author: JUSTICE MEJDA

text:
    ALAN G. BUCKLEY et al., Plaintiffs, v. CHICAGO BOARD OPTIONS EXCHANGE, INC., Defendant-Appellee.—(Board of Trade of the City of Chicago, Plaintiff-Appellant.)
    First District (5th Division)
    No. 81—1100
    Opinion filed September 17, 1982.

      Kirkland & Ellis, of Chicago (John E. Angle and Frederick L. White, of counsel), for appellant.
    Schiff, Hardin & Waite, of Chicago (Alfred Elliott, Walter C. Greenough, and Timothy L. Porter, of counsel), for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

The Board of Trade of the City of Chicago and Alan G. Buckley, one of its members, brought an action against the Chicago Board Options Exchange seeking mandamus, specific performance, injunctive and other relief. Upon defendant’s section 48 motion, the trial court dismissed the four-count amended complaint. The Board of Trade appeals from the dismissal of count IV of its complaint. The issues raised on appeal are: (1) whether the court has subject matter jurisdiction in this case; (2) whether the application of Illinois common law is preempted by the Securities Exchange Act of 1934 (15 U.S.C. sec. 78a et seq. (1976) (the Act); and (3) whether the Board of Trade has standing to sue the Chicago Board Options Exchange.

Plaintiff Board of Trade is a commodity exchange and member corporation chartered by an act of the Illinois legislature in 1859. Defendant Chicago Board Options Exchange (CBOE) is also a membership corporation organized in 1972 under the law of Delaware, for the purpose of maintaining a regulated market for transactions in securities options. Defendant CBOE is registered as a national securities exchange with the Securities and Exchange Commission (Commission).

The Board of Trade and its members were instrumental in organizing and developing the CBOE. In recognition of those efforts the CBOE included in article 5(b) of its certificate of incorporation a special provision conferring membership in the CBOE on Board of Trade members. Article 5(b) reads in pertinent part:

“In recognition of the special contribution made to the organization and development of the Corporation by the members of the Board of Trade of the City of Chicago, a corporation organized and existing by Special Legislative Charter of the General Assembly of the State of Illinois; *** every present and future member of said Board of Trade who applies for membership in the Corporation and who otherwise qualifies shall, so long as he remains a member of said Board of Trade, be entitled to be a member of the Corporation notwithstanding any such limitation on the number of members and without the necessity of acquiring such membership for consideration or value from the Corporation, its members or elsewhere ***.” (Emphasis added.)

The practical effect of article 5(b) is to allow a Board of Trade member to acquire membership in the CBOE without payment of the usual acquisition price to the CBOE.

Alan G. Buckley has been a member of the Board of Trade since 1972 and a CBOE member since January 1973. In the fall of 1979 the Board of Trade adopted a rule (Rule 221) which allowed each member to delegate the rights and privileges of his Board of Trade membership to another for a fee. A Board of Trade member who delegates these membership rights remains a member of the Board of Trade.

On February 22, 1980, Buckley delegated his Board of Trade membership to David L. Hard for one year. On June 5, 1980, the CBOE advised Buckley by letter that his membership on the CBOE was terminated so long as the delegation of his Board of Trade membership rights remained in effect. The CBOE recognized Buckley’s delegate Hard as the Board of Trade member entitled to CBOE membership under article 5(b). On June 17, 1980, another Board of Trade member received a similar letter.

On July 7, 1980, Buckley and the Board of Trade filed a four-count amended complaint challenging the CBOE action. The pertinent allegations of the complaint follow.

Count I alleged that even though Buckley exercised his right to delegate his Board of Trade floor trading privileges, he was still a member of the Board of Trade and, thus, under CBOE’s article 5(b) was entitled to retain his membership in the CBOE. Count I sought a writ of mandamus directing the CBOE to restore Buckley to membership in the CBOE or, alternatively, injunctive relief restoring him to membership.

Count II and by reallegation count III alleged that the CBOE did not comply with its own rules regarding expulsion when it terminated Buckley’s membership. Count II also sought mandamus or alternatively injunctive relief. Count III sought damages.

Count IV realleged the allegations of count I and further alleged that the CBOE and the Board of Trade entered into a contract when CBOE was incorporated in 1972, reduced to writing as article 5(b) of the CBOE’s Certificate of Incorporation, granting membership in the CBOE to Board of Trade members in consideration of the Board of Trade’s assistance to the CBOE, that CBOE breached the contract by expelling Buckley, and that the Board of Trade has at all times fully performed all of its obligations under the contract. Count IV sought specific performance of the contract by the reinstatement of Buckley to CBOE membership. After filing an answer to the amended complaint, the CBOE filed a “MOTION TO DISMISS OR FOR SUMMARY JUDGMENT.” CBOE’s counsel advised the trial court that he was submitting the motion pursuant to section 48 (Ill. Rev. Stat. 1979, ch. 110, par. 48). The motion sought dismissal of the complaint on the grounds that the court lacked jurisdiction over the subject matter of the complaint; that there was a failure to exhaust administrative remedies provided by Federal law; that the State common law action was preempted by Federal law; and that plaintiffs had an adequate remedy at law.

The court determined that it had jurisdiction. It found that article 5(b) was a rule of a national securities exchange subject to Federal law, that Buckley did not pursue his remedies under CBOE rules, and that the State law action was preempted by Federal law and dismissed counts I, II and III. The court dismissed count IV because (a) the Board of Trade was “not an essential party to this case,” (b) the complaint failed to demonstrate how the Board of Trade was harmed, and (c) the complaint failed to state a cause of action upon which relief could be granted.

Only the dismissal of count IV is at issue, as Buckley has not appealed.

Opinion

The CBOE asserted in its motion to dismiss that the trial court lacked subject matter jurisdiction in this case. The trial court determined that it did have subject matter jurisdiction but dismissed the complaint on other grounds. The lack of subject matter jurisdiction renders a judgment void and open to collateral attack. (Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 112, 395 N.E.2d 549, 550.) It is the obligation of the reviewing court to take notice of matters which go to the jurisdiction of the circuit court, and accordingly we address this issue. Eastern v. Canty (1979), 75 Ill. 2d 566, 570, 389 N.E.2d 1160, 1162.

CBOE contends that the instant claim arises under the Act and hence is subject to the exclusive jurisdiction granted the Federal courts by section 27 of the Act. (15 U.S.C. sec. 78aa (1976).) That section provides in pertinent part:

“Jurisdiction of offenses and suits
The district courts of the United States, *** shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder ***.” (15 U.S.C. sec. 78aa(1976).)

CBOE argues correctly that its certifícate of incorporation is an exchange rule for purposes of the Act (15 U.S.C. sec. 78c(a)(27) (1976)) and the Act requires the CBOE to comply with its own rules. (15 U.S.C. sec. 78s(g)(1) (1976).) Thus, CBOE asserts the Board has pleaded a violation of the Act by pleading the CBOE violated its certificate of incorporation.

The Board of Trade counters that it is not bringing an action pursuant to the Act but a common law contract action, and as a plaintiff it has an absolute right to choose the law upon which it relies.

We find no merit to the CBOE’s jurisdictional argument. It has been held that the exclusive jurisdiction provided under section 27 does not bar plaintiff from pursuing at his option remedies based solely on State law, even though the action may be based on the same factual circumstances. (McMahon Chevrolet, Inc. v. Davis (S.D. Tex. 1975), 392 F. Supp. 322; see Ninth Federal Savings & Loan Association v. First Federal Savings & Loan Association (S.D.N.Y. 1980), 493 F. Supp. 981; see McGough v. First Arlington National Bank (7th Cir. 1975), 519 F.2d 552; see also Will v. Calvert Fire Insurance Co. (1978), 437 U.S. 655, 57 L. Ed. 2d 504, 98 S. Ct. 2552, on remand (7th Cir. 1978), 586 F.2d 12.) Therefore, if count IV of the complaint states an action based upon a contract, the State court has the jurisdiction to entertain it, irrespective of section 27.

CBOE further argues that the Board of Trade’s action is preempted by the Act which provides a comprehensive framework for the regulation of national securities exchanges and their rules including review by the Commission of denial of membership. The Board of Trade argues that the doctrine of preemption is not applicable here because this is strictly a garden variety common law contract action, pointing out that paragraph 13 of the stipulated facts provides that the only material issue is the meaning of the term “member” as used in article 5(b).

The doctrine of preemption is derived from the supremacy clause of article VI of the United States Constitution. The underlying rationale of the preemption doctrine is that the supremacy clause invalidates State laws that “ ‘interfere with or are contrary to, the laws of congress ***.’ Gibbons v. Ogden, 9 Wheat. 1, 211 (1824).” (Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co. (1981), 450 U.S. 311, 317, 67 L. Ed. 2d 258, 265, 101 S. Ct. 1124, 1130.) Securities transactions are subject to regulation under Federal and State law as evidenced by the “blue-sky” laws found in many States. In fact section 28a of the Act (15 U.S.C. sec. 78bb(a) (1976)) specifically preserves the right of the States to regulate securities transactions so long as that regulation does not conflict with the provisions of the Act or rules and regulations promulgated under it. (Leroy v. Great Western United Corp. (1979), 443 U.S. 173, 182 n.13, 61 L. Ed. 2d 464, 473 n.13, 99 S. Ct. 2710, 2716 n.13; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware (1973), 414 U.S. 117, 137, 38 L. Ed. 2d 348, 365, 94 S. Ct. 383, 394-95.) Nevertheless it must be noted that congressional enactments that do not exclude all State legislation in the same field override State laws with which they do conflict. (Jones v. Rath Packing Co. (1977), 430 U.S. 519, 525-26, 51 L. Ed. 2d 604, 614, 97 S. Ct. 1305, 1309-10.) The criterion for determining whether State and Federal laws are so inconsistent that the State law must give way is to determine whether under the circumstances of the particular case, the State’s law stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress. 430 U.S. 519, 526, 51 L. Ed. 2d 604, 614, 97 S. Ct. 1305, 1310.

The specific question presented to us here is whether the provisions of the Act relied upon by the CBOE preempt the Board of Trade’s equitable remedy of specific performance. We address this issue recognizing that the survival of a State judicial remedy depends on the effect of the exercise of the remedy upon the Federal statutory scheme of regulation. Hewitt-Robins, Inc. v. Eastern Freight-Ways, Inc. (1962), 371 U.S. 84, 89, 9 L. Ed. 2d 142, 147, 83 S. Ct. 157, 160.

The CBOE specifically relies on certain provisions of the Act which deal with exchange rule-making policies, the criteria by which an exchange may or must deny membership to an applicant, the procedures by which an exchange may discipline a member or limit the access of exchange services to a member. Pursuant to these provisions an exchange cannot be registered as a national securities exchange unless the Commission determines that it is so organized and has the capacity to be able to carry out the purposes of the Act and to comply and enforce compliance by its members and persons associated with its members with the provisions of the Act, the rules and regulations thereunder and the rules of the exchange. (15 U.S.C. sec. 78f(b)(1) (1976).) The rules of the exchange must also provide that its members and persons associated therewith be appropriately disciplined for violations of the Act, the rules and regulations thereunder or the rules of the exchange by expulsion, suspension, limitation of activities, functions, and operations, fine, censure, or any other fitting sanction. (15 U.S.C. sec. 78f(b)(6) (1976).) The rules of the exchange must also provide a fair procedure for the disciplining of members and persons associated with members, and the prohibition or limitation by the exchange of any person with respect to the access of services offered by the éxchange. (15 U.S.C. sec. 78f(b)(7) (1976).) The Act also sets forth certain conditions not relevant here under which a person must or may be denied membership. 15 U.S.C. sec. 78f(c) (1976).

The Act also establishes the procedure to be followed by the exchange in determining whether a member should be disciplined, be denied membership or be prohibited with respect to access to exchange services, including notice and the opportunity to be heard. (15 U.S.C. sec. 78f(d)(1), (d)(2) (1976).) If an exchange imposes any final disciplinary sanction on any member, denies membership to an applicant or prohibits or limits access to services offered by the exchange, it shall promptly file notice thereof with the Commission. (15 U.S.C. sec. 78s(d)(1) (1976).) Final action taken by an exchange concerning a matter relating to the qualifications of an individual to participate in the organization, or relating to an administrative matter not involving charges leading to disciplinary sanctions such as the failure to pay entry or other dues or fees are not considered final disciplinary actions. However, notice of such action must also be filed with the Commission. General Rules and Regulations, Securities Exchange Act of 1934, 17 C.F.R. sec. 240.19(d)-(1)(e) (1981).

Any action for which such notice is required is subject to review by the Commission on its own motion or upon application by any person aggrieved thereby. (15 U.S.C. sec. 78s(d)(2) (1976).) “Person” is defined by the Act as “a natural person, company, government, or political subdivision, agency, or instrumentality of a government.” (15 U.S.C. sec. 78c(a)(9) (1976).) The applicant for review shall file a brief or other statement in support of his application which shall state the specific grounds on which the application is based, the particular findings of the exchange to which objection is taken and the relief sought. (17 C.F.R. sec. 240.19d — 3(c) (1981).) The exchange may file an answer thereto. (17 C.F.R. sec. 240.19d — 3(d) (1981).) On its own motion the Commission may direct that the record under review be supplemented with additional relevant evidence. Nevertheless the exchange and those persons aggrieved by its actions are obliged to adduce all evidence that they deem relevant in the proceedings and they may petition the Commission to adduce additional evidence. (17 C.F.R. sec. 240.19d — 3(e) (1981).) If in any proceeding to review the denial of membership or the prohibition or limitation by an exchange of any person with respect to access to the services offered, the Commission finds that the specific grounds on which such denial, bar, or prohibition or limitation is based exist in fact, that the denial, bar, or prohibition is in accordance with the rules of the exchange and that the rules were applied in a manner consistent with the purposes of the Act, the Commission shall dismiss the review proceeding. If such finding is not made or if the Commission finds that the exchange’s action imposes any burden on competition not necessary or appropriate in furtherance of the Act, the Commission shall set aside the action of the exchange and require it to admit the applicant or grant the person access to its services offered. (15 U.S.C. sec. 78s(f) (1976).) Any “person aggrieved” by such final order of the Commission may seek its review by a United States Court of Appeals. 15 U.S.C. sec. 78y(a)(1) (1976).

The CBOE argues that the State remedy which the Board of Trade seeks would conflict with this comprehensive statutory scheme of exchange membership regulation and would stand as an obstacle to the accomplishment of the evident congressional intent to allow the Commission and not the courts in the first instance to determine whether a person has been denied exchange membership in accordanee with the Act. The Board of Trade responds that this is not a case of national significance where State law might intrude on or frustrate a Federal statute; nor is it a case where a decision on the merits under State law would have the slightest impact on the regulation of the CBOE pursuant to the Act. In support the Board cites Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware (1973), 414 U.S. 117, 38 L. Ed. 2d 348, 94 S. Ct. 383. In Ware the court considered whether Rule 347(b) of the New York Stock Exchange, requiring arbitration of controversies between a registered representative and his employer, preempted California statutory provisions permitting the employee to litigate rather than arbitrate the issue. The court held that State law was not preempted because: there was nothing in the Act or any Commission rule or regulation that specified arbitration as a favored means of resolving employer-employee disputes; Rule 347(b) was not subject to the Commission’s review or modification; and the California statute did not frustrate or interfere with the Federal regulatory scheme. Ware emphasized that, “ ‘each case turns on the peculiarities and special features of the Federal regulatory scheme in question.’ ” (414 U.S. 117, 139, 38 L. Ed. 348, 366, 94 S. Ct. 383, 396, citing City of Burbank v. Lockheed Air Terminal, Inc. (1973), 411 U.S. 624, 638-39, 36 L. Ed. 2d 547, 556-57, 93 S. Ct. 1854, 1862.) We find the Ware preemption analysis informative but not dispositive here. Subsequent to Ware, the Act was amended to include the membership provisions relied upon by CBOE and to broaden the scope of the Commission’s review of exchange rules. Furthermore, unlike disputed Rule 347(b) in Ware, article 5(b) of CBOE’s articles of incorporation is subject both to Commission review and modification. Thus, we do not find Ware authoritative for construction of the Act as thereafter amended. See, e.g., Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co. (1981), 450 U.S. 311, 328-29, 67 L. Ed. 2d 258, 272, 101 S. Ct. 1124, 1136.

Furthermore, we agree with the CBOE that allowance of the Board of Trade’s action for specific performance could conflict with the Commission’s oversight and review of exchange decisions relative to membership. This case serves as a perfect example of this potential conflict. If the Board of Trade prevailed Buckley would be reinstated as a member and Hard removed. Hard could then appeal to the Commission through the review procedures set forth in the Act. An obvious conflict would result if the Commission determines that Hard and not Buckley is the proper member for purposes of the Act.

Additionally, we believe that the breadth of the Commission’s statutory authority to review exchange decisions relative to membership suggests a congressional intent to limit judicial interference in the review procedure. The structure of the Act’s membership provisions makes plain that Congress intended an aggrieved person seek relief in the first instance before the Commission. (Cf. Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co. (1981), 450 U.S. 311, 67 L. Ed. 2d 258, 101 S. Ct. 1124.) We believe that the interpretation is supported by Senate Report No. 94 — 75 (the report) which cogently illuminates the intent of Congress in passing the 1975 amendment provisions relevant here. (S. Rep. No. 94 — 75, 94th Cong. 1st Sess., reprinted in (1975) U.S. Code Cong. & Ad. News, 179 et seq.) The report emphasized the importance of the securities industry to the economic growth and health of this country and the world and expressed concern that securities markets be able to respond to the demands placed upon them by the increasing tempo and magnitude of the changes in our domestic and international economy. ((1975) U.S. Code Cong. & Ad. News 179, 181.) The 1975 amendments were envisioned as a fundamental reform of the economic and regulatory structure of the securities markets and the securities industry ((1975) U.S. Code Cong. & Ad. News 179, 179), clarifying the scope of the self-regulatory responsibilities of national securities exchanges, and the manner in which those responsibilities are exercised. The 1975 amendments were also seen as clarifying and strengthening the Commission’s oversight role with respect to exchanges. (1975) U.S. Code Cong. & Ad. News 179, 200.

The report commented that a common and serious misunderstanding existed as to the nature and limits of the concept of self-regulation. It took issue with the frequently held view that self-regulation is an arrangement whereby the exchanges rather than the Federal government police the conduct and strengthen the professional standards of securities firms. ((1975) U.S. Code Cong. & Ad. News 179, 200-01.) It further stated that such a conception of self-regulation was misleading and emphasized that exchanges exercise authority subject to the Commission’s oversight and have no authority to regulate independently of the Commission’s control. (1975) U.S. Code Cong. & Ad. News 179, 201.

We also draw attention to the fact that the report stated that the concept of “membership,” i.e., voluntary association with an industry organization — is fundamental to the self-regulatory system established by the Act."(1975) U.S. Code Cong. & Ad. News 179, 202.

In light of the importance Congress placed on the concept of “membership” in the regulatory scheme it established by the 1975 amendments, as well as the possible conflict with that scheme which might arise as a result of a State court membership determination, we conclude that preemption of the Board of Trade’s action for specific performance is required here.

For the reasons cited herein, the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and WILSON, J., concur.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    RITA CORNELL, Plaintiff-Appellee, v. ARTHUR LANGLAND, Defendant.—(Old Orchard Country Club, Defendant-Appellant.)
    First District (4th Division)
    Nos. 81—2307, 81—2473 cons.
    Opinion filed September 23, 1982.

      Crooks & Gilligan, Ltd., of Chicago (John W. Gilligan, Jacqueline C. Murnane, of counsel), for appellant.
    J. Richard Stanton, Ltd., of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Rita Cornell, brought this action to recover compensatory and punitive damages from the defendant, Old Orchard Country Club (Old Orchard), arising from an accident in which she was struck by a golf ball hit by Arthur Langland. Originally, Langland was also a defendant in this suit but was voluntarily dismissed by the plaintiff at the close of the plaintiff’s case. The jury found in favor of the plaintiff and assessed $5,951.55 in compensatory damages and $6,000 in punitive damages against Old Orchard. Old Orchard appeals contending that: (1) the evidence presented at trial was not sufficient to justify the imposition of punitive damages; (2) certain testimony was erroneously admitted; (3) the judgment should be reduced; and (4) the trial court erred in allowing the voluntary dismissal of Langland at the close of the plaintiff’s case.

Arthur Langland, called by the plaintiff as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60), testified that he had played golf for 19 years and had participated in district competition. Before the date of the accident, he had never played at Old Orchard. On that date, he went to the course, paid his fee and picked up a scorecard. When he reached the eighth tee, he looked at the scorecard to ascertain the distance from the tee to the green. The card showed a yardage of 315 yards and a par of four. He looked down the fairway to see if it was clear to hit his drive and saw the plaintiff and her husband approaching the green. He waited until they reached the green and then proceeded to tee off. His drive struck the head of the plaintiff who was pulling the pin out of the hole.

Steven Blatnak also testified as an adverse witness. He was employed by Old Orchard as the pro manager of the golf course in October of 1979. He testified that Lou Sabo was the pro manager at the time the plaintiff was injured and that Sabo’s duties were approximately the same as his. As pro manager, Sabo was an “overseer” of the golf course and as such was responsible to the management of Old Orchard. He was authorized to collect greens fees, deal with patrons and make decisions concerning the safety of the golf course.

Blatnak stated that prior to the occurrence, a second green had been used for the eighth hole. This second green was approximately 40 yards farther than the green on which the plaintiff was injured. The second green created a “dog leg” in the hole. In October of 1980, the Chicago District Golf Association made a laser measurement of the eighth hole. The measurement from the center of the tee to the center of the green where the accident occurred was 232 yards.

Thomas Cornell, the plaintiff’s husband, testified that at some time after the accident, he measured the eighth hole with a tape measure and found it to be approximately 217 yards from the tee to the green. On the evening after the accident, he had a conversation with Langland in which Langland stated, “I just can’t understand how I could hit a ball that far.” After this conversation, Cornell called Old Orchard and spoke with Lou Sabo who, after being advised that the scorecard for the eighth hole indicated 315 yards, stated, “[T]wo years or so we moved that green forward. That’s not 315.” Sabo also stated, “[W]e got a lot of cards left here, when we print them up again, we will probably change them *** that would cost a lot of money.”

On appeal, Old Orchard first contends that the evidence presented at trial was insufficient to demonstrate that Old Orchard was guilty of wilful and wanton conduct which would support an award of punitive damages.

The preliminary question of whether the facts justify the imposition of punitive damages in a particular case is a question of law. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) Punitive damages are in the nature of a criminal penalty and are not favored under the law. (Moore v. Remington Arms Co. (1981), 100 Ill. App. 3d 1102, 427 N.E.2d 608.) The purpose of imposing punitive damages is to punish the defendant, to teach him not to repeat his intentional, deliberate and outrageous conduct, and to deter others from similar conduct. (George v. Chicago Transit Authority (1978), 58 Ill. App. 3d 692, 374 N.E.2d 679.) In Kelsay, the court addressed the issue of punitive damages as follows:

“It has long been established in this State that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others [citation].” (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 186, 384 N.E.2d 353, 359.)

Taken out of context, the words “wanton disregard of the rights of others” appear to indicate that punitive damages may be awarded where the defendant’s actions are only slightly greater in degree than mere negligence. As noted by Justice Sullivan in his concurring opinion in Fraud v. Celotex Corp. (1982), 107 Ill. App. 3d 654, 437 N.E.2d 910, this has resulted in a situation where punitive damages are too readily obtainable in this State.

We believe that a proper interpretation of the law in this area is one which considers the origin and purpose of punitive damages. The awarding of punitive damages originated as a means of punishing defendants in “instances of malice, oppression or gross fraud, i.e., where the manner of performance made the conduct ‘outrageous.’ ” (107 Ill. App. 3d 654, 660, 437 N.E.2d 910, 915.) As previously noted, they are in the nature of a criminal penalty and are not favored under the law. Therefore, it has been held that courts must exercise caution to see that punitive damages are not awarded improperly or unwisely. Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 419 N.E.2d 578.

The plaintiff’s evidence shows that the yardage from the tee to the green on the eighth hole, which was shown on the scorecard as 315 yards, was actually either 217 or 232 yards. Blatnak testified that while he had never heard of a golfer who could hit the ball 315 yards in the air, it would be possible to drive a green 232 yards from the tee. Regarding Old Orchard’s knowledge that the hole was mismarked, the plaintiff introduced evidence of Lou Sabo’s statement that the yardage was no longer 315 because the green was moved forward and that it would cost a lot of money to change the scorecards. Old Orchard presented evidence that prior to the accident a second green had been used which made the hole longer and more complex than the green in use when the plaintiff was injured. It contends that the logical inference is that the scorecard was originally printed to reflect the character of the hole when the farther green was in use. Old Orchard maintains that the failure to properly remark the hole was not deliberate or done with a conscious disregard of the rights of others.

In our judgment the evidence presented does not sustain the plaintiff’s assertion that “[a] conscious choice was made by [Old Orchard] to mismark the 8th hole of its golf course.” At most it shows that Old Orchard was negligent in failing to see that the card properly reflected the true yardage of the eighth hole. Furthermore, even if Old Orchard knew that the card was incorrect, the evidence presented did not show that this was such a dangerous condition that the failure to change the card constituted the type of intentional, deliberate and outrageous conduct which would support the imposition of punitive damages. While the evidence in the present cause may be sufficient to show negligence on the part of Old Orchard, we do not believe that the mismarking of a golf scorecard is the type of conduct which would justify the imposition of punitive damages.

Old Orchard next raises a question involving the agency of Lou •Sabo, the pro manager of the golf course at the time of the plaintiff’s injury. It contends that the court erred in allowing the jury to consider Sabo’s statement that he knew the eighth hole was not 315 yards as the scorecard indicated because the plaintiff failed to establish the elements necessary to treat the statement as an admission of an agent. For a statement to constitute an admission of an agent, it must be shown that the person was an agent or employee, that the statement was made about a matter over which he had actual or apparent authority and that he spoke by virtue of his authority as an agent. Kapelski v. Alton & Southern R.R. (1976), 36 Ill. App. 3d 37, 343 N.E.2d 207.

Old Orchard argues that there was no showing that the statement was made regarding a matter over which Sabo had authority, nor that he had authority to make such a statement. We disagree. The evidence showed that as pro manager, Sabo was an “overseer” of the golf course. He was authorized to collect greens fees, deal with patrons and make decisions concerning the safety of the golf course. We believe that it was within his authority to speak with the plaintiff’s husband concerning the features of the golf course.

Old Orchard’s next contention is that the judgment should be reduced by the amount of damages attributable to other persons. The jury in its verdict found that Old Orchard was 82.5% negligent and that 17.5% of the negligence involved was attributable to “other persons.” Old Orchard claims that by having judgment entered against it in the full amount of the jury verdict, it was unfairly being held responsible for the negligence of another person.

We do not find this argument persuasive. We do not believe that the concept of joint and several liability is inconsistent with comparative negligence or unfair to tortfeasors such as Old Orchard. Joint and several liability has long been the established law in Illinois. (Buehler v. Whalen (1977), 70 Ill. 2d 51, 374 N.E.2d 460.) The reason for holding each concurrent tortfeasor liable for the total damage is that such damages are more appropriately borne by a tortfeasor than by an innocent injured plaintiff. See Buehler.

This rationale remains consistent even in the light of Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, and the subsequent adoption of “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.), which soften the burden of liability for an individual tortfeasor by establishing the rule of contribution among joint tortfeasors in Illinois. The Act specifically says that a plaintiff’s right to recover the full amount of his judgment from any one or more of the defendants is not affected by the Act.

Old Orchard has cited us no authority that suggests that comparative negligence and joint and several liability among tortfeasors are inconsistent, and we approve the rationale behind this rule of law.

Old Orchard next claims that the trial court erred in allowing the plaintiff to voluntarily dismiss Langland at the close of the plaintiff’s case. Prior to trial, the plaintiff informed the court that she had an agreement with Langland whereby she would not seek to execute any judgment which might be entered against Langland.

The plaintiff’s voluntary dismissal of a defendant will not normally be prevented unless the remaining defendants establish that they were prejudiced thereby. (Turnbull v. Porter (1964), 55 Ill. App. 2d 374, 206 N.E.2d 97.) Old Orchard claims that it was prejudiced by the admission of certain testimony of the plaintiff’s husband. He testified that after the accident he had a conversation with Langland in which Langland stated, “I just can’t understand how I could hit a ball that far.” Old Orchard claims that this statement had the effect of showing that Langland relied upon the mismarked scorecard in deciding whether to hit the ball. It claims that because of the agreement insulating Langland from the effect of a judgment against him, the court should not have treated this statement as an admission of a party. Rather, the statement should have been treated as inadmissible hearsay as to Old Orchard.

We do not believe that Old Orchard was prejudiced in any way by the admission of this particular statement. As Old Orchard states in its brief, Langland had already testified that his decision to hit the ball was made in reliance upon the card yardage of 315 yards and the designation of the eighth hole as a par 4.

Accordingly, the judgment of the circuit court is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

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


author: PRESIDING JUSTICE JOHNSON

text:
    VAR E. LORDAHL, Plaintiff-Appellant, v. FRANK MAURO et al., Defendants-Appellees.
    First District (4th Division)
    No. 81—2518
    Opinion filed September 23, 1982.

      Thomas Mathai, of Chicago, for appellant.
    J. L. Statland, of Murphy & Boyle, of Chicago, for appellees.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Var E. Lordahl, appeals the trial court’s order denying his motion to vacate the dismissal of a third amended complaint and denying leave to file a fourth amended complaint. On appeal, plaintiff argues that the trial court abused its discretion and that he should be granted leave to file a fourth amended complaint against Frank Mauro and Frank Mauro Oldsmobile, Inc.

We affirm.

On August 23, 1977, plaintiff filed a nine-count complaint against Frank Mauro, Frank Mauro Oldsmobile, Inc., and General Motors Corporation alleging breach of contract, misrepresentation and fraud, and asking damages, including punitive damages, totaling $531,900.

Plaintiff alleged that in April 1975 he purchased a 1975 automobile from Frank Mauro Oldsmobile. On October 18, 1975, the car was stolen. When it was recovered by police on the next day, all doors, all wheels and the radio were missing. On October 20, 1975, Mauro agreed to repair the car. The price agreed upon was $1,768.48, which plaintiff paid with an insurance check.

Plaintiff alleged that defendants did not properly repair the car, that the original radio was replaced with a cheaper model and that defendants misrepresented that the car would be repaired within a few days, that parts were easily available and would be ordered from General Motors, and that qualified employees would do the repairs. Plaintiff claimed he suffered financial losses including costs of renting an automobile while his own was being repaired and loss of income, and that he suffered severe mental anguish and emotional distress.

General Motors responded to the complaint with a motion to dismiss. Defendants Mauro and Frank Mauro Oldsmobile moved to dismiss and also answered the complaint. On January 16, 1979, plaintiff’s first complaint was stricken and he was given leave to file an amended complaint. Plaintiff filed a 29-count amended complaint against defendants asking a total of $2,177,600 in damages. Again, defendants moved to dismiss. On July 17, 1980, plaintiff’s amended complaint was stricken and he was given leave to file a second amended complaint. On August 25, 1980, plaintiff filed a 13-count amended complaint against defendants asking $785,700 damages. On July 16, 1981, this second amended complaint was stricken on defendants’ motions and plaintiff was allowed to file a third amended complaint.

Count I of the third amended complaint alleged that Mauro and Frank Mauro Oldsmobile falsely and fraudulently represented to plaintiff that they would repair plaintiff’s car with General Motors parts within 3 weeks, that they would install a genuine General Motors radio, and that trained and authorized mechanics would repair the car. Plaintiff alleged damages as follows: $1,768.48, money paid to defendants for repairs; $1,200, car rentals; $3,600, loss of use of car for 7 months; and $15,000, wage loss. Plaintiff asked a judgment of $25,000 and an additional $50,000 punitive damages. Count II charges misrepresentation by “John Doe, agent of General Motors.” Defendants’ motions to dismiss the third amended complaint were granted in an order dated August 21, 1981, which is not in the record. Plaintiff moved to vacate this dismissal and asked leave to file a fourth amended complaint. The trial court denied plaintiff’s motion, stating in its order that there was no just cause for delay of the enforcement of the order or appeal. Plaintiff appealed.

The sole issue raised by this appeal is whether the trial judge’s denial of plaintiff’s petition to file a fourth amended complaint was an abuse of discretion. Plaintiff argues that justice would be served by granting him leave to file his fourth amended complaint against Frank Mauro and Frank Mauro Oldsmobile, Inc., and that it would be unfair to deny him his day in court because of the past ineptitude of his attorneys. Plaintiff also claims that his proposed complaint states a facially meritorious cause of action. The proposed fourth amended complaint, which was not presented to the trial court with plaintiff’s motion for leave to file an amended complaint, provided as follows:

Count I: plaintiff asked $1,000 damages for defective repair of his automobile;
Count II: plaintiff asked $100 damages for installation of a cheaper radio;
Count III: plaintiff asked $1,023 damages for use of a substitute automobile;
Count IV: plaintiff asked $1,000 damages for other expenses incurred in trying to get the automobile repaired;
Count V: plaintiff asked $3,600 damages for loss of the use of a late model car for 2 years;
Count VI: plaintiff asked $25,000 damages for severe mental anguish and emotional distress caused by acts of fraud and deceit perpetrated by defendants; and
Count VII: plaintiff asked punitive damages of $300,000.

Plaintiff’s right to amend his complaint is not absolute, and while permission is to be liberally allowed, the trial court has discretion to deny leave to amend a complaint. (Petrella v. Leisky (1981), 92 Ill. App. 3d 880, 882, 417 N.E.2d 134, 136.) The denial of a motion to amend will not be regarded as error unless there is a manifest abuse of such discretion. (Economy Fire & Casualty Co. v. Pearce (1979), 79 Ill. App. 3d 559, 565-66, 399 N.E.2d 151, 155.) The test to be applied in determining whether discretion with respect to allowance of amendments to pleadings was properly exercised is whether it furthers the ends of justice, and, in such regard, the court may properly consider the ultimate efficacy of a claim in passing on a motion to amend. (79 Ill. App. 3d 559, 566.) Under the circumstances of this case, we cannot find that the trial court abused its discretion in denying plaintiff leave to amend. First, the proposed amendment would have been the fourth and was proposed over 4 years after the original complaint was filed. Between August 1977 and August 1981, the trial court dismissed the original and the three amended complaints filed by plaintiff. Thus, plaintiff had ample opportunity to prepare a complaint. Second, and more importantly, plaintiff’s proposed fourth amended complaint does not cure the defects of his prior complaints. It merely restates in a different order the allegations contained in the prior complaints which the trial court found insufficient and had dismissed. Therefore, we hold that the trial court did not abuse its discretion by denying plaintiff leave to file a fourth amended complaint.

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

Affirmed.

LINN and ROMITI, JJ., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CRAIG POST, Defendant-Appellant.
    First District (5th Division)
    No. 81—710
    Opinion filed September 17, 1982.

      James J. Doherty, Public Defender, of Chicago (John Lanahan, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and David A. Baitman, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted of armed violence and four counts of aggravated battery. He was sentenced to 6 years on the armed violence conviction, to be served concurrently with four concurrent 3-year sentences for each conviction of aggravated battery.

On appeal, defendant contends that (1) he was improperly convicted of armed violence where the felony charged as an element thereof was aggravated battery under section 12 — 4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)); (2) he was denied a fair trial (a) when the prosecutor told a potential witness that he need not appear in court and then commented in closing on his failure to call witnesses and (b) when the State failed to reveal until the eve of the trial that it possessed a knife which might have supported his self-defense theory; (3) the trial court erred when it admitted portions of his oral confession, not revealed in discovery, which negated his theory of self-defense; and (4) the four convictions for aggravated battery should have been merged into one conviction for that offense.

George Raiman, assistant manager of the Biograph theater, testified that on the evening of December 7, 1979, patrons were being searched as they entered the theater; that Akram Farhan, Debra Farhan, Robin Edwards, and Frank Rozhon entered together and were searched, but no weapons were found; that no search was made of defendant and his companions, Jessie Nava, William Snow, and Mark Reed, when they entered; that he overheard defendant say that he had a knife and wanted to get “the Iranian” who was inside; that he warned Akram Farhan of the threat and advised him to leave; that after Farhan and his three companions left through a side door leading to an alley, defendant and his companions ran out the front door; that when he (Raiman) went out, he saw defendant and Farhan facing each other in the alley with Richard Warner, manager of the theater, between them; that defendant had something in his hand at that time; and that Farhan had nothing in his hands.

Richard Warner, the theater manager, testified that on the evening of December 7, 1979, George Raiman told him of possible trouble with two groups of patrons; that when he went out into the alley and stood between the two groups, defendant pulled a knife and told him to get out of the way; that he then saw a scuffle involving Farhan, defendant, and Nava, during which defendant stabbed Farhan; that neither Farhan nor any of his companions had a knife; that on the morning of December 9, the janitor at the Biograph brought in a knife, stating that he had found it in the alley; that he was in the alley several times between the incident and December 9 but had not seen a knife; and that he did not hear Farhan threaten anyone.

Officer Groth testified that when he arrested defendant and his three companions at the scene, he was informed that the knife used in the incident was still in the alley; and that when he returned to the alley behind the Biograph in the early morning hours of December 8, he found a knife in a large trash bin.

Akram Farhan testified that he was searched when he entered the Biograph on the evening of December 7, 1979; that later, George Raiman spoke to him and advised him to leave; that he and his companions exited through a side door into an alley, where he saw defendant and his companions approaching and heard one of them say “Let’s get the Iranian”; that he started to run away, but Nava grabbed him around the neck from behind and he then felt a pain in his back; that he turned and saw defendant behind him with a knife in his hand; that as he fell, defendant grabbed his legs and stabbed him three times in the thigh; that neither he nor any of his companions had a knife that evening; that he was hospitalized for 5 to 6 days; and that he now has scars on his back, on the inside thigh of he left leg, and on the outer thigh of his left leg.

On cross-examination, Farhan testified that he had never met defendant prior to that evening; that he has owned knives but was unarmed on the date of the incident; and that he did not recognize and had never owned the knife found in the alley on December 9.

Assistant State’s Attorney James Linn testified that in an interview during the early morning of December 8, 1979, defendant told him that he had stabbed Farhan and had hidden the knife in a large trash bin behind the Biograph. Defendant also told him that Farhan had no knife or other weapon that night. On cross-examination, Linn admitted that the summary he wrote after the interview did not contain any reference to Farhan’s being unarmed.

It was stipulated that Farhan sustained three puncture wounds in his left thigh and one puncture would on the left side of his lower middle back.

Officer Groth, when recalled by the defense, testified that when he searched the alley and found the knife in the trash bin early on the morning of December 8, he saw no other knife in the area.

Defendant testified that he was with Snow, Nava, and Reed in the lobby of the Biograph on December 7, 1979; that he knew Snow had fought with Frank Rozhon, one of Farhan’s companions, prior to that night; that when Snow ran out of the theater, he was followed by Nava and Reed and, although he (defendant) did not know where they were going or why, he followed them; that they all ran into the alley where he saw Farhan and his group emerging from the theater; that as Farhan started walking toward him, Snow said he (Farhan) had a knife; that Farhan then threatened him (defendant) and he saw a knife in Farhan’s hand; that Snow handed him a knife as Farhan approached and, when he attempted to kick the knife out of Farhan’s hand, he (defendant) slipped and fell on the ice; that Farhan then lunged at him with the knife and, to protect himself, he stabbed Farhan three times in the leg; that as they scuffled, Farhan dropped his knife and he kicked it away and then threw his own knife in the trash bin; that he did not remember stabbing Farhan in the back, but that it could have happened while they were scuffling; that he had done nothing to provoke Farhan’s attack; and that he had told this story to Assistant State’s Attorney Linn, including the fact that Farhan had a knife.

Opinion

We first consider the propriety of the armed violence conviction where the felony charged as an element of that offense was aggravated battery under section 12 — 4(b)(1) of the Criminal Code of 1961. Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(l).

Battery, a misdemeanor, requires proof that the defendant “intentionally or knowingly without legal justification and by any means *** cause[d] bodily harm to an individual ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3(a); People v. Siler (1980), 85 Ill. App. 3d 304, 406 N.E.2d 891.) Use of a deadly weapon in the commission of a battery enhances the offense to a felony, aggravated battery. (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1); People v. Redding (1976), 43 Ill. App. 3d 1024, 357 N.E.2d 1227.) The elements of armed violence are (1) commission of any felony defined by Illinois law; and (2) while armed with a dangerous weapon. (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.) In People v. Van Winkle (1981), 88 Ill. 2d 220, 430 N.E.2d 987, it was held that use of a dangerous weapon which serves to enhance a charge of battery to aggravated battery may not also serve to further enhance the latter charge to armed violence. Accord, People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.

It is our view that Van Winkle is dispositive of this issue. Defendant here was charged in the indictment with “the offense of armed violence in that he, while armed with a dangerous weapon, to wit: a knife, intentionally and knowingly without legal justification caused bodily harm to Akram Farhan, by stabbing him in the back and thigh with said knife, in violation of Chapter 38, Section 33A — 2, 12 — 4(b)(1) of the Illinois Revised Statutes 1977, as amended ***.” The indictment contains the elements required for an armed violence conviction, and the felony element is clearly predicated on section 12 — 4(b)(1).

The State, however, relying on People v. Ross (1981), 100 Ill. App. 3d 1033, 427 N.E.2d 955, contends that the conviction should stand (1) since the defendant was also convicted of aggravated batteries causing great bodily harm, permanent disability, and permanent disfigurement (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(a)), any of which could serve as the felony predicate of armed violence; and (2) because the verdict does not specify which aggravated battery count was relied on in the conviction of armed violence.

In Ross, the defendant was convicted of armed violence and two aggravated battery charges, using a deadly weapon and causing great bodily harm, in addition to armed violence. Because the jury failed to specify on which aggravated battery it relied in reaching the armed violence verdict, the court affirmed that conviction. Ross, however, is distinguishable in one important respect — the indictment in that case did not specify a particular form of aggravated battery as the underlying felony for armed violence. Therefore, the court was able to assume that the jury’s verdict was based on aggravated battery causing great bodily harm. In the present case, the indictment clearly specifies aggravated battery using a deadly weapon and is thus analogous to People v. Van Winkle (1981), 88 Ill. 2d 220, 221-22, 430 N.E.2d 987, 988, where the court noted:

“Although it would appear that the aggravated battery charge could have been based on section 12 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4(a)), the count of the information charging aggravated battery is based upon section 12 — 4(b)(1), and the count charging armed violence makes specific reference to section 12 — U(b)(l).” (Emphasis added.)

While the armed violence charge here could also have been based on section 12 — 4(a) (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(a)), it was based instead on section 12 — 4(b)(1).

The State further contends that the reference to section 12— 4(b)(1) in the armed violence count was unnecessary and, as mere surplusage, need not have been proved and may be disregarded. (People v. Rothermel (1982), 88 Ill. 2d 541, 431 N.E.2d 378.) It appears to us, however, that the reference to section 12 — 4(b)(1) in the indictment is not mere surplusage; instead, it supplies an element of the offense which must be included to comply with section 111 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111 — 3), which provides in relevant part:

“(a) A charge shall be in writing and allege the commission of an offense by:
* * *
(3) Setting forth the nature and elements of the offense charged ***.”

Absent the reference to section 12 — 4(b)(1), the indictment alleges battery (“caused bodily harm”), a misdemeanor; rather than aggravated battery, a felony. Since one element of armed violence is commission of a felony, the reference to section 12 — 4(b)(1) cannot be disregarded. This being so, the aggravating factor of being armed has been doubly enhanced, and the conviction and sentence for armed violence must be vacated.

We next consider the contention that defendant was deprived of a fair trial “where the State told a potential defense witness that he need not appear in court and then commented in closing on the defendant’s failure to call witnesses.” He argues that the absence of Mark Reed from the trial was procured by the State after he had been subpoenaed by defendant and that the failure of Reed to appear at trial and at the pretrial hearings prejudiced him at both levels.

The pretrial suppression hearings were held on September 16 and 24 and October 10, 1980, at which time Reed, although under subpoena by defendant, failed to appear. Defense counsel then notified Reed by letter that he was to appear for trial. On February 5, 1981, the first day of trial, Reed called the prosecutor and asked whether he had to appear. He was told that he was not required to respond to a letter, but that he should be present in court on Monday, February 9, the date defendant was expected to begin his case. It appears from the comments of defense counsel in his argument on the post-trial motion, that Reed did in fact appear on February 9 but was not called by defendant to testify. Furthermore, we find nothing in the record to indicate that the State had anything to do with the failure of Reed to be present at the pretrial hearings. We thus reject defendant’s contention that he was denied a fair trial by reason of any conduct of the State with reference to witness Reed.

We see no merit in the further argument of defendant that he was denied due process by the comments of the State during its rebuttal closing argument that the defense had failed to call Reed or any of the other persons who were with him at the theater to support his self-defense theory. It is improper for the State to comment on the defendant’s failure to call specific witnesses where there is no showing that they were unavailable to the State. (People v. Better (1979), 74 Ill. 2d 514, 386 N.E.2d 857.) However, the impropriety is waived where, as here, it is raised for the first time on appeal (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739), unless the improper comments are plainly a material factor in defendant’s conviction and substantially prejudice his right to a fair trial (People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590, cert. denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226).

In the instant case, we do not view the comments to constitute a material factor in defendant’s conviction, as we believe the evidence of an unprovoked attack on Farhan to be overwhelming. Defendant testified that Farhan lunged at him with a knife and, to protect himself, he stabbed Farhan. There was no testimony in support of this self-defense theory; whereas, a number of witnesses — Raiman, Warner, Farhan, Debra Farhan, and Robin Edwards — testified that Farhan had no knife and that defendant’s attack was unprovoked. Assistant State’s Attorney T iinn also testified that defendant told him he had stabbed Farhan, who was unarmed, and had hidden the knife in a large trash bin in the alley, where Officer Groth found it the next morning.

Defendant also contends that he was denied a fair trial because the State failed to reveal until the day before trial commenced that it possessed a second knife, found at the scene two days later. He argues that the failure of the State to inform him of the second knife in its answer to discovery prejudiced him by preventing an investigation which may have led to evidence supporting his self-defense theory.

Suppression by the prosecution of evidence favorable to and requested by the defendant violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) Although the Brady rule usually involves suppressed information discovered after trial, the late disclosure of such material in the midst of trial may also give rise to a violation of due process. (In re Hatfield (1979), 72 Ill. App. 3d 249, 390 N.E.2d 453.) To establish such a violation, the defendant must show (1) that the evidence was favorable to him (People v. Middleton (1976), 38 Ill. App. 3d 984, 350 N.E.2d 223); (2) that the prosecutor failed to disclose the evidence in response to a specific request (People v. Bivins (1981), 97 Ill. App. 3d 386, 422 N.E.2d 1044); and (3) that the evidence was material (People v. Hovanec (1979), 76 Ill. App. 3d 401, 394 N.E.2d 1340). In considering materiality, “the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.” United States v. Agurs (1976), 427 U.S. 97, 112-13, 49 L. Ed. 2d 342, 355, 96 S. Ct. 2392, 2402.

In the case before us, we initially note that there appears to have been no suppression of the second knife. While the record is incomplete as regards discovery, it does indicate that in advance of trial, defendant had received a police report which referred to the second knife. Defense counsel, in his argument on the post-trial motion, admitted receiving such a report in his comment as follows:

“[TJhough there was a discovery motion filed for tangible evidence early in the case and a renewal of that discovery motion filed, the State did not tender or have in court the second knife, though the report that was tendered by the State to Post did show a cross reference to this particular case as it related to the second knife.”

While the report was not made part of the record, from the above statement and other discussions between counsel in the record, it is clear that the report was tendered months before trial but that defendant made no request for the production of the second knife until February 3, 1981 — two days before trial commenced. The record also shows that the knife was in the courtroom on February 6 and was introduced into evidence by the defense. Thus, we see no prejudice to defendant by reason of its late production, particularly in view of the fact that the second knife was found two days after the occurrence by the theater janitor and the arresting officer testified that he searched the scene after the incident and found no second knife; that five witnesses, including Farhan, testified that he was not carrying a knife; and that defendant himself admitted, in his statement to the assistant State’s Attorney, that he had stabbed Farhan, who was unarmed.

We next consider whether the trial court erred in admitting portions of defendant’s oral confession which were not revealed in discovery. Defendant concedes that parts of his confession were disclosed and thus were admissible; but he contends that the portion of his statement testified to by Assistant State’s Attorney Linn, that Farhan was unarmed, contradicted his self-defense theory and, because it was disclosed for the first time at trial, it should not have been admitted.

On appeal, an issue is considered waived when a defendant failed either to make a timely objection at trial (People v. Ferguson (1981), 102 Ill. App. 3d 702, 429 N.E.2d 1321) or to raise the issue in a post-trial motion (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6). In the present case, there was no objection to the testimony concerning defendant’s oral confession to Linn which included the admission that Farhan was unarmed, and as the issue was not properly raised in his post-trial motion, we find that the issue has been waived.

We are not persuaded that the plain-error exception (Ill. Rev. Stat. 1979, ch. 110A, par. 615(a)) is applicable, since it does not appear from the record that an error affecting substantial rights was committed. (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.) As stated above, the evidence of defendant’s guilt is overwhelming. Five other persons, in addition to Linn, gave testimony that Farhan was unarmed when defendant attacked him, with the only contrary testimony being that of defendant. Under such circumstances, it appears to us that the jurors’ verdict would not have been otherwise if the statement complained of had not been admitted. See People v. Ferguson (1981), 102 Ill. App. 3d 702, 429 N.E.2d 1321.

Finally, we consider whether the defendant’s four convictions for aggravated battery should have been merged into a single conviction for that offense. Defendant contends that because the acts involved were identical, directed against a single victim, and occurred in rapid succession, they could give rise to only one aggravated battery conviction.

The general rules on the merger of offenses are set forth in the often-cited language of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45.)

While many decisions dealing with multiple convictions quote this language, the results are far from uniform.

In People v. Mays (1980), 81 Ill. App. 3d 1090, 401 N.E.2d 1159, the defendant shot at his victim five times in the space of 30 to 60 seconds, inflicting three wounds. That defendant was convicted of aggravated battery causing great bodily harm, aggravated battery causing permanent disability, and aggravated battery using a deadly weapon. Because the offenses were based on separate acts, pulling the trigger three separate times, and each offense charged required proof of a different element, the court upheld the multiple convictions.

An opposite conclusion was reached in People v. Davis (1981), 100 Ill. App. 3d 268, 426 N.E.2d 1047, where defendant was convicted of aggravated battery and attempted murder when he shot twice at his victim, wounding him in the face and arm. The court held that the two shots constituted parts of the same physical act and vacated the aggravated battery conviction as a lesser included offense.

While the cases are not easily distinguishable, consideration in terms of the rules set forth in People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, will aid in determining which of the divergent analyses is applicable to the present case. The first rule in King is that prejudice to the defendant results when more than one offense is carved from the same physical act. “Act” is defined as “any overt or outward manifestation which will support a different offense.” (66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45.) The cases are seemingly indistinguishable on this point, since the same acts which were found to be separate acts in People v. Mays (1980), 81 Ill. App. 3d 1090, 401 N.E.2d 1159, were found to be part of the same physical act in People v. Davis (1981), 100 Ill. App. 3d 268, 426 N.E.2d 1047. Yet, these cases can be harmonized, for the second rule of King is that there can be no multiple convictions for multiple acts “when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses.” (66 Ill. 2d 551, 566, 363 N.E.2d 838, 844.) Davis is more properly characterized as falling under this rule, since the two acts of shooting were not, in reality, “one act”; instead, the aggravated battery charge (shooting the victim in the arm and cheek) was a lesser included offense of the attempted murder charge (attempting to kill the victim by shooting him). In Mays, on the other hand, the victim was convicted of three counts of aggravated battery, none of which were lesser included offenses. Thus, the third rule in King was applicable:

“Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts.” 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844.

Under the foregoing analysis, the present case is analogous to the situation in Mays. There were four distinct acts of stabbing, and four distinct offenses were charged, each requiring proof of a different element — aggravated battery using a deadly weapon, aggravated battery causing great bodily harm, aggravated battery causing permanent disability, and aggravated battery causing permanent disfigurement. Since these four offenses arose from a series of closely related acts, and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences were properly entered. People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.

For the reasons stated, we vacate the conviction and sentence for armed violence, but the aggravated battery convictions and sentences thereon are affirmed.

Affirmed in part, vacated in part.

LORENZ and WILSON, JJ., concur.

       Apparently because defendant and his companions had done some exterior cleaning for which they were admitted to the theater without charge through a side door.


text:
    ALDEN R. BURGDORFF, Plaintiff-Appellant, v. DR. EDIR B. SIQUEIRA, Defendant-Appellee.
    First District (5th Division)
    No. 81—2541
    Opinion filed September 17, 1982.

      Edward L. Osowski, of Chicago, for appellant.
    French, Rogers, Kezelis & Kominiarek, P. C., of Chicago (Richard G. French, Michael C. Kominiarek, and Michael J. Hennig, of counsel), for appellee.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

In this medical malpractice action, plaintiff appeals from separate orders granting defendant’s motion for summary judgment and denying his motion to amend the complaint. Plaintiff’s two-count complaint, filed October 28, 1977, was based upon negligence and wilful and wanton misconduct and sought the recovery of his economic loss alleging in substance that on July 2, 1973, while he was a patient of defendant, he was wrongfully advised to seek early retirement because his prognosis for work was poor, when in fact defendant believed there was nothing wrong with him at that time. The trial court granted defendant’s motion for summary judgment on the basis that the action was barred by the 4-year statute of limitations (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), and the court subsequently denied plaintiff’s combination motion for rehearing and for leave to amend his complaint on its face to allege February 14, 1977, as the discovery date upon which he became aware of the malpractice.

We first address plaintiff’s contention that the 4-year period provided for in section 21.1 of the medical malpractice statute of limitations (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) is inapplicable to the cause of action stated in count I, and that section 15 of that statute (Ill. Rev. Stat. 1977, ch. 83, par. 16) should govern, because count I (a) sought only economic loss, which is outside the scope of section 21.1 and (b) alleged a breach of fiduciary duty which is not an action “arising out of patient care” within the meaning of that phrase in section 21.1.

Section 21.1 provides in relevant part:

“No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.”

Section 15, in pertinent part, provides as follows:

“[Ajctions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.”

The meaning attached to a statutory provision is derived from the language of the statute as well as from its general purpose (Chastek v. Anderson (1981), 83 Ill. 2d 502, 416 N.E.2d 247), and we believe it clear that section 21.1 applies to all medical malpractice actions brought against a physician or hospital arising out of patient care based upon its plain language that the limitation period encompasses actions for damages for injury “whether based upon tort, or breach of contract, or otherwise.” (Emphasis added.) See also Anderson v. Wagner (1979), 79 Ill. 2d 295, 307, 402 N.E.2d 560, 565, appeal dismissed sub nom. (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54.

It appears to us that the general purpose of the medical malpractice statute of limitations was to respond to an insurance crisis by seeking to reduce the cost of malpractice insurance and to assure the availability of such insurance to health care providers. (Anderson v. Wagner; Third Reading of a Bill for an Act in Relation to the Regulation of Medical Practices: Hearings on H.B. 3957 before the Full House, 79th G.A., House Debates, at 16 et seq. (June 11, 1976).) As part of the legislative response, changes were made in the limitation statute providing constraints on the bringing of claims — among them the promulgation of section 21.1. Thus, when that section is considered in the light of the statutory purpose, legislative intent would be frustrated if the statute were to include some malpractice actions but were to exclude others. We note also that plaintiff has cited no relevant authority, nor have we found any, to support his position that section 21.1 is not applicable to actions for economic loss.

We also see no merit in plaintiffs assertion that section 21.1 is not applicable here for the further reason that this was not an action “arising out of patient care.” The complaint itself alleges that plaintiff was a paying patient of defendant for the treatment of certain symptoms and conditions; that he entrusted himself to the care and medical advice of defendant; that it was incumbent upon defendant, who was a fiduciary, to take precautions concerning the advice given him; that defendant, after assuming his care and treatment, wrongfully informed him that his prognosis for work was poor and advised that he seek early retirement; that he was not advised by defendant of the latter’s belief that his symptoms were psychological; and that defendant failed to refer him to a psychologist or psychiatrist. We think it clear that those allegations set forth an action “arising out of patient care” and that section 21.1 is applicable rather than section 15 — which is directed to civil actions not otherwise provided for.

We turn then to plaintiff’s contention that the trial court improperly denied his motion to amend the complaint. The grant or denial of an amendment to a pleading is within the discretion of the trial court and will not be disturbed on review absent an abuse of discretion (Cvengros v. Liquid Carbonic Corp. (1981), 99 Ill. App. 3d 376, 425 N.E.2d 1050), and it is not an abuse of discretion to deny a motion to amend if the proposed amendment will not cure the defect in the pleading (Cvengros v. Liquid Carbonic Corp.; Kittay v. Allstate Insurance Co. (1979), 78 Ill. App. 3d 335, 397 N.E.2d 200).

After entering summary judgment for defendant here, the trial court denied plaintiff leave to amend his complaint on its face to allege February 14, 1977, as the date of his discovery of the medical malpractice. We note, however, that regardless of the discovery date, under section 21.1 no action may be brought for injury or death “more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” While plaintiff here would have us believe that the 4-year limitation period did not begin to run until February 14, 1974, when he allegedly first experienced economic loss, the statute speaks in terms of the date on which the act that caused the injury occurred — which, as stated in plaintiff’s complaint, was July 2, 1973. Thus, plaintiff’s proposed amendment would not have cured the defect in the complaint.

Plaintiff also posits that section 21.1 and its application here is a denial of due process. We reject this argument, however, in view of Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560, appeal dismissed sub nom. (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54, where it was held that the application of the 4-year maximum limitation period did not violate due process, with the court reasoning as follows:

“[T]he reasonableness of the statute must be judged in light of the circumstances confronting the legislature and the end which it sought to accomplish. We have noted above that various reports, commissions, and authors recommended that the ‘long tail’ exposure to malpractice claims brought about by the discovery rule be curtailed by placing an outer time limit within which a malpractice action must be commenced. The 4-year limit of our present statute follows the recommendations of the Medical Injury Reparations Commission contained in its report to the Governor and the 79th General Assembly cited above. This recommendation was made following extensive hearings by the Commission. Our 4-year time limit is also within the general area of limits that had been set by other States. Some are shorter than ours, and some are longer. It has not been demonstrated that the legislative action in establishing the 4-year outer limit within which to file a complaint for medical malpractice is unreasonable. We thus find no due process violation.” (79 Ill. 2d 295, 312, 402 N.E.2d 560, 568.)

See also Isaacs v. Michael Reese Hospital & Medical Center (1981), 101 Ill. App. 3d 876, 428 N.E.2d 941; Bebee v. Fields (1979), 79 Ill. App. 3d 1009, 398 N.E.2d 1214.

Finally, plaintiff suggests that a statutory limitation period may not be constitutionally shortened by a subsequent limitation period when the statue does not provide for retroactive application. We disagree.

Generally, an amendment which relates only to remedies or procedure will be given retroactive application (People v. Theo (1971), 133 Ill. App. 2d 684, 273 N.E.2d 498) except where a procedural rule destroys a substantive right (Hogan v. Bleeker (1963), 29 Ill. 2d 181, 193 N.E.2d 844). Thus, an amendment shortening the limitation period will not be applied retroactively so as to terminate an action filed within the limitation period prior to the effective date of the amendment (Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211), but it may be applied retroactively so as to terminate a cause of action where the party bringing the action has a reasonable amount of time to file his claim between the effective date of the amendment and the date on which the preexisting cause of action would be barred under the new statute (Anderson v. Wagner; Hupp v. Gray; Jones v. Brill (1981), 97 Ill. App. 3d 943, 423 N.E.2d 930).

Here, application of the 1976 amendment allowed plaintiff over nine months between its effective date — September 19, 1976 — and July 2, 1977 — the date on which the 4-year limitation period would run under the new act — to file the malpractice action. On the basis of Anderson v. Wagner, where an 8-month period for filing a medical malpractice suit was held to be reasonable, and Nergenah v. Norfolk & Western Ry. Co. (1980), 81 Ill. App. 3d 866, 401 N.E.2d 1154, where a 71/2-month period after the effective date of an amendment to a limitation statute governing actions for loss of consortium was reasonable, we find that plaintiff had a reasonable amount of time after the amendments’ effective date within which to file his action and thus that there was no due process violation in a retroactive application of this statute.

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

Affirmed.

MEJDA and WILSON, JJ., concur.


author: PRESIDING JUSTICE CAMPBELL

text:
    CHARLES A. GETTO, Plaintiff-Appellee, v. THE CITY OF CHICAGO et al., Defendants.—(Commonwealth Edison Company, Defendant-Appellant.)
    First District (1st Division)
    No. 81—1792
    Opinion filed September 20, 1982.

      Richard G. Ferguson, Laurence D. Lasky, and Paul W. Schroeder, all of Isham, Lincoln & Beale, of Chicago, for appellant.
    Sidney Z. Karasik and Leonard E. Handmacher, both of Chicago, for appellee.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Commonwealth Edison, brings this interlocutory appeal from an order of the circuit court of Cook County which required defendant to remit to a court-appointed trustee pendente lite the estimated amount of alleged municipal utility tax overcharges which plaintiff and class members claim were unlawfully assessed and collected by defendant. On appeal, defendant raises the following issues: (1) whether the court’s order requiring defendant to “turn-over” to a trustee the estimated amount of alleged municipal utility tax overcharges is permissible under Illinois law; and (2) whether the court’s “turn-over” order deprived defendant of its property without due process of law.

This action is a class action which plaintiff, Charles A. Getto, has brought against the City of Chicago and Commonwealth Edison which provides electricity to residents of the City. In addition to this action, plaintiff also brought a similar suit against the City and Illinois Bell Telephone Company. The action involving Illinois Bell has been before the Illinois Supreme Court twice on interlocutory appeals. (Getto v. City of Chicago (1979), 77 Ill. 2d 346, 396 N.E.2d 544 (Getto I); Getto v. City of Chicago (1981), 86 Ill. 2d 39, 426 N.E.2d 844, cert denied (1982), 456 U.S. 946, 72 L. Ed. 2d 468, 102 S. Ct. 2012 (Getto II).) This court dismissed an interlocutory appeal brought by non-Cook County municipalities and public utilities which were named as defendants in amendments to the complaint involved in the instant action, but which are not parties to the present appeal. Getto v. City of Chicago (1981), 92 Ill. App. 3d 1045, 416 N.E.2d 1110.

In December 1978, plaintiff “individually and on behalf of all persons similarly situated” filed this action against the City of Chicago and Commonwealth Edison (Edison) in which plaintiff challenged the method utilized by defendants in calculating the City’s municipal utility tax (MUT). Pursuant to section 8 — 11—2(3) of the Illinois Municipal Code, a municipality may tax “[pjersons engaged in the business of distributing, supplying, furnishing, or selling electricity for use or consumption within the corporate limits of the municipality, and not for resale, at a rate not to exceed 5% of the gross receipts therefrom.” (Ill. Rev. Stat. 1975, ch. 24, par. 8 — 11—2(3).) Pursuant to this statute, the City imposed a 4% tax upon the gross receipts of Edison. (City of Chicago Municipal Code, section 132 — 16 et seq.) Section 36(a) of the Public Utilities Act authorized Edison to charge its customers “an amount equal to such municipal tax *** [and] 3% of such tax *** to cover costs of accounting.” (Ill. Rev. Stat. 1975, ch. 111⅔, par. 36(a).) Plaintiff alleged that the City and Edison included in their determination of Edison's gross receipts an amount which included the municipal tax itself and the 3% accounting charges authorized by section 36(a). The complaint alleged that the method used to determine the amount of the tax resulted in the imposition of an unlawful tax upon a tax. Plaintiff, for himself and the class members, sought, inter alia, a declaration that the portion of the MUT collected in excess of the gross receipts base be declared unlawful, an injunction prohibiting the collection of excess MUT and accounting charges by Edison, and a refund to Edison customers of the excess MUT accounting charges which were improperly assessed.

In March 1979, plaintiff requested the creation of a special protest fund into which Edison was to pay the MUT which it collected in excess of its gross receipts, together with the accounting charges attributable to the excess tax. In October 1979, the court ordered the creation of a special protest fund into which Edison was directed to pay all excessive taxes and charges which it collected from its customers. Edison made payments to this fund, which payments apparently consisted of amounts which Edison collected from its customers in the billing periods subsequent to the date of the court’s order. In June 1981, the court granted plaintiff’s motion for a “turn-over” order. This “turn-over” order directed Edison to pay into the special protest fund all monies collected by Edison from its City customers since December 12, 1968, as overcharges for the City’s MUT and for Edison’s accounting charge. According to Edison, this amount is approximately $8,000,000. It is from this “turn-over” order that Edison brings this interlocutory appeal pursuant to Supreme Court Rule 307(a). 73 Ill. 2d R. 307(a).

At the outset, we note that the Illinois Supreme Court in Getto II upheld a similar “turn-over” order entered against Illinois Bell. In discussing the “turn-over” order, the supreme court stated:

“Bell also argues that the circuit court erred in ordering Bell to turn over to the trustee all overcharges collected by it since July 18, 1967, which have not already been deposited by the city of Chicago in the special protest fund created by order of the circuit court. Bell argues that, since it has already remitted those tax monies to the city, this court should order that the city and not Bell is responsible for all excess payments, including those made beginning in July 1967. That obviously would be improper. No determination whatever has been made as to liability for overcharges. Since the plaintiffs paid excess charges directly to Bell, we consider that the court did not abuse discretion in ordering Bell to deposit the amounts of overcharges with the trustee, excepting those excess charges already deposited with the trustee by the city pursuant to the court’s order. This order did not represent any determination of liability by the circuit court.” (86 Ill. 2d 39, 55, 426 N.E.2d 844, 852, cert. denied (1982), 456 U.S. 946, 72 L. Ed. 2d 468, 102 S. Ct. 2012.)

Edison argues that the instant case is distinguishable from the Illinois Bell action because of numerous factual issues which are unique to this cause and, therefore, Getto II is not dispositive of the present appeal. Edison urges that the trial court’s order cannot stand as a final judgment on the merits, that the order cannot be upheld as a valid prejudgment attachment of Edison’s property and that the order cannot be upheld as a valid exercise of the court’s equitable jurisdiction. Edison maintains that the supreme court in Getto II did not consider the trial court’s authority to enter the “turn-over” order, nor did it consider whether the order was permissible under the due process clause. Edison also contends that Illinois Bell, more or less, acquiesced to the entry of a “turn-over” order against it.

Edison has advanced numerous arguments in its attempt to vacate the “turn-over” order. In addition, both parties have called our attention to the fact that Edison filed an amicus curiae brief in Getto II where it appears that similar arguments to those raised here were considered. We have considered the arguments raised by Edison in this case and do not feel that a detailed discussion would alter the outcome of this case in light of the language employed by the Illinois Supreme Court in Getto II. We are not persuaded by Edison’s attempts to distinguish the decision in Getto II and view Getto II to be controlling. We hold that the trial court did not abuse its discretion in entering the “turn-over” order against Edison.

Accordingly, the order of the circuit court of Cook County is affirmed and this cause is remanded for further proceedings.

Order affirmed; caused remanded.

McGLOON and GOLDBERG, JJ., concur.