the arbitrator. (See Luby v. Industrial Com. (1980), 82 Ill. 2d 353, 362, 412 N.E.2d 439, 443.) Petitioner does not contend that his fraud conviction is inadmissible in his workers’ compensation case, as it might be either a criminal case (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695) or a civil proceeding (Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 363 N.E.2d 805). Rather, petitioner implies that the conviction either was irrelevant to issues regarding his credibility as a witness with respect to his first claim or else was not timely introduced with respect to that claim. Obviously, such evidence was relevant to petitioner’s credibility generally and would not be limited to any specific aspect of the proceedings spanned by the record. Also, the Commission was not required to consider each claim by petitioner in isolation without reference to the remainder of its files, particularly where, as here, the Commission appears to have concluded that a pattern of deceit was present with respect to all three claims. Finally, we note that the Commission made no reference to the conviction itself in its decision. That decision is amply supported by the evidence recited therein without reference to the fraud conviction. Furthermore, we reject the notion that the Commission’s consolidation of the claims was indicative of a motive on the part of the Commission to shield an improper consideration of the conviction.

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

Affirmed.

SEIDENFELD, P.J., and BARRY, McNAMARA, and WEBBER, JJ., concur.


author: PRESIDING JUSTICE MEJDA

text:
    SANTIAGO HERRERA, Plaintiff-Appellee and Cross-Appellant, v. BENEFIT TRUST LIFE INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee.
    First District (5th Division)
    No. 83—1353
    Opinion filed June 29, 1984.
    Victor J. Piekarski and Michael Resis, both of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellant.
    Raymond P. Concannon of Raymond P. Concannon, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff filed suit seeking total disability benefits pursuant to a Group Insurance Policy (the Policy) issued by defendant to plaintiff’s employer together with a claim for attorney fees, costs and punitive damages pursuant to section 155 of the Illinois Insurance Code (the Code) (Ill. Rev. Stat. 1983, ch. 73, par. 767). The trial court found that the determinative provision of the Policy was ambiguous and, accordingly, granted plaintiff’s motion for summary judgment as to defendant’s liability and denied defendant’s cross-motion for summary judgment. Following subsequent arguments on the section 155 allegations, the trial court denied plaintiff’s request for attorney fees and punitive damages.

On appeal, defendant contends that the determinative provision of the Policy which treats periods of disability separated by less than six months of uninterrupted active employment as “continuous” unless such periods arise from “different and unrelated causes” is not ambiguous and should be construed as denying plaintiff additional benefits for an aggravation of a pre-existing condition for which plaintiff had already received maximum benefits. In his cross-appeal, plaintiff contends that the trial court abused its discretion in failing to award attorney fees and punitive damages based upon defendant’s unreasonable and vexatious behavior. For the following reasons, we affirm the judgment of the trial court.

The undisputed facts disclose that on or about October 24, 1977, plaintiff, a machinist for the Chicago and Northwestern Railway, sustained injuries to his spine and legs while throwing brake shoes across a pit during the course of his employment. In late January, 1978, plaintiff consulted his personal physician, Dr. Kanter, regarding these injuries and was diagnosed as having a “herniated lumbar disc, L5-S1, left” and was advised not to return to work until he had fully recovered. As a result, plaintiff filed a claim with defendant under the monthly accident benefit provision of the Policy which provides benefits of $150 per month for the first six months of disability, $250 for the second six months, and $150 for the remainder of the disability or until age 65. Subsequently, plaintiff was advised by defendant that because his disability had not arisen within 20 days of the accident, he was limited to those accident disability benefits provided under the delayed total disability provision of the Policy which pays benefits of one-half the monthly accident benefit for a maximum of three months, totalling $225. However, plaintiff did have the option to submit his claim under the monthly sickness benefit provision, which would enable him to receive monthly benefits of $150 for the first six months and $250 for the second six months, totalling $2,400. Plaintiff elected to file his claim under the latter provision and received full payment of the sickness benefits.

In May 1978, Dr. Kanter determined that plaintiff was sufficiently recovered to return to work as a diesel mechanic on a light-duty basis, provided that he did not lift anything weighing in excess of 40 pounds until July 9, 1978, at which time he would be reexamined. Because restricted work was not available, plaintiff did not actually return to work until July 11, 1978, when all lifting restrictions had been removed.

After returning to work, plaintiff, on July 21, 1978, sustained injuries to his spine and legs while lifting a sledge hammer during the course of employment. The accident rendered him totally disabled. Within 20 days of this second accident, plaintiff filed a claim with defendant under the monthly accident benefit provision of the Policy, seeking benefits of $1800 per year for 20 years, totalling $36,000.

Relying on the “Exceptions and Reductions” provision (Exceptions Provision) of the Policy, defendant refused to pay plaintiff additional benefits for what defendant claimed was a period of total disability arising from the same cause as the first such period; i.e., injuries to the back and legs. The Exceptions Provision provides, in pertinent part:

“[intermittent periods of total disability separated by less than six months of continuous active employment shall be considered as one continuous period of disability unless they arise from different and unrelated causes.”

As a result, plaintiff filed suit seeking $36,000 in liquidated damages plus costs and attorney fees, claiming that defendant’s refusal to pay was vexatious and without reasonable cause. In its answer, defendant reasserted its contention that the injury sustained by plaintiff on July 21, 1978, was an aggravation of a pre-existing condition for which plaintiff had already received maximum benefits and cited the Exceptions Provision as the basis for its affirmative defense.

Plaintiff then moved for summary judgment as to defendant’s liability under the Policy and attached a copy of the executed insurance policy, his own affidavit attesting to his total disability and a sworn letter from Dr. Kanter also attesting to plaintiff’s total disability. In response, defendant filed its reply followed by a cross-motion for summary judgment which was predicated upon defendant’s contention that plaintiff’s second period of disability did not arise from a cause different and unrelated to that which precipitated the first period for which benefits had been paid. In support of its motion, defendant attached, inter alia: (1) an affidavit from Dr. Kanter stating that plaintiff’s second period of disability was caused by a recurrence of the injury that rendered him disabled from January 25, 1978, through July 1978; and (2) an affidavit from William E. Blohm, Jr., an employee of defendant, attesting to the fact that plaintiff had been paid the full amount in benefits for his original injury.

Following extensive arguments on the summary judgment motions, the trial court denied defendant’s motion for summary judgment and granted plaintiff’s motion for summary judgment solely on the issue of liability, stating:

“[Tjhere is at the very least ambiguity in the contract as to what is meant by causes, different and unrelated causes which means, in other words, that the factors bringing about the disability not be the same as the factor that brought about the first disability, ***.
* * *
I’m going to grant the summary judgment in favor of the Plaintiff on the basis that there is ambiguity in this agreement, and if there is ambiguity, the word “cause” should be deemed to relate to causes involving the external factors precipitating the disability regardless of any similarity in the pathology with the pre-existing pathology, so the motion of the Plaintiff will be granted.”

In a later order, entered January 27, 1983, the trial court denied plaintiff’s motions for judgment in the amount of $35,020 and for accelerated payment, and entered judgment in favor of plaintiff for $7,835.28, the amount due and owing under the Policy for plaintiff’s total disability (including interest), plus $150 per month until plaintiff attains the age of 65. The court’s decision as to attorney fees and costs was deferred until May 4, 1983, at which time the court denied plaintiff’s motion for fees and punitive damages on the ground that there was no evidence that defendant’s behavior was vexatious or unreasonable, but allowed plaintiff to recover $57.14 in costs based on his having prevailed on the issue of liability.

Opinion

On appeal, defendant argues that the trial court erred in holding, as a matter of law, that the word “cause” as it appears in the Exceptions Provision of the Policy is ambiguous. Defendant asserts that the Exceptions Provision “is nothing more than a variation on provisions commonly designated as ‘Recurrence Disabilities,’ ” and, as such, the word “cause” refers to the “disabling condition” which precipitates the period of disability. Defendant further contends that in this case, the disabling condition for both periods of disability was a herniated lumbar disc.

Plaintiff, on the other hand, defines “cause” as the precipitating accident or trauma rather than the resulting condition. Based on this definition, plaintiff contends that the fact he injured his back in both accidents is irrelevant because each period of disability was precipitated by a different accident. Further, the actual spinal injuries, or disabling condition, sustained by plaintiff as the result of each accident were not identical. As an alternative argument, plaintiff contends that the word “cause” in the Exceptions Provision is ambiguous; thus, the Policy must be construed most liberally in favor of him. We concur with plaintiff’s alternative argument.

In addressing defendant’s contention that the trial court erred in its finding of ambiguity, we are cognizant of the applicable standard of review which permits reversal of the trial court’s decision only upon the reviewing court’s finding that the trial court has abused its discretion. (Perschall v. Metropolitan Life Insurance Co. (1983), 113 Ill. App. 3d 233, 239, 446 N.E.2d 570.) We further recognize the rule relied upon by plaintiff that ambiguous or equivocal expressions in an insurance policy that operate to limit the insurer’s liability will be construed strongly against the insurer and liberally in favor of the insured. Wallace v. Blue Cross Hospital Service, Inc. (1973), 13 Ill. App. 3d 803, 808, 300 N.E.2d 531.

In support of its argument that the Exceptions provision is merely a variation on commonly designated recurrence disabilities provisions which have been found to be uniformly clear and unambiguous, defendant relies upon Skinner v. Continental Casualty Co. (Fla. App. 1972), 268 So. 2d 576, Paulin v. Midland Mutual Life Insurance Co. (1974), 37 Ohio St. 2d 109, 307 N.E.2d 908, and Pilot Life Insurance Co. v. Karcher (1976), 217 Va. 497, 229 S.E.2d 884. After careful review of these cases, we find them unpersuasive of defendant’s position for the principal reason that the definition of “cause” was never at issue in any of the cases. In Skinner, the issue before the court was whether plaintiff’s disability was continuous, i.e., whether there was a period between plaintiff’s claims for disability when he was not disabled within the meaning of the policy (Skinner v. Continental Casualty Co. (Fla. App. 1972), 268 So. 2d 576, 578). While we acknowledge the Skinner court’s statement that the policy language was not ambiguous, we also note that it was merely dicta and of no persuasive value to the case at bar. In Paulin, the issue before the court was insured’s claim that notwithstanding a 180-day provision in the policy, a period of disability ensuing more than 180 days after sustaining an injury could be treated as a disability due to injury rather than due to sickness. Finally, in Pilot, the court was confronted with the viability of a policy that had lapsed for nonpayment of premiums. In response to the contention that the recurring disabilities provision was ambiguous, the Pilot court found no such ambiguity existed because the pertinent terms were defined within the policy. Clearly, this is not the factual situation in the present case.

Defendant further argues that the “purpose and plain effect” of the Policy’s Exceptions Provision “is to avoid litigation each time an insured employee sustains a recurrence of the disability within six months of resuming active employment.” While this may be the purpose and effect of the provision, it certainly cannot be achieved through the use of ambiguous language. All terms, especially pivotal terms such as the one at issue here, must be unequivocally defined within the Policy. Careful drafting is the only way to assure that purpose and effect is effectuated rather than frustrated.

Defendant next argues that it was entitled to summary judgment on the basis of its “proof of continuity” of the injury. We disagree and note that there is sufficient evidence in the record to disprove continuity: (1) a statement, dated July 7, 1978, signed by Dr. Thomas Cook, one of the employer’s staff physicians, indicating that all lifting restrictions had been removed and that plaintiff was able to return to work; (2) plaintiff’s affidavit stating that immediately prior to his return to work, he was examined by Drs. Kanter, Cook and Featherbush (another staff physician) and declared fit to return to work and resume his normal duties; and (3) Dr. Shermer’s letter affidavit indicating that in addition to a recurrence of the previous “apparently recovered” herniated disc which had been caused by the 1977 accident, there was a new disc herniation caused by the 1978 accident. Interestingly, Dr. Kanter’s subsequent conclusion that the July 1978 injury was the same injury that had prevented plaintiff from working during his first period of disability appears to contradict his own diagnosis. However, as the trial court stated, any similarity between pathologies is irrelevant in light of the determination that the Policy language is ambiguous.

We next address plaintiff’s contention on cross-appeal that the trial court abused its discretion in failing to award attorney fees and punitive damages pursuant to section 155 of the Code, which provides in pertinent part:

“In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling the claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus an amount not to exceed any one of the following amounts:
(a) 25% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs;
(b) $5,000.” Ill. Rev. Stat. 1983, ch. 73, par. 767.

The question of vexatious and unreasonable delay is one of fact, the determination of which is discretionary with the trial court after it has examined and assessed the totality of circumstances. (Dever-man v. Country Mutual Insurance Co. (1977), 56 Ill. App. 3d 122, 124, 371 N.E.2d 1147.) Absent an abuse of that discretion, the trial court’s determination will not be disturbed. (Fassola v. Montgomery Ward Insurance Co. (1982), 104 Ill. App. 3d 825, 832, 433 N.E.2d 378.) In the present case, we concur with the trial court that plaintiff has not presented sufficient evidence to demonstrate that defendant’s denial of benefits was vexatious and unreasonable. To the contrary, the record indicates that defendant asserted a legitimate policy defense which was argued vigorously and supported by relevant case law. The mere fact that defendant did not prevail does not render it liable for section 155 fees and damages. See Cummings Foods, Inc. v. Great Central Insurance Co. (1982), 108 Ill. App. 3d 250, 259, 439 N.E.2d 37.

Accordingly, we affirm the judgment of the circuit court of Cook County.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.

      Pursuant to the monthly accident benefit provision, plaintiff is eligible to receive $2,400 for the first year of total disability and $1,800 for every year thereafter until age 65. Plaintiff, age 45, apparently overlooked the fact that he was entitled to increased benefits during the first year and, instead, sought $1,800 per year for 20 years, at which time he would be 65 years old.

       Justice Wilson, who participated at oral arguments, has since died. Justice Sullivan substituted, reviewed the briefs and record, and listened to the tape of the oral arguments.


text:
    RICHARD D. APER, Appellant, v. THE INDUSTRIAL COMMISSION OF ILLINOIS et al. (Caterpillar Tractor Company, Appellee).
    Third District (Industrial Commission Division)
    No. 3—84—0127WC
    Opinion filed August 2, 1984.
    James E. Bowles, of Goldfine & Bowles, of Peoria, for appellant.
    Robert F. Fahey, of Peoria, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, Richard D. Aper, filed an application for adjustment of his claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) for a knee injury suffered in a November 1, 1978, accident. An arbitrator awarded benefits for temporary disability as well as for permanent and complete loss of the right leg to the extent of 35% thereof, with deduction for a previously compensated award for permanent and complete loss of the right leg to the extent of 10% thereof. The Industrial Commission modified the decision of the arbitrator by deleting the award for permanent and complete loss, finding that Aper had not permanently lost any use of the right leg as a result of the November 1, 1978, accident. The Circuit Court of Peoria County confirmed the decision of the Commission, and this appeal followed. Petitioner did not participate in oral argument before this court.

Petitioner was the sole witness at the hearing before the arbitrator. His testimony was in pertinent part as follows.

On November 1, 1978, Aper was working for respondent, Caterpillar Tractor Company, when an engine block upon which he was working moved unexpectedly and pinned his right leg against two other blocks. The knee was bruised and swollen. He was carried to first aid. Dr. Bacon at Caterpillar heat-treated the leg for one month and put Aper on light duty. Aper consulted Dr. Louis L. Watson, Jr., who performed an arthrogram and an August 1979 arthroscopy on the knee. Aper recalled no knee trouble prior to 1978. Aper was also injured while working for respondent in 1971 when an engine block fell against the same leg. A nail penetrated the calf, and the thigh, knee, and calf were swollen, but Dr. James J. Flaherty told him the knee was uninjured.

Exhibits of record include reports from four doctors: Flaherty, Watson, Horacio Rivero, and Hugh Cooper. Dr. Flaherty’s two reports were based on October 27, 1971, and August 7, 1972, examinations of Aper. The first report notes a history of an October 25, 1971, accident and states a finding of “effusion” of the knee. The second report states Aper’s complaint of buckling of the knee and Dr. Flaherty’s finding of circumferential thigh atrophy. Dr. Watson’s October 2, 1979, letter to Aper’s attorney states, after a history of the 1978 accident, that the January 1979 arthrogram showed no evidence of torn cartilage. According to this letter, Aper’s complaints continued, and the arthroscopy revealed an absence of the anterior cruciate ligament. The letter termed this a significant injury which would result in permanent disability.

Dr. Cooper’s report was introduced on review before the Commission. It recited a January 21, 1980, examination of Aper. No 1971 accident was mentioned. After relating a history of the 1978 accident, this report states that it resulted in a hyperextension injury to the knee. The report states that except for mild quadriceps atrophy the knee appeared normal; the rupture to the anterior cruciate ligament revealed by the arthroscopy could not be detected, leading to the conclusion that compensatory mechanisms had successfully masked the loss.

In denying permanent disability benefits based on the 1978 accident, the Commission found inter alia: (1) Dr. Flaherty’s report, noting effusion of the knee, thigh atrophy, and Aper’s complaints of knee buckling, established that the 1971 accident did affect the knee; (2) Dr. Watson’s reports did not indicate that the absent ligament was a result of the 1978 injury; and (3) since the thigh atrophy existed prior to 1978 and the leg’s compensatory mechanisms had masked the loss of the ligament during two clinical examinations, one two months and the other 15 months after the 1978 injury, the ligament apparently was missing prior to the 1978 injury.

Aper contends that a “common sense” reading of Dr. Watson’s report of October 2, 1979, requires the conclusion that Dr. Watson believed there was a causal connection between the 1978 injury, the only one described therein, and the permanent disability Dr. Watson observed. Aper also urges that Dr. Cooper’s report, again referring only to the 1978 injury and stating that “some mild permanent disability has resulted from the injury,” establishes causal connection to the 1978 injury. Aper also argues that the Commission found that the leg’s compensatory mechanisms had eliminated any permanent disability, despite uncontradicted evidence of permanent disability.

The Commission is entitled to draw reasonable inferences from medical testimony, and a court will not disregard permissible inferences merely because others might have been drawn. (Berry v. Industrial Com. (1984), 99 Ill. 2d 401, 406-07, 459 N.E.2d 963, 966.) Here, there was ample evidence to justify the Commission’s decision. First, Aper misconstrues the Commission’s decision as reflecting a finding that his injured leg was not permanently disabled to some extent. The Commission actually found that the November 1, 1978, accident had not caused any of the permanent loss of use of that leg sustained by Aper. The Commission thus implied that the extent of permanent loss of use of that leg suffered by Aper was due to the 1971 accident. The latter conclusion was sufficiently supported by the evidence expressly relied upon by the Commission in its written decision and summarized above.

Aper attempts to read an unwarranted conclusion into Dr. Watson’s October 2, 1979, report. That report merely recites Aper’s description to Dr. Watson of the 1978 injury and of Aper’s subsequent complaints and the treatment applied. There is no indication that Dr. Watson was aware of the 1971 injury. Had there been some manifestation of knowledge on Dr. Watson’s part of the preceding injury, a statement by Dr. Watson as to causation would have been entitled to some weight. However, Dr. Watson’s report shows no attempt to differentiate between disability caused by the 1978 injury and the 1971 injury.

Since Dr. Cooper's report does not refer to the 1971 injury, it also is of little value in establishing what disability, if any was caused by the 1978 accident. Dr. Cooper’s report does not require a conclusion contrary to that of the Commission on the issue of causation.

Aper also urges that no doctor suggested that the missing ligament must have been missing for a long period of time in order to give rise to the observed compensatory mechanisms in the leg. We reject petitioner’s contention that the Commission erred in finding that since the leg’s compensatory mechanisms were successfully masking the loss of the ligament just two months after the 1978 injury, those compensatory mechanisms were most likely at work prior to the 1978 injury, causing any resulting disability to have preexisted the 1978 injury. We find no evidence to the contrary of record.

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

Affirmed.

SEIDENFELD, P.J., and BARRY, McNAMARA, and WEBBER, JJ., concur.


text:
    STEVEN L. BASHWINER, Petitioner-Appellee, v. ARDEN J. BASHWINER, Respondent-Appellant.
    First District (5th Division)
    Nos. 83—1726, 83—1727 cons.
    Opinion filed June 29, 1984.

      Alvin R. Becker, of Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago, for appellant.
    Robert J. Rubin, of Friedman & Koven, of Chicago, for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Respondent appeals from the denial of her motion to dissolve a temporary restraining order and from a preliminary injunction entered in dissolution of marriage post-judgment proceedings. Two issues are raised: (1) whether entry of the temporary restraining order was proper; and (2) whether the court erred in issuing the preliminary injunction. We reverse.

This case originated as an action for dissolution of marriage between Steven (petitioner) and Arden (respondent) Bashwiner. On July 24, 1980, the circuit court of Cook County entered a judgment for dissolution of marriage which incorporated a settlement agreement previously entered into by the parties. The settlement agreement set forth both respondent’s custodial status and petitioner’s visitation rights as to the minor children. On March 12, 1981, pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, eh. 110, par. 72), now codified as section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), the court vacated the settlement agreement portions of the judgment for dissolution. This court subsequently reversed the order granting the section 72 petition and reinstated the original judgment. In re Marriage of Bashwiner (1982), 107 Ill. App. 3d 772, 438 N.E.2d 490.

On June 2, 1983, respondent filed a petition in the circuit court of Lake County, where both parties and the minor children then resided, seeking leave to remove the parties’ minor children from Illinois in order to establish their permanent residence in Washington, D. C. On June 7, without notice to respondent, petitioner filed a verified motion in the Cook County court seeking a temporary restraining order and a preliminary injunction. On that date the court issued a temporary restraining order which prohibited respondent from further proceeding in the circuit court in Lake County or in any other court and ordered a hearing on the preliminary injunction to be held on June 17.

On June 17, 1983, respondent moved to dissolve the temporary restraining order and to dismiss petitioner’s motion for injunctive relief. The court denied the motion to dissolve and ordered an eviden-tiary hearing on the motion to dismiss. The court subsequently granted the preliminary injunction and ordered that it would remain in effect pending further order of the court. Respondent appeals.

Opinion

The first issue raised is whether the court erred in granting the temporary restraining order without notice. Respondent contends that the allegations of irreparable injury contained in petitioner’s motion failed to conform to the statutory requirements and that the temporary restraining order entered without notice to her should, therefore, be reversed.

The instant temporary restraining order was granted upon petitioner’s motion for preliminary injunction filed pursuant to section 501 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.) (IMDMA) which, in pertinent part, provides that “[t]he court may issue a temporary restraining order without requiring notice to the other party only if it finds, on the basis of the moving affidavit or other evidence, that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.” (Ill. Rev. Stat. 1981, ch. 40, par. 501(b).) The time for responding is 21 days or such other period as is specified in the order. Ill. Rev. Stat. 1981, ch. 40, par. 501(c).

A temporary restraining order is an emergency remedy of brief duration which may issue only in extraordinary circumstances. (Pad-dington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484.) The granting of such relief without notice is considered most drastic and is appropriate only under the most extreme and urgent circumstances. (Board of Education v. Parlor (1981), 85 Ill. 2d 397, 424 N.E.2d 1152; Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill. App. 271, 275, 98 N.E.2d 858.) Accordingly, issuance of injunctions without notice has been allowed only in narrowly restricted situations such as where the facts of the case or the history of the parties indicated that the giving of notice would result in harm by accelerating the very act sought to be enjoined or where the act to be enjoined either was taking place or would be undertaken or completed in the time required for notice. (Streamwood Home Builders, Inc. v. Brolin (1960), 25 Ill. App. 2d 39, 43, 165 N.E.2d 531.) Thus, in reviewing the issuance of a temporary restraining order without notice the critical inquiry is whether, in the minutes or hours necessary to procure defendant’s appearance, defendant could and would take such action as to obstruct seriously the court from dealing justly and effectively with the issues in dispute. Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill. App. 271, 275-76, 98 N.E.2d 858.

The verified petition in the instant case contains allegations that unless the injunction was granted petitioner would suffer immediate and irreparable harm due to the possibility that the Lake County court would permit removal of the Bashwiner children from Illinois in violation of the prior Cook County court order prohibiting such removal and that the mental and physical health of the minor children would be irreparably harmed unless the threat of removal from their schools, their environment and their father was promptly eliminated. Initially, we note that the petition contains no factual basis for these allegations. They are, therefore, mere conclusions and are insufficient grounds for issuance of a temporary restraining order. Further, even if we overlook the conclusional nature of petitioner’s allegations and lack of factual basis therefor, a review of the petition reveals that the harm or injury alleged therein is not the type of harm the prevention of which is properly achieved by issuance of an injunction without notice. Petitioner does not allege, nor does the record indicate, that the injunction is sought to preserve the subject matter of the controversy from destruction until the court is afforded an opportunity to rule. (See Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill. App. 271, 98 N.E.2d 858.) Nor is there any indication in the record that the giving of notice would accelerate the act sought to be enjoined or that during the time required for giving notice petitioner’s rights would be prejudiced. See Board of Education v. Parlor, (1981), 85 Ill. 2d 397, 424 N.E.2d 1152.

On Thursday, June 2, 1983, respondent filed in Lake County her petition and a notice of motion that on Friday, June 10, she would appear and move the court to set a date for hearing on the petition. Petitioner filed his motion seeking a temporary restraining order and a preliminary injunction three business days later, on Tuesday, June 7, three days before respondent was to appear in Lake County. On these facts, where a period of several days elapsed between respondent’s Lake County petition and petitioner’s motion for injunction and between such motion and the date upon which the Lake County court would set a hearing date, and where petitioner’s attorney was apparently readily accessible, we find that it was error to issue the injunction without notice. Cf Streamwood Home Builders, Inc. v. Brolin (1960), 25 Ill. App. 2d 39, 165 N.E.2d 531.

Petitioner also asserts that in considering the sufficiency of his allegations of irreparable injury this court should include his attorney’s representation to the trial court that no notice was given prior to seeking the temporary restraining order because he feared that respondent would, if given notice, seek to enjoin petitioner from proceeding in Cook County. Although the trial court may base its finding of irreparable injury upon “the moving affidavit or other evidence” we do not believe that such allegations or other unsworn testimony constitute “evidence.” Moreover, nothing in the record or in the history of the parties supports such allegation. Respondent has never in the past tried to proceed against petitioner without giving notice and, in the matter here at issue; provided him ample notice of her intent to proceed in Lake County. Furthermore, even if we were to accept the attorney’s representation to the trial court as evidence, the allegation of irreparable injury is still insufficient to dispense with the notice requirement for the reasons stated above. There is no evidence here of an emergency situation wherein the rights of one party would be prejudiced in the time required to give notice. We find, therefore that the court erred in issuing the temporary restraining order without notice.

The second issue raised is whether the court erred in granting the preliminary injunction. In support of her contention that petitioner’s motion for preliminary injunction should have been dismissed or denied, respondent argues generally that petitioner failed to plead and prove all of the prerequisites for injunctive relief. See generally Betts v. Department of Revenue (1979), 78 Ill. App. 3d 102, 396 N.E.2d 1150; McCormick v. Empire Accounts Service, Inc. (1977), 49 Ill. App. 3d 415, 417, 364 N.E.2d 420.

Petitioner’s arguments, however, center upon his contention that the circuit court of Cook County properly issued the instant injunction to protect its own jurisdiction. (See, e.g., In re Marriage of Alder (1981), 98 Ill. App. 3d 525, 424 N.E.2d 763.) He asserts that the Cook County court has exclusive jurisdiction to modify its prior custody determination or, alternatively, that even assuming concurrent jurisdiction in the Lake County court, the Cook County court retains jurisdiction under the priority principle.

Petitioner first argues that the Cook County court has continuing and exclusive jurisdiction over all post-judgment proceedings relative to custody of the Bashwiner children. In the instant case respondent’s petition for removal of the minor children from Illinois seeks to modify the custody provisions of the judgment for dissolution and settlement agreement incorporated therein. Venue for such modification is governed by section 512 of the IMDMA which provides, in pertinent part, that modification proceedings will take place as follows: “If neither party then resides in the judicial circuit wherein the judgment was entered or last modified, further proceedings shall be had in that circuit or in the judicial circuit wherein either party resides or where the respondent is actively employed; provided, however, that the court may, in its discretion, transfer matters involving a change in child custody to the judicial circuit where the minor or dependent child resides.” (Ill. Rev. Stat. 1981, ch. 40, par. 512(c).) Petitioner notes that section 512 is a venue statute and states that to determine jurisdiction reference must be made to section 601 of the IMDMA. Section 601 expressly incorporates the jurisdictional provisions contained in section 4 of the Uniform Child Custody Jurisdiction Act (UCCJA) ,(Ill. Rev. Stat. 1981, ch. 40, par. 2101 et seq.) which provides, in pertinent part, that the circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if this State is the home State of the child at the time of commencement of the proceedings. (Ill. Rev. Stat. 1983, ch. 40, par. 2104(a).) Paragraph (b) of that section states: ‘A court, once having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois.” (Ill. Rev. Stat. 1983, ch. 40, par. 2104(b).) Petitioner asserts that these sections establish exclusive jurisdiction in the circuit court of Cook County. We disagree.

When read in the context of the remaining portions of section 4 of the UCCJA, it is clear that paragraph (b) is intended to determine jurisdiction as between this State and another State, not among the circuit courts of this State. Further, it would be inconsistent to construe the statute governing jurisdiction as vesting exclusive jurisdiction in the circuit court first acquiring jurisdiction where the venue statute plainly provides that actions for modification may be brought in various other circuits.

Petitioner also relies upon Sommer v. Borovic (1977), 69 Ill. 2d 220, 370 N.E.2d 1028, for the proposition that the circuit court which rendered the original custody decree has continuing and exclusive jurisdiction over the subject of custody. Sommer, however, was decided under the former divorce act, which contained no provisions similar to section 512 of the IMDMA. In view of the plain meaning of section 512, on the facts here presented, we do not believe that Sommer mandates the outcome urged by petitioner. See Ill. Ann. Stat., ch. 40, par. 512, Historical and Practice Notes, at 786 (Smith-Hurd 1980).

Petitioner argues, alternatively, that the circuit courts of Cook County and Lake County have concurrent jurisdiction, and he contends, therefore, that the Cook County court retained jurisdiction under the priority principle and that the court properly issued the injunction to protect its jurisdiction.

On August 30,1982, petitioner had filed in Cook County an “Emergency Verified Petition for Interim Custody” in which he requested temporary and permanent custody of the minor children. On the same day the court ordered that the petition and all motions be entered and continued generally. The court has otherwise not disposed of this petition and it, therefore, remains pending. Moreover, we agree that the Lake County and the Cook County courts have concurrent jurisdiction as to the instant matter. Generally, courts have the power to enjoin the prosecution of a suit in the same court. See, e.g., Bowman v. Lake County Public Building Com. (1964), 31 Ill. 2d 575, 203 N.E.2d 129, cert. denied (1965), 382 U.S. 13,15 L. Ed. 2d 9, 86 S. Ct. 44.

“Instances in which a court of equity will enjoin the prosecution of commencement of a suit in the same court are rare, for usually there is no reason why that relief cannot be secured in the pending suit. ***
While an equity court has the power to restrain the prosecution of a suit in another court having co-ordinate powers, a due regard for the rights of co-ordinate tribunals, and a proper respect for their proceedings and records and for the security of persons interested therein, demand that its restraining power should not be exercised against the institution or prosecution of judicial proceedings in courts of co-ordinate jurisdiction, where there are no special circumstances presenting a ground or grounds for equitable relief, and where the purposes of justice do not require that the bringing of such other suits be restrained. This rule has its foundation not merely in comity, but on necessity; for if one may enjoin, the other may retort by injunction, and thus the parties be without remedy, since they are liable to a process for contempt in one if they dare to proceed in the other.” 42 Am. Jur. 2d Injunctions sec. 203 (1969).

Applying these principles to the instant case, we are led to the conclusion that under the facts and circumstances here presented the issuance of the injunction was improper, as petitioner had an adequate and more appropriate remedy. Rather than seeking injunctive relief in Cook County, petitioner could have invoked the available legal remedy by filing in Lake County a motion to dismiss pursuant to section 2 — 619(a)(3) of the Code of Civil Procedure, which provides that a defendant may file a motion for dismissal based upon the fact that “there is another action pending between the same parties for the same cause.” (Ill. Rev. Stat. 1981, ch. 110, par 2 — 619(a)(3).) Since petitioner had a legal remedy, there were no special circumstances presenting grounds for equitable relief.

The orderly administration of justice does not permit one court of this State to ignore an action pending in another court of this State (People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286, 215 N.E.2d 806), and such action can only serve to diminish respect for and public confidence in our judiciary (People ex rel. East Side Levee & Sanitary District v. Madison County Levee & Sanitary District (1973), 54 Ill. 2d 442, 445, 298 N.E.2d 177). Similarly, we believe that the same concern should prompt the exercise of extreme restraint regarding the issuance of injunctions prohibiting a party from seeking relief in a court of concurrent jurisdiction in the same State. Such injunctions should be issued only where no other remedy is available. We find, therefore, that the trial court erred in issuing the preliminary injunction.

Petitioner argues that events subsequent to the issuance of the instant injunctions have rendered this appeal moot. He states, and respondent admits, that she and the minor children are now residing in Sangamon County, Illinois. Petitioner maintains that because the circumstance which prompted the filing of the Lake County petition — petitioner’s plan to move with the children to Washington, D.C. — no longer exists, there is no existing case or controversy between the parties and the appeal must therefore be dismissed as moot.

Petitioner correctly states that where no actual controversy exists, where the issues have ceased to exist or where no actual rights or interests of the parties remain, the matter is considered moot and the courts should not address the issues raised. (First National Bank v. Kusper (1983), 98 Ill. 2d 226, 456 N.E.2d 7.) The facts here presented, however, indicate that the petition for removal is still pending in Lake County and that therefore there still exists an actual controversy between the parties. Accordingly, the issues presented herein are not moot.

For all of the foregoing reasons, we reverse the orders of the trial court.

Reversed.

SULLIVAN and LORENZ, J J., concur.

      Respondent contends that petitioner’s motion failed to conform to the requirements of section 11 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11 — 101) but the motion was filed pursuant to section 501 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.) The requirements for the issuance of temporary restraining orders without notice are, however, substantially the same under both sections. See Ill. Ann. Stat., ch. 40, par. 501, Historical and Practice Notes, at 377 (Smith-Hurd 1980).

       Justice Wilson, who participated at oral arguments, has since died. Justice Lorenz has reviewed the briefs, record and the tape of the oral arguments.


author: JUSTICE JOHNSON

text:
      In re MARRIAGE OF LORAYNE RUTH OHLSON, Petitioner-Appellee, and JOHN EDWARD OHLSON, JR., Respondent-Appellant.
    First District (4th Division)
    No. 82—3006
    Opinion filed July 19, 1984.

      Edward D. Rosenberg, Steven R. Lake, Alan J. Toback, and Mary D. Paulsen, all of Lake, Rosenberg & Associates, of Chicago, for appellant.
    Vincent C. Lopez, of Vincent C. Lopez & Associates, of Chicago, for ap-pellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This appeal is brought by respondent, John E. Ohlson, Jr., seeking reversal of a trial court order which vacated portions of a divorce judgment entered eight months earlier. The issue on appeal is whether the trial court erred in entertaining the petitioner’s second post-judgment motion and entering an order vacating certain portions of the divorce judgment.

We reverse.

Petitioner, Lorayne Ohlson, filed suit for dissolution of marriage on August 6, 1980. The parties engaged in extensive discovery, after which the matter proceeded to trial. A judgment for dissolution of marriage was entered on March 18, 1982.

Petitioner was given custody of the two minor children and respondent was given visitation rights. Respondent was ordered to pay petitioner $575 per month for maintenance and child support for three years or until petitioner remarried, after which he would pay $383 per month until the children reached the age of majority. Each party was allowed to claim one child as an exemption for Federal tax purposes. There were provisions governing the responsibility for medical expenses, life insurance and education of the minor children.

Petitioner was awarded exclusive possession of the marital residence, which was to be sold at a later date and the proceeds divided one-third to respondent and two-thirds to petitioner. Money in a savings account was divided equally between the parties. Respondent was permitted to retain sole interest in his financial research corporation. Each party retained the marital property in his possession at the time of the judgment. Petitioner was allowed to keep the 1970 Volvo automobile and respondent kept the 1974 Volkswagen.

Respondent was ordered to pay an outstanding dental bill incurred by petitioner in the amount of $895. The issue of attorney fees was reserved by the court for a later determination.

On April 19, 1982, petitioner filed a motion to vacate the judgment. That motion was continued for several months and was heard September 13, 1982. At the hearing, petitioner’s attorney of record was not present but one of his associates appeared on behalf of petitioner. Respondent was represented by counsel.

The motion to vacate was based on petitioner’s allegation that respondent had willfully concealed from the court facts regarding an inheritance of several thousand dollars from the estate of his grandaunt. After hearing testimony from both parties and the argument of counsel, the trial court denied petitioner’s motion to vacate portions of the divorce judgment and entered an order to that effect on September 17, 1982.

On October 18, 1982, within 30 days, petitioner filed a motion entitled “Motion to Reinstate Petition to Vacate Judgment.” In that motion, petitioner’s attorney of record stated that he had been unavoidably detained at another trial on September 13, 1982, which resulted in the presentation of petitioner’s motion by one of his associates who was unfamiliar with the case. The motion alleged that the respondent had not been truthful in repeatedly denying any knowledge of an. inheritance of a large sum of money from the estate of his grandaunt. The motion gave a detailed account of efforts by petitioner’s attorney which resulted in the discovery that respondent had been the distribu-tee of $33,804.50 from the estate of his grandaunt.

Respondent filed a response to petitioner’s motion to reconsider in which he asserted that petitioner’s allegations had not been proved and, further, that the issues raised had been previously determined. The motion was set for hearing on November 16, 1982.

At the hearing, counsel for both sides presented arguments. Respondent testified, as did his mother. The mother stated that she was the administrator of the estate of respondent’s grandaunt. She stated that respondent had received $38,000 from the estate, but that she had withheld knowledge of the inheritance from respondent during the pendency of his divorce proceedings because she thought it in his best interest to do so.

On November 17, 1982, the trial court entered an order vacating paragraphs 10 through 14 of the divorce judgment. The vacated portion of the judgment is as follows:

“10. The Petitioner shall have exclusive possession of the marital home located at 1516 W. Sherwin Avenue, Chicago, Illinois.
11. Exclusive possession provided in the preceeding [sic] paragraph shall terminate and the marital residence shall be placed on the market for sale within six months (6) at the highest marketable value upon the first of the following events to occur:
a. The remarriage of the Petitioner;
b. Upon the youngest living child reaching majority; or
c. Upon agreement of the parties.
12. Upon the sale of the marital residence, the net proceeds, after payment of ordinary expenses of sale and crediting the Petitioner for the reduction in the mortgage principal balance attributable solely to her payments of same from the date hereof until the date of sale, shall be divided one-third (Vs) to the Respondent and two-thirds (2/s) to the Petitioner.
13. If sale is imminent, as prescribed above, the Petitioner shall have the right of first refusal to buy out the interest of the Respondent.
14. The Petitioner is to maintain the marital home at her own expense including all costs incurred in beautifying the house or rehabilitating it. However, a repair necessary to maintain the house which exceeds Five Hundred ($500.00) Dollars shall be shared by the parties on the basis of one-third (Vs) of the obligation payable by the Respondent and two-thirds (2/s) of the obligation payable by the Petitioner.”

On appeal, respondent contends that it was error for the trial court to hear petitioner’s motion of October 18, 1982. He argues that the trial court’s order of September 17, 1982, denying petitioner’s motion to vacate portions of the divorce judgment, stripped the court of jurisdiction over the matter. Therefore, petitioner’s only recourse was to take an appeal within 30 days or to file a proper petition pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72).

Respondent further argues that petitioner’s motion of October 18, 1982, was filed without leave of court and that it failed to meet the criteria of section 2 — 1401 of the Code of Civil Procedure. He cites numerous cases in support of his arguments, relying heavily on Deckard v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900, and In re Estate of Schwarz (1965), 63 Ill. App. 2d 456, 212 N.E.2d 329.

Petitioner argues that the trial court acted properly pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1203) in considering her second post-judgment motion. She contends that the second motion, filed on October 18, 1982, could not have been filed as part of the first post-judgment motion and is therefore not repetitious. Additionally, the second motion was necessary to facilitate a hearing on the merits.

Respondent counters that the trial court erred in entertaining petitioner’s second post-judgment motion because the law of Illinois allows only one such motion. In support of his position, respondent again relies primarily on Deckard, v. Joiner (1970), 44 Ill. 2d 412, 255 N.E.2d 900, and In re Estate of Schwarz (1965), 63 Ill. App. 2d 456, 212 N.E.2d 329. Both cases held that the filing of successive post-judgment motions was improper and that the proper procedure after denial of a post-judgment motion was appeal and not the filing of a second post-judgment motion. Respondent argues that the motion filed by petitioner Ohlson on October 18, 1982, was simply a repetition of the first post-judgment motion which the court denied on September 17, 1982. Since the court had lost jurisdiction of the cause, its order of November 17 was of no effect. Additionally, respondent points out that petitioner was represented by counsel at a hearing on the first motion and cannot now seek a second chance because she is dissatisfied with the results.

Petitioner makes an alternative argument that her motion was properly considered by the trial court under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). She contends that the substance of the second post-judgment motion meets the criteria for consideration under section 2— 1401 of the Code in that the second motion contained new matters which could not possibly have been raised in the first motion. Petitioner then gives a lengthy recitation of the facts on which the second post-judgment motion is based. She concludes that the second motion clearly raises new matters and, therefore, the trial court properly exercised its equitable powers in entertaining the motion.

Respondent argues that petitioner’s motion of October 18, 1982, did not meet the criteria for consideration under section 2 — 1401 of the Code of Civil Procedure. The matters raised in the second motion either were or could have been raised in the first motion and the relief sought in the second motion was identical to that sought in the first. Furthermore, many of the facts asserted in the second motion were known to petitioner prior to trial; therefore, her delay in bringing the matter to the court’s attention showed lack of diligence.

Petitioner makes a final argument that the judgment of dissolution entered on March 18, 1982, was not a final and appealable order since the question of attorney fees was reserved for a later determination. Relying on Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)), petitioner concludes that in the absence of a specific finding by the trial judge that the judgment is final and appealable, reservation of the question of attorney fees necessarily precludes an appeal at this point.

Conversely, respondent argues that the order appealed from is final and appealable. Respondent points out that the cases cited by petitioner do not support her argument because the question here does not involve the finality of the judgment for dissolution of marriage but instead addresses whether it was proper for petitioner to file two post-judgment motions.

Initially, we address petitioner’s argument regarding the finality and appealability of the trial court’s order granting the second post-judgment motion and vacating portions of the judgment for dissolution entered on March 18,1982.

A determination is final if it disposes of the rights of the parties, either on the controversy or a part thereof, and that order is final for purposes of review where matters left for future determination are merely incidental to the ultimate rights which were adjudicated by the judgment. (Deckard v. Joiner (1970), 44 Ill. 2d 412, 417, 255 N.E.2d 900, 902-03; see also Bloom v. Landy (1979), 72 Ill. App. 3d 383, 389 N.E.2d 1286.) In the instant case, although the issue of attorney fees was reserved for later resolution, respondent makes a persuasive argument that he is not appealing from the judgment for dissolution entered on March 18, 1982, but is in fact appealing from the order of November 17, 1982, which was brought about by petitioner’s second post-judgment motion.

Once the trial court entered the order of November 17, 1982, respondent had two avenues by which to seek recourse. He had to have filed a post-judgment motion within 30 days or file a notice of appeal. We agree with respondent’s contention that since he believes that the trial court acted improperly in entertaining petitioner’s second post-judgment motion and that the order entered as a result of that motion related back to the original judgment entered on March 18, an appeal was the proper course. Had respondent not appealed, the order in question would not be challenged and, left intact, that order substantially affects the rights of the parties.

We agree with respondent’s argument that In re Marriage of Derning (1983), 117 Ill. App. 3d 620, 453 N.E.2d 90, In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137, and In re Mar riage of Cohn (1982), 93 Ill. 2d 190, 443 N.E.2d 541, relied upon by petitioner, are not dispositive of the issue and are readily distinguishable from the case at bar. Those cases did not involve the issue presented here, but, rather, questioned the finality of the judgment for dissolution itself for purposes of appeal. The question here is the propriety of the trial court’s action in entertaining and granting that second post-judgment motion filed by Lorayne Ohlson. In rejecting petitioner’s argument, we hold that the court’s order of November 18, 1982, was final and appealable.

Having determined that this court has jurisdiction of the cause, we now consider whether the trial court acted properly in considering Lorayne Ohlson’s second post-judgment motion. Section 2— 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1203), formerly section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3), provides:

“(a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.
(b) A motion filed in apt time stays enforcement of the judgment.”

The language of this section contemplates the filing of one post-judgment motion. This was done in a motion to vacate the judgment for dissolution of marriage, filed by petitioner on April 19, 1982. That motion stated that respondent had received a substantial sum of money from the estate of his late grandaunt and that he had wilfully concealed that information from the trial court. Petitioner sought to have the court reconsider the division and distribution of the marital property on the basis of what she claimed to be newly acquired information regarding respondent’s inheritance. When the trial court denied petitioner’s motion on September 17, 1982, presumably the court was well aware of the facts contained therein and of the theory upon which petitioner sought reconsideration. At that point, petitioner had exhausted her remedy under section 2 — 1203 of the Code of Civil Procedure.

There is no provision in the Code of Civil Procedure or in the rules of the supreme court which permits a losing litigant to return to the trial court indefinitely, hoping for a change of heart or a more sympathetic judge. Permitting successive post-judgment motions would tend to prolong the life of a lawsuit. There must be finality, a time when the case in the trial court is really over and the loser must appeal or give up. Successive post-judgment motions interfere with that policy. (Sears v. Sears (1981), 85 Ill. 2d 253, 259, 422 N.E.2d 610, 612.) Petitioner’s second post-judgment motion was improper and did not extend the time for appeal or renew the trial court’s jurisdiction. 85 Ill. 2d 253, 260.

When the trial court disposed of petitioner’s first post-judgment motion, she could not delay the necessity of filing a notice of appeal by filing a second post-judgment motion. (Slavick v. Michael Reese Hospital & Medical Center (1981), 92 Ill. App. 3d 161, 165, 415 N.E.2d 1060, 1062.) Any additional motions or petitions filed by Lorayne Ohlson had to conform to the requirements of section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 1401), formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72). Section 2 — 1401 allows a party to petition the trial court to reconsider a final judgment within two years of its entry, if certain specific requirements are met. A petition under section 2 — 1401 must set forth the following: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting the claim or defense in the original action; (3) lack of fraud or negligence in failing to present an error of fact or a valid claim or defense to the trial court at the time the original order was entered; and (4) due diligence in filing the petition under section 2 — 1401. (Halas v. Executor of the Estate of Halas (1983), 112 Ill. App. 3d 940, 948, 445 N.E.2d 1264, 1270.) Additionally, new matters to be brought to the court’s attention in a section 2 — 1401 petition are those facts not appearing on the record which, if known to the court at the time the judgment was entered, would have prevented its rendition. A petition brought under section 2 — 1401 cannot be used to relitigate questions previously adjudicated. Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 989, 403 N.E.2d 615, 616-17.

Lorayne Ohlson’s second post-judgment motion contained essentially the same facts which either were alleged or could have been alleged in the first motion. The record suggests that petitioner Ohlson and her attorney were generally aware of respondent Ohlson’s inheritance several months before the judgment for dissolution was enteredFurther, this information was contained in the first post-judgment motion which the court considered and denied. The second motion simply expanded and elaborated with greater specificity the facts and arguments made in the first motion. In short, the second motion raised nothing new.

We reject petitioner’s contention that her second motion was properly entertained by the trial court since her attorney of record could not attend the hearing on the first motion and sent one of his associates instead. We believe that the substance of petitioner’s theory upon which she sought vacation of certain portions of the judgment for dissolution was contained in the first post-judgment motion which the trial court denied. Therefore, the second motion did not meet the requirements for consideration under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401). We find nothing in the facts and arguments advanced by petitioner which distinguishes this case from countless others in which the courts of this State have found improper the filing of successive post-judgment motions. We hold that the trial court acted improperly in considering petitioner’s second post-judgment motion.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

Reversed.

J1GANTI and ROMITI, JJ., concur.