author: PRESIDING JUSTICE McNAMARA

text:
    CATHERINE SASKILL et al., Plaintiffs-Appellees, v. 4-B ACCEPTANCE et al., Defendants-Appellants.
    First District (3rd Division)
    No. 82 — 380
    Opinion filed August 17, 1983.

      Jerome H. Torshen, Ltd., and Terrance E. Leonard, Chartered, both of Chicago (Jerome H. Torshen and Abigail K. Sprey, of counsel), for appellants.
    William J. Harte, Ltd., of Chicago (William J. Harte and John B. Austin, of counsel), for appellees.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Catherine Saskill brought this action against defendants 4-B Acceptance, Joseph Buttitta and Jack Buttitta, alleging that a loan made by defendants to plaintiff at a usurious rate of interest violated the Illinois Interest Act. (Ill. Rev. Stat. 1979, ch. 74, par. 1 et seq., now codified at ch. 17, par. 6401 et seq.) Jack Buttitta was dismissed as a defendant prior to trial. After a trial without a jury, the trial court satisfied the indebtedness of plaintiff due under the loan and entered judgment for $127,242.10 plus fees and costs. The trial court subsequently reduced the amount of the judgment from $127,242.10 to $75,000. Defendants appeal.

Plaintiff was the beneficial owner of residential property which was sold pursuant to a mortgage foreclosure. When plaintiff spoke to Jack Buttitta about a loan of $90,000 to redeem her property, he referred plaintiff to attorney Arthur Newell, who had done legal work for the Buttitta family businesses. Plaintiff met Newell in May 1979 and signed a letter authorizing Newell, as her attorney, to review the documents relating to her property. Plaintiff next heard from Newell a few days before June 5, the expiration date of the redemption period, and was instructed to bring $5,000 to his office on June 4.

At Newell’s office, plaintiff met Joseph Buttitta, an attorney, insurance broker and sole proprietor of 4-B Acceptance, a company which provides financing for 4-B Auto Brokers, a business owned by his brother Jack. Newell informed plaintiff that Buttitta had agreed to lend her $100,000 which, along with her $5,000, would enable her to redeem her property. Plaintiff signed a loan disbursement prepared by Newell which distributed loan proceeds as follows:

Thus, in exchange for $100,000 Buttitta received a note for $115,000 at 11% interest, the then authorized maximum legal rate of interest on residential loans, a check for $4,900 for loan charges and two other checks for taxes and interest. Plaintiff contributed $4,145 to the transaction.

In July, plaintiff requested from Newell copies of all the transaction documents as well as an explanation as to what happened to her $5,000. In September, plaintiff picked up copies of the transaction papers from Newell. Plaintiff told Newell that she would begin making loan payments when her cash contribution was returned. The money was not returned. Plaintiff thereafter filed the present suit alleging that defendant’s extraction of miscellaneous fees, loan charges, miscellaneous personal payouts as well as plaintiff’s contribution of $4,145 constituted interest in addition to the maximum legal rate of interest charged in the note and therefore rendered the loan usurious.

At trial, plaintiff established that the terms of the loan were never discussed with her before the June 4 meeting. Testimony was conflicting, however, as to the extent of Buttitta’s input regarding the loan terms. Buttitta denied discussing the terms of the loan with Ne-well prior to June 4, and testified that he was only told by Newell to bring $100,000 on June 4 to invest. At Newell’s office, Buttitta reviewed the disbursement statement and relied on Newell’s figures. He asked only about the $10,000 miscellaneous personal payouts and why he was lending $100,000 and receiving in return a note for $115,000. Newell replied that he should leave the transaction to Newell. Buttitta sat back, heard Newell explain the disbursement statement to plaintiff, and then accepted the terms of the agreement. Upon returning to his office, Buttitta asked his bookkeeper to examine the note because it “didn’t look good,” but later attempted to collect on it.

In contrast, Newell testified that he had discussed the terms of the loan with Buttitta prior to June 4, and that a charge of 15 to 20 percentage points had been mentioned. Ultimately, Buttitta wanted 15 points in addition to the 11% interest rate. The amounts designated as loan charges and miscellaneous payouts were part of the 15 points discussed. The sum of $10,000, or 10 points, designated as miscellaneous personal payouts, was included in the principal sum on the note so that this amount would be included in the interest calculation over the 25-year period. Newell did this to protect against fluctuating interest rates and to “sweeten the pot” in order to induce Buttitta to make the loan. Newell stated that he did not know then that percentage points are treated as interest in interest rate computations..

The trial court found that plaintiff had demonstrated by clear and convincing evidence that defendants received exactly what they sought, that is, 11% interest plus 15 percentage points carried over the 25-year period of the note, plus $5,000 in cash as loan charges. Accordingly, the court entered judgment for plaintiff and awarded damages pursuant to section 6 of the Interest Act.

On appeal, defendants contend that section 6, the usury penalty provision, is inapplicable to the present loan transaction, that the trial court improperly construed section 6 to determine the amount of damages, and that section 6 is unconstitutional.

We first address defendants’ contention that the present loan transaction is exempt from the penalty provisions of section 6. Pursuant to section 6, an obligor is entitled to recover statutory damages “[i]f any person or corporation knowingly contracts for or receives, directly or indirectly, by any device, subterfuge or other means, unlawful interest, discount or charges for or in connection with any loan of money ***.” It further provides, however, that “[a] bona fide error in connection with the loan shall not be a violation under this section if the lender corrects the error within reasonable time.” Ill. Rev. Stat. 1979, ch. 74, par. 6.

Defendants admit that the interest charged in the transaction is excessive. They assert, however, that it was not intentionally excessive, but rather that it was the result of bona fide errors made by defendants and Newell. Specifically, they argue that the usurious interest rate resulted in part from Newell’s bona fide error regarding the treatment of percentage points as interest, and in part from bona fide errors made in the transaction documents regarding the amount of principal.

Whether a loan is usurious depends on whether the party intended to charge unlawful interest. (Dobie v. Livengood (1957), 12 Ill. App. 2d 343, 139 N.E.2d 599.) This question of fact is determined by the nature and substance of the transaction rather than its form, to insure against evasion of the statute by a party’s ingenious schemes or devices. (Chicago Title & Trust Co. v. Jensen (1933), 271 Ill. App. 419.) Because the trial judge sitting as trier of fact is in a superior position to hear and weigh the evidence and determine the credibility of the witnesses, the findings of the trial court will not be disturbed unless they are against the manifest weight of the evidence. Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205.

While the testimony was conflicting and although Newell may have been mistaken about the computation of interest rates, the evidence set forth above which was before the trial court makes it clear that defendants and Newell knew that plaintiff was being charged more for the use of defendants’ money than the statute permits. Defendants may not evade the statute by assessing charges for the use of their money under the guise of a charge labeled as something other than interest. Furthermore, defendants’ argument that an incorrect amount of principal was mistakenly inserted in the loan transaction documents due to the pressure of the approaching redemption period expiration date is irrelevant to defendants’ bona fide error defense. That alleged error bears only upon whether defendants intended to charge plaintiff a total of 15 or 20 points. Since defendants charged the maximum rate, the intentional charge of any percentage points in addition to this interest was a clear violation of the usury statute. Thus the trial court’s findings that plaintiff established by clear and convincing evidence that defendants intentionally charged unlawful interest and that the usurious interest was not the result of bona fide errors are fully supported by the manifest weight of the evidence.

While we need not address further defendants’ bona fide error defense, we note that the defense is available only to those lenders who attempt to correct such errors within a reasonable time. (Ill. Rev. Stat. 1979, ch. 74, par. 6.) Upon review of the conflicting evidence as to when defendants had notice of the errors, we find the trial court’s determination that defendants’ efforts to correct the errors after suit was filed was not within a reasonable time, not to be against the manifest weight of the evidence. See Greene v. City of Chicago.

Defendants next contend that the award of damages is incorrect because it is based upon an erroneous interpretation of the penalty computation provisions of section 6. When a person or corporation knowingly exacts usury, section 6 provides that the obligor may recover:

“an amount equal to twice the total of all interest, discount and charges determined by the loan contract or paid by the obligor, whichever is greater, plus such reasonable attorney’s fees and court costs as may be assessed by the court against the lender. The payments due and to become due including all interest, discount and charges included therein under the terms of the loan contract, shall be reduced by the amount which the obligor is thus entitled to recover.” Ill. Rev. Stat. 1979, ch. 74, par. 6.

In calculating plaintiff’s damages, the trial court followed the explicit language of the statute. It doubled the amounts of all interest, discount and charges assessed against plaintiff to obtain the amount of recovery to which plaintiff was entitled. This amount was then set off against the amounts of payments due and to become due under the contract. Because of the length of the loan and the total amount of interest defendants sought to gain, plaintiffs indebtedness on the note was fully satisfied and in addition she was entitled to recover $127,242.10, the amount remaining after the set-off.

Defendants argue that the trial court’s interpretation of section 6 imposed a forfeiture and an unconscionable result, contrary to law and common sense. They urge that, when given a proper construction, the penalty provision which sets forth the amount of recovery as “twice the total of all interest, discount and charges,” should be construed to mean unlawful interest. We disagree.

The primary rule of statutory construction is to give effect to the intention of the legislature. Legislative intent is derived primarily from a consideration of the statutory language itself. (People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365, 432 N.E.2d 855.) Here, the language setting forth the method of calculating damages is clear and unambiguous. It states that when a lender intentionally charges unlawful interest the obligor may recover double the amount of all interest determined by the contract. It is difficult to imagine a clearer expression of legislative intent as to the calculation of damages.

Defendants’ argument that the trial court’s interpretation contravenes the intent of the legislature to eliminate forfeitures from the usury statute is simply erroneous. Before 1963, both section 6 and section 8 of the Act contained the same penalty clause which provided the usurers “shall forfeit the whole of the interest so contracted to be received and shall be entitled only to recover the principal sum due ***.” (Ill. Rev. Stat. 1961, ch. 74, pars. 6, 8.) Defendants argue that the 1963 substitution of section 6’s present penalty, the concurrent substitution of section 8’s language which retained the forfeiture language and stated that persons “shall be subject to section 6 of the Act,” and the ultimate elimination of a penalty clause in section 8 in 1981, show an intent to eliminate forfeitures from the Act. Pursuant to the 1963 amendments, unwitting userers forfeit all interest charged on the note, while intentional userers may be charged double the total of all interest charged plus attorney fees and court costs. Thus, contrary to defendants’ contention, the legislature did not intend to eliminate forfeiture of all interest for those who knowingly charged excessive interest. Moreover, the ultimate elimination of the section 8 penalty in 1981 merely evidences the legislative intent to eliminate any penalty for unintentional userers.

We also reject defendants’ contention that the trial court’s interpretation is contrary to the purpose of the Act. The purpose of the usury statute is to protect weak and necessitous borrowers, such as plaintiff, from oppression of unscrupulous lenders. (Firebaugh v. Seegren (1932), 265 Ill. App. 381.) Certainly, a penalty imposing harsh consequences only upon knowing violators is consistent with this purpose. Thus, the trial court’s award of damages was correct. See Merchandise National Bank v. Scanlon (1980), 86 Ill. App. 3d 719, 408 N.E.2d 248; Jones & Brown, Inc. v. W. E. Erickson Construction Co. (1979), 73 Ill. App. 3d 481, 391 N.E.2d 1097.

Defendants’ final contention is that section 6 of the Act is unconstitutional. Although defendants argue that the penalty provisions of section 6 are vague and contradictory and therefore deny lenders due process of law, we have determined above that these provisions are clear, consistent and unambiguous. We therefore need not further address that argument. Defendants also maintain that as construed by the trial court the penalty is not rationally related to the severity of the offense, creates an irrational classification between long-term and short-term loans and operates to treat such loans unequally.

There is, however, an obvious rational basis for the computation provisions of section 6 which allow greater recoveries for greater loan periods. The length of the loan directly affects the amount of interest the lender ultimately seeks to gain. Thus, these penalty provisions are rationally related to legitimate State interests and therefore do not violate either the due process or equal protection clauses of the Federal or State constitutions.

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

Judgment affirmed.

WHITE and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JONES

license: Public Domain

text:
    EDWARD A. DINTELMAN et al., Plaintiffs-Appellants, v. ALLIANCE MACHINE COMPANY et al., Defendants-Appellees.
    Fifth District
    No. 82 — 708
    Opinion filed August 30, 1983.
    Robert C. Nelson and Victoria J. Ehret, both of Belleville, for appellants.
    Stephen J. Maassen, of Hoagland, Maucker, Bernard & Almeter, of Alton, for appellee Koppers Company, Inc.
   JUSTICE JONES

delivered the opinion of the court:

In this appeal the plaintiffs, Edward A. Dintelman and Carla S. Dintelman, challenge the trial court’s ruling that the statute of repose (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 213, formerly Ill. Rev. Stat. 1981, ch. 83, par. 22.2) applies to a product liability action based upon a theory of negligence.

On July 29, 1981, the plaintiffs, husband and wife, filed a complaint against “Unknown Manufacturers and Sellers or Vendors” seeking damages for personal injury suffered on April 3, 1981, by Edward Dintelman in the course of employment. Carla Dintelman sought damages in the suit for loss of consortium. Because of a problem with a lever, a crane and/or a trolley were set in motion and, apparently, rolled into Edward Dintelman, who suffered serious injury. Plaintiffs subsequently filed a second amended complaint consisting of 20 counts against five defendants, Alliance Machine Company, Koppers Company, Inc.- (hereinafter Koppers), Cutler-Hammer, Inc., Manning, Maxwell and Moore, Inc., and Euclid Crane and Hoist Company. The first 10 counts of that complaint are based upon a theory of strict liability in tort; the second 10 counts upon a theory of negligence. Alleging that the statute of repose barred the action, defendant Koppers moved for summary judgment as to counts III and IV, the counts in strict liability in tort directed against it, and for dismissal with prejudice of counts XIII and XÍV, the counts in negligence directed against it.

The statutes provides in pertinent part:

“(b) Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.” (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 213(b).)

In an affidavit that was filed by defendant in support of its motion for summary judgment, Koppers’ Contract Manager during the time the crane and trolley in question were being assembled and installed at the Granite City Steel Company stated that all of Koppers’ work with regard to the crane and trolley was completed on or before August 23, 1967. Plaintiff’s injury had occurred, then, approximately lSVa years after the product had been placed in the stream of commerce. In the motion to dismiss counts XIII and XIV Koppers alleged that the counts were “product liability causes of action based upon a theory of negligence in the construction, design or manufacture of a crane and/or trolley” and that such actions are barred by the statute of repose. Pursuant to the statute, the trial court granted Koppers’ motion for summary judgment as to counts III and IV and for dismissal with prejudice of counts XIII and XIV. Pursuant to Supreme Court Rule 304(a) (Ill. Rev. Stat. 1981, ch. 110A, par. 304(a)), the trial court found that there was no just reason for delaying enforcement or appeal with respect to the judgment.

On appeal plaintiffs do not dispute the granting of summary judgment as to counts III and IV, admitting in their brief that the statute expressly applies to actions brought under a theory of strict liability. They dispute the dismissal of counts XIII and XIV, however, contending that the statute of repose does not apply to product liability actions based upon a theory of negligence. Koppers argues that “to permit a negligence action to be brought upon allegations identical to a strict liability action[,] which is precluded by the Statute of Repose, would frustrate and defeat the purpose of the Statute.” The allegations in an action for negligence are not, however, “identical to” those in an action for strict liability in tort. Although many of the same facts may need to be proved in a suit brought in both negligence and strict liability in tort, the two causes of action consist of different elements that must be proved to prevail. Whereas liability may be imposed for negligence only if the plaintiff can prove fault on the part of the defendant, strict liability in tort is strict liability, though not absolute (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104), and is imposed despite the absence of fault on the defendant’s part in order to protect the public from unreasonably dangerous products (see Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77, 338 N.E.2d 857).

In Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 725, 425 N.E.2d 522, 524, upon which plaintiffs rely, the court reiterated the suggestions of the parties in that suit that “the legislative purpose sought by enactment of the products liability statute of limitations was to dampen the rapid escalation of insurance rates which has accompanied the widened exposure to lawsuits of those in the chain of manufacture and distribution of products since the advent of products liability actions based on strict liability in tort.” In an action for strict liability in tort, as in an action for negligence, the plaintiff is free of the barrier of the contract defenses possible in an action based upon warranty. In an action for strict liability in tort, as opposed to an action in negligence, the plaintiff is free as well of the difficulty of proving negligence in a manufacturing process with which he is unfamiliar. Thus, an action in strict liability in tort is decidedly different from an action in negligence, there being, in the words of the court in Liberty Mutual, “fundamental differences” (62 Ill. 2d 77, 84, 338 N.E.2d 857, 861) between them. Indeed, the difference accounts for the “avalanche,” in the words of Dean Prosser (W. Prosser, Handbook of the Law of Torts 658 (4th ed. 1971)), of product liability cases that followed recognition of the theory of strict liability in tort and the concomitant escalation of insurance rates. In fact, the court in Thornton, holding the statute of repose constitutional, concluded that the statute bears a reasonable relationship to its intended purpose because of these very differences between actions brought under a theory of strict liability and actions brought under a theory of negligence and warranty. In response to the appellant’s contention that the statute was “arbitrary because it imposes a limitation only with respect to actions grounded upon strict liability in tort, but not those based upon negligence or warranty,” the court said:

“[T]he recent evolution of the doctrine of strict liability in tort reflected in Illinois case law testifies to the independence which this cause of action has won from the traditional constraints of negligence and warranty. [Citations.] These cases illustrate that unlike ordinary negligence, a manufacturer or distributor of a product may be held liable under a theory of strict liability in tort regardless of the degree of care exercised; and unlike warranty, recovery is limited neither by traditional rules of contractual privity, nor by the time constraints which usually accompany warranties. Based upon these different considerations, it cannot be said that the legislature served no rational purpose by imposing a limitation upon products liability actions grounded on strict liability in tort which is absent from warranty and negligence.” 99 Ill. App. 3d 722, 725, 425 N.E.2d 522, 524-25.

Furthermore, the legislature has defined the term “product liability action” as used in the statute: It is well established that the doctrine of strict liability in tort, in which liability may be imposed without fault on the part of the defendant, does not include negligence (Liberty Mutual; Woodill v. Parke Davis & Co. (1978), 58 Ill. App. 3d 349, 374 N.E.2d 683, aff'd, 79 Ill. 2d 26, 402 N.E.2d 194), in which liability may be imposed on the defendant only if he has been at fault. By its express reference to the doctrine of strict liability, the legislature intended the statute of repose not to apply to actions brought under a theory of negligence. The legislature chose to permit a plaintiff to sue in negligence, beyond the period of time specified in the statute of repose, in the knowledge that the need to prove fault in a product liability action will make it more difficult for such a. plaintiff to prevail, as opposed to a plaintiff suing, were he permitted to do so, in strict liability in tort. The legislature made such a choice in the further knowledge that the problems of proof in such a suit can only increase with the passage of time. Defendant has cited to us several secondary sources concerning statute of repose. However, the legislature has limited the application of the statute brought in strict liability in tort, and we abide by its will.

“(3) ‘product liability action’ means any action based on the doctrine of strict liability in tort brought against the seller of a product on account of personal injury, (including illness, disease, disability and death) or property, economic or other damage allegedly caused by or resulting from the manufacture, construction, preparation, assembly, installation, testing, makeup, characteristics, functions, design, formula, plan, recommendation, specification, prescription, advertising, sale, marketing, packaging, labeling, repair, maintenance or disposal of, or warning or instruction regarding any product. This definition excludes actions brought by State or federal regulatory agencies pursuant to statute.” (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 213(a)(3).)

For these reasons we affirm that part of the order of the trial court granting summary judgment as to counts III and IV and reverse that part of the order dismissing counts XIII and XIV of plaintiffs’ second amended complaint and remand the cause to the circuit court for further proceedings.

Affirmed in part; reversed in part and remanded.

EARNS and EASSERMAN, JJ., concur.


author: JUSTICE O’CONNOR

text:
    CASTRO GUERRERO, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (3rd Division)
    No. 82 — 2214
    Opinion filed August 17, 1983.

      James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Cheryl L. Smalling, Assistant Corporation Counsel, of counsel), for appellant.
    Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin R. Becker, Howard A. London, and David N. Baum, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Castro Guerrero, brought suit for damages against the defendant, city of Chicago, for injuries allegedly suffered from a fall on a city sidewalk. A jury awarded plaintiff $50,000 and found that he was 6% negligent. Judgment was entered against the city for $47,000. Defendant appeals, contending that (1) the circuit court incorrectly barred defendant from cross-examining the treating physician as to his opinion based upon the contents of a hospital medical record, and (2) a remittitur should be granted because the damages awarded were excessive and not supported by the record. We affirm.

Plaintiff testified that between 2:30 and 3 a.m. on December 14, 1975, he fell through a hole in a city sidewalk on the ten-hundred block of West Madison Street in Chicago. The hole was about two feet wide and waist deep. After he fell, he felt a sharp pain above his right ankle. As he climbed out of the hole, he discovered a deep cut in his leg and blood all over his pants, sock and shoe. There was glass in the hole. Plaintiff was helped to a cab and went to Cook County Hospital, where he was operated on by Dr. Philip Fitzsimons.

Dr. Fitzsimons testified that plaintiff had a three-inch laceration of the lower right leg, three severed tendons which he reconnected by suture, and a severed peroneal nerve which could not be repaired. Plaintiff’s leg was placed in a cast for five-six weeks.

Plaintiff used crutches or a cane for approximately 11 months. He testified that since the accident the top of his right foot has been numb and that his leg was very swollen and painful for a long time after the accident and that his leg still swells up and hurts if he stays on it too long; further, that his ability to raise his right foot is limited. Dr. Fitzsimons, in response to a hypothetical question, stated that plaintiff’s disability resulted from the accident and was permanent.

Dr. Fitzsimons was shown the hospital’s medical history, which he had not prepared. It was not in his handwriting. It had been prepared by the senior resident who was on call at the time plaintiff came to the hospital. The next morning, because Dr. Fitzsimons’ surgical team was operating then, the senior resident told Dr. Fitzsimons that “I have a gentleman that needs surgery. He has several tendons lacerated.” Dr. Fitzsimons examined plaintiff prior to surgery. He was not necessarily familiar with having read through the report. He may have, but he had no recollection of it. The report had on it, in Dr. Fitzsimons’ handwriting, his summary which stated, “Case reviewed.” This meant he had reviewed the case with, he assumed, a Dr. Blair, who was also a fellow resident at Cook County. Dr. Fitzsimmons discussed the case with him and explained his (Dr. Fitzsimons’) findings and plans for the operating room.

Defendant sought to cross-examine Dr. Fitzsimons concerning this record, which apparently contained a statement that plaintiff had fallen on glass while running in an alley. The record was not introduced in evidence. The trial court, relying on Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140, refused to allow the cross-examination. Defendant contends that under Wilson the medical report (and all it contains) is a part of the hospital’s records which have a “high degree of reliability” and, therefore, it should have been allowed to cross-examine Dr. Fitzsimons concerning that statement. We disagree. A reading of Wilson shows that the change in law there brought about by the supreme court was confined to the medical aspects of hospital records.

In Bailey v. City of Chicago (1983), 116 Ill. App. 3d 862, defendants sought to attribute the plaintiff’s psychological problems or his second hospitalization to an incident with a little girl. The court stated:

“Defendants, however, assert that the incident was established by a defense witness’ reference to a notation in one of plaintiff’s hospital records that plaintiff ‘was accused by a neighborhood lady of accosting her fourteen-year-old daughter.’ Plaintiff’s hospital records were not introduced into evidence and the physician to whom plaintiff allegedly made the statement did not testify. Citing Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, defendants argue that the witness could rely on the notation in the records as substantive evidence that the incident occurred. In our judgment, defendants have misread Wilson.
In Wilson, the supreme court adopted Federal Rule of Evidence 703, which permits an expert to give his opinion on the basis of facts which have not been admitted into evidence, if such facts are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject (whether or not the witness may be categorized as a treating or a nontreating expert); and Federal Rule of Evidence 705, which permits an expert to give his opinion without initially disclosing the facts underlying it (unless the court requires otherwise) and which provides that he may be required on cross-examination to disclose the underlying facts. 84 Ill. 2d 186,192-96.
As the appellate court has noted, Wilson ‘deals with testimony of experts based upon medical records, not with the admission of the records themselves.’ (Thompson v. Lietz (1981), 95 Ill. App. 3d 384, 391, 420 N.E.2d 232.) ***.” (116 Ill. App. 3d 862, 865-66.)

Further, in Bailey plaintiff was cross-examined as to whether he had beaten his father prior to his third hospitalization. The court stated:

“The only evidence that plaintiff had struck his father was contained in hospital records which were not introduced into evidence. The physiqian to whom plaintiff allegedly made this admission did not testify. Thus, contrary to defendants’ argument, it was improper to consider the reference in the hospital record to this incident as substantive evidence that the beating occurred. [Citations.]” 116 Ill. App. 3d 862, 867.

The court properly refused to allow Dr. Fitzsimons to be cross-examined concerning the statement in the hospital record as to how the accident happened. The fact that the doctor who wrote that part of the report was claimed to be unavailable because he was out of the State did not legitimatize, under Wilson, defendant’s attempted cross-examination. See Minor v. City of Chicago (1981), 101 Ill. App. 3d 823, 428 N.E.2d 1090, appeal denied (1982), 91 Ill. 2d 553, as to when a medical history record was improperly excluded.

Defendant also contends that the damages awarded were excessive and that this court should enter a remittitur. We disagree.

The amount of á verdict is largely within the discretion of the jury. (Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 158 N.E.2d 63.) The granting of a remittitur is appropriate only when the damages awarded are beyond the “ ‘flexible range of what is reasonably supported by the facts.’ ” (Brandel v. Yellow Cab Co. (1981), 98 Ill. App. 3d 88, 100, 423 N.E.2d 1237, appeal denied (1981), 85 Ill. 2d 563.) We have examined the record and find that the damages awarded do not violate that standard.

Plaintiff requested damages for past pain and suffering, future pain and suffering, disability and disfigurement. Defendant concedes past pain and suffering and disfigurement, but contends that future pain and suffering and disability are not established by the evidence. Plaintiff testified that he still has intermittent pain and numbness in his right foot, which has limited motion. Defendant argues that because plaintiff’s job requires him to walk up to 10 miles a day on railroad ties and gravel, he has suffered no disability. Plaintiff’s physical condition and the damages suffered were for the jury. We cannot say that verdict was so unreasonable that a remittitur should be ordered.

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

Affirmed.

McNAMARA, P.J., and WHITE, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLES GAS LIGHT AND COKE COMPANY, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (1st Division)
    No. 83 — 402
    Opinion filed August 15, 1983.

      Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Maureen Kelly Ivory, Assistant' Corporation Counsel, of counsel), for appellant.
    Simon & Spitalli and Hopkins & Sutter, both of Chicago (Raymond F. Simon, Joseph A. Spitalli, Peter B. Freeman, Michael M. Conway, William Carlisle Herbert, and Joseph F. Griffin, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

On February 1, 1983, the plaintiff, Peoples Gas Light and Coke Company, filed a verified complaint for declaratory and injunctive relief which alleged that the city of Chicago’s “Winter Gas Termination and Reconnection Ordinance” (Municipal Code of the City of Chicago 1983, ch. 187.1) was unconstitutional. The ordinance prohibited Peoples Gas from terminating gas service to any residential customer or master-metered residential building during the months of November through March inclusive. The ordinance also required the gas utility to reconnect service to any residential consumer or residential master-metered building where certain minimal payment provisions were met.

On February 15, 1983, a hearing was held on plaintiff’s motion for a temporary restraining order to enjoin the enforcement of the city’s ordinance. At the time set for hearing, the city had yet to file a verified answer to plaintiff’s complaint. Argument was heard in support of and in opposition to the issuance of the temporary restraining order (TRO). At the conclusion of oral argument, the judge stated that he would grant the TRO. With the court’s permission, the city then filed its unverified answer instanter and the court entered the following order:

“IT IS HEREBY ORDERED THAT, for the reasons stated in open court and for the reasons that all requirements for entry of a temporary restraining order with notice having been satisfied, the motion of plaintiff The Peoples Gas Light and Coke Company for entry of a temporary restraining order is granted and defendant the City of Chicago and its agents be and they hereby are restrained and enjoined until further order of Court from application and enforcement of the Winter Gas Termination and Reconnection Ordinance, Chapter 187.1 of the Municipal Code of the City of Chicago;
IT IS FURTHER ORDERED, pursuant to the-agreement of the parties that the duration of the temporary restraining order shall continue beyond 10 days until further order of the Court and that no preliminary injunction hearing shall be scheduled until and unless requested of the Court by either party.”

Immediately after the above order was entered, the city filed a motion to dissolve the TRO which was denied, and the present interlocutory appeal was perfected by the city pursuant to Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)).

On appeal, the city contends that the TRO entered below is in reality a preliminary injunction and that the trial court abused its discretion by entering such an order without first conducting an evidentiary hearing. The city argues that such a hearing is necessary to determine whether established standards for granting a preliminary injunction were met. We disagree.

Section 3 and section 3 — 1 of the Injunction Act (Ill. Rev. Stat. 1981, ch. 69, pars. 3, 3 — 1, now codified at Ill. Rev. Stat. 1981, ch. 110, pars. 11 — 101, 11 — 102) establish a three-tier system of injunctive relief consisting 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; Jurco v. Stuart (1982), 110 Ill. App. 3d 405, 408, 442 N.E.2d 633.) The temporary restraining order is an emergency remedy issued to maintain the status quo until a hearing can be held on an application for a preliminary injunction. (Bismarck Hotel Co. v. Sutherland (1980), 92 Ill. App. 3d 167, 175, 415 N.E.2d 517.) Whether a temporary restraining order is with or without notice, it is issued upon a summary showing of the necessity of the order to prevent immediate and irreparable harm. (Jurco v. Stuart (1982), 110 Ill. App. 3d 405, 408.) In contrast, the function of a preliminary injunction is to maintain the status quo until the case is disposed of on the merits. (Bismarck Hotel Co. v. Sutherland (1980), 92 Ill. App. 3d 167, 175.) An evidentiary hearing on an application for a preliminary injunction is normally required where a verified answer has been filed denying material allegations in the complaint. (Centennial Laundry Co. v. West Side Organization (1966), 34 Ill. 2d 257, 215 N.E.2d 443.) Oral argument is not considered proper evidence for issuance of a preliminary injunction. Jurco v. Stuart (1982), 110 Ill. App. 3d 405, 409.

From the foregoing, it is clear that the classification of the February 15 order as a temporary restraining order or a preliminary injunction will be determinative of the type of hearing required for issuance of the order. We find the order entered below to be a temporary restraining order issued to maintain the status quo pending a full hearing on a preliminary injunction. As such, plaintiff had only to make a summary showing that a TRO was necessary to prevent immediate and irreparable harm. We also find the verified allegations in plaintiffs complaint adequate in this respect.

The city relies primarily on Kable Printing Co. v. Mount Morris Bookbinders Union Local 65 — B (1976), 63 Ill. 2d 514, 349 N.E.2d 36, to support its contention that the order entered below is a preliminary injunction and not a temporary restraining order. The city maintains that Kable has eliminated any distinction between a temporary restraining order issued with notice and a preliminary injunction. A careful examination of the facts in Kable leads us to believe the city’s reliance is misplaced.

In Kable, both parties appeared in court and, after a lengthy discussion in chambers, the court entered an order that was entitled “Court Order for Temporary Restraining Order.” The order provided that it was to “remain in full force and effect pending further order of this court.” Three months later, the plaintiff sought to have the defendants held in contempt for an alleged violation of the TRO. The defendants moved to dismiss the contempt citation on the grounds that the violations occurred more than 10 days after entry of the court order and, consequently, the restraining order expired under the express terms of section 3 — 1 of the Injunction Act which limited the duration of TROs to a maximum of 10 days. .

The supreme court rejected this argument noting that the 10-day limit was only mentioned in reference to TROs issued without notice and held that where such an order is granted with notice the 10-day limit did not apply. In so doing, the court construed sections 3 and 3 — 1 of the Injunction Act, dealing with TROs and preliminary injunctions, and found that under the circumstances the order entered below was functionally equivalent to a preliminary injunction. The court stated:

“It is apparent from a consideration of these two sections that a temporary restraining order issued with notice is, in its practical results, no different than a preliminary injunction issued with notice. *** Accordingly, we hold that a temporary restraining order issued with notice and a preliminary injunction issued with notice, neither of limited duration, are the same type of relief, and whether referred to under either term require a showing of the likelihood of ultimate success on the merits of the case. The order provided it would ‘remain in full force and effect pending further order of this court,’ and defendants cannot ignore what was clearly stated.” (Emphasis added.) 63 Ill. 2d 514, 524.

Clearly, Kable requires that a temporary restraining order be issued with notice and that the order be of unlimited duration if such an order is to be considered equivalent to a preliminary injunction. A temporary restraining order issued under these circumstances has the same effect as a preliminary injunction; through the coercive force of the injunctive remedy the status quo is maintained until the case is decided on the merits. Once the functional equivalence to a preliminary injunction is demonstrated, the party against whom such an order is entered must be given a fair opportunity to oppose the application and to show, if he can, why an injunction should not issue. Jurco v. Stuart (1982), 110 Ill. App. 3d 405, 409.

In Lawter International, Inc. v. Carroll (1982), 107 Ill. App. 3d 938, 438 N.E.2d 590, the court relied upon the twin requirements of notice and unlimited duration in rejecting an argument similar to the one raised here by the city. As in the present case, the defendant in Lawter argued that a temporary restraining order issued with notice was equivalent to a preliminary injunction and where the pleadings raise questions of fact an evidentiary hearing must be held. The court rejected the defendants’ characterization of the order as a preliminary injunction since the order contained a provision for a subsequent hearing on a preliminary injunction three days later. The court noted that although the order stated it “shall remain in full force and effect pending further orders,” the net effect of the language was not to make the order of unlimited duration as the defendants contended but rather the order was issued to maintain the status quo until the hearing on a preliminary injunction could be completed. 107 Ill. App. 3d 938, 941.

Similarly, in the case at bar, we must look to the underlying reality to determine whether the order entered below is equivalent to a preliminary injunction. Here, the order states that it is to remain in effect “until further order of this court” and also provides by agreement of the parties that no preliminary injunction hearing would be scheduled “until and unless requested of the court by either party.” Clearly, the order entered will be of indefinite duration only if the city chooses, to make it so by declining to request a preliminary injunction hearing as the city has done up until now. It is also clear that this order was intended to maintain the status quo until such time as either party cared to pursue a full hearing on a preliminary injunction. On these facts, we cannot say that the order entered below was functionally equivalent to a preliminary injunction. Accordingly, we find the order entered by the trial court to be a temporary restraining order requiring only a summary showing that the order is necessary to prevent immediate and irreparable harm.

The grant or denial of a temporary restraining order is a matter within the sound discretion of the trial court and its determination will not be upset on review absent an abuse of that discretion. (See Advertising Checking Bureau, Inc. v. Canal-Randolph Associates (1981), 101 Ill. App. 3d 140, 427 N.E.2d 1039.) The numerous allegations in plaintiffs verified complaint are sufficient to show irreparable harm to plaintiff absent the issuance of a temporary restraining order. This harm consisted mainly of the following factors: (1) the loss of revenues for gas service provided to consumers that refuse to pay their bills and the consequent impairment of plaintiff’s financial condition; (2) the prosecutions and penalties that plaintiff would be subject to if it refused to comply with the ordinance; (3) the interference with plaintiff’s obligations under the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 1112/3, par. 1 et seq.); and (4) the bringing of a multiplicity of lawsuits against all customers that refuse to pay their gas bill being an inadequate remedy at law. Finally, plaintiff alleged that General Order 172 of the Illinois Commerce Commission comprehensively regulates winter gas termination and reconnection in such a manner as to adequately protect the public. We find these sworn allegations sufficient to warrant the issuance of a temporary restraining order to maintain the status quo until such time as there can be a full hearing on the issuance of a preliminary injunction. Accordingly, we find no abuse of discretion by the trial court in granting the temporary restraining order.

Finally, the briefs of both the city and Peoples Gas raise several constitutional issues which may be properly raised in a trial on the merits but which are not appropriate in the present interlocutory appeal. (Regional Transportational Authority v. Burlington Northern, Inc. (1981), 100 Ill. App. 3d 779, 426 N.E.2d 1143; Toushin v. City of Chicago (1974), 23 Ill. App. 3d 797, 320 N.E.2d 202.) We therefore expressly refrain from resolving the ultimate substantive issues raised by the parties which were not finally decided by the trial court. Our review of the proceedings below is limited to whether the trial court acted within the bounds of its broad discretionary power to grant temporary restraining orders and, here, we have found no abuse of discretion.

The issuance of the temporary restraining order is therefore affirmed and the case is remanded for either a hearing on a preliminary injunction or a trial on the merits.

Affirmed and remanded.

McGLOON and CAMPBELL, JJ., concur.


author: JUSTICE McGLOON

text:
    SUZANNE BOBKA, Plaintiff-Appellant, v. COOK COUNTY HOSPITAL et al., Defendants (Padgett Instrument Company et al., Defendants-Appellees).
    First District (1st Division)
    No. 82 — 2343
    Opinion filed August 22, 1983.
    Susan E. Loggans and Margaret M. O’Leary, both of Susan E. Loggans and Associates, of Chicago, for appellant.
    McDermott, Will & Emery, of Chicago (Steven H. Hoeft, of counsel), for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff appeals from an order quashing service of summons on defendants Padgett Instrument Company (Padgett) and Kansas City Assemblage Company (Kansas City Assemblage) and dismissing the complaint as to these defendants. On appeal, plaintiff contends (1) her complaint set forth facts showing that defendants are amenable to jurisdiction in Illinois, and (2) defendants’ affidavit in support of their motion did not negate the prima facie jurisdictional facts alleged by her.

We affirm.

Plaintiff Suzanne Bobka filed an action in strict liability in tort for damages for injuries sustained during an operation in which skin grafts were taken from her legs. Padgett and Kansas City Assemblage as well as two other surgical instrument manufacturers were added as defendants in plaintiff’s fourth amended complaint. The complaint alleged that Padgett and Kansas City Assemblage designed, manufactured, and sold a Padgett Electro-Dermatone and “that strips of skin were removed from [plaintiff’s] body through the use of one or more of the following products: Padgett Electro-Dermatone, Brown Electro-Dermatone, Brown Air-Dermatone and Meshgraft II Dermatone.” The complaint further stated that the instruments were in unreasonably dangerous conditions when they left the manufacturers’ control because they were not equipped with calibrator locks and thus could move during the course of surgery.

Padgett and Kansas City Assemblage filed a special and limited appearance contesting in personam jurisdiction. They also moved to quash service of summons and to dismiss those parts of the complaint pertaining to them. In their motion, defendants stated they were not residents of Illinois and plaintiff’s complaint did not allege facts establishing that defendants committed a tortious act within this State which would render them amenable to process. After considering plaintiff’s opposing motion, the memoranda filed by the parties, and the arguments of counsel during the hearing, the trial court granted defendants’ motion.

On appeal, plaintiff contends the trial court erred in quashing service of summons and dismissing the complaint against defendants. She argues that her complaint sets forth facts evidencing the existence of jurisdiction over defendants under the tortious act provision of the long-arm statute (Ill. Rev. Stat. 1981, ch. 110, par. 17(l)(b)). She further contends that defendants’ affidavit in support of their motion did not refute the jurisdictional facts alleged in her fourth amended complaint.

Initially, we note that plaintiff bears the burden of proof in establishing jurisdiction over defendants. (Johnston v. United Presbyterian Church in the United States of America, Inc. (1981), 103 Ill. App. 3d 869, 431 N.E.2d 1275.) Where a plaintiff seeks to hold a nonresident defendant liable, the complaint must allege facts upon which jurisdiction under the long-arm statute is based. (First National Bank v. Screen Gems, Inc. (1976), 40 Ill. App. 3d 427, 352 N.E.2d 285, citing Nelson v. Miller (1957), 11 Ill. 2d 378, 143 N.E.2d 673, and Koplin v. Saul Lerner Co. (1964), 52 Ill. App. 2d 97, 201 N.E.2d 763.) Thus, we must first examine plaintiff’s complaint and determine whether a prima facie showing of jurisdiction appears therein. The following legal principles are relevant to determining this issue.

A court may exercise jurisdiction over a nonresident defendant if the defendant has certain minimum contacts with the State such that the maintenance of the action does not offend traditional notions of fair play and substantial justice. (World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559; Johnston v. United Presbyterian Church in the United States of America, Inc. (1981), 103 Ill. App. 3d 869, 431 N.E.2d 1275; Coca-Cola Co. v. A. Epstein & Sons International, Inc. (1980), 89 Ill. App. 3d 253, 411 N.E.2d 917.) If a manufacturer or its distributor directly or indirectly markets a product for use in another State, thereby invoking the benefit and protection of that State’s law, it is not unreasonable under the due process clause to subject the manufacturer to suit in that State. (World-Wide Volkswagen Corp.; Johnston.) A single transaction may be sufficient to confer jurisdiction, but in each case it is essential that the defendant purposefully avail itself of the privilege of conducting activities within the forum State. (Coca-Cola Co.) In World-Wide Volkswagen Corp., the court held that neither the mere presence of the product in a forum State nor the likelihood that a product will find its way into the State is sufficient to establish minimum contacts.- Rather, the defendant’s conduct in and connection with the State must be such that he should reasonably anticipate being called to defend there.

A careful examination of the complaint in this case reveals no allegations regarding defendants’ activities within this State. Plaintiff did not allege that defendants sold products in Illinois or that they in some other manner had minimum contacts with this State. The complaint merely alleged that defendants designed, manufactured and sold the instrument, that the instrument might have been used during surgery, and that the product was unreasonably dangerous. These allegations do not show that defendants invoked the benefit and protection of Illinois law or reasonably anticipated being called to defend themselves here because of their acts within this State.

Plaintiff asked this court and the court below to infer from the allegations in the complaint that minimum contacts existed. Specifically, she argues that we may assume that defendants expected their product to be used in Illinois since they introduced the product into commerce. A similar argument was raised and rejected in Koplin v. Saul Lerner Co. (1964), 52 Ill. App. 2d 97, 201 N.E.2d 763, wherein the court stated:

“It has not been shown that either defendant did an act by which it ‘purposefully availed itself of the privilege of conducting activities within the forum State.’ It was held in Hanson v. Denckla, 357 U.S. 235, [2 L. Ed. 2d 1283,] 78 S. Ct. 1228, that some such act was essential. Instead of showing such a definite act, the plaintiff wanted the trial court to infer from the vague allegations and the general conclusions of his complaint that there were such acts, that Illinois residents had dealt with the defendants and had suffered losses. What he actually wanted was something it would have been unjust to grant. He asked the court to exercise jurisdiction over the defendants in order to determine whether any dealings took place; in other words, he asked the court to exercise in personam jurisdiction in a case where, until the jurisdiction was exercised, there were not sufficient facts before the court to determine whether or not jurisdiction existed.
*** We believe that it would be offensive to traditional concepts of fair play and substantial justice to compel the defendants, who are not residents of this state, to appear in our courts and to furnish information possibly against their own interests, before it even becomes clear whether our courts have jurisdiction over them or that the plaintiff has a cause of action against them.” (52 Ill. App. 2d 97,106-07, 201 N.E.2d 768.)

Here, too, the requisite minimum contacts have not been shown. We cannot infer jurisdictional acts without violating due process.

For the foregoing reasons, we find the trial court properly granted defendants’ motion to quash summons and dismiss the complaint insofar as it relates to them. Because of our decision, we need not address the issue regarding defendants’ affidavit in support of their motion.

Judgment affirmed.

GOLDBERG and CAMPBELL, JJ., concur.


author: PRESIDING JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE MARGIOLAS, Defendant-Appellant.
    First District (2nd Division)
    No. 82 — 2606
    Opinion filed August 23, 1983.
    Rehearing denied September 26, 1983.
    Robert A. Novelle, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Adam Dabek, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

Defendant, George Margiolas, was charged in a one-count indictment with the offense of rape. (Ill. Rev. Stat. 1979, ch. 38, par. 11— 1.) Following a bench trial, defendant was found guilty of the lesser included offense of misdemeanor battery based on contact of an insulting or provoking nature. (Ill. Rev. Stat. 1979, ch. 38, par. 12— 3(a)(2).) The sentence imposed was that of one-year probation, with the special condition that defendant spend 90 days in the Cook County Work Release Center.

Two grounds for reversal are presented by defendant: first, that misdemeanor battery based on an insulting or provoking contact is not a lesser included offense of rape; and second, that the evidence failed to show beyond a reasonable doubt that he committed a simple battery on the complainant.

On November 14, 1981, at approximately 11:30 p.m., complainant drove alone to a restaurant where defendant was employed as a cook. Upon her arrival, complainant, believing the restaurant to be open, entered and asked defendant for a sandwich. Defendant refused, stating that they were closed for the night; however, due to complainant’s persistence, defendant offered her a piece of cheese which she refused to eat. Complainant then indicated a desire to leave the premises, at which point defendant took hold of her arm and escorted her toward an exit located in a rear bedroom of the building.

Once in this bedroom, defendant attempted to unbutton complainant’s blouse, telling her “Come on, baby. Give me some.” Despite complainant’s verbal objection “Don’t do that!” accompanied by her attempt to stop him by grabbing his hand, defendant continued to fumble with her blouse until it was unbuttoned halfway. Using his hand, defendant forced complainant to sit on a bed, and then proceeded to pull down her pants and underpants. While defendant unzipped his trousers, complainant laid back on the bed and told him, “Just don’t hurt me.” Defendant then got on top of complainant and had sexual intercourse with her.

Immediately following the act of intercourse, defendant ran into another room. Complainant repeatedly called for him, but he did not respond. She thereupon left the building through a door located directly next to the bed. This door had been ajar approximately two inches during the entire incident. Complainant drove home and then, after talking with her two daughters, notified the authorities at approximately 1 a.m. and thereafter was taken to St. Bernard’s Hospital where she was treated and released.

On November 27, 1981, complainant identified defendant in a police lineup as the man who had nonconsensual sexual intercourse with her on the night of November 14, 1981. Defendant was subsequently charged in a one-count indictment with having committed the offense of rape.

At trial, the court granted defendant’s motion for a directed finding as to the rape charge due to the lack of evidence of resistance, as well as the lack of evidence of “futility for fear.” The lower court then ordered the trial to proceed as to the lesser' included offense of battery based on contact of an insulting or provoking nature. The defense, however, decided to rest at this point. The court thus entered a finding of guilty predicated on the fact that, though there was no manifestation of resistance on part of complainant so as to indicate use of force by defendant, the evidence clearly showed that complainant “absolutely had no interest *** in Mr. Margiolas or his advances.” It is from this conviction which defendant now appeals.

I

Defendant initially contends that, as a general proposition, simple battery based on contact of an insulting or provoking nature is not a lesser-included offense of rape. We disagree.

In order to sustain a conviction for a lesser offense on an indictment charging only a greater offense, every element of the lesser must be included in the greater. People v. King (1966), 34 Ill. 2d 199, 200, 215 N.E.2d 223; see also People v. Smith (1980), 78 Ill. 2d 298, 306, 399 N.E.2d 1289.

The trial court in the present case granted defendant’s motion for a directed finding as to the rape charge since the facts failed to demonstrate evidence of resistance or futility for fear. However, defendant was subsequently convicted of misdemeanor battery under section 12 — 3(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3(a)(2)), which provides that: “A person commits battery if he intentionally or knowingly without legal justification and by any means, *** makes physical contact of an insulting or provoking nature with an individual.”

In support of defendant’s argument that battery based on an insulting or provoking contact is not a lesser included offense of rape, he relies heavily on People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633. This reliance, however, is misplaced since the Mays court held only that battery based on bodily harm is not a lesser included offense of rape. (91 Ill. 2d 251, 256.) Furthermore, we note that the Mays court specifically stated that it was not deciding whether battery based on insulting or provoking contact was a lesser included offense of rape. 91 Ill. 2d 251, 254.

We therefore read Mays as providing, for purposes of a lesser included offense of rape, an explicit distinction between battery based on bodily harm, as opposed to battery based on contact of an insulting or provoking nature. The former is not an included offense of rape since bodily harm is not an element of the definition of rape. Quite to the contrary, however, is the undeniable verity that inherent in every crime of rape is an intentional physical contact of an outrageously insulting, as well as provoking, character. Each element of this second classification of misdemeanor battery is clearly circumscribed by the greater offense of rape since the lesser offense is “established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the [greater] offense charged ***.” Ill. Rev. Stat. 1981, ch. 38, par. 2 — 9(a).

As a result of the inherent relationship between these two crimes, we hold that a conviction for the lesser included offense of simple battery based on insulting or provoking contact can be sustained on an indictment charging the greater offense of rape.

II

Next, we consider defendant’s contention that the trial court’s finding of no force is, in effect, a finding of consent on part of complainant to the act of intercourse. Thus, it is maintained that the misdemeanor battery conviction was improper. We find this assertion to be without merit.

In criminal bench trials, it is for the trial judge to hear the testimony and determine the credibility of witnesses; hence, “[w]here the truth lies is a matter peculiarly for the trier of fact, and it is not for a reviewing court to substitute its opinion therefor.” (People v. McNair (1979), 71 Ill. App. 3d 782, 788, 390 N.E.2d 142.) Moreover, an appellate court should not disturb a finding of guilty unless the proof is so unsatisfactorily or implausible as to justify a reasonable doubt as to a defendant’s guilt, or where the evidence presented by the prosecution is improbable, unconvincing or contrary to human experience. People v. Eichelberger (1980), 81 Ill. App. 3d 1012, 1015, 401 N.E.2d 1208.

From a review of the record in the present case, it is readily discernible that the trial court was thoroughly convinced of the nonconsensual nature of the act of intercourse between complainant and defendant. We regard such a characterization to be well founded. For, complainant was 56 years old at the time of the incident, whereas defendant was only 27; complainant was forced to sit on a bed as a result of pressure from defendant’s hand; complainant testified that she was frightened throughout the entire incident, and that she pleaded with him, “Just don’t hurt me, please. Don’t hurt me!”; and, defendant persisted in unbuttoning complainant’s blouse despite her verbal objection “Don’t do that!” accompanied by her attempt to stop him by grabbing his hand. Defendant, in fact, concedes in his brief that this unbuttoning of complainant’s blouse constituted forcible conduct.

Our review of Illinois decisional law concerning misdemeanor battery based only on insulting or provoking contact indicates that criminal prosecutions for this misconduct, falling short of any minimal degree of bodily harm, are indeed rare. Following is a brief review of other instances of conduct held to be simple battery based solely on insulting or provoking physical contact: People v. Hamilton (1980), 81 Ill. App. 3d 297, 301, 401 N.E.2d 318, appeal denied (1980), 81 Ill. 2d 595 (where defendant reached around the female complainant and placed his hand over her mouth); People v. Siler (1980), 85 Ill. App. 3d 304, 406 N.E.2d 891, appeal denied (1980), 81 Ill. 2d 598 (where defendant lifted up complainant’s dress during a confrontation having sexual overtones); and People v. Smith (1974), 19 Ill. App. 3d 704, 312 N.E.2d 355 (where defendant jumped on complainant-police officer during a protest march).

In essence, we believe that the nonconsensual nature of the act of intercourse in this case, coupled with defendant’s persistence in forcibly unbuttoning complainant’s blouse despite her verbal as well as physical objections, clearly evinces an insulting and provoking degree of touching intentionally undertaken by defendant. In our opinion, based upon the record, the proof of this unpermitted physical contact was not so unsatisfactory or implausible as to justify a reasonable doubt as to defendant’s guilt of the crime of misdemeanor battery. Nor was the evidence presented by the prosecution, concerning complainant’s nonconsent, improbable, unconvincing or contrary to human experience. People v. Eichelberger (1980), 81 Ill. App. 3d 1012, 1015.

For the reasons set out herein, we affirm the judgment of the circuit court of Cook County.

Affirmed.

STAMOS and HARTMAN, JJ., concur.


text:
      In re ESTATE OF C.M. WASSON, Deceased—(Barbara Wasson Thulin, Petitioner-Appellant, v. Olive Louise Evans, Petitioner-Appellee).
    Fifth District
    No. 82-727
    Opinion filed August 29, 1983.
    Feirich, Schoen, Mager, Green & Associates, of Carbondale, for appellant.

      George B. Lee and Charles R. Jelliffe, both of Jelliffe & Ferrell, of Harrisburg, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This action was brought on two separate petitions for the appointment of a successor trustee to replace a deceased trustee of the C.M. Wasson testamentary trust. The petitioners are two sisters, granddaughters of the testator, who had been serving with a third sister as trustees of the trust until the latter’s death. Upon their inability to agree as to a successor trustee, each of the sisters petitioned the court to appoint a trustee of her choice. The trial court granted appellee Olive Evans’ petition to appoint Stephanie Douglas Fletcher, daughter of the deceased sister, as trustee and denied appellant Barbara Thulin’s petition to appoint a professional trustee. On appeal petitioner Thulin contends that this appointment constituted an abuse of discretion. We affirm.

The trust in question was established by the will of C.M. Wasson dated December 2, 1933. In his will Wasson designated three persons to serve as executors and trustees of his estate. The will provided that in the event of a vacancy on the board of trustees, the remaining trustees would select a trustee to fill that vacancy. The will further provided that these executors and trustees were to receive as compensation for their services an annual salary of not more than $100 and not less than $50, as fixed and determined by the board of trustees. The trust created under the will was to remain in effect until 20 years after the death of the testator’s son, Loran Wasson. The testator died in May 1945, and his will was thereafter admitted to probate.

Loran Wasson, the testator’s son, died in 1971 and left surviving him three daughters: Olive Evans of Denver, Colorado, Carolyn Douglas of Knoxville, Tennessee, and Barbara Thulin of Denver, Colorado. These three daughters, or their descendants per stirpes, are the sole beneficiaries of the trust under the will. The trust property consists largely of stocks and securities, including substantial stock in the First National Bank of Harrisburg, Illinois, and real estate located in Saline County, Illinois.

Olive Evans became a member of the board of trustees sometime prior to 1971, and Carolyn Douglas and Barbara Thulin became trustees in 1971 when Loran Wasson died. A conflict subsequently developed among the three trustees, and on December 29, 1980, Barbara Thulin filed suit against her two sisters, alleging that they had improperly conducted trust business without her consent. A second suit for accounting was brought by Barbara Thulin against her sisters and was consolidated with the first action.

While this litigation was pending, Carolyn Douglas, one of the three sister trustees and beneficiaries, died suddenly on July 29, 1982. The surviving sisters, Olive Evans and Barbara Thulin, were unable to agree as to a successor trustee. On August 24, 1982, Olive Evans petitioned for the appointment of Stephanie Douglas Fletcher, a daughter of the deceased Carolyn Douglas, to replace her mother on the board of trustees. The other children of Carolyn Douglas indicated their consent to such an appointment in signed statements accompanying the petition.

Barbara Thulin filed an objection to the appointment of Stephanie Fletcher, contending that Ms. Fletcher would be unable to perform the dutiés of a trustee because of the distance of her residence in Knoxville, Tennessee, from the location of trust assets, her full-time work as a school teacher and mother of small children, her lack of business experience, and her recent surgery for the removal of a pituitary gland. Ms. Thulin further objected on the grounds that Stephanie Fletcher was an interested person who should not be appointed because of the present ill-feelings and litigation on the part of the other trustees.

Barbara Thulin then filed her own petition for appointment of a trustee in which she stated that it would be in the best interests of the trust and its beneficiaries for the court to appoint a professional trustee to fill the vacancy created by her sister’s death. She specifically requested the court to appoint the First National Bank of Denver, Denver, Colorado, and to approve compensation for this trustee according to the bank’s established fee schedule.

At a hearing held on both petitions, Barbara Thulin testified that she objected to the appointment of Stephanie Fletcher as trustee because it would perpetuate the schism that had developed in her family since the three sisters had become trustees. She stated that her two sisters had sought to exclude her from the management of trust business and that since 1972 they had consulted her regarding investment decisions “only on the rarest occasions.” During that time, she testified, approximately 90% of the stock transactions had been handled by her sister Olive and 10% had been handled by her sister Carolyn. Ms. Thulin was of the opinion that Stephanie Fletcher considered herself to be an ally of Olive Evans and that her (Stephanie’s) appointment would thus fail to alleviate familial tensions among the trustees.

In further testimony Barbara Thulin reiterated her objections to Stephanie Fletcher’s appointment because of her health and her lack of business experience. Testifying on her own behalf, Ms. Fletcher stated that she had had surgery within the last year to remove a benign tumor from her pituitary gland but that she was not at present disabled in any way. A letter from Ms. Fletcher’s physician was introduced to the effect that Stephanie Fletcher had made a full recovery from her surgery and would be able to hold any type of full-time employment. Ms. Fletcher testified that she is 29 years old with a college degree in education and that she has had no experience in business management or in securities investing.

At the conclusion of the hearing, the trial court appointed Stephanie Fletcher as the third trustee of the C.M. Wasson trust and denied Barbara Thulin’s petition to appoint the First National Bank of Denver as successor trustee. It is from this judgment that the instant appeal is taken.

Petitioner Thulin asserts initially that the court in the instant case was empowered, by virtue of its equitable jurisdiction over trusts, to appoint a professional trustee despite the restriction on trustee fees contained in the testator’s will. She contends that the court should have exercised its discretion to appoint a professional trustee because conditions have so changed since the beginning of the trust that some other course of management is necessary to preserve the purpose of the trust. In particular, she notes that the business of the trust is now handled almost entirely by one trustee, Olive Evans, rather than by a board of three trustees as intended by the testator. Since this situation requiring the appointment of a professional trustee was not contemplated by the testator when he made his will, petitioner Thulin contends that the court should have disregarded the provision for compensation of trustees under the will and should have directed the appointment and payment of a professional trustee.

It is well established that a court of equity possesses very broad discretion in the appointment of successor trustees. (Stone v. Baldwin (1952), 347 Ill. App. 128, 106 N.E.2d 379, rev’d on other grounds (1953), 414 Ill. 257, 111 N.E.2d 97.) In making such appointments, the court, on a petition to appoint one trustee, may appoint another, may appoint a trust company in place of an individual trustee, may appoint a sole trustee instead of several trustees, or may otherwise increase or decrease the number of trustees. (Stone v. Baldwin.) This discretion, however, is not arbitrary but is subject to clearly defined rules. (Steger v. Northen (1923), 229 Ill. App. 529.) Thus, the court in making such an appointment should consider the intention of the creator of the trust, the interests and wishes of the various beneficiaries, and the promotion of the proper administration of the trust. (Steger v. Northen; Stone v. Baldwin; 35 Ill. L. & Prac. Trusts sec. 104 (1958); Restatement (Second) of Trusts sec. 108 (1959).) The court’s decision in this regard will not be disturbed absent a showing of an abuse of discretion in making the appointment. Barnhart v. Barnhart (1953), 415 Ill. 303,114 N.E.2d 378.

Applying the above rules to the instant case, we do not believe the trial court abused its discretion in failing to appoint a professional trustee as requested by petitioner Thulin. The intent of the testator, so far as it may be ascertained from his original selection of individual trustees and his specific limitation of trust fees, seems to be for the trust to be administered by individual persons rather than by a professional trustee. Thus, while the trustee fee restriction would not preclude the appointment of a professional trustee in the proper circumstances, it is indicative of the testator’s intent in this regard. As for the wishes of the beneficiaries, the record is clear that only petitioner Thulin desired the appointment of a professional trustee. While she asserts that such an appointment is necessary to promote the best interests of the trust estate, there has been no showing that the trust cannot be properly administered by individual as opposed to professional trustees.

The rule of Marsh v. Reed (1900), 184 Ill. 263, 56 N.E. 306, cited by petitioner Thulin in support of her argument that “changed conditions” require the appointment of a professional trustee, is inapposite to the case at bar. In Marsh v. Reed it was found that business conditions had so changed since the beginning of the trust in question that a provision in the testator’s will limiting the trustee’s power to lease the trust property rendered it “substantially unproductive.” The court held that, in view of these changed conditions, it was necessary to enlarge the trustee’s power to lease the property in order to fulfill the testator’s purpose of providing income for the beneficiaries of the trust.

In the instant case no such necessity for the appointment and compensation of a professional trustee has been shown. Moreover, the “changed condition” asserted by petitioner Thulin — the domination of trust business by one trustee — is not the sort of unforeseen change contemplated by the Marsh court but is inherent in the system of trust administration set out by the testator himself. There is no question that all actual transactions of trust business have been concurred in by a majority or two out of three trustees as provided by the testator’s will. In the absence of a showing of detriment to the trust estate or of irregularity in the management of trust business, the trial court properly denied petitioner Thulin’s request for the appointment of a professional trustee.

Petitioner Thulin contends further that, notwithstanding the denial of her own petition, the court’s appointment of Stephanie Fletcher as successor trustee constituted an abuse of discretion in itself. It is her position that because of the conflict between the current trustees and the pending litigation between them, the court erred in appointing an interested person such as Ms. Fletcher, who, as a beneficiary of the trust and daughter of a former trustee, would necessarily be embroiled in the conflict. Petitioner Thulin further asserts that the appointment of a family member was contrary to the intent of the testator as evidenced by his selection of two nonfamily members as original trustees.

While it is true as a general rule that a court should not appoint interested persons as trustees if there are others willing to accept the office (Steger v. Northen), this cannot be seen as error in the context of the instant case. Petitioner Thulin, herself an interested person, has served as trustee since 1971 along with the other two beneficiaries of the trust. Since she has acquiesced in this arrangement for over 10 years, she should not now be heard to complain merely because the appointment of Stephanie Fletcher will maintain the status quo. Similarly, Ms. Fletcher’s appointment cannot be objected to on the grounds that the testator intended two out of three trustees to be nonfamily members. The record does not specifically indicate who served as trustees following the tenure of the original trustees, but it appears that at least two of the trustees were family members prior to 1971 when Ms. Thulin took her mother’s place on the board. Thus, there is ample precedent for family members as trustees, and we find no merit in petitioner Thulin’s arguments in this regard.

As for the additional circumstance that the trustees are currently involved in litigation in which Stephanie Fletcher would have an interest, we are not prepared to hold that the appointment of Ms. Fletcher constituted an abuse of discretion on this account. In Stone v. Baldwin (1953), 414 Ill. 257, 111 N.E.2d 97, the supreme court affirmed the trial court’s appointment of a trustee despite that trustee’s connection with litigation concerning the trust. The appellate court had reversed the trial court’s appointment of an attorney who had represented the original trustee in a suit for accounting and his removal as trustee, stating that it would be in the best interest of the trust if the chancellor would appoint a disinterested party who had had no connection with the litigation. The supreme court held, however, that “the chancellor who presided in this matter *** was in much better position to pass upon the fitness of [the prospective trustee] as a cotrustee than any other judicial officer” and that “no sufficient reason [had] been advanced for reversing the appointment made by the chancellor ***.” 414 Ill. 257, 263, 111 N.E.2d 97, 100.

In the instant case we likewise decline to reverse the decision of the trial court who has had the superior opportunity to judge the fitness of the prospective trustee. Here, as in Stone v. Baldwin, many of the objections to the trial court’s appointment consist of complaints concerning the current trustee’s actions, which are unrelated to the qualifications of the successor trustee. Petitioner Thulin has failed to show that the trial court abused its discretion in appointing Stephanie Fletcher as trustee, and we accordingly affirm the judgment of the circuit court of Saline County.

Affirmed.

EARNS and EASSERMAN, JJ., concur.


author: JUSTICE KARNS

text:
    V. HUGH THOMAS, Plaintiff-Appellant, v. BOARD OF EDUCATION OF COMMUNITY UNIT SCHOOL DISTRICT NO. 1 OF POPE COUNTY et al., Defendants-Appellees.
    Fifth District
    No. 83 — 117
    Opinion filed September 2, 1983.

      Drach and Deffenbaugh, P.C., of Springfield, for appellant.
    J. Lawrence Sanders, of James W. Sanders and Associates, of Marion, for appellees.
   JUSTICE KARNS

delivered the opinion of the court:

Verna Hugh Thomas, a tenured teacher in Community Unit School District No. 1 of Pope County, sought a declaratory judgment that the board of education acted capriciously and arbitrarily in requiring him to provide typed copies of final examinations and in placing a letter of remediation in his personnel file for failure to do so. The plaintiff appeals from the judgment of the circuit court of Pope County granting the defendant school board’s motion for a directed verdict.

Thomas had taught in the school district for 11 years. In 1982, his principal required for the first time that Thomas, along with all other teachers, submit typed master copies of his examinations which would then be reproduced and submitted to his students. On May 3, 11 and 13, 1982, the teachers were reminded that typed examinations were due in the school office on May 14. In a conference with the principal on May 11, Thomas was told that although his handwriting was legible, he would be required to provide typed copies. On May 13, he turned in handwritten copies. On May 26, the school board placed in his personnel file a letter or remediation declaring him insubordinate for failing to provide typed copies on May 14. The board informed Thomas that his insubordination could lead to dismissal if not remedied. Thomas, on the day before receiving the letter, had complied with the requirement by providing typed copies prepared by a paid typist.

Recognizing that Thomas’ compliance eliminated any issue related to his dismissal under section 24 — 12 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 12), we pass directly to the issue of whether the board of education may reasonably require all teachers to provide typed copies of their examinations. Although the rule requiring typing appears to have originated with the principal, he acted as the board’s agent. By placing the letter of remediation in Thomas’ file in support of the principal’s demand, the board adopted the rule.

Thomas contends that it is unreasonable and, therefore, beyond the power of the school board to require typed examinations, a duty he considers onerous, time consuming, demeaning, and unrelated to his teaching responsibilities. We do not conclude that providing single typed copies of examinations is so remote from his admitted duty to prepare and submit examinations for approval and duplication, or so burdensome on his time and resources that the board cannot reasonably expect him to do it. The board may reasonably believe that typed examinations are a benefit to the students.

The board of education is statutorily empowered “[t]o adopt and enforce all necessary rules for the management and government of the public schools of their district.” (Ill. Rev. Stat. 1981, ch. 122, par. 10 — 20.5.) Subject to the requirement that the rules and regulations be reasonable (Rulison v. Post (1875), 79 Ill. 567; Board of Education v. Bolton (1899), 85 Ill. App. 92), “[t]he power of the board of education to control and manage the schools and to adopt rules and regulations necessary for that purpose is ample and full.” (Wilson v. Board of Education (1908), 233 Ill. 464, 470, 84 N.E. 697, 698.) “[A] broad spectrum of implied incidental powers is to be inferred from the general power to adopt all necessary rules ***.” Beck v. Board of Education (1975), 27 Ill. App. 3d 4, 8, 325 N.E.2d 640, 643.

Incidental powers include the right to assign non-classroom duties to teachers. In District 300 Education Association v. Board of Education (1975), 31 Ill. App. 3d 550, 553, 334 N.E.2d 165, 167, the court cites with approval the view that “ ‘ “[a]ny teaching duty within the scope of the license held by a teacher may properly be imposed. The day in which the concept was held that teaching duty was limited to classroom instruction has long since passed.” ’ ” (Parrish v. Moss (1951), 200 Misc. 375, 382, 106 N.Y.S.2d 577, 584, aff'd (1951), 279 A.D. 608, 107 N.Y.S.2d 580.) Extra duties related to the teacher’s usual duties need not be written into the rules and regulations of the school board nor be the result of formal action by the school board. Duties which are not “onerous *** unreasonably time consuming *** demeaning to the professional stature of the teacher *** [or] made in a discriminatory manner” may be assigned, even if they occasion inconvenience to the teacher. (District 300 Education Association v. Board of Education (1975), 31 Ill. App. 3d 550, 554, 334 N.E.2d 165, 168.) The court in District 300 Education Association approved supervisory duties on weekday evenings and Saturdays.

We find no merit in Thomas’ assertion that the board’s rule is detrimental to his professional standing. Typing is a skill so generally considered an adjunct to academic pursuit .it cannot demean a teacher to learn or use it. Once learned, the skill could be kept sharp by practice, perhaps starting with repetitions of the legal maxim De minimus non curat lex. The teacher may nevertheless arrange to have the work done with little or no expense or with no more inconvenience than that caused by the requirement that he spend an evening or Saturday supervising school activities.

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

Affirmed.

HARRISON, P.J., and WELCH, J., concur.


author: JUSTICE HARTMAN

text:
      In re MARRIAGE OF PHYLLIS MERCER (BOWER), Plaintiff-Appellee, and CLIFTON H. MERCER et al., Defendant-Appellant.
    First District (2nd Division)
    No. 82 — 970
    Opinion filed August 16, 1983.

      William R. Jacobs II and Associates, of Chicago (William R. Jacobs II, of counsel), for appellant.
    McCoy & Morris, of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

The principal issue raised in this appeal concerns property purchased in joint tenancy prior to marriage of the joint tenants to each other. A judge assigned to the domestic relations division of the circuit court of Cook County, in post-dissolution proceedings, found that the property was nonmarital. Subsequently, one of the joint tenants filed an action for partition in the chancery division of the circuit court of Cook County. A judge assigned to the latter division, refusing to transfer the cause to the domestic relations division for consolidation and consideration of this and other post-decretal matters, entered an order granting partition. A post-trial petition to vacate that order was denied. This appeal followed. We hold that the order of partition entered by the chancery division judge was correct and affirm for the reasons which follow.

Before marriage, Phyllis and Clifton Mercer purchased the subject property as joint tenants in October 1960. They married on February 26, 1962, and had one child, Sara Jane, born July 28, 1967. On March 22, 1972, the parties were divorced in Haiti and Phyllis subsequently married Joseph Bower. She filed an action in Cook County seeking enrollment of the foreign judgment and for child support in 1973. The cause was transferred to the then existing divorce division. In 1979, Phyllis filed an amended petition for division of property and other relief in the domestic relations division of the circuit court. The cause was litigated and a memorandum opinion was filed on January 7, 1981. An order was entered in that matter on March 10, 1981, in which the court found the subject property to be held in joint tenancy and nonmarital in character, with “*** each of the parties being possessed of a non-marital one-half interest therein.” The order made other findings with respect to custody, support, the interests owned by each party in personalty, a pension fund, an insurance policy and attorney fees. No retention of jurisdiction for any purpose was contained in the order and no appeal was taken therefrom.

The instant complaint seeking partition of the nonmarital property was filed in the chancery division on February 11, 1981, by Phyllis. An answer was filed by Clifton on May 19, 1981, in which he admitted that the subject property was owned by the parties in joint tenancy fee simple, alleging “*** special equities of payment of mortgage, taxes, assessments and improvements since 1972.” Phyllis filed interrogatories on June 23, 1981, seeking identification of any payments by Clifton of real estate taxes, assessments and improvements. No answers to the interrogatories were filed by Clifton prior to the discovery “cut-off” date. A notice to produce documents evidencing such payments was served on Clifton by Phyllis; whether production was properly made is unclear from the record.

A motion to strike and dismiss or, alternatively, to transfer the cause to the domestic relations division filed by Clifton was denied. Phyllis’ motion for appointment of a commissioner for purposes of property appraisal and report was allowed. Subsequently, the commissioner’s report was filed showing an appraised current market value of the subject property, a split-level, single-family home, at $110,000.

At a hearing held on December 18, 1981, at which neither Clifton nor his attorney appeared, the circuit court approved the commissioner’s report and directed that an order of partition and sale be presented, which was entered on December 29, 1981, with an appropriate finding as to finality and appealability. (73 Ill. 2d R. 304(a).) On March 24,1982, Clifton’s post-judgment petition was denied.

Clifton contends that the transfer of the instant case from the chancery division to the domestic relations division would have been proper, correct and would have avoided prejudice to either party, relying upon Peck v. Peck (1959), 16 Ill. 2d 268, 157 N.E.2d 249, and sections 503, 513, 514 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, pars. 503, 513, 514) (Act). He also relies upon the Historical and Practice Notes following sections 503(c) and 514 (Ill. Ann. Stat., ch. 40, pars. 503(c), 514, Historical and Practice Notes, at 458, 796-97 (Smith-Hurd 1980)). The foregoing are cited to show the court’s broad powers with regard to the disposition of marital property. He maintains that the subject property is clearly marital property notwithstanding the domestic relations court’s March 10, 1981, order finding that it was not, claiming that the order was not appealable “because it did not dispose of either the property or other future issues.”

When a petition for dissolution has been allowed and all ancillary claims such as custody, support, maintenance and property rights have been determined, as in the case at bar, an order making such disposition is final and appealable. (In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137.) Clifton’s assertion that the finding of March 10, 1981, by the domestic relations court was not final and appealable because it failed to “dispose” of the property is not persuasive. The parties could have decided to keep the property, sell it, rent it for income purposes, or do with it as their respective needs may have dictated without ever requiring further “disposition” by court action. If Clifton was dissatisfied with the nonmarital classification assigned the subject property by the domestic relations court, he was obligated to appeal therefrom, which he failed to do.

Under the foregoing circumstances, the chancery court could have considered that, in the absence of any action seeking to reopen the 1973 domestic relations case, nothing was pending in which transfer or consolidation would have been proper. A decision to consolidate causes of action, or not, lies within the sound discretion of the trial court (Stone v. City of Belvidere (1976), 39 Ill. App. 3d 829, 350 N.E.2d 526), and will not be disturbed unless an abuse of that discretion can be shown. (Robinson v. Robinson (1981), 100 Ill. App. 3d 437, 429 N.E.2d 183.) No such abuse of discretion appears in the present case. Neither sections 503, 513 and 514 of the Act nor Peck v. Peck require or suggest a different result under these facts. Indeed, the Historical and Practice Notes to section 514 of the Act state, in part:

“Partition actions continue to be appropriate where, for example, division is sought as to property which the parties acquired in co-ownership prior to the marriage, or during the marriage by inheritance or gift from a third party. In such cases, where the property would be classified as non-marital, the court has no general discretion to alter the fixed, separate interests of the parties as it has in the case of marital property held in co-ownership.” Ill. Ann. Stat., ch. 40, par. 214, Historical and Practice Notes, at 797 (Smith-Hurd 1980).

Assuming, arguendo, that Clifton’s position was viable in this appeal and the characterization of the subject property as nonmarital was still open to argument, the cases upon which he relies to support his position are distinguishable. In In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239, and In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635, the marital home was acquired after the parties were married, unlike the acquisition in the instant case in which the property was purchased by the parties almost IV2 years before they were married. In In re Marriage of Lee (1981), 87 Ill. 2d 64, 430 N.E.2d 1030, the parties spent $12,000 in marital funds improving the house they lived in while married, which the husband had purchased for $12,500 prior to their marriage. The supreme court there found the presumption that the house had been “transmuted” into marital property was unrebutted.

Nor does In re Marriage of Olson (1983), 96 Ill. 2d 432, 451 N.E.2d 825, lend support to Clifton’s theory. In Olson the supreme court identified two principles relating to transmutation of property: one, that there be a significant commingling; and two, that an intent on the part of the owner or owners to make a gift of nonmarital property to the marital estate could be shown, before the presumption of transmutation applies. The record in the 1973 domestic relations case is not before us and evidence, or lack thereof, of significant commingling of nonmarital with marital assets is absent in this case. Clifton’s inattention to interrogatories and failure to properly comply with a meaningful response to the notice to produce documents, which might have filled the evidentiary void, did nothing to support his position either at trial or in this appeal. No intention to make a gift of nonmarital property to the marital estate can be gleaned from this record. In fact, a contrary inference can be made from the parties acquiescence in maintaining title to the property in joint tenancy.

Clifton contends that the circuit court erred in refusing to consider certain money credits to which he may be entitled before entering the instant judgment, namely, reimbursement for one-half the taxes, mortgage payments, and maintenance costs he was required to pay since the divorce, as well as a sum of money the March 10, 1981, order directed Phyllis to pay him, which she has never done. The foregoing items merely relate to setoffs against the amount of her portion of the proceeds of the sale, however. Such matters may be presented and considered after the property has been sold (see Anderson v. Anderson (1978), 62 Ill. App. 3d 468, 378 N.E.2d 1079); they do not affect the right to partition the property.

Error is next predicated upon the fact that the child of this marriage, Sara Jane, was a necessary party under the partition act (Ill. Rev. Stat. 1979, ch. 106, par. 46) and the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, pars. 503(c)(4), (8), (d)), yet she was not represented or made a party to the instant lawsuit. A party’s right to partition is not affected by the fact that the property in question is the family home in which minor children presently reside. (Heldt v. Heldt (1963), 29 Ill. 2d 61, 193 N.E.2d 7; Kealey v. Kealey (1979), 77 Ill. App. 3d 962, 397 N.E.2d 5; Renwick v. Renwick (1977), 52 Ill. App. 3d 701, 367 N.E.2d 1009; Tucker v. Tucker (1975), 29 Ill. App. 3d 489, 330 N.E.2d 274.) Further, even if the subject property had been deemed part of the marital estate, in disposing of marital property the court may consider the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children and may set aside a portion of the parties’ property for the support, maintenance, education and general welfare of any minor, dependent or incompetent child of the parties. (Ill. Rev. Stat. 1979, ch. 40, pars. 503(c)(4), (8), (d).) Such provisions create no property right per se for children of broken marriages.

Because the order of March 10, 1981, provided that the property “remain” in joint tenancy, Clifton insists that it cannot be partitioned, relying upon Hulslander v. Hulslander (1977), 55 Ill. App. 3d 981, 371 N.E.2d 652, and Schuppe v. Schuppe (1979), 69 Ill. App. 3d 200, 387 N.E.2d 346. Neither case is of aid to him however, since both involved marital property, unlike that involved in the present case, and the courts in both cases were required to make dispositions of the properties involved. Nothing in the order of March 10, 1981, precluded partition here.

We conclude from the preceding analysis that the circuit court properly directed that the joint tenancy property be partitioned and sold.

Affirmed.

DOWNING, P.J., and PERLIN, J., concur.

      No issue is raised as to the purported division of the nonmarital joint tenancy into finite portions.