author: PRESIDING JUSTICE BUCKLEY JUSTICE CAMPBELL,

text:
    THOMAS L. FORTAS, Plaintiff-Appellee, v. PATRICIA A. DIXON, Defendant-Appellant (Michael E. LaVelle et al., Defendants).
    First District (1st Division)
    No. 84—434
    Opinion filed March 19, 1984.

      CAMPBELL, J., dissenting.
    James P. Chapman and Alan Mills, both of James P. Chapman and Associates, Ltd., and Thomas E. Johnson, both of Chicago, for appellant.
    Andrew M. Raucci, of Chicago, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff, Thomas Fortas, brought this action to review a decision of the Chicago Board of Election Commissioners overruling certain objections he had filed in relation to the nominating petition of defendant Patricia Dixon, a candidate for democratic ward committeeman of the first ward. Plaintiff argued that the board had erred in refusing to strike all the names on several sheets of the nominating petition where he had demonstrated that the circulators of the various sheets had filed false affidavits in connection with the circulation of these sheets. The trial court found that the ruling of the electoral board “overruling all of the objections to the nominating papers of Patricia A. Dixon [was] contrary to law and the manifest weight of the evidence.” After striking the additional names from the nominating petition of defendant, she did not have the number of signatures required by statute (Ill. Rev. Stat. 1981, ch. 46, par. 7 — 10). Accordingly, the trial court ordered that the name of candidate Dixon not be printed on the primary ballot. We granted defendant’s request for an expedited appeal to this court.

The record reveals as follows. Plaintiff filed timely objections to the nominating petition of defendant, alleging a number of deficiencies and improprieties. The only objections at issue in this appeal deal with plaintiff’s contention that certain signatures were invalid because the persons who presented the various sheets of the nominating petition to the signers were not the persons who signed the circulator’s affidavit. On January 9, 1984, the board’s hearing examiner conducted a hearing on the validity of the candidate’s nominating petition. During this hearing, plaintiff presented several witnesses and numerous affidavits in support of his allegations.

In particular, the following testimony was elicited. Oliver Gregory testified that he had personally circulated three sheets of the petition; sheets 1, 41, and 91. Sheets 1 and 41 bore the signature and affidavit of Ardelia Jones as circulator and sheet 91 was signed by Maxine Spencer as circulator. Sheets 5, 95, and 113 were all subscribed by a man, A. C. Kelly, as circulator. Ardelia Page and Lottie Judkins testified that they signed sheet 5 of defendant’s nominating petition which was presented to them by Carolyn Johnson. Neither of them recalled any men accompanying Ms. Johnson. Frances Schaeffer testified that she signed sheet 95 which was presented to her by a “female Spanish girl.” Sharon Frazier, O. C. Frazier, and Cynthia Schaeffer signed at the same time. 0. C. Frazier corroborated the testimony of his grandmother, Frances Schaeffer, and identified the circulator as a person known to him as “Becky.” A close examination of sheet 95 revealed that the name of Rebecca Rivera was whited-out and the name of A. C. Kelly was written over the whiteout of sheet 95, as circulator. James Rhodes testified that he signed sheet 113, which was presented to him by a black woman who was alone. In addition, 17 affidavits were admitted in evidence to the effect that the person presenting the affiants the various sheets which they had signed was not A. C. Kelly. Frances Carter testified that she signed sheet 10 and identified Carolyn Johnson as the circulator. She further testified that no other persons were with Ms. Johnson when she signed the sheet. The circulator’s affidavit was subscribed by Ardelia Jones. William Stevenson testified that he signed sheet 47 and identified Carolyn Jones as the circulator and further testified that no other woman was with her. The circulator’s affidavit for sheet 47 was subscribed by Maxine Spencer.

On January 12, 1984, the hearing examiner announced his ruling on pending matters. Plaintiff’s challenge to the signatures on sheet 1 were overruled on the ground that the objector had failed to properly specify the nature of his objections in the appendix of his petition. However, sheets 41 and 91 were struck in their entirety. On the other sheets challenged by plaintiff, the hearing examiner sustained objections as to all specific signatures where plaintiff produced evidence, either in person or by affidavit, from voters purporting to show that a person other than the circulator named on the sheet had presented the petition to the voters. A total of 74 signatures were thus stricken. The examiner overruled objections to other signatures appearing on the sheets which were alleged to have been circulated by someone other than the person signing the circulator’s oath.

On January 16, 1984, the board entered its decision finding that defendant had 35 signatures over the statutory minimum. On judicial review, the trial court struck all the remaining names on those sheets where there was evidence that someone other than the person signing the circulator’s oath had, in fact, circulated the sheet. This resulted in an additional 94 signatures being stricken from the candidate’s nominating petition and an order was entered prohibiting defendant’s name from appearing on the ballot. We affirm the judgment of the trial court.

Section 7 — 10 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 7 — 10) requires that anyone circulating a nominating petition execute a circulator’s affidavit in which the circulator is to certify:

“*** ^at the signatures on that sheet of the petition were signed in his presence, and are genuine, and that to the best of his knowledge and belief the persons so signing were at the time of signing the petitions qualified voters of the political party for which a nomination is sought.” Ill. Rev. Stat. 1981, ch. 46, par. 7 — 10.

This portion of section 7 — 10 has been strictly enforced by the courts of this State, which have viewed the circulators’ oath as an important way to safeguard fair and honest elections. In Bowe v. Chicago Electoral Board (1980), 79 Ill. 2d 469, 404 N.E.2d 180, the supreme court invalidated the signatures collected by a circulator who had failed to appear before a notary to have his signature acknowledged. Similarly, in Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292, various petitions were stricken because the circulators had failed to provide an affidavit certifying that the persons who had signed the petition were qualified primary electors. Cf. Madden v. Schumann (1982), 105 Ill. App. 3d 900, 435 N.E.2d 176 (requiring substantial compliance with the affidavit requirement).

Here, the situation is more serious than in Bowe and Havens. The sheets purportedly circulated by A. C. Kelly clearly evidenced a pattern of fraud, false swearing, and total disregard for the mandatory requirements of the Election Code. In one instance, Kelly went so far as to white-out the name of the person who had obviously circulated the sheet and inserted his own name as circulator.

It is well established that the trial court may reverse a decision of the electoral board when it is contrary to the manifest weight of the evidence. (Williams v. Butler (1976), 35 Ill. App. 3d 532, 341 N.E.2d 394.) We believe plaintiff had clearly sustained his burden of proving Kelly had not personally circulated sheets 95, 113, and 5 and that Kelly’s oath to the contrary was false. The testimony and affidavits adduced at the hearing could lead to no other conclusion. Accordingly, all the signatures on these sheets should have been stricken by the electoral board since the sheets did not contain the notarized affidavit of the actual circulator. This would have resulted in the deletion of an additional 32 signatures from the candidate’s nominating petition.

Similarly, we believe the board erred in refusing to strike all the names on sheet 1. The unrebutted testimony of Oliver Gregory was that he had circulated this sheet, not the woman, Ardelia Jones that had signed the circulator’s affidavit. The board had sustained objections to sheets 41 and 91 based on the similar testimony of Gregory but refused to strike sheet 1 because it had not been properly set forth in the objector’s appendix. The hearing officer stated:

“Since this particular objection does not fall "within any of the three noted in the Board rules, I must deny it. I will note, however, that the testimony of Mr. Gregory was fairly clear, that the person who signed the affidavit, according to the records, are [s-ic] Ardelia Jones, was not the one who signed the sheet.
So I am — obviously, the objector is not foreclosed from raising whatever points he may wish to do so in the future and in other forms. But based on my understanding of the Board practice and procedure and Board precedent, I am constrained to rule that way.”

We find the trial court properly reversed the board’s decision with respect to sheet 1. As the trial court correctly realized “when in the course of hearing objections to nominating papers, evidence beyond specific objections comes to the electoral board’s attention, it cannot close its eyes and ears if evidence is relevant to the protection of the electoral process.” Accordingly, we find the trial court properly deleted the 23 names appearing on sheet 1.

While we have some reservations with respect to whether other sheets were properly stricken in their entirety by the trial court, we do not deem it necessary to engage in a thorough analysis with respect to these sheets. The 55 signatures we have held to be properly stricken from the candidate’s petition already place her well below the statutory minimum requirement for having her name placed on the ballot.

In view of the foregoing, we affirm the trial court’s judgment reversing the electoral board and ordering that the name of Patricia A. Dixon not be printed on the March 20,1984, primary ballot.

Affirmed.

McGLOON, J., concurs.

JUSTICE CAMPBELL,

dissenting:

I agree with the well-reasoned opinion of Smith v. Board of Election Commissioners (N.D. Ill., 1984), 587 E Supp. 1136) and, therefore, would reverse the result reached by the circuit court and leave defendant’s name on the ballot.

In an order issued March 8, 1984, Judge Marvin Aspen of the United States District Court for the Northern District of Illinois ruled that the minimum signature requirements set forth in section 7 — 10(i) of the Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 7 — 10(i)) are unconstitutional. (Smith v. Board of Election Commissioners (N.D. Ill., 1984), 587 F. Supp. 1136.) The board of election commissioners had determined that four named plaintiffs, candidates for the position of ward committeeman in the city of Chicago, will not appear on the ballot for the March 20, 1984, election because they failed to submit sufficient valid signatures on their nominating petitions to meet the 10% requirements of section 7 — 10(i).

Section 7 — 10(i) specifies that a candidate for the position of ward committeeman must submit petitions for nomination signed by not less than 10% of the primary electors of his party in his ward. The number of primary electors is equal to the total votes cast for the candidate from the same political party who received the most votes in the last regular election in that district. In contrast, section 7 — 10(i) requires that candidates for the position of township committeeman need submit nominating petitions signed by only 5% of the primary electors in their district. Plaintiffs argued before the district court that this legislative classification based on geography violated the equal protection clause of the fourteenth amendment.

The district court recognized that minimum signature requirements on nominating petitions may injure a voter’s right to associate with the political party of their choice by excluding candidates from the ballot. (Anderson v. Celebrezze (1983), 460 U.S. 780, 75 L. Ed. 2d 547, 103 S. Ct. 1564.) The right of a party or an individual to be placed on the ballot is entitled to protection since it is intertwined with the associational rights of voters. Lubin v. Panish (1974), 415 U.S. 709, 716, 39 L. Ed. 2d 702, 708, 94 S. Ct. 1315,1320.

In evaluating the constitutionality of ballot access restrictions the district court followed the analysis utilized in Anderson v. Celebrezze, which required that a court must:

“first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” (Anderson v. Celebrezze (1983), 460 U.S. 780, 789, 75 L. Ed. 2d 547, 558, 103 S. Ct. 1564, 1570.)

A court also must consider if there is a less burdensome alternative through which a State might reach its goals. 460 U.S. 780, 805, 75 L. Ed. 2d 547, 568, 103 S. Ct. 1564, 1578-79.

The district court found important the State’s interest in establishing a signature requirement to insure that ballots remain within manageable, understandable limits, to avoid voter confusion, to eliminate frivolous candidates and to require a modicum of support prior to placing a candidate’s name on the ballot. See Lubin; Bullock v. Carter (1972), 405 U.S. 134, 145, 31 L. Ed. 2d 92, 101, 92 S. Ct. 849, 857; Jenness v. Fortson (1971), 403 U.S. 431, 442, 29 L. Ed. 2d 554, 562, 91 S. Ct. 1970, 1976.

The court found, however, that the evidence in the record indicated no significant differences between the offices of ward committeeman and township committeeman which would explain the disparate signature requirements and the more difficult burden placed on Chicago voters and candidates than upon township voters and candidates. The court was not convinced that gathering signatures in townships is more difficult than gathering signatures in the city. Nor was there any evidence that voter confusion, long ballots and frivolous candidates are a greater problem in the city than in the townships. Such an unjustified geographical classification, the court concluded, is contrary to the equality of citizens in the exercise of political rights. (Moore v. Ogilvie (1969), 394 U.S. 814, 818-19, 23 L. Ed. 2d 1, 6, 89 S. Ct. 1493, 1496.) The court determined that there are several less burdensome alternatives, including the elimination of the disparate signature requirements, by which the State could achieve its significant interests. Since the 5% rule presumably achieves the State’s interests in the townships, the court reasoned that to apply the 5% rule to the city wards would allow the State to realize its interests while reducing the unequal burden on Chicago candidates. The district court granted plaintiffs’ motions for preliminary injunctive relief and ordered that certain plaintiff candidates’ names be placed on the ballot for the upcoming election.

Counsel for defendant Patricia Dixon brought the Smith decision to the attention of this court and although defendant has not challenged the constitutionality of section 7 — 10(i), I am constrained to adopt the rationale employed by the Federal district court. The weight of the burden of the 10% signature requirement and the State’s inability to justify the disparate signature requirements between ward and township committeeman warrant sua sponte consideration of the constitutionality of section 7 — 10(i).

I recognize that as a general rule decisions of the United States district and circuit courts are not binding upon Illinois courts. (City v. Chicago v. Groffman (1977), 68 Ill. 2d 112, 383 N.E.2d 891.) Nevertheless, this court should give attention to a ruling of the Federal district court which finds an Illinois statute to be unconstitutional.

Defendant has informed this court that she has moved to intervene in the action before Judge Aspen. While the practice of pursuing identical relief in separate courts is frowned upon, I must note that if her intervention in the Federal district court is allowed, defendant’s name will appear on the ballot on March 20, 1984. During oral argument before this court, counsel for the defendant represented to this court that once the challenged signatures are removed, defendant’s petition will still have sufficient valid signatures to meet the 5% rule. Accordingly, I would reverse the decision of the circuit court and order that defendant’s name be placed on the ballot.

      The case at bar was consolidated for the purpose of oral argument only with another case which raised issues concerning the sufficiency of nominating petitions submitted for ward committeeman, Watkins v. Bwrke (1984), 122 Ill. App. 3d 499. I would also apply the rationale of Smith to that case.

      It is clear that a court may take judicial notice of other proceedings in other courts. People v. Davis (1976), 65 Ill. 2d 157, 164, 357 N.E.2d 792, 796.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
      In re MARRIAGE OF WILLIAM CARNEY, Petitioner-Appellee, and JOAN CARNEY, Respondent-Appellant.
    First District (1st Division)
    No. 82—2494
    Opinion filed March 19, 1984.

      Timpone & Rickelman, Ltd., of Chicago, for appellant.
    James T. Friedman and Joseph J. O’Hara, Jr., both of Schiff, Hardin & Waite, of Chicago, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

On July 1, 1982, the circuit court of Cook County entered an order dissolving the marriage of petitioner William Carney (William) and respondent Joan Carney (Joan). Joan appeals from that portion of the order relating to property division and maintenance. For the reasons set forth below, we reverse the judgment of the trial court and remand the cause for further proceedings.

The record reflects as follows. The parties have been married twice to each other. The parties were first married in 1961. During the course of their first marriage they had three children, Michael, Diana and Matthew. Upon Joan’s petition, the first marriage was dissolved in September 1978. The settlement for the 17-year marriage provided: (1) Joan would retain the marital residence in Northbrook, Illinois; (2) Joan would pay William the sum of $20,000 for his interest in the marital residence; (3) Joan would have custody of the parties’ three children; and (4) William would pay Joan a total of $23,800 per year in unallocated permanent maintenance and child support, payable $1,150 per month and $2,250 per quarter.

During the spring of 1979, Joan put the Northbrook home up for sale and began looking for a new home for herself and the children in the Barrington area. In June 1979, William approached her about the prospect of them remarrying and moving to Barrington. Subsequently, Joan agreed to the remarriage and sold the Northbrook home on August 14,1979.

On August 15, 1979, Joan and William remarried and on the same date purchased a five-bedroom, SVa-bath house on a l k acre site in the suburb of South Barrington. The Barrington home was purchased in joint tenancy for $225,000. The parties made a $100,000 down payment and obtained a mortgage loan in the amount of $125,000. The funds for the down payment came from the following sources: (1) $17,000 received by Joan from an inheritance; (2) Joan’s proceeds from the sale of the Northbrook home in the amount of $67,610.95; and (3) an $18,000 loan from William’s parents, for which both parties signed a promissory note.

Shortly thereafter, on November 10, 1980, William petitioned to have the second marriage dissolved, alleging mental cruelty. The case proceeded to trial on a bifurcated basis, with the grounds for dissolution proved by stipulation and the remaining issues heard as a contested mater.

At the time of trial, Joan was 41 years of age. She testified that during the course of the parties’ second marriage she was hospitalized on three occasions for emotional stress and alcoholism. She was initially hospitalized in January 1980 for three weeks for emotional exhaustion. Following her release from the hospital, she returned to the Barrington home. In May 1980, she was treated for severe depression in the mental health unit of a hospital for approximately seven weeks. After being released in July, she again returned to the Barrington residence. In November 1980, Joan testified that she “was on the verge of a nervous breakdown” and was hospitalized again for approximately seven weeks. Following this confinement, Joan did not return to Barrington. Instead, she went to live with a girlfriend until May 1981, then stayed with her sister for two months and eventually moved into her own apartment in suburban Schaumburg.

Upon leaving the Barrington home following her last hospitalization, Joan supported herself with temporary support payments from William in the amount of $700, and later $750, per month. To supplement these payments, she obtained various temporary part-time jobs, earning less than $5 per hour. She worked at a delicatessen, as a nurse’s aide and as a “Kelly Girl” temporary office worker. She testified that at the time of trial she was working at a White Hen Pantry, walking distance from her apartment, earning $3.50 per hour. Joan’s total wages in 1980 were $703.51. She stated that a lack of transportation precluded her from securing full-time employment. She hoped to procure a full-time job once her 1979 Pontiac, which had been barely running, was repaired.

Joan further testified that she received only a high school education and has no vocational skills or training. She was a housewife throughout the approximately 18 years she lived with William, except for briefly working part-time at a toy store. She also stated she was unable to pay her $400 monthly rental payments for five months and was therefore being evicted from her apartment. Additionally, she was being sued by a department store for $706 unpaid charges. In September 1978, she used $10,000 from an inheritance to pay William $10,000 of the $20,000 owed him under the first judgment of dissolution. An additional $3,000 from her inheritance was used as the down payment on a 1979 Pontiac she purchased during the interim period between the parties’ two marriages. The remaining funds from her inheritance have been depleted. Joan stated she has no savings or assets, except for some jewelry her mother left her.

Dr. Mark Round, Joan’s treating physician, testified that even though Joan is physically and mentally employable, her mental functions have been impaired as a result of the long-term consumption of alcohol. It was his opinion that Joan will benefit from continual, long-term psychotherapy. Although she has stopped drinking, he classified her as an alcoholic.

William is a partner in a law firm in Chicago. He draws an income of $2,500 per month and additionally receives periodical partnership distributions. He testified that his annual gross income from the the firm was $108,000 in 1981 and approximately $117,000 in 1980. When Joan left the Barrington residence, William maintained the home and provided for the care of the children, including their educational and medical needs. At the time of trial, the children, Michael, Diana and Matthew, were 19, 15 and 13 years of age, respectively. Michael was a student at the University of Illinois-Urbana. William testified that Diana had been injured in an accident and would require additional plastic surgery on her face, and Matthew had injured his knee and would probably need further medical attention. William stated that his monthly expenses for the home and children exceeded his income and he met this deficit by borrowing from various banks and his parents. He listed his total current debts at $57,856.18 as of April 5, 1982, exclusive of the mortgage and various debts incurred by Joan following her separation from William in the amount of $7,503.84, plus interest.

William additionally testified that in September 1978 Joan paid him $10,000 of the $20,000 due him for his interest in the Northbrook home under the prior judgment of dissolution. When Joan agreed to use her inheritance and proceeds from the Northbrook home to purchase the Barrington residence, he stated he “forgave” her for the $10,000 still owed to him. In his words, “we wiped it all out” and “put the house back together.”

William further stated at trial that he acted as Joan’s attorney in the sale of the Northbrook home on the day before the parties remarried. As her attorney, he drafted the documents necessary to convey title to the home, and placed his own name on the deed of conveyance. He admitted that he deposited all of the proceeds from the sale of the home directly into his own personal bank account, rather than in a joint account with Joan.

At the onset of trial, William attempted to introduce into evidence a written appraisal by a realtor, dated September 26, 1981, showing the fair market value of the eight-year-old Barrington home was only $167,000, which was $58,000 less than its purchase price two years earlier. Counsel for Joan objected to the appraisal and it was never admitted into evidence. William testified at trial, however, that the fair market value of the Barrington home had declined to $167,000 due to higher mortgage interest rates, the recession and normal wear and tear on the home. He further stated that he spent approximately $9,740 in home improvements.

Based on the foregoing evidence, the trial court found that: (1) the duration of the parties’ second marriage was 15 months; (2) the first marital home in Northbrook became Joan’s separate property under the prior dissolution decree, subject to the $10,000 that William alleged was still owed to him for his interest in the home; (3) Joan contributed $84,600 to the acquisition of the Barrington home— $67,600 in sales proceeds from the Northbrook home and $17,000 from an inheritance (her net contribution to the home, however, was reduced by the $10,000 supposedly still owing to William from the prior judgment); (4) William made a total contribution of $73,700 to the Barrington home — $32,700 in mortgage payments, $3,300 in real estate taxes, $9,700 in home improvements, the $18,000 loan from his parents and the $10,000 that the court found was owing from Joan; (5) William contributed $77,000 toward basic family expenses for himself and the children, and incurred an additional $58,000 in expenses for taxes, partnership contributions and unreimbursed professional expenses; and (6) the Barrington home was marital property.

Pursuant to the above findings, the trial court held that William would retain the Barrington residence and assume responsibility for the mortgage and the $18,000 loan from his parents. Joan and William were each awarded $22,000 for their marital interest in the Barrington residence. The parties’ interest in the home was based upon the court’s assumption that the home had a fair market value of $167,000. The court then subtracted the current mortgage balance, which was approximately $123,000, and found that the present net equity in the home was $44,000, one-half of which it awarded to each party. The entire breakdown of the property division is as follows:

Pursuant to an agreement between the parties, William was awarded custody of the minor children, Diana and Matthew. Joan was awarded rehabilitative maintenance in the amount of $30,000, payable over a period of five years at the rate of $750 per month. Joan’s interest in both the home and William’s retirement fund were to be paid in $500 monthly installments. William was ordered to pay $1,241.50 towards Joan’s attorney fees and costs. Subsequently, Joan and William both filed motions for rehearing which were denied.

I

We first address Joan’s argument that the trial court erred in its distribution of the property. Specifically, she contends that the lower court abused its discretion in awarding her only $22,000 for her interest in the Barrington home, the parties’ principal asset, because this amount was at least $50,000 less than her nonmarital contribution to the home. We agree.

The Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1981, ch. 40, par. 501 et seq.) requires the trial court to divide marital property in an equitable manner, taking into account all relevant factors, and its decision in that regard will not be reversed absent an abuse of discretion. (In re Marriage of Kopec (1982), 106 Ill. App. 3d 1060, 1063-64, 436 N.E.2d 684.) A fair and equitable division of marital property under the Act does not require that the marital estate be split in equal proportions. (In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 1131, 403 N.E.2d 730.) Rather, the Act mandates that the trial court divide the marital estate in a manner that is in “just proportions” after its consideration of the following factors:

“(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and nonmarital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
(5) any obligations and rights arising from a prior marriage of either party;
(6) any antenuptial agreement of the parties;
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(8) the custodial provisions for any children;
(9) whether the apportionment is in lieu of or in addition to maintenance;
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(11) the tax consequences of the property division upon the respective economic circumstances of the parties.” Ill. Rev. Stat., 1982 Supp., ch. 40, par. 503(d).

In the case at bar, the trial court clearly failed to divide the property in “just proportions” pursuant to the above requisite factors. The court found that the net equity in the Barrington home was $44,000 and split this amount equally between Joan and William, even though William was to retain the home. This division was made pursuant to the court’s determination that each spouse made approximately equal contributions to the home. Specifically, the court found that Joan contributed $84,600 to the residence — $67,600 from the sale of the prior Northbrook residence and $17,000 from her inheritance; her total contribution was reduced by the $10,000 the court found was still due William under the prior decree, despite William’s testimony that he forgave Joan for the $10,000 when the Barrington home was purchased. She received no credit for the $18,000 note for which she was jointly and severally liable. The court also found that William contributed approximately $73,700 to the purchase and preservation of the Barrington home — $32,700 in mortgage payments, $3,300 in real estate taxes, $9,700 in home improvements, the $18,000 loan from his parents and the $10,000 owed by Joan.

It is apparent from the findings above that although Joan’s contribution to the Barrington home was entirely capital, only a very minor portion of William’s contribution was capital. Rather, a substantial amount of his contribution consisted of current expenses incurred for the mortgage and real estate taxes. We note that 97% of the mortgage payments and 100% of the real estate tax payments were tax deductible. Consequently, we are of the opinion that to equate William’s current expenses with Joan’s capital investment was error, particularly when considering that William is in a 50% tax bracket and made such payments at a time when he was living on the premises and was obligated to provide shelter for his wife and children, who also were residing on the premises.

We further note that the division of the Barrington residence was based upon the assumption that its fair market value declined to $167,000, a $58,000 depreciation in two years, notwithstanding the fact that it was only eight years old, located in a prestigious area of suburban Cook County and, additionally, nearly $10,000 was spent in home improvements. After reviewing the record, we find no credible evidence to support such a valuation. Although William sought to introduce a written realtor’s appraisal valuing the home at $167,000, Joan’s attorney objected and the appraisal was never incorporated as part of the evidence. Nor did William provide expert testimony at trial as to the value of the home. Instead, William, who was not qualified as an expert, testified that the home’s value was $167,000. Upon further questioning, William admitted that his opinion was based “principally” upon the written appraisal that was not received into evidence. Consequently, we find that William’s testimony as to the value of the home not only was of a self-serving nature but also constituted rank hearsay and, hence, such testimony was inherently lacking in credibility.

Even if we were to assume that the $167,000 appraisal was correct, we think it unjust to saddle Joan with the entire burden of the dramatic loss in value of the home, which may be only temporary. At the same time, William, who is to retain ownership and possession of the home, would be the sole beneficiary of any increase in its value. Such a result certainly cannot be deemed fair and equitable under the Act in view of Joan’s substantial capital investment in the home.

The inequity in this matter is further magnified upon scrutinization of the health, occupation, vocational skills, income and other relevant economic circumstances of each spouse pursuant to section 503(d) of the Act. (Ill. Rev. Stat., 1982 Supp., ch. 40, par. 503(d).) William is a partner in a Chicago law firm, earning a six-figure income. He will retain a five-bedroom, S^-bath house occupying lk acres in an affluent suburb. Joan, on the other hand, has only a high school education, no vocational skills and at the time of trial was earning $3.50 per hour working at a grocery store. Her total earnings in 1980 were a meager $703. She had suffered serious health problems within the two years preceding this dissolution, requiring her to be hospitalized on at least three occasions with the longest confinement lasting nearly two months. At the time of trial she was being evicted from her apartment and being sued by at least one creditor. Her total cash payment upon the entry of the judgment of dissolution was $500, representing the first monthly payment of her share of the marital property, and she was further ordered to pay her own attorney fees and court costs.

William, in arguing that the property division is equitable, relies on the fact that he was awarded custody of the children and was responsible for certain outstanding debts. After giving due consideration to his argument, we find that these factors in no way lessen the abuse of discretion committed by the trial court in this case. Joan gave up everything she acquired in the earlier judgment, including the Northbrook home and its furnishings and at least $30,000 from an inheritance, and her right to permanent maintenance which, including unallocated child support, initially amounted to $23,800 per year. She has received very little in return under the second dissolution — a mere $22,000 for her approximate $84,600 investment in the Barrington home plus $8,000 of William’s retirement fund, and that to be paid over a five-year period in equal monthly installments, and a broken-down automobile. Accordingly, we reverse and remand that portion of the judgment relating to property disposition.

In remanding this cause, we note that there exists a presumption that the Barrington home is marital property because it was purchased during the marriage and held in joint tenancy. (In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635; Ill. Rev. Stat. 1981, ch. 40, par. 503.) This presumption, however, is not conclusive and can be rebutted by clear, convincing and unmistakable evidence that no gift to the marriage was intended. In the instant case, the trial court failed to find that the presumption was rebutted and therefore characterized the Barrington residence as marital property.

When a new trial is held on remand, we urge the court to carefully consider whether the presumption of marital property is indeed rebutted. The record before us at this time clearly reveals the absence of any donative intent on behalf of Joan; at no time did she state that her capital investment to the home was to be a gift. Instead, the uncontroverted evidence establishes that William acted as Joan’s attorney in the sale of the Northbrook home prior to their remarriage and placed his name on the deed of conveyance, even though he had no interest in the subject property. He then deposited all of the proceeds from the sale of the home into his own bank account, as opposed to a joint account. At trial, William rationalized these actions by indicating that he was entitled to the proceeds because he forgave Joan for $10,000 she owed him and he had paid for the Northbrook home with his own money, despite the fact that Joan was awarded the Northbrook home in the first judgment. Hence, William himself believed he received the proceeds as a matter of right, rather than as the donee of a gift.

Additionally, we briefly note that in August 1983 section 503(c) of the Act was amended by Public Act 83 — 129 to provide that a contribution of nonmarital property during the marriage will give rise to a right of reimbursement, notwithstanding any transmutation, except where the contribution is a gift or is untraceable. The amendment provides that it applies to actions pending on its effective date, August 19, 1983. Here, the judgment being appealed from was entered on July 1, 1982, and the action therefore was not pending at the time the amendment took effect. Consequently, we need not consider any impact the amendment may have in this case and, upon remand, the trial court is to apply the law existing at the time the judgment was entered. In re Marriage of Sweet (1983), 119 Ill. App. 3d 1033, 1040, 458 N.E.2d 14; see also McArdle v. McArdle (1977), 55 Ill. App. 3d 829, 833, 370 N.E.2d 1309, cited with approval in West v. West (1979), 76 Ill. 2d 226, 233, 390 N.E.2d 880.

II

We next turn to Joan’s argument that the trial court erred in awarding her rehabilitative maintenance of $30,000 over a five-year period, rather than permanent maintenance. In support of her argument, Joan directs our attention to the fact that upon her remarriage to William she gave up $23,800 per year in unallocated permanent maintenance and child support awarded her under the first judgment of dissolution. She further notes that she is unskilled, was a housewife for a number of years and more recently was employed in various part-time jobs earning less than $5 per hour. William, in response, emphasizes the brevity of the parties’ second marriage and testimony by Joan’s physician that she is able to work despite her recent health problems.

The Act, in authorizing rehabilitative or time limited maintenance, aims to provide incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency. (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 351.) This goal, however, must be balanced against a realistic appraisal of the likelihood that the spouse will be able to support herself in some reasonable approximation of the standard of living established during the marriage. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 464-65, 426 N.E.2d 1087.) Consequently, this court has determined that limited maintenance is appropriate only where the spouse is employable at an income which would provide approximately the standard of living enjoyed during the marriage. (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 351.) Conversely, where the spouse is not employable or is employable only at a low income, as compared to her previous standard of living, permanent maintenance is appropriate. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 465, 426 N.E.2d 1087.) The maintenance award rests within the discretion of the trial court and will not be disturbed on review unless it constitutes an abuse of discretion or is against the manifest weight of the evidence. In re Marriage of Bramson (1981), 100 Ill. App. 3d 657, 658, 427 N.E.2d 285.

In the present case, the evidence fails to support an award of time limited maintenance. Joan’s medical history and lack of a college education or any skills or training render highly uncertain, if not doubtful, her ability to support herself in five years on a level approximating the above average standard of living enjoyed by the parties during their marriage. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 465, 426 N.E.2d 1087.) Although Joan’s physician testified that she is physically and mentally capable of working, he did not testify as to her ability to support herself in the future. Moreover, he stated that her mental function is impaired and recommended Joan seek continued therapy, which in all probability she will have to pay for.

Moreover, this court is quite disturbed by William’s assertion that Joan is not entitled to permanent maintenance because of the brevity of the parties’ second marriage. On one hand, William is attempting, as a result of the second marriage, to take back virtually everything awarded to Joan in the initial judgment of dissolution, as we noted previously. He then prevails upon the trial court to consider their second marriage of such short duration so as to deny Joan permanent maintenance.

In limiting the maintenance award in this case, the trial court assumed that Joan could attain self-sufficiency in five years. An award of limited maintenance, however, should be predicated upon circumstances disclosed by the evidence, and not mere speculation. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 465, 426 N.E.2d 1087; In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 845, 398 N.E.2d 868.) Based on the record before the trial court, the true ability of Joan to support herself is unknown and a matter of speculation. This lack of evidence, coupled with the fact that Joan gave up the permanent maintenance awarded under the prior decree upon the parties’ remarriage, compel us to hold that the trial court abused its discretion in limiting maintenance to $30,000 over a five-year period. Accordingly, we reverse and remand the portion of the judgment relating to maintenance.

We note that in recent cases where the record was speculative as to a spouse’s future ability to support herself, this court has refused to affirm awards of rehabilitative maintenance with automatic termination dates. Rather, in such instances, we have remanded with directions to the trial court to retain jurisdiction over the maintenance award in order to review the parties’ respective circumstances at a later date and reevaluate the need for further maintenance. (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 352; In re Marriage of Campise (1983), 115 Ill. App. 3d 610, 614, 450 N.E.2d 1333; In re Marriage of Asch (1981), 100 Ill. App. 3d 610, 614, 450 N.E.2d 1333; In re Marriage ofAsch (1981), 100 Ill. App. 3d 293, 297-98, 426 N.E.2d 1066.) Such a flexible approach should be considered by the trial court in this case on remand.

This cause is reversed and remanded to the presiding judge of the domestic relations division of the circuit court of Cook County for reassignment and a new trial as to the property and maintenance provisions of the judgment for dissolution.

Reversed and remanded.

McGLOON and CAMPBELL, JJ., concur.

      WiIliam testified that upon their remarriage he convinced Joan to place the title to the automobile in joint tenancy. He also stated that pursuant to a court order following the couple’s separation he paid $166.37 per month toward the mortgage on the vehicle.

      The trial court subsequently, upon Joan’s amended petition for reconsideration, modified the judgment and ordered William to contribute $1,000 toward the payment of her attorney fees and her costs of $241.50.

      The $30,000 consisted of $17,000 Joan contributed at the time the Barrington home was purchased, $10,000 she gave William as part payment she was required to give him under the earlier judgment, and $3,000 she used as the down payment for a 1979 Pontiac.


author: PRESIDING JUSTICE RIZZI

text:
    RUBENSTEIN LUMBER COMPANY, Plaintiff-Appellant, v. AETNA LIFE AND CASUALTY COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 82—3096
    Opinion filed March 21, 1984.
    Frank Glazer, Ltd., of Chicago, for appellant.
    Galliani and Kuzel, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Rubenstein Lumber Company, sought a declaratory judgment that defendant, Aetna Life and Casualty Company, must defend and indemnify plaintiff in an action for retaliatory discharge brought against plaintiff by a former employee who had filed a claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.). The court entered summary judgment in favor of defendant, and plaintiff appeals. We affirm.

The facts of this case are undisputed. On March 23, 1979, one of plaintiff’s employees, who sustained accidental injuries arising out of and in the course of his employment, filed an application for adjustment of claim with the Industrial Commission. This employee subsequently filed a complaint against plaintiff alleging that he was discharged in retaliation for filing a workers’ compensation claim. Retaliatory terminations are prohibited by the Workers’ Compensation Act, which provides that “[i]t shall be unlawful for any employer *** to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his rights or remedies granted to him by this Act.” Ill. Rev. Stat. 1979, ch. 48, par. 138.4(h).

From July 1, 1978, to July 1, 1980, plaintiff paid premiums to defendant for a “Workmen’s Compensation and Employers’ Liability Policy.” Under the policy, defendant agreed “[t]o pay promptly when due all compensation and other benefits required of the Insured by the workmen’s compensation law” and to “defend any proceeding against the Insured seeking such benefits ***.’’

The issue here is whether, under the terms of the insurance policy, defendant is required to defend and indemnify plaintiff in the retaliatory discharge action. Plaintiff contends that the retaliatory discharge action, though a common law action, arises out of the Workers’ Compensation Act and is therefore a proceeding within the meaning of the policy. Plaintiff further contends that the retaliatory discharge action seeks compensatory damages which constitute compensation within the meaning of the policy. We reject plaintiff’s arguments.

The policy in this case does not require defendant to defend plaintiff in any proceeding, for the pertinent provision in the policy does not end with the word “proceeding.” Rather, the provision requires defendant to defend plaintiff in “any proceeding against the Insured seeking such benefits ***.” The benefits to which this provision refers are those described in the earlier “Coverage A — Workmen’s Compensation” provision as “all compensation and other benefits required of the Insured by the workmen’s compensation law.” Thus, defendant agreed to defend plaintiff in any proceeding seeking compensation and other benefits required of the insured by the Workers’ Compensation Act. We must therefore refer to the Act itself. Though the Act expressly prohibits retaliatory discharges (Ill. Rev. Stat. 1979, ch. 48, par. 138.4(h)), the Act does not provide for any compensation or benefits to an employee in the event that his employer violates the Act by discharging the employee in retaliation for filing a workers’ compensation claim. While the tort of retaliatory discharge exists in order to uphold and implement public policy such as that mandated by the Workers’ Compensation Act (see Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 129-32, 421 N.E.2d 876, 878-79), it is independent of the prohibition against retaliatory discharge which is found in the Act itself (see Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 181-82, 384 N.E.2d 353, 357). In addition, compensatory damages, which have been defined as damages which make good or replace the loss caused by wrong or injury (see Cody v. American Educational Co. (1907), 131 Ill. App. 240, 242), are not within the plain and ordinary meaning of the word “compensation.” Therefore, we believe that a tort action seeking compensatory damages as a result of a retaliatory discharge is not a proceeding seeking compensation and other benefits required of the employer by the Workers’ Compensation Act. We conclude that under the terms of the policy here, defendant is not required to defend and indemnify plaintiff in the retaliatory discharge action brought by one of plaintiff’s employees. Moreover, even if the policy was written to expressly require defendant to defend and indemnify plaintiff in the retaliatory discharge action, we believe that such a provision would be void as against public policy, for it would be an attempt to indemnify and insure the company for damages resulting from its voluntary misconduct. An agreement to indemnify or insure against one’s voluntary, not accidental, misconduct is against public policy and unenforceable. See Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 500-01, 336 N.E.2d 881, 885.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McGILLICUDDY and WHITE, JJ., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    DOMINIC MEGA, Plaintiff-Appellant, v. HOLY CROSS HOSPITAL, Defendant-Appellee.
    First District (2d Division)
    No. 83—837
    Opinion filed March 20, 1984.
    Carr & O’Rourke Associates, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Paul C. Estes, and Joshua G. Vincent, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff’s three-count complaint for negligence, breach of warranty and misrepresentation against Holy Cross Hospital, based upon radiation therapy treatments administered to him by the defendant in 1949, was dismissed on defendant’s motion because the claim was time-barred by section 21.1 of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 22.1, now ch. 110, par. 13 — 212). Plaintiff appeals. We reverse for reasons hereinafter set forth.

The issues raised on appeal include whether: (1) plaintiff’s claim was filed within a “reasonable” time, after section 21.1 of the Limitations Act (section 21.1) became effective; (2) section 21.1 is constitutional; and, (3) section 14 of the Limitations Act, and not section 21.1, applies to claims where the subject injury arises over a long period of time.

During the first three months following plaintiff’s birth on January 28, 1949, he was given X-ray therapy by Holy Cross Hospital personnel to treat his thymus gland. In 1973, plaintiff was notified by defendant that a suspected link was discovered between the X-ray therapy and the development of both malignant and benign thyroid tumors within a period as long as 20 years after treatment. Plaintiff’s neck was examined in 1973 and appeared to be normal. Approximately 8 years later, in March 1981, a malignant lump was discovered in plaintiff’s neck.

Plaintiff’s complaint was filed in September 1982, naming the hospital as sole defendant, within two years of the date plaintiff learned of the cancerous growth, but approximately 33 years from the date upon which the allegedly tortious treatment was given. Defendant filed a motion to dismiss, claiming the complaint was filed after section 21.1, as amended effective September 19, 1976, had run. The motion was granted and the complaint dismissed with prejudice on March 7, 1983. From this order plaintiff appeals. The 1976 amendment to section 21.1, which is the subject of the present litigation, reduced the outer time limit within which to file to four years, among other changes not related to the issues on appeal. In its present form the statute provides:

“Sec. 13 — 212. Physician or hospital. No action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death except as provided in section 13 — 215 of this Act.
If the person entitled to bring the action is, at the time the cause of action occurred, under the age of 18 years, or under legal disability or imprisoned on criminal charges, the period of limitations does not begin to run until the disability is removed.” Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212.

Both parties rely upon Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 447 N.E.2d 408 (Moore). Plaintiff argues that an amended statute of limitations decreasing the period available to file an action cannot be applied retroactively to instantaneously bar an existing cause of action, citing Moore. Defendant insists that Moore required claims resulting from acts occurring prior to 1976 to be filed within a reasonable time after the 1976 amendment to section 21.1, namely, within four years thereof, or by September 19, 1980. Defendant concludes that since plaintiff “waited” to file his claim until 1982, or six years after 1976, it cannot be considered filed within a reasonable time after the amendment was enacted. The circuit court also appears to have considered this six-year period as operative and the filing of the complaint therefore unreasonable.

The circumstances presented in the instant controversy more nearly resemble those cases involving the slow and insidious development of a physical condition over a long period of time, rather than at some specific point in time, which necessitates consideration of more than simple computation or accrual of calendar days. We fail to see how plaintiff “waited more than a reasonable time” before filing suit, as defendant insists, under these facts. To require a lawsuit to be filed within the statute of limitations when no injury has as yet manifested itself would place the putative plaintiff between Scylla and Charybdis: such a complaint would be subject to dismissal. (See Gillman v. Chicago Rys. Co. (1915), 268 Ill. 305, 109 N.E. 181.) To deny a legitimate claim of a late developing injury attributable to a negligent act performed at a considerably earlier time when, as here, the initial injury is unknowable, is unfair, unjust and ought to be avoided in this type of case. Here the injury itself must be examined in order to determine its causal relationship to the act or omission which took place years before. Courts have recognized the viability of such actions notwithstanding the general acceptance of administrative advantages and expediencies in placing such claims in repose. (See authorities collected in Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App. 3d 778, 786-90, 392 N.E.2d 1352, affd (1981), 85 Ill. 2d 1612.) The majority opinion in Moore moves in that direction with respect to injuries quite similar to those which developed in the present case.

Moore is a consolidation of three appellate decisions, one a foreign body case and the other two involving slowly and insidiously developing diseases. Plaintiffs there were exposed to the wrongful acts, resulting in later emerging injuries, in 1972, 1940, and 1941-43, respectively. The supreme court noted that in each instance, as in the present case, application of the 1976 amendment would bar instantaneously the plaintiff’s claims: in Moore, a needle was left in plaintiff’s body in 1972; however, she did not know of her injuries until 1978 and filed her claim seven months later in 1978; and, in Isaacs and in Fenchel, both treated for tonsillitis, plaintiffs underwent X-ray therapy in 1940 and 1941-43, respectively, which allegedly resulted in thyroid tumor growth. Isaacs became aware of his tumors in 1977 and filed suit in 1978; Fenchel became aware of hers in 1978 and filed her suit in 1980.

The supreme court majority in Moore observed that, as in the instant case, in each of the three cases there considered “*** there was no time whatsoever for these plaintiffs to file their actions after the effective date of the 1976 amendment ***” because the statute was already “*** in effect when their causes of action arose ***”; therefore, no reasonable time period required to allow retroactive application could be identified. (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 233-34.) The court went on to state:

“In 1976, the Illinois legislature did not clearly indicate its intention as to the applicability of the 1976 amendment. Since there is no express language as to retroactive application, we must give section 21.1 a prospective construction. This is the only equitable and rational solution to the dilemma the plaintiffs in these cases face.” (Emphasis added.) 95 Ill. 2d 223, 235-36.

The Moore majority thereafter analyzed legislation similar to section 21.1 enacted in Indiana, New York and California and concluded that: the Indiana time-limiting provisions of the Medical Malpractice Act (Ind. Code 16 — 9.5—1—7 (1982 Supp.)) do not apply to any act of malpractice which occurred before the statute’s effective date; the New York statute (CPLR 214 — a) specifically applies only to acts, omissions or failures occurring after the effective date of the limitations statute (1975 N.Y. Laws, ch. 109, sec. 37); and the California statute was construed by the California supreme court to apply prospectively only in order to avoid constitutional problems attending retroactivity (Brown v. Bleiberg (1982), 32 Cal. 3d 426, 651 P.2d 815, 186 Cal. Rptr. 228). (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 236-37.) The Moore majority then went on to hold:

“So, while the Illinois legislature’s response to the medical malpractice crisis may effectively limit the time in which future plaintiffs (plaintiffs whose injuries occur after the effective date of the 1976 amendment) can bring an action, we will not read into the statute a retroactive application so as to instantaneously extinguish a cause of action that existed prior to the amendment. Such an interpretation in the absence of an expressed intention in the amendment that it apply retroactively will not, in view of such an unusual and unfair result, be inferred.
Not only did the legislature in 1976 shorten the time in which these plaintiffs’ claims could be brought, but also the trial court, in applying the statute retroactively, instantaneously barred these plaintiffs’ causes of action on the effective date of the amendment to the statute of limitations. Given the unusual circumstances in these cases we hold that these plaintiffs’ claims should not have been automatically barred and their causes of action should not have been automatically dismissed for failure to comply with the four-year cutoff provision of the statute. Instead the court should have determined whether these actions were filed within a reasonable time after the effective date of the 1976 amendment.” Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 237.

In the case before us, as in Moore, although the negligent acts took place in 1949 prior to the expiration of the statute, plaintiff’s injury did not manifest itself until 1981, beyond the four-year cutoff provision of the 1976 amendment to then section 21.1. Were we to hold, as defendant argues, that plaintiff’s claim is automatically barred by virtue of this late developing happenstance, it would mean that plaintiff’s malignancy, in having failed to appear by 1980, although its symptoms were sought out in 1973 and could not be found, must go unrecompensed even if attributable to defendant’s medical negligence, simply by retroactive application of the statute. As held in Moore, “*** we will not read into the statute a retroactive application so as to instantaneously extinguish a cause of action that existed prior to the amendment.” (95 Ill. 2d 223, 237.) Although the specially concurring opinion suggests a different result, as defendant maintains, we must follow the rule articulated in the majority opinion. 111. Const. 1970, art. VI, sec. 3.

Defendant’s reliance in this regard on Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560, is misplaced. First, the issue of retroactive application of the statute of limitations was not specifically decided in Anderson. Second, unlike the present case, plaintiffs in Anderson had seven months after discovery of their injury within which to file their action and still comply with the limitations amendment, and a reasonable time thereafter. Here, the allegedly wrongful act took place before the amendment but the period of limitations expired before the injury had developed. In Robertson v. Taylor (1983), 115 Ill. App. 3d 587, 451 N.E.2d 16, the court, in sustaining the dismissal of a complaint, adverted to Anderson and distinguished Moore’s majority holding on the ground that it did not decide or consider whether the statute would bar suits if they were filed over four years after the effective date of the amendment. We read Moore’s holding to be that where the allegedly negligent acts or omissions occurred prior to the enactment of the limitations statute, but the injuries do not become known by the claimants until after the statute has expired, the circuit court must determine whether the “actions were filed within a reasonable time after the effective date of the 1976 amendment.” (Emphasis added.) (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 237.) We reverse and remand with directions that the circuit court consider the unusual circumstances of the emergence of the claimed injuries after the four-year limitation period expired and determine whether the time taken by plaintiff thereafter was reasonable within which to file his suit. Young v. Pease (1983), 114 Ill. App. 3d 120, 126, 448 N.E.2d 586.

The constitutionality of section 21.1 has already been determined in Moore and in Anderson. No further discussion of this issue is necessary. We need not and do not reach other issues raised on appeal.

Reversed and remanded with directions.

STAMOS and DOWNING, JJ., concur.


author: JUSTICE CAMPBELL

text:
    DR. CHARLES W. SMITH III, LTD., Plaintiff-Appellant, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 83—731
    Opinion filed March 19, 1984.

      Jordan B. Rifis, of Oak Park, for appellant.
    James T. Otis and Monica L. Thompson, both of Keck, Mahin & Cate, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Dr. Charles W. Smith III, Ltd., brought this action against defendant, Connecticut General Life Insurance Company, to recover $1,761.00 for services rendered to defendant’s insureds. Plaintiff appeals from a judgment in a bench trial entered in favor of defendant. The sole issue raised by both parties on appeal is whether summary dismissal of plaintiff’s claim based upon a determination that there was an invalid assignment was proper.

Initially, we note that no report of proceedings was filed in this case; however, the parties agreed on appeal that a directed verdict was granted by the trial court at the close of plaintiff’s case based solely on a matter of law that there was no valid assignment. (See City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 349 N.E.2d 399.) Additionally, the parties agreed at oral argument that the facts in this case are not in dispute.

In 1981, plaintiff rendered dental services to Marie Johnson and to Henry Brimmer, Jr. Marie and Henry are dependents of General Motors Corporation employees who are qualified to receive benefits under defendant’s insurance program. Before being treated, Marie and Henry each signed and submitted to plaintiff their claims for dental coverage on proof of claim forms provided by defendant. The printed form contains the following clause which is the basis for the dispute in this case:

“AUTHORIZATION TO PAY DENTIST — I hereby authorize payment directly to the below named Dentist of the Group Insurance Benefits otherwise payable to me.”

The form also contains spaces for the signatures of the dentist and the insured patient. After supplying the requested information, plaintiff signed and submitted the completed forms to defendant. Following treatment, defendant paid directly to Marie and Henry the benefits due them under their respective policies.

Section 370a of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 982a) provides for the assignment of health insurance benefits by the owner of the rights under the policy. The Code, in pertinent part, provides that:

“No provision of the Illinois Insurance Code, or any other law, prohibits an insured under any policy of accident and health insurance or any other person who may be the owner of any rights under such policy from making an assignment of all or any part of his rights and privileges under the policy ***” Ill. Rev. Stat. 1981, ch. 73, par. 982a.

Plaintiff contends that the language in defendant’s form was sufficient to create an assignment of insurance benefits from the insureds to plaintiff. Plaintiff argues that since Marie and Henry signed the forms, they intended that defendant pay plaintiff directly the insurance benefits owed to them under their respective policies. Plaintiff relies on Greater Kansas City Baptist & Community Hospital Association, Inc. v. Businessmen’s Assurance Co. (Mo. App. 1979), 585 S.W.2d 118, to support his argument that the clause in defendant’s form amounts to an assignment. In that case, the court determined that an authorization to pay clause, similar to the one in the instant case, showed a clear intention to assign insurance benefits from the insured to the hospital.

Defendant has advanced several reasons in support of the position that the authorization clause does not amount to an assignment of the insured’s benefits. However, we need not explore all of the various theories advanced for whether or not the disputed language constitutes a valid assignment in view of defendant’s course of conduct in this matter. Nor do we believe it productive in this case to address the cases from other jurisdictions that are relied upon by defendant. See Piedmont Southern Life Insurance Co. v. Gunter (1963), 108 Ga. App. 236, 132 S.E.2d 527; East Texas Life & Accident Insurance Co. v. Carver (Tex. App. 1966), 407 S.W.2d 251; Presbyterian Hospital v. National Life & Accident Insurance Co. (Tex. Civ. App. 1972), 480 S.W.2d 497.

It is well established that to constitute a valid assignment, no particular form of words is necessary. (Savage v. Gregg (1894), 150 Ill. 161, 37 N.E. 312.) Any words which show an-intention of transferring the chose in action to the assignee for valuable consideration are sufficient to create an assignment. (Savage v. Gregg.) Where the language of an agreement is ambiguous, however, a court may look beyond the document to ascertain the sense in which the parties used particular terms. (Northern Trust Co. v. Tarre (1981), 86 Ill. 2d 441, 427 N.E.2d 1217.) Moreover, a contract will be construed most strongly against the preparer. Saddler v. National Bank (1949), 403 Ill. 218, 85 N.E.2d 733; Smith v. Johnston (1979), 73 Ill. App. 3d 601, 391 N.E.2d 1092.

In this case, the disputed language was contained in a preprinted form supplied to the plaintiff by defendant’s insureds. The form was prepared and distributed by defendant and defendant intended that the form be utilized by its insureds in claiming benefits under defendant’s insurance program. The language defendant chose to include in its form is unambiguous and without conditions and invites the realistic expectation that the dentist named in the form would receive payment for his services directly from defendant. Additionally, defendant’s form fails to apprise or inform one that after properly executing the form and submitting it to defendant, payment would not be received in due course.

In fact, it is unfair to place the burden on plaintiff to establish that the plain and unambiguous language in the form did not confer any right to reasonably expect direct payment from defendant. It is undisputed that defendant had reason to know that its form would be used for the commercial purpose intended. Defendant’s procedure and conduct precipitated the entire circumstances from which the insureds derived direct benefits and from which, it could be argued that, an indirect benefit was bestowed upon defendant to the detriment of plaintiff. Were we to determine otherwise, defendant would possibly be in the position to exercise total discretion in selecting who was to be paid the benefits under the policy thereby leaving both the insured and the dentist in doubt as to whom the insurer would choose to pay.

Moreover, it appears that the purpose of the form is to facilitate the distribution of the insureds’ benefits to third parties who provide, as in the instant case, dental services. If the form was found to be unenforceable against defendant, it would not be conjecture to maintain that the form was misleading and would adversely affect innocent parties. As such, we are convinced that defendant has, with knowledge, caused, induced and contributed materially to the position of plaintiff and his patients and defendant should be precluded from asserting that the plain language “I hereby authorize payment directly to the below named Dentist ***” is unenforceable as an assignment. (See Greer v. Carter Oil Co. (1940), 373 Ill. 168, 25 N.E.2d 805; Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223.) Defendant could have employed some language in its form reasonably calculated to apprise plaintiff of the risk of not receiving direct payment from defendant. No such language was employed in this form. Therefore, under the facts and circumstances of this case, we conclude that defendant is estopped from attacking the validity of its own form (Dubosz v. State Farm Fire & Casualty Co. (1983), 120 Ill. App. 3d 674, 458 N.E.2d 611) and hold that the trial court erred in granting defendant’s motion to dismiss at the close of plaintiff’s case.

Accordingly, the circuit court’s judgment is reversed and this cause remanded for a continued hearing to allow defendant to raise other defenses, if any, it has to plaintiff’s claim, other than to attack the validity of the assignment.

Judgment reversed and remanded.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: JUSTICE GOLDBERG

text:
    BURTON LANSKI, Plaintiff, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Trustee, et al., Defendants (The City of Chicago, Plaintiff-Appellee, v. Andrew Vaccaro et al., Defendants; Walter Moton et al., Defendants-Appellants).
    First District (1st Division)
    No. 83—1402
    Opinion filed March 19, 1984.
    Rehearing denied April 23, 1984.

      Legal Assistance Foundation, of Chicago (Helen Cropper and William A. Kolen, of counsel), for appellants.
    James D. Montgomery, Acting Corporation Counsel, of Chicago (Jerome A. Siegan, Philip L. Bronstein, and Jennifer A. Keller, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Tajuana Kyle and Walter Moton (tenants) filed a special appearance in the circuit court seeking to quash a court order previously referred to as a “Writ of Assistance” (see Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1501) and to stay the proceedings. The trial court denied the tenants’ request. The tenants appeal.

On September 18, 1981, the city of Chicago filed a complaint alleging numerous building code violations in a 12-story residential building with 118 dwelling units. The trial court heard testimony from building inspectors to the effect that the premises were not in compliance with the building code and some of these violations made the structure unsafe. The trial court appointed a receiver to supervise renovation of the premises.

On April 8, 1983, the trial court advised the parties it was informed by the receiver that the premises were in a dangerous condition. The trial court entered an order requiring the premises to be “immediately vacated and boarded up.”

On May 17, 1983, the trial court entered an order directing the sheriff to remove all occupants from the premises. The tenants, as well as other residents of the premises, were named in the order. The tenants occupied the premises by virtue of month-to-month oral leases.

On June 9, 1983, all occupants of the building were served with the vacation order and with a letter from the sheriff informing them they would be forcibly removed from the premises on June 10, 1983. On June 10, 1983, the tenants filed a special and limited appearance in the trial court for the sole purpose of contesting personal jurisdiction of the trial court over them. The tenants also moved to quash the order for vacation of the premises and to stay further proceedings.

The tenants argue the issuance of the order to vacate the premises was improper because the tenants were necessary parties to the controversy and because the order deprived them of their property interest without due process of law.

The trial court issued its order to vacate under authority of the Illinois Municipal Code which provides in pertinent part (Ill. Rev. Stat. 1983, ch. 24, par. 11-13-15):

“In case any building *** is *** maintained *** in violation of an ordinance *** the proper local authorities of the municipality *** may institute any appropriate action or proceeding *** to prevent the occupancy of the building ***. ***
In any action or proceeding for a purpose mentioned in this section, the court with jurisdiction of such action or proceeding has the power and in its discretion may issue a restraining order, or a preliminary injunction, as well as a permanent injunction, upon such terms and under such conditions as will do justice and enforce the purposes set forth above.”

We believe this statutory enactment constitutes a valid grant to the municipality of the police power of the State. The purpose of the statute is the safety of the occupants of buildings found to be in violation of applicable building codes. The means of preventing occupancy of the premises are reasonably related to that purpose. (See Phillips v. Graham (1981), 86 Ill. 2d 274, 286-87, 427 N.E.2d 550 and cases there cited; Village of Oak Lawn v. Marcowitz (1981), 86 Ill. 2d 406, 412, 427 N.E.2d 36; also City of Carbondale v. Brewster (1979), 78 Ill. 2d 111, 115, 398 N.E.2d 829, appeal dismissed (1980), 446 U.S. 931, 64 L. Ed. 2d 783, 100 S. Ct. 2145; Palangio v. City of Chicago (1962), 23 Ill. 2d 570, 179 N.E.2d 663.) In Brewster the court held:

“[W]hen police power regulations are reasonable and adapted to the objects sought to be accomplished, they are not unconstitutional even though private property may be injured, interfered with, or damaged without the payment of compensation.” City of Carbondale v. Brewster (1979), 78 Ill. 2d 111, 116.

Furthermore, the statute quoted above delegates to the courts broad discretion in fashioning relief by preventing occupancy. The statute grants the court authority to issue any form of injunction “upon such terms and under such conditions as will do justice and enforce the purposes set forth above.” Ill. Rev. Stat. 1983, ch. 24, par. 11-13-15.

In our opinion, the grant of judicial authority under the police power is sufficiently broad to allow the trial court to issue the order to vacate even though the tenants were not served with process. Under urgent and extreme circumstances, a court may issue an injunction even if the restrained party has not received notice of the proceeding. Board of Education v. Parlor (1981), 85 Ill. 2d 397, 401, 424 N.E.2d 1152.

In the case at bar, the trial court made the judicial determination that the subject premises were uninhabitable and in a dangerous condition. We can hardly imagine more “urgent and extreme circumstance” than one in which a court determines that a large number of people are residing in a dangerous building. Under these circumstances, the trial court was vested with sufficient authority under the police power to order the immediate vacation of the premises.

The tenants contend they are necessary parties to the proceedings. In Consolidated Cable Utilities, Inc. v. City of Aurora (1982), 108 Ill. App. 3d 1035, 1039, 439 N.E.2d 1272, quoting Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 623, 387 N.E.2d 946, appeal denied (1979), 79 Ill. 2d 612, the court held:

“ ‘A necessary party is one whose presence in the suit is required for any of three reasons: (1) to protect an interest which the absentee has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence [citations]; (2) to reach a decision which will protect the interests of those who are before the court [citations]; or (3) to enable the court to make a complete determination of the controversy [citation].’ ”

The tenants thus were not necessary parties as they contend although they may have been proper parties if they had sought to intervene. (See University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872, 392 N.E.2d 136.) Compare City of Chicago v. Zik (1965), 63 Ill. App. 2d 445, 211 N.E.2d 545, cited by the tenants, which involved the right of intervention in a demolition proceeding.

The tenants rely on three cases: Chef’s No. 4, Inc. v. City of Chicago (1983), 117 Ill. App. 3d 410, 453 N.E.2d 892, In re Estate of Hecht (1978), 63 Ill. App. 3d 539, 379 N.E.2d 1322, and City of Chicago v. Zik (1965), 63 Ill. App. 2d 445, 211 N.E.2d 545. We find these cases distinguishable from the case at bar.

Chefs No. U involved a condemnation proceeding. In re Hecht involved an ordinary action for possession of residential property. No issue pertaining to exercise of the police power appears in these cases. As shown above, Zik is concerned with the right of intervention in a demolition proceeding.

During oral argument, this court was informed the tenants no longer reside upon the subject premises. Therefore, this case may be moot. (See Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 527, 430 N.E.2d 139.) However, the parties did not raise the issue of mootness; and, in the interest of resolving the legal issues presented by the case, we have decided the case on its merits. See Village of Palatine v. La Salle National Bank (1983), 112 Ill. App. 3d 885, 891-92, 445 N.E.2d 1277.

The judgment appealed from is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD EVANS, Defendant-Appellant.
    Third District
    No. 3-83-0459
    Opinion filed March 16, 1984.
    Rehearing denied April 20, 1984.

      Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

After a jury trial in the circuit court of Peoria County, defendant Bernard Evans was found guilty of Unlawful delivery of a controlled substance (LSD). He was sentenced to a term of two years’ imprisonment and ordered to make restitution in the amount of $180 from his bond.

In his appeal, defendant presents three issues: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether prosecutorial misconduct deprived him of a fair trial; and (3) whether the sentencing judge exceeded his authority in ordering restitution.

The incident giving rise to the offense involved the sale by the defendant of approximately 100 pills containing less than five grams of lysergic acid diethylamide (LSD) to 16-year-old Mike France on November 1, 1982. At defendant’s trial, France testified for the State under a grant of immunity. Other State witnesses included Donna Kurlinkus of the Multi-County Drug Enforcement Group (MEG); Agent Harry Sweet, also of MEG; and forensic scientist, Jean Muehlfelt.

Since the defendant’s first issue essentially challenges the credibility of the State’s witnesses, we will detail their testimony as presented at trial.

Michael France

According to France, he had met Agent Kurlinkus about a month prior to the instant drug sale while she was working undercover as “Karen Graham.” Kurlinkus had been introduced to France as a friend of Gerald Price, an acquaintance of France.

Around 10 a.m. of November 1, 1982, Price and Graham arrived at France’s home in Chillicothe. The three then drove in Price’s car to a house at Edgewater Terrace where France was to purchase for Graham 100 “hits” of LSD from a known drug source, Toby Hutchinson. France knocked on the door of Hutchinson’s house and waited about 15 minutes, but there was no answer. So he returned to Price and Graham and suggested they leave and come back a bit later since Toby usually was not gone long. They drove to a McDonald’s restaurant and stayed there about an hour before returning to the Edgewater Terrace address. This time, France was admitted into the house by the defendant. France paid $180 from the $200 given to him by Graham and was given a plastic baggie containing 100 little pills known to him as purple microdot. When he returned to the car, France handed the bag of pills to Graham and told her to tell people not to take more than three hits at a time because it was very strong. He said that he had taken two the night before, and on the drive home all of the reflector lights along the side of the road were saying, “hi, hi, hi, hi.” France had not, in truth, taken LSD the night before the transaction in question, but he had made the comment to Graham because he had taken some of the purple microdot on an earlier occasion. It was not that good, and he did not want Graham to be “bummed out.”

On cross-examination France admitted that he had lied to the grand jury when he told them he did not use LSD. France said that, although he was sworn to tell the truth on that occasion, he had not been represented by counsel and he knew nothing about the law. Donna Kurlinkus

Kurlinkus (Graham) had been introduced to France through her confidential source, Gerald Price. She related that she and Price picked up France at 11:30 a.m. on November 1, 1982. They drove to a house at 14905 Fruitland in Edgewild Addition and parked in the driveway. France told Kurlinkus that the acid she wanted cost about $1.80 a hit. She gave him $200 in $50 bills for 100 “hits” and told France to keep the change. Kurlinkus intended to give France the impression that she had a lot of money so that at some later time she could get France to introduce her to a large drug supplier under the guise that she wanted to deal in thousand lots.

France went to the door of the house just south of the address where the car was parked. It was raining very hard at the time, and France came back within a few minutes and reported that Toby was not there. At France’s suggestion, the three left for about an hour and then returned to the Fruitland address. Upon their return, Kurlinkus said there were several men working around the house looking at old cars. France went up to one with dark or black hair and they proceeded together inside the house.

When France returned to the car, Kurlinkus asked if the man he bought from was Toby and France said, “No, that was Bernie.” After dropping France back to his home, Kurlinkus field-tested the pills and ascertained that they contained LSD. The pills were subsequently delivered to the Morton crime lab for further testing.

At trial, Kurlinkus identified the defendant as the person she saw going into the house with France, but admitted that his hair was not dark. She explained the discrepancy by observing that his hair had been soaked by the rain when she saw him on November 1 and that it had appeared black under those conditions. She was, nonetheless, certain that she recognized the defendant’s face from her earlier viewing of him.

Jean Muehlfelt

Forensic scientist Jean Muehlfelt of the Morton crime lab testified as an expert witness for the State. Based on her tests of the pills, she concluded that they contained LSD.

Harry Sweet

Finally, another MEG agent, Harry Sweet, testified that he had arrested the defendant on January 26, 1983, on the unlawful delivery charge. The defendant was read his Miranda rights, and he agreed to talk with the agent. Sweet read to the defendant the report filed by Agent Kurlinkus concerning the November 1, 1982, drug deal and then asked the defendant what he knew about the transaction. The defendant said he didn’t know a Mike France and he did not remember having sold 100 hits to a Mike France. Nonetheless, the defendant admitted that Toby Hutchinson had been a roommate of his and that Hutchinson made monthly or bi-monthly trips to Michigan with $10,000 in cash to purchase LSD at $.64 a hit and then sold it from the Chillicothe residence at about $1.80 a hit. The defendant volunteered to turn over telephone bills displaying calls to Michigan made by Hutchinson. The defendant marked the long distance numbers called by Hutchinson in connection with the drug business for the agent’s use.

The defendant on appeal takes the position that the immunized testimony of the State’s star witness, Mike France, was not sufficiently credible to sustain a verdict of guilty and that Agent Kurlinkus’ version was inconsistent in too many details to be considered corroborative of France’s story. While it is true that France was shown to have lied under oath about his own drug use when he gave testimony against the defendant and he admitted having lied to “Graham” when he told her that the acid she bought was strong, we believe that France’s credibility at trial was a matter properly placed before the jury to be weighed in their determination of the verdict. France was only 15 years old and, although streetwise, the jury could have believed that he had had little enough experience with the criminal justice system not to have understood the consequences of perjury when he lied to the grand jury. The fact of France’s lies was thoroughly explored during defense counsel’s cross-examination, as was the fact of the State’s grant of immunity for this drug transaction and two earlier ones he had participated in with Agent Kurlinkus. In redirect examination, the State brought out France’s understanding that he would be prosecuted for perjury if he lied from the witness stand and that France did not want to testify in this trial. In our opinion, France’s credibility was sufficiently tested at trial to permit the jury to believe or disbelieve the evidence testified to by him. The jury was properly instructed on accomplice testimony. The testimony of an accomplice is sufficient to sustain a conviction in Illinois if it satisfies the trier of fact beyond a reasonable doubt. (People v. Nathaniel (1981), 103 Ill. App. 3d 610, 431 N.E.2d 1080.) It is apparent from the jury’s verdict that this standard was met here.

We do not find Kurlinkus’ testimony, although differing as to certain details, so radically contrary to that of France’s that it can not be believed. In many significant respects, Kurlinkus corroborated the substance of France’s testimony. France did not indicate that he met the defendant prior to entering the house. However, France was not asked whether or not he had met the defendant outside of the house on the second trip to the Fruitland address. Thus, the jury could reasonably have believed that France did not mention that particular detail because it was not significant to him. To Kurlinkus, who testified that they had met prior to entering the house, the detail was of great significance because she wanted to remember the appearance of the person France talked to outside of the house for purposes of possible later identification of the drug dealer that she suspected was Toby Hutchinson. Her explanation of the discrepancy in the defendant’s hair color was not so implausible as to destroy Kurlinkus’ credibility. In court, Kurlinkus hesitated when asked to identify the person she had seen going into the house with France. She explained the hesitancy on cross-examination by saying she wanted to make sure the man seated at defendant’s table was not “a cousin or drugger.” Finally the discrepancy between “Edgewater Terrace” and “Edgewild Addition” to describe the location of the Fruitland Avenue house is not so great as to render the testimony of France and/or Kurlinkus so inconsistent as to be unbelievable. The demeanor and responses of a witness at trial are to be weighed in the determination of the witness’ credibility. On appeal a jury’s determination of witness credibility will not be set aside unless it is so unsatisfactory as to justify a reasonable doubt of defendant’s guilt. People v. Pittman (1982), 93 Ill. 2d 169, 442 N.E.2d 836.

Although the defendant’s statement to Sweet was largely exculpatory, it, too, in some respects corroborated the testimony of France. The defendant admitted having been a roommate of Hutchinson’s at the address where the November 1 deal was made. Although the defendant denied knowing France, he did not affirmatively deny having sold LSD to him. He merely said he couldn’t remember the particular transaction. The price the defendant quoted for a hit of acid from Toby matched the amount France had paid on November 1.

We find that the evidence, taken as a whole, was sufficient to prove the defendant guilty beyond a reasonable doubt of unlawful delivery of a controlled substance.

Defendant’s second issue concerns several incidents of what defendant characterizes as prosecutorial misconduct. The first such incident stemmed from the prosecutor’s attempts to elicit testimony from Agent Kurlinkus about France’s conversation with her in the car after the 100-hit purchase in which Kurlinkus attempted to discuss a larger future purchase. Defense counsel objected to the hearsay aspects of the testimony and the trial court sustained the objection on this basis. The prosecutor made two more attempts to reach the substance of that conversation, but was unsuccessful, since defense counsel objections were sustained each time. The prosecutor then abandoned the line of questioning and proceeded to other matters.

On appeal, defendant contends that the prosecutor’s repeated attempts to elicit testimony about future drug deals prejudiced the defendant because it improperly accused him of other criminal activity for which he had not been charged. We cannot agree. By promptly sustaining defense counsel’s objections, the trial court short-circuited any prejudicial testimony that might have implicated the defendant in other criminal enterprises. Our review of the record convinces us that the prosecutor’s persistent questioning in this area was prompted by an attempt to avoid the hearsay problem. Defense counsel did not object on grounds of relevancy or “other crimes.” In our opinion, the defendant has waived the “other crimes” objection and, in any event, the defendant was not prejudiced by the prosecutor’s questioning.

Similarly we find that the prosecutor’s closing argument and rebuttal argument did not contain such highly prejudicial comments *as to deprive this defendant of a fair trial. The prosecutor’s misstatement of the evidence at one point was cured by the trial coup’s prompt admonition to the jurors to use their own collective ability to determine what the evidence admitted at trial was and to draw reasonable inferences therefrom. At another point, where the prosecutor commented that she was not apologizing for having given France immunity to procure his testimony against the adult defendant, the trial court ruled that the comment bordered on being inflammatory and thoroughly admonished the jury that they were to disregard the comment in their consideration of a verdict. We do not find that any error was committed in the trial court’s rulings. A mistrial was not warranted for any of the comments complained of. Nor can we say that the cumulative effect of the purportedly prejudicial comments was such as to deprive the defendant of a fair trial. In our opinion, any prejudice that might otherwise have resulted was adequately cured by prompt rulings and admonishments by the trial judge. Accordingly, we affirm the defendant’s conviction.

In defendant’s third issue he argues that the trial court exceeded its sentencing authority in ordering restitution of $180 to MEG. The amount so ordered is the amount France gave the defendant out of the $200 handed to him by Kurlinkus for the 100 hits of LSD she requested. The State contends that the issue is waived since it is being advanced for the first time on appeal. A similar argument was made and rejected in People v. Daugherty (1982), 104 Ill. App. 3d 89, 432 N.E.2d 391. There, as here, the defendant contended that the entity to whom restitution was to be made (the insurer of the complaining witness’ damaged property) was not a crime “victim” as that term was used in the statute authorizing restitution as part of a sentence. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—6.) The Daugherty court initially determined that even though the order of restitution had not been challenged at the trial level, the appellate court had jurisdiction to decide the issue, inasmuch as the defendant’s position, if correct, meant that the portion of the order attacked was void and “a void order may be attacked at any time.” (People v. Daugherty (1982), 104 Ill. App. 3d 89, 92, 432 N.E.2d 391, 394.) For the same reason, principles of waiver are not applicable here.

While certainly we would be remiss were we to hold that unlawful delivery of a controlled substance is a victimless crime, we would be blinking reality were we not to acknowledge that many, if not most, offenders are brought to justice through the efforts of undercover agents making buys with public monies. We will not, however, strain the commonly accepted understanding of the word “victim” so as to include the public drug enforcement agency, MEG, in the case before us. Where public monies are expended in the pursuit of solving crimes, the expenditure is part of the investigating agency’s normal operating costs. The governmental entity conducting an investigation is not therefore considered a “victim” to the extent that public monies are so expended. Evans v. Garrison (4th Cir. 1981), 657 F.2d 64.

A drug offender should not be permitted to profit from his illegal conduct and this policy is clearly recognized in the Controlled Substances Act. Rather than seeking restitution in a case such as this, the State might request the court to impose a fine (Ill. Rev. Stat. 1981, ch. 56½, par. 1401), or in the alternative, the State might institute forfeiture proceedings (Ill. Rev. Stat. 1981, ch. 56½, par. 1505).

As indicated above, we must conclude that the trial court’s order of restitution was in error. In the exercise of our discretionary authority under Supreme Court Rule 366 (73 Ill. 2d R. 366), we elect to vacate that portion of the trial court’s judgment ordering restitution in the amount of $180 to MEG. In all other respects the defendant’s conviction and sentence are affirmed.

Affirmed as modified.

STOUDER and SCOTT, JJ., concur.