text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN TARKOWSKI, Defendant-Appellant.
    Second District
    No. 80-911
    Opinion filed May 18, 1982.
    Rehearing denied June 16, 1982.
    Mary Robinson and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Nancie S. Hudell, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, John Tarkowski, was charged by indictment on August 8, 1979, with six counts of forgery. The indictment alleged that on May 7, 1979, defendant, with the intent to defraud, delivered purported judgment orders entered by Judge Hubert F. Will of the United States District Court for the Northern District of Illinois, Eastern Division, to the following: (1) Chairman of the board of Lake County, through Kathleen Scheerlinck, (2) Dawn Marie Mardoian, clerk of the circuit court of Lake County, through Angela Weick, (3) Dennis P. Ryan, State’s Attorney of Lake County, (4) Judge Thomas Doran, circuit judge of the 19th Judicial Circuit, Lake County, (5) Lakeland Property Owners’ Association, through Glynda Kupczak, president of the association and (6) Lakeland Property Owners’ Association, through John Sloan, a private attorney, who represented that association.

This action stemmed from a civil rights suit that defendant attempted to file pro se in Federal district court in 1979 in forma pauperis. This motion to do so was conditionally granted by Judge Leighton of that court, but the order was subsequently revoked by Judge Hubert F. Will, to whom the case was assigned. Since defendant refused to pay the $15 filing fee, the suit was never properly filed and thus none of the named defendants were required to appear. Nevertheless, in May of 1979, the defendant sent letters accompanied by purported default judgments to the named defendants. The purported judgment orders were neither signed nor dated nor otherwise authenticated.

On August 21,1979, defendant Tarkowski, represented by the public defender’s office of Lake County, was arraigned on the indictment returned August 8, 1979, and entered a plea of not guilty to each of the six counts. On February 7, 1980, a second indictment was filed against the defendant. It was captioned as having been returned by the January Term grand jury, the number assigned was the same as the original indictment, but it was marked on the back “Amended Indictment for Forgery (5 counts).” It differed from the first indictment in three respects: (1) it dropped the count concerning Dennis P. Ryan, State’s Attorney of Lake County; (2) it changed the date that Glynda Kupczak was allegedly served a copy of the purported judgment order from the date of May 7, 1979, to April 7,1979, and (3) it stated that the purported judgment order delivered by the defendant appeared to have been entered by the authority of the clerk of the United States District Court for the Northern District of Illinois, Eastern Division, rather than by Judge Will.*

It appears this amended indictment was returned in open court and was in the court file from the date that it was filed. It further appears that a copy of the amended indictment was never formally served upon the public defender’s office and the defendant was not re-arraigned nor served with a copy of the document. At the time that the trial was to commence, the defendant was represented by an assistant public defender, but the defendant requested that the trial court appoint different counsel. The trial court appointed a private attorney who agreed to appear pro bono for the defendant. The public defender’s file was given to the private attorney by the assistant public defender and this included only the original indictment. After the jury was impaneled, the private attorney claimed that she then first became aware that there was an amended indictment. The defendant claims not to have known of the amended indictment. The defendant’s counsel then moved to have the charges dismissed for lack of juridiction. The trial court first reserved ruling on that motion and later denied it. Defendant Tarkowski was found guilty of one count of forgery regarding the delivery of the purported judgment order to the Lakeland Property Owners’ Association, through Glynda Kupczak. He appeals on two bases: (1) that the trial court erred in allowing the State to proceed on the amended indictment which was never served upon the defendant and on which he was never arraigned and (2) that the State failed to prove him guilty beyond a reasonable doubt of forgery in that an essential element of the offense, that the document was apparently capable of defrauding another, was never established. We affirm as to both bases.

The defendant argues that he was denied the right to an arraignment under section 113 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 113 — 1), which provides in part as follows:

“Before any person is tried for the commission of an offense he shall be called into open court, informed of the charge against him, and called upon to plead thereto. * °

He argues that he became aware the State was proceeding on an amended indictment only after the jury had been impaneled. His newly acquired pro bono counsel was also unaware of the new charging instrument. He argues that the assistant public defender had turned over her file, but a copy of the amended indictment was not included. That assistant public defender later testified that she had only received a copy of the first indictment.

It is the State’s position that the failure to arraign the defendant on the amended indictment was not error since it was not substantially different from the original indictment, notice of the amended indictment was given to the public defender, and defendant was not prejudiced by the amendment. The trial court denied the defendant’s motion to dismiss and stated that it was denied the motion on the strength of section 113 — 6 of the Code of Criminal Procedure of 1963:

“Effect of Failure to Arraign and Irregularity of Arraignment. Neither a failure to arraign nor an irregularity in the arraignment shall affect the validity of any proceeding in the cause if the defendant pleads to the charge or proceeds to trial without objecting to such failure or irregularity.” (Ill. Rev. Stat. 1979, ch. 38, par. 113 — 6.)

The defendant argues that this statute is inapplicable to the case at bar because the issuance of the amended indictment was completely unknown to the defendant and to his assistant public defender counsel and to his private counsel. He argues that thus he went to trial without knowing of the charges the State was to proceed on. The record is contrary to this assertion. Just prior to jury selection, the assistant public defender made a motion to dismiss the indictment. The motion was an attack on the grand jury proceedings which resulted in the amended indictment. The assistant public defender argued that the witness before the grand jury who was an assistant State’s Attorney advised the grand jury that it could not find a no bill. In making that argument, the assistant public defender stated: “The initial, in fact, the initial indictment, when it came down, included a count in which the State’s Attorney was the complaining witness.” This argument is obviously an attack on the second indictment and shows that the assistant public defender knew that the second indictment did not contain a count alleging that Dennis P. Ryan, as State’s Attorney, had been delivered a copy of the purported judgment order. It is apparent from this argument that the assistant public defender, prior to jury selection, was fully aware of what charges the amended indictment contained and was proceeding on that and, in fact, arguing to dismiss it, rather than the first indictment. After hearing the arguments on that motion, the trial court denied it and then asked if there were any other pretrial motions to be filed. The assistant public defender indicated there were none. It is apparent that the defendant was present for the arguments on these motions and immediately after the trial court’s ruling the defendant requested that the court appoint a private attorney to represent him, arguing that he was dissatisfied with his public defender’s representation. The private attorney was also apparently present since the judge asked the defendant and the private attorney to come back to his chambers to discuss the matter of representation out of the presence of the jury which, the record indicates, had entered the courtroom. The defendant asked that the private attorney represent him as pro bono counsel. The trial court stated that the matter was going to trial that morning and asked the private attorney if she was willing to come in at this stage. She replied that she was if Mr. Tarkowski still wanted her on that basis. The public defender was allowed to withdraw, the private attorney took up the representation and the public defender arranged to have her papers delivered to the private attorney in the courtroom. The jury was selected, and opening statements were made. The private defense attorney then moved for a dismissal on the ground that the trial court had no jurisdiction since the defendant had never been arraigned on the charges and never entered a plea. In this case, the defendant did have knowledge of the contents of the original indictment and was arraigned on that indictment which charged the offense of forgery and set forth all of the essential elements of the charge. At a hearing held subsequent to the jury verdict, defendant’s original attorney, the public defender, testified that he did in fact have knowledge that an amendment was forthcoming. The public defender testified that the State’s Attorney informed him that an amended indictment had been obtained. No objection to the amendment was entered by the public defender, nor did he request a copy of the amended indictment. The assistant public defender handling the case was sufficiently aware of the information contained in the amended indictment to argue a motion to dismiss it and, in fact, in that argument referred to the “initial indictment.” Although the defendant claims he had no knowledge of the amendment, the knowledge of an attorney is imputed to his client, notwithstanding whether such knowledge was actually communicated by the attorney. (People ex rel. Rogers v. Elrod (1975), 35 Ill. App. 3d 26, 28.) We therefore hold that section 113 — 6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 113 — 6) governs this matter and that failure to arraign does not affect the validity of the proceeding since the defendant proceeded to trial without objection.

We further find that the three changes made between the original indictment and the amended indictment were not substantial and that defendant has shown no prejudice to his defense resulting from the amendments.

The defendant’s second contention is that he was not proved guilty of forgery beyond a reasonable doubt. He claims this because an essential element of the crime, that the document was apparently capable of defrauding another, was never established.

It is well established that apparent ability to defraud another is an essential element of forgery. (Ill. Rev. Stat. 1979, ch. 38, par. 17 — 3(a)(1).) The test of whether a document has the apparent ability to defraud another is whether a reasonable and ordinary person might be deceived into accepting the document as true and genuine. (Goodman v. People (1907), 228 Ill. 154.) It is not necessary that the forged instrument be so skillfully prepared it requires an expert to detect it. (228 Ill. 154, 158; see also People v. Kent (1976), 40 Ill. App. 3d 256.) Further, it is not necessary that another actually be defrauded (People v. Douglas (1980), 86 Ill. App. 3d 668), and the instrument need not be in “due legal form” to be found capable of defrauding another (People v. D’Andrea (1935), 361 Ill. 526, 533). Ultimately, this question is one of fact for the jury. As the court stated in People v. Kent (1976), 40 Ill. App. 3d 256, 261-62:

“It is the province of the jury to decide whether the document at issue might under the circumstances deceive the person to whom it was tendered into accepting it as genuine. * * * [We] would allow the jury, in an appropriate situation, to determine whether the State has proved all the elements of the crime of forgery beyond a reasonable doubt.”

In the instant matter, Glynda Kupczak testified that when she received the purported judgment order against the Lakeland Property Owners’ Association for $30,750,000, along with a cover letter requesting that she arrange for payment, she believed the document to be a valid judgment order. She testified that she consulted two attorneys over a period of one week before finally determining that the order was invalid. Since there is nothing in the record to indicate that Glynda Kupczak had any experience with the law of legal documents, the fact that the order she received was undated, unsigned and unverified is not decisive. Further, as the State points out, the document did not purport to be the original order, since the original order would have been filed in the courthouse, but only evidence of the order.

Defendant argues that the unsigned order received by Kupczak was analogous to an unsigned check. However, this argument is without merit since an ordinary reasonable layman is obviously more familiar with the requirements of a negotiable check than those of a valid judgment order. Further, a document need not be in “due legal form” (People v. D’Andrea (1935), 361 Ill. 526, 533) to be found capable of defrauding another. Thus, it appears the decision of the jury that the purported default order had the apparent capability to defraud a reasonable and ordinary person should not be disturbed, since it is supported by the evidence adduced at trial. We affirm.

Judgment affirmed.

NASH and REINHARD, JJ., concur.

       Rule 55 of the Rules of Civil Procedure for the United States District Court provides:
      “DEFAULT
      (a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.
      (b) Judgment. Judgment by default shall be entered as follows:
      (1) By the Clerk. When the plaintiff’s claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if he has been defaulted for failure to appear and if he is not an infant or incompetent person.”


source: Caselaw Access Project

author: PRESIDING JUSTICE STAMOS

license: Public Domain

text:
    HERMAN J. KUHLMANN, Plaintiff-Appellee and Cross-Appellant, v. BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF MAYWOOD, Defendant-Appellant and Cross-Appellee.
    First District (2nd Division)
    No. 81-1881
    Opinion filed May 11,1982.

      David M. Heisler, of Titel, Levy & Hewlett, P. C., of Chicago, for appellant.
    Richard F. McPartlin, of Chicago, for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff Herman Kuhlmann, former police chief of Maywood, Illinois, brought this action for declaratory judgment to establish his pension rights under the Illinois Pension Code. Defendant in this suit is the Board of Trustees of the Police Pension Fund of Maywood, Illinois (the Board). The trial court found plaintiff entitled to a pension of 60% of the salary of the police chief for the year prior to October 27,1980. The Board appeals, contending that plaintiff’s pension should be based on his salary for the year prior to May 1968, when plaintiff began receiving a disability pension. Plaintiff cross-appeals, asserting that his pension should be 75% of the police chief’s salary for 1980.

Plaintiff joined the Maywood police force on October 15, 1945. He rose through the ranks and was appointed chief of police in March 1967. In May 1968, plaintiff was injured in the line of duty and began receiving a disability pension of $486.71 per month. This pension was granted pursuant to section 3 — 114 of the Illinois Pension Code, which provided that a policeman who becomes disabled is entitled to a pension of one-half his salary for the year immediately prior to his retirement on disability. Ill. Rev. Stat. 1967, ch. 108*2, par. 3 — 114 (repealed effective October 1,1973).

Plaintiff attained age 50 on June 28,1971. He then had the option, per section 3 — 114, to convert his disability pension to a regular pension.

Section 3 — 114 provided, in part:

“If the disability continues for a period which, when added to his period of active service equals 20 years, the policeman shall, if he is age 50 and if he elects to then retire from the police force, be paid a regular pension in lieu of such disability pension.” (Ill. Rev. Stat. 1971, ch. 10812, par. 3 — 114.)

The “regular pension” referred to in section 3 — 114 is the retirement pension provided for in section 3 — 111 of the Pension Code. That section provides, in part:

“Any policeman who has creditable service of 20 years or more and has reached age 50 and who is no longer in the service as a policeman, shall be entitled to a yearly pension equal to 1/2 of the salary attached to the rank he held on such police force for 1 year immediately prior to his retirement * ° (Ill. Rev. Stat. 1971, ch. 108X, par. 3 — 111.)

Section 3 — 111 also provides for incremental increases in the pension rate (pension rates greater than 50% of the base period pay) for policemen who have more than 20 years of creditable service.

Although plaintiff reached age 50 in 1971, he did not elect to convert his disability pension to a retirement pension until October 27,1980. Plaintiff contends, essentially, that he remained a member of the police force until October 1980, when he elected to retire, and that his pension should be based on the police chief’s salary for the year prior to October 27,1980. Plaintiff also maintains that his pension should be based on 35 years’ service (1945 to 1980), a term of service that (under the present version of section 3 — 111, adopted in 1975) would entitle him to a pension equal to 75% of the base period salary.

The Board contends that plaintiff retired in 1968, not 1980, and that, in any event, section 3 — 114 should not be interpreted so as to permit a policeman on a disability pension to wait until well past the age of 50 and then claim a retirement pension based on the current salary for the policeman’s former rank. The Board points to section 3 — 116.1 of the Pension Code, which replaced the repealed section 3 — 114. (See Ill. Rev. Stat. 1979, ch. 108/á, par. 3 — 116.1 (effective October 1, 1973).) The two sections are comparable in that both allow a policeman who reaches the age of 50 while on disability to receive a retirement pension if his years of active service combined with his time on disability pension total 20 years. Section 3 — 116.1 specifies, however, that the electing policeman’s retirement pension will be one-half of his salary on the date of his retirement on disability. (Ill. Rev. Stat. 1979, ch. 108M, par. 3 — 116.1) The Board argues that in this regard section 3 — 116.1 merely clarifies the intendment of section 3 — 114. The Board also argues that the result sought by plaintiff violates article VIII, section 1(a) of the Illinois Constitution, which prohibits the use of public funds for private purposes. See Ill. Const. 1970, art. VIII, sec. 1(a).

For the most part, the trial court accepted plaintiff’s position. The court found plaintiff entitled to a pension based on the salary of the chief of police for the year prior to October 27, 1980, and the court stated that the annual pension should be 60% of that base period salary. The trial court arrived at the 60% figure by applying the incremental increase provision of section 3 — 111 that was in effect in 1971. That provision allowed a 1% increase in pension rate for each year of service over 20 years, with a maximum rate of 60% of the base period pay. (See Ill. Rev. Stat. 1971, ch. 108?2, par. 3 — 111.) In 1975, the incremental increase formula was revised to allow a 2% pension rate increase for each year of service over 20 years, up to 30 years, and a 1% rate increase for each year of service over 30 years, with a maximum rate of 75% of the base period pay. (Ill. Rev. Stat. 1975, ch. 108/2, par. 3 — 111.) In his cross-appeal, plaintiff argues that he should be allowed the incremental increase provision in effect in 1980, the year he elected to “retire.”

We find that three appellate court cases control the disposition of the Board’s appeal. For the sake of clarity, we will review all three before considering their application to the instant case.

In People ex rel. Anastasia v. Civil Service Com. (1973), 10 Ill. App. 3d 583, 295 N.E.2d 127, the plaintiff was a policeman who took a disability pension in 1962 and requested to replace that pension with a retirement pension in 1969, pursuant to section 3 — 114 of the Pension Code. The trial court found the plaintiff entitled to a retirement pension based on one-half of the 1969 salary attached to his former rank. The appellate court affirmed, finding that a policeman who, per section 3 — 114, retires while on a disability pension may receive a retirement pension based on the salary for his rank for the year prior to his “regular” retirement. 10 Ill. App. 3d 583, 587.

In Peifer v. Board of Trustees (1976), 35 Ill. App. 3d 383, 342 N.E.2d 131, this court reaffirmed the Anastasia court’s interpretation of section 3 — 114. The plaintiff in Peifer had, prior to the repeal of section 3 — 114, requested the pension board to convert his disability pension to a retirement pension. The defendant board waited until section 3 — 114 had been replaced by section 3 — 116.1 (effective October 1, 1973), and then offered a retirement pension based on the latter section. This court found that article XIII, section 5 of the Illinois Constitution creates an enforceable contractual right to pension benefits. (35 Ill. App. 3d 383, 386, citing Ill. Const. 1970, art. XIII, sec. 5 (“Membership in any pension or retirement system of the State * * * shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired”).) We held that the plaintiff was entitled to a retirement pension based on section 3 — 114 (35 Ill. App. 3d 383, 387), and noted that it would violate the constitutional protection of pension rights if the plaintiff were forced to accept the lower retirement benefit provided by section 3 — 116.1. 35 Ill. App. 3d 383, 388, citing 111. Const. 1970, art. XIII, sec. 5.

The case of Kraus v. Board of Trustees (1979), 72 Ill. App. 3d 833,390 N.E.2d 1281, expanded the constitutional analysis begun in Peifer. In Kraus, the plaintiff joined the police force in 1956, went on disability in 1967, and in 1976, at the age of 50, elected to convert his disability pension to a retirement pension pursuant to section 3 — 114. This court held that the Illinois Constitution guarantees an employee’s acquisition of vested contractual rights in the pension plan in effect when he becomes a member of the pension system. See 72 Ill. App. 3d 833, 848.

In the case at bar, plaintiff joined the police force in 1945. The record does not reveal when he joined the pension system but, as we observed in Kraus, an employee’s rights become fixed at the time he enters the system or at the time the constitutional provision becomes operative, whichever is later, but not at the time of retirement. (See Kraus v. Board of Trustees (1979), 72 Ill. App. 3d 833, 845 (citing with approval New York cases involving an identical issue).) The 1970 Illinois Constitution took effect on July 1, 1971. Plaintiff’s rights in the pension system accordingly vested at that time.

Anastasia, Peifer and Kraus fully answer the Board’s claims on appeal. The Board argues that plaintiff seeks to “revive” a repealed statute, but Peifer and Kraus make clear that section 3 — 114 is the provision under which plaintiff’s pension rights must be determined. The Board also argues that section 1(a) of article VIII of the Illinois Constitution (prohibiting the use of public funds for private purposes) will be violated if plaintiff is allowed a pension based on a 1980 salary rate although he stopped contributing to the pension system in 1968. In this connection, the Board cites Ziebell v. Board of Trustees (1979), 73 Ill. App. 3d 894, 392 N.E.2d 101. In Ziebell, the plaintiff was a police chief who retired with 26 years’ service in 1973 but was not eligible for a regular pension until 1975, when he reached the age of 50. The incremental increase provision enacted in 1975 would have given Ziebell a pension of 62% of his base period salary. The prior incremental provision, in effect when Ziebell retired in 1973, allowed a pension of 56% of the base period salary. The appellate court noted that the 1975 increase in the increment formula was accompanied by an increase in the contribution policemen were required to make to the pension system. (73 Ill. App. 3d 894,897-98.) Ziebell did not make these increased contributions and was therefore ineligible to benefit from the increased pension rate. The court held that Ziebell’s receipt of a pension computed under the amended incremental increase provision would require an unconstitutional expenditure of public funds for private purposes. 73 Ill. App. 3d 894, 898, citing Ill. Const. 1970, art. VIII, sec. 1(a).

The holding in Ziebell is consistent with that in Kraus. The Kraus case states, in essence, that an employee acquires a contractual right to the benefits of the pension system in force when the employee enters the system. The Ziebell case shows that an employee cannot, without the payment of additional consideration {i.e., pension contributions), take the benefit of changes in the pension system enacted after he entered the system. Put another way, any alteration of the pension system amounts to a modification of an existing contract between the State (or one of its agencies) and all members of the pension system, whether employees or retirees. A member is contractually protected against a reduction in benefits. By the same token, a member cannot take advantage of a beneficial pension change without providing consideration for the contractual modification. This consideration most often takes the form of new or continued contributions to the pension system. There is no unconstitutional expenditure of public funds for private purposes when the State is contractually obligated to pay the amount in question. Under Kraus, the Board is obligated to give plaintiff the benefit of section 3 — 114. As interpreted in Anastasia, section 3 — 114 allowed plaintiff to retire in 1980 and receive a pension based on the police chief’s salary for that year.

The Board makes two other arguments that can be disposed of readily. The Board contends that to apply section 3 — 116.1 would not amount to a diminution of plaintiff’s pension rights because section 3 — 116.1 merely clarifies what was the law under the repealed section 3 — 114. This contention is untenable in view of this court’s holding in Peifer that the application of section 3 — 116.1 would result in a “drastic reduction” of Peifer’s benefits under section 3 — 114. (Peifer v. Board of Trustees (1976), 35 Ill. App. 3d 383, 388.) The Board also argues that other provisions of the Pension Code are rendered meaningless or ambiguous if Anastasia’s interpretation of section 3 — 114 is given effect. The Board points to section 3 — 115 of the Pension Code, which requires annual medical examinations of policemen on disability pensions, but only to age 50. (Ill. Rev. Stat. 1971, ch. 10812, par. 3 — 115.) The Board asserts that no physical exam is required after age 50 because the policeman’s pension is then fixed at one-half the salary earned in his last year of active service. Assuming, arguendo, that the Board’s construction of section 3 — 114 would result in a fairer or more consistent pension plan, we nevertheless do not see how section 3 — 115 or other sections require the interpretation that the Board would give to section 3 — 114. Whether a statute is unwise is a legislative, not a judicial question. (Moweaqua Coal Corp. v. Industrial Com. (1935), 360 Ill. 194, 205,195 N.E. 607.) The fact that a provision may be unwise does not make it ambiguous or meaningless.

As noted above, the disposition of the Board’s appeal is controlled by Anastasia, Peifer and Kraus. Plaintiff’s cross-appeal presents an issue not treated in those cases. The issue in the cross-appeal, however, is readily resolved by the plain language of the statute and the court’s opinion in Ziebell. Plaintiff contends that he elected to retire in 1980 and should therefore be eligible for the incremental increase provision that was enacted in 1975. (See Ill. Rev. Stat. 1975, ch. 108%, par. 3 — 111.) The trial court found plaintiff entitled to the incremental increase provision in effect in 1971. (See Ill. Rev. Stat. 1971, ch. 108%, par. 3 — 111.) Under the Ziebell case, the trial court was correct in this regard. As noted above, plaintiff’s pension rights were established in 1971, when the 1970 Illinois Constitution’s protection of pension rights (Ill. Const. 1970, art. XIII, sec. 5) went into effect. The 1975 statutory amendment that increased the incremental rate provision does not apply to plaintiff, as he made no contribution to the pension system subsequent to his disability retirement in 1968. (See Ziebell v. Board of Trustees (1979), 73 Ill. App. 3d 894, 898.) Plaintiff is therefore entitled to the 1% annual increment schedule set forth in the earlier version of section 3 — 111. See Ill. Rev. Stat. 1971, ch. 108%, par. 3 — 111.

The trial court erred, however, in finding plaintiff entitled to the maximum rate (60%) under the 1971 statute. An incremental increase in pension rates is awarded for each year of creditable service over 20 years. “Creditable service” is defined in section 3 — 110 of the Pension Code:

‘Creditable service’ is the time served by a policeman as a member of a regularly constituted police force of a municipality. In computing creditable service 0 ° # all periods of disability retirement for which a policeman has not received any disability pension payments under Section 3 — 114 of this Article shall be counted.” (Emphasis added.) (Ill. Rev. Stat. 1971, ch. 108%, par. 3 — 110.)

The plain meaning of section 3 — 110 is that a pensioned period of disability is not creditable service. Section 3 — 114 specifically allows time on disability pension to be counted toward the 20 years of service needed for retirement but section 3 — 114 does not label such time “creditable service.”

According to the statutory definition, plaintiff has 22 years of creditable service (October 1945 to May 1968). We find that plaintiff is entitled to a pension equal to 52% of his base period salary, that is, the police chief’s salary for the year prior to October 27,1980.

Plaintiff’s action was for a declaratory judgment. The trial court erred only in computing the amount of incremental rate increase due plaintiff. The necessary modification is shown above. The judgment of the trial court is affirmed as modified.

Affirmed as modified.

PERLIN and HARTMAN, JJ., concur.

       As noted in Kraus, “vesting” here refers to the plaintiff’s acquisition of a contractual right to the benefits of the pension system. The other sense of “vesting,” a meaning not here applicable, refers to an employee’s entitlement to a retirement benefit after a specified period of service, pursuant to the provisions of the retirement plan. See Kraus v. Board of Trustees (1979), 72 Ill. App. 3d 833, 845.


author: JUSTICE JONES

text:
    GERALD MAYFIELD et al., Plaintiffs-Appellees, v. ROBERT SWAFFORD, d/b/a Swafford Masonry, Defendant-Appellant.
    Fifth District
    No. 81-83
    Opinion filed May 14, 1982.

      Dennis J. Hogan, of Murphysboro, for appellant.
    Caldwell, Troutt, Alexander & Quindry, of Benton, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

After a trial before the circuit court of Franklin County sitting without a jury, judgment was rendered for plaintiffs on count I of their amended complaint in the amount of $11,381. That count alleged that the parties had entered into an oral contract for the construction of a swimming pool on plaintiffs’ property and that defendant failed to construct the swimming pool in a “good workmanlike manner which will result in the plaintiffs having to repair the pool.”

Defendant contends that the pool did not show evidence of being defective at the time of completion and was accepted and used by plaintiffs. Therefore, the pool was not defective.

Evidence was presented that the swimming pool, which was built of concrete blocks at a contract price of $7,000, was not properly constructed and that the results of the improper construction were cracking and movement of some of the blocks, breaks in the pipes between the filter and pool, floating of the vinyl pool liner, cracking of the concrete deck and loss of water.

R. A. Nack, a professional engineer with a Master of Science degree in structural engineering from the University of Illinois, testified as to the measures required in order to correct the improper construction. Those measures were that the concrete deck and the soil surrounding the perimeter of the pool would have to be removed to afford access to the piping system, the concrete block walls would have to be realigned where they had shifted from their proper location and had cracked, the liner would have to be removed in order to be able to work on the concrete blocks, the piping system would have to be replaced with adequate piping, the concrete blocks would have to be reinforced by inserting reinforcing steel into the cores, a perimeter wall of poured concrete or an additional concrete block wall on the exterior of the present concrete block wall would have to be constructed, backfill would have to be properly replaced, the liner, decking and cap would have to be replaced and reseeding done where necessary. Mr. Nack opined that the above work would cost $10,355. He further testified that his fee for inspecting the pool and “subsequent work” was $1,026. Another witness, Bernard Witunski, an installer of swimming pools, testified that plaintiffs’ pool should be entirely replaced.

Thus, the cost of correcting the defects in plaintiffs’ pool exceeds the contract price of $7,000 by about 50%, and a large part of the cost of correcting these defects will consist of the cost of undoing work alleged to be improperly done.

The ordinary rule applied in cases involving building contracts is that a builder is not required to perform perfectly; rather, he is held only to a duty of substantial performance in a workmanlike manner (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668,356 N.E.2d 565; George Butkovich & Sons, Inc. v. State Bank (1978), 62 Ill. App. 3d 810, 379 N.E.2d 837). “The purchaser who receives substantial performance of the building contract must pay the price bargained for, less a credit as compensation for deficiencies existing in what he received as compared to what strict performance would have given him. Watson Lumber Co. v. Guennewig; Broncata v. Timbercrest Estates, Inc., 100 Ill. App. 2d 49,241 N.E.2d 569.” (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 673, 356 N.E.2d 565, 570.) Accordingly, failure to perform in a workmanlike manner constitutes a breach of contract. Upon consideration of the record before us we have determined that the conclusion of the trial court that the work of constructing the pool was not done in a workmanlike manner was not against the manifest weight of the evidence. Thus, the plaintiffs are entitled to damages. Gaffney v. McCarron (1977), 45 Ill. App. 3d 944, 360 N.E.2d 508.

The pool was constructed in the spring of 1977, and the case was tried in the fall of 1980. Plaintiffs testified that some of the defects became apparent by the summer of 1977. Other defects were noticeable in subsequent years and became progressively worse, such as the cracking and shifting of the concrete blocks. Evidence was presented that showed that substandard workmanship caused the defects and that these defects were indeed substantial. It is no bar to the action that plaintiffs did not discover the defects until some time after the completion of construction. See Annot, 1 A.L.R.Sd 870 (1965).

Defendant argues that he is entitled to a setoff against the judgment on the basis of plaintiffs’ testimony that their family made substantial use of the pool during the summers of 1977 and 1978 and some use of the pool in 1979. This issue, however, was not raised by the defendant in the pleadings. Although there was testimony that plaintiffs used the pool to some degree for three years, a setoff for defendant cannot rest upon such a defense where it was not pleaded. To decide otherwise would deprive plaintiffs of the right to notice and opportunity to defend against the issues they must meet. Kusy v. Johnson (1976), 41 Ill. App. 3d 763, 354 N.E.2d 480.

Defendant contends that the damages awarded are excessive. Examination of the record discloses that the question of the proper measure of damages was given much consideration by the trial court and the parties. It was the plaintiff’s position that the measure of damages should be either the cost of repair of the defects in the pool or the difference in market value occasioned by the construction of a defective pool. The court held that if a rule based upon diminution in value was to be applied that diminution would have to be shown by a consideration of the entire tract of real estate involved, lot, house and pool, since the pool was an unseverable part of the real estate. The plaintiffs sought to show, by witness Wills, a real estate appraiser, that diminution in value by reason of a defective pool would be shown by comparison of the appraised value of the entirety of the tract as improved with a good pool with the value of the tract as improved with a defective pool. Plaintiffs suggested that the amount of damages derived by such a method would be the same as the amount of damages derived by following the cost-of-repair rule. But, since witness Wills had not made an inspection and appraisal of the subject real estate with its pool, he was not permitted to testify; his testimony would merely have constituted advice to the court upon the proper rule of law to be followed in the case and would not be evidence.

The plaintiff also, at one point, sought to introduce evidence as to the cost of replacing the pool. This evidence was disallowed by the trial court when there was no showing that the replacement pool would be comparable to the defective pool.

It is defendant’s position that the proper measure of damages would be the difference between “the value of the pool as it is now and the value of the pool, had it been properly constructed.”

At the close of all the evidence the court stated that it would take the matter under advisement to examine the case in at least two unnamed particulars. When its decision was rendered, it was in the form of a judgment in which no findings were made regarding the measure of damages applied. We are unable to find an expression in so many words of the rule regarding the measure of damages that was adopted by the trial court. We think it evident from the amount of the judgment, however, that the damages awarded represented the cost of repairs necessary to restore the pool.

We have noted in the record that the parties and the court considered the case of Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 356 N.E.2d 565, in their discussions of the proper measure of damages to be applied to the case. Since the trial of this case, two additional decisions merit consideration, the supreme court case of Park v. Sohn (1981), 89 Ill. 2d 453,433 N.E.2d 651, and Witty v. C. Casey Homes, Inc. (1981), 102 Ill. App. 3d 619, 430 N.E.2d 191.

As a general rule, when performance by a builder has been less than full performance of a construction contract, the measure of damages is the cost of correcting the defects or completing the omissions. (Park v. Sohn; Witty v. C. Casey Homes, Inc.; Brewer v. Custom Builders Corp.) Where, however, application of that measure of damages would require an unreasonable destruction of the work done by the contractor or would incur costs disproportionate to the results obtained, the appropriate measure of damages is the diminution in value attributable to the defects in construction. Park v. Sohn; Witty v. C. Casey Homes, Inc.; Annot., 76 A.L.R.2d 805 (1961).

The foregoing rule has been recognized and explained in the Restatement (Second) of Contracts sec. 348(2) (b) (1981), which provides:

“Alternatives to Loss in Value of Performance
(2) If a breach results in defective or unfinished construction and the loss in value to the injured party is not proved with sufficient certainty, he may recover damages based on
(b) the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him."

In the comments following the recitation of the rule, it is stated:

“Sometimes, especially if the performance is defective as distinguished from incomplete, it may not be possible to prove the loss in value to the injured party with reasonable certainty. In that case he can usually recover damages based on the cost to remedy the defects. Even if this gives him a recovery somewhat in excess of the loss in value to him, it is better that he receive a small windfall than that he be undercompensated by being limited to the resulting diminution in the market price of his property.
Sometimes, however, such a large part of the cost to remedy the defects consists of the cost to undo what has been improperly done that the cost to remedy the defects will be clearly disproportionate to the probable loss in value to the injured party. Damages based on the cost to remedy the defects would then give the injured party a recovery greatly in excess of the loss in value to him and result in a substantial windfall. Such an award will not be made. It is sometimes said that the award would involve ‘economic waste,’ but this is a misleading expression since an injured party will not, even if awarded an excessive amount of damages, usually pay to have the defects remedied if to do so will cost him more than the resulting increase in value to him. If an award based on the cost to remedy the defects would clearly be excessive and the injured party does not prove the actual loss in value to him, damages will be based instead on the difference between the market price that the property would have had without the defects and the market price of the property with the defects. This diminution in market price is the least possible loss in value to the injured party, since he could always sell the property on the market even if it had no special value to him.” Restatement (Second) Contracts sec. 348, comment c (1981).

We come, now, to the application of the rules of damages of Park v. Sohn, and the other authorities discussed above, to this case. The cost to repair the defects in the pool were fixed by the judgment rendered by the trial court at $11,381. When compared to the original contract price of $7,000 for construction of the pool, the cost of repair seems unreasonably disproportionate to the benefit to the owner. This is to say, it would cost the defendant $11,381 to furnish the plaintiff with a $7,000 pool. The disproportion in the cost-benefit ratio involved here demonstrates the “economic waste” that can be involved and serves to explain the foundation which underlies that aspect of the rule which bases the damages for faulty or incomplete construction upon the diminution in value.

Another facet of the rule that fixes the amount of damages as the diminished value is presented by this case. That is, to make the repairs to the pool as they were described in the evidence would entail unreasonable destruction of the builders’ work. Apparently, to make the necessary repairs, it would require a substantial reconstruction of the entire facility.

We have concluded that due regard for the damages rule of Park v. Sohn requires that consideration be given to the amount of damages as determined by the diminution in value of the plaintiffs’ property by reason of the faulty construction. Although simple to state, the rule is not so simple in its application. The diminution in value rule arose largely in the context of construction of dwellings and buildings where faulty or incomplete construction nevertheless left the owner with a structure possessing a degree of usability or utility.

In contrast, the structure involved in this case is a swimming pool. It is unattached to plaintiffs’ residence and was added to the property subsequent to the construction of the residence. Its builder did not build the residence. The pool is apparently constructed so that it became a part of the real estate. Of greater import, however, is the fact that in its present condition the pool has no use, function or utility to the owner. Its presence on the property detracts from, rather than adds to, the value of the property. Consequently, the cost of removal of the useless structure and the cost of restoration of the site to its original condition become factors in determining the extent of the diminution in value of the owner’s property.

These considerations require an adaptation of the segment of the Park v. Sohn rule of damages that is invoked when correction would require an unreasonable destruction of the work done by the contractor or would incur costs disproportionate to the results obtained. Where the improvement has no use or utility, the amount by which the property has been diminished in value would reflect the cost of removal of the entirety of the structure and the restoration of the site to its original condition. The amounts paid by the plaintiffs for the original construction will be entered into the diminution of value standard by measuring the diminution of value of the property as it would have been improved with a properly constructed pool. That value is then to be compared with the value of the property with no pool at all. The cost of removal of the pool and restoration of the site to its original condition debases the value of the lot with no pool at all. Such debasement should, however, make allowance for any salvage obtained in the removal process. Therefore, in this case, since the pool in its present condition would have no value to the plaintiff, a determination of diminution in value would include the cost of removing the pool and restoring the property to its original condition (less the value of any salvage obtained in the removal process) in addition to reimbursement of the contract price of $7,000.

The trial court has already determined the cost of repairs necessary to restore the pool. No evidence was offered or received regarding any residual use of the pool or regarding the diminution of the value of plaintiffs’ property.

In a similar situation in Witty v. C. Casey Homes, Inc. (1981), 102 Ill. App. 3d 619, 430 N.E.2d 191, the court affirmed a judgment rendered in the trial court for defendant-builder because the owner produced evidence only of the cost of repairs of faulty construction and such cost was found to be disproportionate to the benefit to the owner. The owner produced no evidence regarding the diminution in value by reason of the faulty construction. The result in the Witty case seems harsh since it penalizes the innocent owner and rewards the contractor who breached the contract by faulty performance.

We believe the better rule would be to remand the case to the trial court for a hearing upon the diminution in value to plaintiffs’ property resulting from the faulty construction, such diminution to be determined along the guidelines we have discussed. The plaintiffs will then be entitled to judgment for the lesser of the two amounts to be compared, that is, the lesser of the amount of the cost of repairing the pool, already established as $11,384, and the amount of the diminution in the value of plaintiffs’ property.

Judgment affirmed in part and reversed in part, and remanded for further proceedings.

Affirmed in part, reversed in part and remanded.

HARRISON and KASSERMAN, JJ„ concur.


author: JUSTICE LINDBERG JUSTICE VAN DEUSEN,

text:
      In re MARRIAGE OF LINDA A. PEASE, Petitioner-Appellee, and JACK E. PEASE, Respondent-Appellant.
    Second District
    Nos. 81-483, 81-649 cons.
    Opinion filed May 20,1982.

      VAN DEUSEN, J., specially concurring.
    H. Joseph Gitlin, of Gitlin and McNerney, of Woodstock, for appellant.
    Gordon E. Graham, of Holmstrom and Green, of Crystal Lake, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Respondent, Jack Pease, appeals from an order of the circuit court of McHenry County denying his petition for a change of custody, and from an order awarding petitioner, Linda Pease, prospective attorney fees for the defense of an appeal. Three issues are before us on this appeal. (1) Whether the circuit court abused its discretion in finding that the children were not integrated into respondent’s family; (2) whether the circuit court abused its discretion in finding that the children’s present environment does not seriously endanger their physical, mental, moral or emotional welfare; and (3) whether the circuit court abused its discretion in awarding petitioner prospective attorney fees for the defense of the appeal. We affirm in part, reverse in part.

Petitioner contends that the trial court abused its discretion in denying his petition for a change of custody. Child custody matters are within the sound discretion of the trial court. The trial court is in a better position to observe the witnesses and to determine what is in the best interest of the children. The trial court disposition in such matters will not be interfered with unless it is against the manifest weight of the evidence. (In re Custody of Harne (1979), 77 Ill. 2d 414, 422, 396 N.E.2d 499, 503; In re Marriage of Batchelor (1980), 89 Ill. App. 3d 781,412 N.E.2d 49.) The trial court is guided by section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)), which provides:

“The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless: (1) the custodian agrees to the modification; (2) the child has been integrated into the family of the petitioner with consent of the custodian; or (3) the child’s present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.”

Our supreme court has determined that section 610(b) requires a trial court, before modifying a prior custody judgment, to make an explicit finding that either subsection (1), (2), or (3) of section 610(b) is applicable. (In re Custody of Harne.) Respondent argues that he has proved that subsections (2) and (3) of section 610(b) are applicable, and that the trial court’s finding is against the manifest weight of the evidence.

Respondent’s contention that his children have been integrated into his family with petitioner’s consent is without merit. Respondent argues that the term “integrated” as used in section 610(b) (2) is synonymous with “adjusted” within the meaning contemplated by the legislature. He argues that petitioner consented to his liberal visitations and therefore consented to the integration or “adjustment” of the children into respondent’s family. “The consent requirement in section 610(b)(2) is intended to ensure that the custodian acquiesced in the transfer of physical custody (e.g., to discourage non-custodial kidnapping) and the integration into the family of the petitioner, and should be viewed in that narrow context.” In re Custody of Burnett (1979), 75 Ill. App. 3d 998, 394 N.E.2d 58.

In the case at bar, the record does not establish that respondent’s children have begun to develop a stable and permanent custodial and environmental relationship with respondent’s family. Respondent usually has physical custody of the children from Friday afternoon until early Monday morning. The children are with their father for only one-third of the week. This limited period of time does not allow for the children to become integrated into the father’s family. Respondent’s wife cooks for the two extra children only two days of the week, and she does not have to wash their clothes or attend to their medical needs. Indeed, a major part of the children’s lives has not been integrated into respondent’s family.

Accordingly, the record establishes that petitioner merely allowed respondent to exercise his visitation rights, and at most, to have temporary custody of the children each weekend.

Additionally, section 610(b)(2) requires that the custodial parent consent to the children’s integration into the noncustodial parent’s family. (In re Custody of Burnett.) Petitioner never consented either explicitly or “constructively” to respondent’s attempt to integrate the children into his family. (In re Custody of Iverson (1980), 83 Ill. App. 3d 493, 404 N.E.2d 411.) Rather, petitioner’s acquisition of an injunction enjoining respondent from interfering with the children’s custody, demonstrates the opposite. Petitioner’s generosity in allowing respondent to exercise more than minimal visitation rights is not consenting to the integration of her children into respondent’s family. (In re Custody of Stearns (1980), 84 Ill. App. 3d 195,198,405 N.E.2d 457, 459.) The case at bar is not distinguishable from Stearns. In Stearns, the mother allowed her son to remain with his father because the town in which his father lived had a tackle football team, while the boy’s mother’s town did not. However, the court noted that the mother was generous with regard to visitation even prior to when the circumstances involving the tackle football team arose. As in Stearns, petitioner’s generosity toward respondent and the children should not be interpreted as a relinquishment of her custodial rights. Thus, respondent did not consent to her children’s integration into respondent’s household.

The second issue before us is to determine whether the trial court abused its discretion in finding that the children’s present environment does not seriously endanger their physical, mental, moral or emotional welfare.

Defendant contends that the children’s present environment seriously endangers their physical, mental, moral and emotional welfare, and that the harm likely to be caused by a change of environment would be outweighed by the advantages to them. The evidence regarding petitioner’s care for her children’s physical health, hygiene and safety was conflicting. Respondent testified that petitioner fed the children insubstantial meals, failed to bathe them and to wash their clothes. Petitioner refuted each of these accusations. The record indicates however, that prior to the hearings in the trial court, petitioner could not spend substantial periods of time with her children because she had to work. The children were spending considerable time with babysitters.

The record further establishes that petitioner and the children have resided in four separate locations, and that petitioner had employed 17 different babysitters and worked at five different jobs since the parties’ marriage was dissolved. The stability of the environment is an important factor in determining a child’s best interests. (In re Custody of Russell (1979), 80 Ill. App. 3d 41, 399 N.E.2d 212.) While changes in the parents’ residence, employment and choice of babysitters are relevant factors in determining the child’s best interest, they are not controlling unless they adversely affect the child’s welfare. Mason v. Mason (1977), 49 Ill. App. 3d 775, 364 N.E.2d 705.

In the case at bar, the record is devoid of any evidence that petitioner’s changes in residence, babysitters or employment adversely affected the children’s welfare. Although the ill effects of such changes need not manifest themselves before a court can alter a child’s custody (In re Custody of Harne; In re Custody of Nodot (1980), 81 Ill. App. 3d 883, 892, 401 N.E.2d 1189, 1194), nothing in the record suggests that the children’s present welfare is seriously endangered, and there is a lack of evidence that the children’s welfare will be endangered in the future. See Soldner v. Soldner (1979), 69 Ill. App. 3d 97, 103-04, 386 N.E.2d 1153, 1158.

In the case at bar, petitioner testified that she had begun to work the midnight to seven a.m. shift. This allowed petitioner to spend considerably more time with the children, and to leave the children with a babysitter only while they were sleeping. Although petitioner’s living arrangements with her roommates lacks any clear promise of long-time security, the children appear to have a healthy relationship with the petitioner’s roommates’ children and a stable environment. Thus, any deficiency in petitioner’s ability to provide her children with a stable environment, appears to have been corrected. See In re Custody of Saloga (1981), 96 Ill. App. 3d 661, 666, 421 N.E.2d 991, 994.

There is evidence that the parties’ son has a stuttering problem. There is no evidence linking Jonathan’s stuttering to any instability in his present environment with his mother; rather, all the evidence indicates his being shuffled to and from his parents’ separate residences and this dispute as being the cause of the boy’s impediment.

Section 610 of the Marriage Act was enacted to provide a degree of finality to child custody cases. (In re Custody of Harne.) The rationale for this provision was to provide stability and permanency in children’s custodial and environmental relationships. The law favors the preservation of the existing custody judgment. (Rayburn v. Rayburn (1977), 45 Ill. App. 3d 712; 360 N.E.2d 142.) Additionally, reviewing courts are reluctant to interfere with the disposition of the trial court in child custody matters. (Wells v. Wells (1976), 36 Ill. App. 3d 488, 344 N.E.2d 37.) The record shows that the trial court considered the evidence before it, and the trial court was charged with assessing the credibility of the witnesses. Therefore, the trial court’s disposition was not contrary to the manifest weight of the evidence. The judgment of the circuit court of McHenry County denying respondent’s petition to modify the custody decree is affirmed.

Finally, respondent appeals from an order of the trial court requiring him to pay petitioner’s prospective attorney fees for defending the appeal. We hold that the trial court lacks jurisdiction to enter an award for attorney fees to defend an appeal after the notice of appeal is filed and while the appeal is pending. Additionally, we hold that a court may not award prospective attorney fees for the defense of an appeal.

In appealing the award of attorney fees, respondent maintains that the trial court has no jurisdiction to make the award, since the jurisdiction of the appellate court has already attached. An exception to this general jurisdictional rule must be specifically provided for by statute. Section 508(a) of the Marriage and Dissolution of Marriage Act provides:

“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred by the other spouse, which award shall be made in connection with the following “ ” * (3) The defense of an appeal of any order or judgment under this Act, including the defense of appeals of post-judgment orders.” Ill. Rev. Stat. 1979, ch. 40, par. 508(a).

Although the statute does allow for an award of attorney fees made in connection with the defense of an appeal, the statute has no specific provision to negate the general rule that the filing of a notice of appeal deprives the trial court of further jurisdiction. Powers v. National Mirror Works (1977), 52 Ill. App. 3d 592, 367 N.E.2d 763; Sherman v. Sherman (1979), 74 Ill. App. 3d 451, 393 N.E.2d 67; Hecht v. Hecht (1977), 49 Ill. App. 3d 334, 364 N.E.2d 330; Kilbane v. Dyas (1975), 33 Ill. App. 3d 439, 337 N.E.2d 217; First Federal Savings & Loan Association v. American National Bank & Trust Co. (1968), 100 Ill. App. 2d 460, 241 N.E.2d 615.

The applicable principles are summarized in the Historical and Practice Notes to section 508:

“This subsection does not authorize awards of attorney’s fees and costs in the trial court while an appeal is pending. Such awards could be made under the prior Divorce Act which expressly authorized such a procedure. “ “ * In the absence of such explicit statutory authority, the trial court lacks jurisdiction to award fees to defend an appeal after the jurisdiction of the appellate court has attached.” Ill. Ann. Stat., ch. 40, par. 508, Historical and Practice Notes, at 639 (Smith-Hurd 1980).

It is clear that the trial court has general power to award attorney fees pursuant to section 508(a) of the Marriage and Dissolution of Marriage Act and also pursuant to the plenary equitable powers of the trial court. (See Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849,859,360 N.E.2d 386.) However, regardless of the source, the power must be exercised while the trial court retains general jurisdiction over the cause. See Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 859; see also Fox v. Fox (1978), 56 Ill. App. 3d 446, 449, 371 N.E.2d 1254; see generally Dienstag, Attorney Fees for Services Rendered in the Prosecution or Defense of Appeals from Post-Decree Divorce Proceedings, 66 Ill. R.J. 568, 572-74 (1978).

The cases have held repeatedly that the only power to allow attorney fees to defend an appeal involving a matrimonial situation is by virtue of section 15 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 16). Arndt v. Arndt (1948), 399 Ill. 490, 78 N.E.2d 272; Jenkins v. Jenkins (1878), 91 Ill. 167; Jacobs v. Jacobs (1946), 328 Ill. App. 133, 65 N.E.2d 588; Balswic v. Balswic (1912), 179 Ill. App. 118.

The legislature amended the Divorce Act in 1976 (1976 Ill. Laws 788) by deleting the provision authorizing the trial court award of attorney fees “during the pendency of the appeal.” (Ill. Rev. Stat. 1975, ch. 40, par. 16.) We find no language in section 508(a) of comparable specificity that would allow the trial court to make such an award after appellate jurisdiction has attached.

Section 508(a) states that the court has authority “from time to time” to make fee awards, but this phrase does not seem to be jurisdictional in scope. Since section 508(a) encompasses attorney fees for prefiling and post-decree activities, we conclude that this language only refers to the recurring need for such orders. Cf. County Board v. Short (1898), 77 Ill. App. 448, 452 (“from time to time” does not mean “at any time” or “at all times” and must be read in context).

We are aware that In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058,419 N.E.2d 598, approved of granting prospective attorney fees. We note that this view is in conflict with the statute which authorizes payment of “a reasonable amount for his own ” ” e attorney’s fees * * • and [requires that such] fees [be] necessarily incurred ” ° (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 40, par. 508(a).) Thus, the statute and the relevant case law clearly refers to accumulated expenses and not future expenses. (In re Marriage of Justema (1981), 95 Ill. App. 3d 483, 420 N.E.2d 796.) The court is not bound by the attorney’s opinion as to what constitutes a reasonable fee and must inquire into all of the necessary factors. (Welsh v. Welsh (1976), 38 Ill. App. 3d 35, 39, 347 N.E.2d 512, 516.) The time spent on a case is the factor of greatest importance. (In re Marriage of Reczek (1981), 95 Ill. App. 3d 220,222,420 N.E.2d 161,163.) An attorney’s general statement as to the time spent is an insufficient basis for a fee award and detailed time records are usually required. (In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 277, 411 N.E.2d 947, 950.) The attorney must itemize both the time expended and the work performed. (In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158,163, 408 N.E.2d 1021, 1026.) The court also looks to the benefits resulting to the client. In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 276, 411 N.E.2d 947, 949: Christian v. Christian (1979), 69 Ill. App. 3d 450, 458-59, 387 N.E.2d 1254,1260-61, appeal denied (1979), 75 Ill. 2d 589.

Therefore, we conclude that the statute and the case law rejects the idea of prospective fees. The underlying premise for this viewpoint is that “prospective awards of attorney’s fees made during the pendency of an appeal were, in practice, necessarily speculative and therefore difficult to determine or to review on appeal.” (Ill. Ann. Stat., ch. 40, par. 508, Historical and Practice Notes, at 640 (Smith-Hurd 1980).) An appropriate remedy is for the petitioner to petition the trial court for an allowance of attorney fees and costs now that those expenses can accurately be made.

Accordingly, the order of the circuit court of McHenry County denying respondent’s petition to modify the custody decree is affirmed. The award of prospective attorney fees to petitioner’s attorney is reversed.

Affirmed in part, reversed in part.

HOPE, J., concurs.

JUSTICE VAN DEUSEN,

specially concurring:

I concur in the result reached in this case. However, while I agree with the majority’s holding that the trial court erred in ordering the respondent to pay petitioner’s prospective attorney fees for defending the appeal, I disagree that the trial court lacks jurisdiction to entertain a petition for attorney fees to defend an appeal after notice of appeal is filed and while the appeal is pending.

This court recently considered and rejected the position that the trial court lacks jurisdiction to award attorney fees subsequent to the filing of notice of appeal, reasoning as follows:

“[T]o hold that the trial court is deprived of jurisdiction to award attorney’s fees under the Act because a notice of appeal has been filed would be to apply a general principle to a specific situation where it is inapposite. The filing of notice of appeal does not deprive the trial court of jurisdiction in all instances. There are many recognized exceptions to the general principle that the trial court loses jurisdiction upon the filing of a notice of appeal. [Citations.] Plainly, a trial court has jurisdiction to hear matters independent of and distinct from the issues involved in the appeal. The trial court may entertain matters that are purely collateral or supplemental to the appeal [citations], or which arise subsequent to entry of the judgment from which the appeal has been taken and which do not have the effect of interfering with review of the judgment. [Citations.] Accordingly, we must determine whether an award of attorney’s fees to defend an appeal of a matter brought under the Act would have the effect of interfering with review of the judgment from which the appeal has been taken.
In this regard, it is readily apparent that an award of attorney’s fees to defend a pending appeal necessarily involves an issue that arises after a notice of appeal is filed, and which therefore could not be embraced in the pending appeal. Thus, the award of attorney’s fees to defend a pending appeal is not affected in any way by the appeal, and it is not dependent in any respect on the outcome of the appeal. Nor does the award of attorney’s fees have the effect of interfering with the pending appeal. Accordingly, an award for attorney’s fees to defend a pending appeal is merely collateral to the appeal and involves a matter independent of any question raised by the appeal. [Citations.] We therefore conclude that under the Act, the trial court has jurisdiction to award attorney’s fees for the defense of pending appeals. (In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 1060-61.)

The Giammerino court resolved this question in a well-reasoned and cogent manner. Clearly, the trial court is not foreclosed, by reason of the filing of a notice of appeal, from awarding attorney fees to defend the appeal because the fee award is collateral to and independent of the appeal.

I agree with the majority’s opinion that there must be specific statutory authority to allow the trial court to award attorney fees after appellate jurisdiction has attached. The Historical and Practice Notes to section 508 correctly state that explicit statutory authority is required. (Ill. Ann. Stat., ch. 40, par. 508, Historical and Practice Notes, at 639 (SmithHurd 1980).) However, while the majority agrees with the authors of the note that section 508(a) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 508(a)) does not authorize the trial court to award attorney fees during the pendency of an appeal, I do find such specific and explicit statutory authority in section 508(a). Compare Sherman v. Sherman (1979), 74 Ill. App. 3d 451, 455; Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 859.

From the plain meaning of the words of section 508(a)(3), it is apparent that the trial court is authorized to award, “from time to time,” attorney fees that have been “necessarily incurred” in the defense of an appeal. In In re Marriage of Justema (1981), 95 Ill. App. 3d 483, 488, this court recently held that the legislature by section 508 authorized courts to, from time to time, order payment of attorney fees and costs incurred by a party for services of an attorney which have been rendered. While Justema dealt with the authority of the trial court to award fees for proceedings at the trial level, the legislative grant of authority in the words “at any time” applies equally to trial court fee awards for services rendered in pending appeals. Because the words “from time to time” are clearly applicable, the words “during the pendency of the appeal,” which had appeared in section 15 of the former Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 16), were surplusage and were discarded.

With the enactment of section 508(a), it is clearly permissible for a party to make multiple requests for fees or costs at different stages of the proceedings. (Ill. Ann. Stat., ch. 40, par. 508, Historical and Practice Notes, at 635 (Smith-Hurd 1980).) Nothing in the Act states that attorney fees may not be awarded during the pendency of an appeal. (In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058,1060.) The language of this section is clear and unambiguous, and there is no need to engraft upon it, as the majority would, a requirement that the attorney wait until the termination of the appeal before petitioning the trial court for fees under the Act. See Franzese v. Trinko (1977), 66 Ill. 2d 136,139-40.


text:
    AMERICAN PET MOTELS, INC., et al., Plaintiffs-Appellants, v. CHICAGO VETERINARY MEDICAL ASSOCIATION et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81-1217
    Opinion filed May 11,1982.
    Rehearing denied June 3,1982.

      Ralph E. Brown, of Chicago (Walsh, Case, Coale, Brown & Burke, of counsel), for appellants.

      William L. Arnold and Eric J. Liberman, both of Arnold and Hennessy, and Norman Bloch, all of Chicago, for appellee Chicago Veterinary Medical Association.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, John T. Coleman, and Thomas A. Doyle, of counsel), for appellee M. A. Cosnow, D.V.M.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This is an action for libel and slander. The plaintiffs are American Pet Motels, Inc. (APM), and Robert Leeds and John Zevchak, two of APM’s officers. The alleged slander was spoken by defendant M. A. Cosnow, a veterinarian. The alleged libel was published by defendant Chicago Veterinary Medical Association (CVMA). Plaintiffs also claim that defendants have tortiously interfered with plaintiffs’ business relationships and have violated the Uniform Deceptive Trade Practices Act. Plaintiffs seek damages and injunctive relief. The trial court granted summary judgment for both defendants. Plaintiffs appeal.

APM operates a pet boarding service in Prairie View, Illinois. Defendant Cosnow is a veterinarian and member of the CVMA. On January 25, 1977, defendant Cosnow, acting in his capacity as chairman of the Animal Breeder-Dealer Liaison Committee, addressed the executive committee of the CVMA. Cosnow stated:

“It has been reported to me that lay personnel at the American Pet Motels diagnosed and treated two cats for a parasite infection while they were being boarded at the facility.”

One of Cosnow’s functions as Animal Breeder-Dealer Liaison was to report to the CVMA instances of unauthorized practice of veterinary medicine.

The CVMA publishes a regular newsletter for distribution to its members. The newsletter contains, among other things, the minutes of meetings of the CVMA’s executive committee. The February 1977, edition of the newsletter contained the minutes of the January 25, 1977, meeting of the executive committee. In a section titled “COMMITTEE REPORTS,” the newsletter contained this passage:

“ANIMAL BREEDER-DEALER LIAISON — Dr. Cosnow reported an incident concerning the American Pet Motel in which lay personnel diagnosed and treated a cat for a “parasite infection” while being boarded by that facility. Dr. Ver Meulen moved that Dr. Cosnow send a letter to Dr. Bromwell of the Illinois Dept, of Agr. concerning this incident, and that copies be sent to the American Pet Motel and to the states [sic] attorney. Motion seconded and carried.”

Despite the executive committee’s resolution to act on this report, no action was taken and no letters were sent.

Plaintiffs contend that Cosnow’s statement is defamatory in that it impliedly charges plaintiffs with a violation of law (see Ill. Rev. Stat. 1977, ch. Ill, par. 6924 (practice of veterinary medicine without a license is a Class B misdemeanor)) and prejudices APM in the conduct of its business. The trial court dismissed plaintiffs’ complaint, relying on the innocent construction rule. (See John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105, cert, denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148.) Plaintiffs contend on appeal that Cosnow’s statement is not susceptible of an innocent construction and, alternatively, if the innocent construction rule does apply, it only renders the statement nonactionable as libel per se. In plaintiffs’ view, the statement remains actionable as libel per quod. Plaintiffs also contend that the innocent construction rule does not apply to causes of action under the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1977, ch. 121%, par. 311 et seq.) and to plaintiffs’ claim of tortious interference with prospective advantage.

Words are libelous per se if they are “so obviously and naturally hurtful to the person aggrieved that proof of their injurious character can be, and is, dispensed with.” (Reed v. Albanese (1966), 78 Ill. App. 2d 53, 58, 223 N.E.2d 419.) Libel per se is often described by the categories that defined slander per se at common law. These four categories comprise words that impute (1) commission of a criminal offense, (2) infection with a communicable disease which would exclude one from society, (3) inability to perform or want of integrity in the discharge of duties of office or employment, and (4) words that prejudice a person in his profession or trade. (Kirk v. Village of Hillcrest (1975), 31 Ill. App. 3d 1063, 1065, 335 N.E.2d 535.) Words not falling within these categories may be actionable as libel per quod if they are actually defamatory and if specific damage is alleged. See Kirk v. Village of Hillcrest (1975), 31 Ill. App. 3d 1063, 1065. • 1 The statements made by defendants Cosnow and CVMA are not libelous perse. Although the statements indirectly impute the commission of a crime (practicing veterinary medicine without a license, a Class B misdemeanor), this is not the sort of infamous crime that is per se defamatory. (See Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill. App. 2d 154,160, 221 N.E.2d 516 (the offense charged must be indictable, involve moral turpitude, and be punishable by imprisonment).) While plaintiffs contend that the statements have prejudiced the conduct of their business, defendants’ accusation nevertheless falls far short of the essential definition of libel per se. The words are simply not “so obviously and naturally hurtful” that damage to plaintiffs must be presumed.

The possibility of libel per quod remains. The recipients of defendants’ communications were veterinarians, a group that could be expected to consider the alleged conduct (lay persons diagnosing and treating sick animals) reprehensible. If plaintiffs show that the statements caused specific pecuniary injury, they have laid the foundation for a claim of libel per quod. Defendants argue, however, that the innocent construction rule must be applied and that the statements can be read in a nondefamatory sense. Plaintiffs contend that the innocent construction rule does not apply to libel per quod.

Our research reveals no Illinois case that has considered this issue. Some Illinois cases contain language that, out of context, appears to support plaintiffs’ position. (See, e.g., Springer v. Harwig (1981), 94 Ill. App. 3d 281, 283, 418 N.E.2d 870 (“To determine whether language under scrutiny is actionable per se, * * * Illinois courts have consistently applied the innocent construction rule”); Whitby v. Associates Discount Corp. (1965), 59 Ill. App. 2d 337, 341, 207 N.E.2d 482 (“a defamation can never be per se if the words themselves are capable of innocent construction”).) Moreover, some Federal courts sitting in Illinois appear to have accepted the view that language rendered nonactionable per se by the innocent construction rule may nevertheless be actionable per quod. See Fleck Bros. Co. v. Sullivan (7th Cir. 1967), 385 F.2d 223, 225 (holding that an alleged libel was capable of an innocent construction but was nevertheless actionable upon proof of special damages).

This view, however, is difficult to reconcile with the sweeping language used by the supreme court to usher in the innocent construction rule:

“That rule holds that the article is to be read as a whole and the words given their natural and obvious meaning, and requires that words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law.” (John v. Tribune Co. (1962), 24 Ill. 2d 437, 442, 181 N.E.2d 105, cert, denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148.)

The rule says “nonactionable as a matter of law,” not “nonactionable without proof of special damages.” We also note that some Illinois opinions discuss the innocent construction rule as if it applies to libel per quod. See, e.g., Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735,743, 415 N.E.2d 434.

We conclude that the law in this regard is unsettled. While we have some doubt that defendants’ statements can be construed innocently, we also harbor some reservations concerning the innocent construction rule. (See generally Polelle, The Guilt of the “Innocent Construction Rule” in Illinois Defamation Law, 1981N. Ill. U.L. Rev. 181.) We therefore elect to decide the instant appeal on an alternative ground. The defendants argued in the trial court that their statements were conditionally privileged as a matter of law. We agree, and on that basis we affirm the decision of the trial court.

The elements of conditional privilege are set forth in Judge v. Rockford Memorial Hospital (1958), 17 Ill. App. 2d 365, 150 N.E.2d 202. The defendant must act in good faith; there must be an interest to be protected or a duty to be upheld, and the statement must be limited in scope to that purpose; the publication must be on a proper occasion, in the proper manner, and limited to proper parties. (17 Ill. App. 2d 365, 377.) The facts of the instant case reveal that defendants’ statements meet these standards. Cosnow and the CVMA have a legitimate interest in allegations of unauthorized veterinary practice. Cosnow had a duty to advise the CVMA of such reports. The statements were directed to a limited group of recipients: veterinarians who were members of the CVMA. The final element is good faith. A reviewing court can look at several sources to determine a speaker’s good faith: the statement itself, the circumstances of its publication, and the relationship of the speaker and the hearers. (Spencer v. Community Hospital (1980), 87 Ill. App. 3d 214, 220, 408 N.E.2d 981.) Whether a libelous communication is conditionally privileged is a question of law for the court. (Spencer v. Community Hospital (1980), 87 Ill. App. 3d 214, 219.) We find that the defendants acted in good faith and the statements are protected by a qualified or conditional privilege.

Defendants, relying on our supreme court’s opinion in Colson v. Stieg (1982), 89 Ill. 2d 205,433 N.E.2d 246, assume that their qualified privilege is constitutionally based. We are not convinced that the court in Colson intended to elevate all qualified privilege to constitutional stature. In Colson, the court found that a university department chairman, in reporting to a tenure committee on a candidate for tenure, was protected by the first amendment privilege announced in New York Times Co. v. Sullivan (1964), 376 U.S. 254,11 L. Ed. 2d 686, 84 S. Ct. 710. In the New York Times case, the United States Supreme Court held that a public official cannot recover for libel unless he proves that the defamatory statement was made with “actual malice” — that is, knowledge that the statement was false or reckless disregard for the statements’ truth or falsity. (376 U.S. 254, 279-80,11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726.) In Curtis Publishing Co. v. Butts (1967), 388 U.S. 130,18 L. Ed. 2d 1094, 87 S. Ct. 1975, a majority of the Supreme Court found the New York Times rule applicable to all public figures. (388 U.S. 130,164,170,172,18 L. Ed. 2d 1094, 1116, 1120, 1121, 87 S. Ct. 1975, 1996, 1999, 2000 (opinions of Warren, C.J., Black, J., and Brennan, J.).) In Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997, the Supreme Court distinguished between public figures and private individuals, noting that the former have greater access to the media and therefore a greater ability to rebut false charges. (418 U.S. 323, 344, 41 L. Ed. 2d 789, 807-08, 94 S. Ct. 2997, 3009.) Our supreme court noted this dichotomy in Colson and found that the plaintiff had an opportunity for communication with the committee that was the recipient of the allegedly defamatory statements. 89 Ill. 2d 205, 214.

In the case at bar, plaintiffs had no such opportunity. We see no reason to extend the constitutional privilege beyond the limits drawn in Colson. We believe, however, that the analysis and result would be the same if the first amendment privilege applied. The constitutional privilege announced in the New York Times case is overcome by proof of “actual malice:” “knowledge that [the statement] was false or * * * reckless disregard of whether it was false or not.” (376 U.S. 254, 280,11L. Ed. 2d 686, 706, 84 S. Ct. 710, 726.) The conditional privilege described in Judge v. Rockford Memorial Hospital requires, as its first element, good faith on the part of the speaker. (See Judge v. Rockford Memorial Hospital (1958), 17 Ill. App. 2d 365, 377.) We believe that any defendant harboring “New York Times malice” (knowledge or reckless disregard of falsity) also lacks good faith and, therefore, loses any conditional privilege he may have had under State law.

Like the constitutional privilege, the conditional privilege that we find operable in the instant case is lost upon a showing of actual malice. (Judge v. Rockford Memorial Hospital (1958), 17 Ill. App. 3d 365, 377.) The plaintiff has the burden of alleging and proving such malice. (See Welch v. Chicago Tribune Co. (1975), 34 Ill. App. 3d 1046, 1052, 340 N.E.2d 539.) This burden is not satisfied by the bare allegation that a defendant acted maliciously and with knowledge of the falsity of the statement. (See Colson v. Stieg (1980), 86 Ill. App. 3d 993, 998, 408 N.E.2d 431, aff'd (1982), 89 Ill. 2d 205,433 N.E.2d 246.) The plaintiff must allege facts from which actual malice may be inferred. (See Colson v. Stieg (1980), 86 Ill. App. 3d 993, 998; see also Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan (1967), 37 Ill. 2d 546, 551, 229 N.E.2d 514.) Plaintiffs’ complaint does not allege such facts and the record shows no basis for believing that such facts exist. We conclude that defendants’ statements were conditionally privileged as a matter of law and that the trial court did not err in granting summary judgment for defendants on the defamation counts.

Plaintiffs’ complaint also seeks injunctive relief pursuant to the Uniform Deceptive Trade Practices Act. (Ill. Rev. Stat. 1977, ch. 121%, par. 311 et seq.) The problem in these counts is that plaintiffs have not alleged facts sufficient to show a need for injunctive relief. The allegedly false statement (accusing APM of unauthorized veterinary practice) was made once by Cosnow and repeated once by CVMA. Plaintiffs have shown no basis for assuming a threat of future misrepresentations. The trial court may not grant injunctive relief in the absence of a demonstrated need for such a measure. Cf. Custom Business Systems, Inc. v. Boise Cascade Corp. (1979), 68 Ill. App. 3d 50,53,385 N.E.2d 942 (no need for injunction absent a threat of future misrepresentation; dismissal of complaint affirmed); Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 275, 361 N.E.2d 815 (the harm to plaintiff had already occurred and was not likely to recur; injunction properly denied).

Plaintiffs’ complaint is also deficient in that it fails to show that defendants disparaged the quality of plaintiffs’ services. (See Crinkley v. Dow Jones & Co. (1979), 67 Ill. App. 3d 869, 876, 385 N.E.2d 714.) Nothing in the statements complained of indicates that APM’s business practices were substandard or harmful. Defendants charged plaintiffs with an unauthorized act but did not assert that the act was done negligently or that any animals in APM’s care were harmed. We find that plaintiffs have failed to state a claim for relief under the Uniform Deceptive Trade Practices Act.

Plaintiffs also charge a tortious interference with prospective business advantage. The elements of this tort are set out in Belden Corp. v. InterNorth, Inc. (1980), 90 Ill. App. 3d 547, 413 N.E.2d 98. The plaintiff must have a reasonable expectancy of entering a valid business relationship and the defendant must purposely interfere and defeat this expectancy, thereby causing injury to the plaintiff. (90 Ill. App. 3d 547, 552.) Assuming, arguendo, that plaintiffs have sufficiently pleaded this tort, we find that the conditional privilege that renders the alleged defamation nonactionable also applies to these counts. Plaintiffs correctly argue that the tort of interference with prospective business advantage is distinct from the tort of defamation. Nevertheless, the logic of conditional privilege applies in the same way to both torts. In defamation law, a communication is held absolutely privileged when its propagation is so much in the public interest that the publisher should speak fully and fearlessly. (Krumin v. Bruknes (1930), 255 Ill. App. 503, 507.) A communication is conditionally privileged when the public interest does not demand that the speaker be free from all responsibility for his words but should be protected if speaking honestly and for the public good. (Krumin v. Bruknes (1930), 255 Ill. App. 503, 507.) The import of these principles is plain: words that would otherwise be actionable are privileged when society has a need for the information.

The same balancing of rights is evident in the law of commercial torts. The right to engage in a business relationship is not absolute; it must be exercised with regard for the rights of others, e.g., the right to compete. (Belden Corp. v. InterNorth, Inc. (1980), 90 Ill. App. 3d 547, 552.) In the case at bar, defendants had a legitimate interest in making the statements and those statements were conditionally privileged with respect to an action for defamation. We hold that the same privilege applies to an action for interference with prospective business advantage. Cf. Gasbarro v. Lever Bros. Co. (7th Cir. 1973), 490 F.2d 424, 426-27 (conditional privilege applied where both defamation and interference with business relationships were charged).

The trial court, relying on the innocent construction rule, granted summary judgment for defendants on all counts. Summary judgment on the counts charging defamation and interference with prospective business advantage was proper because of the defendants’ conditional privilege. Summary judgment on the commercial disparagement counts was proper because plaintiffs failed to state a claim under the relevant statute and failed to show a need for injunctive relief. On these grounds, we affirm the decision of the trial court. Cf. Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 567, 396 N.E.2d 1197 (summary judgment will be affirmed when justified by any reason appearing in the record).

Affirmed.

DOWNING and HARTMAN, JJ., concur.

       According to the accepted definitions of libel and slander, Cosnow’s oral statement would be classified as slander and CVMA’s printed communication would be classified as libel. Illinois law no longer recognizes any substantive differences between the two causes of action (see Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill. App. 2d 154,159, 221 N.E.2d 516), and, for the sake of simplicity, Cosnow’s and CVMA’s statements are hereafter referred to as libel.

       In their reply brief, plaintiffs suggest that they also seek money damages in these counts. A careful reading of the complaint shows only a demand for injunctive relief. In any event, damages are not available under the Uniform Deceptive Trade Practices Act (see Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 276, 361 N.E.2d 815), and there is in Illinois no common law cause of action for commercial disparagement. National Educational Advertising Services, Inc. v. Cass (N.D. Ill. 1977), 454 F. Supp. 71, 73.