author: JUSTICE JONES

text:
    JAMES C. GREEN, Plaintiff-Appellee, v. ALTON TELEGRAPH PRINTING COMPANY et al., Defendants-Appellants.
    Fifth District
    No. 80-602
    Opinion filed April 7, 1982.

      Philip W. Tone, David P. Sanders, Dorothy B. Zimbrakos, and Hope R. Sheffield, all of Chicago (Jenner & Block, William Cox, and Charles D. Williamson, of counsel), for appellants.
    No brief filed for appellee.
   JUSTICE JONES

delivered the opinion of the court:

We have before us the motion of plaintiff-appellee, James C. Green (Green), to dismiss the appeal of defendants-appellants, Alton Telegraph Printing Company (Alton Telegraph), Joseph Melosi and William Lhotka.

The subject appeal is that of Alton Telegraph, Joseph Melosi and William Lhotka from a $9.2 million judgment for libel entered against them in the circuit court of Madison County. The basis of Green’s motion to dismiss the appeal is that this court lacks jurisdiction to hear the appeal because the case, including the appeal, was removed in its entirety to the United States Bankruptcy Court for the Southern District of Illinois when the Alton Telegraph filed a petition for chapter 11 relief (see 11 U.S.C. §101 et seq. (1979 Supp.)) in that court. We also consider a motion of defendant Alton Telegraph occasioned by an order of the bankruptcy court. In that order the bankruptcy court stated that it lacked jurisdiction over the appeal from the judgment of the circuit court in the instant case but that in the event any reviewing court should determine that the bankruptcy court did have such jurisdiction the cause was to be remanded to that court instanter. As a result of that order defendants maintain in this motion that Green may not question this court’s continuing jurisdiction over the appeal and have filed a motion for an order requiring Green to file his brief in this court forthwith and for an early oral argument of the case.

After due consideration we find that the entire case, including the appeal, was removed to the bankruptcy court and that the order of remand of the bankruptcy court was insufficient to revest this court with jurisdiction of the case. We accordingly dismiss the appeal and deny the motion of defendant Alton Telegraph to proceed with the appeal.

Defendants’ notice of appeal to this court was timely filed on December 16,1980, after judgment was entered for plaintiff on June 3,1980, and the post-trial motion was denied. Defendants Alton Telegraph, Melosi and Lhotka, the latter two of whom are former employees of Alton Telegraph, posted no supersedeas bond to stay enforcement of the judgment pending appeal. (See 73 Ill. 2d R. 305.) Defendant Alton Telegraph filed a motion in this court in which it stated that the enormity of the judgment against it made it a practical impossibility for it to post a supersedeas bond that would conform to the requirements of Supreme Court Rule 305. The motion asked for an order fixing a “reasonable” bond that would be realistic under the circumstances and that would serve as a supersedeas pending determination of the case on appeal. Lacking any authority under the rules or interpretative cases to grant the supersedeas relief requested, we denied the motion. The same motion was subsequently presented to our supreme court and was denied.

On April 10, 1981, defendant Alton Telegraph filed a voluntary petition for business reorganization under chapter 11 of the Bankruptcy Reform Act of 1978 (11 U.S.C. §101 et seq. (1979 Supp.)) in the Bankruptcy Court for the Southern District of Illinois, Under 11 U.S.C. §362 the petition for reorganization served as an automatic stay of any attempt by judgment creditor Green to enforce the judgment against Alton Telegraph.

On April 13, 1981, plaintiff Green commenced a supplementary judgment-enforcement proceeding against defendant Melosi by having him served with a citation to discover assets pursuant to section 73 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, eh. 110, par. 73). The record before us contains no such citation directed toward either defendants Lhotka or Alton Telegraph. On April 21, 1981, Alton Telegraph, as debtor in the bankruptcy proceeding and as a party in the libel action underlying the supplementary proceeding for enforcement of judgment, thereupon filed an “application for removal of civil action” to bankruptcy court. The petition for removal was filed pursuant to 28 U.S.C. §1478 (1981 Supp.) and Interim Bankruptcy Rule 7004. Under the provisions of that statute and that rule, removal of the case was effective upon the filing of the petition.

On May 28, 1981, Green sought to have Melosi held in contempt for failure to comply with the citation to discover assets. At the time of the filing of the petition for a finding of contempt as to Melosi, Melosi, unlike Alton Telegraph, had not filed a petition for relief with the bankruptcy court and had not joined Alton Telegraph in its April 21,1981, petition for removal. In response to the May 28, 1981, petition for a finding of contempt as to Melosi, Alton Telegraph, together with Melosi and Lhotka, applied to the bankruptcy court for a temporary restraining order enjoining Green from further enforcement proceedings in the circuit court of Madison County. On June 10, 1981, the bankruptcy court entered the temporary restraining order as requested against Green, and on October 16, 1981, it extended this order to remain in effect indefinitely.

In its October 16,1981, order the bankruptcy court found:

“9. The entire state action was removed pursuant to 28 U.S.C. §1478, and there has been no motion to sever and remand the case.”

The bankruptcy court further stated:

“The principle issue facing the Court is whether it should sever and remand a citation to discover assets directed to Joseph Melosi when the underlying debt involved in the citation to discover assets is one in which Joseph Melosi is jointly and severally liable with the debtor. In light of the facts, the Court should not make the severance and remand.
# # #
Under the facts of the present case where the judgment applicable to Joseph Melosi arises out of the same transaction as the judgment applicable to the Alton Telegraph, and there is joint and several liability, it is clear that the state court proceeding could have an effect upon the estate of the Telegraph, and, as such, the entire case should be removed.
In addition, there is no remedy, either legal or equitable, upon which James Green may avail himself that is not available in this Court. In re Brothers Coal Co., Inc., 3 C.B.C.2d 31 (W.D. Va., 1980). If Mr. Green is sincere in his effort in enforcing his judgment against the non-debtors, he may continue his action in this Court, so that this Court can be certain that the estate of the debtor is not affected.”

Green’s motion in the bankruptcy court to have Alton Telegraph’s bankruptcy petition dismissed was denied when that court found that the petition had been filed in good faith.

On October 28,1981, Green filed the motion under consideration to dismiss defendants’ appeal, asserting that removal had been effected not only as to the supplementary proceeding in the circuit court but also as to the appeal pending in this court. Defendants responded by filing objections to Green’s motion in this court and a motion in the bankruptcy court requesting that court to supplement its October 16, 1981, order by declaring that the instant appeal had not been removed to bankruptcy court. Defendants’ motion to the bankruptcy court presented the alternative request that in the event the instant appeal might be found to have been removed, the bankruptcy court remand the appeal to this court.

On January 22, 1982, the bankruptcy court entered an order which it termed “Order Supplementing Earlier Order,” the “earlier order” being that of October 16,1981. The January 22,1982, order made these findings:

“8. On or about October 16, 1981, this Court entered an order stating that the state court proceeding had been removed to this Court and that the restraining order that was issued on June 10, 1981, should remain in effect.
9. All that was removed to this Court were the supplementary proceedings that were pending in the Circuit Court of Madison County.
10. The removal of the supplementary proceedings would not have any effect on the appeal.”

The order continued with reasoning which supported the court’s conclusion that the supplemental proceeding against Melosi was all that had been removed to the bankruptcy court. The order concluded:

“IT IS ORDERED, ADJUDGED AND DECREED that the order of October 16, 1981, be clarified to state explicitly that this Court does not have jurisdiction over the appeal from the judgment of the Circuit Court in [the instant] cause.
IT IS FURTHER ORDERED that to the extent any reviewing court should determine that this Court has jurisdiction over the appeal, the cause is remanded to the state Appellate Court instanter.”

On January 29, 1982, Green filed a notice of appeal in United States District Court to challenge the validity of this order. On February 2,1982, defendants filed a motion requesting this court to proceed with the appeal on the basis of the bankruptcy court’s January 22, 1982, order.

To rule on the motions before us we must first determine whether the bankruptcy court could exercise jurisdiction over the entire case, including both the supplementary enforcement proceeding against defendant Melosi and the appeal which was filed in this court. Defendants point out that their application to remove the supplementary proceeding from the circuit court was filed after this court acquired jurisdiction over the appeal by virtue of the filing of the notice of appeal. Under Interim Bankruptcy Rule 7004, removal of an action to bankruptcy court becomes effective immediately upon the filing of the application. Defendants contend that removal was effected only as to the supplementary enforcement proceeding then pending before the circuit court and that jurisdiction of the appeal remains in this court. Their argument is premised upon the special removal statute applicable to bankruptcy cases, which allows for partial removal of “any claim or cause of action” to bankruptcy court. See 28 U.S.C. § 1478(a) (1981 Supp.).

The statute governing removal to bankruptcy court, 28 U.S.C. §1478(a) (1981 Supp.) provides in pertinent part:

“A party may remove any claim or cause of action in a civil action * * * to the bankruptcy court for the district where such civil action is pending, if the bankruptcy courts have jurisdiction over such claim or cause of action.” (Emphasis added.)

There seems to be little question that the bankruptcy court can have jurisdiction over both the instant appeal and the supplementary proceeding to enforce the judgment under 28 U.S.C. §1471 (1981 Supp.) which grants bankruptcy courts broad and complete jurisdiction over all proceedings that arise in connection with bankruptcy cases. Subsection (c) of that section provides:

“The bankruptcy court for the district in which a case under title 11 is commenced shall exercise all of the jurisdiction conferred by this section on the district courts.” (28 U.S.C. § 1471(c) (1981 Supp.).)

Subsection (b) grants district courts

“original but not exclusive jurisdiction of all civil proceedings arising under title 11 or arising in or related to cases under title 11.” (Emphasis added.) 28 U.S.C. §1471(b) (1981 Supp.).

Subsection (b) has been interpreted as allowing bankruptcy courts to try “virtually any civil case” so long as the relationship test is met. (In re Straughn (Bkrtcy. D. Del. 1980), 10 B.R. 28; see In re Brothers Coal Co. (Bkrtcy. W.D. Va. 1980), 6 B.R. 567; see also H.R. Rep. No. 95-959, 95th Cong., 2d Sess. 4, reprinted in [1978] U.S. Code Cong. & Ad. News. 5963, 6010.) For example, in In re U.S. Air Duct Corp. (Bkrtcy. N.D. N.Y. 1981), 8 B.R. 848, the bankruptcy court found that it had jurisdiction of a State court proceeding to determine what liability a debtor corporation had for employee benefits under a collective bargaining agreement because that proceeding encompassed “claims in the nature of unsecured debts against the Debtor.” The court stated:

“The fundamental question of relation to a case under the Bankruptcy Code is whether the determination of the claims against the Non-Debtor will or will not effect [sic] the Debtor’s assets and/or liabilities as they existed at the date of the petition and its bankruptcy schedules. The criterion to be adopted in such a situation will undoubtedly be related to a determination of whether the outcome of the proceeding could conceivably have any effect upon the estate being administered in bankruptcy.” 8 B.R. 848, 851.

It is evident that the libel judgment in this case and its enforcement could potentially affect Alton Telegraph’s estate in bankruptcy. The bankruptcy court has noted that the libel judgment is listed by Alton Telegraph as its “largest unsecured creditor,” and that

"* * * the debtor, the Alton Telegraph, is an ongoing and viable business that would not be involved in a Chapter 11 bankruptcy if it were not for the libel judgment obtained by Green, as well as other very substantial libel claims currently pending against it * * *. [I]n light of the judgment held by Green, as well as the other pending libel and defamation claims, the Alton Telegraph is not in sound financial shape at the present time, and is eligible for relief under the Code * * *. If the judgment obtained by Green falls on appeal, the other libel cases may be rendered moot. In light of these facts, it becomes clear that the debtor was forced into filing a Chapter 11 bankruptcy petition in order to preserve its status as an ongoing concern and protect its employees and its creditors while the claims against it are litigated.”

Thus, the test of “relation to” seems to be met in this case as it was in In re Johnson, Inc. (Bkrtcy. N.D. Ohio 1981), 11 B.R. 805, where the bankruptcy court found that it had jurisdiction over both an appeal pending in the Michigan court system and a suit in Ohio circuit court to enforce the judgment. The court there stated:

“[I]n determining the validity of the judgment, under Michigan law, which this Court is quite able to do, there will also be a determination under federal law of the validity and priority of the alleged claims against the Debtor’s real property, personal property, and stock ownership, all of which are essential to the success of the Chapter 11 reorganization.” (11 B.R. 805, 807.)

Since the instant appeal involves a claim in the nature of an unsecured debt against the debtor Alton Telegraph, its determination appears to be well within the jurisdiction of the bankruptcy court under section 1471.

We turn now to the further question of whether removal was effected as to the entire case, including the appeal, or only as to the supplementary proceeding for enforcement of judgment in the circuit court. We find that the supplementary proceeding in question does not constitute a severable “claim or cause of action” within the meaning of 28 U.S.C. § 1478(a) (1981 Supp.) and conclude that, by virtue of defendant’s removal application, the whole case was removed to bankruptcy court which, as we have already established, could have jurisdiction of it. We think, too, that this is the express finding of the bankruptcy court in its order of October 16, 1981, despite the contradictory expression found in the supplemental order of January 22, 1982.

Partial removal of an action to bankruptcy court is provided for in 28 U.S.C. § 1478(a) (1981 Supp.), which, unlike the provision governing removal from State court to Federal district court (28 U.S.C. §1441 (1973)), does not require that the entire action be removed but allows removal of “any claim or cause of action” if a party so elects. (See 1 Collier on Bankruptcy par. 3.01, at 3 — 62 through 3 — 71 (15th ed. 1980).) The crucial question is whether the section 73 enforcement proceeding involved comes within the meaning of a “claim or cause of action” which could be severed from the substantive appeal and removed alone.

There has been little case law interpreting the “claim or cause of action” language of section 1478(a). We believe, however, that an analogy can be made to section 1441(c) which contains similar language. That section provides:

“Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed * * *." (Emphasis added.) (28 U.S.C. § 1441(c) (1973).)

Under section 1441(c), when a plaintiff sues to enforce two or more distinct rights or to redress their invasion, he has as many causes of action. (See American Fire & Casualty Co. v. Finn (1951), 341 U.S. 6, 95 L. Ed. 702, 71 S. Ct. 534.) Furthermore, if one claim or cause of action would be removable if sued upon alone but is joined with one or more otherwise nonremovable claims, the entire action is removable. Collier, in his work on bankruptcy cited above, proposes a similar test for determining removability under section 1478(a):

“The court should look to the precedents under section 1441(c) to determine whether, had the action been pending in state court, it could have been removed to federal district court because one of the causes of action was a ‘separate and independent claim or cause of action’. If the answer is affirmative, then that claim or cause of action may be removed, leaving behind the remaining claims or causes of action, if the parties to the proceeding so elect.” Collier, at 3 — 70.

Keeping in mind this analogy to removal under section 1441(c), we must consider the nature of enforcement proceedings under section 73 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 73). As a general rule, in Illinois a judgment for a sum certain in money is “a good cause of action” that evidences an indebtedness upon which a new action for debt may lie. (Industrial National Bank v. Shalin (1947), 330 Ill. App. 498, 72 N.E.2d 52; see 23A Ill. L. & Prac. Judgments §511 (1979).) Rather than bring a new action to enforce his judgment, however, a judgment creditor may avail himself of the summary procedure provided by section 73 and Supreme Court Rule 277 (73 Ill. 2d R. 277) in order to obtain satisfaction of the judgment. This proceeding is “supplementary” to the main judgment, being “captioned in the cause in which the judgment was entered.” (73 Ill. 2d R. 277(c)(1).) If the main judgment fails on appeal, the right to collect in such proceedings must also fail. Alsen v. Stoner (1969), 114 Ill. App. 2d 216, 252 N.E.2d 488.

It is settled that proceedings which are supplemental or incidental to another action are not subject to removal under section 1441. (Overman v. Overman (E.D. Tenn. 1976), 412 F. Supp. 411.) The Overman court, in holding that a Tennessee garnishment statute created a supplementary action, quoted the following rule:

“ ‘Where garnishment proceedings are first instituted after rendition of judgment, in aid of execution, the garnishee’s right to remove depends upon whether the garnishment action is an independent suit, since for removal purposes an action must be independent, not supplementary. [1A Moore’s Federal Practice 428 (1974)].’ ” (412 F. Supp. 411, 412.)

The section 73 proceeding in question here, like the garnishment proceeding in Overman, is “an ancillary proceeding because it must be based upon a valid, unsatisfied judgment * * *." (412 F. Supp. 411, 412.) “ ‘[It] is not a distinct suit, but is an incidental proceeding in the original cause for the purpose of obtaining satisfaction of a subsisting judgment against the defendant.’ ” (412 F. Supp. 411, 412.) A citation under section 73 does not constitute a separate “claim or cause of action.” Rather, it is a discovery proceeding whereby a creditor is allowed “to examine any person with the view of discovering assets or income to be applied to the satisfaction of a judgment.” (Fischer v. Kellenberger (1979), 73 Ill. App. 3d 550, 553, 392 N.E.2d 733, 735.) Since the supplementary proceeding does not constitute a “separate and independent cause of action which would be removable if sued upon alone” for purposes of section 1441(c), it follows by analogy that it could not be severed from the appeal in this case and removed to bankruptcy court alone pursuant to section 1478(a).

In light of our finding that the supplementary proceeding could not be removed to bankruptcy court alone, it is necessary to determine whether Alton Telegraph’s removal application was effective to remove the whole case, including the appeal then pending in this court, to bankruptcy court. Alton Telegraph points out that at the time the April 21, 1981, application was filed, seeking removal of the suit “brought before the circuit court,” the circuit court had lost jurisdiction over the merits of the case because its notice of appeal to this court had been filed. However, this is not determinative since, as the court stated in In re Tidwell (Bkrtcy. N.D. Tex. 1980), 4 B.R. 100, 101:

“The bankruptcy removal statute, 28 U.S.C. §1478, is a federal statute and federal law governs its interpretation. State procedural provisions cannot control removal privileges granted by federal statute. [Citation.]”

The Tidwell court rejected defendants’ argument in that case that at the time removal was effected no jurisdiction existed to authorize removal because the trial court had rendered judgment.

Alton Telegraph’s application for removal indicates that removal was effected as to the whole case, as it refers to the case of James Green v. Alton Telegraph Printing Company, a Corporation, Joseph Melosi and William Lhotka, No. 77-L-66, which is the caption for both the substantive libel action, on appeal, and the supplementary proceeding to discover assets. The application does not describe the supplementary proceeding against Melosi, nor is the citation to discover assets attached to the application. Rather, the cause to be removed is described as that which “seeks money damages against the debtor,” and a complaint and answer in the original action are attached to the removal application. Because an appeal is not a new and separate proceeding but is rather a “continuation of the [trial court] proceeding” (73 Ill. 2d R. 301; see Swain v. Hoberg (1942), 380 Ill. 442, 44 N.E.2d 38), Alton Telegraph’s application was effective to remove the appeal as well as the supplementary proceeding to bankruptcy court. Cf. In re Johnson, where a removal application concerning claims pending in circuit court was sufficient to effect removal as to an appeal instituted in State court prior to removal.

The parties’ actions in seeking removal and subsequent rulings by the bankruptcy court lend support to our conclusion that the entire case was removed to bankruptcy court. Although Alton Telegraph was not a party to the supplementary enforcement proceeding which was directed against Melosi alone, it was allowed to remove the action due to its status as a “party” in the underlying libel action. (Under section 1478(a), only a “party” may remove a claim or cause of action to bankruptcy court.) The bankruptcy court accordingly noted in its order of October 16, 1981, that the “entire state action was removed” and refused to remand the citation directed to Melosi alone on the basis that the claims against Alton Telegraph and the individual defendants were so interrelated that severance would not be equitable. We believe this demonstrates the overall inclusiveness of the action not only as to Alton Telegraph and the individual defendants but also as to the libel judgment on appeal and the enforcement proceeding in circuit court. By virtue of Alton Telegraph’s application as petitioner in bankruptcy court, the entire action, and not just the portion directed toward an individual defendant, was removed to bankruptcy court.

In their motion to proceed with the appeal in this court, defendants rely upon the bankruptcy court’s January 22, 1982, supplemental order in which it found that only the supplementary proceeding was removed to that court and that the removal of the supplementary proceeding had no effect on the appeal. As outlined above, our analysis of the applicable removal statute leads us to a contrary conclusion. However, in ruling on the motions before us, it is necessary to consider the second part of the bankruptcy court’s supplemental order of January 22, 1982, in which it states that “to the extent any reviewing court should determine that this Court has jurisdiction over the appeal, the cause is remanded to the State Appellate court instanter.”

The power of the bankruptcy court to remand part of a case which has been removed to it is governed by 28 U.S.C. § 1478(b) (1981 Supp.), which states in pertinent part:

“The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground.” (Emphasis added.)

Subsection 1478(b), like the section governing partial removal to bankruptcy court which precedes it (see 28 U.S.C. §1478(a) (1981 Supp.)), contains the “claim or cause of action” requirement. Because the appeal cannot be severed and, therefore, remanded alone, we find the bankruptcy court’s order to be ineffective to revest this court with jurisdiction over the appeal.

The bankruptcy court cannot remand the case piecemeal. This case involves no severable “claim or cause of action.” Therefore, the entire case, including the supplementary proceeding and the original judgment, must be remanded before this court can be revested with jurisdiction over the appeal. Without remandment of the judgment, the appellate court cannot acquire jurisdiction to proceed since it is the judgment that forms the basis and the subject matter of the appeal. If the judgment is not in this court, this court cannot hear the case.

We note in conclusion that an opposite holding to that we have reached would allow the defendant in this case to subvert the procedural rules governing the enforcement of judgments pending appeal in Illinois, as Alton Telegraph bluntly admits it has endeavored to do.

Under Supreme Court Rule 305 (73 Ill. 2d R. 305), an appellant may obtain a stay of enforcement of the judgment against him by posting a bond with the court to secure the appellee during pendency of the appeal. Defendants state in their brief that due to the enormity of the judgment against them, they were unable to post an appeal bond and that Alton Telegraph filed the petition in bankruptcy court “as the sole remaining means of preserving its assets and business while pursuing its right to appeal.” Both this court and the supreme court found it necessary to deny Alton Telegraph’s request that an exception be made to the supersedeas bond requirements of Supreme Court Rule 305. Alton Telegraph then sought the protection of the bankruptcy court. Although Alton Telegraph’s petition for reorganization pursuant to section 11 undoubtedly had the desired effect of staying enforcement against Alton Telegraph due to the automatic stay provision of 11 U.S.C. §362, Alton Telegraph also sought removal of the action to bankruptcy court. The logical result of defendants’ argument that only the enforcement proceeding against Melosi was removed is that judgment would be stayed as to Melosi despite the fact that he neither complied with the bond requirements of Supreme Court Rule 305 nor qualified for the automatic stay under section 362 of title 11 U.S.C. Defendants would thus be able to continue litigating in this court while preventing Green from enforcing his judgment as he is entitled to do absent a stay under Supreme Court Rule 305 or section 362 of title 11 U.S.C. Defendants have sought the protection of the bankruptcy court by removing their action to that court and have accepted the benefits of removal. By doing so they have given up their right to continue with the appeal in this court.

Because the administration of Alton Telegraph’s estate in bankruptcy court is dependent upon whether the libel judgment obtained by Green is allowed to stand, it is evident that the ultimate determination of the matter will have to be made by the bankruptcy court rather than by this court. The situation here is similar to that in In re Johnson, where the bankruptcy court, in considering whether to remand a case which had been removed to its jurisdiction, stated:

“The issue * * * is currently in the [State appellate courts] * * * and a decision has not yet been rendered. It is quite possible that a further appeal may be made to the Supreme Court of [that State] and whatever remands might be issued could further require that this case be retried in the State Court of original jurisdiction. After that resolution, the question as to dischargeability of the claim * * * could then be brought before this Court for determination, which possibly would result in a retrial of the entire matter. [Citation.]
Since it is one of the purposes of the Bankruptcy Code to effectuate a prompt rehabilitation of the debtor-in-possession in a Chapter 11, it could require an inordinately long time for the case to wait for the determination of the [question at issue in the State court proceeding]. This passage of time would be in direct contravention to the spirit of the Act and would, in effect, make the Chapter 11 proceeding unavailable to the Debtor, thus depriving it of its rightful use of the Bankruptcy Code.” (11 B.R. 805, 807.)

Our holding that the entire action was removed to bankruptcy court will likewise further the goal of providing expeditious relief for the debtor in bankruptcy. (See In re Hurt (Bkrtcy. N.D. Ga. 1981), 9 B.R. 749.) Because jurisdiction of the appeal has been removed to bankruptcy court, we accordingly grant plaintiff Green’s motion to dismiss the appeal for lack of jurisdiction in this court.

Appeal dismissed from this court.

KASSERMAN and PEARMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    JOHN LEE WINTER, Ex’r of the Estate of Ted Winter, Deceased, Plaintiff-Appellant, v. SCHNEIDER TANK LINES, INC., et al., Defendants-Appellees. — JOHN LEE WINTER, Ex’r of the Estate of Joan Winter, Deceased, Plaintiff-Appellant, v. SCHNEIDER TANK LINES, INC., et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 81-1391, 81-1472 cons.
    Opinion filed May 21, 1982.
    Rehearing denied August 12,1982.

      Jack Ring, Ltd., of Chicago (Jack Ring and Richard L. Wattling, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hob an & Fuller, of Chicago (D. Kendall Griffith, John G. Langhenry, and Stanley J. Davidson, of counsel), for appellees.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court;

These are consolidated appeals from orders of the trial court dismissing count II in each second amended complaint seeking to recover punitive damages under sections 1 and 2 of the Illinois Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1, 2) (the Act) and entering judgment for defendants. Plaintiff contends that the Act permits recovery of punitive damages.

The second amended complaints, asking for compensatory and punitive damages, alleged in substance that decedents Ted and Joan Winter were passengers in an auto which was stopped at an intersection in obedience to a traffic signal; that defendant Heissler was driving a truck tractor and tank trailer owned and operated by defendant Schneider Tank Lines, Inc.; and that defendants’ vehicle collided with the rear of the auto, killing Ted and Joan Winter.

Thereafter, the trial court granted defendants’ motion to dismiss count II, which sought punitive damages under the Act and, pursuant to Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), found no just reason for delay of enforcement or appeal.

Opinion

It is the contention of plaintiff that prior to 1853, when the present Illinois Wrongful Death Act was enacted, there existed in this State a common law right of action for wrongful death which permitted recovery of both compensatory and punitive damages, and that the Act, instead of proscribing punitive damages, was remedial in nature and designed to make the purported common law right more effective. It is on this reasoning that plaintiff seeks to recover punitive damages — not on the basis of a common law right of action for wrongful death, but under the Act itself. Furthermore, he maintains that Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509, the one case generally regarded as controlling on the question of the availability of punitive damages under the Act, did not pass upon the question and, in any event, that Mattyasovszky was rendered inapplicable by National Bank of Bloomington v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919. Additionally, plaintiff argues that other decisions standing for the proposition that punitive damages are not recoverable under the Act are dictum or have been overruled.

Consideration of the case law and the legislative intent concerning the availability of punitive damages in wrongful death actions compels us to reject plaintiff’s contention. Even if the right to such recovery is of common law origin and despite the questionable antecedents of the doctrine that there is no common law action for wrongful death (see Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58, 382 N.E.2d 784), all Illinois cases which have decided the question since the inception of the Act preclude recovery of punitive damages either under the Act or at common law (see Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509; Conant v. Griffin (1868), 48 Ill. 410; Howe v. Clark Equipment Co. (1982), 104 Ill. App. 3d 45, 432 N.E.2d 621; Gardner v. Geraghty (1981), 98 Ill. App. 3d 10, 423 N.E.2d 1321; Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906; Baird v. Chicago, Burlington & Quincy R.R. Co. (1973), 11 Ill. App. 3d 264, 296 N.E.2d 365, appeal after remand (1975), 32 Ill. App. 3d 1, 334 N.E.2d 920, aff'd (1976), 63 Ill. 2d 463, 349 N.E.2d 413; also see In re Aircrash Disaster (7th Cir. 1981), 644 F.2d 594, cert. denied (1981), 454 U.S. 878, 70 L. Ed. 2d 187, 102 S. Ct. 358). Recovery is instead measured by pecuniary loss based upon dependency. Graul v. Adrian (1965), 32 Ill. 2d 345, 205 N.E.2d 444; Saunders v. Schultz (1960), 20 Ill. 2d 301, 170 N.E.2d 163.

Plaintiff also raises a question of statutory construction in arguing that when the Act was enacted it was remedial legislation rather than in derogation of the common law, so that rules of liberal construction apply. While it is correct that remedial legislation must be liberally construed (Zehender & Factor, Inc. v. Murphy (1944), 386 Ill. 258, 53 N.E.2d 944; Board of Education v. Pacific National Fire Insurance Co. (1958), 19 Ill. App. 2d 290, 153 N.E.2d 498), we need not determine whether the Act is remedial in nature or in derogation of the common law. In our view, this question is resolved by the fundamental rule of statutory construction that courts must examine the language of the statute in order to determine its plain and ordinary meaning and thereby effectuate legislative intent. (Totten v. State Board of Elections (1980), 79 Ill. 2d 288, 403 N.E.2d 225; Franzese v. Trinko (1977), 66 Ill. 2d 136, 361 N.E.2d 585.) In accordance with that principle, we think the language of the Act is clear and unambiguous and that it does not warrant the award of punitive damages.

Legislative intent is further evidenced by subsequent treatment of the Act. On three recent occasions, amendments to the Act which could have allowed recovery of punitive damages have been rejected (H.B. 3364, 81st General Assembly, 2d Session (1981); H.B. 785, 81st General Assembly, 1st Session (1979); H.B. 1648, 80th General Assembly, 1st and 2d Sessions (1977-1978)), and a fourth attempt seeking the same amendment is pending (H.B. 398, 82nd General Assembly (1981)). Had the legislature intended the Act to provide for punitive damages, a clear expression of such intent would be necessary. (See People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180; General Motors Corp. v. Industrial Com. (1975), 62 Ill. 2d 106, 338 N.E.2d 561.) We note, parenthetically, that strict construction generally is not the antithesis of liberal construction but simply means that a statute should be confined to such objects or applications as are obviously within its terms and purposes. (Du Bois v. Gibbons (1954), 2 Ill. 2d 392, 118 N.E.2d 295; City of Elmhurst v. Buettgen (1946), 394 Ill. 248, 68 N.E.2d 278.) We think it to be apparent that the legislature determined that the purposes of the Act would be fulfilled without making punitive damages recoverable. To hold otherwise would be to improperly declare that the legislature intended something which the plain language of the statute does not import. See Franzese v. Trinko (1977), 66 Ill. 2d 136, 361 N.E.2d 585.

We also think it clear that contrary to plaintiff’s contention, National Bank of Bloomington v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919, does not render Mattyasovszky inapplicable. In National Bank, plaintiff had alleged in count IV of its complaint that decedent sustained serious injuries, requiring hospitalization and medical services before he died, and that decedent was conscious for seven days between his injury and death. In permitting recovery of compensatory and punitive damages under section 73 of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 77), the court stated:

“Defendant’s contention actually combines two distinct propositions: first, that section 73 of the Public Utilities Act does not create a cause of action in a personal representative for compensatory and punitive damages for the wrongful death of decedent, and, second, that the Act does not create a cause of action in a personal representative for compensatory and punitive damages for the predeath injuries to the decedent. We need not address the first proposition since, in count I, plaintiff-administrator recovered damages for the death of decedent under the Wrongful Death Act, and since, in count IV, plaintiff-administrator does not seek damages for wrongful death. As to the second proposition, however, we hold that plaintiff-administrator may recover compensatory and punitive damages under the Public Utilities Act on the basis of the injuries decedent sustained prior to his death.” (73 Ill. 2d 160, 170, 383 N.E.2d 919, 922-23.)

The award of punitive damages was thus based upon injuries suffered prior to death and was not affected by the subsequent death of the injured person. Furthermore, while the court in National Bank stated that its “decision in [Mattyasovszky] does nothing to abate the defendant’s statutory liability for punitive damages upon the death of the injured person” (73 Ill. 2d 160, 173, 383 N.E.2d 919, 924), we note that plaintiff here does not seek a remedy under any other statute (see, e.g., Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 383 N.E.2d 929; Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 308 N.E.2d 583; Saunders v. Schultz (1960), 20 Ill. 2d 301, 170 N.E.2d 163). Moreover, as we read National Bank, plaintiff’s use of the term “statutory liability” was limited in its reference to the Public Utilities Act.

As stated above, the court in National Bank found that punitive damages were recoverable under the Public Utilities Act on the basis of the injuries suffered prior to death, but it did not hold that they were obtainable under the Wrongful Death Act. Furthermore, it seems clear that Mattyasovszky did endorse the general principle precluding the right to recover punitive damages in wrongful death actions. This is evidence both from its reasoning and from its affirmance, without comment on that question of law, of the decision of the appellate court holding that punitive damages were not recoverable under the Act. (Mattyasovszky v. West Towns Bus Co. (1974), 21 Ill. App. 3d 46, 53, 313 N.E.2d 496, 501.) We conclude, therefore, that Mattyasovszky and National Bank are not inconsistent on this question.

Assuming, arguendo, that Mattyasovszky is not controlling precedent and that, as argued by plaintiff, Conant v. Griffin (1868), 48 Ill. 410, is dictum as to the rule against punitive damages in wrongful death actions (see Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 38-39, 330 N.E.2d 509, 513 (Goldenhersh, J., dissenting)), we note that in Gardner v. Geraghty (1981), 98 Ill. App. 3d 10, 423 N.E.2d 1321, the court held that punitive damages were not recoverable under the Wrongful Death Act, and we discern no compelling differences between the present case and others so holding (see Howe v. Clark Equipment Company (1982), 104 Ill. App. 3d 45, 432 N.E.2d 621; Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906; Mattyasovszky v. West Towns Bus Co. (1974), 21 Ill. App. 3d 46, 313 N.E.2d 496; Baird v. Chicago, Burlington & Quincy R.R. Co. (1973), 11 Ill. App. 3d 264, 296 N.E.2d 365, appeal after remand (1975), 32 Ill. App. 3d 1, 334 N.E.2d 920, aff'd (1976), 63 Ill. 2d 463, 349 N.E.2d 413). We find those decisions persuasive and, accordingly, we reject the contention of plaintiffs here that punitive damages are recoverable under the Wrongful Death Act.

It should be noted that in National Bank of Bloomington v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919, the supreme court held that punitive damages authorized by a statute are recoverable under the Survival Act (Ill. Rev. Stat. 1979, ch. 110/2, par. 27 — 6) but that, in the instant case, we were concerned only with whether punitive damages were recoverable under the Wrongful Death Act. We were not presented with, nor have we resolved in this opinion, the question which appears to have been left in the wake of National Bank of Bloomington as to whether punitive damages are recoverable in a common law action under the Survival Act.

For the reasons stated, we affirm the trial court’s dismissal of count II of the second amended complaints.

Affirmed.

LORENZ and MEJDA, JJ., concur.

       Count I, which remains pending in the trial court, seeks only compensatory damages.

        Cf. the Public Utilities Act, a statute designed to promote public safety by public utilities, in which section 73 (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 77) provides in relevant part: “In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, the public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment.” (Emphasis added.)


author: JUSTICE MEJDA

text:
      In re MARRIAGE OF STEVEN L. BASHWINER, Petitioner-Appellee, and ARDEN J. BASHWINER, Respondent-Appellant.
    First District (5th Division)
    No. 81-848
    Opinion filed June 18, 1982.
    Rehearing denied August 4, 1982.

      Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Miles N. Beermann and Howard A. London, of counsel), for appellant.
    Friedman & Koven, of Chicago (Robert J. Rubin and Rebecca Block, of counsel), for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Steven L. Bashwiner filed a verified petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) to vacate a marital settlement agreement (agreement) entered into with Arden J. Bashwiner and those parts of the judgment dissolving their marriage which incorporated the agreement. After a bench trial the court found that the agreement was procured by fraud and vacated the provisions of the judgment pertaining to maintenance, property, custody, child support and attorney fees. Arden appeals from the court’s order granting petitioner’s section 72 petition.

Arden raises three issues on appeal: (1) whether the trial court improperly permitted Steven to testify to the contents of certain correspondence addressed to Arden; (2) whether the trial court improperly permitted Steven to testify to a statement made by his daughter; and (3) whether the trial court’s ruling is against the manifest weight of the evidence.

On July 24, 1980, the trial court entered a judgment of dissolution of marriage incorporating a marital settlement agreement entered into by Arden and Steven. The agreement provided that Arden would have custody of the couple’s two children and that Steven would be entitled to reasonable visitation. The agreement further specified that Steven was to pay unallocated family support to Arden. Although these payments were not to be reduced in the event Arden remarried, they were to be systematically and substantially reduced from 1980 through 1984, the initial four years of payment, as follows: August 1, 1980, through December 1980, $3,325 per month; January 1981, $3,375; February 1981 through July 1981, $2,500 per month; August 1981 to July 31, 1982, $2,084 per month; August 1, 1982, to July 31, 1984, $1,666 per month. Commencing August 1, 1984, Steven was required to pay $1,333 per month until the death, emancipation or marriage of his daughter and $667 per month thereafter until the death, emancipation or marriage of his son, at which time he was no longer required to make any payments to Arden. The agreement further provided that the family support payments were to be deductible to Steven and taxable to Arden whether or not she remarried, and called for a 50% reduction in the total amount of payments required to the extent the payments were treated as nondeductible to Steven by the Internal Revenue Service.

On September 30, 1980, Steven filed a verified section 72 petition to vacate the marital settlement agreement and declare void those portions of the judgment of dissolution of marriage incorporating the settlement agreement on the grounds that both the agreement and the judgment had been procured by Arden’s fraud upon him and upon the court. The petition alleged in pertinent part that at all times during the negotiations leading to the settlement agreement, and at the time of signing the agreement and the entry of judgment, Arden had the present intention to marry James Lewis and remove the couple’s children to Washington, D.C.; that she actively concealed her intentions and plans from Steven; and further that had Steven known of Arden’s intention to marry Lewis and remove their children to Washington, D.C., he would not have signed the agreement or consented to the judgment of dissolution, but would have contested various provisions and vigorously sought custody of the children. Arden filed a verified answer denying the substantive allegations of the petition. She affirmatively alleged that she did not decide to marry Lewis until some time after the execution of the settlement agreement.

The following evidence was adduced at the hearing convened pursuant to Steven’s section 72 petition. Arden first met Lewis in 1964. He proposed marriage to her in 1966 but she rejected that proposal. She married Steven that same year. Two children were born of the marriage, Heather in 1972, and David in 1975. In September 1979 Arden began law school. On February 7, 1979, Steven filed a petition for dissolution of marriage which sought custody of the two children. Arden filed a response thereto and a counterpetition for dissolution of marriage. Subsequently, both parties engaged in settlement negotiations through their respective attorneys. In February 1980, a year after she filed her counterpetition for dissolution of marriage, Arden wrote to Lewis who resided in Washington, D.C. She explained that she planned to visit her brother who lived in Washington, D.C. While there she wished to discuss legal opportunities with Lewis. Lewis later telephoned her and during her March 1980 trip to Washington, D.C., Arden visited with Lewis. She told Lewis that she was interested in moving to Washington, D.C. Subsequent to her trip to Washington, D.C., Lewis flew to Chicago to visit her for a weekend in April, one weekend in May, and the first full weekend in June, staying at her home on each occasion. During this time period Lewis and Arden spoke with each other by telephone at least once every week. At this time Steven found out from the children that Arden was dating a Washington, D.C., attorney named Jim Smith and that he was her boyfriend. Steven did not learn that Jim Smith was actually Jim Lewis until later.

Following the June 13, 1980, prove-up on the grounds for dissolution of their marriage, Arden handed Steven a list of provisions she felt should be incorporated into any settlement agreement, including a request that Steven pay for private schooling for the children, provisions for alternate visitation should Arden and the children move from Illinois, and a statement that Arden would not agree to Seek court approval before removing the children from Illinois. Arden testified that in telephone conversations regarding these proposals, she told Steven she was not planning to remarry but that he could not create a “disincentive” for remarriage in the settlement agreement. She further testified that Steven told her that he knew that she was dating a Washington, D.C., attorney and might want to move there and marry him. Steven rejected Arden’s proposals. Steven, however, denied having any discussion with Arden regarding her boyfriend until September 8, 1980.

Lewis again flew to Chicago to visit Arden during the weekends of June 20-22, the Fourth of July, and July 11-13. Arden did not sleep with Lewis until June 1980.

On July 14, 1980, Steven and Arden appeared before the trial court for an evidentiary hearing on the issues of custody, maintenance, support and division of the marital and nonmarital property. During the final negotiations Arden again sought to include in the agreement an alternate visitation provision should the children be removed from Illinois. Steven flatly rejected the proposal, refusing to put anything in the agreement suggesting that the children could be moved away. Additionally, Steven’s attorney testified that on that date Arden’s attorney objected to a provision in the latest draft of the agreement calling for a reduction of support if Arden remarried, indicating that he wanted to insure enough money for Arden to complete her legal education. Arden’s attorney testified that both Steven and his attorney were present when one or the other indicated that they were sure Arden was going to remarry. After lengthy negotiations, agreement between the parties was reached. Arden signed the agreement on July 17, 1980.

On July 18, 1980, Arden flew to Washington, D.C. and stayed with Lewis for 10 days. On July 24, 1980, the trial court entered judgment dissolving the marriage which incorporated the agreement reached on July 14.

On August 22, 1980, Lewis asked Arden to marry him. On September 1,1980, Steven first heard from his daughter Heather that Arden intended to marry and move with the children to Washington, D.C. Heather also informed her father at that time that the name of the man whom her mother intended to marry was Jim Lewis and not Jim Smith. Arden confirmed that news to Steven on September 8, 1980. Steven filed his section 72 petition three weeks later.

On October 3, 1980, Steven went to his former marital residence to pick up his children. He was admitted by a maid. Steven testified that while in Arden’s bedroom looking for a barrette for Heather’s hair, he opened Arden’s nightstand drawer and removed a letter and a Snoopy-gram. Steven was allowed to testify to the contents of the correspondence over Arden’s objection. The letter was signed “All my love, Jimmy” and its return address was “Captain James Smith,” Washington, D.C. The Snoopygram stated, “I have been through a custody fight with Connie in the 70’s and I know how tough it can be, but we’ll do it together” and “We blew it in the 60’s. We can’t blow it in the 80’s.”

In contrast, Arden testified that although she received a letter and a “Snoopygram” from Lewis, they were not in her home on October 3, 1980, as she had disposed of them in August during housecleaning. Arden further testified that the letter was simply signed “Jim” and the Snoopy-gram “Cap’n.” Following the evidentiary hearing the trial court entered an order finding that the settlement agreement was procured by fraud in the inducement and vacating those portions of the judgment incorporating the terms of the agreement. Arden appeals.

Opinion

As Arden has raised the issue of whether the trial court’s order was against the manifest weight of the evidence, we first consider the propriety of certain evidentiary rulings made by the court and challenged by Arden on appeal. Arden asserts that the trial court erred in allowing Steven to testify as to the contents of a letter and a “Snoopygram” which he read after removing them from a nightstand in Arden’s bedroom. Arden first contends that this testimony should have been excluded because it was obtained in violation of her Federal constitutional right to privacy.

Arden grounds her privacy claim on the ninth and fourteenth amendments contending that the court’s use of the evidence during trial constitutes the State action necessary for a fourteenth amendment claim. She cites no case law directly supporting her theory. We find no merit in this contention. Arguably there are two constitutional privacy interests with which such testimony might interfere: the individual interest in avoiding disclosure of personal matters (Whalen v. Roe (1977), 429 U.S. 589, 51 L. Ed. 2d 64, 97 S. Ct. 869; Nixon v. Administrator of General Services (1977), 433 U.S. 425, 53 L. Ed. 2d 867, 97 S. Ct. 2777) and the individual’s right to be secure in her person, house, papers and effects from unreasonable searches and seizures. (Mapp v. Ohio (1961), 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1634.) Here, however, neither interest has been transgressed. These letters reveal nothing of a sensitive nature about Arden nor do they constitute privileged communications. (Whalen v. Roe.) While Arden has a legitimate expectation of privacy in her personal communications, that expectation cannot be considered in the abstract (Nixon) and cannot prevail here in light of the court’s need for access to all available competent and relevant evidence to facilitate the truth-seeking process. Nor has Arden’s right to be secure in her papers been violated as that constitutional protection applies only against governmental action. (Burdeau v. McDowell (1921), 256 U.S. 465, 65 L. Ed. 1048, 41 S. Ct. 574.) Therefore we conclude that Arden’s Federal constitutional right to privacy has not been violated by the use of the evidence at trial. (See Honeycutt v. Aetna Insurance Co. (7th Cir. 1975), 510 F.2d 340.) Similarly we find no merit to her argument that her common law right to privacy or article I, section 12 of the Illinois Constitution requires the exclusion of this evidence.

Arden further claims that Steven’s testimony regarding her correspondence with Jim Lewis was irrelevant and should have been excluded on that basis. Evidence is considered relevant if it tends to prove a fact in controversy or renders a matter in issue more or less probable. (Marut v. Costello (1966), 34 Ill. 2d 125, 214 N.E.2d 768.) Arden argues that this evidence was irrelevant because it was only probative of Jim Lewis’ state of mind and not hers. However, this evidence was probative of the nature of Arden’s relationship with Lewis, a factor bearing directly on whether Arden planned to marry Lewis prior to the execution of the settlement agreement, one of the central issues in this case. As such, the evidence was relevant.

Arden next contends that the court erred in allowing Steven to testify to the substance of a telephone conversation with his daughter Heather on September 1,1980, during which Heather told him that "* * * Mommy is marrying Jimmy and we are moving to Washington, D.C. and his name is Jim Lewis, not Jim Smith.” Arden argues that this testimony was irrelevant. We disagree. This testimony was probative of when Steven first learned of Arden’s plans to marry and move to Washington, D.C., and hence was relevant. For this same reason it was not hearsay, as it was not offered for the truth of the matter asserted therein, i.e., that Arden was in fact marrying Jim Lewis and moving. (People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738.) Therefore, we find no error in these evidentiary rulings.

Finally, Arden contends that the court’s finding of fraud in the inducement of the settlement agreement was against the manifest weight of the evidence because Steven did not prove each of the essential elements of fraud by clear and convincing evidence.

A judgment of dissolution of marriage may be vacated or modified if procured through fraud. (Roth v. Roth (1970), 45 Ill. 2d 19, 256 N.E.2d 838.) Fraud has been defined as an intentional misstatement or concealment of a material fact made for the purpose of inducing the other party to act. (Roth; Lagen v. Lagen (1973), 14 Ill. App. 3d 74, 302 N.E.2d 201; Garmisa v. Garmisa (1972), 4 Ill. App. 3d 411, 280 N.E.2d 444.) One test of materiality in cases of alleged fraud requires that the party would have acted differently if he had known the true or undisclosed fact. (Semmens v. Semmens (1979), 77 Ill. App. 3d 936, 396 N.E.2d 1282.) The intention to remarry or to move out of State by one of two divorcing spouses has been held to be a material fact when knowledge of it would have influenced the disposition of property, support or custody. (Roth; Harris v. Harris (1977), 45 Ill. App. 3d 820, 360 N.E.2d 113; Zieske v. Zieske (1976), 41 Ill. App. 3d 746, 354 N.E.2d 513; Deahl v. Deahl (1973), 13 Ill. App. 3d 150, 300 N.E.2d 497.) The misstatement or concealment the intention to remarry or move would not be in itself sufficient, however, to constitute fraud. (See Roth; Harris; Zieske; Deahl.) To prove fraud the complaining party must not only show that the other party falsely stated a material fact or concealed a material fact that he had a duty to disclose but also that the fact was intentionally misstated or concealed to induce the complaining party to act and that the complaining party detrimentally relied upon the misstatement or the nonexistence of the fact. (Roth; Lagen.) The burden of proving fraud is on the complaining party who must prove it by clear and convincing evidence. In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 429 N.E.2d 867; Lagen.

There are three misrepresented or concealed facts upon which Steven predicated his claim of fraud: Arden’s misrepresentation of her intention to remarry; her concealment of her intention to move; and her concealment of the identity of her fiance. The trial court found that Arden had concealed her intention to remarry and that Steven detrimentally relied upon that concealment. However, we find that Steven could not have detrimentally relied upon the concealment of this fact, for as the trial court acknowledged in its concluding remarks, the settlement agreement itself contemplated the possibility of Arden’s remarriage, and Steven testified that prior to signing the agreement he read it and understood its terms. The trial court also found that Arden concealed her intention to move to Washington, D.C., and that Steven relied upon this concealment. We conclude, however, that the record does not support this finding of reliance because before the execution of the settlement agreement Steven knew that Arden was contemplating moving out of the State at some time. In fact, he testified that she had asked in writing to include a provision for alternate visitation in the agreement should she and the children move out of Illinois. The request stated it was “for [his] safety to spell it out now.” He testified that she told him that she wanted to go wherever her career would take her and that should she move she would want to modify visitation. He further testified that, in response to her discussion of moving to Washington or New York, he asked that a provision be included that she would not attempt to remove the children without his consent or leave of court. She refused. Thus, the record shows that while Arden may not have strictly apprised Steven of her plans to move, she certainly apprised him that she was considering the possibility. We do not think Steven can now complain in light of Arden’s expressed interest in moving that had he known she was planning to move he would not have signed the agreement.

The final factor that Steven claimed Arden concealed was the identity of her fiance. While in certain cases the identity of the custodial parent’s fiance might be material to the issue of custody, Steven has failed to show the materiality of this factor here.

Thus, we conclude that the trial court’s finding of fraud is against the manifest weight of the evidence, and we accordingly reverse the trial court’s order vacating certain provisions of the judgment of dissolution of marriage.

Reversed.

SULLIVAN, P. J., and WILSON, J, concur.


author: PRESIDING JUSTICE WHITE

text:
    BERNARD ALLEN FRIED, Plaintiff-Appellant, v. WALTER JACOBSON et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80-1793
    Opinion filed June 23, 1982.
    Rehearing denied August 4, 1982.

      Bernard Allen Fried, of Chicago, pro se (Robert A. Korenkiewicz, of counsel), for appellant.
    Reuben & Proctor, of Chicago (Don H. Reuben, Lawrence Gunnels, and Samuel Fifer, of counsel), for appellees.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Bernard Allen Fried (plaintiff-appellant), an Illinois attorney, was mentioned by name in a series of news reports, broadcast over television station WBBM during the period of February 7, 1977, through February 11, 1977, and on March 28, 1977, and December 20, 1977. He brought this action in the circuit court of Cook County against Columbia Broadcasting System, Inc., WBBM-TV CBS Television Station, a division of Columbia Broadcasting System, Inc., Walter Jacobson, Susan Anderson, and William Kurtis, to recover damages for allegedly defamatory statements, composed, uttered and published by the defendants as part of the serialized news reports. All of the defendants joined in a motion for judgment on the pleadings, which the trial court granted holding (a) that the broadcasts were capable of an innocent construction and are nonactionable as a matter of law, and (b) that the broadcasts do not constitute a libel per se of the plaintiff in his capacity as an attorney. From the final judgment for all defendants on the pleadings, Fried appeals.

“An action based upon libel per se requires a serious charge of incapacity or misconduct in words so obviously and naturally hurtful that proof of their injurious character is dispensed with.” (Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 456, 395 N.E.2d 1185.) There are four categories of words which constitute libel per se. They are: (1) those imputing the commission of a crime, (2) those imputing infection with a loathsome disease, (3) those imputing unfitness or want of integrity in performing the duties of an office or employment, and (4) those imputing lack of ability in his business, trade or profession. Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 456; Brack v. Cincotta (1977), 56 Ill. App. 3d 260, 264, 371 N.E.2d 874.

The parties agree that in order to determine whether defendant’s statements were libelous, all of the complained of broadcasts should be considered in their entirety. Fried argues that the broadcasts charge him with want of integrity as a lawyer or at the very least lack of capacity. We find neither. Nowhere is there language which expressly evaluates Fried’s capacity as a lawyer or his ethics. In this, the instant case is distinguishable from Colmar v. Greater Niles Township Publishing Corp. (1957), 13 Ill. App. 2d 267, 272, 141 N.E.2d 652, where the plaintiff was described as facing “ ‘possible disbarrment proceedings for unethical tactics.’ ” A similar distinction can be drawn with respect to McGuire v. Jankiewicz (1972), 8 Ill. App. 3d 319, 290 N.E.2d 675, where defendant told a third party he could not have chosen a worse attorney than plaintiff.

There being no express statement evaluating Fried’s abilities or integrity as a lawyer, we proceed to examine the acts alleged to determine if these acts impute to Fried a want of integrity or ability. In making this examination we are guided by the rule of innocent construction which requires that a publication be read as a whole, that words be given their natural and obvious meaning, and that words allegedly libelous that are capable of being read innocently must be so read and declared non-actionable as a matter of law. John v. Tribune Co. (1962), 24 Ill. 2d 437, 442, 181 N.E.2d 105, cert. denied (1962), 371 U.S. 877, 9 L. Ed. 114, 83 S. Ct. 148; Hambric v. Field Enterprises, Inc. (1964), 46 Ill. App. 2d 355, 358, 196 N.E.2d 489.

In sum, the earlier of the broadcasts said: that the station’s Fact Finding Unit had uncovered a scheme, a sham, and a swindle involving millions of dollars of unpaid property taxes, some churches and some slumlords; that the scandal involves buildings donated as gifts to churches in transactions handled by an enterprising lawyer who turned them into profit for himself; and that some properties end up being owned not only by the church but also by the lawyer, whose name is Bernard Allen Fried. The broadcasts described a transaction in which property donated to the First Church of Deliverance at Fried’s suggestion ended up being sold by Fried’s realty company. He was said to be in housing court once or twice a week for building violations on these properties. Saying Fried did those things does not say that he is unskilled or dishonest in dealing with his clients. This is true even without resort to the rule of innocent construction.

The broadcasts continued with these statements: that Fried, for many years a lawyer for the First Church of Deliverance, suggested that the church set up the Community Redemption Corporation to handle property it acquired; that church officials are listed as the officers of the corporation, and Ralph Goodpasteur, who is listed as the corporation’s president, was contacted and did not even remember he was affiliated with the company; that Reverend Cobbs, the pastor of the church, is on vacation in Mexico, and when reached through an intermediary, claimed he was not aware Community Redemption held any property; that church officials deny signing any deeds, but investigation has found Community Redemption was involved in 66 real estate deals in just a two-year period; that if church officials didn’t sign their names on the documents, who did? That the Fact Finder Unit did not know, but every deed was prepared by Bernard Allen Fried; that of the 66 deals, 27 properties were sold; and that the church says it never saw any of the money, so where did it go? To report that church officials when questioned by TV station investigators denied knowledge of transactions and denied any connection with the corporation under investigation does not say Fried was incompetent or dishonest; in fact, it says nothing about him at all except that he prepared the deeds.

The broadcasts described the fate of buildings Fried arranged to be donated to the church. “Often these properties are run into the ground, repairs are not done and property taxes are not paid. We have no evidence church officials know what’s happening with Community Redemption, but wittingly or unwittingly, the First Church of Deliverance is a slumlord.” A lawyer’s duties to his client are numerous, but to say Fried’s client is a slumlord does not say that Fried fell short in performing those duties. Nor does the fact that the client owes property taxes. Defendants refer us to the recent appellate court decision in Rasky v. Columbia Broadcasting System, Inc. (1981), 103 Ill. App. 3d 577, 431 N.E.2d 1055. That case held that the term slumlord, as used in the publications in that case, is susceptible of an innocent construction. We need not reach this question because Fried’s client, not Fried, is accused of being a slumlord.

Finally, it was stated that based on the reports contained in the broadcasts the County Treasurer and State’s Attorney will investigate the real estate deals, that the State’s Attorney will file 35 suits for back taxes, that the Internal Revenue Service is considering legal action against Fried, and that 32 suits were filed by the State’s Attorney against Fried and his companies. These statements that investigations have or will be begun or that lawsuits have been filed are not libelous. (Homestead Realty Co. v. Stack (1978), 57 Ill. App. 3d 575, 373 N.E.2d 429.) In Homestead the court observed that to state that a lawsuit involving racial steering was filed against plaintiff did not accuse plaintiff of racial steering. A statement that legal action was being considered against plaintiff or that it may have been actually commenced is not tantamount to an accusation of crime. The decision in Reed v. Albanese (1966), 78 Ill. App. 2d 53, 223 N.E.2d 419, is also instructive on this point. In Reed, plaintiff, an attorney, claimed libel from a news story which carried the headline “Reed Jailed for Housing Violations” and reported that the plaintiff had been found guilty of housing violations. The court affirmed summary judgment for defendant, finding that the news story did not constitute libel per se, notwithstanding the fact that the news story charged Reed with actually having been jailed, and held:

“The violations did not involve moral turpitude and were not infamous crimes nor indictable offenses.” (Emphasis added.) (78 Ill. App. 2d 53, 60.)

The purely regulatory offense of failing to conform property to housing code requirements and the purely civil liability which attaches from a judgment that delinquent property taxes must be paid are not the types of legal infractions which involve moral turpitude. Clearly, a suggestion that Fried’s activities are being investigated for such regulatory offenses but which stops short of directly accusing him of any culpability is a fortiori nonactionable.

We conclude that the circuit court did not err in granting defendants’ motion for judgment on the pleadings because the broadcasts were not libelous per se. Accordingly, the judgment of that court is affirmed.

Affirmed.

McNAMARA and RIZZI, JJ., concur.


author: JUSTICE McGLOON

text:
    ELLEN GEORGE, Plaintiff and Respondent-Appellee, v. CHICAGO TRANSIT AUTHORITY, Defendant.—(ROBERT F. LISCO et al., Petitioners-Appellants.)
    First District (1st Division)
    No. 81-594
    Opinion filed June 28, 1982.

      Robert F. Lisco, of Lisco and Field, and Sidney Z. Karasik, both of Chicago (Catherine L. Grahn, of counsel), for appellants.
    James A. Stamos and Robert J. Prendergast, both of Stamos & Chapekis, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Petitioners appeal from a judgment of the circuit court awarding attorney fees. On appeal, petitioners contend (1) they are entitled to a contractual portion of the amount set aside for attorney fees; (2) they were denied an evidentiary hearing; and (3) the award was inadequate and against the manifest weight of the evidence.

We affirm in part, reverse in part, and remand.

Ellen George filed an action against the Chicago Transit Authority (CTA) for damages for injuries sustained in an elevated train accident which occurred on January 9, 1976. She initially retained the law firm in which petitioner Forrest is a partner and signed a contingent fee agreement. Pursuant to a provision in the agreement, petitioner Lisco was retained to act as trial counsel.

On October 22, 1976, George advised Forrest by letter that he was discharged and that she was retaining new counsel. Her new attorney was granted leave to file an appearance on November 8,1976. On December 10, 1976, the trial court entered an order striking the appearances of petitioners, yet granted Lisco leave to represent George in any appeal or trial regarding the issue of punitive damages.

An appeal did in fact arise from an order denying the CTA’s motion to dismiss the punitive damage count of the complaint. The appellate court reversed this order and the punitive damage count was stricken. Lisco defended the appeal and also filed a petition for leave to appeal to the Illinois Supreme Court which was denied.

The CTA ultimately settled the case with George on November 20, 1980. $200,000 of the settlement was set aside for attorney fees. On November 24,1980, George’s attorney filed a petition requesting the court to adjudicate the issue of fees due Lisco and Forrest. The trial court determined these fees on a quantum meruit basis and awarded petitioners $17,500 in fees and $381.35 in costs.

Petitioners first contend the trial court erred in awarding fees on the basis of quantum meruit. They maintain that the continued representation of plaintiff in the appeal and the order of the court permitting them to do so indicate that George did not discharge them. Thus, they contend fees should have been recovered pursuant to the retainer agreement.

However, we find no error in the trial court’s awarding fees on a quantum meruit basis. The record includes George’s letter to petitioners unequivocally discharging them as her attorneys and indicating her desire to retain another firm to represent her. Ellen George clearly had an implied in law right to discharge them at any time with or without cause. (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969.) After discharge, petitioners were limited to reasonable fees for services rendered and were not entitled to recover contract or retainer fees from their former client. Rhoades; In re Marriage of Reczek (1981), 95 Ill. App. 3d 220, 420 N.E.2d 161.

A different conclusion is not warranted by Lisco’s representation of George in the prior appeal regarding the issue of punitive damages. In her letter discharging her former attorneys, she clearly indicated her intent to retain a different firm. Additionally, the court struck the appearances of her former attorneys and limited the scope of their representation to one issue only. After the discharge, no new contract for services was executed, and petitioners do not allege the existence of one. Thus it is clear that the original contract was, at the very least, drastically modified and recovery of fees could not be had under its terms. The only available alternative was to award fees on a quantum meruit basis for the reasonable value of services performed.

Second, petitioners contend the trial court erred in denying an evidentiary hearing on the competing claims for attorney fees. On December 17, 1980, Lisco requested a hearing in the event the trial court awarded fees on a quantum meruit basis. However, the court denied the request because the matter had already been continued and settlement payments were to begin in January 1981. Petitioners contend that by denying their request for a hearing, the trial court precluded them from presenting evidence on the value and extent of their services.

Petitioners were entitled to fair compensation for the reasonable value of services performed. (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969; Johnson v. Long (1973), 15 Ill. App. 3d 506, 305 N.E.2d 30.) In determining the reasonable value of professional services, the following factors should have been considered:

“ '* * * skill and standing of the attorney employed; the nature of the cause and the novelty and difficulty of the questions at issue; the amount and importance of the subject matter; the degree of responsibility involved in the management of the cause; the time and labor required; the usual and customary charge in the community; and the benefits resulting to the client. [Citations.] Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 711, 355 N.E.2d 86, 90.” Laff v. Chapman Performance Products, Inc. (1978), 63 Ill. App. 3d 297, 307, 379 N.E.2d 773, 781.

The record indicates that the trial court considered only some of these factors. In denying an evidentiary hearing, petitioners were precluded from calling witnesses on their behalf and presenting time sheets and other facts upon which to base a reasonable fee. We believe petitioners should have been given a full and fair opportunity to prove the amount of work performed by them in the case.

Finally, we note that petitioners’ request for a hearing was made at the most practicable time, namely when it was realized that fees were to be awarded on a quantum meruit basis. Moreover, a slight delay in determining this issue would not have jeopardized payments to Ellen George under the settlement agreement. Separate funds were set aside for attorney fees and George’s attorney did not object to placing these funds in escrow until a final adjudication on the issue of fees.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part, reversed in part, and the cause is remanded for further proceedings on the issue of fees.

Judgment affirmed in part, reversed in part; cause remanded.

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


author: PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. QUINTEN SMITH, Defendant-Appellant.
    First District (1st Division)
    No. 81-656
    Opinion filed June 28, 1982.
    James J. Doherty, Public Defender, of Chicago (Timothy K. McMorrow, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro and Barbara A. Levin, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant Quinten Smith was convicted by a jury of two counts of murder and two counts of armed robbery and was sentenced to concurrent terms of 60 years for each murder and 20 years for each armed robbery. Defendant raises the following issues on appeal: (1) whether the trial court erred in refusing to excuse a juror where the juror prior to trial expessed an opinion that defendant should receive a severe penalty if convicted; and (2) whether the trial court erred in refusing a tendered jury instruction concerning an “afterthought” robbery.

For the reasons set forth herein, we affirm.

Since defendant does not contend that the evidence did not establish his guilt beyond a reasonable doubt, it is not necessary to set forth the evidence in detail.

Following voir dire and the impanelling of the jury, a juror approached the trial judge and informed him that in the event that defendant was found guilty, the juror believed that defendant should receive a serious penalty. The court then conducted further voir dire of this juror in chambers with the assistant State’s Attorney and defense counsel present. The juror indicated to the court that he did not have an opinion as to the guilt or innocence of defendant. The court further determined that the juror would keep a fair and open mind as to the guilt or innocence. The juror stated his belief that “the coat of justice should be enforced. And the person; in the event that he is found guilty, that the appropriate penalty be levied.” The court stated that it did not believe that defendant had made the requisite showing for dismissal of the juror for cause and denied defendant’s request to dismiss the juror.

The evidence disclosed that on June 28,1979, while on routine patrol, Officer Therston McClendon of the Chicago Police Department was “flagged down” by a pedestrian. McClendon followed the pedestrian approximately 150 feet to Sullivan’s Car Wash where he discovered the bodies of William Lankland and Robert Harrison. McClendon stated that the cash register was open and coins were scattered on the floor.

Melvin Sullivan, the owner of the car wash, stated that Lankland had been employed at the car wash for approximately 25 years and that he was the business’ night watchman. Sullivan testified that Harrison had been employed for approximately two years. He testified that his automobile and approximately $300 were taken. Sullivan stated that defendant had been employed at the car wash for two years. Sullivan identified a hat which was recovered from his automobile as the hat worn by defendant on June 28.

Officer Chester Ciotuszynski stated that at approximately 3:50 a.m. on July 1, 1979, he stopped a vehicle which was being operated without headlights and a broken windshield. The witness stated that he ascertained that the vehicle was wanted in connection with a homicide and that he arrested the driver and passenger. It was determined that the vehicle was owned by Melvin Sullivan.

Investigator John Doty stated that he arrested defendant at his apartment on July 1, 1979. Doty stated that defendant had made two statements concerning the events of June 28. In the first statement, defendant told Doty that he had worked at the car wash on June 28 and that he returned in the evening to retrieve a jacket which he had left at the car wash. Defendant discovered that William Lankland was alone and he decided to rob the car wash. Defendant hit Lankland and then broke a window in the cashier’s cage. He told Doty that he then took Sullivan’s vehicle and left the car wash. In the second statement, defendant told an assistant State’s Attorney that he was speaking with Lankland at the car wash when Robert Hilliard entered to use the washroom. Robert Harrison then entered and Harrison and defendant began to argue. Defendant then picked up a tire jack and told Harrison to “stop messing with me.” Harrison then struck defendant in the chest and defendant hit Harrison with the tire jack. Hilliard, who had returned from the washroom, took the tire jack from defendant and hit Lankland in the head several times. On cross-examination, Doty stated that in the second statement, defendant stated that there was no prior plan to rob the car wash and it was only after Hilliard struck Lankland that he and Hilliard decided to commit the robbery and take Sullivan’s automobile. On redirect examination, Doty stated that he was told by defendant that he and Hilliard intended to rob the car wash before anything had occurred.

The State also presented other witnesses to corroborate the testimony of its witnesses. The jury also heard testimony concerning the recovery of physical evidence, including fingerprint identification. The jury found defendant guilty of two counts of murder and two counts of armed robbery. The court sentenced defendant to extended terms of 60 years for each of the murders and terms of 20 years for each of the armed robbery counts. All sentences were concurrent.

Defendant argues that the trial court erred in denying his request to dismiss a juror where the juror stated to the court that defendant should be severely punished if convicted. Defendant contends that this indicates that the juror had a preconceived opinion as to his guilt, thereby denying defendant his right to trial by an impartial jury. (See People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.) Defendant argues that the fact that the juror voluntarily approached the court prior to hearing any evidence strongly suggests the bias of the juror.

The determination of whether to permit a challenge for cause rests within the sound discretion of the trial court. (People v. Hyche (1979), 77 Ill. 2d 229, 396 N.E.2d 6.) Under the facts presented in the instant case, we do not believe that it was an abuse of discretion to permit the juror to remain on the panel. The trial judge conducted additional voir dire of the juror. The court determined that the juror did not have any preconceived opinion as to defendant’s guilt or innocence and that the juror’s concern was that if defendant was found guilty, that he receive a severe sentence. The court informed the juror that sentencing was solely the concern of the court and that the juror need only be concerned with listening to the evidence and arriving at a verdict thereon. Finally, the trial judge instructed the juror not to communicate to the other jurors any of the events or conversations concerning defendant’s challenge to the juror. There is no persuasive or convincing evidence that the juror was biased or prejudiced against defendant and, accordingly, we hold that the trial court did not err in denying defendant’s challenge to the juror. See People v. Hyche.

Defendant contends that the trial court erred in refusing a defense-tendered instruction that defendant was not guilty of armed robbery if the taking of property was an afterthought and not connected with the use of force. Defendant argues that it was an abuse of discretion by the court to refuse to give to the jury a non-Illinois Pattern Jury Instruction (hereinafter IPI) where such refusal resulted in the jury not being instructed on a defense theory which was based upon some evidence. (See People v. Hines (1975), 28 Ill. App. 3d 976, 329 N.E.2d 903.) Defendant maintains that in order to be convicted of robbery, there must be a relationship between the use of force and the taking of property. (People v. King (1979), 67 Ill. App. 3d 754, 384 N.E.2d 1013.) Defendant argues that if property is taken as an afterthought to the use of force, there is no robbery. People v. Pack (1976), 34 Ill. App. 3d 894, 341 N.E.2d 4.

We are not persuaded that the trial court committed error by its refusal to read to the jury a non-IPI instruction concerning the taking of property as an afterthought. A non-IPI instruction should only be given on matters where an IPI instruction does not adequately state the law. (See People v. Haywood (1980), 82 Ill. 2d 540, 413 N.E.2d 410.) IPI Criminal Nos. 14.01 and 14.02 (1968) were given to the jury. These two instructions clearly indicate that the taking of property is to be accompanied by the use of force if the jury is to find defendant guilty of armed robbery. We view an instruction pertaining to the taking of property as an afterthought to be duplicative of IPI Criminal Nos. 14.01 and 14.02 and, therefore, unnecessary. In addition, we note that the trial court did not believe that there was any evidence which indicated that the robbery was an afterthought. Accordingly, we hold that the trial court did not abuse its discretion in refusing to give to the jury a non-IPI instruction concerning the taking of robbery as an afterthought to the use of force. See People v. Larson (1980), 82 Ill. App. 3d 129, 402 N.E.2d 732.

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

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ., concur.