author: JUSTICE McGILLICUDDY

text:
      In re MARRIAGE OF JANIS L. SMITH, Petitioner-Appellant, and DONALD SMITH, Respondent-Appellee.
    First District (3rd Division)
    No. 80-260
    Opinion filed December 23, 1981.
    Propp & Schultz, of Chicago, for appellant.
    Bentley, DuCanto & Doss, Ltd., of Chicago (Owen L. Doss and Paul J. Bargiel, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This appeal is taken from a supplemental judgment entered by the trial court subsequent to the entry of a judgment of dissolution of the marriage of Janis L. Smith, the petitioner, and Donald Smith, the respondent. The petitioner contends that the trial court committed error in awarding the family residence to the respondent as nonmarital property and in failing to make a specific finding that the respondent’s military pension was marital property. We will discuss only that testimony which is relevant to a determination of these issues.

The parties to this appeal became engaged in October 1963 and were married on March 15, 1964. Three children were born to the parties during their marriage. In February 1964, Donald purchased a home in Arlington Heights. They resided in this home from the date of their marriage until October 1978, when Janis and the children moved into a rented home.

Janis testified that she aided Donald in the search for the home and that she and Donald had decided not to set a wedding date until after a home was purchased. She did not see the home before it was purchased and did not discover that Donald had put it in a land trust until a few years after their marriage.

Donald testified that he searched for a home before and after his engagement to Janis. He signed the purchase agreement for the Arlington Heights home individually and used funds for its purchase from the sale of a home he had acquired during a prior marriage. Donald also stated that he signed the mortgage agreement and made the mortgage payments from his income. Title to that home was held in a land trust in which Donald was the primary beneficiary and Monique, his daughter from the prior marriage, was the contingent beneficiary. Donald testified that he told Janis of this arrangement before their marriage.

Donald further testified that he was retired and was receiving social security and civil service and military retirement payments. His gross income was $3,830 per month and $183.30 was deducted for survivors’ benefits and medical expenses for his children. Income taxes were also deducted from his retirement payments. The gross military retirement payment was $1,533.97, and after deductions the net amount was $1,295.69. Donald testified that he was driving a 1976 Lincoln automobile, valued at $4,500 but subject to a lien of $2,600. He possessed furniture valued at $500 and a recreational camper valued at $6,000 but subject to a $3,500 lien.

The trial court held that the Arlington Heights home was Donald’s nonmarital property. In addition to the home, Donald was awarded the following marital property: the recreational camper and the 1976 Lincoln automobile with their respective liens and the household furnishings in his possession. As her portion of the marital property, Janis was awarded the 1973 Volkswagen automobile and the household furnishings in her possession. As unallocated support for Janis and the minor children, Donald was ordered to pay $1,160 per month, based on the parties’ respective incomes at the time of the supplemental judgment.

The Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) provides in pertinent part that:

“(a) For purposes of this Act, ‘marital property’ means all property acquired by either spouse subsequent to the marriage, except the following, which is known as ‘non-marital property’:
(1) property acquired by gift, bequest, devise or descent;
(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise or descent;
(3) property acquired by a spouse after a judgment of legal separation;
(4) property excluded by valid agreement of the parties;
(5) the increase in value of property acquired before the marriage; and
(6) property acquired before the marriage.” (111. Rev. Stat. 1977, ch. 40, par. 503(a).)

Janis argues that the Arlington Heights home was erroneously classified as nonmarital property merely because it was acquired before the marriage. She argues that the Arlington Heights home should have been classified as marital property because the mortgage payments made during the marriage were made with marital funds derived from Donald’s earnings.

In in re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239, our supreme court has resolved the question of whether commingling non-marital property with marital property transmutes the nonmarital property into marital property. (See Fleck & Schiller, Developments in Marital Property Law, 68 Ill. B.J. 698 (1980). For a discussion of transmutation and commingling theories, see Kalcheim, Intention Controls: The Theory of Transmutation — The Effect of Placing Property Which Was Initially Non-Marital Into Joint Tenancy; The Theory of Commingling — The Effect of Intermingling Marital and Non-Marital Funds, 68 Ill. B.J. 320 (1980).) In that case the court held that pursuant to section 503(b) of the Dissolution Act there is a rebuttable presumption that nonmarital property acquired during the marriage becomes marital property when it is commingled with marital property. This presumption can be overcome only by proof that the nonmarital property was acquired exclusively by a method listed in section 503(a) of the Dissolution Act and that the property remained segregated from and was not augmented by marital funds. In In re Marriage of Lee (1981), 87 Ill. 2d 64,_N.E.2d_, the court extended the transmutation principle to nonmarital property acquired before the marriage holding that where there has been contribution of marital property to nonmarital property, the entire property is transmuted to marital property.

Applying the above-stated principles to the facts in the instant case, we find that at the time of Donald and Janis’ marriage, the Arlington Heights home was Donald’s nonmarital asset. However, the payment of the mortgage with marital assets consisting of Donald’s income during the marriage (see In re Marriage of Fleming (1980), 80 Ill. App. 3d 1006, 400 N.E.2d 625; see also In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 399 N.E.2d 1006; Ill. Rev. Stat. 1977, ch. 40, par. 503(b)), caused a commingling of marital and nonmarital assets and transmuted the entire property into marital property. (In re Marriage of Lee.) On remand this marital property should be divided in accordance with the factors set forth in section 503(c) of the Dissolution Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(c)); and Donald’s traceable nonmarital asset contribution and Donald’s financial and Janis’ domestic contributions should be considered in that division. The court also should reconsider the interrelated issues of maintenance and child support as the division of marital property is a relevant factor to those determinations. Ill. Rev. Stat. 1977, ch. 40, pars. 504(b)(1), 505(2); In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488.

The second issue presented by Janis is whether Donald’s transfer of the Arlington Heights home into a land trust prior to their marriage constituted a fraud upon her marital rights. In view of our finding that the family residence should be divided between the parties as marital property, we find it. unnecessary to discuss the viability of such an argument in a marriage dissolution proceeding.

The final issue presented is whether the trial court erred in failing to specifically determine Janis’ interest in Donald’s military pension.

Generally, pension benefits, to the extent-that they are-earned during-the marriage, are marital property. (In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 398 N.E.2d 868; In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511.) Recently, however, in McCarty v. McCarty (1981),_U.S__, 69 L. Ed 2d 589, 101 S. Ct. 2728, the United States Supreme Court held that Federal law precludes a State court from dividing military nondisability retirement pay pursuant to State law. (In re Marriage of Musser (1981), 87 Ill. 2d 68, 429 N.E.2d 530.) Therefore, Donald’s military pension was not subject to division as marital property. Although no specific ruling was made with respect to the military pension in the instant case, we believe that Janis was awarded her proportionate share of the military pension as part of the periodic unallocated support payments ordered by the trial court. To the extent that it was so divided, error was committed. On remand, the trial court should vacate that portion of Jams’ award which was based on Donald’s military pension.

For the foregoing reasons, the supplemental judgment of the circuit court of Cook County is reversed in part and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed in part and remanded.

RIZZI, P. J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRE STEVENS et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 80-611, 80-612 cons.
    Opinion filed December 23, 1981.
    Ralph Reubner and Steven Clark, both of State Appellate Defender’s Office, of Chicago, for appellants.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean C. Morask, and Raymond F. Brogan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, defendants, Andre Stevens and Robert Norwood, were found guilty of robbery. (Ill. Rev. Stat. 1977, ch. 38, par. 18—1.) Norwood was sentenced to 3 years imprisonment. Stevens received a sentence of 6 years imprisonment. Defendants appeal.

The sole issue for our determination is whether defendants are deprived of arguing that the trial court erred when it denied discovery of alleged work product material, since counsel, on appeal, is precluded from examining said material to determine whether in fact it is work product. We affirm.

The pertinent facts of the case are summarized as follows. Dean Fetchmeyer testified that on December 22, 1979, in the early morning hours, he and Mark Bielski had come to Chicago from Milwaukee, Wisconsin. They were approached by defendants and a third man on the corner of Division and Dearborn Streets in Chicago. Fetchmeyer and Bielski asked the men if they knew where to get alcoholic beverages. One of the defendants answered affirmatively, and they walked together for approximately 10 minutes, stopped, and again talked briefly. Then, Stevens hit Fetchmeyer on his forehead to the right side with a board while Norwood took his wallet. As Stevens swung the board at Fetchmeyer again, Bielski blocked the blow. After defendants fled, the police arrived. Bielski and Fetchmeyer entered the police car; the officers drove them approximately one block, where they saw two other policemen walking defendants toward them. Fetchmeyer informed the officers that those were the men who had committed the robbery.

During the cross-examination of defendant Norwood, the prosecutor used information from a felony review folder. Defense counsel requested a sidebar and asked the court to determine whether there were any notations in the folder concerning statements Norwood may or may not have made. Counsel asked the court for an in camera inspection to determine whether any of the material in the file jacket was discoverable. Counsel further sought discovery of any portion of the file which contained a statement made by defendant Norwood.

The prosecutor’s response indicated that he was using the felony review folder to refresh his recollection as to specifics of Investigator Paul Carroll’s testimony which was summarized by the State’s Attorney. The prosecutor argued that it was hearsay, work product, and nondiscoverable; he had no objection to the court conducting an in camera inspection of the material.

The court inspected the folder and read the relevant information into the record. Defense counsel requested a copy of what the court read. The judge stated that he would give counsel a handwritten copy of it. Defense counsel refused to accept a handwritten copy. The court denied defense’s request for a photocopy of the document. Defense’s request that the State preserve the document so that it would become a part of the record was granted.

Defendants contend the trial court erred in ruling that the documents in question were work product. Further, defendants contend they are denied the opportunity to argue this point here when counsel, on appeal, is precluded from examining the material to determine whether it is in fact work product. The State maintains that the defense has no right to inspect confidential communications of the office of the State’s Attorney, and that defendants have been afforded a hearing on this matter as provided under Illinois Supreme Court Rules (Ill. Rev. Stat. 1979, ch. 110A, par. 415(f)).

The determination of whether material is discoverable and subject to disclosure is a judicial decision. It is well established that opposing counsel has no right to examine disputed material that the court has reviewed in camera and determined to be nondiscoverable. See People v. Jenkins (1975), 30 Ill. App. 3d 1034, 333 N.E.2d 497.

In the case at bar, the trial court fully disclosed to defense counsel the relevant discoverable portion of the State’s file. (Ill. Rev. Stat. 1979, ch. 110A, par. 415(e).) Material that was determined to be work product was excised. The procedure followed by the trial court adequately protected defendants’ rights to a fair trial and at the same time protected the State from unnecessary disclosure of all of its confidential files. People v. Ator (1976), 37 Ill. App. 3d 304, 309, 345 N.E.2d 211, 215.

The trial court’s decision that the documents were work product is not, as defendants contend, a decision more appropriately made by defense counsel. If that were the case, the purpose of in camera inspections would be vitiated. (People v. Jenkins (1975), 30 Ill. App. 3d 1034, 1043, 333 N.E.2d 497, 504.) We also note that an inspection of the files by opposing counsel is not required at any level.

Finally, defendants assert that the appellate court’s refusal to grant defense counsel an examination of the disputed material deprives defense counsel, on appeal, of his argument that the trial court’s ruling relating to the disputed material was erroneous. Defendants suggest that the State’s interest in maintaining the confidential nature of documents is not present here in the reviewing court. Further, if counsel is allowed to review the disputed material, and if the trial court is reversed, the court has contempt powers that may be used against defense counsel in the event he misuses the privileged information.

We disagree with defendants’ assertion. We are inclined to follow the holding of People v. Jenkins (1975), 30 Ill. App. 3d 1034, 1042-43, 333 N.E.2d 497, 504, which stated:

“The Supreme Court Rules on criminal appeals (Ill. Rev. Stat. 1973, ch. 110A, pars. 601-661) make no provision for the procedure to be used by the reviewing court in examining material ruled by the trial court not to be subject to disclosure. However, the same considerations come into play here as in the trial court. To allow defense counsel to view the material on appeal before such time as it is ruled discoverable would also vitiate the purpose of in camera examinations.”

Therefore, we hold that denying defendants access to the disputed material does not deprive them of their argument on appeal. We, as a reviewing court, have reviewed the material and find no error.

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

Judgment affirmed.

ROMITI, P. J., and LINN, J., concur.


author: JUSTICE LINN

text:
    EMANUEL STEIN, Plaintiff-Appellee, v. BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant-Appellant.
    First District (4th Division)
    No. 80-2866
    Opinion filed December 23, 1981.

      Francis J. Marasa, Joan M. Engeman, and Marvin Riman, all of Sweeney and Riman, Ltd., of Chicago, for appellant.
    Robert L. Lesak, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Emanuel Stein, brought this action in the circuit court of Cook County seeking damages from defendant, Burns International Security Services, Inc. In count I of the complaint, plaintiff sought compensatory damages for injuries incurred as a result of the negligent or intentional conduct of defendant’s employee, Lish Garner. In count II plaintiff sought punitive damages charging that defendant had wilfully and wantonly failed to perform an adequate background investigation of its employee Garner before defendant hired Garner as a security guard. Following a jury trial, the jury returned a verdict for plaintiff on count I of the complaint and found defendant liable for $175,000 in compensatory damages. The jury returned a verdict in favor of defendant on count II of the complaint.

On appeal, defendant contends: (1) there was no evidence to support the wilful and wanton count of the complaint (count II) and the trial court’s submitting that count to the jury for determination prejudiced its verdict on count I of the complaint; (2) defendant was denied a fair trial by the admission of evidence relating to plaintiff’s charitable works; and (3) defendant was denied a fair trial by improper comments of plaintiff’s counsel during closing argument.

We affirm.

Background

Count I

In count I of the complaint, plaintiff charged that he had suffered injury as a result of the negligent or intentional conduct of defendant’s employee, Garner. Garner was a security guard employed by defendant, a licensed detective agency. The theory of liability was based on the general grounds of defendant’s vicarious liability for the acts of its servant and on section 10b (10) of the Detectives and Investigators Act (Ill. Rev. Stat. 1979, ch. 111, par. 2622(10)) which provides that defendant, as a licensed detective agency, is “legally responsible for the good conduct” of its security guards.

As to count I, the evidence presented at trial showed that on the evening of October 15, 1975, plaintiff and his wife drove to the Edge-water Hospital in Chicago to visit his daughter. Plaintiff parked his car on the lot of a vacant gas station near the hospital. Plaintiff and his wife were inside the hospital for an hour and then returned to the car. They discovered that another car had parked behind their car, blocking plaintiff’s exit.

Plaintiff waited a few minutes and then tried to open the front door of the other car so that he could push the car out of the way. At that moment, plaintiff was struck in the back of the neck by Garner, defendant’s employee, who was on duty as a security guard at the hospital. Garner then grabbed plaintiff’s left arm and pinned it behind plaintiff, forcing plaintiff’s left hand up towards the back of his neck. Garner accused plaintiff of attempting to steal the car. Garner then dragged plaintiff one-half block back to the hospital. While doing so, Garner repeatedly struck plaintiff on the back of the neck. Garner forced plaintiff into the hospital lobby where they were met by another security guard. An argument ensued and plaintiff and his wife departed and went back to their car. The car that was blocking their exit was gone and plaintiff drove home.

Later that night, plaintiff’s wife took him to a hospital in Skokie. Over the next couple of years, plaintiff spent several weeks in the hospital. As a result of the incident, plaintiff suffered permanent nerve damage to his neck and arm and his arm is partially disabled today. As a result of the injuries, plaintiff was required to close his solely owned business which was a small discount store selling clothes, rugs, draperies and other related goods. The business frequently required plaintiff to lift heavy objects and he could no longer do so. Plaintiff has also suffered frequent bouts of depression since the incident and no longer engages in sexual relations with his wife.

At the time of the incident, plaintiff was 66 years old. Garner was in his early twenties. The day of the incident was Garner’s first day of employment with defendant. Garner disappeared immediately after the incident and has never been located. The jury returned a verdict for plaintiff on count I and awarded him $175,000 in compensatory damages.

Count II

In count II of the complaint, plaintiff sought punitive damages alleging that defendant had wilfully and wantonly failed to perform a proper background investigation of Garner. Plaintiff alleged that if the background investigation had been properly performed, Garner would not have been hired and the incident would not have occurred.

The only thing of importance plaintiff showed defendant had failed to do was to check with Garner’s previous employer, another detective agency, to ascertain whether that agency would have recommended Garner’s employment. Plaintiff showed that Garner’s prior employer would not have recommended employment because Garner had failed to show up for work one day and was terminated as a result. The day before Garner was terminated, Garner had arrived for work intoxicated and was sent home. Defendant admitted that if it had checked with Garner’s previous employer defendant probably would not have hired Garner.

At the conclusion of plaintiff’s case-in-chief, defendant moved for a directed verdict on count II. The motion was denied. At the jury instructions conference, defendant objected to the submission of instructions based on count II. These objections were overruled and instructions concerning count II were submitted to the jury. The jury returned a verdict for defendant on count II.

Opinion

I

Allowing Jury to Consider Wilful and Wanton Count

We agree with defendant that the evidence was legally insufficient to support a verdict on count II of the complaint, and thus defendant’s motion for a directed verdict should have been granted and the count should not have been submitted for the jury’s determination.

The mere failure to check an applicant’s background does not give rise to an action for punitive damages against defendant. For liability to exist, the conduct of defendant in failing to check the background must be wilful and the conduct must exhibit a reckless disregard for the plaintiff’s safety. (Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 387 N.E.2d 1241.) It is not enough to merely show that the applicant would not have been hired. Plaintiff must show that if a proper background investigation had been pursued, the defendant would have discovered facts indicating the propensity of the applicant to do harm. (See Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 387 N.E.2d 1241.) In the present case, plaintiff at best showed that defendant was negligent in performing a background investigation, and even if a proper investigation had been performed, defendant would not have discovered any facts indicating a propensity on Garner’s part to do harm. Intoxication during one day of prior employment and termination because of Garner’s failure to show up for work are not facts, standing alone, that indicate Garner had a propensity to do harm.

Though it was error to submit the wilful-and-wanton count to the jury, we believe the error caused no prejudice to defendant. Defendant cites Greene v. Noonan (1939), 372 Ill. 286, 23 N.E.2d 720, as support for the proposition that the submission of instructions to the jury on theories of both negligence and wiful misconduct demands reversal when there is no evidence to support the wilful misconduct charge because it must be presumed that the jury’s verdict was adversely affected by the wilful misconduct charge.

To begin with, Greene v. Noonan does not stand for the proposition defendant argues. Green held only that when a jury returns a general verdict for plaintiff and it cannot be determined whether the verdict was based on the negligence charge or the wilful misconduct charge, then a presumption arises that the jury’s verdict was based on the wilful misconduct charge. Thus, if there is no evidence supporting the wilful misconduct charge, defendant is entitled to a new trial. In the present case, the presumption of prejudice does not arise because the jury returned separate verdicts and found for defendant on the wilful misconduct charge, thus clearly indicating its verdict for plaintiff on count I was not affected by the wilful misconduct charge. See Stark v. D & F Paving Co. (1977), 55 Ill. App. 3d 921, 371 N.E.2d 315.

Next, the rule of Greene v. Noonan is itself of doubtful applicability today. In 1955, section 68(4) was added to the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68(4)) and provides that a verdict shall not be “set aside or reversed for the reason that the evidence in support of any ground is insufficient to sustain a recovery thereon, unless before the case was submitted to the jury a motion was made to withdraw that ground from the jury on account of insufficient evidence and it appears that the denial of the motion was prejudicial.” The Committee Comments to this section state that one of the reasons for enacting section 68(4) was to modify the rule of Green v. Noonan so that no presumption of prejudice should arise when the jury returns a general verdict for plaintiff when it has been properly instructed as to negligence but improperly instructed on wilful misconduct. (See Ill. Ann. Stat., ch. 110, par. 68, Committee Comments, at 8 (Smith-Hurd 1968).) Thus, under section 68(4), a jury’s verdict should not be presumed to have resulted from the improper wilful misconduct charge, as was held in Greene, but a determination of prejudice should be made on a case by case basis. In the present case, defendant has been unable to show how it was prejudiced by the wilful misconduct charge especially since the jury returned a verdict in its favor on that charge.

Accordingly, we hold that defendant was not prejudiced by the court’s submission of count II of the complaint to the jury for determination.

II

Improper Evidence

One of plaintiff’s witnesses was Bishop John Kennelly of the Chicago Archdiocese. The Bishop was plaintiff’s friend and had visited plaintiff at his place of business on frequent occasions before the incident. Plaintiff called the Bishop to rebut evidence brought out on cross-examination that plaintiff had had an automobile accident in 1972 and had suffered injuries that may have accounted for his present incapacity. The Bishop testified that he had frequently seen plaintiff at his place of business before the present incident and had seen plaintiff lift heavy objects without difficulty and had never seen plaintiff exhibit the physical problems he now has before the present incident.

Before the Bishop was called, defendant moved to prevent the Bishop from testifying that one of the reasons he would visit plaintiff was because plaintiff always had clothes and other goods to be picked up as donations to charity. Defendant wanted to prevent any mention of plaintiff’s charitable works. The trial court told plaintiff’s counsel that it would not allow the admission of any statements pertaining to plaintiff’s charitable works.

On three occasions during the Bishop’s direct testimony, the Bishop mentioned that he usually saw plaintiff when plaintiff had donations for charity. The Bishop’s comments were not solicited by plaintiff’s counsel but were part of his answers to general questions concerning the specific dates that the Bishop saw plaintiff. No objection or motion to strike was made by defendant to the Bishop’s comments. On two occasions during cross-examination by defendant, the Bishop also made comments concerning plaintiff’s charitable works. On one of these occasions the response was invited by defendant’s question. No motion to strike these comments was made by defendant.

Defendant claims it was prejudiced by the Bishop’s comments. Though defendant made no objection to the comments, it alleges that if it had done so, greater prejudice would have occurred because an objection would have merely emphasized the improper comments. However, we believe that if defendant had made an immediate objection when the Bishop first commented on plaintiff’s charitable works, it could have avoided any possible repeat of such comments and could have avoided any possible prejudice caused by the comments. Therefore, we believe its failure to make a timely objection waived any error in the Bishop’s making the comments. See Schoolfield v. Witkowski (1964), 54 Ill. App. 2d 111, 203 N.E.2d 460.

Even assuming no waiver, we also believe that the comments did not deny defendant a fair trial. The evidence as to liability under count I was overwhelming. The evidence as to damages showed that plaintiff suffered permanent injury as a result of the incident, that he has spent several weeks in the hospital, and that he is under continuous care of a doctor and shall continue under a doctor’s care in the future. Plaintiff has suffered the loss of his business and has psychological problems as a result of the incident. Plaintiff frequently suffers pain in the affected area. Clearly, there was sufficient evidence to support the verdict and the amount of damages awarded on count I of the complaint, and defendant has been unable to show the verdict would have been different if the comments had not been made.

Ill

Closing Argument

Defendant alleges it was denied a fair trial by certain comments of plaintiff’s counsel during closing argument. Defendant first points to two occasions on which plaintiff’s counsel referred to defendant as a large, international corporation. No objection was made to these comments and thus the issue is waived. See Grabner v. American Airlines, Inc. (1980), 81 Ill. App. 3d 894, 401 N.E.2d 1196.

Defendant next points to comments by counsel which accused defendant of not being interested in the case and accused defendant, by implication, of making no effort to find Garner. We believe that defendant was not prejudiced by these remarks. As we have already indicated, the evidence on liability and damages in this case was overwhelming, and there is no indication the comments denied defendant a fair trial. Accordingly, for the reasons noted, we affirm.

Affirmed.

ROMITI, P. J., and JOHNSON, J„ concur.


author: JUSTICE JIGANTI

text:
    JOSEPH SWIDERSKI et al., Plaintiffs-Appellants, v. CHICAGO TITLE AND TRUST COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 81-0005
    Opinion filed December 23, 1981.
    Gabriel A. Kostecki and Beverly E. Stanis, both of Chicago, for appellants.
    William R. Yowell, of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Jean H. and Joseph Swiderski, alleged that along with the settlor, Joseph Napiorkowski, they were beneficiaries of a land trust established with the defendant, Chicago Title and Trust Company (C.T.&T.). The terms of the land trust provided that the trustee had the right to resign at any time by sending a notice of its intention to do so by registered mail “to each of the then beneficiaries” at the address last known to the trustee. The Swiderskis were not sent notice when C.T.&T. resigned as trustee, and they claim that they were damaged. On motion the suit was dismissed based on the contention of C.T.&T. that the Swiderskis were not such beneficiaries under the agreement as to entitle them to notice. A more detailed background is necessary and is here related.

On March 16, 1951, Joseph Napiorkowski and his wife, Jozefa Napiorkowski, placed a parcel of real estate in a C.T.&T. land trust. The Napiorkowskis held the beneficial interest of the trust in joint tenancy. C.T.&T. and the Napiorkowskis were the only parties to this agreement.

Under relevant portions of this trust agreement, the “interest of any beneficiary” under the trust was defined as consisting of the power of direction over the title to the property; management and control of the property; and the right to receive the proceeds from rentals, mortgages, sales or other dispositions of the premises. As was stated, the Trustee was given the right to resign at any time by sending a notice of its intention to do so by registered mail “to each of the then beneficiaries at his or her address last known to the Trustee.”

On May 7, 1966, Jozefa Napiorkowski died and her husband Joseph Napiorkowski, as joint tenant, became the sole vested beneficiary of the land trust by operation of law.

On June 10, 1970, Joseph as sole vested beneficiary, amended the trust agreement with C.T.&T.’s consent. The purpose of the amendment was to provide for the passing of the beneficial interest in the land trust in case of Joseph’s death. The amendment stated that:

“Pursuant to the power vested in me by the terms of that certain trust agreement dated March 16, 1951 and known as Trust No. 34911, I hereby amend all existing provisions for the beneficial interest after my death by substituting the following in lieu thereof:
JOSEPH NAPIORKOWSKI, with full power to assign any or all right, title or interest herein or otherwise to dispose of any or all of them. In the event of the death of said JOSEPH NAPIORKOWSKI during the existence of this trust all such right, title or interest not previously assigned or otherwise disposed of shall vest equally in JEAN H. SWIDERSKI and JOSEPH SWIDERSKI, her husband, as joint tenants with the right of survivorship and not as tenants in common.”

In addition to providing for the passing of the beneficial interest, the amendment also stated that Joseph Napiorkowski, as vested beneficiary, retained the right to change the future beneficiaries at his discretion. Specifically, the amendment stated:

“By memorandum in writing delivered to and accepted by the Trustee, any beneficiary having a vested interest hereunder shall at any time or times have the right to revoke, alter or amend the provisions of this trust agreement relative to the person or persons who may be entitled from time to time to the ownership and enjoyment of said beneficiary’s interest hereunder.
All other terms and provisions of said trust agreement are hereby confirmed and remain in full force and effect.”

No other changes were made in the original trust agreement. Joseph Napiorkowski continued as the sole vested beneficiary with the rights to manage, control and direct the title to the property. In addition, he retained the right to receive any profits from the land. The trustee, under the amendment, still retained its right to resign at any time with appropriate notice to the then beneficiaries.

On March 5, 1971, C.T.&T. sent a registered letter addressed to Joseph and the then deceased, Jozefa Napiorkowski, informing them of its intention to resign as trustee. The letter was timed to coincide with the termination of the trust after 20 years. The letter stated that C.T.&T. would convey the land to a successor trustee if one were appointed within 10 days of the receipt of the registered letter. If no such successor were appointed, the letter explained that C.T.&T. would convey the title to the real estate to the present beneficiaries. There was no response to the letter within that time and on March 8,1971, C.T.&T. reconveyed the property to Joseph Napiorkowski.

On June 28, 1971, over three months after C.T.&T.’s resignation as trustee and the reconveyance of the property, a letter signed by Stanley Stoller, attorney for Joseph Napiorkowski, and a copy of a new trust agreement, which gave Joseph Napiorkowski, Jean Swiderski and Joseph Swiderski the beneficial interest in the trust as joint tenants, were sent to C.T.&T. The beneficial interest as defined by the document would entitle the three named parties to the “earnings, avails and proceeds of the real estate.” This second trust agreement was never signed by either Joseph Napiorkowski or the title company.

On Janury 23,1972, Joseph Napiorkowski died. At that point in time, the land trust had been terminated and the land reconveyed. Joseph was the sole owner in fee simple of the parcel of land which had been the trust res.

Following Joseph Napiorkowski’s death, a chain of events ensued which indicate that the plaintiffs remained unaware that the land trust had been permanently terminated. Similarly, the defendant continued to act as if it still administered the nonexistent trust. The facts relating to this chain of events are not stated here because they are irrelevant to the issue raised in the immediate appeal.

The function of the court is to construe the trust agreement as amended at the time C.T.&T. sent its notice of resignation. (Williston, Contracts §601, at 303 (3d ed. 1961).) The issue before us is who was the beneficiary within the contemplation of the parties under the agreement. The trustee, C.T.&T., and Joseph Napiorkowski were the only parties to the agreement. The crux of the Swiderskis’ argument is that they had a remainder interest under the agreement; that anyone who has any interest in a land trust, regardless of how small or minimal, is a beneficiary; and therefore they were entitled to notice under the terms of the trust agreement. We believe that Joseph Napiorkowski, alone, was the beneficiary under the agreement and the only one entitled to notice.

The trust agreement speaks in terms of the “then beneficiary.” The word “beneficiary” as used in the agreement refers specifically to that person who had the “power of direction to deal with the title to said property and to manage and control said property 6 0 0 and the right to receive proceeds from rentals and from mortgages, sales, or other dispositions of said premises * * Only Joseph Napiorkowski had these powers.

In addition, the word “then” as used in the agreement refers specifically to that person who held these powers at the time of the trustee’s resignation. Again, only Joseph Napiorkowski held these powers at that time. Since the Swiderskis would only succeed to these powers if Joseph Napiorkowski were to die while still a beneficiary of the trust, they could not be the “then beneficiaries” referred to by the agreement.

Furthermore, the purpose of sending notice in case of the trustee’s resignation under the trust agreement was to inform that person who would receive title to the property that the property would be reconveyed to him unless he took some alternate action. Under the terms of the trust agreement, Joseph Napiorkowski was the only person who would receive the reconveyed property or was empowered to take alternate action. Therefore, notice of termination to the Swiderskis would serve no purpose under the agreement.

Further support for the conclusion that notice to the Swiderskis of the trustee’s resignation was not intended under the agreement can be found in the fact that the Swiderskis were not entitled to notice under the terms of the agreement if they were terminated as successor beneficiaries. We do not believe it reasonable to conclude that an agreement which excluded notice of an event of great import to the successor beneficiaries, such as the termination of their interest, would include notice of an event of little import to the successor beneficiaries, such as the resignation of the Trustee.

Therefore, we affirm the judgment of the circuit court and hold that the court was correct in dismissing the complaint on the grounds that the plaintiffs, Jean H. and Joseph Swiderski, were only given a future beneficial interest under the trust and as such were not beneficiaries as would entitle them to notice under the trust instrument.

Affirmed.

ROMITI, P. J., and LINN, J„ concur.


text:
    GAUTAM A. SHAH et al., Plaintiffs-Appellants, v. CHICAGO TITLE AND TRUST COMPANY et al., Defendants-Appellees.
    First District (4th Division)
    No. 81-107
    Opinion filed December 23, 1981.
    Werner E. Hintz and Stephen G. Shelesny, both of Chicago, for appellants.
    Malato & Stein, of Chicago, for appellees Falcon Development Co., Inc., and American National Bank & Trust Company of Chicago.
    Lawrence Sulzbacher and Raymond J. Werner, both of Chicago, for appellees Chicago Title and Trust Company and Chicago Title Insurance Company.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Gautam A. Shah and Sudha G. Shah, individually and as representatives of a purported class, filed a three-count complaint against the defendants, Chicago Title and Trust Company (CT&T), Chicago Title Insurance Company (CTIC), Falcon Development Company, Inc., and American National Bank and Trust Company, stemming from the plaintiffs’ purchase of a condominium unit from Falcon. Count I alleged that the defendants defrauded the plaintiffs through the artifice of an escrow agreement. This count is proceeding through discovery in the trial court. Counts II and III, which alleged violations of the Real Estate Settlement Procedures Act of 1974 (RESPA) (12 U.S.C.A. §2601 et seq. (1980)), were dismissed on the grounds that they failed to state a cause of action. The dismissal was designated as an appealable order pursuant to Supreme Court Rule 304(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a)), and the plaintiffs have elected to appeal only from the dismissal of count II. Specifically, count II alleges a violation of the antikickback provision of RESPA, which provides as follows:

“No person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.” (12 U.S.C.A. §2607(a) (1980).)

The plaintiffs claimed that the defendants violated this section by entering into an agreement or understanding whereby Falcon and American would be given various title services at a reduced rate in exchange for referring individual purchasers to CT&T and CTIC for settlement services.

The events leading to this appeal began when Falcon undertook to convert an apartment complex in Arlington Heights, Illinois, into condominium property. American held legal title to the property as trustee of a land trust. At the time of conversion the property was encumbered by certain trust deeds.

In connection with the conversion, Falcon arranged for CT&T and CTIC to perform various escrow and title insurance activities. This arrangement had its genesis in the form of a pricing proposal sent by CT&T to Falcon. In its first paragraph, the proposal states that it is “for furnishing title insurance in connection with converting the four existing apartment buildings, consisting of a total of 156 units, to condominium ownership 6 0 The next paragraph provides that “[t]itle insurance has been deferred to unit sales on the assumption that we will receive orders for individual units.” The proposal then goes on to set the rates which CT&T was willing to give Falcon for its land acquisition loan, construction loan for remodeling, and owner’s title insurance for the individual units. Under a heading entitled “Optional Services,” the proposal stated as follows:

“Assuming all units are closed through our Skokie Office Escrow Department, the following schedule of fees will apply:
1. Deed and Money Escrow at $60 per unit. This fee is customarily divided between the buyer and the seller.
2. Proceeds of Loan Escrow, if ordered simultaneously with a Deed and Money Escrow, at $25 per unit. This fee is customarily the purchaser’s expense.”

Falcon subsequently accepted this proposal and began to sell the units. In its standard form purchase agreement, Falcon provided that it would furnish purchasers with an owner’s title insurance policy and that “[purchaser hereby designates Chicago Title and Trust Company to furnish title insurance as herein required.”

In connection with the purchase of their unit, the plaintiffs purchased escrow services from CT&T and lenders title insurance for their purchase money mortgagee from CTIC. Essentially, the plaintiffs alleged in count II that the pricing proposal between Falcon and CT&T constituted an agreement or understanding by which “Falcon and American for a thing of value agreed to refer plaintiffs’ class to CT&T and CTIC for the purchase of settlement services.” The “things of value” were described in the complaint as follows: (a) policy and related services given Falcon and American for their land acquisition loan at an unreasonably low cost; (b) policy and related services given Falcon and American for their construction loan for remodeling at an unreasonably low cost; (c) unit sale owner’s title insurance policies given to Falcon and American at an unreasonably low cost, considering that the plaintiffs’ class was charged more for a lender’s policy resulting in no more work and less liability to CTIC; and (d) preferential escrow service given Falcon and American, resulting in a free loan to Falcon and American when CT&T did not obtain the release of prior mortgages prior to closing the escrow pursuant to the escrow agreement. The prior mortgages are in fact the trust deeds, which, as previously mentioned, encumbered the condominium property.

The question before us is whether the trial court was correct in finding that the above-quoted allegations failed to state a cause of action under RESPA.

RESPA was enacted in an attempt to effect nationwide changes in the residential settlement service process that would result “in the elimination of kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services.” (12 U.S.C.A. §2601 (b)(2) (1980).) To plead a cause of action under the antikickback provision of RESPA, the plaintiffs must allege first, an agreement between the parties to refer settlement service business, second, the transfer of a thing of value, and third, the referral of settlement service business. Because Illinois is a fact-pleading state, the complaint must contain sufficient facts to support these allegations. People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 430 N.E.2d 1005.

In determining the propriety of the trial court’s dismissal, we will begin by considering the sufficiency of the plaintiffs’ allegation concerning an agreement or understanding between the defendants to refer settlement service business. The plaintiffs take the position that a detailed agreement need not be alleged when the circumstances indicate that all parties understood a referral would be made. To support this, they cite the following regulation interpreting RESPA:

“Agreement or understanding. An agreement or understanding for the referral of settlement business need not be verbalized but may be established by a practice, pattern or course of conduct pursuant to which the payor and recipient of the thing of value understand that the payment is in return for the referral of business. A payment that is made repeatedly and is connected in any way with the volume or value of the business referred to the payor by the recipient is presumptively pursuant to an agreement or understanding.” (24 C.F.R. §3500.14(c) (1980).)

Essentially, the plaintiffs claim that under this definition the pricing proposal from CT&T to Falcon can be interpreted as an agreement or understanding to refer settlement business. They point to three specific areas in the pricing proposal as examples to support their claim.

First, the plaintiffs claim that the rates contained in the proposal were clearly related to the volume of business to be referred because paragraph 1 refers to a development of “156 units.” We do not believe that this reference to volume indicated in any way that the rates offered to Falcon were dependent upon Falcon’s willingness to refer individual unit purchasers to CT&T. Rather, it is merely a product of Falcon trying to obtain discounted rates based upon the economies of scale which would result from the volume of services which Falcon, itself, would require in connection with the conversion. This court has already held that discounts based upon economies of scale and volume are legitimate business practices. Perrin v. Pioneer National Title Insurance Co. (1980), 83 Ill. App. 3d 664, 404 N.E.2d 508.

Second, the plaintiffs claim that the pricing proposal contemplates a referral of business when it states that, “[tjitle insurance has been deferred to unit sales on the assumption that we will receive orders for individual units.” A reading of this portion of the proposal shows that the title insurance in question is owner’s title insurance which was to be paid for by Falcon, not the unit purchasers. Thus, this clause cannot be interpreted as an agreement to refer business.

The third portion of the pricing proposal which the plaintiffs claim can support an allegation of an agreement to refer business is located under the heading of “Optional Services.” The paragraph begins, “[assuming all units are closed through our Skokie Office Escrow Department, the following schedule of fees will apply 0 0 It then goes on to list the rate for a deed and money escrow, which is customarily divided equally between the buyer and the seller. Also, it quotes a price for a proceeds of loan escrow, which is usually the purchaser’s expense. In our view, this paragraph fails to support the plaintiffs’ allegation of an agreement by Falcon to refer unit buyers to CT&T for settlement services. The “things of value” which the plaintiffs allege were given by CT&T to Falcon in exchange for a referral consist of low rates for services relating to a land acquisition loan, construction loan, and owner’s title insurance. It appears from the pricing proposal that these rates are unrelated to whether or not Falcon ordered the “optional services.” Thus, they cannot be considered as an exchange for the referral of business.

Even accepting the plaintiffs’ argument that a detailed agreement need not be alleged, it is still necessary to plead facts which evidence a scheme by the parties involving the payment of value in exchange for the referral of business. (See McCarrick v. Polonia Federal Savings & Loan Association (E.D.Pa. 1980), 502 F. Supp. 654.) After examining the pricing proposal as a whole, it is our judgment that nothing therein can be interpreted so as to support an allegation of an agreement or understanding to refer settlement business in violation of RESPA.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concurring.


author: JUSTICE WILSON

text:
      In re FRANK WALKER, a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. FRANK WALKER, Respondent-Appellant.)
    First District (5th Division)
    No. 80-1210
    Opinion filed December 28, 1981.

      James J. Doherty, Public Defender, of Chicago (Frances G. Sowa, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean C. Morask, and Michael J. Kelly, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Defendant, a minor, entered an admission to the offense of murder, was found to be a delinquent minor, and was committed to the Illinois Department of Corrections until he reached 21. At the time of commitment, he was 15 years of age. He appeals, contending that his case should be remanded to the Juvenile Court to allow him to file a motion to withdraw his admission, pursuant to Supreme Court Rule 604(d) (Ill. Rev. Stat. 1979, ch. 110A, par. 604(d)). The pertinent facts follow.

• On October 22, 1979, a delinquency petition was filed alleging that on October 19, defendant “intentionally and knowingly shot and killed Edwin Sloss with a gun, without lawful justification, in violation of Chapter 38, Section 9 — 1(a)(1), Illinois Revised Statutes.” On this date, the prosecution also filed a second petition seeking to transfer the minor to the adult jurisdiction. Private defense counsel was appointed on October 26 to represent defendant in this proceeding. Defendant’s counsel, on November 25, advised the court that defendant wanted to withdraw his denial and enter an admission to the murder charge. Defendant’s counsel told the court that he had advised defendant of the consequences of entering an admission. The arrangement to enter the admission was negotiated between defendant’s counsel and the Assistant State’s Attorney, but no agreement was reached as to disposition of the case, and therefore defendant’s admission was an open plea. After defendant’s denial was withdrawn, the court refused to enter the admission because defendant did not agree with the stipulation of facts read into the record by the prosecutor. Defendant testified that the stipulation was “half true and half not true” and that the shooting of SIoss by his co-defendant Crisp may have been accidental.

On November 16, the case came before a different trial judge. Both defendant and co-defendant Crisp stated to the court that they wanted to enter admissions to murder. Defendant further stated that he understood that he had a right to a trial in which the prosecution had to prove him guilty beyond a reasonable doubt and that by admitting the charge there would be no trial. In addition, defendant was informed that based on his admission he could be sent to the Department of Corrections and held until he attained 21 years of age. The court did not inquire whether defendant had received any promises or threats pertaining to the admission. Thereafter, the prosecution withdrew its petition to transfer defendant to the adult jurisdiction.

The record discloses that it was stipulated between the parties that on October 19, defendant and co-defendant, Quinton Crisp, committed the offense of murder in that Gregory Baker encouraged and persuaded them to participate in the premeditated and intentional killing of a person known as “Flip” or Edwin “Slas” SIoss. In order to accomplish this, Baker obtained a rifle and instructed defendant and co-defendant Crisp in its use. Defendant, co-defendant Crisp and Baker then went to 87th and Essex with the intention of shooting either “Flip” or “Slas.” While at that location, Baker saw “Slas” and defendant asked him “Are you still after me?” Defendant then displayed the rifle he had hidden under his coat and “Slas” grabbed defendant and started fighting. During the struggle, defendant dropped the rifle, co-defendant Crisp picked up the rifle, shot and killed “Slas,” and then dropped the rifle. Baker thereafter hid the rifle.

After hearing the stipulation, the court inquired if both the attorney for defendant and co-defendant would stipulate that this would be the evidence if the witnesses were called to testify. Each attorney agreed with the stipulation on behalf of their respective defendants.

It was further stipulated that Officers Chapman and Mack would testify that they responded to a call of a man shot on 87th and Essex. Upon arrival, they found Edwin SIoss on the ground with a gunshot wound in his abdomen. He stated to them that he had been shot by “Quinton.” Additionally, Doctor Choi determined that the cause of death was a gunshot wound of the abdomen.

Following the stipulation, the court entered a finding of delinquency and established a wardship.

A dispositional hearing was held on December 5, during which the following colloquy occurred between defense counsel, the judge, the prosecutor and defendant:

“Mr. Brennan [defense counsel]: Would you like to say something to the court concerning how you feel about the crime, how you feel about the future?
The Minor Respondent: About the crime, I didn’t really mean—
Mr. Brennan: Speak up.
The Minor Respondent: I didn’t really mean for nobody to get hurt. That is all I want to say. I wasn’t intending for it to happen that way.
» # #
The Court: There will be a commitment to the Department of Corrections * * °
You have the right to appeal from the court’s decision. If you and your lawyer decide to appeal, you will be entitled to a transcript of the proceedings. Anything further?
Mr. Russo (prosecutor): Nothing further.
The Court: Court is adjourned.”

Furthermore, during the disposition hearing the investigating probation officer recommended commitment to the Department of Corrections. After the court committed defendant to the Department of Corrections and advised him of his right to appeal, he was given a notice form of his right to appeal. The court failed, however, to inform defendant, either at the time the admission was entered, or at disposition that he had the obligation to file a motion to withdraw his admission, if he desired to appeal his commitment pursuant to Supreme Court Rule 605(b).

Approximately four months after the commitment, defendant’s mother contacted the Public Defender’s Office and stated that defendant desired to appeal. This court granted a motion for leave to file a late notice of appeal and appointed appellate counsel for defendant. Appellate counsel filed an affidavit stating that she interviewed defendant and he stated that his admission was entered under duress and that he never conspired to shoot Sloss and that Sloss was apparently shot accidentally by his co-defendant. No motion to withdraw his admission and vacate the judgment was filed by defendant.

Opinion

Defendant contends that he should be allowed to file a motion to withdraw his admission to murder because he was not advised by the trial court of his right or duty to do so pursuant to Supreme Court Rule 605(b) (73 Ill. 2d R. 605(b).) We agree. The State argues, however, that defendant’s appeal should be dismissed for failure to comply with Rule 604(d). 73 Ill. 2d R. 604(d).

Supreme Court Rule 604(d) provides that a motion to withdraw a plea of guilty (admission) and to vacate the judgment is a condition precedent to an appeal. (People v. Stacey (1977), 68 Ill. 2d 261, 369 N.E.2d 1254; People v. Kinzer (1978), 66 Ill. App. 3d 466, 384 N.E.2d 50.) Ordinarily the failure of the defendant to comply with the requirements of Supreme Court Rule 604(d) requires that the appeal be dismissed. (People v. Schmidt (1978), 59 Ill. App. 3d 762, 375 N.E.2d 1029.) Two exceptions exist to the foregoing rule: (1) where the trial court fails to give Rule 605(b) admonitions to defendant (People v. Ryant (1976), 41 Ill. App. 3d 273, 354 N.E.2d 395; People v. Saldana (1977), 53 Ill. App. 3d 636, 368 N.E.2d 1055; People v. Gramlich (1979), 69 Ill. App. 3d 23, 386 N.E.2d 1171); and (2) where the failure of counsel to file a Rule 604(d) motion to perfect the appeal constitutes ineffective assistance of counsel. People v. Meacham (1977), 53 Ill. App. 3d 762, 368 N.E.2d 400; People v. Pulley (1979), 75 Ill. App. 3d 193, 394 N.E.2d 47.

Applying the above-mentioned principles to the pending case, we conclude that the rationale of the Ryant, Saldana and Gramlich decisions is dispositive of the issue on appeal.

Supreme Court Rule 605(b) provides “In all cases in which a judgment is entered on a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows: (1) that he has a right to appeal; (2) that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion.” 73 Ill. 2d R. 605(b).

Here it is apparent that defendant was not advised by the court of his Rule 605(b) right to file a petition to withdraw his admission of guilt and to request that the disposition be vacated. Consequently, although defendant did not comply with Supreme Court Rule 605(b), we will not apply the bar to his appeal prescribed by Supreme Court Rule 604(d). 73 Ill. 2d R. 604(d); Ryant.

The prosecution posits that private defense counsel advised defendant of his right to withdraw his admission in 30 days. We hold this argument to be without merit because the record contains no basis for such speculation. Similarly, without merit is the prosecution’s somewhat amorphous argument that defendant’s notice of appeal, which was filed after the 30-day time limit and allowed by this court, excuses the trial court’s failure to comply with Rule 605(b). Furthermore, it is probable that defendant’s ignorance of his right to withdraw his admission discouraged him from filing an appeal within 30 days. Additionally, since the 30-day limitation for filing a motion to withdraw the admission had expired at the time the late notice of appeal was granted, appellate counsel was precluded from filing the motion.

Finally, the prosecution contends that we may properly consider the appeal on its merits without directing a remand to the trial court for its consideration of a motion to vacate the disposition below and withdraw admission. We reject this contention. Moreover, People v. Lundeen (1977), 55 Ill. App. 3d 799, 801, 371 N.E.2d 329, cited by the prosecution, lends no support to its position. In Lundeen the substantive basis for review of the error claimed was apparent in the record of appeal and had been fully briefed by both parties. The court opined that it was in a position to review the case without an unnecessary remand.

By contrast, in this case, appellate counsel has advised us that the basis for defendant’s seeking to withdraw his admission is that he was under duress, which condition is outside the record. We, therefore, cannot decide the merits of the appeal from the disposition of the trial court. People v. Saldana.

Accordingly, the prosecution’s motion to dismiss the appeal is denied and the cause is remanded to the trial court with directions to permit defendant to file a motion to withdraw his admission within 30 days from the return of this case on remand and to thereafter proceed in accordance with Supreme Court Rule 604(d).

Remanded.

LORENZ and MEJDA, JJ., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALE M. CARTER, Defendant-Appellant.
    First District (5th Division)
    No. 80-1851
    Opinion filed November 20, 1981.
    Rehearing denied December 23, 1981.

      Donald Page Moore and Jo-Anne F. Wolfson, both of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Donald Townsend and Greig R. Siedor, Assistant Attorneys General, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant was sentenced to three years imprisonment after he was tried by jury and convicted of four counts of violating the Franchise Disclosure Act (hereinafter F.D.A.) (Ill. Rev. Stat. 1979, ch. 121*2, par. 701 et seq.). Several questions are presented for review, but we find that this appeal must be resolved based upon our consideration of two fundamental issues: (1) whether counts 1, 2 and 4 are void because the statutory provisions upon which they are based delegate legislative authority without providing an intelligible statutory guideline as a limitation on the exercise of the delegated power; and (2) whether the evidence is sufficient to prove defendant guilty of count 3 beyond a reasonable doubt.

We reverse. The following facts are material to our decision.

Defendant was chairman of the board and shareholder in Pie Tree, Inc., a Pennsylvania corporation which was in the business of selling franchises for Pie Tree restaurants and bakeries. In February of 1978, Pie Tree’s attorney, Elmer S. Beatty, Jr., sent an application to the Illinois Attorney General’s Office to register the corporation under the Franchise Disclosure Act. This application was received on March 2, 1978.

Section 16 of the F.D.A. (Ill. Rev. Stat. 1979, ch. 121*2, par. 716) provides that a registration becomes effective 20 business days after receipt of the application, unless, within the 20-day review period, the Attorney General either denies the application outright or notifies “the franchisor or its representative that the materials filed do not meet the requirements of [the] Act.”

On March 8, 1978, the Attorney General sent notice that Pie Tree’s application was unacceptable and that the 20-day review period would be tolled until Pie Tree submitted additional material. One of the 15 items specified in the “stop letter” was a requirement that Pie Tree submit an agreement which provided for the escrow of monies paid to Pie Tree by franchise purchasers.

The “stop letter” was sent to Beatty at his law office in Pittsburgh, Pennsylvania. The return receipt was signed by a “Diana Roll,” “Roth,” or “Rath.” However, there is no direct evidence that Beatty received the letter or that he discussed with defendant any of the items requested by the Attorney General.

In June of 1978, defendant negotiated the sale of a Pie Tree franchise to Roger Collier for $45,000. This agreement authorized Collier to operate a Pie Tree restaurant in Illinois and obligated Pie Tree to provide Collier with a fully equipped restaurant.

Although Collier paid $43,000 to Pie Tree, the money was not placed in escrow, and before Collier received the promised restaurant, Pie Tree went bankrupt.

Count 1 accused defendant of failing to comply with the requirements of sections 4(1) and 16 of the F.D.A (Ill. Rev. Stat. 1979, ch. 121*2, pars. 704(1), 716) by selling a franchise in Illinois without first having registered as a franchisor. Count 2 accused defendant of failing to comply with the requirements of section 4(2) (Ill. Rev. Stat. 1979, ch. 121*2, par. 704(2)) by selling a franchise in Illinois without providing a disclosure statement to the purchaser. And count 4 accused defendant of failing to comply with the requirements of section 16.1 (Ill. Rev. Stat. 1979, ch. 121?2, par. 716.1) by selling a franchise in Illinois without first having registered each salesperson who represented the franchisor in this State.

Count 3 accused defendant of “engaging in an act, practice or course of business which acted as a fraud and deceipt [sic] upon Roger Collier, in violation of [F.D.A., §6(1) (c)] to wit: failing to place the franchise fee paid by Roger Collier in an escrow account as required by the Illinois Attorney General’s Office.”

Section 20, the crime-defining provision of the F.D.A. (Ill. Rev. Stat. 1979, ch. 121)2, par. 720), makes it a Class 4 felony to sell a franchise in Illinois without complying with sections 4, 6, 16 and 16.1 (Ill. Rev. Stat. 1979, ch. 121M, pars. 704, 706,716, 716.1). Even though section 20 creates a criminal law which is uniformly applicable to franchise sellers, section 12 of the F.D.A. (Ill. Rev. Stat. 1979, ch. 121)2, par. 712) authorizes the Attorney General to grant individual exemptions from sections 4 and 16, the underlying provisions upon which counts 1 and 2 of the indictment are based. However, this exemption power does not apply to section 6, and it does not expressly apply to section 16.1.

Opinion

I

Defendant argues that the F.D.A violates the constitutional guarantees of due process and equal protection because section 12, when read in conjunction with section 20, authorizes the Attorney General to grant individual exemptions from the obligations of an otherwise uniformly applicable criminal statute.

Defendant also argues that it violates the constitutional requirement of separation of powers (Ill. Const. 1970, art. 2, §1; art. 4, §1) to authorize the Attorney General to, in effect, rewrite the provisions of an otherwise uniformly applicable criminal statute by granting prospective exemptions from that statute.

The separation of powers argument presents two questions. First, can the General Assembly ever delegate authority to grant prospective exemptions from an otherwise uniformly applicable criminal statute? We have been unable to find another case in which a legislature delegated such power to an executive officer or agency, but, “[i]t is an established rule that the General Assembly cannot delegate its general legislative power to determine what the law shall be.” (Hill v. Relyea (1966), 34 Ill. 2d 552, 555, 216 N.E.2d 795.) Keeping this established rule in mind, compare the Attorney General’s extraordinary power under sections 12 and 20 of the F.D.A. with the detailed procedures, including the check of the Governor’s veto power, which the Constitution requires the General Assembly to follow whenever it seeks, by amendment, to add an exemption to an already enacted statute. Ill. Const. 1970, art. 4, §§7,8 & 9.

Assuming that this exemption power is delegable, the second question is whether the F.D.A. provides an adequate guideline or standard for use in limiting and reviewing the exercise of the delegated power. A delegation of legislative authority is an unconstitutional violation of the separation of powers if the delegated power is not limited by an intelligible statutory guideline or standard. (Hill v. Relyea.) We believe it is appropriate to consider the second question first because it presents the narrower issue of whether, in the context of section 20, section 12 of the F.D.A. contains an intelligible guideline as a limitation on the delegated power.

Section 12 provides:

“The [Attorney General] may by rule or order, and subject to such terms and conditions as he may prescribe, exempt any franchise, franchisor, subfranchisor, franchise broker, or salesperson from Sections 4, [or] 16 ° * of this Act if he finds that the enforcement of this Act is not necessary in the public interest * * (Emphasis added.) Ill. Rev. Stat. 1979, ch. 121)2, par. 712.

Thus the statutory “limitation” on the Attorney General’s exemption power is his or her individual determination of what is “in the public interest.” When read in conjunction with section 20, section 12 of the F.D.A. authorizes the Attorney General to grant individual exemptions from an otherwise uniformly applicable criminal law whenever he or she concludes that it is “in the public interest.”

But, the General Assembly has already implicitly determined that it is always “in the public interest” to uniformly provide that it is a crime to fail to comply with the registration and disclosure requirements of the F.D.A. Since consistent application of these registration and disclosure requirements is an important means of protecting Illinois residents from substantial losses (Ill. Rev. Stat. 1979, ch. 121)2, par. 702), it is neither clear nor comprehensible why it would ever be “not in the public interest” to consistently apply the uniform criminal provisions of the F.D.A. as enacted by the General Assembly. It is, therefore, internally inconsistent for the F.D.A. to provide that the Attorney General can rule that it would be “in the public interest” to grant exemptions from these otherwise consistently applicable criminal provisions. We therefore conclude that the phrase “in the public interest” is not an intelligible limitation on the exemption power in the context of an F.D.A. criminal prosecution. Consequently, when considered in conjunction with section 20, section 12 of the F.D.A. is an unconstitutional delegation of legislative power.

II

As we already noted, section 12 expressly authorizes exemptions from sections 4 and 16, the provisions which form the underlying bases for counts 1 and 2. But before considering the extent to which the crime defining section 20 is severable from section 12, we must determine whether the exemption power indirectly applies to section 16.1, the provision upon which count 4 is based.

The first sentence of section 16.1 requires the registration of “franchise brokers” and of the salespersons who represent such “franchise brokers” in Illinois. There is no reference to section 16 in the first sentence of 16.1. However, the second sentence of section 16.1 requires a “franchisor” to register each salesperson who represents the franchisor in Illinois “by filing an application containing the information required by Section 16 0 * *.” (Ill. Rev. Stat. 1979, ch. 121/2, par. 716.1.) Thus, the Attorney General’s section 12 authority to grant exemptions from the requirements of section 16 indirectly includes authority to grant exemptions from the requirements of the second sentence of section 16.1.

Although the first sentence of section 16.1 imposes obligations solely on “franchise brokers,” and the second sentence imposes obligations solely on “franchisors,” count 4 does not specify, by numerical designation, whether it is based on an alleged violation of the first or second sentence. However, count 4 itself accuses defendant of violating section 16.1 by selling a franchise in Illinois “without first having registered each salesperson who represented the franchisor ° ° e.” (Emphasis added.) Furthermore there is no mention of “franchise broker” in count 4.

Because “franchise brokers” and “franchisors” are separate types of franchise sellers under sections 3(3) and 3(22) of the F.D.A. (Ill. Rev. Stat. 1979, ch. 12112, par. 703), it is clear that count 4 is based solely on an alleged failure to comply with the requirements of the second sentence of section 16.1. And as we already concluded, the section 12 authority to grant exemptions from section 16 indirectly includes authority to grant exemptions from the requirements of the second sentence of section 16.1.

III

Next, we must consider whether section 12 is severable from the portions of section 20 upon which counts 1, 2 and 4 of the indictment are based. Ill. Rev. Stat. 1979, ch. 121/2, par. 739.

“The settled and governing test of severability is whether the valid and invalid provisions of the Act are ‘so mutually “connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently o „ o» ’ [Citations omitted.] The provisions are not severable if ‘they are essentially and inseparably connected in substance.’ Fiorito v. Jones (1968), 39 Ill. 2d 531, 540, 236 N.E.2d 698.

We recognize that the legislature is, as it should be, usually precise in defining the scope or applicability of the criminal laws which it enacts. However, in the case of the F.D.A., it is apparent that the General Assembly believed that the applicability of the statute, as enacted, was broader than it should be, and that it was, therefore, necessary to authorize the Attorney General to grant exemptions from the provisions of the Act. Therefore, we conclude that those portions of the crime-defining provisions of the F.D.A. which are involved in this case are so closely connected with and dependent upon the unconstitutional exemption provision that they are inseparable; the legislature would not have passed one without the other. Specifically, we hold that section 20 of the F.D.A. is invalid to the extent that it makes it a crime to fail to comply with sections 4 and 16 and the second sentence of section 16.1 of the F.D.A.

Since counts 1, 2 and 4 are based upon invalid portions of section 20, we conclude that these counts, and the convictions which are based upon them, are void. It should be noted, however, that our holdings on the unconstitutionality of section 12, and on the severability of section 20, are based on an analysis which views the exemption provision solely in the context of a criminal prosecution. We therefore express no opinion on the validity of section 12 in the context of a civil case.

The State notes that in People v. Vandiver (1971), 51 Ill. 2d 525, 529, 283 N.E.2d 681, the supreme court declined to consider a void-for-vagueness attack on the validity of a statute because the defendant’s arguments were based on hypothetical situations which were not involved in that case. The supreme court stated that, “The hypothetical situations do not involve this defendant nor this case and the validity of the statute in light of the same will therefore not be considered.” (51 Ill. 2d 525, 529.) But, unlike Vandiver, the unconstitutional feature of the statute under which defendant was prosecuted is pervasive. Moreover, the defendant in this case does not rely upon remote hypotheticals to support his attack on the F.D.A. Therefore, we conclude that the prudential rule of judicial self-restraint invoked in Vandiver is not applicable to the present case.

IV

Section 6(1) (c) of the F.D.A. provides:

“It is unlawful for any person, in connection with the offer or sale of any franchise, to directly or indirectly * 6 ” (c) Engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.” Ill. Rev. Stat. 1979, ch. 121?2, par. 706(1) (c).

Violation of section 6 is a crime, under section 20; but section 12 does not authorize the Attorney General to exempt franchise sellers from the prohibitions on fraudulent practices which are established by section 6. Our holdings on the validity of the other counts of the indictment are, therefore, not controlling on the question of the validity of this count.

Count 3 accused defendant of violating section 6(1) (c) by “failing to place the franchise fee paid by Roger Collier in an escrow account as required by the Illinois Attorney General’s Office.” The State’s theory of criminal liability under count 3 is that, although it might ordinarily be lawful under section 6 for a franchisor to fail to use an escrow, this omission became a felony because of the requirement in the “stop letter” that Pie Tree submit an escrow agreement.

Defendant initially argues that section 6(1) (c) is void for vagueness on the grounds that it does not give reasonable notice of what conduct is made criminal. Instead of defining what is meant when the terms “fraud” and “deceit” are used in section 6(1)(c), the definitions section of the F.D.A. merely exacerbates the vagueness by stating that, “ ‘[f]raud’ and ‘deceit’ are not limited to common law fraud or deceit.” Ill. Rev. Stat. 1979, ch. 12m, par. 703(11).

However, we need not address the question of the constitutional validity of section 6 because we agree with one of defendant’s alternative contentions: that the evidence is not sufficient to prove him guilty beyond a reasonable doubt.

The State does not dispute that, under its own theory of the case, it was obligated to prove beyond a reasonable doubt that defendant knew that the “stop letter” sent to Pie Tree’s attorney required Pie Tree to submit an escrow agreement.

Although there was direct evidence, including Collier’s testimony, that defendant knew Pie Tree’s Illinois registration had not been approved at the time the franchise agreement with Collier was executed, there was no direct evidence to show that defendant knew about the demand that Pie Tree submit an escrow agreement. Instead, the State relied solely upon circumstantial evidence to prove this element of its case. This circumstantial evidence consisted of showing that the “stop letter” was sent to Pie Tree’s attorney, and on the fact that defendant knew the Illinois application had not been approved.

According to the State, “This evidence, coupled with Collier’s testimony that defendant knew of the Illinois franchise application, is more than sufficient for the jury to infer that defendant knew full well the contents of the March 8,1978, ‘stop letter.’ ”

We disagree because this circumstantial evidence is not sufficient to exclude every reasonable hypothesis for the facts which is consistent with innocence.

Even if we infer that Beatty received the “stop letter” and informed defendant that more paperwork was needed on the Illinois application, Beatty did not testify at trial, and there is no way of knowing whether Beatty discussed, with defendant, all the contents of that letter. It is, of course, possible that Beatty discussed the escrow requirement with defendant. But it is equally possible that Beatty did not. We simply cannot conclude that this evidence of a mere possibility is sufficient to prove, beyond a reasonable doubt, that defendant knew about the Attorney General’s escrow requirement. Consequently, we find that the evidence is not sufficient to prove defendant guilty of count 3 beyond a reasonable doubt.

For all the preceding reasons, defendant’s conviction is reversed.

Reversed.

MEJDA and WILSON, JJ., concur.


author: JUSTICE GOLDBERG

text:
    MARIANNE ZITLAW, Plaintiff-Appellant, v. JOSEPH WOSZENZYNSKI, Defendant-Appellee.
    First District (1st Division)
    No. 80-3177
    Opinion filed November 23, 1981.
    Rehearing denied December 2, 1981.

      Marianne Zitlaw, of Calumet City, for appellant, pro se.

    Orner, Wasserman & Moore, Ltd., of Chicago (Norton Wasserman and H. Elisabeth Huber, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

In this action for personal injuries resulting from an automobile collision on March 8,1977, brought by Marianne Zitlaw (plaintiff) against Joseph Woszenzynski (defendant), a jury returned a verdict in favor of defendant and by its affirmative answer to a special interrogatory found plaintiff guilty of contributory negligence. Plaintiff appeals.

The briefs filed in this court in behalf of plaintiff are pro se. However, with permission of the court, plaintiff’s trial attorney presented oral argument for plaintiff.

The unusual length of the record before us arises from the fact that the instant case was consolidated and tried together with another case brought by plaintiff against another person named Giulio Candreva for personal injuries resulting from an automobile collision on January 6, 1973. The former incident has no bearing upon the issue of liability in the case at bar. The former action was dismissed by agreement of the parties.

The accident before us occurred during the morning of March 8, 1977. The evidence shows plaintiff drove her automobile to a store on the east side of Burnham Avenue near 159th Street in Calumet City. The store building is set back to the east of a city sidewalk. Proceeding east from the east side of the street it is necessary to drive over a low curb, which plaintiff described as “hardly any curb at all.” Continuing to the east a motorist passes a city sidewalk and then enters a parking area about two car lengths in width. Directly to the east of this parking area there is a sidewalk in front of the store in question.

Plaintiff drove south on Burnham then made a left turn to the east onto the parking lot and parked her car facing east directly in front of the store door. There were several other cars parked in the same manner. Plaintiff entered the store. The defendant then was also driving south on Burnham. He also made a left turn onto the parking area and parked facing east somewhat south of plaintiff’s car. Up to this point the testimony of the parties coincides. After this point there is conflict.

Plaintiff testified she left the store in due course, entered her car, looked to the left and to the right and in her rearview mirror. She then backed up in a westerly direction to the beginning of the sidewalk which forms the east boundary of Burnham. She testified she had turned her car with the rear end facing south and the front facing north in order to proceed back north on Burnham. Plaintiff stopped her car in this posture for 10 or 15 minutes as there was a “convoy of school buses” going north. She then reduced that time estimate to 5 minutes. She stated about 20 buses passed before the accident.

Plaintiff leaned out of the driver’s window and was leaning against the steering wheel. Plaintiff heard, and it felt like, an “explosion.” She turned around and saw the back end of defendant’s car piggybacked upon the right side of her car. Plaintiff testified her “body was on fire” and she was almost numb. She felt burning pain in her neck and she was bleeding.

Plaintiff had previously testified in her deposition that prior to the collision she drove her car forward into the center part of the parking area. However, she testified on cross-examination that she did not drive her car forward after she reached the sidewalk. Plaintiff also testified a police officer came to the scene and asked her if she was hurt. She said she did not know. The police officer opened the door and helped her out. She fell against the police officer because her leg bowed. She also testified on cross-examination she could not remember if she was bleeding or not.

Plaintiff also testified that, as her car was standing still, she saw a young neighbor of hers named Sherry Zitt, then approximately 13 years old, approaching on foot. This young lady testified defendant’s automobile backed into plaintiff’s car. However, in a pretrial statement she said plaintiff’s car was facing the street and defendant’s car hit plaintiff’s vehicle on the left or driver’s side.

Defendant testified plaintiff left the store first. Defendant intended to leave the parking area with the back of his car turned north as he intended to drive south on Burnham. Defendant looked to the right and then to the left. He did not look in the rearview mirror. He did not remember if he looked in the sideview mirror. He did not see plaintiff’s car at any time before contact. As his car turned he was driving about one mile per hour. The left rear of his car came in contact with plaintiff’s car. At that time he had moved about 6 feet. Defendant heard, “A minor sound.” Both cars stopped immediately. Defendant saw a dented fender on the right side of plaintiff’s car. Defendant asked plaintiff is she was all right, and she said, “Yes.”

A police officer of Calumet City was acquainted with the plaintiff. When he arrived at the scene he found the rear bumper of defendant’s car was up against the right rear side of plaintiff’s car. Defendant’s car was not piggybacked on plaintiff’s car. When the officer arrived plaintiff was standing outside of her car. The officer did not assist her to alight. Plaintiff did not complain of injury. No injury to her was apparent and the officer’s report has no reference to injury. Her apparent physical condition was normal.

The officer asked the defendant how the collision occurred. Defendant stated that as he was backing away from his parking place another vehicle quickly pulled in behind him. Plaintiff told the officer she was backing out of a parking space and waiting for traffic when the other automobile backed out and struck her.

I

Plaintiff’s first contention is that the proof shows overwhelmingly she was not guilty of contributory negligence and defendant was guilty of negligence so that the trial judge should have set aside the general verdict and the answer to the special interrogatory and the trial court should have granted motions for directed verdict in favor of plaintiff on both issues. In this regard we are governed by the established principle that the trial court should have directed a verdict or entered judgment n.o.v. in favor of plaintiff if all of the evidence, viewed in its aspect most favorable to defendant, so overwhelmingly favors plaintiff that no contrary verdict on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Also, the trial judge should have set aside the general verdict and the answer to the interrogatory, and this court may reverse the failure of the trial judge so to do, only where the verdict and the answer are contrary to the manifest weight of the evidence. Lynch v. Board of Education (1980), 82 Ill. 2d 415, 423, 412 N.E.2d 447; Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32.

Our study of this record has convinced us that the case presents issues of credibility only. As above shown, plaintiff and defendant advanced diametrically different versions of the occurrence with each contradicting the other. The testimony of plaintiff’s young neighbor and of the police officer add to the conflict. The testimony of plaintiff and of the girl was considerably shaken by impeachment. Defendant’s testimony is virtually unimpeached.

Plaintiff cites Pantlen v. Gottschalk (1959), 21 Ill. App. 2d 163, 170, 157 N.E.2d 548, appeal denied (1959), 17 Ill. 2d 629, in support of the proposition that one may not look “with unseeing eye” and then contend that he had not seen “the danger which he could have seen by the proper exercise of his sight, * * However, that principle is not applicable to the case at bar as shown by these authorities.

In Ritter v. Ferenczi (1973), 16 Ill. App. 3d 218, 305 N.E.2d 426, appeal denied (1974), 55 Ill. 2d 607, defendant reversed his automobile and injured the plaintiff. The parties were about to enter defendant’s parked vehicle. Defendant entered at the driver’s seat and plaintiff walked around the rear of the car. The jury returned a verdict for defendant. By special interrogatory they found defendant free of negligence and plaintiff guilty of contributory negligence. As the court pointed out, the evidence was conflicting as to where plaintiff fell with relation to the curb; and also there was no evidence as to what part of defendant’s car struck plaintiff. There was some evidence to support the contention that defendant looked back, saw nothing, began to back up the car and plaintiff walked into the path of the vehicle. (16 Ill. App. 3d 218, 222.) The court therefore refused to apply the proposition regarding the “unseeing eye.” This court also held that a verdict based on conflicting evidence and approved by the trial judge should not be disturbed by a reviewing court unless contrary to the manifest weight of the evidence which the court defined as a situation in which an opposite conclusion “ ‘must be clearly evident, clear, plain, indisputable.’ ” Ritter, 16 Ill. App. 3d 218, 222, quoting from Hitt v. Langel (1968), 93 Ill. App. 2d 386, 397, 236 N.E.2d 118, appeal denied (1968), 39 Ill. 2d 625.

In Copeland v. Johnson (1965), 63 Ill. App. 2d 361, 211 N.E.2d 387, defendant was driving her automobile and struck and seriously injured a minor child. The jury returned a verdict of not guilty. Defendant testified she did not see the child prior to the impact. Plaintiff argued strongly that the duty to look implied a duty to see what there was to be seen. (63 Ill. App. 2d 361, 365.) Defendant, however, took the position that there was no evidence that she failed to keep a proper lookout and that she actually had no opportunity to see or avoid the child. This court affirmed the not guilty verdict.

It therefore follows that upon application of the Pedrick rule, we cannot reverse the rulings of the trial judge on direction of a verdict or refusal to enter judgment n.o.v. Similarly, we cannot conclude that the general verdict and the answer to the special interrogatory are contrary to the manifest weight of the evidence.

II

When counsel for defendant cross-examined the plaintiff, he used a blackboard upon which he marked the position of the cars. From time to time the position of the vehicles as indicated on the board were changed during the course of the cross-examination. Plaintiff contends now that use of the blackboard was reversible error. Defendant cites Farmar v. Crane (1975), 32 Ill. App. 3d 383, 336 N.E.2d 607, and Bittner v. Wheel Horse Products, Inc. (1975), 28 Ill. App. 3d 44, 328 N.E.2d 160, appeal denied (1975), 60 Ill. 2d 595, as authority for the proposition that the blackboard and the figures drawn thereon constitute demonstrative evidence so that the use of this device was a matter within the discretion of the trial court and the ruling of the court thereon was well within the bounds of reasonable discretion.

In Bittner, this court approved action by a trial judge in receiving a snowblower machine into evidence but refusing plaintiff the right to start and operate the machine in the presence of the jury. (28 Ill. App. 3d 44, 48-49.) In Farmar, this court approved the use of a magnetic blackboard upon which metal facsimiles of small automobiles could be placed in different positions. 32 Ill. App. 3d 383, 389.

Upon examination of the record in the instant case, we see no abuse of discretion by the trial judge in permitting this use of the blackboard in cross-examination. In our opinion, the use of the board did not prejudice the plaintiff in any manner. Actually, the record shows that during the cross-examination counsel for plaintiff suggested that plaintiff herself should place marks upon the blackboard to assist in the demonstration. Plaintiff then adopted this and asked if she could do so. Counsel for defendant agreed. Plaintiff responded “Good” and proceeded to make marks upon the blackboard to indicate her version of the occurrence.

We also note that when defendant’s counsel commenced the use of the blackboard he stated in open court that diagrams drawn thereon would not be in accordance with scale. In final argument to the jury, counsel for defendant stated that “at least certain portions” of the matters drawn upon the blackboard were to scale. However, counsel for plaintiff promptly objected to this statement. The careful trial judge immediately sustained the objection, ordered that this statement be stricken and instructed the jury to disregard it. In our opinion, this prompt action by the trial court was sufficient completely to overcome the statement concerning scale. In our opinion plaintiff was not unduly prejudiced by this remark in light of the prompt ruling by the court. We find no prejudicial error in this regard.

III

Plaintiff cites Albaugh v. Cooley (1980), 88 Ill. App. 3d 320, 410 N.E.2d 873, and urges that the special interrogatory is an unconstitutional device. The Supreme Court of Illinois reversed Albaugh and held use of the special interrogatory is proper. (Albaugh v. Cooley (1981), 87 Ill. 2d 24, 429 N.E.2d 837.) In addition, as we did in Malpica v. Sebastian (1981), 99 Ill. App. 3d 346, 350, 425 N.E.2d 1029, we will be guided by the decision of this court in Brock v. Winton (1980), 82 Ill. App. 3d 1010, 403 N.E.2d 690. In Brock, as in Malpica and the instant case, the answer to the special interrogatory is consistent with the general verdict. Consequently, the answer to the special interrogatory is meaningless. “The real question is whether there is sufficient evidence to support the general verdict.” Brock, 82 Ill. App. 3d 1010, 1012.

IV

Plaintiff finally urges this court should apply Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, to the case at bar and remand the case for a new trial. In our opinion, Alois is not applicable here. The opinion in Alois was filed April 17, 1981, and was modified on June 4, 1981, on denial of rehearing. The principles of Alois are applicable only to cases in which trial commenced on or after June 8,1981. (See 85 Ill. 2d 1, 28.) Trial in the instant case commenced May 20, 1980. For these reasons the judgment appealed from is affirmed.

Judgment affirmed.

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