author: JUSTICE GOLDBERG

text:
    EDWARD PARSONS, Plenary Guardian-Appellant, v. ESTATE OF CATHERINE WAMBAUGH, Respondent-Appellee.
    First District (1st Division)
    No. 81—2974
    Opinion filed November 8, 1982.

      Daniel G. Lever, of Chicago, for appellant.
    Joseph L. Mack, of Chicago, for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

After a complete hearing, the trial court disallowed expenditures of $5,880.75 presented in the “Second Current Account” of Edward Parsons (defendant), acting as plenary-guardian of Catherine Warnbaugh (ward). In addition, the court assessed a surcharge of $20,100 against defendant. Defendant appeals.

The ward was found physically and mentally incapable of handling her affairs. On October 18, 1974, defendant was appointed conservator of the person and estate of the ward. The principal asset of the estate was a home which had been owned in joint tenancy by the ward and her deceased son. The ward was also the sole beneficiary of her son’s estate. At the time of the son’s death in 1974, the ward was living in a rehabilitation center or nursing home. She continued to live there throughout the period of this litigation. Thus the home owned by the ward had been vacant since the death of the son.

In 1976, a dispute arose between defendant and the gas company involving a bill which defendant charged was exorbitant. Defendant refused to make payment. In March of 1976, apparently without notice, the gas company disconnected the gas from the property. This resulted in frozen pipes, general flooding, and considerable damage to the property. In addition, although the record is not definite in this regard, there is testimony that the premises were damaged on three separate occasions by freezing of water in the toilet bowl. Defendant himself testified “the gas was shut off from time to time.”

Defendant hired a “remodeling contractor” to repair the damaged property. This person testified he had never been licensed by the city of Chicago or any other governmental agency. From the record, it appears an attempted renovation was largely completed by January of 1977, though incidental repairs were carried on during the next two years. In defendant’s “Second Current Account” he reported total expenditures to this contractor of $11,076.10 for “repair and maintenance of the realty.” The property remained vacant until it was sold in July 1981 for $52,000.

On September 20, 1980, a creditor of the ward’s estate petitioned the court to remove defendant as conservator. Defendant submitted his “Second Current Account” mentioned previously, and the court appointed a guardian ad litem for the ward. The guardian ad litem challenged a portion of the payments to the contractor because of alleged lack of verification and duplicated work. Also the guardian ad litem argued the defendant should be surcharged for allowing the property to remain vacant from 1974 through July of 1981.

A qualified appraiser testified he inspected the property on August 5, 1981. He found the condition of the interior was “poor.” He estimated the fair market value of the property to be $54,520. However, he also estimated it would cost $4,000 to “cure” the then current defects of the property. The appraiser also testified the fair market rental value of the property from 1974 to 1981, was an average of $300 a month, assuming the property to be in good condition. He estimated the rental value of the property for the period it was vacant, six years and nine months, to be $24,300.

The trial court disallowed $5,880.75 of the $11,076.10 paid by defendant to the contractor because various payments were not verified by vouchers. The court also assessed a surcharge of $20,100 against defendant for failing to rent or attempt to rent the property. This sum was computed at $300 per month commencing only from January 1,1976, through July 31,1981.

The relationship between a guardian and his ward is fiduciary as a matter of law. (See Carey Electric Contracting, Inc. v. First National Bank (1979), 74 Ill. App. 3d 233, 392 N.E.2d 759.) The relationship between guardian and ward is equivalent to that between a trustee and a beneficiary. (Lewis v. Hill (1944), 387 Ill. 542, 545, 56 N.E.2d 619; Nonnast v. Northern Trust Co. (1940), 374 Ill. 248, 261, 29 N.E.2d 251.) Thus, in the instant case, the defendant as guardian had the duty to manage the ward’s property with the same degree of vigilance, diligence and prudence as a reasonable man would use in managing his own property. (Reinhold v. Lingbeek (1943), 321 Ill. App. 119, 125, 52 N.E.2d 294, appeal denied (1944), 385 Ill. 630.) The Supreme Court of Illinois has specifically held for years that the duty of a guardian includes the renting of the ward’s property if that property would otherwise remain unused. Clark v. Burnside (1853), 15 Ill. 62, 64; see also Field v. Herrick (1881), 101 Ill. 110, 114; Condit & Liebenow, Management of Estates of Minors and Incompetents, 1951 U. Ill. L.F. 268, 285.

We believe the record contains ample evidence to support the finding of the trial court that defendant breached his fiduciary duty by failing to lease or even attempting to lease the property for more than six and a half years after he became conservator of the estate. We reject defendant’s argument that the premises were unrentable and unsaleable for the entire period. First, the trial court noted, it believed the initial damage to the property was a result of oversight on the part of defendant. Second, even accepting that defendant was in no way responsible for the initial damage, we believe the length of time in which the property was being repaired to be completely unreasonable. We find it virtually impossible to believe that a reasonably prudent man would allow his potential income-producing property to remain fallow for over six years. Once the damage had been sustained, the repairs should have been completed with greater dispatch so that income could have been realized from rentals or the property could have been sold on an advantageous basis.

Regarding the disallowance of the various payments for repairs, a guardian should generally apply to the court for authorization for large expenditures. (Leon v. Leon (1894), 56 Ill. App. 153.) “Unauthorized acts by a guardian or conservator, even if done in good faith are done at his own risk.” (Condit & Liebenow, Management of Estates of Minors and Incompetents, 1951 U. Ill. L.F. 268, 292.) The pertinent statute provides that the court may require specific proof to verify specific payments:

“***. The account shall state the receipts and disbursements of the representative since his last accounting and all personal estate which is on hand, and shall be accompanied by such evidence of the disbursements as the court may require. ***.” Ill. Rev. Stat. 1981, ch. lKWz, par. 24 — 11(a).

In Nonnast, the supreme court disallowed various payments reported by the conservator. The court held:

“We have already held that where claims are paid by a personal representative without filing, proof or allowance, the burden is on him to justify such payment. Here, the record shows no proof whatsoever as to the validity of the sundry items of indebtedness *** detailed above.” 374 Ill. 248, 269.

In his brief and in oral argument, the defendant urges that the trial court followed unsworn statements of opinion and recommendations by the guardian ad litem who presently represents the estate. We reject this contention. The record before us shows that the case was properly tried and the trial judge heard this matter with complete impartiality. Actually, the guardian ad litem a qualified attorney, acted properly in presenting to the trial court the theory of the case advanced in behalf of the estate.

The trial court observed all of the witnesses, heard their testimony and examined all the bills, receipts, and cancelled checks presented by defendant. Of the $11,076.10 reported spent by the guardian for repairs to the property, the trial court allowed $5,195.35 and disallowed $5,880.75. Clearly, the trial court examined each disputed payment and determined whether there was sufficient proof of validity. Furthermore, the determination by the trial court as to the validity of the various expenditures was based, at least in part, on its perception of the credibility of the witnesses. Even if these parties had dealt at arm’s length without the fiduciary element, we would not disturb the findings of the trial court unless they were manifestly against the weight of the evidence. (Brown v. Commercial National Bank (1969), 42 Ill. 2d 365, 371, 247 N.E.2d 894, cert. denied (1969), 396 U.S. 961, 24 L. Ed. 2d 425, 90 S. Ct. 436.) Thus we are impelled to conclude the decision by the trial court is fair and proper and the judgment should be affirmed.

For these reasons, the judgment appealed from is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    CHICAGO TRANSIT AUTHORITY, Plaintiff-Appellant, v. YELLOW CAB COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    No. 81—3178
    Opinion filed November 5, 1982.

      John 0. Demaret, of Chicago (David A. Belofsky, of counsel), for appellant.
    Jesmer and Harris, of Chicago (Lawrence P. Seiwert and Charles E. Tannen, of counsel), for appellees.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiff appeals from dismissal of its action to recover workers’ compensation benefits paid to its employee for injuries allegedly caused by defendants’ negligence. It contends that the trial court (1) improperly held that, as a matter of law, a general release barred a subrogation action brought by an employer under the Illinois Workers’ Compensation Act; and (2) erred in ruling that the subrogation action was within the contemplation of the parties when they executed the settlement agreement.

Plaintiff filed a complaint pursuant to section 5(b) of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b)) seeking recovery of payments made under the Act to its employee who was injured during the course of his employment. It alleged that it had compensated its employee in the amount of $580.25, as required by the Act, and that the negligence of defendants was the proximate cause of his injuries. Defendants moved to dismiss, pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48) on the ground that plaintiff had executed a full release of all its claims against defendants arising out of the occurrence described in the complaint. The release, a copy of which was attached, provided in pertinent part that in consideration of the sum of $159.22 paid by Yellow Cab Co., plaintiff did “RELEASE and forever discharge YELLOW CAB COMPANY, its officers, agents, employees, successors and assigns from all claims and demands whatsoever in law or equity, I ever had, now have, or hereafter may have *** by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the signing of this RELEASE.” After a hearing, the motion to dismiss was granted on the basis that plaintiff released its claim, and this appeal followed.

Opinion

We first consider plaintiff’s contention that the general release it signed did not bar its subrogation claim. Initially, it argues that the Act does not create a separate and distinct cause of action in favor of the employer but merely gives the employer the opportunity to enforce the employee’s rights against a third-party tortfeasor; therefore, since the employer never has a cause of action, it can never relinquish it.

Section 5(b) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b)) provides in relevant part that if the employee “fails to institute a proceeding against [the third party causing his injuries] at any time prior to 3 months before such action would be barred, the employer may in his own name or in the name of the employee *** commence a proceeding *** on account of such injury.” .This language creates in the employer a right akin to the common law right of subrogation. (Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179, 106 N.E.2d 124, cert. denied (1952), 344 U.S. 837, 97 L. Ed. 651, 73 S. Ct. 47; Hulke v. International Manufacturing Co. (1957), 14 Ill. App. 2d 5, 142 N.E.2d 717.) Therefore, plaintiff’s assertion that it had nothing which could be waived finds no support in the law; rather, “the employer’s common-law right of subrogation [has] been supplanted by a mode of statutory subrogation ***. Thus, the status of the non-negligent employer is the same under section 5(b) as it would have been under the common law.” (McCormick v. Zander Reum Co. (1962), 25 Ill. 2d 241, 244, 184 N.E.2d 882, 883-84.) Under common law, it was held that a right of subrogation, like any other legal or equitable right, may be qualified or extinguished by contract. Hughes v. Hartford Fire Insurance Co. (1885), 17 Ill. App. 518.

Plaintiff, however, relying on Pennwalt Corp. v. Metropolitan Sanitary District (N.D. Ill. 1973), 368 F. Supp. 972, asserts that the general release here does not bar its subrogation action. In Pennwalt, plaintiff sold chemicals to defendant under a contract, but defendant did not pay an Illinois Use Tax on its purchases since both parties thought that defendant was exempt from such tax. Upon completion of the contract, defendant paid the balance due thereunder and plaintiff executed a general release. Several years later, after the Illinois Department of Revenue determined that plaintiff should have collected use tax on the transaction, plaintiff paid the tax assessed and brought suit against defendant, alleging that defendant was primarily liable for payment of the tax and that plaintiff’s payment subrogated it to the State’s right against defendant. The question presented was whether the general release signed by plaintiff barred its action against defendant.

The court held that a release, “no matter how broad its terms, does not include claims not within the contemplation of the parties” (368 F. Supp. 972, 979) and that, under Illinois law, a general release does not apply to unknown claims, citing Todd v. Mitchell (1897), 168 Ill. 199, 48 N.E. 35. Holding that the release signed by plaintiff contemplated only performance of the contract, the Pennwalt court refused to read it as including the unrelated matter of use tax liability, noting that plaintiff’s claim was based on subrogation, and stated “[i]t has been held that a general release does not bar an action based on subrogation.” 368 F. Supp. 972, 980.

It is this latter phrase which plaintiff contends is dispositive of the issue before us. However, when it is read in context, it appears that the phrase was not the basis for the court’s conclusion, for immediately following it the court went on to say:

“At the time the release was executed, both Pennwalt and the District believed that the use tax issue had been long since resolved, and that the only ‘consideration’ for the release was the balance due under the contract. Under such circumstances it must be concluded that the liability of defendant asserted by the plaintiff was beyond the contemplation of the parties and that, therefore, they could not have intended the release to include it.” (368 F. Supp. 972, 980.)

Plaintiff, nonetheless, asserts that we are required to follow the reasoning of Pennwalt and hold that a general release does not bar an action based on subrogation.

We are not bound to follow decisions of Federal courts other than the United States Supreme Court, nor those of the courts of any State except Illinois (Corbett v. Devon Bank (1973), 12 Ill. App. 3d 559, 299 N.E.2d 521), and, while the decisions of other jurisdictions may be entitled to respect, they are only given such weight as the persuasiveness of their reasoning merits (Johnson v. Country Life Insurance Co. (1973), 12 Ill. App. 3d 158, 300 N.E.2d 11). Moreover, courts should use care in adopting expressions in an opinion which go beyond the case in which they appear. United States v. Zuskar (7th Cir. 1956), 237 F.2d 528, cert. denied sub nom. Budzileni v. United States (1957), 352 U.S. 1004, 1 L. Ed. 2d 549, 77 S. Ct. 564.

In applying the reasoning of those decisions, we find no basis in Pennwalt for the broad proposition that the general release here could not bar plaintiff’s subrogation action. Moreover, no such a rule necessary to that court’s ultimate conclusion as the specific holding therein that a general release does not include claims not within the contemplation of the parties, neither supports nor requires so sweeping a statement since it fails to explain why a right of subrogation, of all possible types of claims, would never be contemplated at the time a general release is executed. In addition, the case cited by Pennwalt as authority for this proposition, Tibbetts Contracting Corp. v. O & E Contracting Co. (1965), 15 N.Y.2d 324, 258 N.Y.S.2d 400, 206 N.E.2d 340, provides inadequate support for the generalization. In Tibbetts, the court concluded that the release in question did not bar the subrogation action before it. No reason is given for this conclusion nor is any case cited in support thereof, and it appears to be gratuitous remark, as a . careful reading of the case indicates that the claim under adjudication was not within the contemplation of the parties at the time they executed the release.

In the light of the above, we decline to depart from the rule that when a release is executed with knowledge of its meaning, any cause of action covered by it is barred. (Ogren v. Graves (1976), 39 Ill. App. 3d 620, 350 N.E.2d 249.) We are not persuaded that a broad exception for rights of subrogation is necessary, particularly when, under Illinois law, any claim not within the contemplation of the parties when a release is signed is not included therein. Mitchell v. Weiger (1977), 56 Ill. App. 3d 236, 371 N.E.2d 888.

Plaintiff further argues that, if the trial court’s order is allowed to stand, it will permit a double recovery from the third-party tortfeasor, since it would give both the employee and the employer standing to commence suits. In support of this argument, plaintiff cites Huntoon v. Pritchard (1939), 371 Ill. 36, 20 N.E.2d 53, which holds that a third-party tortfeasor cannot use the employer’s compensation payments to the employee as a bar in an action brought by the employee against the third party. From this, plaintiff reasons that a judgment in favor of the employee would not be res judicata to a suit by the employer.

Plaintiff’s reasoning is not persuasive. Initially, we note that the trial court’s ruling does not establish some new cause of action; rather, an employer’s right to seek recovery is established by the Act, indeed by the particular section on which plaintiff relies in pursuing this action. Moreover, we do not agree that a judgment in favor of an employee would not be res judicata to a suit by the employer, for that was precisely the result in Melohn v. Ganley (1951), 344 Ill. App. 316, 100 N.E.2d 780, a case cited and discussed at length by plaintiff in another portion of its brief. Finally, section 5 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5) also prevents the double recovery envisioned by plaintiff. An employer has a workers’ compensation lien for the amount of benefits paid against any judgment recovered from a third-party tortfeasor as a result of an employee’s injury (Kimpling v. Canty (1973), 13 Ill. App. 3d 919, 300 N.E.2d 839), which takes effect when the employer gives notice to the third party (Employers Mutual Casualty Co. v. Trimon Elevator Co. (1966), 71 Ill. App. 2d 124, 217 N.E.2d 391). Thereafter, the employer must be reimbursed out of any judgment or settlement received by the employee and may not look to the third party for compensation. Gones v. Fisher (1919), 286 Ill. 606, 122 N.E. 95 (judgment in a suit in the name of the employee bars another suit in the name of the employer); Chicago Surface Lines v. Foster (1926), 241 Ill. App. 49 (employer must look to settlement received by employee for reimbursement and may not recover from third party).

We next consider plaintiff’s contention that, even if a subrogation right may be barred by a general release, its claim here was not barred because it was not within the contemplation of the parties when they executed the release. Defendants characterize this contention as an attempt to invalidate the release on the ground of mistake, and they argue that it can only be set aside on clear and convincing evidence of fraud, misrepresentation, or a mutual mistake of material fact. Defendants misconstrue the issue, however, as plaintiff does not contend the release was invalid but, rather, that its right of subrogation was not included in the release.

The issue, therefore, is one of interpretation, and since a release is a contract, its construction is governed by contract law. (Murphy v. S-M Delaware, Inc. (1981), 95 Ill. App. 3d 562, 420 N.E.2d 456.) The scope and effect of a release, as with any contract, is a question of fact to be determined by the intention of the parties as reflected in the language of the instrument, with due consideration given to the circumstances surrounding the transaction. Gladinus v. Laughlin (1977), 51 Ill. App. 3d 694, 366 N.E.2d 430.

In the instant case, plaintiff posits that the parties contemplated only the release of a property damage claim arising out of the same accident in which its employee was injured. However, the release is not so limited and defendants’ motion to dismiss, supported by affidavit, asserts that the release was intended to settle all claims arising from this accident, and so states. Plaintiff then had the burden of establishing that there was a disputed question of fact (Sharp v. Gallagher (1981), 94 Ill. App. 3d 1128, 419 N.E.2d 443), which it could have done by filing counteraffidavits, interrogatories, documents, or depositions, or by calling witnesses to testify at a hearing on the motion (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 387 N.E.2d 878). Not having done any of these, the unsupported assertions as to what other claim or claims the parties to the release might have contemplated are insufficient to raise a material issue of fact necessary to preclude dismissal.

Moreover, plaintiff’s arguments do not persuade us that the parties did not intend to include the subrogation claim. Plaintiff states that, under the Act, it would have no right to seek subrogation until and unless its employee failed to bring an action against defendants, and in no event would its right of subrogation accrue until three months prior to expiration of the two-year statute of limitations. Therefore, plaintiff contends, since no right of action would arise until some 20 months after the release was signed there was no assurance that it would ever accrue, and for these reasons the claim could not have been within the contemplation of the parties.

We fail to see why uncertainty as to accrual of the claim would preclude its consideration by the parties. In fact, other circumstances point to an opposite conclusion. The release includes claims which plaintiff “hereafter may have,” language which would be unnecessary if the parties did not contemplate the possible future accrual of claims. In addition, plaintiff does not assert and it does not appear that it was unaware of its rights under the workers’ compensation laws; indeed, its use of a preprinted, form complaint for recovery of its payments bespeaks some experience in these matters. Finally, the relatively small amount of compensation paid suggests that its employee’s injuries were slight and that a suit by him was unlikely. In sum, it does not appear from the language of the release or the circumstances existing at the time of its execution that it was not intended to include a future subrogation claim.

For the reasons stated, the order of the trial court is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.

      An employer may not bring an action until 21 months after the date or injury. In this case, the release was signed one month after the occurrence — or 20 months prior to the date when plaintiff could first file.


author: JUSTICE O’CONNOR

text:
    NOEL DALY et al., Plaintiffs-Appellees, v. THREE STAR ENTERPRISES, INC., et al., Defendants.—(The Department of Registration and Education, Defendant-Appellant.)
    First District (1st Division)
    No. 81—1641
    Opinion filed November 15, 1982.
    Tyrone C. Fahner, Attorney General, of Springfield (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellant.
    McCarthy, Duffy, Neidhart & Snakard, of Chicago (Stephen A. Snakard, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant, the Illinois Department of Registration and Education (Department), appeals from an order of the circuit court of Cook County directing payment out of the Real Estate Recovery Fund to plaintiffs, Noel Daly and Matthew Alvernia, of damages, costs and attorney fees. Defendant contests only the amount of the attorney fees.

Plaintiffs’ underlying suit was filed against defendants, Three Star Enterprises, Inc., James E. Hukvari, Stefan Kittl, Jr., Henry Pacyna, Itsvan Hukvari and Maywood Proviso State Bank, as trustee under Trust No. 4166 dated December 7, 1976, alleging that they had defrauded plaintiffs by engaging in various illegal real estate practices and transactions. All but two of these defendants were subsequently dismissed. The circuit court entered a default judgment against the remaining two, Three Star Enterprises, Inc., and James E. Hukvari, for damages of $33,522.59 and costs of $468.85. Plaintiffs were unable to satisfy any part of the judgment and filed a verified claim pursuant to section 8.3 of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1979, ch. Ill, par. 5718) applying for payment of the judgment, costs and attorney fees from the Real Estate Recovery Fund administered by the Department. The circuit court entered judgment in plaintiffs’ favor for $10,000 damages, $468.85 costs and $5,028.39 attorney fees.

Section 8.1 of the Act (Ill. Rev. Stat. 1979, ch. Ill, par. 5716) provides in pertinent part:

“Sec. 8.1 The Department shall establish and maintain a Real Estate Recovery Fund from which any person aggrieved by an act, representation, transaction, or conduct of a duly registered real estate broker, real estate broker-salesman, or real estate salesman, which is in violation of this Act or the regulations promulgated pursuant thereto, or which constitutes embezzlement of money or property, or money or property unlawfully obtained from any person by false pretenses, artifice, trickery or forgery or by reason of any fraud, misrepresentation, discrimination or deceit by or on the part of any such real estate broker, real estate broker-salesman or real estate salesman or the unlicensed employee of any such real estate broker, and which results in a loss of actual cash money as opposed to losses in market value, may recover by order of the circuit court or district court of the county where the violation occurred, an amount of not more than $10,000 for damages sustained by the act, representation, transaction, or conduct, together with costs of suit and attorneys fees incurred in connection therewith of not to exceed 15% of the amount of actual damages awarded.
The maximum liability against such Fund arising out of any one act shall be as provided in this Section and the judgment order shall spread the award equitably among all co-owners or otherwise aggrieved persons, if any. The maximum liability against such Fund arising out of the activities of any single broker, any single broker-salesman or any single salesman, since January 1,1974 shall be the sum of $50,000.”

The circuit court in entering judgment computed the attorney fees as 15% of the default judgment of $33,522.59. Defendant Department argues that the 15% attorney fees should be computed on the amount of damages awarded from the Real Estate Recovery Fund ($10,000) and not on the amount of the judgment recovered in the underlying suit. We agree.

The purpose of the section is succinctly stated in Buonincontro v. Kloppenborg (1978), 61 Ill. App. 3d 1041, 1043, 378 N.E.2d 635:

“*** [Djamages are limited under the statute to actual pecuniary loss with a limitation on the amount which may be recovered. It is the obvious purpose and intent of the legislature to allow a defrauded person a limited recovery from the fund, not as an alternative to recovery from other sources but rather as a remedy of last resort to be pursued when all other sources of collection have been exhausted.”

Section 8.1 provides that where there is “a loss of actual cash money as opposed to losses in market value,” a person so suffering from an act by a real estate broker, broker-salesman or real estate salesman which violates the Act “may recover by order of the circuit court *** an amount of not more than $10,000 for damages sustained *** together with costs of suit and attorneys fees incurred in connection therewith of not to exceed 15% of the actual damages awarded.” This section is not concerned with the entry of the judgment in the underlying action, but only -with payment from the fund. If the words “actual damages awarded” was intended to refer to the judgment in the underlying action and not to an award within the $10,000 limitation, then the section would have referred specifically to the judgment.

Moreover, in addition to the $10,000 limitation, there is the further limitation of $50,000 for the activities of any single broker since January 1, 1974. These limitations on the amount of recovery from the fund are to insure the financial integrity of the fund. Recovery from the fund is not intended to be fully compensatory. To allow a recovery for attorney fees from the fund in excess of 15% of the actual amount of damages recovered from the fund could give, where the underlying recovery was large, greater financial relief to the attorneys than that given to an injured party. It could cause the attorneys to be fully compensated where the injured party would not be.

We can find no such legislative intent in the Real Estate Brokers and Salesmen License Act. Section 1 of that Act (Ill. Rev. Stat. 1979, ch. Ill, par. 5701) states:

“The intent of the legislature in enacting this statute is to evaluate the competency of persons engaged in the real estate business for the protection of the public.”

Nor can the fact that section 8.1 provides that the aggrieved person “may” recover rather than “shall” recover serve to create a legislative intent to allow the possibility of recovery of attorney fees in excess of 15% of the damages awarded from the fund. From a reading of the Act, we find that the reference to “actual damages awarded” in section 8.1 can refer only to those damages awarded from the fund and not to those awarded in the underlying suit.

Because the damages awarded from the fund here were the maximum $10,000, plaintiffs were entitled to no more than a $1,500 attorney fees payment from the fund. Although the amount, was not put in issue in Jones v. Anderson (1978), 62 Ill. App. 3d 284, 379 N.E.2d 104, that was the amount of attorney fees there allowed.

The judgment for $5,028.39 for attorney fees is accordingly modified to reduce it to $1,500 and, as modified, the judgment is affirmed.

Affirmed as modified.

CAMPBELL, P.J., and McGLOON, J., concur.


text:
    PROVISO TOWNSHIP HIGH SCHOOL DISTRICT NO. 209 et al., Plaintiffs-Appellees and Cross-Appellants, v. THOMAS C. HYNES, Assessor of Cook County, et al., Defendants-Appellants and Cross-Appellees.
    First District (1st Division)
    No. 81—1975
    Opinion filed November 8, 1982.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Susan Condon, and Ronald P Stake, Assistant State’s Attorneys, of counsel), for appellants.
    Stewart H. Diamond, of Ancel, Glink, Diamond, Murphy & Cope, P. C., and John H. Hilbert, both of Chicago, for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal by defendants, Thomas C. Hynes, Edward J. Rosewell and Stanley T. Kusper, Jr., respectively the assessor, treasurer and collector, and clerk of Cook County, Illinois, and a cross-appeal by plaintiffs, Proviso Township High School District No. 209 and other school districts of Cook County, Illinois, from an order entered by the circuit court of Cook County upon remand by the Supreme Court of Illinois.

In April 1980, plaintiff school districts brought suit for declaratory and other relief, challenging the constitutionality of the homestead exemption created by section 19.23 — la of the Revenue Act of 1939, as amended (Ill. Rev. Stat. 1981, ch. 120, par. 500.23 — la). That exemption, also referred to as the “Hynes exemption” or the general homestead exemption, was originally applied to 1978 real estate taxes. Plaintiffs’ suit asked no relief for 1978. Plaintiffs sought to enjoin defendants from applying the exemption to bills for the second installment of the 1979 real estate taxes, which were due in July 1980.

The trial court heard the case on the pleadings, stipulation and evidence depositions. The facts were largely uncontested. It was undisputed that for the 1978 real estate taxes the defendant taxing officials had granted the homestead exemption to all residential properties in the lowest assessment classification, without regard to whether the owner occupied the property as his principal dwelling place. It was further stipulated that the defendants, in accordance with the statute, intended to administer the homestead exemption for the 1979 taxes on the same basis as used in 1978. The parties also stipulated that the defendants do not maintain records which indicate the ownership or occupancy of all units or parcels within the county.

On June 19, 1980, the trial court held the homestead exemption unconstitutional insofar as it was not restricted to owner-occupied residential property. An appeal was taken by defendants to the supreme court.

After oral argument in that court and pending the issuance of its opinion, that court, on August 4,1980, ordered:

“2. The defendants are authorized to commence the extension, billing and collection of the second installments of the Real Estate Taxes for Tax Year 1979, and to administer the General Homestead Exemption provided for by Sec. 19.23 — la of the Revenue Act of 1939, as amended, according to the procedures used for Tax Year 1978, without gathering information indicating the ownership or occupancy of the residential properties which will receive the exemption.
3. The Court retains complete jurisdiction of this cause, and in the event the position of the plaintiffs is ultimately sustained the Court will fashion appropriate relief.”

Pursuant to that order, defendants sent out the bills for the second installment of the 1979 real estate taxes, allowing the general homestead exemption as they had in 1978.

On November 13, 1980, the supreme court handed down its opinion. It held that no annual homestead exemption could be granted by defendants unless the property was occupied by the owner as his principal dwelling place and found that the exemption had been improperly granted insofar as that requirement was not met. Proviso Township High School District No. 209 v. Hynes (1980), 84 Ill. 2d 229, 417 N.E.2d 1290.

The court then said (84 Ill. 2d 229, 243):

“The judgment of the circuit court also requires that before issuing tax bills containing the homestead exemption ‘the defendants have information upon which to establish that the owner or owners reside therein as his or their principal dwelling place.’ The last paragraph of section 19.23 — la authorizes a number of ways in which eligibility to receive the exemption may be determined, but provides that the determination be made in accordance with guidelines established by the Department of Revenue. The parties advise us that the Department has not yet established any such guidelines. Until the Department has done so, the defendants may use any of the methods authorized by the section to ascertain whether property is owner-occupied.”

As to the ways to determine eligibility, the last paragraph of section 19.23 — la states:

“In lieu of procedures for exemptions required elsewhere in this Act, the assessor, county assessor, supervisor of assessments or board of assessors may determine the eligibility of residential property to receive the homestead exemption provided by this Section by application, visual inspection, questionnaire or other reasonable methods. Such determination shall be made in accordance with guidelines established by the Department of Revenue.” (Ill. Rev. Stat. 1981, ch. 120, par. 500.23— la.)

The court then concluded (84 Ill. 2d 229, 244):

“Pursuant to our interim order of August 4, referred to previously, bills for the second installment of taxes for the year 1979 allowing the exemption without regard to owner-occupancy have already been sent out, and some taxpayers allowed the exemption will have paid a lesser amount in taxes than that for which they would be liable without the exemption. In those cases in which the defendants seek to bill any taxpayers for a deficiency, no bill should be sent out unless the defendants have information upon which to establish that the owner or owners do not reside on the property in question as his or their principal dwelling place.
The defendants represent that there are some 1 million parcels potentially eligible for the homestead exemption, and that they do not maintain records which show the ownership and occupancy of all these parcels. To expedite the collection of taxes by the defendants, and in the interest of sound judicial administration, we remand this cause to the circuit court for such further proceedings and orders as may be necessary to implement our decision with regard to the billing and collection of taxes for both the years 1979 and 1980.”

The court’s mandate issued the same date remanded the cause to the circuit court of Cook County “for such further proceedings and orders as may be necessary to implement our decision with regard to the billing and collection of taxes for both the years 1979 and 1980.”

Plaintiffs’ subsequent motion for clarification of the opinion as to its ruling for 1979 was denied.

On the remand, the defendants agreed to, and did, with reference to the year 1980, send out over one million computer-read questionnaires to the necessary group of taxpayers asking:

“1) Did you reside on this property as of Jan. 1,1980?
2) Did you own the property as of Jan. 1,1980?”

The responses to this questionnaire were used to grant the “Hynes exemption” to all those who answered both questions in the affirmative.

The sole issue before the trial court on the remand was: what should be done concerning the 1979 tax year? Plaintiffs asked that defendants take affirmative action to identify those taxpayers who had improperly received the homestead exemption for 1979 and retroactively to revoke the exemption by sending a deficiency tax bill to those taxpayers. The method suggested by plaintiffs to do this was to send application-questionnaires to all taxpayers, and to send bills to those taxpayers who did not respond indicating they were entitled to the exemption. Plaintiffs also asked that the deficiencies be computed on the basis of the original 1979 tax rates.

Defendants contended that the supreme court’s mandate gave the trial court discretion regarding possible action for the 1979 tax year. They also pointed to evidence to show their lack of information regarding the ownership or occupancy of residential real estate. Defendants also argued that the chaotic effects of retroactive billing and prior case law supported denial for retroactive relief and asked for “finality” for the 1979 tax year.

The trial court held a hearing to take additional evidence on the issue of what information was possessed by defendants regarding the ownership and occupancy of residential property. Included in the evidence were the affidavits of the chief deputy assessor, the deputy county treasurer and ex-officio county collector and the deputy county clerk.

The chief deputy assessor stated that his office has only records showing ownership and occupancy by senior citizens who were granted a senior citizens homestead exemption. Those parcels number approximately 167,000. There are no records showing the nonownership or nonoccupancy of those residential parcels where that exemption was denied. The deputy county treasurer and ex-officio county collector stated that his office has no records indicating ownership and occupancy of residential properties; he knows only of the assessor’s records as to senior citizens. Similarly, the deputy county clerk stated that his office has no records showing ownership or occupancy of residential properties; he knows only of the assessor’s records as to senior citizens. Records kept by his office as to voter registration (which do not cover all of Cook County) do not show that any registrant from a location is the owner or occupant of that location.

On February 25, 1981, the trial court by order permitted the county collector to file and perfect his annual application for order of judgment and sale with respect to the 1979 taxes. That order also directed that any subsequent corrective action taken by the court “whether by way of separate deficiency tax bills or as part of tax bills for a subsequent year or by any other means” will be treated as a separate item and dealt with in a tax year subsequent to the 1979 tax year. The court also ordered that a copy of his order, which would alert property owners of the continuing pendency of the homestead exemption case, was to be “appended as an exhibit to said Annual Application for Order of Judgment and Sale for 1979” taxes.

On June 4, 1981, the trial court issued an oral ruling and, on July 7, 1981, a written order. That order denied both plaintiffs’ request for affirmative relief and defendants’ request that it declare the 1979 taxes final as collected. The order provided:

“1) The defendants are directed not to send questionnaires or exemption applications to taxpayers or to portions of taxpayers as requested by the plaintiffs and for the purpose of determining whether Class 2 residential real estate in Cook County was not resided in by the owner or owners thereof as a principal dwelling place in respect to the 1979 tax year.
2) The defendants’ request that the Court authorize them to do nothing more in respect to the erroneously allowed General Homestead Exemptions for the 1979 tax year is denied.
3) The defendants are directed to send deficiency bills to taxpayers in respect to General Homestead Exemptions erroneously allowed for the 1979 tax year only where they have information upon which to establish that the owner or owners did not reside on the property in question as his or their principal dwelling place in 1979.
4) Defendants shall make available to plaintiffs’ attorneys, consultants and agents, upon reasonable requests from time to time, their records for inspection and copying, including but not limited to any computerized list of properties in possession of defendants or such lesser portion thereof as may be requested by plaintiffs, for which a General Homestead Exemption was granted for 1979, containing the names of the taxpayers of record, the Permanent Index Number of each such property, the respective subclass to which it is assigned, and the amount of taxes and equalized assessments exempted for 1979, and similar information summaries and records received or derived from the 1980 applications sent out pursuant to orders of this Court, and such other records which may assist or be utilized in determining eligibility for the 1979 General Homestead Exemption.
5) Any and all tax bills prepared according to this Order shall be calculated using the tax rates, respectively, previously used in computing the 1979 tax bill for said property. Any and all such tax bills prepared according to this Order shall be sent independently of the second installment of the 1980 real estate tax bills. Any and all moneys collected as a result of subsequent billings for the 1979 General Homestead Exemptions improperly granted under the Supreme Court’s Opinion in this matter shall be deposited, pending final distribution, in a special interest-bearing fund to be held pursuant to further order of this Court.
6) The defendants shall, within 120 days after sending out any tax bills which contain 1979 deficiency taxes for improperly-granted 1979 General Homestead Exemptions, file an accounting with this Court of any moneys collected as a result of subsequent billings for General Homestead Exemptions improperly granted in 1979, serving a copy upon the attorneys for plaintiffs.
* * *
8) The Court shall retain jurisdiction over the parties, and over this matter, for the sole purpose of (a) deciding questions that may or may not arise as to the sufficiency of information to bill and collect the said taxes uncollected because of the erroneously granted 1979 General Homestead Exemptions; (b) controlling the special fund, if any, to be created pursuant to this Order, or subsequent orders of this Court, and determining any and all distributions and disbursements to be made therefrom; (c) implementing this Court’s orders heretofore and hereafter entered pursuant to the mandate of the Supreme Court of Illinois; and (d) hearing and deciding all applications from plaintiffs, their attorneys and consultants for the award of fees and expenses incurred as a result of this litigation.”

Defendants appeal from those portions of the order which denied finality to the 1979 taxes, arguing that the trial court had authority to declare the 1979 tax year final and that public policy mandates such action and the consequent denial of retroactive relief with respect to prior tax years. Plaintiffs cross-appeal from the denial of the relief they sought and ask the court for further additional relief as to the 1979 taxes. They seek a modification of the trial court’s order so that defendants will be required to take some affirmative action with respect to the billing and collection of 1979 taxes still owing due to the erroneously granted exemptions.

While we do not disagree with defendants’ assertion of the trial court’s authority to grant, under a general remand, the relief they seek, if appropriate (Gieseke v. Hardward Dealers Mutual Fire Insurance Co. (1965), 61 Ill. App. 2d 119, 208 N.E.2d 900), we are constrained by the supreme court’s specific mandate in this case, which remanded the cause to the circuit court “for such further proceedings and orders as may be necessary to implement our decision with regard to the billing and collection of taxes for both the years 1979 and 1980.” (Emphasis supplied.) This remandment, as stated in the opinion, was “[t]o expedite the collection of taxes by the defendants, and in the interest of sound judicial administration.” The only limitation on the power to bill the 1979 taxes was clearly stated by the supreme court (84 Ill. 2d 229, 244):

“In those cases in which the defendants seek to bill any taxpayers for a deficiency, no bill should be sent out unless the defendants have information upon which to establish that the owner or owners do not reside on the property in question as his or their principal dwelling place.”

Pursuant to the court’s mandate, we must deny the declaratory relief sought by defendants and enter a modification of the trial court’s order as sought by plaintiffs. Such steps are necessary if plaintiffs are to receive the relief clearly contemplated by the supreme court. Given the procedural history of the instant case, we find nothing in the law or the public policy of this State which would dictate an opposite conclusion.

Defendants cite cases which they claim necessitate, because of the great practical difficulties involved, that the 1979 taxes be declared final. We are not unmindful of the court’s statement in Hamer v. Kirk (1976), 65 Ill. 2d 211, 357 N.E.2d 506, “a sudden change in assessment policy could lead to chaotic conditions in tax collection procedures” (65 Ill. 2d 211, 219) and of similar views expressed in Harte v. Lehnhausen (1975), 60 Ill. 2d 542, 328 N.E.2d 543, cert. denied (1975), 423 U.S. 912, 46 L. Ed. 2d 141, 96 S. Ct. 216, Hamer v. Mahin (1970), 47 Ill. 2d 252, 265 N.E.2d 151, People ex rel. Hamer v. Jones (1968), 39 Ill. 2d 360, 235 N.E.2d 589; see also Hamer v. Kirk (1978), 57 Ill. App. 3d 335, 373 N.E.2d 64, appeal denied (1978), 71 Ill. 2d 603.

Nor are we unmindful of the views expressed in Board of Education v. Barrett (1977), 67 Ill. 2d 11, 14-15, 364 N.E.2d 89, where the court said:

“We are not unsympathetic to the problems facing taxing bodies as a result of the failure of State and local assessing authorities to comply with statutory mandates and time schedules. (See Hamer v. Kirk (1976), 65 Ill. 2d 211; Harte v. Lehnhausen (1975), 60 Ill. 2d 542; Hamer v. Lehnhausen (1975), 60 Ill. 2d 400; Hamer v. Mahin (1970), 47 Ill. 2d 252; People ex rel. Hamer v. Jones (1968), 39 Ill. 2d 360.) But we cannot agree that we would be justified in overruling soundly based decisions of long standing in order to uphold plaintiff’s additional December levy. The process of assessing property for taxation and the levy and extension of taxes against that property is a complex one involving thousands of taxing bodies and the cooperation of numerous public officers. Delay at any stage of the process is likely to result in substantial added expenses in the form of extra employees or overtime pay required by county clerks and treasurers who receive late valuation statistics from assessing officials or delayed levy totals from taxing bodies; and when the distribution of taxes is untimely, taxing bodies are burdened with the expense and interest of tax anticipation warrants essential to their continued operation. Were we somehow to sustain this tardy levy, we would simply add greater uncertainty and confusion in an already less than efficiently operating system.”

The question, however, before both the trial court and this court is, in view of the supreme court’s specific mandate, purely one of practicality.

Some of the cases cited by defendants are distinguishable because they involve only a single taxpayer, whereas here a great number are involved. All are inapplicable because no specific mandate from the supreme court was involved.

Section 222 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 703), provides that where tax or assessment of property liable to taxation is prevented from being collected for any year or years by reason of any omission, erroneous proceedings or other cause, such tax or assessment may be added to the tax on such property for any subsequent year.

Montgomery Ward Life Insurance Co. v. Department of Local Government Affairs (1980), 89 Ill. App. 3d 292, 411 N.E.2d 973, appeal denied (1981), 82 Ill. 2d 585, involved, as does this case, an attempt to rely on an exemption previously allowed. There the insurance company-taxpayer brought an action to review the assessment of its capital stock by the Department of Local Government Affairs, challenging the inclusion of certain securities. The court found said securities were not exempt and held that the Department was not precluded from assessing them by the fact that its previously published standards, as set forth in the Illinois Property Tax Manual, had declared them exempt. In rejecting plaintiff’s argument that the Department was precluded from taxing the securities, the court stated that the fact that the Department had erroneously included certain nonexempt property as exempt would not preclude a subsequent correction of the error and taxation of the property. 89 Ill. App. 3d 292, 302.

We find that the trial court correctly refused to grant defendants’ request to make final the 1979 taxes. We affirm that portion of the order.

We now turn to the question of what relief would be appropriate to determine the residency and ownership of the properties so that deficiency bills may be sent to those taxpayers who were not owners and did not reside on the property as their principal dwelling place.

The record in the case before us shows that defendants have in their possession or available to them records which show (a) the alphabetical listings of taxpayers in Cook County keyed to the permanent index numbers, (b) the addresses and classification of properties with dates of transfer, and (c) voter and registration lists. The record on appeal, however, also shows that even if those records were all keyed together they still would not show the ownership or the residency of the taxpayers. Nor do the records available to defendants disclose whether duplicate names of taxpayers refer to the same individual.

Based on the record before us, we are of the opinion that the appropriate manner in which to carry out the supreme court’s mandate to ascertain those taxpayers who were not entitled to the general homestead exemption and to bill them for the balance due on the 1979 taxes is to utilize the procedure recognized by the supreme court as available under section 19.23 — la and send out a questionnaire for the year 1979 in the same form as that used in connection with the exemption for the 1980 taxes. This questionnaire should ask as to the residency and ownership of the property on January 1,1979.

The questionnaire should not be sent: (1) to the senior citizens to whom a senior citizen’s exemption has been granted; (2) to those taxpayers who, based on the 1980 questionnaire, received a general (or Hynes) exemption for 1980; or (3) as to those parcels as to which the records available to defendants show them to be vacant.

The questionnaire should be sent to: (1) those taxpayers who, from the 1980 questionnaire, were denied an exemption for 1980; (2) those taxpayers who were denied a senior citizen’s exemption in 1979; (3) those taxpayers who are corporations, trustees or partnerships; (4) all taxpayers whose names are listed as taxpayers as to more than one parcel; and (5) any other taxpayers concerning whom plaintiffs, or others, have supplied to defendants evidence that those taxpayers are either not owners of or residents at a specified parcel.

Defendants should be given a reasonable time by the trial court to send out and to process the questionnaires which are returned. Bills should be sent only to those who by their answers admit that they are not entitled to the exemption previously granted for 1979. After defendants have ascertained from the questionnaires those who are to be billed for additional taxes for 1979, the trial court should decide, after a hearing, whether those bills should be sent out separately or whether the amount due on the 1979 taxes should be added to the tax bills for a subsequent year where the taxpayer for 1979 is the same as that for the subsequent year. The tax rates used should be those used for 1979.

The trial court should also order, as it did in its July 7, 1981, order, that all funds collected be kept in a separate interest-bearing account which it shall administer.

While this procedure will not eliminate all of the concerns expressed by the courts in the Hamer and other cases, we feel that it will minimize them to a great extent so that at least a portion of the taxes which should have been collected are available as revenue for the plaintiffs.

Referring specifically to the order appealed from:

Paragraph 1 is reversed. On the contrary, this court specifically directs the sending out of questionnaires as above stated.

Paragraphs 2, 3, 4 and 5 are affirmed.

Paragraph 6 is modified by eliminating the 120-days provision so that the trial court may upon remand set any time limit it then deems necessary for an accounting of any moneys collected.

Paragraph 8 is modified so that the trial court shall retain jurisdiction, in addition to the matters mentioned therein, to administer the process of collections of additional 1979 taxes until final accomplishment thereof, specifically including the above statements by this court concerning the transmission and processing of questionnaires.

The order of the circuit court of Cook County is affirmed in part, reversed in part, modified in part and the cause is remanded for further proceedings consistent with the views expressed herein.

Affirmed in part, reversed in part, modified in part and remanded with directions.

GOLDBERG and McGLOON, JJ., concur.


author: JUSTICE REINHARD

text:
    EILEEN MISCEVICH, Indiv. and as Adm’x of the Estate of Michael Miscevich, Deceased, Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY et al., Defendants-Appellees.
    Second District
    No. 82—66
    Opinion filed November 22, 1982.
    Rehearing denied December 16, 1982.

      Gregory L. Tumbarello, of Chicago, for appellants.
    Thomas H. Pegan, of Johnson, Cusack & Bell, of Chicago, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Eileen Miscevich, individually and as administratrix of the estate of Michael Miscevich, deceased, brings this appeal pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) from an order granting a motion for summary judgment brought by J. I. Case Co. (defendant). The issues raised by plaintiff on appeal are: (1) whether the decision in Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, controls this case; and (2) whether the defendant imposed a duty upon itself by issuing a warning in its operator’s manual. Defendant has raised an additional argument that under “the law of the case” doctrine we are bound by the decisions in two prior appeals wherein identical issues in this same case were decided adversely to the plaintiff.

In count VI of plaintiff’s third amended complaint against defendant predicated upon strict liability in tort, plaintiff alleged that on or about June 13, 1978, another defendant, Funway Amusements, Inc. (Funway), was in the process of raising an aluminum light pole to set on top of a pedestal located on Funway’s property. The pedestal was situated in close proximity and beneath uninsulated and suspended electrical power lines maintained by another defendant, Commonwealth Edison Co. (Edison). Bruce Enterprises (Bruce) owned a forklift truck which was manufactured by defendant and was being used in the process of raising the light pole. Plaintiff’s decedent, Michael Miscevich (decedent), was an employee of Bruce and was assisting in the raising of the light pole when the pole, as it was being lifted on the front vertical track and fork carriage of the forklift truck, came into contact with the electrical power lines, resulting in decedent’s death by electrocution.

After filing its answer to count VI of the third amended complaint, defendant filed a motion for summary judgment. Attached to this motion were two photographs of the forklift truck and light pole, a page of defendant’s operator’s manual on the operation of the forklift truck, and defendant’s memorandum in support of the motion which included references to various depositions not contained in this record on appeal and legal arguments. Plaintiff filed an answer to this motion which also included legal arguments and, additionally, had attached excerpts from the deposition of its expert, Stanley Sedivy, and a photograph of the forklift truck and light pole. The trial court granted defendant’s motion for summary judgment and ordered that defendant’s manual No. 9 — 3481 be made a part of the record. The trial court made an express written finding that there is no just reason for delaying enforcement or appeal. See Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)). This appeal involves only the defendant, J. I. Case Co., and the granting of summary judgment in its favor on count VI of the third amended complaint.

Two prior appeals arising out of this occurrence have been disposed of by order pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23). In Miscevich v. Commonwealth Edison Co. (1981), 100 Ill. App. 3d 1198 (Rule 23 order), an appeal by plaintiff herein of the dismissal of her complaint against defendants other than J. I. Case Co., our court affirmed the dismissal by Rule 23 order. In Weiland v. Commonwealth Edison Co. (1982), 104 Ill. App. 3d 1208 (Rule 23 order), an appeal by a different plaintiff from the granting of a dismissal of Commonwealth Edison Co. and the granting of a motion for summary judgment in favor of J. I. Case Co., the Appellate Court, First District, Second Division, affirmed the judgments also by Rule 23 order. Defendant argues that the orders in these cases invoke the doctrine of the “law of the case” and require our affirmance.

Under the “law of the case” doctrine, this court is bound by the particular views of law announced in our prior opinion in a case between the same parties, unless the facts presented require a different interpretation. (Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill. App. 3d 868, 871-72, 423 N.E.2d 942; Bradley v. Howard Hembrough Volkswagen, Inc. (1980), 89 Ill. App. 3d 121, 124, 411 N.E.2d 535; People v. Smith (1979), 72 Ill. App. 3d 956, 962, 390 N.E.2d 1356.) It is readily apparent that in the prior appeal before this court brought by plaintiff, the defendant was not involved as a party nor was any issue raised as to it. In a separate appeal to the Appellate Court, First District, a different plaintiff, who was injured arising out of the same occurrence, brought the appeal from a dismissal of its complaint against Commonwealth Edison Co. and the granting of summary judgment for J. I. Case Co. Since neither appeal involved the identical parties to this action and the same questions previously determined, we reject defendant’s argument that “the law of the case” doctrine is applicable.

Before proceeding to our consideration of the merits of the issues raised by plaintiff on appeal, we feel compelled to comment on the failure of the parties to comply with the express provisions of section 57 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 57) relating to the filing of material in support of or opposition to the motion for summary judgment by way of affidavit, counteraffidavit, depositions and admissions on file. As plaintiff has not sought review of, nor did she object at trial to, defendant’s failure to properly attach affidavits in support of the motion or file depositions as clearly prescribed in section 57, we decline to sua sponte decide this appeal on a ground not raised. Nevertheless, with the regularity with which we observe the flagrant disregard of the express terms of section 57 relative to the method of supporting a motion for summary judgment, we point out that supporting materials such as memoranda of the attorneys, unsigned and unsworn statements, references to depositions not on file, and the attaching of other documents not in conformance with section 57 should not be accepted or considered by the trial court. See Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E.2d 1239; Bezin v. Ginsburg (1978), 59 Ill. App. 3d 429, 375 N.E.2d 468; Stifel, Nicolaus & Co. v. Coloia (1971), 2 Ill. App. 3d 224, 276 N.E.2d 408.

Plaintiff maintains that count VI states a cause of action under strict liability predicated on the theory that the forklift truck manufactured by defendant was a product which was unreasonably dangerous because of the failure to have an adequate warning on it informing against its use in close proximity to overhead electrical power lines. While acknowledging that the trial court granted summary judgment for defendant expressly relying upon the holding of our supreme court in Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, plaintiff argues that the factual situation in Genaust is distinguishable since the plaintiff in Genaust was an electrical contractor and could be expected to recognize, appreciate and understand the danger of possible electrical arcing between the electric power line and the metal pole he was raising. Plaintiff contends that the 19-year-old decedent was not an electrician and that such danger was not common knowledge to him. Thus, plaintiff argues, a duty to warn him of the danger of electrocution under the facts alleged was created.

We do not believe Genaust can be read as narrowly as plaintiff contends. In determining that it was not objectively reasonable for the manufacturers and the seller of a tower and antenna to expect a user of the products to be injured when the products came in close proximity to power lines causing arcing, our supreme court stated:

“As plaintiff admits, the danger of electricity is common knowledge. Moreover, it is common knowledge that metal will conduct electricity. Accordingly, it is not objectively reasonable to expect that a person, knowing the danger of electricity if metal should contact electrical wires, would attempt to install a metal tower and antenna in such close proximity to electrical wires. The fact that plaintiff’s injury was the result of electricity arcing to the tower or the antenna rather than from actual contact with the wires is not controlling. The controlling fact is that it was not reasonably foreseeable a user would install the products in such proximity to electrical wires when the harsh consequences of the slightest mishap, which would cause the metal to contact the wires, are so obvious.” (Emphasis added.) (62 Ill. 2d 456, 466, 343 N.E.2d 465, 471.)

Also, in holding that the doctrine of strict liability was not applicable to the facts plaintiff alleged, the court concluded that “a duty to warn is not required where the product is not defectively designed or manufactured, and where the possibility of injury results from a common propensity of the product which is open and obvious.” 62 Ill. 2d 456, 467, 343 N.E.2d 465; see also Hunt v. Blasius (1979), 74 Ill. 2d 203, 211, 384 N.E.2d 368.

Plaintiff has not cited any case which under similar facts limits the Genaust holding to plaintiffs who are knowledgeable in electrical work. We conclude that the danger of electrical energy present under the facts is a matter of common knowledge to all persons of ordinary intelligence and experience and, as such, to the decedent. Thus, Genaust is controlling, and a duty to warn is not required under these facts.

Alternatively, plaintiff maintains that once the defendant manufacturer undertook to instruct in its operator’s manual about the dangers of using the forklift near electrical lines, it voluntarily assumed the duty to exercise reasonable care and skill to give adequate warning, “readily noticeable and of such intensity and degree proportionate to the seriousness of the consequences which were likely or liable to be anticipated” and is “accountable to the plaintiff under the Illinois principals [sic] of strict product liability.” However, since plaintiff failed to plead this theory in her third amended complaint against defendant, the rule prohibiting the presentation of a new theory on appeal prohibits its consideration now. Bennett v. Raag (1982), 103 Ill. App. 3d 321, 328, 431 N.E.2d 48; Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 970, 424 N.E.2d 1279; Buck v. Alton Memorial Hospital (1980), 86 Ill. App. 3d 347, 351, 407 N.E.2d 1067; Sargent v. Illinois Institute of Technology (1979), 78 Ill. App. 3d 117, 122, 397 N.E.2d 443.

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

Affirmed.

UNVERZAGT and NASH, JJ., concur.


author: JUSTICE JIGANTI

text:
    IDILIA L. JURCO, Plaintiff-Appellee, v. ROBERT STUART, Defendant-Appellant.
    First District (4th Division)
    No. 82—1158
    Opinion filed November 19, 1982.

      Hollander and Hollander, of Chicago (Howard D. Hollander, Richard J. Hollander, and Gary R Hollander, of counsel), for appellant.
    Walter M. Ketchum, Ltd., of Chicago (Terence O’Dekirk, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The trial court entered a temporary restraining order. The defendant claims that the temporary restraining order was allowed to ripen into a preliminary injunction without holding an evidentiary hearing. This is an appeal from the denial of a motion to dissolve the order. An additional issue on appeal is whether the court erred by not requiring the plaintiff to post bond.

The plaintiff, Idilia L. Jurco, and the defendant, Robert Stuart, are the sole shareholders and are directors of a corporation known as Enjoyable Eating, Inc. (Enjoyable). Enjoyable operates a restaurant under the name of Cl AO.

On April 2, 1981, Stuart, acting in his capacity as Enjoyable’s agent, executed two promissory notes and a security agreement. Stuart then signed the security agreement acting in his capacity as the secured party. A year later, on April 6, 1982, Stuart gave notice to Enjoyable of his intent to exercise his right as a secured creditor under the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 1 — 101 et seq.) and to sell the pledged collateral on April 16, 1982. Jurco received notice of the sale on April 11,1982.

On April 16, 1982, the date of the sale, Jurco filed the instant action against Stuart. She alleges that Enjoyable owes her back salary and loan payments; that she ceased being informed of Enjoyable’s business activities in March 1981; that she had no knowledge that the notes and security agreement had been extended; that on her “information and belief,” Stuart did not lend money to the corporation and that the security interest is in fact a fraud upon the shareholders. She further alleges that any sale of its assets will put Enjoyable out of business and that if the sale is held she will suffer irreparable harm and injury because Enjoyable will have insufficient funds to compensate her for past salary and loans to the corporation. Jurco asked the court to enjoin the sale because she has no adequate remedy at law and because there is insufficient time to investigate the legality and authenticity of the security agreement and to determine whether there has in fact been a default.

On April 16, 1982, the court issued the first of five orders which are relevant to this appeal. The first order enjoined the sale “until further order” of the court and set a hearing date on the preliminary injunction in 10 days, April 26, 1982. There is no report of proceedings in this cause but it appears to us that this first order was issued with notice because both parties were before the trial court. The second order dated April 26, was issued immediately after the defendant filed his verified answer. It continued the temporary restraining order until “further order of this court” and scheduled opening statements on the preliminary injunction for the next day, April 27. Jurco made these opening statements and Stuart did not. The third order entered on April 27, denied the defendant’s motion to dissolve the temporary restraining order and required the defendant to produce documents for an in camera inspection the following day. This in camera inspection took place on April 28, 1982. The fourth order entered on April 29, 13 days after the original temporary restraining order and three days after the defendant filed his answer, stated “that this matter is continued for status until May 12, 1982,” a period of 13 days. Then on May 12, 1982, the court issued the fifth and final order relevant to this appeal. The court denied the defendant’s oral request for a hearing date on the preliminary injunction noting “a six month backlog to hear preliminary injunctions” and also denied the defendant’s request for a reassignment to the chief judge to obtain a hearing date. The court then set May 24, 1982, for further status.

The defendant filed this appeal and requested that the temporary restraining order be dissolved. At oral argument, the defendant stated that satisfactory relief would be to remand the matter to the trial court for an immediate evidentiary hearing on the preliminary injunction.

Stuart contends that the temporary restraining order has been allowed to ripen into a preliminary injunction without a proper evidentiary hearing. Specifically, Stuart argues that a temporary restraining order exceeds its proper duration and becomes a preliminary injunction if it is extended indefinitely by such language as “until such time as this case can be heard on the merits.” Also, a preliminary injunction is improperly issued when the defendant has filed a verified answer and there has been no evidentiary hearing. Stuart cites Paddington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484, and Seagram Distillers Co. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 166, 300 N.E.2d 490, as support for his contentions.

We believe the structure contemplated by sections 3 and 3 — 1 of the Injunction Act (Ill. Rev. Stat. 1981, ch. 69, pars. 3, 3 — 1) is the three-tiered system of injunctive relief similar to that practiced in the Federal court which consists of temporary restraining orders, preliminary injunctions and permanent injunctions. Kable Printing Co. v. Mount Morris Bookbinders Union Local 65—B (1976), 63 Ill. 2d 514, 520, 349 N.E.2d 36, 38; People ex rel. Pollution Control Board v. Lloyd A. Fry Roofing Co. (1972), 4 Ill. App. 3d 675, 281 N.E.2d 757; Paddington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484; see Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 186 (Ryan, J., dissenting).

The first proceeding is the temporary restraining order. A temporary restraining order is a drastic, emergency remedy which may issue only in exceptional circumstances and for a brief duration. (City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 380 N.E.2d 1106; Board of Trustees v. Cook County College Teachers Union Local 1600 (1976), 42 Ill. App. 3d 1056, 356 N.E.2d 1089; Paddington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484; see Hechinger, Requisites for the Issuance of a TRO and an Injunction in the Chancery Division, 63 Chi. Bar Rec. 184 (1982).) The purpose of a temporary restraining order is to maintain the status quo until a hearing can be had on an application for a preliminary injunction. (People ex rel. Pollution Control Board v. Lloyd A. Fry Roofing Co. (1972), 4 Ill. App. 3d 675, 281 N.E.2d 757.) Whether the temporary restraining order is with or without notice it is upon a summary showing of the necessity of the order to prevent immediate and irreparable injury. (See Moore, Federal Practice par. 65.05 (2d ed.).) If the temporary restraining order is without notice, it is limited to a period of 10 days with a possible exception as stated in the statute of another 10 days under certain circumstances. (Ill. Rev. Stat. 1981, ch. 69, par. 3 — 1; Kable Printing Co. v. Mount Morris Bookbinders Union Local 65—B (1976), 63 Ill. 2d 514, 349 N.E.2d 36.) If the temporary restraining order is issued with notice the 10-day time limit does not apply. 63 Ill. 2d 514, 521, 349 N.E.2d 36, 39; Lawter International, Inc. v. Carroll (1982), 107 Ill. App. 3d 938, 438 N.E.2d 590.

The problem arises in cases such as the one at bar where there has been a summary proceeding with notice and a temporary restraining order is issued but no hearing date is set. The effect then is to have an order with significant consequences extant with only a limited opportunity on the part of a party to resist such an order. To allow a temporary restraining order of unlimited duration is to have a preliminary injunction (Kable Printing Co. v. Mount Morris Bookbinders Union Local 65—B (1976), 63 Ill. 2d 514, 349 N.E.2d 36) without giving the one party a fair opportunity to oppose the application and to show if he can why an injunction should not issue. (See Moore, Federal Practice par. 65.04[3] (2d ed.).) A preliminary injunction then maintains the status quo during the pendency of a trial on the merits. People ex rel. Pollution Control Board v. Lloyd A. Fry Roofing Co. (1972), 4 Ill. App. 3d 675, 281 N.E.2d 757.

A defendant should be allowed to present evidence and legal argument. (Paddington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484.) Oral argument is not proper evidence. People ex rel. Scott v. Aluminum Coil Anodizing Corp. (1971), 132 Ill. App. 2d 168, 268 N.E.2d 53.

Because of the evidentiary hearing requirement for a preliminary injunction, we do not believe that the instant order emanating from a summary proceeding, albeit with notice, for an unspecified duration is within the statutory scheme envisioned by the legislature. Although a temporary restraining order with notice may exist beyond 10 days, the hearing must be set within a short time thereafter so as to prevent the potential significant consequences of only a summary proceeding to exist more than a short period of time. We have held that a temporary restraining order with notice which is to exist beyond the 10-day period is a proper order where the hearing on the preliminary injunction is scheduled immediately following the expiration of a 10-day order. (Lawter International, Inc. v. Carroll (1982), 107 Ill. App. 3d 938, 438 N.E.2d 590.) This holding comports with the rationale that a temporary restraining order is an emergency proceeding to maintain the status quo until a hearing can be held on the preliminary injunction. (People ex rel. Pollution Control Board v. Lloyd A. Fry Roofing Co. (1972), 4 Ill. App. 3d 675, 281 N.E.2d 757.) A hearing on a preliminary injunction that is delayed for more than a short period of time, or as in this case, a hearing at an unspecified date in the not immediately foreseeable future, does not comport with the statutory scheme.

Therefore, the order of the trial court allowing the temporary restraining order is affirmed and in accordance with the request of the defendant, the cause is remanded with instructions to proceed with an immediate hearing on the motion for the preliminary injunction.

An additional issue urged by Stuart on appeal is that the court erred in not requiring Jurco to post bond. On the basis of the record before us, we cannot determine the factual basis upon which the trial court made this decision. Therefore, we are unable to respond to this issue in any meaningful way on appeal.

Affirmed and remanded.

JOHNSON, P.J., and LINN, J., concur.


author: PRESIDING JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES ROGERS, Defendant-Appellant.
    First District (3rd Division)
    No. 80—3273
    Opinion filed November 3, 1982.
    Rehearing denied December 14, 1982.

      James J. Doherty, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Stephen R. Botti, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Following a jury trial, defendant, Charles Rogers, was found guilty of attempted robbery and sentenced to a term of imprisonment of SVa years. On appeal, he contends: (1) that he was not proved guilty beyond a reasonable doubt; (2) that the prosecution’s closing argument deprived him of a fair trial; and (3) that the trial court abused its discretion in having the court reporter read the jury portions of the complaining witness’ testimony.

The only occurrence witness produced by the prosecution at trial was the complainant, Captain Hemphill. Hemphill testified that at about 9:45 p.m. on June 13, 1980, he was waiting for a westbound bus near 1658 West Madison Street in Chicago. Defendant, whom he had never seen before that night, approached him and said something about knowing Hemphill from high school. Hemphill told defendant that “he did not know me.” After this conversation, defendant grabbed him by the arm and pulled him “to the side.” At that time, a second person approached Hemphill from behind, and defendant asked him “to unask the motherfucking money.” Defendant proceeded to go through Hemphill’s pockets, finding a dime and a wallet. There was no money in the wallet, and defendant returned both items to Hemphill. Defendant then said, “We know you have the money in your shoe, brother man.” At this time, a CTA bus drove up, and Hemphill ran for the bus. When he reached the bus, the bus driver would not open the door, so Hemphill ran down the street after it. While running west on Madison, Hemphill saw defendant running after him. After he passed the bus stop at Wood Street, Hemphill observed that the two men were no longer following him. He stopped at the next bus stop, Wolcott Street. A few minutes later, he saw defendant approaching him from the north. Hemphill then crossed Madison and defendant said, “Brother man, carry your motherfucking ass back.” Hemphill turned and saw that defendant was walking fast. Defendant was alone at this time. Hemphill ran down Madison, saw a Chicago police car and flagged it down. He told police officers about the attempted robbery. First the police incorrectly stopped one man; Hemphill shouted to them that they had the wrong man and pointed to the defendant. The police then stopped defendant and brought him back to where Hemphill was standing. At this time Hemphill identified defendant. Shortly thereafter, Hemphill toured the area with plainclothes police officers in search of the second offender. They did not find him.

Officers Ollie Gavin and Arthur Browder of the Chicago police department testified. Their testimony corroborated Hemphill’s testimony.

Defendant testified that at approximately 9:30 p.m. on June 13, 1980, he was sitting in the Skybox Lounge, a discotheque located at 1656 West Madison Street, writing his nickname, Disco King, on a $20 bill, when a person who looked like Hemphill approached and spoke with him. Defendant told this man that he had not attended Crane High School and that he did not live “out south.” Following the conversation, the other man walked away. Defendant put the money in his pocket, and fell asleep for a couple of minutes. He was awakened by a person named “Junebug,” and both men left the lounge together and walked a block west to a liquor store. Defendant ordered a half pint of rum, but when he reached in his pocket, he discovered his $20 bill was not there. He and Junebug then left the store and started back toward the lounge. On their way back, at approximately 9:45 p.m., defendant saw Hemphill standing by a bus stop with a couple of other people.

With regard to his confrontation with Hemphill, defendant testified that he held Hemphill’s arm for a few seconds and that he had a conversation with Hemphill. Junebug was present at this time. Defendant asked Hemphill if he had attended Crane High School and if he lived “out south.” Hemphill responded negatively to both inquiries. At this point, defendant said, “Man, you lying. Unask my motherfucking money.” Hemphill did not respond, and defendant went through Hemphül’s pockets and found a wallet and some change, perhaps only a dime. Defendant immediately returned the change, and he returned the wallet after he saw that his $20 bill was not there. Then a bus came, and Hemphill started to run toward it. Hemphill did not board the bus, and Junebug started chasing him. Defendant ran after Junebug, caught up with him after a block, and told him that Hemphill was not the man who had taken his money. Then Junebug “cut out,” and defendant walked back toward the Skybox Lounge. When defendant looked back, he saw Hemphill speak with the police and the police stop another man. When the police officers approached him, he did not try to run. The officers “frisked” him, put him in their car and took him to where Hemphill was standing. On cross-examination, defendant stated that he had assumed that Hemphill had taken his money.

On the basis of this evidence, the jury found defendant guilty of attempted robbery. Defendant’s first contention is that the evidence against him was so unsatisfactory as to raise a reasonable doubt of guilt. His argument is that his explanation that he merely attempted to recover a $20 bill that he mistakenly, but in good faith, believed Hemphill had taken from him a short time earlier, was far more probable and reasonable than Hemphill’s testimony of an attempted robbery. He further argues that improbable aspects of Hemphill’s testimony, inconsistencies in Hemphill’s testimony, and inconsistencies between Hemphill’s testimony and the arresting officers’ testimony, raised a reasonable doubt of guilt, especially in light of defendant’s reasonable explanation.

Robbery is defined by statute as the taking of “property from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1.) And the offense of attempted robbery is committed when with intent to commit a robbery, a person does any act which constitutes a substantial step toward the commission of that offense. (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4.) Defendant does not contend that Hemphill’s testimony failed to establish any of the elements of attempted robbery. Rather his argument goes to the weight of the evidence and the credibility of the witnesses.

It is well settled in Illinois that a reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses, and that a criminal conviction will not be reversed unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1977), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513; People v. Stringer (1972), 52 Ill. 2d 564, 568, 289 N.E.2d 631.) Hemphill’s testimony, if believed, was clearly sufficient to establish guilt beyond a reasonable doubt, and we will not disturb the jury’s verdict.

Defendant next contends that several closing argument comments by the prosecution deprived him of a fair trial. Several of these arguments were waived by his failure to object to the remarks during argument. (People v. King (1977), 66 Ill. 2d 551, 559, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) We elect to consider one of them. At the outset of its rebuttal closing argument, the prosecution commented that the burden to prove guilt beyond a reasonable doubt is not an “unreachable plateau” or “impossible goal” and that the burden is met every day in criminal courts throughout the nation. Similar comments in other cases have been held improper because they have “the effect of lessening the importance of the State’s burden of proof by implying that reasonable doubt was merely a proforma or minor detail.” (People v. Hopkins (1982), 107 Ill. App. 3d 422, 429, 437 N.E.2d 722; People v. Belton (1982), 105 Ill. App. 3d 10, 16-17, 433 N.E.2d 1119; People v. Martinez (1979), 76 Ill. App. 3d 280, 285, 395 N.E.2d 86.) However, several cases have also held that such a comment, although improper, was harmless beyond a reasonable doubt. (Hopkins; Belton; People v. Ayala (1981), 96 Ill. App. 3d 880, 883-84, 422 N.E.2d 127.) Here, even assuming that this issue had not been waived, we conclude that the error committed did not contribute to the jury’s verdict and was harmless beyond a reasonable doubt.

Defendant did object to the prosecution’s rebuttal closing argument comment that the people of the State of Illinois have a right to be free from crime and from criminals like defendant. We are of the opinion that any prejudice resulting from this comment was cured by the trial judge’s statement to the jury after the comment. Although he overruled the objection, the court admonished the jury that this was merely an argument of counsel and that it was the jury’s responsibility to evaluate and weigh the testimony of the witnesses.

Lastly, defendant contends that the trial court abused its discretion in having the court reporter read the jury portions of the complaining witness’ testimony. After the jury had deliberated for 2V2 hours, the jury sent a note to the trial judge which stated:

“The jury is split over the events surrounding the defendant pursing the plaintiff. Specifically, Mr. Hemphill testified that Mrs. (sic) Rogers and Junebug returned a second time to pursue Mr. Hemphill. Is it possible to review the testimony regarding that sequence of events? At least to discuss them.”

In response to the jury’s request, the trial judge, the assistant State’s Attorney, defense counsel, and the court reporter reviewed the court reporter’s notes of the testimony relating to the sequence of events in question. Then the trial judge, stating that the grant or denial of the request was within his discretion, had two segments of Hemphill’s direct examination testimony read to the jury. In the first segment, Hemphill testified that a few minutes after the first confrontation, he saw defendant approaching him and that he crossed Madison Street. At this point, the man across the street said, “Brother man, carry your motherfucking ass back.” Hemphill turned and saw that defendant was walking toward him fast, so he ran down Madison Street. In the second segment, Hemphill testified that the second time he saw defendant that night, defendant was coming from the north. Approximately 30 minutes after this testimony was read, the jury returned a verdict of guilty.

It is within the discretion of the trial court to allow or refuse a jury’s request for a review of testimony. (People v. Pierce (1974), 56 Ill. 2d 361, 364, 308 N.E.2d 577.) “In the exercise of its discretion, the trial court is charged with determining whether a review of the testimony requested would be helpful or harmful to the jury’s proper deliberations.” (People v. McClellan (1979), 71 Ill. App. 3d 611, 616-17, 390 N.E.2d 131; People v. Bell (1976), 44 Ill. App. 3d 185, 193, 357 N.E.2d 1256.) And it “may grant the jurors the opportunity to have read to them testimony that is relevant to their inquiry but which does not encompass all of the testimony of the prosecution and the defense.” People v. Pallardy (1981), 93 Ill. App. 3d 725, 730, 417 N.E.2d 851.

A review of the two segments of Hemphill’s testimony would have been helpful to the jury because, if believed, it would render defendant’s testimony that he mistakenly thought Hemphill had taken money from him incredible. Defendant had testified that after his confrontation with Hemphill on the street, he realized that Hemphill was not the person at the Skybox Lounge. If this were true, defendant would have had no reason to pursue Hemphill a second time after he knew that Hemphill had not taken his money. Indeed, defendant’s testimony was inconsistent with a second pursuit. Furthermore, the testimony to be read to the jury was not lengthy, and reading it would cause no unreasonable delay. Under these circumstances, we conclude that the trial court did not abuse its discretion in permitting a review of the two segments of Hemphill’s testimony.

Defendant argues, however, that the jury’s note was ambiguous in that it could be construed as a request only for a review of Hemphill’s testimony regarding the second pursuit or as a request to review all the testimony regarding the second pursuit. We observe that the note only referred to the testimony of Hemphill. "However, even if we were to construe the note more broadly, it is clear from the record that Hemphill was the only witness to testify as to the second pursuit. Therefore, we conclude that there was no abuse of discretion in not having that part of defendant’s testimony concerning the events which occurred after Hemphill ran for the bus read to the jury.

Defendant also argues that it was error to rely on the notes of the court reporter and that as a consequence of such reliance, inconsistent testimony given by Hemphill on cross-examination was not read to the jury. Defendant refers to Hemphill’s cross-examination testimony that at the time of the second pursuit, he did not have any conversation with defendant. On direct examination, Hemphill had testified that defendant said, “Brother man, carry your motherfucking ass back.” In our opinion, there is no inconsistency between the direct and cross-examination testimony because a threatening statement by the defendant to the victim is not a conversation. Since there was no inconsistency between the portions of Hemphill’s testimony that was read and the omitted portion, no prejudice resulted from the procedure. (People v. Pallardy (1981), 93 Ill. App. 3d 725, 731.) Moreover, Pallardy recognized that a trial court, in the exercise of its discretion, may properly allow testimony to be read from a court reporter’s notes. 93 Ill. App. 3d 725, 730.

Lastly, defendant argues that the trial judge’s instructions to the jury at the time the testimony was read improperly suggested that the jury should make no further requests for review of the testimony. This contention is not supported by the record. The words of the trial judge were:

“Now, I am going to give a direction to the court reporter to read back to you those two areas of the transcript. *** Please do not make any comments to the Court, do not make any oral comments, or do not make any additional questions to the Court. If you have any questions, and I am not encouraging them, if you have any later one, they may be put in writing.”

Thus, the trial judge attempted to prevent any oral questions. He did not, however, prohibit subsequent written questions.

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

Affirmed.

McNAMARA and RIZZI, JJ., concur.

      We express no opinion as to whether defendant’s testimony that he was mistakenly attempting to recover his own money, if believed by the jury, would support a conviction of attempted robbery. (See People v. Uselding (1969), 107 Ill. App. 2d 305, 309-10, 247 N.E.2d 35; but see W. LaFave and A. Scott, Criminal Law see. 94, at 693-94 (1972).) And we specifically observe that defendant’s testimony as to his “innocent mistake” is inconsistent with Hemphill’s testimony as to his second confrontation with defendant. Defendant did not testify to any second confrontation.