author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DEROYSE TURNER, a/k/a Deroise Turner, Defendant-Appellee.
    First District (2nd Division)
    No. 80-1087
    Opinion filed March 30, 1982.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr and Adrienne Noble Nacev, Assistant State’s Attorneys, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, charged with one count of rape and one count of deviate sexual assault, was tried before a jury. During the State’s closing argument on rebuttal, the trial judge sua sponte declared a mistrial and thereafter dismissed the charges and discharged the defendant. The State appeals pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(a)(1)). The sole issue raised on appeal is whether the mistrial bars defendant’s reprosecution on double jeopardy grounds. We reverse and remand.

The complaining witness, her husband, the arresting officers, the investigating officers and an assistant state’s attorney testified for the State. According to the alleged victim (victim) she was on her sister’s porch at 8 p.m. on July 13, 1978, with defendant, her sister, two friends, her nephew and two nieces. Everyone was drinking except the victim, who was on medication. Defendant offered to take the victim to the store to buy soft drinks and cigarettes, and she agreed. On the way, she assented to viewing a bar defendant was building in a basement apartment on South Homan Avenue. Once there, defendant asked the victim to have sex with him. She declined; he offered her money and tried to force money into her hands. She threw it on the table. She tried to leave, and defendant pushed her back, hit her below her eye, knocked her down, choked her, pulled her clothes off and forced her to perform vaginal and oral intercourse with him, without her consent and after she fought him. Defendant fell asleep, and she left the basement for her home, told her husband of the rape and called the police.

The police testified they found defendant asleep in the basement apartment, where they arrested him. At the 10th district police station, defendant agreed to relate to the police what had happened. According to testimony of a police investigator and the assistant State’s Attorney to whom he repeated his story, defendant stated he offered the victim $20 to have sex with him and she agreed. She had consumed two pints of whiskey while she was in the basement apartment. Defendant also said, “I’m a man. She’s a woman. That’s what women are for.” Following this testimony, defense counsel moved for a mistrial on the ground that the defense was not informed of this statement on discovery. The trial court reversed its ruling until the close of the State’s case, but no such ruling was in fact made.

Defendant testified on his own behalf that on the night in question he joined the victim and several other people on a porch at 8:45 p.m. She was drinking and smoking marijuana. He talked with her for 1M hours, gave her $5 to purchase drinks and gave another man $5 for marijuana at her suggestion. She asked defendant for more liquor, and he told her he would give her liquor in the recreation room at a S. Homan address as well as $20 if she would have sexual intercourse with him. Her sister agreed to watch her children, and they left for the basement on Homan. She did not ask defendant to take her to the store. After drinking for 1% hours at the apartment, defendant gave the victim $20 which she accepted, and defendant had sexual intercourse and oral sex with her without objection and without force. He denied he struck or pushed her; however, he stated she fell and hurt her hip at the apartment. After defendant testified, the defense rested.

The assistant State’s Attorney indicated that the State anticipated calling in rebuttal an individual who was on the porch on the evening in question, who would testify that he did not see the victim drinking and that she had said she was going to the store to buy “pop.” The court ruled that the proposed testimony was not proper rebuttal since it went to the issue of the consent defense which had been raised in the opening statement and was known to the prosecutor in advance, and did not allow the introduction of the testimony. The State thereafter rested.

During closing argument, defense counsel stated:

“Let’s start with the discussion on the porch. Who was on the porch when * * * [defendant] and * * * [the victim] were on the porch? [Her] 0 e 0 sister, * e ” [a friend] and [her] * * * two nieces and nephews.
Where is her sister, where are her nieces and nephews?
Where * * * are these people; why weren’t they on the [wjitness stand to corroborate her testimony?”

The court overruled the State’s objection that the argument was improper because the witnesses were equally available to both sides and because the argument was not supported by the record. Defense counsel continued to argue, in part:

“First, where are the witnesses that were on the porch?
State witnesses did not corroborate her testimony. They weren’t there during conversations with her. Other people were but they did not testify in this case, ” *

During the State’s rebuttal the following occurred:

“[Assistant State’s Attorney]: [Defense counsel] has taken a position about the State’s case stating we didn’t produce any witness who was on that porch aside from * * * [the victim]. Yesterday in Court there was a man named Ricky Childress in Court all day waiting to testify and was prevented from testifying.
[Defense Counsel]: Oh, your Honor—
[The Court]: The Court will declare a mistrial.
[Defense Counsel]: Thank you, Judge. I’d ask that a rule be—
[The Court]: That is for a later point in time.”

The trial court then excused the jury. Defense counsel moved for a mistrial, and the court granted the motion. Defense counsel then made a motion requesting the court to discharge defendant on the ground that jeopardy had attached because the mistrial was based on prosecutorial misconduct. The trial court dismissed the charges, and discharged defendant on double jeopardy grounds. This appeal followed.

Defendant has not filed an appellee’s brief. Nevertheless, this court elects to consider the merits of the State’s appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493; People v. Fraser (1978), 62 Ill. App. 3d 142, 379 N.E.2d 10; People v. Nolan (1978), 59 Ill. App. 3d 177, 375 N.E.2d 445.

The State argues that the trial court’s declaration of a mistrial should not be a bar to reprosecution of defendant because (1) the prosecutor did not engage in “overreaching” and (2) defendant consented to the mistrial.

Retrial of a case is not barred, provided, in the scrupulous exercise of discretion, the trial court properly found a “manifest necessity” for the mistrial. (United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547; People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496.) Manifest necessity exists where; “due to circumstances beyond the control of the parties and the court, it becomes no longer possible to conduct the trial, or * 0 “to reach a fair result based upon the evidence.” (People v. Pendleton (1979), 75 Ill. App. 3d 580, 591-92.) Manifest necessity has been found where prosecutorial or judicial error has been committed, as where the government makes improper remarks, engages in improper questioning, or refers to another case pending against defendant. Where manifest necessity or defendant’s motion for retrial is attributable not to error, but to prosecutorial or judicial “overreaching,” retrial is forbidden. “Overreaching” is defined as misconduct designed to provoke a mistrial to secure a more favorable opportunity to convict the defendant in a later trial, or motivated by bad faith or undertaken to harass the defendant. People v. Pendleton (1979), 75 Ill. App. 3d 580, 593. See also United States v. Dinitz (1976), 424 U.S. 600, 47 L. Ed. 2d 267, 96 S. Ct. 1075; People v. Estrada (1980), 91 Ill. App. 3d 228, 236, 414 N.E.2d 512, cert. denied (1981), 83 Ill. 2d 571.

The trial court in the instant case filed a memorandum of opinion setting forth its reasons for granting the mistrial, which is indicative of the scrupulous exercise of discretion on its part. The conduct which led to the mistrial was the prosecutor’s rebuttal statement, arguably made in response to defendant’s closing argument. See People v. Vriner (1978), 74 Ill. 2d 329, 344, 385 N.E.2d 671, 677, and People v. Izzo (1958), 14 Ill. 2d 203, 214, 151 N.E.2d 329, which upheld otherwise improper prosecutorial argument as invited by the defendant.

It appears that the defense first alluded to alleged witnesses named by the victim, but later simply referred to “witnesses who were on the porch.” The prosecutor clearly erred in asserting that he had a witness ready to testify but was prevented from doing so; however, that argument did not rise to the level of “overreaching” for several reasons. First, it is evident that the prosecutor was fully prepared to defend his argument with legal authorities. Second, there was no basis upon which to consider his comment as a deliberate attempt to secure a mistrial. The State’s case was not going so poorly as to encourage the prosecutor to attempt to secure a new trial: although the State’s rebuttal witness was not allowed to testify, the victim’s testimony was corroborated by testimony of police officers and the assistant state’s attorney to the effect that a $20 bill was found on the table of the basement apartment where the incident occurred; she had bruises on her face and body where she stated defendant had struck her; and there was no evidence that she had been drinking.

Consideration of the above-described conduct of the prosecutor in the instant case, and that of the prosecutors in People v. Pendleton, and People v. Gomez (1980), 84 Ill. App. 3d 785, 406 N.E.2d 886, serves to illustrate what is meant by “overreaching.” In Pendleton, the court found the prosecutor had engaged in overreaching where he had coached a witness during a trial recess while she was in the midst of testifying, where the trial had been going badly for the State. The court held such conduct was motivated by bad faith, in that it resulted from a fear that defendant would be acquitted based upon the witness’ initial testimony. In Gomez, reprosecution was not barred on double jeopardy grounds by the prosecutor’s overemphasis of defendant’s post-arrest silence, where there was no evidence the prosecutor had acted in bad faith with intent to provoke a mistrial to avoid acquittal in order to reprosecute the defendant.

From the foregoing, it appears that the declaration of a mistrial was correct. The trial court’s ruling dismissing the charges and discharging defendant, however, was erroneous and must be reversed and remanded for a new trial. In view of our disposition of this issue, we need not consider the issue of defendant’s consent to the mistrial.

Reversed and remanded.

STAMOS, P. J., and PERLIN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH COTY, Defendant-Appellant.
    First District (2nd Division)
    No. 80-1249
    Opinion filed March 30, 1982.
    James J. Doherty, Public Defender, of Chicago (Karen A. Popek, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and James B. Koch, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant appeals his conviction by a jury of aggravated battery. He raises as issues whether: the court improperly considered a prior conviction of defendant’s, subsequently reversed, in determining defendant’s sentence; defendant was improperly impeached by a subsequently reversed conviction; and the trial court erred in restricting defendant’s cross-examination of the complaining witness and her mother.

On October 19, 1979, defendant was arrested and charged with aggravated battery of Rowena Green, his girlfriend for the previous 3 years and the mother of their 1-year-old son. Evidence was produced by the State which revealed, beyond a reasonable doubt, that a confrontation took place between defendant and Rowena with respect to whether they were to continue their relationship or not, Rowena claiming that she advised him that she did not want to see him again, which culminated in his having struck her numerous times in the face with his fists, knocked her to the ground and kicked her. The beating lasted from 3 to 5 minutes. Rowena, who was taken to a hospital where she was treated by a physician, sustained injuries which, by stipulation, were described as having included: a swollen right eye which she was unable to open, cuts above and below the eye, a cerebral concussion, and bruises of her face and hands.

Defendant’s evidence sought to place the cause of the argument upon Rowena’s refusal to allow him to search for and remove his belongings from her home. The injuries, defendant claimed, resulted from her having fallen against a door and a stove during a struggle over his clothing indoors, and at a later altercation outside. He claimed that he received burns from Rowena’s having thrown a pot of hot water at him; however, no burn markings were apparent to a doctor who later examined him at the hospital.

After the defense rested, the State in rebuttal was permitted to have admitted into evidence, over defendant’s objection on the basis of their prejudicial effect, the certified statements of two prior convictions of defendant. The first conviction was a plea of guilty to robbery on May 12, 1977, for which defendant was sentenced to 3 years’ probation, with the first 30 days to be served in the Cook County jail. The second conviction was a finding of guilty of theft in a bench trial on April 20,1979, for which defendant was sentenced to a term of 2 years. In its closing argument, the State made references to defendant’s prior convictions. After deliberation, the jury found defendant guilty of aggravated battery.

At the subsequent sentencing hearing, the court denied defendant’s motion for a new trial. Arguments in aggravation and mitigation were presented. The court, specifically noting that defendant had been to the penitentiary and had not been rehabilitated, sentenced defendant to a term of 4 years.

At the time of defendant’s trial and sentencing hearing in the instant case, April 8, 9, and 23,1980, there was pending in the Appellate Court of Illinois an appeal of the defendant’s 1979 conviction for theft, which had been admitted at trial. Notice of appeal of that conviction had been filed on May 4, 1979. The State confessed error in that appeal noting that defendant had been indicted for robbery but had been convicted of theft, which a recent case held could not be considered a lesser included offense. (People v. Kimble (1980), 90 Ill. App. 3d 999, 414 N.E.2d 135.) On December 1, 1981, defendant’s 1979 conviction was reversed and the indictment dismissed by an unpublished administrative order.

I

Defendant first argues that this cause should be remanded for a new sentencing hearing since his 1979 conviction, which has since been reversed, was cited by the State during the sentencing hearing, and taken into consideration by the trial court in determining the sentence to be imposed. A defendant is entitled to a new sentencing hearing where, as here, a trial court, in imposing sentence, considered a conviction which was subsequently reversed, even where the sentence imposed may have been otherwise warranted. (People v. Henderson (1981), 95 Ill. App. 3d 291, 419 N.E.2d 1262; People v. Beyah (1979), 72 Ill. App. 3d 690, 391 N.E.2d 96; People v. Buckley (1977), 44 Ill. App. 3d 1038, 358 N.E.2d 1327.) Accordingly, defendant’s sentence must be vacated and a new sentencing hearing convened.

II

Defendant next argues that the court erred in allowing impeachment of defendant by admission of a prior conviction which was then on appeal and has been subsequently reversed. Defendant recognizes the general rule that a prior conviction is admissible for impeachment purposes despite the pendency of its appeal (People v. Rey (1969), 42 Ill. 2d 139, 246 N.E.2d 287), but argues that the rule does not apply to a subsequently reversed conviction. He states that although in People v. Barney (1967), 89 Ill. App. 2d 180, 232 N.E.2d 481, the reviewing court approved the use of a prior conviction for impeachment which was on appeal at trial but subsequently reversed, the court there simply applied the general rule and did not specifically consider the fact that the conviction was reversed after trial. The appellate court in People v. Miller (1975), 27 Ill. App. 3d 788, 327 N.E.2d 253, also held proper the admission of a conviction which was reversed subsequent to trial. There the impeaching conviction was reversed and remanded for a new trial because of the admission of evidence which was illegally seized. We find no basis upon which to reverse under the foregoing authorities. Significantly, defendant here made reference during direct examination to his having been out on a work-release program during the occurrence of the incident for which he was on trial. His participation in that program was a result of the reversed conviction. This reference was made before the defense moved to prevent admission of his conviction. Therefore, any damage done to defendant’s credibility was initiated by defendant himself.

Ill

Defendant next argues that the court improperly restricted his cross-examination of Rowena and her mother. During defense counsel’s cross-examination of both Rowena Green and her mother, Gloria Green, sidebar discussions were held in regard to the State’s objection to any questions by defense counsel relevant to Rowena’s reluctance to testify and her motive for testifying. Specifically, defense counsel sought to ask Rowena whether she had told defense counsel prior to trial that she did not wish to testify against defendant. Defense counsel added that “there may be a question” as to whether her mother had told her that she would be thrown out of her mother’s home if she did not testify against Joseph Coty. Defense counsel sought to question both Rowena and her mother accordingly. The trial court sustained the State’s objection in each case, noting that had defendant sought to elicit testimony showing that Rowena was coerced into testifying falsely against defendant, such cross-examination would have been relevant and would have been allowed. Generally, “ ‘the latitude to be allowed in cross-examination of witnesses rests largely in the discretion of the trial court. ” ” e and it is only in a case of clear abuse of such discretion, resulting in manifest prejudice to the defendant, that a reviewing court will interfere.’ ” (People v. Peter (1973), 55 Ill. 2d 443, 451-52, 303 N.E.2d 398.) Although, in the instant proceedings, cross-examination regarding Rowena’s mother’s influence upon Rowena’s decision to testify at all could have possibly led to evidence of bias, defense counsel declined to pursue directly the question of whether the mother forced Rowena to testify falsely or “to say certain things,” as the trial court suggested, although ample opportunity was afforded counsel in some 50 pages of transcript covering cross-examination of both Rowena and her mother. In such circumstances, we find no clear abuse of the trial court’s discretion. People v. Peter; People v. Hinson (1979), 70 Ill. App. 3d 880, 888, 388 N.E.2d 899.

For the foregoing reasons, we cannot disturb the jury’s conviction of defendant for aggravated battery, and the same will be affirmed. We must vacate the sentence imposed, however, and remand for a new sentencing hearing.

Affirmed and remanded.

DOWNING and PERLIN, JJ., concur.

       And see People v. Montgomery (1971), 47 Ill. 2d 510, 517, 268 N.E.2d 695, which adopted Proposed Rule 609(e) of the Federal Rules of Evidence, which provided that the fact that a conviction is on appeal is not a factor which affects its admissibility.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE L. SIMMONS, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2205
    Opinion filed March 30, 1982.

      George P. Lynch, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was found guilty of theft in a jury trial on evidence that he falsely reported to his insurance company the theft from his car of a radio-telephone for which he received $1,400 from the insurance company. He was sentenced to 2 to 6 years imprisonment. He raises as issues whether or not: the indictment was vague and duplicitous; the State adduced evidence outside the bill of particulars; the jury should have been instructed on the lesser included offense of misdemeanor theft; the State’s closing argument was proper; and, there was prosecutorial misconduct before the grand jury. For the reasons which follow, we affirm.

Evidence was adduced at trial of the following events. Before September 1975, defendant purchased a radio-telephone unit and had it installed in his Excalibur automobile. He insured the automobile and radio-telephone unit with Aetna Casualty and Surety Company (Aetna). On September 2, 1975, the day insurance coverage expired, defendant reported to the police that a burglary occurred in his garage, and that the car’s tires, wheels, removable trunk (containing the receiver-transmitter unit), radio and radio-telephone headset were taken. Defendant subsequently reported his loss to Aetna. The total claim came to $7,962.16 of which Aetna paid him $1,400 in February 1976 for the loss of his radiotelephone. In the summer of 1977 the radio-telephone he had reported stolen reappeared in his possession.

Defendant first contends that the court erred in failing to dismiss the indictment, which he alleges was unconstitutionally vague and duplicitous because the “first half” of each count of the four-count indictment alleges the elements of the offense of theft and ostensibly charges him thereof, whereas the “second half” appears to charge him with fraud on an insurance company. We disagree. Duplicity occurs when two or more offenses are charged in the same count, not from charging a single offense in more than one way or where different acts contribute to the same offense. (People v. Ross (1961), 21 Ill. 2d 419, 421, 173 N.E.2d 474; People v. Kent (1974), 18 Ill. App. 3d 357, 309 N.E.2d 715.) Here, the general allegations couched in the language of the statute, followed by a specific description of the purportedly unlawful acts, did not charge separate crimes of theft and fraud on an.insurance company as contended. Rather, the “second half” of each count described the acts contributing to the offense of theft charged in the “first half.” In People v. Sullivan (1961), 21 Ill. 2d 232, 171 N.E.2d 623, cited by defendant, the indictment was vague, indefinite, duplicitous, confusing and incomprehensible. Whether the allegations charged defendant with additional offenses or were related to one single offense could not be determined. No such circumstances exist in the indictment at issue here.

Defendant next claims that the court improperly allowed the State to introduce evidence which went beyond the scope of its original and amended bills of particulars, which stated that the occurrence described in the indictment was a continuing offense beginning on or about September 1975 and culminating in February 1976. Defendant objects to evidence which was introduced of events occurring in 1977 and 1978, e.g., evidence that defendant gave the radio-telephone, which he had reported stolen, to his former employer, who in turn left it in a repair shop. Although defendant’s motion for a bill of particulars is not included in the record on appeal, the trial court at one point commented that it requested information as to when the crime occurred and its location. Thus, defendant apparently did not request the dates of all events of which evidence was to be adduced at trial.

Evidence concerning events which occurred in 1977 and 1978 was properly received because it was introduced to prove that defendant had committed a crime within the period specified in the bills of particulars. A bill of particulars which specifies that an offense took place at a particular time does not preclude the introduction of evidence of events leading up to or after the offense; moreover, even a variance between the date of the crime specified therein and the date as proved at trial need not constitute reversible error, unless the date is an essential ingredient of the crime or relates to the running of the statute of limitations. (See People v. Custer (1972), 11 Ill. App. 3d 249, 296 N.E.2d 753; People v. Simental (1973), 11 Ill. App. 3d 537, 297 N.E.2d 356.) McDonald v. People (1888), 126 Ill. 150, 162, 18 N.E. 817, cited by defendant, is distinguishable from the case at bar since there evidence introduced at trial related to events entirely independent of the offense charged. The surprise claimed by defendant through introduction of the 1977 and 1978 events is unfounded since the State’s answer to discovery revealed that information more than one year before trial.

Defendant next contends the court erred in failing to instruct the jury on the lesser included offense of misdemeanor theft. He argues there was evidence from which the jury could have concluded that the less expensive unit of the radio-telephone, the telephone headset unit, rather than the more expensive transmitter-receiver, was fraudulently reported stolen. He relies upon the fact that only the telephone unit, and not the transmitter-receiver, was admitted into evidence, and that documents in evidence by which the transmitter-receiver was traced through its serial number were proved to have been forged.

An instruction on a lesser included offense should only be given when the evidence permits a finding of not guilty on the greater offense but guilty on the included offense. (People v. Balls (1981), 95 Ill. App. 3d 70, 74-75, 419 N.E.2d 571; People v. Bembroy (1972), 4 Ill. App. 3d 522, 281 N.E.2d 389.) In the present case, most of the evidence adduced related to the theft of the transmitter-receiver; there was insufficient evidence to sustain a conviction of theft of the headset alone. For example, the transmitter-receiver can be traced from defendant’s original possession of it, to his later possession of it after he had reported it stolen, through its serial number, decoder number, and nonstandard crystals. The only evidence adduced relating solely to the headset unit was a label of the unit’s old decoder number found on the headset in defendant’s possession identifying it as the one he had reported stolen, a number which could have been assigned to anyone after defendant relinquished it 3 years earlier. As to defendant’s assertion that documents containing the serial number of the radio-telephone were forged, the evidence shows more probably that they were altered to correct a miswriting and accurately depicted, as altered, the correct serial number.

Defendant claims prejudice in the argument of the prosecutor. Evidence has been presented at trial that during September and October of 1975, after the reported burglary, defendant’s car was inoperable. One witness, however, testified that during that period defendant drove to the witness’ place of business in the allegedly inoperable car and made an incriminating statement. During closing argument the prosecutor asserted that defendant could have restored his automobile to operating condition during September and October with money he had received immediately from Aetna in settlement of his claim relating to the burglarized automobile parts other than the transmitter-receiver unit. Defendant claims this argument was fatally misleading and inaccurate since there was testimony at trial that settlement for the claim to which the prosecutor referred did not occur until January 1976, and was made in parts rather than cash. Although there was testimony that settlement was made in January 1976, defendant primarily relies on an unauthenticated document never admitted into evidence for his assertion that he had received parts rather than cash. This document was unseasonably offered into evidence during jury deliberations. Nevertheless, an Aetna insurance agent testified that he had received a copy of the check sent to defendant for the wheels of his automobile, although he did not indicate on what date this occurred. The prosecutor’s comment thereby arguably constituted a reasonable inference from that testimony. (See People v. McTush (1978), 61 Ill. App. 3d 214, 218, 377 N.E.2d 1148.) Further, since this argument occurred only once, and the degree of its impropriety, if any, was minimal, its utterance was not a material factor in defendant’s conviction so as to require reversal. See People v. Evans (1979), 80 Ill. App. 3d 444, 458, 399 N.E.2d 1333; People v. Fort (1976), 44 Ill. App. 3d 62, 66, 357 N.E.2d 1365.

Finally, defendant argues he was prejudiced by prosecutorial misconduct before the grand jury. He has not included a transcript of the grand jury proceedings in the record on appeal ánd therefore has waived consideration of that issue. (People v. Edwards (1978), 74 Ill. 2d 1, 6-7,383 N.E.2d 944; People v. Vriner (1978), 74 Ill. 2d 329, 339, 385 N.E.2d 671.) Assuming there had been no waiver, defendant’s contention that the grand jury which returned the indictment had been used improperly as a “rubber stamp” because sworn assistant state’s attorneys read the transcript of previously dismissed grand jury proceedings to it, cannot be sustained. Such a procedure was approved in People v. Johnson (1981), 97 Ill. App. 3d 1055, 423 N.E.2d 1206. (Cf. People v. Curoe (1981), 97 Ill. App. 3d 258, 422 N.E.2d 931.) Further, we find no prejudice in the remarks made by one of the prosecutors of which defendant complains, to wit: “This is a reindictment of a previous indictment that was voted by another Grand Jury. The charge will be theft. I will outline it for you.” We fail to see how such an explanation rises to the level of prosecutorial misconduct. Nor do we find the State’s request for subpoenaes seeking bank records, which the prosecution ultimately failed to present to the grand jury, in and of itself constitutes an attempt to misuse the grand jury for discovery purposes. The State was required to prove receipt and use by defendant of the $1,400 check. Receipt, deposit or other use of these funds could have been proven by the State either by production of bank records, through testimony, or both ways. The fact that the State sought to be prepared to make its proof through records rather than through testimony, if necessary, is of no significant moment, particularly where, as here, no prejudice as to the selection of such an alternative has been shown or even suggested. No abuse of discovery has been demonstrated under the foregoing circumstances.

No basis has been shown for disturbing the jury verdict reached in this case and, accordingly, that finding and judgment entered thereon must be affirmed.

Affirmed.

DOWNING and PERLIN, JJ., concur.


text:
      In re MARRIAGE OF BARBARA EDELBERG, Petitioner-Appellee, and EDWIN EDELBERG, Respondent-Appellant.
    First District (2nd Division)
    No. 80-2557
    Opinion filed March 30, 1982.
    Rehearing denied May 3, 1982.

      Robert H. Hirsch, of Chicago, for appellant.
    Schiller & Du Canto, Ltd., of Chicago (Donald C. Schiller and Laurence M. Moon, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Respondent Edwin Edelberg (Edwin) appeals from an order in favor of petitioner Barbara Edelberg (Barbara) awarding her $17,500 for temporary attorney fees and an additional $12,500 in temporary costs. The issue raised on appeal is whether the trial court abused its discretion in entering the foregoing order. We affirm in part and remand for further proceedings.

The order appealed from was entered in a case which consolidated Edwin’s petition for dissolution of marriage and Barbara’s petition for temporary custody, child support, maintenance and attorney fees. As to the attorney fees, Barbara filed her own amended affidavit on May 27, 1980, stating that her attorney had to that point spent 110 hours in the instant matter, and anticipated spending an additional 200 hours therein; and seeking $25,000 on account of temporary attorney fees and $20,000 for costs.

A hearing regarding the temporary relief requested by Barbara commenced June 16, 1980, during which evidence was adduced regarding Edwin’s financial affairs, particularly those described in his personal financial statement of March 31, 1980, and in an affidavit submitted June 16, 1980, both of which were then introduced into evidence. Edwin’s personal financial statement showed an excess of assets over liabilities totaling $2,920,623. Among the assets included were investments made in approximately 20 partnerships formed in connection with land purchases. The liabilities included various loans and notes payable, which represented his share of money due in these partnerships.

In addition to real estate partnerships, Edwin was a partner in “business” partnerships, such as Edelberg, Mayer and Associates, Inc., and LaBoite a Musique International, Inc. (LaBoite), a retail business consisting of eight music box stores. Gross sales for LaBoite as of March 1980 amounted to $1,680,000.

Edwin drove a 1978 Cadillac, and one or another of his businesses paid for its fuel. The primary source of his funds was income from shopping centers, brokerage activities and buying and selling property. In 1978, he earned $783,000 in capital gains; he had not filed an income tax return since then. Edwin’s June 16, 1980, affidavit revealed a total cash flow between January 1980 and June 1980 of $324,384, which amount included, inter alia: interest and dividends; income from property; “returns” from LaBoite, savings, and Edelberg, Mayer and Associates; and reimbursed expenses. The affidavit also set forth disbursements for the same period totaling $338,804, including, inter alia: personal expenses, legal fees; interest on loans; partnership capital contributions; and, the aforementioned loan to LaBoite.

In closing argument, counsel for Barbara stated his firm had accumulated 200 hours in the instant case and expected to accumulate 100 to 150 hours just to complete discovery and go to trial. No evidence was then demanded, offered or received as to this issue.

The court ordered Edwin to pay $17,500 in temporary attorney fees and $12,500 temporary accountants’ costs incurred on Barbara’s behalf. Edwin’s petition for reconsideration was subsequently denied.

Edwin’s argument is twofold: (1) the court erred in ordering him, rather than Barbara, to pay her attorney fees and costs; and, (2) the fees awarded were unreasonable, unnecessary and unsupported in the record.

The allowance of temporary attorney fees, as with “final” attorney fees, rests in the sound discretion of the trial court. (Moore v. Moore (1977), 53 Ill. App. 3d 228, 233, 368 N.E.2d 545.) Such an award will not be disturbed absent a clear abuse of that discretion. (Canady v. Canady (1964), 30 Ill. 2d 440, 446, 197 N.E.2d 42.) The party seeking such an award must show financial inability to pay the fees, as well as the ability of the respondent spouse to pay them. (Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56; Frank v. Frank (1975), 34 Ill. App. 3d 957, 342 N.E.2d 404.) A party need not be destitute in order to be awarded attorney fees; inability to pay fees exists where disbursement of available funds would strip the party of his or her means of support. Donnelley v. Donnelley; Kaufman v. Kaufman (1974), 22 Ill. App. 3d 1045, 318 N.E.2d 282.

The evidence here shows that Barbara, 49 years old, had worked part-time for Edwin earning between $3 and $4 an hour, and had only $26,714 in assets, of which $10,350 was owned jointly with her son. In contrast, Edwin received $230,000 in capital gains and a $35,000 salary in 1979 and currently owned 15 to 20 parcels of land which were to be sold. His March 1980 financial statement revealed that his assets exceeded his liabilities by almost $3,000,000. Edwin insists that his assets were illiquid, and that he was without funds to satisfy his current obligations. Evidence in the record revealed, however, and the trial court properly could have concluded, that Edwin controlled the disbursements of his assets. For example, the amount of the “returns” from his various enterprises was in part dictated by his needs; certain debts were in fact satisfied by his businesses; he used funds from one venture to invest in others; and he could expect income from parcels of land to be sold in the future. Accordingly, we conclude that the trial court did not.abuse its discretion in requiring Edwin to pay the temporary attorney fees and costs incurred on behalf of Barbara. Canady v. Canady; In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 651, 420 N.E.2d 555.

As to Edwin’s contention that the amount of temporary attorney fees and costs granted was unreasonable, unnecessary, and unsupported in the record, it is well established that the amount of fees allowed depends upon the skill and standing of the attorneys employed, nature of the controversy, novelty and difficulty of the questions at issue, amount and importance of the subject matter, time and labor required, usual and customary charge in the community, and benefit resulting to the client. (In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 411 N.E.2d 947; Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 373 N.E.2d 576.) Of these the time factor is usually accorded greater weight than any other. Flynn v. Kucharski (1974), 59 Ill. 2d 61, 319 N.E.2d 1; Welsh v. Welsh (1976), 38 Ill. App. 3d 35, 347 N.E.2d 512.

Edwin maintained, during a hearing seeking reconsideration of the award, inter alia, that no testimony or other evidence was submitted by Barbara’s attorney relating to the attorney fees allowed. At this point the trial court should have required evidence to be adduced indicating the number of hours spent on the case, quantified as to in-court and out-of-court time, and as to what services were performed and by whom, i.e., partners, associates or law clerks. The court in In re Marriage of Jacobson noted that general statements in the record regarding the number of court appearances made was insufficient to establish a basis for an award of attorney fees. See also In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304, 411 N.E.2d 988, wherein fees charged for in-court time were deemed excessive where time was largely spent on routine motions; Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56, in which the court, in reducing the amount of fees awarded, took into consideration the absence of evidence in the record as to whether services were performed by partners, associates or law clerks and that, although substantial assets were involved, no novel questions of law were raised. See also Moreau v. Moreau (1973), 9 Ill. App. 3d 1008, 293 N.E.2d 680.

In the present case, neither the skill of Barbara’s attorney nor the complexity of Edwin’s financial affairs is necessarily challenged in this review. General statements made in the record as to hours spent by Barbara’s attorneys, the absence of any indication of how much of that time spent by the attorney and her accountant was in-court or out-of-court time, and the lack of evidence as to whether services were performed by partners, associates, or clerks, except as to the accountant, are contrary to the usual practice in establishing a basis for the amount of fees to be awarded. No detailed fee petition was filed and no time sheets introduced, nor was other documentation produced. (See In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 277; Canham v. Saisi (1978), 65 Ill. App. 3d 686, 382 N.E.2d 654.) Such documentation, notwithstanding Barbara’s suggestion to the contrary, was not contained in pleadings submitted to the court. The fact that only temporary rather than final fees are at issue does not relieve the need for evidence providing a basis for the amount of fees requested by counsel. (See Moore v. Moore (1977), 53 Ill. App. 3d 228, 368 N.E.2d 545; Dejoie v. Dejoie (1972), 6 Ill. App. 3d 381, 286 N.E.2d 38.) Because of that dearth of evidence concerning the nature and detailed character of time spent in this case by Barbara’s attorney and accountant, as outlined above, the fee and cost awards are without support in the record.

Edwin urges that prospective attorney fees may not be awarded in a case such as this, relying upon In re Marriage of Justema (1981), 95 Ill. App. 3d 483, 420 N.E.2d 796. Barbara counters that the award of prospective attorney fees and costs was proper because the purpose of section 508 of the Marriage and Dissolution of Marriage Act is to diminish any advantage one spouse may have over the other regarding pending litigation between them due to their respective financial circumstances. (Ill. Ann. Stat., ch. 40, par. 508, Historical & Practice Notes, at 635 (Smith-Hurd 1980).) We agree, and hold that a court having jurisdiction, in its discretion, based upon some viable evidentiary basis, may award prospective fees in anticipation of time to be spent in pursuance of pending litigation. Justema did not consider the purpose of section 508 as articulated above; we decline to follow it.

Since, in the instant case, the bases in the record for such awards are insufficient, the awards must be vacated and the cause remanded for further proceedings in accordance with the views expressed herein.

Affirmed in part and remanded for further proceedings.

DOWNING and PERLIN, JJ„ concur.


author: PRESIDING JUSTICE STAMOS

text:
    THE BOARD OF EDUCATION, ARBOR PARK SCHOOL DISTRICT NO. 145, COOK COUNTY, Plaintiff-Appellant, v. NANCY J. BALLWEBER et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81-590
    Opinion filed March 30, 1982.

      Alan T. Sraga, of Anthony Scariano & Associates, P. C., of Chicago Heights, for appellant.
    Lawrence Jay Weiner and Fredric Bryan Lesser, both of Lawrence Jay Weiner & Associates, of Chicago, for appellees.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff, the Board of Education of Arbor Park School District No. 145 (the Board), filed suit against the Arbor Park Education Association, IEA-NEA (the Association), and its member teachers. Pursuant to a collective bargaining agreement, the Association and individual teachers had been seeking arbitration of three disputed matters. In its suit, the Board sought a declaratory judgment that the matters are not arbitrable. The trial court dismissed the Board’s complaint for declaratory judgment. The Board appeals.

Although the disposition of this appeal will be controlled by the applicability of the arbitration clause in the collective bargaining agreement between the Board and the Association, it is necessary to review events leading up to that agreement. The teachers in the Arbor Park School District began the 1979-80 school year without a contract. On September 10,1979, the teachers went on strike until September 21. Nine school days were lost to the strike. A contract, designated the Professional Negotiations Agreement (PNA), was executed on November 16, 1979. Although the Association’s president and secretary signed the PNA on behalf of the teachers, on the same day (November 16) the president sent a letter to the Board stating that the PNA did not accurately represent the agreement between the parties and the document was executed under “duress.” The letter charged that the Board, in preparing the written agreement, had unilaterally changed certain terms of the parties’ oral agreement.

Nevertheless, neither the Board nor the Association disputed the validity of the agreement during the remainder of the school year. In fact, both parties acted in conformity with the agreement in the handling of the three grievances that are at the core of the instant litigation. The PNA defines a grievance as “a complaint that there has been an alleged violation, misinterpretation, or misapplication of any of the provisions of this Agreement.” The PNA provides a five-step grievance procedure; the fifth step is submission to arbitration. The first of the relevant grievances was filed on December 16, 1979, by Robert McGaghie. McGaghie was a teacher with 30 hours of additional college credit which, under prior collective bargaining agreements, put him on a higher salary track. The PNA as executed did not contain a “+ 30 hours” salary track. McGaghie demanded arbitration after the Board denied his grievance.

The second grievance was filed on February 18, 1980, by Jo Ann Holba, the president of the Association. Holba filed this grievance in response to a sick-leave policy statement issued by the Board on December 12, 1979. The grievance is specifically addressed to three clauses in the Board’s policy statement:

“6. Certified staff members reporting sick for three or more consecutive days must submit a physician’s certificate upon returning to work.
7. Excessive use of sick days may be cause for an individual conference or a request for a physical examination or other remedies at the discretion of the Superintendent.
8. Illegal use of sick days shall be considered as a breach of contract and may be cause for dismissal.”

The PNA as executed contains a provision for sick leave. This provision does not include the clauses quoted above. The Holba grievance asserts that the Board is attempting to unilaterally modify the collective bargaining agreement.

The third grievance was filed on May 19, 1980, by the Association and 50 individual teachers. On April 3, the Board had voted to end the school year early (on June 6, 1980) and to “dock” the teachers three days’ pay. This closing date provided 173 days of pupil attendance, rather than the 176 days required by the School Code. (See Ill. Rev. Stat. 1979, ch. 122, par. 10 — 19.) The PNA provided that teachers who were absent for the first three days of the strike (September 10, 11, and 12) would not be paid for those days, but the end-of-year docking was in addition to that agreed upon in the PNA. The Association argues that the Board’s action amounts to an illegal pay cut in violation of the contract.

The case at bar arose when the Board filed a complaint to foreclose arbitration of the three grievances. The first count of the complaint argues that the PNA is invalid and, as a result, there is no basis for arbitration. Count II argues that the sick leave policy is inarbitrable because it is a matter within the nondelegable discretion of the Board. In count III, the Board claims that the docking is inarbitrable because the Association seeks pay for days when the teachers did not work and such payment would violate public policy. The trial court dismissed the complaint and ordered that the grievances proceed to arbitration.

We note at the outset that the Board has not specifically argued the inarbitrability of the McGaghie grievance, except in the context of count I (i.e., if the contract is invalid, no grievance or arbitration procedure exists). Therefore, if the contract is binding, McGaghie is entitled to arbitration. The Board has not alleged facts sufficient to impugn the validity of the PNA. The Board argues that the contract is void for want of mutuality of obligation. The principle of mutuality of obligation demands that a contract must bind both parties in order to bind either. (See generally 1A Corbin, Contracts §152 (1963).) The Board appears to argue that the Association’s alleged rejection of certain terms of the PNA (in its letter of November 16, 1979) constitutes a refusal to be bound by the agreement, and if the Association is not bound there is no mutuality of obligation. The Board has confused lack of mutuality with lack of acceptance. The contract imposes obligations on the teachers and the teachers, provided they have accepted the contract, are bound by it. The Board’s claim that the teachers have not accepted the contract is based on the Association’s written complaint of “duress.” Notwithstanding this objection, the Association executed the written contract. Where parties reduce their agreement to writing, there is a presumption that the writing expresses their mutual intentions, and this presumption does not yield unless evidence to the contrary is strong and convincing. (Hardy v. Greathouse (1950), 406 Ill. 365, 373, 94 N.E.2d 134.) The Association’s written assent must therefore be presumed to express acceptance of the contract. The Board points to the claim of “duress,” but duress renders a contract voidable, not void. (See Butler v. Metz, Train, Olson & Youngren, Inc. (1978), 62 Ill. App. 3d 424, 435, 379 N.E.2d 1255.) The Association, which raised the cry of “duress,” now stands by its acceptance of the contract. We find that the Board has pleaded no facts which support the conclusion that the PNA is not a binding contract. Count I of the complaint was properly dismissed.

Count II of the Board’s complaint argues the inarbitrability of the Holba grievance, relating to the sick-leave policy. The Board cites section 10 — 20.5 of the School Code, which gives the Board the authority to “adopt and enforce all necessary rules for management and government of the public schools.” (Ill. Rev. Stat. 1979, ch. 122, par. 10 — 20.5.) From this the Board concludes that it has discretionary power to adopt a sick-leave policy and cannot legally surrender that power to an arbitrator. If we were to accept the Board’s reading of section 10 — 20.5, no contractual dispute would be arbitrable because any position taken by a school board could be asserted as a rule “for management and government of the public schools.” It is true that certain decisions are, by statute, relegated to the nondelegable discretion of school boards. (See, e.g., Board of Trustees v. Cook County College Teachers Union, Local 1600 (1976), 62 Ill. 2d 470, 476, 343 N.E.2d 473 (appointment of teachers is a nondelegable duty; arbitrator has no authority to award employment contract as a remedy for a contractual violation); Illinois Education Association v. Board of Education (1975), 62 Ill. 2d 127, 130, 340 N.E.2d 7 (dismissal of a probationary teacher is a discretionary, nondelegable power of the board); Board of Education v. Johnson (1974), 21 Ill. App. 3d 482, 494, 315 N.E.2d 634 (question of qualifications for teacher assignments is reserved to the board and is not a proper subject for arbitration).) We believe that the class of inarbitrable issues should be limited to those areas specifically reserved to school boards by the School Code. See, e.g., Ill. Rev. Stat. 1979, ch. 122, par. 10 — 19 (requiring school boards to prepare annual calendars), par. 10 — 20.7 (giving school boards authority to appoint teachers and fix salaries), par. 10 — 22.4 (referring to dismissal of teachers).

The School Code’s only reference to sick leave for teachers is in section 24 — 6. This section states, in part:

“The school board may require a physician’s certificate, or if the treatment is by prayer or spiritual means, that of a spiritual advisor or practitioner of such person’s faith, as a basis for pay during leave after an absence of 3 days for personal illness.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 6.)

This provision empowers the Board to require a physician’s certificate upon returning to work after three days’ sick leave. The statute does not, however, require the Board to demand medical certification. In executing the PNA, which contained a sick leave policy without the terms announced by the Board on December 12, the Board in effect made a decision permissible under the statute — a decision not to require medical certification. The Association has the right to hold the Board to that decision for the duration of the contract. (Cf. County of Will v. Local 1028, Will County Employees Union (1979), 79 Ill. App. 3d 290, 297, 398 N.E.2d 139 (school board has discretion to set salaries and can incorporate its decision into a collective bargaining agreement; in that instance, enforcement of the salary schedule by an arbitrator is implementing the board’s decision).) At the very least, the Board’s new sick leave policy presents a question of whether that new policy is compatible with the PNA. We find that question appropriate for arbitration.

In the third grievance, the Association asserts that the Board’s act of closing the schools early and docking the teachers three days’ pay (in addition to the earlier docking) was a violation of the PNA. The closing date of June 6,1980, left 173 pupil-attendance days on the calendar, three short of the 176 days required by the School Code. (See Ill. Rev. Stat. 1979, ch. 122, par. 10 — 19.) In docking the teachers three days’ pay, the Board reduced the teachers’ compensation to account for the shortened school calendar. The Board, citing section 10 — 19 of the School Code, argues that setting the school calendar is a matter within its sole discretion. The Board may be correct on that point. Nevertheless, the question is not whether the shortened school calendar presents an arbitrable issue but whether the reduction in salary is an arbitrable issue.

The fact that the reduction in salary followed an abridgment of the calendar is not wholly irrelevant, however. Our supreme court recently treated such a situation in Board of Education v. Chicago Teachers Union, Local 1 (1981), 88 Ill. 2d 63. In that case, the supreme court identified a twofold issue: did the school board have discretionary power to close the schools one day early for economic reasons, and was that power restricted by the union’s collective bargaining agreement. (88 Ill. 2d 63, 69.) The court observed that section 10 — 19 of the School Code grants school boards discretionary power to set a closing date earlier than that set by the regular calendar as long as the school year has the 176 required attendance days. (88 Ill. 2d 63, 71, citing Ill. Rev. Stat. 1975, ch. 122, par. 10 — 19.) The court concluded that section 10 — 19 should be read into the union contract and that the board’s act of closing the schools early was a lawful exercise of its discretionary power. (88 Ill. 2d 63, 73.) The school board’s withholding of salaries for the missed day was upheld.

The instant case differs from the Chicago Teachers Union case in two important respects. First, the supreme court in that case stressed the budgetary considerations underlying the early closing date. In the case at bar, the Board has not contended that the reason for the early closing was economic. More importantly, the supreme court suggested in Chicago Teachers Union that the school board’s discretion to close the schools early is limited by the 176-day attendance requirement. (88 Ill. 2d 63, 73.) In the instant case, the Board’s action resulted in a 173-day school year, so the action was not within the range of unfettered discretion allowed by section 10 — 19.

The Board argues that if it is held to the contractually agreed-upon salaries, it is forced to either (1) extend the calendar to make up days lost to the strike (an infringement on its discretionary power to set the school calendar), or (2) pay teachers for days not worked (a violation of public policy when the lost days were caused by an illegal strike). The answer to the first objection is that the Board lacks discretion to set a calendar shorter than 176 days. The answer to the second objection lies in elementary contract laws. The Board (after the conclusion of the strike) agreed to pay the teachers a fixed salary. If there was an illegal strike (a fact conceded in the trial court by counsel for the Association), the remedy lies in the disciplinary procedures set out in the School Code. The Board’s remedy is not to abrogate a valid contract while the teachers stood ready to perform. Unlike the situation in Board of Trustees v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 386 N.E.2d 47, there has been no showing that the collective bargaining agreement favors striking teachers over nonstriking teachers. We see no basis for a finding that the contract, or the arbitration result sought by defendants, violates public policy. We hold that the Board’s action in docking an additional three days’ pay gives rise to an arbitrable grievance, and the trial court did not err in dismissing the Board’s complaint that sought to foreclose such arbitration.

The decision of the trial court is affirmed.

Affirmed.

DOWNING and PERLIN, JJ., concur.

       Plaintiff's reply brief contains a perfunctory argument addressed to the inarbitrability of the McGaghie grievance. As plaintiff failed to raise the point in its appellant’s brief, we consider the point waived. See Ill. Rev. Stat. 1979, ch. 110A, par. 341(e)(7).

       We note that the Association has asked this court to find that the Board's new sick leave policy is void because of a conflict with section 24 — 6 of the School Code, and arbitration is therefore unnecessary. The trial court, however, ordered the parties into arbitration and the Association has filed no cross-appeal from that order. Absent a cross-appeal, an appellee cannot challenge or attempt to modify the trial court’s order on appeal. DePhillips v. Mortgage Associates, Inc. (1972), 8 Ill. App. 3d 759, 762, 291 N.E.2d 329.

       The Association has asked this court to enforce the salary provisions of the PNA without arbitration.'As noted in footnote 1, the Association did not appeal from the trial court’s order to proceed to arbitration. We therefore reject the Association’s request.


text:
    VERSON ALLSTEEL PRESS COMPANY, Plaintiff-Appellant, v. MAJOR SPRING & MANUFACTURING COMPANY, Defendant.—(GRAND SHEET METAL PRODUCTS, Defendant-Appellee.)
    First District (2nd Division)
    No. 81-780
    Opinion filed March 30, 1982.
    Rehearing denied April 28,1982.
    Lord, Bissell & Brook, of Chicago (C. Roy Peterson and Hugh C. Griffin, of counsel), for appellant.
    Jacobs, Williams and Montgomery, Ltd., of Chicago (Barry L. Kroll and Donald E. Stellato, of counsel), for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff Verson Allsteel Press Company (Verson) sued Major Spring & Manufacturing Company (Major) and Grand Sheet Metal Products (GSM) to recover the loss Verson incurred in paying a tort judgment. The trial court dismissed the count against GSM. Verson has filed this interlocutory appeal pursuant to Supreme Court Rule 304(a).

This action arises out of an injury that occurred on October 12, 1972. John Smith, an employee of GSM, was injured when his hands were caught in a press brake (a sheet metal stamping machine). The accident occurred when a brake spring broke and the machine began stamping while Smith’s hands were still between the dies. Verson manufactured the press brake; Major had supplied Verson with the spring that broke. Smith successfully sued Verson and Major. The jury awarded Smith $800,000. This court affirmed the judgment in Smith v. Verson Allsteel Press Co. (1979), 74 Ill. App. 3d 818, 393 N.E.2d 598.

Subsequent to the judgment in Smith’s lawsuit, Major and Smith executed a loan agreement and Major paid Smith $250,000. On appeal, this court found that the loan agreement was void and held that the $250,000 would be considered a partial satisfaction of the judgment against Verson and Major. On January 14,1980, Verson paid Smith $550,000 plus interest (a total of $642,125) in full satisfaction of the judgment. In the case at bar, Verson has named Major in two counts of its complaint. The first count seeks common law indemnity from Major and the second count claims contribution pursuant to “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1979, ch. 70, par. 301 etseq.). In count III of the complaint, Verson has named GSM in a claim for contribution under the same statute. In the trial court, GSM moved to dismiss count III, arguing that the cited statute does not apply because the underlying tort occurred in 1972. The trial court agreed and dismissed count III. Verson appeals. Counts I and II against Major remain pending in the trial court.

The trial court relied on section 1 of “An Act in relation to contribution among joint tortfeasors,” which states, “This Act applies to causes of action arising on or after March 1, 1978.” (Ill. Rev. Stat. 1979, ch. 70, par. 301.) Verson argues that a cause of action for contribution arises when the judgment is paid and that the instant action comes within the statute because Verson paid the judgment in 1980. GSM contends that “causes of action arising on or after March 1,1978,” refers to occurrences giving rise to claims for contribution. GSM also argues that the statute must be read with reference to our supreme court’s opinion in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, and the related cases announced the same day. (Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, 374 N.E.2d 455; Robinson v. International Harvester Co. (1977), 70 Ill. 2d 47, 374 N.E.2d 458.) In Skinner, our supreme court announced that contribution among joint tortfeasors, based on comparative fault, is now allowable in this State. In a supplemental opinion on denial of rehearing, the court considered the question of retroactivity of the newly announced rule. The court said:

“We have considered the arguments and have unanimously concluded that * * * this decision * * * should be prospective in operation. We hold, therefore, that the decisions in this cause, Stevens v. Silver Manufacturing Co. [citation], and Robinson v. International Harvester Co. [citation], will apply prqgpectively to causes of action arising out of occurrences on and after March 1, 1978.” (70 Ill. 2d 1, 16-17.)

The Skinner opinion, as modified, was delivered on March 1, 1978. The statute in question was introduced in the Illinois Legislature as Senate Bill 308 on March 20,1979. The measure passed and became law on September 14,1979.

It is apparent that the wording of the statute (“causes of action arising on or after March 1,1978”) parallels the language of Skinner except for the omission of three words — “causes of action arising out of occurrences on and after March 1, 1978.” (Emphasis added.) GSM maintains that the difference is inconsequential. Verson argues that the discrepancy shows a conscious effort on the part of the legislature to expand the applicability of the rule announced in Skinner. We note that several courts have observed the similarity of dates and, without analysis, have concluded that the applicability of the statute is co-extensive with that of Skinner. (See Harris Trust & Savings Bank v. Ali (1981), 100 Ill. App. 3d 1, 13, 425 N.E.2d 1359; Mazanek v. Rockford Drop Forge Co. (1981), 98 Ill. App. 3d 956, 960 n.l, 424 N.E.2d 1271; Jackson v. Burlington Northern, Inc. (1980), 84 Ill. App. 3d 967, 970, 405 N.E.2d 805 (Barry, J., dissenting); Erickson v. Gilden (1979), 76 Ill. App. 3d 218, 220 n.1, 394 N.E.2d 1076.) Our analysis leads us to the same conclusion.

Verson argues that the plain language of the statute must be given effect. Verson cites cases that, in its opinion, stand for the proposition that a cause of action for contribution “arises” when a judgment or settlement is paid. Reviewing these cases, we do not believe that the law on this point is so clear and settled that the wording of the statute is unambiguous and its meaning plain. Initially, we note that no case cited by Verson uses the word “arise” in connection with “cause of action.” The three cases relied on by Verson refer to a cause of action “accruing” or “occurring” when a judgment or settlement is paid. (See Gibbons v. Nalco Chemical Co. (1980) , 91 Ill. App. 3d 917, 920, 415 N.E.2d 477; Ozark Airlines, Inc. v. Fairchild-Hiller Corp. (1979), 71 Ill. App. 3d 637, 638-39, 390 N.E.2d 444; Chicago, Rock Island & Pacific Ry. Co. v. United States (7th Cir. 1955), 220 F.2d 939, 942.) It would be overly facile to perfunctorily conclude that there is a clear distinction between when a cause of action “arises” and when it “accrues” and in this way dismiss Verson’s contention. Some courts have used “arise” synonymously with “accrue” in this connection. (See Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co. (3d Cir. 1966), 372 F.2d 18, 20, cert. denied (1967), 387 U.S. 930, 18 L. Ed. 2d 992, 87 S. Ct. 2053 (applying Pennsylvania law).) Nevertheless, there is reason to believe that the legislature, in using the phrase “causes of action arising,” did not intend to adopt case law pertaining to the accrual of indemnity causes of action. First, as noted above, the legislature used a word (“arising”) that is not generally used in Illinois cases. Second, and more importantly, the legislature was not codifying existing indemnity case law but was creating a new cause of action that had been unknown in Illinois before Skinner. While it is premature at this point to conclude that the statute’s wording, “causes of action arising on or after March 1,1978,” clearly refers to underlying torts occurring on or after that date, it is also unwarranted to conclude that the statute’s plain and unambiguous meaning is the one advanced by Verson. The matter is sufficiently unclear to justify resort to aids in construing the statute. Cf. Illinois Racing Board v. Arlington Park Thoroughbred Race Track Corp. (1979), 76 Ill. App. 3d 289, 292, 395 N.E.2d 93 (there is no need for construction when statutory language is unambiguous, but where the wording is capable of different interpretations, the statute is construed to give effect to the legislature’s intent).

The legislature, in enacting the contribution statute, did not act in a vacuum. The Skinner decision wrought a great change in Illinois tort jurisprudence. The opinion was initially released on December 12, 1977; the opinion was modified and the nonretroactivity language added on March 1,1978. On March 20,1979, the contribution bill was introduced in the legislature as Senate Bill 308. The bill as introduced amplified but did not depart from the principles announced in Skinner. The House sponsor of the bill, Representative Daniels, said of the bill in debate that “this is codifying a supreme court decision,” and referred to Skinner by name. (Record of Proceedings of the 81st General Assembly, Regular Session, 3d reading in House of S.B. 308 (June 14, 1979).) A statement in debate by Senator Berman, one of the bill’s sponsors, clearly indicates an intent to follow Skinner.

“SENATOR MOORE: Senator Berman, could you explain to the Body why we use the March 1,1978, date?
PRESIDENT: Senator Berman.
SENATOR BERMAN: Yes, that’s the effective date * ° * that the Skinner decision went into force e * Record of Proceedings of the 81st General Assembly, Regular Session, 3d reading in Senate of S.B. 308 (May 14, 1979).

If we were to adopt the construction of section 301 urged by Verson, the effective date of March 1,1978, would become wholly arbitrary. If the cause of action for contribution “arises” when a judgment is paid, the statute’s compass is far broader than Skinners and the fact that the statute and the decision designate the same effective date — March 1,1978 — would be meaningless. Given the statute’s unquestionable kinship with the Skinner decision and given the legislature’s expressed intent to follow the case, we hold that the statute applies to causes of action for contribution arising out of torts committed on and after March 1, 1978.

Verson argues that section 14.2 of the Limitations Act supports its position. This section establishes a two-year limitations period for contribution actions with the period running from the time a party seeking contribution makes a payment in excess of its pro-rata share of liability. (Ill. Rev. Stat. 1979, ch. 83, par. 15.2.) This section was enacted as section 6 of Public Act 81-601 (originating as S.B. 308), but the connection does not support Verson’s argument. The statute of limitations establishes a time after which the action cannot be brought. The fact that the date of payment is set as the starting point of the two-year period does not mean that the cause of action arises at that time. According to section 5 of the contribution statute, an action for contribution may be asserted before payment and even before liability is established. (See Ill. Rev. Stat. 1979, ch. 70, par. 305.) It is therefore apparent that something “arises” prior to the time a tortfeasor pays more than his share of a judgment. That “something” has been articulated in an opinion applying the law of Wisconsin, a State that has recognized contribution for many years.

“The right of contribution between joint tortfeasors arises at the time of the concurring negligent acts. Until one of the joint tortfeasors pays more than his proportionate share of the underlying claim, the right remains contingent, subordinate and inchoate. When a tortfeasor pays more than his proportionate share, the right ripens into a cause of action.” (Minneapolis, St. Paul & Sault Ste. Marie R.R. Co. v. City of Fond du Lac (7th Cir. 1961), 297 F.2d 583, 585.)

We believe this to be an accurate enunciation of the law. Applying the concepts of the quoted passage, the statute of limitations appropriately runs from the time when the cause of action ripens but the naked right of contribution arises at an earlier time.

Versons’s alternative contention on appeal is that our supreme court’s recent opinion in Alvis v. Ribar (1981), 85 Ill. 2d 1,421 N.E.2d 886, supports a recovery from GSM under a theory of comparative fault. Unlike Skinner, which is only applicable to actions arising from occurrences that post-date the court’s opinion, the rule adopted in Alois is applicable to actions coming to trial on and after the date of the mandate issued in the case (June 8,1981). (85 Ill. 2d 1,28.) By motion, Verson has asked this court for leave to amend its complaint to add a count sounding in comparative negligence. Such leave is discretionary with this court. See Ill. Rev. Stat. 1979, ch. 110A, par. 366(a).

There are several reasons supporting a denial of motion. First, the theory of comparative negligence was not presented or argued in the trial court (although we note that the Alois opinion was released after the instant appeal was filed). Second, Verson’s liability to Smith was grounded on a theory of strict liability in tort and no Illinois court has yet applied the principle of comparative negligence to strict liability. (But see Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 24 (Dooley, J., dissenting and arguing that the majority opinion requires balancing negligent conduct against no-fault liability); compare majority opinion in Daly v. General Motors Corp. (1978), 20 Cal. 3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380 (applying comparative negligence to strict liability actions) with dissenting opinion of Mosk, J. (excoriating the majority’s infusion of negligence into strict liability theory).) The most compelling reason, however, for denying Verson’s motion is that we see no reason to extend Alois to a contribution action that is squarely within the realm of Skinner and the contribution statute. Verson is not a contributorily negligent plaintiff seeking redress for an injury caused by GSM’s negligence. Verson is, at bottom, a defendant seeking contribution and not a plaintiff seeking compensation. In Alois, the court referred to contribution as a “collateral issue” and stated that the issue had been resolved under the principles of comparative negligence in Skinner and in “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.). (Alvis v. Ribar (1981), 85 Ill. 2d 1, 28.) Given the fact that our supreme court considered contribution actions fully provided for by Skinner and the statute, it would be anomalous to stretch the rule oí Alois to encompass a cause action barred by Skinner and the statute.

In consideration of the foregoing, Verson’s motion to amend its complaint is denied and the trial court’s dismissal of count III of Verson’s complaint is affirmed.

Affirmed.

PERLIN and HARTMAN, JJ., concur.


author: JUSTICE PERLIN

text:
    SSA FOODS, INC., Plaintiff-Appellee, v. VICTOR GIANNOTTI et al., Defendants-Appellants.
    First District (2nd Division)
    No. 81-2259
    Opinion filed March 30, 1982.

      William M. Doty, Jr., and Joseph T. Stillo, both of Chicago, for appellants.
    Robert A. Novelle and Stephen C. Debboli, both of Chicago, for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, SSA Foods, Inc. (SSA), brought suit against defendants, Victor Giannotti and G.D.A. Corporation, d/b/a Vic Giannotti in Franklin Park (G.D.A.), to enforce a covenant not to compete contained in the contract whereby Victor Giannotti sold his restaurant to SSA. After reviewing the verified pleadings, affidavits, exhibits and arguments of counsel, but without hearing oral testimony, the trial court entered a preliminary injunction in favor of plaintiff. From that order defendants appeal raising the following issues for our review: (1) whether the plaintiff had an adequate remedy at law which rendered an injunction inappropriate in this case; (2) whether the complaint pleaded sufficient facts to state a claim of irreparable injury; (3) whether oral testimony was required to constitute a sufficient basis for the issuance of a preliminary injunction; and (4) whether the preliminary injunction was overly broad. For the reasons hereinafter stated we affirm the order of the trial court.

On January 15,1977, SSA contracted to purchase from Nicky’s, Inc., all of the assets of the restaurant business known as “Giannotti’s” located at 7711 West Roosevelt Road, Forest Park, Illinois. The restaurant was owned by Victor Giannotti and Mary Giannotti. The covenant-not-to-compete provision was embodied in two separate paragraphs in the contract. Paragraph (lc) provided that SSA purchased:

“The exclusive limited license for the use of the name ‘GIAN-NOTTI’S’ for a period of five years from the date of closing of the transaction. After said 5 year period the Buyer shall have the limited use of the name ‘GIANNOTTI’S’ solely as a style for a restaurant and tavern business to be conducted at 7711 West Roosevelt Road, Forest Park, Illinois.”

The second paragraph, labeled “Exhibit B” by the parties, provided:

“FOR ADDITIONAL CONSIDERATION of Two Hundred Dollars and no/100 ($200.00) of SSA FOODS, INC., an Illinois corporation, agreeing to purchase from NICKY’S, Inc., an Illinois corporation, certain store business assets for the price and under the terms set forth in that certain Agreement, dated January 15, 1977, between NICKY’S, INC., an Illinois corporation, therein called ‘SELLER’, and SSA FOODS, INC., an Illinois corporation, to be referred to as ‘BUYER’. The undersigned, VICTOR GIAN-NOTTI and MARY GIANNOTTI, hereby expressly covenant and agree, as follows: That they will not open a restaurant or other form of food and/or liquor establishment in Cook County, Illinois, under the name ‘GIANNOTTI’S’ for a period of sixty months from this date.”

On July 8, 1981, SSA filed its second amended complaint seeking injunctive relief against Victor Giannotti and G.D.A. The complaint alleged: that Victor Giannotti expended substantial time and effort in developing the restaurant business in Forest Park; that he contracted to sell the restaurant business to SSA Foods; that sometime prior to March 1981 Victor Giannotti formed a corporation known as G.D.A. Corporation and opened a restaurant in Franklin Park under the name of “Vic Giannotti in Franklin Park”; that the restaurant in Franklin Park was in direct competition with the restaurant in Forest Park; that the use of the name “Vic Giannotti in Franklin Park” was a subterfuge in an attempt to breach the contract; and that the continued use of the name was causing plaintiff great and irreparable loss. The complaint was verified and had attached to it the contract of sale for the restaurant in Forest Park.

Defendants moved to strike and dismiss the second amended complaint and asserted that they were barred only from using the name “Gianotti’s” and that the complaint was not brought in good faith. The defendants also filed “an answer to the motion for a preliminary injunction” and alleged that the plaintiff’s request for an injunction was not based on a valid cause of action; that irreparable harm would be inflicted on defendants if an injunction were to issue; that the injunction requested was overly broad; and that the resultant harm to defendants would outweigh any possible benefit to the plaintiff.

On August 31,1981, the court denied defendants’ motion to strike and dismiss, and defendant filed his answer to the complaint admitting all of the material allegations of the complaint except two: (1) that the family name “Giannotti” was sold, and (2) that SSA did not have an adequate remedy at law. After hearing the arguments of counsel on these two issues and on the basis of the verified pleadings, exhibits and affidavits, the trial court enjoined defendants from “using the name ‘Giannotti’ in any form or context” in the operation and conduct of their restaurant business located in Franklin Park, Illinois.

I

It is clear from our examination of the contract that the parties did not intend that the liquidated damages provision would constitute plaintiff’s remedy for defendants’ breach of the covenant not to compete. According to the contract, the liquidated damages provision was to be invoked only if the sale of the restaurant was not consummated. Since there is no dispute that the sale was consummated, it is evident that the liquidated damages clause in this contract has no bearing upon plaintiff’s right to injunctive relief. Moreover, it is well established that a liquidated damages provision in a contract will not operate as a bar to an injunction which is required to enforce a covenant not to compete. Bauer v. Sawyer (1956), 8 Ill. 2d 351, 134 N.E.2d 329.

II

Defendants next contend that the preliminary injunction was improperly issued because it was based upon an insufficient complaint. Defendants argue that the complaint was based upon plaintiff’s conclusion that it suffered irreparable harm and that no facts were alleged to substantiate this claim. For purposes of establishing a right to injunctive relief, irreparable harm does not mean injury that is beyond repair nor beyond compensation in damages. Rather, it denotes transgressions of a continuing nature. (Sports Unlimited, Inc. v. Scotch & Sirloin of Woodfield, Inc. (1978), 58 Ill. App. 3d 579, 374 N.E.2d 916.) The complaint must allege facts from which the court can ascertain that the act to be enjoined constitutes a continuing harm. Parsons v. Walker (1975), 28 Ill. App. 3d 517, 328 N.E.2d 920.

Here SSA alleged in its complaint that defendants breached their contract by opening a restaurant under the name “Vic Giannotti in Franklin Park”; that defendants persisted in their use of that name despite repeated requests by SSA to discontinue its use; that defendants were in direct competition with SSA; and that defendants’ continuous use of the name caused confusion to SSA’s customers and injured SSA’s reputation and business. It has been held that an allegation of loss of business alone is a sufficiently specific factual allegation of irreparable injury. (Cook County Brick Co. v. Labahn Brick Co. (1900), 92 Ill. App. 526.) If such an allegation alone is sufficient, SSA certainly pleaded facts sufficient to demonstrate that defendants’ conduct constituted a continuing harm and therefore substantiated a claim of irreparable injury.

Ill

Defendants’ third contention is that absent oral testimony, the materials presented to the trial court were insufficient to form a basis for evaluating the propriety of an injunction.

A party seeking an injunction must establish his right to an injunction by means of oral testimony only if there are contested material facts. Where the essential factual allegations of a complaint are not controverted, no oral testimony is necessary. Paddington Corp. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 170, 300 N.E.2d 484; Seay & Thomas, Inc. v. Kerrs, Inc. (1965), 58 Ill. App. 2d 391, 208 N.E.2d 22.

Here defendants denied only two of plaintiff’s allegations: (1) that the name “Giannotti” was sold and (2) that SSA did not have an adequate remedy at law. In our judgment defendants’ denials did not controvert any essential factual allegations in SSA’s complaint for injunctive relief. Moreover, after argument on the issues raised by defendants’ denials, the trial court offered defendants an opportunity to present evidence, but they refused. Defendants admitted that oral testimony would add nothing to their case. The trial court then issued a preliminary injunction based on the arguments of counsel, verified pleadings, exhibits and affidavits. The issuance of a preliminary injunction is within the sound discretion of the trial court, and unless the reviewing court finds that the discretion has been abused, the order will not be set aside. (La Salle National Bank v. County of Cook (1974), 57 Ill. 2d 318, 312 N.E.2d 252.) The record does not, in our opinion, establish that in this instance it was an abuse of discretion for the trial court to issue an injunction without hearing testimony.

IV

Defendants’ final contention is that the preliminary injunction barring them from the “use of the name ‘Giannotti’ in any form or context” is overly broad. Defendants argue that they are bound only from using the name “Giannotti’s.”

It has long been held “where a party sells out an established business, and with it his own name, to be used in connection with such business, he can not afterwards resume it in carrying on the same business.” (Frazer v. Frazer Lubricator Co. (1887), 121 Ill. 147, 157, 13 N.E. 639.) In Frazer the defendant, an inventor of a high quality axle grease, sold both his business known as “S. Frazer & Co.” and the exclusive use of the name “S. Frazer & Co.” He later resumed the same business under the name “Frazer Lubricator Co.” The purchaser of “S. Frazer & Co.” brought suit against Frazer for breach of contract. The trial court enjoined Frazer from the use of his name “in any way” in connection with the manufacture of axle grease. The Illinois Supreme Court upheld the injunction on the ground that since Frazer sold exclusive use of his name in connection with his business, he bound himself to refrain from using his name “in any way” in connection with the same business.

Similarly in the instant case, Victor Giannotti sold both his restaurant business and the exclusive use of his name in connection with such business for a prescribed period to SSA. The interest which a purchaser attempts to protect by means of a covenant not to compete is the possession and enjoyment of the good will of the property transferred to him. (O’Sullivan v. Conrad (1976), 44 Ill. App. 3d 752, 358 N.E.2d 926; McCook Window Co. v. Hardware Door Corp. (1964), 52 Ill. App. 2d 278, 202 N.E.2d 36.) The value of the good will is enhanced by a covenant not to compete and is a factor used in determining the sale price. Here Victor Giannotti received valuable consideration for the sale of the exclusive use of his name. Unless the use of his name was genuinely exclusive, it would have been of little value to SSA. When Giannotti sold the exclusive use of his name, he bound himself to refrain from using his name in connection with the restaurant business for five years. He accepted the benefits of the contract, and he must accept the burdens as well. Accordingly, it was not an abuse of discretion for the trial court to enjoin defendants from “using the name ‘Giannotti’ in any form or context” in connection with their restaurant business, and therefore the injunction was not overly broad.

For the reasons hereinabove stated, we affirm the order of the circuit court of Cook County.

Affirmed.

STAMOS, P. J., and DOWNING, J., concur.

       Mary Giannotti is not a party to this appeal.