author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MORLAND STEELE, Defendant-Appellant.
    Second District
    No. 83—209
    Opinion filed May 22, 1984.
    Rehearing denied July 3, 1984.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

The defendant, Morland Steele, appeals from his convictions of two counts of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 4(a)(3)). He raises three assignments of error in this court: (1) that the State’s failure to establish beyond a reasonable doubt that the incident in question occurred on the date specified in the bill of particulars constituted a fatal variance entitling him to a reversal of his conviction; (2) that letters from the State’s Attorney’s office advising the State’s witnesses that they had no obligation to talk to anyone constituted a thinly veiled obstruction of communication between defense counsel and the witnesses, and that the trial court’s failure to apply sanctions for the misconduct amounts to reversible error; and (3) that the trial court committed reversible error when it allowed the defendant to be impeached by the use of a prior misdemeanor conviction. We affirm.

The indictment, filed on August 20, 1982, alleged that on or about May 8, 1982, the defendant lewdly fondled J.S. and K.M., who were both under the age of 16. In a bill of particulars which the State filed on August 23, 1982, the prosecutor claimed that the offenses took place at 6:30 p.m. on May 8, 1982, at a Clark gas station located on Highland Avenue in Elgin, Illinois. An amended bill of particulars, which the State filed 10 days prior to trial on November 8, 1982, stated that the crimes occurred between 3 and 4 p.m. on May 5, 1982.

On October 2, 1982, the defendant filed a motion which requested. dismissal of the indictment or other less drastic relief due to the refusal of two prosecution witnesses to speak with the defendant’s investigators. The motion alleged that the witnesses refused to cooperate as a result of a letter the Kane County State’s Attorney’s office sent to each of them. The letters in question stated, in part, that potential witnesses had “no obligation to talk to anyone” if they did not wish to do so and that the witnesses had the right to have someone from the State’s Attorney’s office present during any questioning session.

At the hearing on the motion, the prosecutor stipulated that the office of the State’s Attorney sent copies of the letter to the mothers of the two complaining witnesses sometime after the return of the indictment and before personnel from the office of the public defender contacted the mothers. Both mothers related that they received the letters in August 1982 and then refused to speak with the public defender’s investigator. Bonnie Van Wembeke, the mother of K.M., stated that she was never told not to talk with personnel from the public defender’s office. After hearing the testimony summarized above, the trial court denied the defendant’s motion for dismissal or other sanctions.

The cause proceeded to a bench trial on November 18, 1982. In his opening statement at trial, the State’s Attorney remarked that although the indictment alleged that the offenses took place on May 8, the events actually occurred on the afternoon of May 5. Subsequently, defense counsel advised the court that he had neglected to notice the change in date on the amended bill of particulars, changing the alleged offense from a Saturday to a Wednesday. He therefore advised that he had entered into a stipulation with the State’s Attorney essentially setting forth that “as far as May 5th is concerned, we are asserting an alibi defense.”

Eleven-year-old J.S. testified that after school on the afternoon of May 5, 1982, she and a number of friends, including K.M. and H.M., the younger sister of K.M., went to the Clark gas station located on Highland Avenue in Elgin to have a friend’s bicycle tire repaired. After entering the gas station office, J.S. spoke with the defendant, with whom she was acquainted. According to the witness, the defendant took her into a back room and told her that if she gave him a kiss, he would give her a candy bar. She agreed and went to give defendant a kiss on the cheek, at which time he grabbed her “[i]n the upper private.” Then he gave J.S. a kiss and squeezed her breast; she struck him on the arm and ran outside. The witness told her mother about the incident five days later.

J. S. saw K.M. go to the back room with the defendant and testified that H.M. kissed the defendant at the front counter; both K.M. and H.M. had candy bars. J.S. related that K.M. told her what had happened in the back room. J.S. also stated during cross-examination that she did not remember the particular date of the incident.

Ten-year-old K.M. related that she and her friends went to the Clark station on May 5. The witness stated that, after she entered the back room, the defendant grabbed her in the genital area. She did not tell anyone about the incident until a couple of days later, when the mother of J.S. telephoned K.M.’s home.

K. M. testified during cross-examination that the day in issue fell on a weekend and was not a school day. She observed J.S. enter the back room, and stated that J.S. told her, within one hour of leaving the station, that the defendant had kissed her.

H.M., aged eight, testified that the defendant offered to give her a candy bar on the condition that she would kiss him. She recounted that the defendant grabbed her and kissed her and then touched her in the genital area. She tried to pull away from him and called out for J.S. According to the witness, when J.S. entered the back room, the defendant released H.M. Then H.M. went outside, cried and told J.S. what had happened. H.M. could not remember whether the incident occurred on a school day; however, her sister told her the event took place five days before May 9, the Sunday on which their mother was married.

The defendant testified on his own behalf. He denied that he put his hands on the girls, that he gave them candy, or that he had them in the back room of the gas station. He stated that he saw J.S. at 4 p.m. on May 8 when she came to the station where he was working. According to the defendant, J.S. told him she wanted to buy cigarettes for her mother; he responded only that she needed a note. In addition, he said that no other children accompanied J.S. to the station, although his seven-year-old son was there with him. At 5 p.m. that day J.S., her mother and a man visited the station and accused him of committing the instant offenses; he was arrested a short time later.

The defendant related further than he was a 29-year-old married man with four children. He worked full-time for the Illinois Department of Transportation as a surveyor and worked part-time at the Clark station on weekends only. He testified that he did surveying work on May 5, a Wednesday, and was not in Elgin.

The parties entered into a stipulation that the Illinois Department of Transportation employed the defendant on May 5, 1982, from 7 a.m. to 5:30 p.m. and that the defendant did not work at the Clark station that day. Also, the trial court allowed into evidence, for impeachment purposes and over defense counsel’s objection, a certified copy of the defendant’s 1981 conviction of contributing to the sexual delinquency of a child, a Class A misdemeanor.

On November 24, 1982, the trial court found the defendant guilty as charged. Thereafter, the defendant filed a post-trial motion, which the trial court denied. On February 25, 1983, the court sentenced the defendant to a three-year term of probation, a condition of which was that he attend twice-weekly counseling sessions. The defendant filed a timely notice of appeal.

Defendant first contends that a fatal variance existed between the date of the offenses which the State included in its amended bill of particulars and the proof presented at trial concerning the date on which the offenses occurred. In his view, the State must conform its proof strictly to the date contained in the amended bill of particulars, and the prosecution’s failure to do so constituted a fatal variance which prejudiced the defendant by hampering him in the preparation of his defense.

The purpose of a bill of particulars is to supplement a sufficient indictment in order to inform the accused more fully of the nature of the charge against him and to enable him to present his defense in a better manner. (People v. Noll (1982), 109 Ill. App. 3d 306, 308, 440 N.E.2d 335; People v. Simental (1973), 11 Ill. App. 3d 537, 542, 297 N.E.2d 356; People v. Custer (1972), 11 Ill. App. 3d 249, 256, 296 N.E.2d 753.) The bill of particulars also limits the evidence which the prosecution may introduce (People v. Noll (1982), 109 Ill. App. 3d 306, 308, 440 N.E.2d 335; People v. Long (1978), 65 Ill. App. 3d 21, 23, 382 N.E.2d 327), but the date specified in the bill of particulars does not necessarily preclude the State from offering proof that the offense was in fact committed on a slightly different date (People v. Custer (1972), 11 Ill. App. 3d 249, 256, 296 N.E.2d 753). The indictment, not the bill of particulars, is the charge upon which the defendant is tried. The object of the bill of particulars is not to make a substantial charge against the accused, but to limit to particular transactions the evidence which may be introduced under the indictment. The indictment, which forms the charge, can neither be helped nor hurt by the bill of particulars. People v. Westrup (1939), 372 Ill. 517, 518-19, 25 N.E.2d 16, cert. denied (1940), 310 U.S. 642, 84 L. Ed. 1410, 60 S. Ct. 1089.

It is generally held that a variance between the date of the crime specified in the bill of particulars and the date proved at trial does not constitute reversible error unless the date is an essential ingredient of the crime or relates to the running of the statute of limitations. (People v. Simmons (1982), 105 Ill. App. 3d 402, 405, 434 N.E.2d 435; People v. Custer (1972), 11 Ill. App. 3d 249, 257, 296 N.E.2d 753.) Some cases have established an exception to the general rule where the inconsistency is so substantial that it misled the defendant in the preparation of his defense (People v. Long (1978), 65 Ill. App. 3d 21, 23, 382 N.E.2d 327; People v. Nickson (1978), 58 Ill. App. 3d 470, 479, 374 N.E.2d 804; see People v. Noll (1982), 109 Ill. App. 3d 306, 308, 440 N.E.2d 335), or where an alibi defense has been used to counter the time or date specified in the bill of particulars, since in such a case the defendant may have been misled into failing to gather evidence and witnesses regarding the time and the date the State actually proved. People v. Noll (1982), 109 Ill. App. 3d 306, 308, 440 N.E.2d 335; cf. People v. Petropoulos (1965), 59 Ill. App. 2d 298, 323-24, 208 N.E.2d 323, aff'd (1966), 34 Ill. 2d 179, 214 N.E.2d 765.

With respect to the offense of indecent liberties with a child, the date of the crime is not an essential element of the charge. (See, e.g., People v. Schmidt (1957), 10 Ill. 2d 221, 139 N.E.2d 726.) Additionally, there is no statute of limitations question implicated in the present case. Thus, it is clear that under the general rule no reversible error has been established. Nevertheless, we believe further inquiry is necessary to determine whether the inconsistency here was so substantial that it misled the defendant in the preparation of his defense. Defendant asserts that he was prejudiced for the reason that he offered an alibi defense for the precise date and time contained in the amended bill of particulars. We conclude that defendant’s allegation of prejudice lacks support in the record.

Initially, we emphasize that the indictment alleged that the two counts of indecent liberties with a child occurred “on or about May 8, 1982.” The original bill of particulars also specified that the offenses took place on May 8. While the amended bill of particulars stated that the offense occurred on May 5, 1982, at trial defense counsel admitted that he “neglected to pick up the change in the date.” Thus, it is apparent that the defense in the case up until that point was premised upon the date of the offense being May 8, 1982. Further, while defendant did offer an alibi as to the May 5 date, his defense encompassed both the weekend before that date and the weekend after. At trial, defendant testified that he worked the weekend before but did not see the complaining witnesses at that time. He also testified he worked the weekend after, on May 8, 1982, and that J.S. came in that day to buy cigarettes but was told that she needed a note. He stated that she came in alone, that his seven-year-old son was sitting with him behind the counter, and that he did not commit the instant offense. He denied ever having seen either K.M. or H.M.

Given this testimony, it is clear that defendant did not rely primarily on an alibi defense to rebut the charges, but relied upon his testimony that he did not commit the offenses on either May 5 or May 8. Therefore, he was not misled into failing to gather evidence and witnesses regarding the time frame actually proved by the State. (People v. Noll (1982), 109 Ill. App. 3d 306, 308-09, 440 N.E.2d 335.) We note that the testimony of the three minor witnesses at trial was inconclusive regarding the date the instant offenses < ccurred. Testimony was adduced that the crimes occurred on Wednesday, May 5, while other evidence established that the offenses took place on a weekend. Although J.S. initially testified that the incident in issue occurred during the afternoon of May 5, 1982, on cross-examination she related that she could not recall the particular date or day of the week of the occurrence. Also, K.M. recounted originally that the incident transpired on May 5, but later, on two occasions during cross-examination, she stated that the day in question fell on a weekend, not a school day. H.M. had no personal recollection of the date. Given these circumstances, we think the date of the occurrence was merely a question of fact for the trial court. (People v. Martin (1983), 115 Ill. App. 3d 103, 107, 449 N.E.2d 1039.) We conclude that any variance between the date specified in the bill of particulars and the proof adduced at trial did not amount to reversible error.

Next defendant asserts that the prosecutor engaged in unethical conduct when he notified two potential witnesses by letter that they had no obligat on to speak with anyone representing the accused if they did not wish to do so and that they had the right to have someone present from t'<e State’s Attorney’s office during any interview. Defendant asserts 1 > at this message constituted an obstruction of communication between defense counsel and the witnesses and that the trial court committe l reversible error in refusing the defendant’s request that the court impose certain sanctions against the prosecution. We disagree.

The well-established rule in this State is that the defendant is entitled to a list of the prosecution’s witnesses (Ill. Rev. Stat. 1981, ch. 38, par. 114—9(a)), and he may contact the witnesses in preparation of his case. (People v. Jackson (1969), 116 Ill. App. 2d 304, 315, 253 N.E.2d 527.) Further, under Supreme Court Rule 415(a) (87 Ill. 2d R. 415(a)), the prosecutor is prohibited from advising persons having relevant information to refrain from discussing the case with defense counsel (People v. Wickenhauser (1979), 75 Ill. App. 3d 145, 149, 393 N.E.2d 1185) or from otherwise depriving the defense of a fair opportunity for an interview (People v. Jackson (1969), 116 Ill. App. 2d 304, 315, 253 N.E.2d 527). However, notwithstanding Rule 415(a), a witness for the prosecution is not obligated to grant an interview to defense counsel (People v. Craig (1979), 79 Ill. App. 3d 584, 590, 399 N.E.2d 168; People v. Peterson (1979), 70 Ill. App. 3d 205, 209, 387 N.E.2d 951; People v. Peter (1973), 55 Ill. 2d 443, 451, 303 N.E.2d 398), and the prosecuting attorney may inform the witness of this fact (People v. Jackson (1969), 116 Ill. App. 2d 304, 315, 253 N.E.2d 527; see People v. Fuller (1983), 117 Ill. App. 3d 1026, 1032, 454 N.E.2d 334).

In the present case, the State’s Attorney advised the potential witnesses that they had a right (1) to decline to speak with an investigator or attorney representing the defendant and (2) to have someone from the State’s Attorney’s office present during the interview or conversation. This advice was legally accurate and did not constitute error. (See, e.g., People v. Fuller (1983), 117 Ill. App. 3d 1026, 1032, 454 N.E.2d 334.) Thus, the trial court’s refusal to accede to the defendant’s request for sanctions was fully justified.

The defendant’s last contention is that the trial court committed reversible error when it allowed the State to introduce as impeachment evidence the defendant’s 1981 misdemeanor conviction of contributing to the sexual delinquency of a child, a Class A misdemeanor. (Ill. Rev. Stat. 1979, ch. 38, pars. 11 — 5(a)(3), 11 — 5(c).) The conviction was admitted over defendant’s objection. The State responds that this issue was waived because defendant failed to include it in his post-trial motion for a new trial. Alternatively, the State argues that any error which occurred was harmless.

Defendant’s failure to include this issue in his post-trial motion waives the issue for review since it does not relate to the sufficiency of the evidence to sustain defendant’s convictions. (See People v. Gutierrez (1982), 105 Ill. App. 3d 1059, 1063, 433 N.E.2d 361; People v. Christiansen (1981), 96 Ill. App. 3d 540, 542, 421 N.E.2d 570; People v. Meitz (1981), 95 Ill. App. 3d 1033, 1035, 420 N.E.2d 1119.) Errors which have not been preserved properly for review may be considered under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)) in cases where the evidence is closely balanced or the error was of such magnitude that the accused was denied a fair trial (People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091; People v. Carlson (1980), 79 Ill. 2d 564, 576-77, 404 N.E.2d 233; People v. Pickett (1973), 54 Ill. 2d 280, 283, 296 N.E.2d 856), or where the error was so flagrant that it threatened deterioration of the judicial process (People v. Roman (1981), 98 Ill. App. 3d 703, 707, 424 N.E.2d 794; People v. Anderson (1981), 95 Ill. App. 3d 492, 494, 420 N.E.2d 830; People v. Alvarez (1981), 93 Ill. App. 3d 111, 117, 416 N.E.2d 1217). We have reviewed the record in the instant case and conclude that the trial court erred in allowing the defendant’s prior misdemeanor conviction into evidence as impeachment. The conviction was not punishable by death or imprisonment in excess of one year, nor did it involve a crime of dishonesty or false statement. (See People v. Yost (1980), 78 Ill. 2d 292, 399 N.E.2d 1283; People v. Montgomery (1971), 47 Ill. 2d 510, 519, 268 N.E.2d 695; People v. Evans (1981), 92 Ill. App. 3d 874, 877, 416 N.E.2d 377.) However, in light of the substantial evidence of defendant’s guilt, we do not believe the error constituted plain error under Supreme Court rule 615(a) (87 Ill. 2d R. 615(a)). We note that defendant has not challenged the sufficiency of the evidence against him. It was undisputed that defendant knew J.S. prior to the incident in question and thus there was no question as to the identity of the perpetrator. Additionally, two other victims related similar occurrences, and defendant admitted to having been at the Clark station during the time period in question. Further, the trial court based its determination of guilt upon the credibility of the victims and specifically found their testimony to be clear and convincing. In reaching this result, the trial court did not comment upon the credibility of the defendant as a witness. Under these circumstances, we conclude that the error was harmless.

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

Affirmed.

SEIDENFELD, P.J., and REINHARD, J., concur.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOMINICK PALMISANO, Defendant-Appellant.
    First District (4th Division)
    No. 83—357
    Opinion filed May 31, 1984.
    Elliot Samuels, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Peter M. Delongis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JIGANTI

delivered the opinion of the court:

The defendant was indicted for the offenses of armed robbery, theft, armed violence, and aggravated battery. (Ill. Rev. Stat. 1981, ch. 38, pars. 18 — 2, 16 — 1(a), 33A — 2, 12 — 4(b)(1).) Defendant then waived a jury. After both the State and defense had rested during the ensuing bench trial, a mistrial was declared because of certain communications regarding a guilty plea that were made to defense counsel by the trial judge. Subsequently, the State sought to retry defendant before a different judge. In response, defendant moved to dismiss the indictment, claiming a retrial would constitute double jeopardy. However, after a hearing that motion was denied. Defendant appeals, contending that double jeopardy prohibits his retrial since the trial judge’s suggestion to defense counsel that defendant plead guilty to a reduced offense constituted judicial overreaching.

On August 2, 1982, defendant’s trial began before Judge John Crowley. The evidence established that at approximately 5:30 p.m. on June 1, 1981, defendant was observed in the parking lot of a Dominick’s Finer Foods Store located in River Forest. At that time, defendant and another individual were loading shopping carts belonging to Dominick’s into a van. When confronted by the store manager, defendant ordered the manager to get away from him. The manager then proceeded to grab defendant by the wrists. In response, defendant began to hit the store manager with a blackjack over the shoulder and arm. Defendant then called to his accomplice and told the accomplice to shoot the store manager. When the accomplice pulled out a gun, the store manager let defendant go. Defendant and the accomplice then drove the van out of the store’s parking lot. However, the store manager followed the van and alerted police as to what had happened. The police then stopped by the parked van and ordered two individuals, who were standing on the street nearby, to stop for questioning. In response, those individuals ran. The police pursued but were unable to locate them. Through information supplied by a neighbor, the police learned that the van was owned by defendant. Defendant was later identified in a lineup by the store manager as the person who had attacked him and who had taken the shopping carts from the store. At the close of the State’s case in chief, defendant made a motion for a directed finding which was denied. Defendant then presented several character witnesses in his behalf. The trial was then recessed for more than two weeks.

When the trial resumed on August 19, 1982, defendant presented a motion for a mistrial. In support of that motion, defendant claimed that improper communications were made to defense counsel by the trial judge after the State had rested. Defendant asserted specifically that the trial judge had improperly initiated a plea bargaining discussion between the parties after the State had presented its evidence. However, the trial court denied that motion. Defendant then proceeded to call several additional character witnesses to the stand. These witnesses testified to defendant’s good reputation in the community. Later that same day after the defense had completed its case, the trial judge reversed his earlier ruling on defendant’s motion for a mistrial. At that point, he recused himself from any further proceedings. The matter was then assigned to Judge James M. Bailey. Defense counsel then moved to dismiss the indictment, claiming that a retrial would constitute double jeopardy. After hearing the arguments of counsel, Judge Bailey denied defendant’s motion.

As stated above, defendant contends that double jeopardy prohibits his retrial since the trial judge’s communications to defense counsel after the State had rested its case, constituted judicial overreaching.

In determining the sufficiency of a double jeopardy claim, the facts of each case must be examined. (People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 507-08, 431 N.E.2d 353.) Since United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165, it has been held that whether a defendant may be retried after a mistrial has been declared without the defendant’s request depends on whether there was a manifest necessity for the mistrial. However, if the mistrial can be attributed to the defendant because of his motion or consent, a different analysis is applicable. See People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 535, 387 N.E.2d 325.

The standard to be used, where the defendant has requested a mistrial or at least has consented to one, is:

“ ‘[Wjhere circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.’ ” People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 508, citing United States v. Jorn (1971), 400 U.S. 470, 485, 27 L. Ed. 2d 543, 556-57, 91 S. Ct. 547, 557.

In the present matter, defendant made the motion for a mistrial. In that motion, defendant contended that the trial court had violated the provisions of Supreme Court Rule 402(d)(1) (87 Ill. 2d R. 402(d)(1)) in that he improperly initiated guilty plea discussions with defense counsel after the prosecution had rested its case.

As indicated above, even if defendant’s mistrial motion is based upon judicial error, retrial is permissible. As was stated by our supreme court in People ex rel. Roberts v. Orenic.

“Many mistrials are requested or consented to by defendants, even though the error or perceived error necessitating the mistrial was that of the prosecutor or the judge. ‘Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.’ ” (People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 509, citing United States v. Scott (1978), 437 U.S. 82, 93, 57 L. Ed. 2d 65, 75-76, 98 S. Ct. 2187, 2194-95.)

Because of the complexities of the trial itself, some prosecutorial or judicial error may inevitably occur in a significant number of cases. To preclude reprosecution whenever such error results in a mistrial would exact too high a price for the defendant’s interest in finality and accord too little weight to society’s final interest in the enforcement of criminal laws. People v. Pendleton (1979), 75 Ill. App. 3d 580, 593, 394 N.E.2d 496.

Nevertheless, defendant contends that his request for a mistrial was necessitated by judicial overreaching rather than judicial error. It is true that if the defendant’s request for a mistrial is attributable not to prosecutorial or judicial error, but rather to prosecutorial or judicial overreaching, retrial is forbidden. (People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496.) In Pendleton, this court defined judicial overreaching as prosecutorial or judicial misconduct:

“(1) [Wjhich is specifically designed to provoke a mistrial in order to secure a second - and perhaps more favorable - opportunity to convict the accused [citations]; or (2) which is motivated by bad faith or undertaken to harass or prejudice the accused [citation].” (People v. Pendleton (1979), 75 Ill. App. 3d 580, 593.)

In contrast to prosecutorial or judicial error, overreaching is not an inevitable part of the trial process and cannot be condoned. Rather, it signals a breakdown in the integrity of the judicial proceeding. People v. Pendleton (1979), 75 Ill. App. 3d 580, 594.

We are of the opinion that the trial judge’s conduct complained of by defendant, did not constitute judicial overreaching, but rather amounted to judicial error. In response to defendant’s request for a mistrial, the trial court stated:

“Well, first of all, basically counsel, you have suggested that the court initiated a conference which, of course, would not be proper.
I think how it was initiated as I called you in here and inquired and asked if there at any time had ever been any discussion between you and the State concerning a possible disposition other than trial. I think that was the way it was initiated, and you said no and indicated that you would be disposed to talk with them, and I think that you did talk with the State. ***
Isn’t that the way it arose? I certainly did not suggest that you do it. I asked has there ever at any time been a discussion between you and the State relative to this.”

We feel that this passage indicates that the trial judge did not initiate plea negotiations but was merely inquiring as to whether or not they had taken place. We do not feel that this conduct was designed to provoke a mistrial or was motivated by bad faith or undertaken to harass or prejudice the defendant. Accordingly, we do not feel that the trial court erred when it denied defendant’s motion to prevent his retrial.

The order of the circuit court of Cook County, denying defendant’s motion to bar his retrial as to the offenses charged by the present indictment and denying defendant’s motion to dismiss the indictment, is therefore affirmed.

Affirmed.

JOHNSON and ROMITI, JJ., concur.

      Supreme Court Rule 402(d)(1) states: “The trial judge shall not initiate plea discussions.”


text:
    SPRING MILL TOWNHOMES ASSOCIATION et al., Plaintiffs-Appellants, v. OSLA FINANCIAL SERVICES, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—95
    Opinion filed December 29, 1983.
    Modified on denial of rehearing June 28, 1984.

      Vincent P. Reilly and J. Calvin Daulton III, both of Peterson, Ross, Schloerb & Seidel, of Chicago, for appellants.
    William J. Campbell, Jr., and Donald A. Vogelsang, both of Reuben & Proctor, of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Spring Mill Townhomes Association (the Association), brought an action against the defendants, OSLA Financial Services, I. Simon & Sons, Inc., and The Simon/R.G. Group, Inc., for a breach of implied warranty of habitability for latent construction and design defects in the townhome roofs. After the plaintiff’s case, OSLA filed a motion for a directed finding against the plaintiff alleging that the plaintiff lacked standing to bring this type of action. The trial court granted OSLA’S motion, and the plaintiff appeals from the trial court’s order.

From 1972 to 1977, the defendants, in a joint venture, developed, constructed, marketed and sold townhomes in the Spring Mill Townhomes Development (the Development). On July 16, 1973, the joint venturers executed a “Declaration of Party Wall Rights, Easements, Covenants and Restrictions” (the Declaration). The Declaration provided that the Development would be divided into dwelling parcels and common areas. The dwelling parcels were to be owned by the individual townhome owners and the common areas were to be owned by the Association. The dwelling parcels were defined as whatever was within the lot lines on the plats. All areas outside the lot lines were common areas. The townhome roofs which cover buildings containing four to six individual townhome units per building were within the lot lines. Therefore, the townhome roofs were not part of the common area. The Declaration also provided for a Townhome Association to be formed and that the developer would convey the common areas to the Association.

On August 6, 1973, pursuant to the Declaration, the Spring Mill Townhomes Association was created under the General Not For Profit Corporation Act of Illinois. In order to govern the Association articles of incorporation, the Declaration and bylaws were adopted. Among other provisions, the articles provided that the Association was to promote the health, safety and welfare of the residents of the Development. It also provided that the Association was to own, acquire, build, operate and maintain the common areas and that it was to maintain, rebuild and replace the external structural portions of the townhouses when damage to these areas resulted from ordinary wear and deterioration. The townhome roofs are considered part of the external structural portions of the townhomes. The articles also provided that every record owner of a townhome unit in the Development was to be a member of the Association and that the Association was to finance its activities by charging its members assessments. On December 30, 1976, pursuant to the Declaration OSLA conveyed the common areas of the Development to the Association.

During the pretrial proceedings, the court denied the plaintiffs’ (the Association and the individual townhome owners) motion for class certification. The court also ordered the claim based on breach of implied warranty of habitability be stricken as to the townhome owners individually named as plaintiffs. These plaintiffs subsequently settled with the defendant. In addition, the court permitted the Association, in its individual capacity, to maintain a two-count complaint against the defendants. For the purposes of this appeal, only count I, the implied warranty of habitability count, is in issue. OSLA then filed its answer and affirmative defense to the third amended complaint claiming that the plaintiff lacked standing to maintain the alleged cause of action set out in count I.

The case then proceeded to trial, and at the close of the plaintiffs ease in chief, OSLA filed a motion for a directed finding. The trial court granted OSLA’s motion and entered judgment in favor of the defendant finding, among other things, that although the Association had presented sufficient evidence of latent defects in the townhome roofs to overcome the motion for a directed finding, the plaintiff did not have standing nor authority to maintain the action for breach of implied warranty of habitability. The trial court based its conclusion on the fact that there was no statutory grant of standing, as in the Condominium Property Act; that the plaintiff never bought a townhome from the defendant, nor was it a new subsequent purchaser; and that nothing in the Declaration empowered or bound the plaintiff to bring this type of lawsuit for latent defects.

The plaintiff makes three principal arguments on appeal, and at the core of each of these arguments is that an injury has occurred as a result of the latent construction and design defects in the townhome roofs and that the plaintiff has the standing to sue in order to remedy that injury. Initially the plaintiff asserts that case law confers standing on it. Secondly, the plaintiff asserts that the provisions of its controlling documents confer standing on it. Lastly, the plaintiff asserts that it has standing to sue as a result of a legally recognizable duty created by an ambiguity in the Declaration. We disagree.

Under Illinois case law, absent a statutory grant of standing, a not-for-profit corporation in order to establish standing to sue on behalf of its members must allege and prove that it has suffered an injury in its individual capacity to a substantive legally protected interest. (Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 405 N.E.2d 1256; see also Lynch v. Devine (1977), 45 Ill. App. 3d 743, 359 N.E.2d 1137.) The injury asserted by the plaintiff in this case is a breach of the implied warranty of habitability. The scope of protection under this implied warranty only includes direct or new subsequent purchasers. (Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 441 N.E.2d 324; Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154.) However, in a case similar to the instant case, Briarcliffe West Townhouse Owners Association v. Wiseman Construction Co. (1983), 118 Ill. App. 3d 163, 454 N.E.2d 363, the court held that under the particular circumstances of the case, a townhome association had standing as the representative of the homeowners to enforce an implied warranty of habliability of common lands even though it was not a unit owner. In Briarcliffe, in determining that the Association had a legally protected interest in the litigation, the court considered as critical to its determination the fact that the Association held quitclaim deeds to the common lands and that they were under contract, pursuant to the Declaration, to manage the common lands.

In the case at bar, under Redarowicz and Petersen, the Association has never been a unit owner, and unlike the Association in Briarcliffe, this Association does not hold title to the townhome roofs nor does it have the authority to maintain the roofs for damage other than ordinary wear and deterioration. Such title is held by the individual townhome owners and latent defects are not ordinary; thus, the Association has failed to establish under these circumstances that it has a substantive legally protected interest to which an injury could be alleged. Therefore, under Illinois case law the plaintiff lacks standing to bring a claim for breach of implied warranty of habitability.

However, the plaintiff also asserts that we should follow the court’s rationale in two factually similar cases in Pennsylvania. (Fay v. Bohlin & Powell (1982), 298 Pa. Super. 69, 444 A.2d 179; 1000 Grandview Association v. Mount Washington Associates (1981), 290 Pa. Super. 365, 434 A.2d 796.) In those cases, the court conferred standing on an association even though it did not suffer an injury in its individual capacity. The Pennsylvania court reached its holding by applying the general principles of standing as applied under the Federal rules. However, the defendant contends that even under the more expansive Federal standard for standing, the Association still lacks standing. Under the Federal rule, even in the absence of injury to itself, ah association may have standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own behalf and neither the claim asserted nor the relief requested requires participation of individual members in a lawsuit. Warth v. Seldin (1975), 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197.

In this action the Association is asserting a claim for damages on behalf of its members. However, in attempting to prove the alleged damages, the plaintiff has failed to indicate how it would not be necessary for each unit owner to testify as to his individual claim. Thus, it appears that individual participation, in the form of individual testimony, would be necessary and that this testimony would clearly contravene a prerequisite for associational standing set forth by the Federal rule. Accordingly, the plaintiff has failed to demonstrate how case law has conferred standing in the Association in the instant action.

What the plaintiff suggests in its second argument is that we confer standing on it solely on the basis of the general purpose provisions of its articles, bylaws and the Not For Profit Corporation Act of Illinois. While these provisions enable the Association to act with great latitude in order to serve its members, it is not possible to allow the Association to transcend legal precedent by conferring standing on itself. We have already established that the plaintiff has failed to establish standing by failing to allege and prove any injury in its individual capacity to a substantive legally protected interest. Therefore, the plaintiff’s contention that the general purpose clauses in the articles of incorporation, the bylaws and the Not For Profit Corporation Act of Illinois establish standing with the plaintiff is completely contrary to the case law cited above.

The plaintiff’s last assertion is that it has standing to sue as a result of a legally recognizable duty created by an ambiguity in the Declaration. As previously stated, the plaintiff has failed to allege and prove the necessary facts in order to have standing to bring an action for breach of implied warranty of habitability. The plaintiff’s last assertion adds nothing new to cure the already defective claim of standing. At best, this argument involving the Declaration establishes a claim in a contract action, which is clearly beyond the scope of this appeal and therefore warrants no further discussion. Accordingly, the plaintiff has failed to demonstrate how it has established standing in the instant action, and therefore we find that the trial court was correct in dismissing the plaintiff’s action for lack of standing.

The Association next contends that in the alternative to finding the plaintiff has standing, we should find that the trial court erred in refusing to certify this case as a class action. The plaintiff asserts that the original named individual plaintiffs, stricken by the trial court, should be reinstated, and that under their representation, the prerequisites for class certification are satisfied. OSLA argues that the named individual plaintiffs have all signed releases, and are therefore without a cause of action to assert against the defendant.

It is well settled that a class cannot be certified unless the named plaintiffs have a cause of action. (Landesman v. General Motors Corp. (1978), 72 Ill. 2d 44, 377 N.E.2d 813.) In the instant case, of all the originally named plaintiffs, the Association has been dismissed for lacking standing and the individual plaintiffs have either signed releases or have been stricken from the complaint. It is apparent that there is no named plaintiff that has a cause of action against OSLA for breach of implied warranty of habitability so as to maintain this case as a class action.

The plaintiff additionally asserts that if this court finds that no named plaintiff may serve as class representative, then we should remand and order the trial court to appoint a new class representative. (Barliant v. Follett Corp. (1978), 74 Ill. 2d 226, 384 N.E.2d 316.) The Barliant case involved the dismissal of the case because of a conflict of interest with the class representative. The Illinois Supreme Court held that dismissal was improper because it destroyed, on nonsubstantive grounds, a class action that had already been certified. The court ordered a new class representative to take over the action. In the instant case, no class has ever been certified and the deficiency in the status of the named plaintiffs is substantive, in that they have no cause of action. Accordingly, we find that Barliant is not controlling in this matter and that no new class representative should be appointed. The trial court did not err in refusing to certify this case as a class action, and we therefore affirm its decision.

For the foregoing reasons, the decision of the trial court is affirmed.

ROMITI, RJ., and JOHNSON, J., concur.


author: JUSTICE O’CONNOR

text:
    BEVERLY SUE HATFIELD et al., Plaintiffs-Appellants, v. SANDOZ-WANDER, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 83—1140
    Opinion filed May 29, 1984.

      A. J. Hardiman, Ltd. and Eugene Hardiman, both of Chicago (A. J. Hardiman, of counsel), for appellants.
    Rooks, Pitts, Fullagar & Poust, of Chicago (James G. McConnell, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiffs Beverly and Richard Hatfield, filed an action in strict liability against defendant, Sandoz-Wander, Inc., alleging that Beverly Hatfield ingested the prescription drug Mellaril over a period of time, as a result of which she lost most of her eyesight and is now legally blind. Defendant manufactures, distributes and supplies the drug Mellaril. Defendant stipulated at trial that it was aware that a condition known as pigmentary retinopathy could occur from the use of Mellaril, and had warned of this possibility since 1961 in all prescribing information issued with the drug. Defendant also stipulated that in certain cases pigmentary retinopathy can result in blindness.

Plaintiffs’ cause of action was based on the alleged inadequacy of the warnings which were supplied by defendant to the medical profession as to the possible side effects of Mellaril. After a jury trial, judgment was entered for defendant and plaintiffs now appeal. We affirm.

The warnings which were furnished by defendant appeared both in the Physician’s Desk Reference (hereinafter referred to as P.D.R.), a reference book which is provided by the drug companies to physicians, containing all available information on prescription drugs, and on package inserts which are affixed to each container of Mellaril manufactured by defendant. Each P.D.R. contains a section labeled “Precautions” and one labeled “Warnings” as to each drug. During the years relevant to this lawsuit, the following information appeared under the “Precautions” section of the P.D.R.:

“*** Pigmentary retinopathy, which has been observed in patients taking larger than recommended doses over long periods of time, is characterized by diminution of visual acuity, brownish coloring of vision, and impairment of night vision; examination of the fundus discloses deposits of pigment. The possibility of this complication may be avoided by remaining within the recommended limits of dosage.”

The prescribing information also states that a maximum recommended daily dose for neurotic patients is 200 milligrams per day, and that the maximum daily dose for adult psychotics is 200 to 800 milligrams per day. The material states that “in all cases, the smallest effective dosage should be determined for each patient.” Finally, all pharmacy bottles of the 200 milligram tablet size contain the warning that “This strength tablet is for use only in severe neuropsychiatric conditions,” and the prescribing information specifically states that: “For severely disturbed hospitalized psychotics, dosages of 100 to 200 milligrams three times a day may be necessary.” (Emphasis added.)

At the time of trial, Beverly Sue Hatfield was 47 years old. In the early part of 1960, she had been hospitalized for emotional problems, during which time she underwent 25 electro-shock treatments. Plaintiff’s problems were precipitated by the birth of a new baby and the knowledge that her husband Richard, who had been injured as a serviceman in Korea, was to become a cripple and would possibly end up in a wheel chair. Mellaril was first prescribed for plaintiff by her physician, Dr. Hammel, in August of 1969, at which time she took one 50 milligram tablet per day. Plaintiff continued using Mellaril in varying amounts through January of 1974: from August 1971 to December 1971, she took two 200 milligram tablets per day and from January 1972 to August of that year she took three per day; from September 1972 to May 1973 she took three to four tablets per day; and from July 1973 to January 1974, she took from five to as many as eight 200 milligram tablets per day. Plaintiff never took in excess of eight tablets per day. Dr. Hammel retired in February 1972, and Dr. Pillai became the prescribing doctor for the remaining period. Plaintiff obtained all of the prescriptions at either one of two drugstores. She was not sure whether the prescription label said two, or three to four tablets in the latter part of 1973, but she testified that her doctor allowed her three to four, and that when she began to tolerate the effects of Mellaril, Dr. Hammel would double it. She was never able to obtain Mellaril without a prescription. The record shows that the largest prescription plaintiff actually received before she became blind was for two tablets per day of 200 milligrams each. Thus, by plaintiff’s own admission, from July 1973 to January 1974, she took up to 1,600 milligrams per day; four times more than her largest prescription allowed. The pharmacy records show that during June and July, she purchased as much as 3,157 milligrams per day, almost eight times the amount allowed under her largest prescription. Plaintiff testified that Dr. Pillai didn’t state anything to her with regard to her taking the drug, and that although he never specifically stated that she could take six to eight pills per day, she did not think that she was going against what the doctor allowed when she did so. In January 1974, plaintiff woke up one morning and found that most of her eyesight was gone. She is presently unable to do housework or to take care of her personal needs.

Plaintiff’s husband, Richard, was 50 years old at the time of the trial. He testified that he had had disagreements with his wife over her use of Mellaril, and that she often became sleepy and groggy from the pills. He threw the pills away'three to four times in the middle of 1973.

Dr. Gerald Fishman, an opthamologist, testified as plaintiffs’ first expert witness. Based upon his examination of Beverly Hatfield, he determined that she was legally blind, that her condition was permanent, and was consistent with the use of Mellaril. Dr. Fishman stated his opinion that defendant’s warnings concerning Mellaril failed to cover the spectrum of the potential seriousness of the complication that could occur with the use of the drug. He also stated his belief that in order to make the warnings adequate regarding irreversible eye complications from Mellaril, they should include some statement about the potential severity of the complications; that they may be irreparable and that they may progress even if the patient goes off the drug. In Dr. Fishman’s opinion, it was foreseeable to the defendant prior to 1974 that some patients were taking in excess of 1,600 milligrams of Mellaril a day, as evidenced by a statement in the 1968 P.D.R. that the specified retinal problems may well occur if the dosage exceeds 1,600 milligrams.

Dr. William Barnhart, an internist, testified that, with reference to the material contained in the P.D.R.’s concerning Mellaril, his opinion was that the difference between “precautions” and “warnings” was that warnings implied a much more severe risk to patients than precautions. He did not believe that the relevant information as set forth in the P.D.R. was adequate to warn physicians of the possible complications of going over any particular dose of Mellaril; nor did he think that Dr. Pillai had been adequately warned that the drug could cause irreversible eye damage to plaintiff, based on the fact that plaintiff was able to obtain and take through the doctor’s prescription from 1,000 to 1,600 milligrams of Mellaril per day over a seven month period.

The deposition of Dr. John Reuter, another of plaintiffs’ experts in opthamology, was introduced. Dr. Reuter treated Beverly Hatfield in January 1974 and again in May of that year. His diagnosis of plaintiff’s condition was Mellaril intoxication with pigmentary retinopathy. Dr. Reuter’s only criticism of the materials issued by defendant was the failure to state the possibility that the eye complications resulting from the use of Mellaril could be irreversible. Both Dr. Reuter and Dr. Barnhart admitted, however, that if the prescribing doctor knew that pigmentary retinopathy could result in a complete loss of vision, then he or she would have been adequately warned.

Dr. Pillai testified, stating that he consulted the P.D.R. when he first authorized the pharmacy to refill Dr. Hammel’s prescription of Mellaril for Beverly Hatfield. When he viewed the statement that pigmentary retinopathy had occurred in patients taking larger than recommended doses of Mellaril over a long period of time, he was aware of the fact that pigmentary retinopathy could result in a complete loss of vision in some patients. He presumed that he reviewed the P.D.R. in November 1973. Dr. Pillai had no formal training concerning eye problems other than what he had received in basic medical school, and his only knowledge of the drug Mellaril was that which he had derived from the P.D.R. Dr. Pillai’s deposition was also introduced, in which he stated that on July 7, 1972, plaintiff had asked him to authorize the pharmacist to continue dispensing Mellaril, which had been earlier prescribed for her by Dr. Hammel. His notes indicated that he ordered 50 milligram tablets to be taken three times a day, which was a lesser dosage than that which Dr. Hammel had prescribed. He again ordered the same prescription pursuant to a subsequent request by plaintiff on November 15, 1973. His notes also indicated that he advised plaintiff at that time to taper off gradually, with the eventual goal of stopping the medication.

Defendant presented the testimony of three expert witnesses, Drs. Lubin, Drill and Westlin, each of whom stated his opinion that the warnings about Mellaril in the material supplied by defendant were adequate, and that the absence of the words “permanent,” “irreversible,” “blindness” and “complete loss of vision” did not make Mellaril unreasonably dangerous. In addition, the evidence depositions of two pharmacists were introduced regarding plaintiff’s prescription records. One of them also testified that at no time was plaintiff’s prescription refilled before 10 days had elapsed without the express permission of Dr. Pillai.

The case went to the jury, who returned a verdict in favor of defendant, and this appeal ensued.

Plaintiffs complain of several alleged errors in the admission and exclusion of evidence concerning compliance with government standards, experts’ opinion testimony and their conversations with Beverly Hatfield’s physician who was deceased at the time of trial.

Prior to trial, plaintiffs filed a motion in limine to bar any testimony concerning the Food and Drug Administration’s (F.D.A.) approval of Mellaril. The trial court ruled that the F.D.A. approval was admissible, but that the approval process was not. The trial court also denied plaintiffs’ motion to bar even the mention of F.D.A. approval, and to strike any testimony regarding the F.D.A. given in plaintiffs’ case and opening statement. Two of defendant’s experts, Drs. Drill and Westlin, mentioned F.D.A. approval during their testimony, Dr. Westlin testifying that the F.D.A. determined that pigmentary retinopathy should be in the precautions section. rather than the warnings section of the P.D.R. Over plaintiffs’ objection, defense counsel emphasized during closing argument the F.D.A.’s awareness of Beverly Hatfield’s injuries and its failure to require additional warnings. The trial court allowed this testimony and the related exhibits pursuant to Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534, and Moehle v. Chrysler Motors Corp. (1982), 93 Ill. 2d 299, 443 N.E.2d 575. These cases make clear that evidence of compliance with Federal government standards is relevant in a strict tort liability case both on the issue of whether a product is defective and whether the defective condition is unreasonably dangerous.

Plaintiffs contend that approval of a drug by the F.D.A., which is based solely on material submitted by the manufacturer and not on independent testing by the agency itself, is not in compliance with any “measurable federal standard” to bring it within the purview of Rucker and Moehle. The cases, however, contain no such limitations. Further, the court in Moehle specifically rejected arguments by plaintiffs there that the jury may tend to overemphasize a manufacturer’s compliance with governmental safety standards and, in cases of antiquated or grossly minimal safety standards, be misled as to the availability of safety technology. The court stated its belief that with careful instructions to the jury by the trial judge and effective argument by plaintiffs’ counsel, the jury could properly evaluate the importance of safety-standard evidence and weigh it with all of the other evidence in the record. The court went on to state that the adversary process itself would also tend to diminish the misleading character of minimal or antiquated standards. (93 Ill. 2d 299, 305.) As was contemplated by the court in Moehle, plaintiffs here were able to, and did attack the value of F.D.A. approval during their closing argument, making the jury aware that no independent tests were done by the agency itself. Thus, the criteria set forth in those cases cited by plaintiffs appear to have been met.

Plaintiffs next assert that the trial court erred in allowing defendant’s experts to rely on the deposition testimony of other doctors, pharmacists, and of Beverly Hatfield in forming their opinions. The Illinois Supreme Court, in Wilson v. Clark (1981), 84 Ill. 2d 186, 193, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140, recognized that expert opinion testimony may be based on facts not in evidence, as long as those facts are “ ‘***of a type reasonably relied upon by experts in the particular field ***.’” The court in that case expressly adopted Federal Rules of Evidence 703 and 705 which permit an expert to give his or her opinion on the basis of reliable facts not in evidence, and without initially disclosing those facts. As explained in the Advisory Committee Notes to Rule 703, facts or data upon which expert opinions are based may, under the rule, be derived from three sources: (a) the first-hand observation of the witness, with opinions based thereon, (b) presentation at the trial, and or (c) presentation of data to the expert outside of court and other than by his own perception.. The comment further recognizes that:

“*** [A] physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays.” (Fed. R. Evid. 703, Advisory Committee Notes.)

While the information relied upon here was contained in sworn deposition testimony, its content was identical to that which is contained in the Committee Note and plaintiffs have failed to show why the subject information, as such, would be any less reliable than the inadmissible, unsworn statements of patients, pharmacists and other doctors, which are clearly contemplated by the rule.

Plaintiffs’ next claim, that their witness, Dr. Barnhart, should have been allowed to testify concerning his conversations with other physicians as to the adequacy of defendant’s warnings contained in the P.D.R.’s, is also without merit. When read within the context of the record, it is clear that plaintiffs’ offer of proof lacked any suggestion that any of the residents with whom Dr. Barnhart had spoken on the subject had actually read the relevant materials in the P.D.R. In the absence of such testimony, these conversations clearly cannot be considered to be of “ '*** a type reasonably relied upon by experts in the particular field ***.’ ” Wilson v. Clark (1981), 84 Ill. 2d 186, 193.

Plaintiffs also appeal the trial court’s exclusion of various statements made by the deceased Dr. Hammel to them regarding the lack of harmful effects from Mellaril. The trial court correctly refused to allow plaintiffs’ offer of proof, as such statements would have constituted inadmissible hearsay. Plaintiffs argue that the alleged statements should be allowed as they are probative of the issue of whether Dr. Hammel was adequately warned about the ill effects of Mellaril. As this court has recognized, the prescribing doctor functions as “a learned intermediary” between the patient and the prescription drug manufacturer. (Mahr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 561, 390 N.E.2d 1214.) It is the doctor’s decision as to which facts should be told to the patient, and the extent of disclosure is a matter of medical judgment. (Buckner v. Allergan Pharmaceuticals, Inc. (Fla. App. 1981), 400 So. 2d 820, 823, citing ZeBarth v. Swedish Hospital Medical Center (1972), 81 Wash. 2d 12, 499 P.2d 1.) Given the instant facts, including the severity of Beverly Hatfield’s emotional state at the time of the alleged statements, and in the absence of opportunity to test these self-serving statements by cross-examination, this court cannot speculate as to whether Dr. Hammel was indeed exercising his judgment in withholding certain information regarding the drug from plaintiffs. The trial court’s ruling in excluding the statements was therefore proper.

Similarly, we find no merit in plaintiffs’ next several claims of prejudice, including their claim that the trial court improperly excluded evidence that one of their expert witnesses was originally hired by defendant, that statistical evidence concerning the infrequency of pigmentary retinopathy from the use of Mellaril was improperly received into evidence; and that one of defendant’s experts was improperly allowed to testify as to his own eye condition. A review of the record shows that the evidence which plaintiffs sought to introduce was irrelevant in the absence of any statements which would have rendered plaintiffs’ expert an adverse witness, and that the testimony complained of was clearly invited by statements made by one of plaintiffs’ experts or invited by statements made during plaintiffs’ cross-examination of defendant’s witness, and was therefore properly admitted. See, e.g., People v. Williams (1977), 66 Ill. 2d 478, 363 N.E.2d 801; and E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 103.4 (1984).

At the close of the evidence, plaintiffs moved to file an amendment to the complaint containing a count for prejudgment interest, which motion was denied. As defendant now argues, plaintiffs’ claim has been rendered moot by the verdict rendered in defendant’s favor which we now affirm.

Plaintiffs also sought at trial to amend their complaint by adding two particular allegations of defect in the prescribing information for Mellaril; specifically, plaintiffs sought to allege a duty to warn patients about possible eye complications from use of the drug, and to allege that defendant should have directed physicians to conduct periodic eye examinations of their patients taking Mellaril. Plaintiffs now seek to have this court impose a requirement on drug manufacturers to include “patient package inserts” with all “dangerous drugs” that are dispensed. Such a ruling would not only negate the role of prescribing physicians as “learned intermediaries” between manufacturers and patients (Mahr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540; Buckner v. Allergan Pharmaceuticals, Inc. (Fla. App. 1981), 400 So. 2d 820), but would also circumvent the exclusive power of the Federal government to determine the contents of prescriptive information. (21 U.S.C. sec. 301 et seq. (1982).) Finally, as conceded by plaintiffs, the instant lawsuit is clearly governed by the substantive laws of Indiana, the place of the occurrence. Pursuant to the law of that State, defendant’s duty is limited to providing adequate warnings to prescribing physicians, and does not run to patients or the ultimate users of prescription drugs. Ortho Pharmaceutical Corp. v. Chapman (1979), 180 Ind. App. 33, 388 N.E.2d 541.

Plaintiffs next assert error in the jury instructions given and refused on the issues of proximate cause, the nature and scope of defendant’s duty to warn, and the definition of unreasonable danger. The record shows that the jury was fairly and adequately apprised of the elements of plaintiffs’ case.

Specifically, plaintiffs complain of the court’s refusal to give several negative instructions concerning defendant’s contentions that poor pharmacy records were the sole cause of plaintiff’s injuries. The trial court issued the long form of IPI Civil No. 15.01, which states:

“When I use the expression ‘proximate cause’, I mean any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.”

In addition, plaintiffs’ counsel was given substantial opportunity to impress upon the jury that the existence of contributing causes other than defendant’s inadequate warnings would not relieve defendant of liability. Under these circumstances, the jury was adequately instructed on the issue of proximate cause.

Similarly, the record fails to support plaintiffs’ remaining contentions regarding defendant’s duty to warn doctors, and the nature of the defect giving rise to liability. Where, as here, plaintiffs cannot show that they have been prejudiced by the giving or failure to give specific instructions, the case should not be reversed on such grounds alone. Trippel v. Lott (1974), 19 Ill. App. 3d 936, 312 N.E.2d 369, appeal denied (1974), 56 Ill. 2d 591.

Finally, plaintiffs argue that the jury’s verdict was against the manifest weight of the evidence. We believe that the facts and testimony which were before the jury show at least a proper basis for its verdict, and accordingly, we affirm the judgment of the trial court. Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 356 N.E.2d 779.

Affirmed.

HARTMAN, P.J., and DOWNING, J, concur.


author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE ex rel. E. ALLEN BERNARDI, Director of Labor, Plaintiff-Appellee, v. BETHUNE PLAZA, INCORPORATED, Defendant-Appellant.
    First District (2nd Division)
    No. 83—1984
    Opinion filed May 29, 1984.

      Edward A. Williams and David H. Goar, both of Chicago, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Leslie J. Rosen, Assistant Attorney General, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant appeals from an adverse judgment in a State action under the Unemployment Insurance Act (Ill. Rev. Stat. 1983, ch. 48, par. 300 et seq.) (Act) to collect delinquent unemployment insurance taxes assessed against defendant.

This appeal presents as issues whether: (1) the Act is unconstitutional as applied; and (2) the circuit court should have enjoined collection of the tax.

On November 6, 1979, the Director of the Illinois Department of Labor (Director) notified defendant that a determination and assessment under the Act had been rendered against it for unpaid contributions and interest for the first quarter of 1975 through the third quarter of 1978, totalling $41,372.76. This notice advised defendant that unless it filed a protest and petitioned for a hearing within 20 days, the determination and assessment would become final. A second such notice was served on defendant on August 28, 1980, advising it of its liability for $17,104.06 in contributions and interest, for the fourth quarter of 1978, the second quarter of 1979, and the first quarter of 1980. Both notices were accompanied by blank forms for defendant’s use in pursuing its administrative remedies. Defendant neither protested nor petitioned for an administrative hearing with respect to either determination and assessment.

For the period from January 1, 1975, through March 31, 1980, defendant paid the Federal Internal Revenue Service $78,956.37 for excise taxes owing under the Federal Unemployment Tax Act (I.R.C. secs. 3301 et seq. (1976)) (FUTA). In its brief, defendant alleges that these taxes were forcibly collected after Federal authorities levied on defendant’s assets to satisfy tax delinquencies.

On February 25, 1982, the State brought the instant action, pursuant to section 2206 of the Act (Ill. Rev. Stat. 1983, ch. 48, par. 686), to collect the unpaid taxes. Defendant’s answer and affirmative defense were stricken on motion and the circuit court entered judgment on June 16, 1983, nunc pro tunc as of May 10, 1983, in favor of the State in the amount of $83,923.49. After its motion for reconsideration was denied, defendant brought this appeal.

I

Defendant initially urges that the collection of the Illinois taxes in the instant situation constitutes punitive double taxation, depriving it of property without due process in violation of the fourteenth amendment to the United States Constitution. Defendant’s failure to exhaust its administrative remedies, as here, is ordinarily deemed a waiver of its right to judicially question the unconstitutional application of a statute. (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 552, 359 N.E.2d 113; Village of South Elgin v. Waste Management of Illinois, Inc. (1978), 62 Ill. App. 3d 815, 822, 379 N.E.2d 349.) This waiver issue is not raised by the State. The waiver rule is a restriction on the parties, not the court, and in the interests of a just result the merits of defendant’s challenge will be considered. Hux v. Raben (1967), 38 Ill. 2d 223, 225, 230 N.E.2d 831; People v. Walsh (1981), 101 Ill. App. 3d 1146, 1149, 428 N.E.2d 937.

Double taxation exists where both taxes are imposed for the same period of time, for the same purpose, upon the same taxpayer, and by the same taxing authority. (People ex rel. Toman v. Advance Heating Co. (1941), 376 Ill. 158, 163, 33 N.E.2d 206; People ex rel. Hanrahan v. Caliendo (1971), 50 Ill. 2d 72, 83-84, 277 N.E.2d 319, appeal dismissed (1972), 406 U.S. 965, 32 L. Ed. 2d 663, 92 S. Ct. 2412. See also 84 C.J.S. Taxation sec. 39 (1954); 71 Am. Jur. 2d State and Local Taxation sec. 31 (1973).) Although not constitutionally forbidden, double taxation is never presumed and is valid only where the legislature has unequivocally intended to impose such taxation. (Maass v. Higgins (1941), 312 U.S. 443, 449, 85 L. Ed. 940, 945, 61 S. Ct. 631, 634; People ex rel. Lindheimer v. Schweitzer (1938), 369 Ill. 355, 360-61, 16 N.E.2d 897; New York Central R.R. Co. v. Stevenson (1917), 277 Ill. 474, 481, 115 N.E. 633.) The taxes at issue here were imposed by separate governmental entities, which of itself would ordinarily put them outside the sphere of double taxation; however, defendant maintains their collection is for the same purpose and will benefit the same governmental entity, the State. We disagree.

Employers are required to pay simultaneously taxes based on gross wages under both FUTA and the Act. FUTA, however, provides for a 90% credit against monies collected under approved State laws, including the Act. (I.R.C. sec. 3302 (1976).) This credit device, interpreted as “obviously an invitation to the states to enter the field of unemployment insurance” (Standard Dredging Corp. v. Murphy (1943), 319 U.S. 306, 310, 87 L. Ed. 1416, 1420, 63 S. Ct. 1067, 1069), is allowed only for State taxes actually paid; it is disallowed for taxes levied but uncollected (Quality Coal Co. v. United States (D.C. Ark. 1946), 66 F. Supp. 105, 108). Defendant contends that payment of its full FUTA liability, without application of the credit, will result in the State’s ultimately receiving from defendant almost twice what it should, claiming that FUTA taxes it paid will eventually be returned to the State. Defendant suggests that a reciprocal credit should be applied against its State tax liability for the “excess” FUTA taxes it paid.

The concerns and goals of both Federal and State legislation in this area are identical: relief of the social problems occasioned by involuntary unemployment. (Charles C. Steward Machine Co. v. Davis (1937), 301 U.S. 548, 586-89, 81 L. Ed. 1279, 1290-92, 57 S. Ct. 883, 890-92; Ill. Rev. Stat. 1983, ch. 48, par. 300; Lindley v. Murphy (1944), 387 Ill. 506, 511, 56 N.E.2d 832.) In effectuating this common objective, State and Federal laws are closely interrelated and mutually interdependent. (See Rivard v. Bijou Furniture Co. (1941), 67 R.I. 251, 258-59, 21 A.2d 563, 567.) Nevertheless, impermissible double taxation is absent here because significant differences exist in how those goals are accomplished by State and Federal taxes.

Taxes collected by Illinois from employers under the Act are deposited by Illinois with the Secretary of Treasury of the United States, who accordingly credits the book account separately maintained for Illinois in the Unemployment Trust Fund (Fund). (42 U.S.C. sec. 1104 (1976); Ill. Rev. Stat. 1983, ch. 48, par. 660A.) Monies thus credited are then available for the State’s payment of unemployment benefits to eligible individuals and State administrative expenses. (42 U.S.C. sec. 1103(c)(1) (1976); Ill. Rev. Stat. 1983, ch. 48, par. 660B.) In contrast, excise taxes collected directly from employers under FUTA (I.R.C. sec. 3301 et seq. (1976)) are credited to the Fund’s employment security administration account. (42 U.S.C. sec. 1101(b)(1) (1976).) Only a portion of this account is available to a State to help defray some of its expenses in administering its unemployment compensation law (42 U.S.C. sec. 1101(c)(1)(A) (1976)). The account is also used to cover Federal Department of Labor and Treasury Department expenses (42 U.S.C. secs. 1101(c)(1)(B), 1101(c)(2) (1976)). Significant also is that the amounts available to individual States under FUTA for payment of administrative expenses are not determined by the taxes actually collected from those States, but are instead determined by the Secretary of Treasury on the basis of State population, the number of persons covered by the particular State law, the estimated costs of administration and other factors deemed relevant to the Secretary. 42 U.S.C. sec. 502(a) (1976).

Unless defendant pays its State tax there will be no funds thereby credited to Illinois’ Federal Treasury account from which to pay unemployment benefits, the principal objective of these laws. This fact alone compels us to reject defendant’s contentions. Further, Federal law provides no mechanism whereby “excess” FUTA taxes can be credited to a State’s individual account. This “flaw,” if any, inheres in the Federal scheme, not in the Act, and is beyond the purview of this appeal.

A similar conclusion was reached by the Court of Appeals of Kentucky in Shaw v. Kentucky Unemployment Compensation Com. (1944), 297 Ky. 815, 181 S.W.2d 697, the only reported case considering the issue presented here. There the State unemployment authority had obtained a judgment against the employer for delinquent State unemployment taxes; the employer nevertheless paid the Federal government an amount in excess of what otherwise would have been due had the 90% credit been applied. Denying the employer’s attempt to enjoin collection of the State tax, the court there emphasized the differentiation in uses made of the State and Federally collected monies and accordingly rejected the employer’s contention that the State and Federal taxes were the “same tax for the same purpose.” (297 Ky. 815, 817, 181 S.W.2d 697, 698.) The employer was seen to “occupfy] the same position with relation to the Federal tax as he would if the State had not taken advantage of the Act of Congress.” 297 Ky. 815, 819, 181 S.W.2d 697, 699.

Defendant points to certain provisions of the Act which it claims indicate a legislative intent not to impose a double tax. Section 2700D of the Act empowers the Director to enter into reciprocal arrangements with other governmental entities so that contributions paid by an employer to such other entities can be used to meet the employer’s liability under the Act, provided such arrangement permits the crediting of this State’s account in the Fund. (Ill. Rev. Stat. 1983, ch. 48, par. 760D.) These arrangements with the Federal government are inapplicable here, since the Director cannot require the Federal government to credit the State’s account in the Fund in contravention of Federal law governing the disposition of funds collected pursuant to FUTA. (See 42 U.S.C. sec. 1101 (1976).) Although section 2700E of the Act permits the Director to seek recovery of taxes erroneously paid to another taxing authority (Ill. Rev. Stat. 1983, ch. 48, par. 760E), the Federal tax here was not erroneously paid and this section is also inapplicable.

Defendant also suggests that it was not given sufficient notice that a reciprocal credit would not be applied against its State tax liability. Defendant did submit State tax returns for the periods at issue, but did not include payments therewith. Under these circumstances, its assumption that a reciprocal credit would be available was unwarranted. Defendant knew it owed both Federal and State taxes. It paid State taxes prior to 1975 and it was impliedly aware of the Federal tax credit. When it declined payment of its State taxes because of a “cash flow problem,” defendant was obliged to determine the consequences of its action, which deviated from customary tax payment procedure. There is no record showing that defendant made any attempt to contact the State regarding these taxes prior to the instant action. Relevant Federal and State statutes demonstrate the lack of reciprocal credit and defendant’s potential liability for the full amount of its Federal and State taxes. Defendant also is held to the knowledge that either the State or Federal authorities, or both, could act to forcibly collect their delinquent taxes.

Under the instant circumstances, the Act neither constitutes an impermissible double tax, nor does it deprive defendant of property without due process. We find no error.

II

Defendant lastly contends that the collection of the State taxes assessed against it should have been enjoined. It maintains that equity will enjoin the collection of unauthorized or illegal taxes. (Brown v. Jacobs (1937), 367 Ill. 545, 549-50, 12 N.E.2d 10.) Defendant’s State tax liability is authorized by the Act, however, and does not contravene any constitutional proscriptions.

Defendant urges further that the State tax collection should have been enjoined because it has no adequate remedy at law and might suffer irreparable harm. (See Lakefront Realty Corp. v. Lorenz (1960), 19 Ill. 2d 415, 417, 167 N.E.2d 236.) Defendant argues that even had it paid its State tax, it still could not obtain a refund of its “excess” Federal tax since the Federal statute of limitations governing refunds had expired. (I.R.C. sec. 6511(a) (1976).) Moreover, a State refund, available only where the State tax has been paid in full, was unavailable because the Director’s determination and assessment were final. (Ill. Rev. Stat. 1983, ch. 48, par. 681.) The doctrine of exhaustion of administrative remedies does not control, since it appears that the Federal government did not forcibly collect its delinquent taxes until after the State tax determination and assessment had become final, and therefore defendant could not have raised the equitable issue in an administrative hearing. (Chrysler Corp. v. Gunderson (1979), 77 Ill. App. 3d 558, 560, 396 N.E.2d 101.) Consequently, it insists, absent an injunction, defendant would be required to pay its full State tax liability, a circumstance which could allegedly render it insolvent.

Notwithstanding the foregoing contentions, the State tax was not “illegal,” “unauthorized,” or procured by fraud, necessary requirements before equity will enjoin a tax collection, even in the presence of irreparable harm and an inadequate legal remedy. (Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 104-05, 306 N.E.2d 299; Commonwealth Edison Co. v. Tucker (1980), 86 Ill. App. 3d 630, 634, 408 N.E.2d 364.) The circuit court did not err in denying defendant equitable relief.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

DOWNING and O’CONNOR, JJ., concur.


text:
      In re APPLICATION OF COOK COUNTY TREASURER AND EX-OFFICIO COUNTY COLLECTOR (1040 HOLLYWOOD BUILDING PARTNERSHIP et al., Plaintiffs-Appellants, v. EDWARD J. ROSEWELL et al., Defendants-Appellees).
    First District (4th Division)
    No. 83—360
    Opinion filed March 29, 1984.
    Modified on denial of rehearing July 5, 1984.

      James A. Rooney, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Thomas J. McNulty, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

On February 22, 1982, the defendant, Edward J. Rosewell, County Treasurer and Ex-Officio County Collector of Cook County (hereinafter the County), filed an application for judgment and order of sale against lands and lots upon which taxes remained unpaid for the year 1980 and prior years. Thereafter, on March 2, 1982, the petitioner, 1040 Hollywood Building Partnership, the owner of property at 1040 Hollywood in Chicago (hereinafter the taxpayer), filed a motion to dismiss the taxpayer’s property from the application and on March 4, 1982, the taxpayer filed a motion for the action to be maintained as a class action. The trial court entered an order for judgment and order of sale on March 5, 1982. Also on that date, the trial court ordered that the motion to dismiss be set for argument and that the motion to proceed as a class action be heard after the argument on the motion to dismiss if necessary. Subsequently, the taxpayer filed: a motion to vacate the March 5 order and dismiss the February 22 application for judgment on the grounds that there was a prior action pending pursuant to section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48(1)(c)), now section 2 — 619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(3)); a motion seeking relief in the alleged prior action pending pursuant to then section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72), now section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401); and a counterclaim under 42 U.S.C. secs. 1983, 1985 (1982) charging that various county officials engaged in a pattern of conspiracy to violate the taxpayer’s civil rights by failing to provide a hearing on the merits. The trial court denied the motions to dismiss and failed to grant relief in the alleged prior pending action. Further, the trial court dismissed the civil rights actions. On appeal the taxpayer seeks the relief that was denied him in the trial court and as a preliminary matter, seeks to dismiss this appeal for want of a final order.

The factual setting is that in 1969, the county filed an application for judgment and order of sale against the taxpayer’s property, 1040 Hollywood, for unpaid real estate taxes for the year 1968. This application is the alleged prior pending action which is the subject of the taxpayer’s motion to dismiss under section 48(1)(c) of the Civil Practice Act. The taxpayer notified the county assessor that the building on that property had been demolished so that the assessment of his property was inaccurate. The assessor filed an Objection 1 for the taxpayer regarding the 1968 taxes. An Objection 1 is an administrative device used by the assessor to signify the likelihood of an error in the assessment. (First Lien Co. v. Markle (1964), 31 Ill. 2d 431, 202 N.E.2d 26.) The Objection 1 served as a nonstatutory defense for the 1969 application for judgment. From the time the Objection 1 was filed, until May 24, 1978, a period of almost nine years, the case remained unadjudicated. On the above date, the trial court entered an order against the taxpayer’s property. The order denied the Objection 1 and “ordered the Cook County Collector to mark their books accordingly.” This is the order that the taxpayer asserts is nonfinal. The collector then marked his warrant books that the Objection 1 had been denied. However, the tax judgment, sale, redemption and forfeiture record was not marked, no judgment amount was ever noted on the official record and no sale was ordered.

After a lapse of nearly four years, from May 24, 1978, until February 22, 1982, the county collector filed another lawsuit seeking an application for judgment and order of sale to collect delinquent taxes for 1980 and prior years. Included in this action were the same taxes owed by the taxpayer for 1968 and which were the subject matter of the 1969 application. On March 5, 1982, the trial court entered judgment and order of sale on the 1982 application against numerous parcels including the 1040 Hollywood property. The taxpayer then filed motions as previously described, which were all subsequently dismissed. This appeal ensued.

The issue of what constitutes a final order in a tax proceeding arises in two separate guises in this appeal. The taxpayer contends that neither the order in the 1982 application for judgment nor the order in the 1969 application for judgment is a final order. He first contends as a preliminary matter that the order of judgment and sale in the 1982 application is not a final order and consequently this appeal should be dismissed. In the event that position fails, the taxpayer next contends that the order of judgment and sale in the 1969 application against his property is not a final order and consequently the 1969 application is still pending and that therefore the trial court should have dismissed the 1982 application insofar as it pertains to his property. From the record we have in this case we believe that the order entered in the 1982 application was final but that the order in the 1969 application was not a final order.

It is well settled in Illinois that in order for an order to be final in a tax objection proceeding it must be in compliance with section 235 of the Revenue Act of 1939 and enter judgment against the property for the amount of taxes due. (Ill. Rev. Stat. 1981, ch. 120, par. 716.) This court has interpreted section 235 to prescribe the required form of all judgment orders entered upon the application of the county collector for judgment and order of sale. (In re Application of Rosewell (1979), 78 Ill. App. 3d 769, 397 N.E.2d 232.) In In re Application of Rosewell, the court noted that the order entered neither described the property against which judgment was entered nor fixed the amount of tax due. Accordingly, the court held that such an order was neither a final order nor an interlocutory order appealable as of right. In re Application of Rosewell (1979), 78 Ill. App. 3d 769, 397 N.E.2d 232.

In the instant case, the order entered in the 1982 application appears to substantially comply with the required form set forth in In re Application of Rosewell and is therefore a final order. While the 1982 order did not contain the requisite information on its face, it did incorporate as a part thereof, documents filed with the court necessary to determine the specific parcels involved and the amount of tax due on each parcel. However, the order entered on May 24, 1978, regarding the 1969 application for judgment was not a final order in that as prescribed by section 235, the order failed to describe the 1040 Hollywood property, there was no notation in the tax judgment, sale, redemption and forfeiture record regarding 1040 Hollywood, no fixed amount of taxes due was noted and no sale was ordered. Because the order in the 1969 application was not final, that action is still pending and the taxpayer’s section 48 motion in the instant action, the 1982 application, is clearly appropriate.

However, the county contends that the taxpayer may not assert its section 48 defense to the 1982 application because pursuant to section 235 of the Revenue Act of 1939, in order for a taxpayer to assert any defense in an application for judgment, he must first pay the delinquent taxes under protest, and in the instant case, the taxpayer has not tendered any such payment. (Ill. Rev. Stat. 1981, ch. 120, par. 716; Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 306 N.E.2d 299.) Additionally, the county claims that the two applications for judgment, the 1969 and the 1982 applications are not between the same parties because in the 1969 application, the county assessor filed an Objection 1 thus making the parties to that action, the county collector and the county assessor, while in the 1982 application the taxpayer is the party to the action.

Addressing the county’s latter contention first, we disagree. The assessor’s role in the 1969 application was only to represent the taxpayer in asserting the Objection 1. Both applications for judgment were actually against the property, so that the owner of the property, the taxpayer, was the ultimate person responsible for payment and thus the real party in interest. (See In re Application of Cook County Collector (1980), 91 Ill. App. 3d 698, 414 N.E.2d 28.) Therefore, the county’s claim that the assessor rather than the taxpayer is the party to the 1969 application is without merit.

As to the county’s primary contention, while the revenue statute does prescribe prepayment as a prerequisite to raising objections to an application for judgment, we believe that the rationale for the section 48 motion to dismiss creates an exception that would place that motion outside the scope of section 235.

The purpose of section 48 is the elimination of repetitious suits and the relief of courts and litigants alike from the unnecessary burden of trying the same issues pending in another action. See Skolnick v. Martin (1964), 32 Ill. 2d 55, 203 N.E.2d 428. Furthermore, as far back as 1874, the Illinois Supreme Court recognized this problem and noted that it was unable to find any statutory authority for resorting, at the same time, to two or more proceedings of the same kind for the collection of the same tax. (Andrews v. People (1874), 75 Ill. 605.) The court in .Andrews found it unjust and oppressive to the taxpayer that he should be subjected to the annoyance and expense of defending against a multiplicity of proceedings of the same kind for collection of the same tax. Andrews v. People (1874), 75 Ill. 605, 609.

Such are the circumstances presently before this court. In 1969, the county filed an application for judgment against the taxpayer’s property for 1968 real estate taxes. In 1978, a nonfinal order was entered against that property, leaving the 1969 action still pending. In 1982, a second and completely separate application was filed against the taxpayer’s property for the collection of the same taxes sued for in the 1969 application. This is the type of conduct that the court in Andrews and section 48 of the Civil Practice Act explicitly denounces. We do not believe the provisions of the Revenue Act of 1939 were intended to be applied so as to subject a taxpayer to the harassment of multiple lawsuits. Therefore, we believe the trial court erred in its discretion in denying the taxpayer’s section 48 motion to dismiss the 1982 application.

The taxpayer also asserts that pursuant to section 72 of the Civil Practice Act, he is entitled to vacate the order entered in the 1969 application on May 24, 1978. (Ill. Rev. Stat. 1981, ch. 110, par. 72.) The taxpayer argues that he was invited by the defendants to file his section 72 motion in the instant matter and that it was as a result of the county’s insistence that the trial court had jurisdiction over the 1968 taxes in the 1982 application that he filed said motion. We find this position without merit. The language in section 72 is abundantly clear that of the requisite elements to file a section 72 petition, the petitioner must be seeking to vacate a final order or judgment and the petition must be filed in the same proceeding in which the order or judgment was entered. Ill. Rev. Stat. 1981, ch. 110, pars. 72(1), (2); Okumura v. Nisei Bowlium, Inc. (1976), 43 Ill. App. 3d 753, 357 N.E.2d 187; Mutual National Bank v. Kedzierski (1968), 92 Ill. App. 2d 456, 236 N.E.2d 336.

In the instant action, the taxpayer is attempting to vacate a nonfinal order. He is also attempting to do so by filing a petition in the 1982 application to vacate an order entered in the 1969 application. The taxpayer has failed to comply with the mandatory statutory provisions regarding a section 72 petition. He has failed to seek to vacate a final order and he has failed to file his motion in the same proceeding in which the order he seeks to vacate was entered. Therefore, the trial court was correct in dismissing the taxpayer’s section 72 motion.

Finally, the taxpayer seeks relief pursuant to Civil Rights statute (42 U.S.C. secs. 1983, 1985 (1982)). Under those two sections the taxpayer asserts that various county officials either conspired under section 1985 to deprive him of his constitutional right to equal protection or acted under color of State law under section 1983 to deprive the taxpayer of his constitutional right to due process. In oral argument the taxpayer has conceded that if we find that the 1978 order in the 1969 application was nonfinal and that therefore the 1982 application should be dismissed, then consequently, there will be no final deprivation, as the taxpayer will still have legal process with which to pursue. Accordingly, having already found the order in the 1969 application nonfinal, we agree that the taxpayer has not suffered a final deprivation and therefore does not have a cause of action under section 1983. See Beverly Bank v. Board of Review (1983), 117 Ill. App. 3d 656, 453 N.E.2d 96.

The remaining issue for our consideration is whether the county has deprived the taxpayer of his equal protection rights by conspiring to preclude the taxpayer the opportunity of a hearing on the merits. The taxpayer asserts that he was a member of the subclass that was denied equal protection in that this subclass did not get a hearing on the merits whereas everyone else did get such a hearing.

The taxpayer alleges three separate conspiracies that deprived him of equal protection: (1) in 1978, county officials conspired to change the procedures and terminate the Objection 1 proceedings without a hearing on the merits by submitting group denial lists; (2) in late 1981, or early 1982, county officials included the threatened subclass in the 1982 application for judgment and precluded them from asserting their equal protection rights to a hearing on the merits; and (3) after the filing of the 1982 application county officials conspired to prevent any payment under protest and to further deny the subclass’ equal protection rights to a hearing on the merits. In response to the taxpayer’s assertions, the county contends that the taxpayer does not have a civil rights action under 42 U.S.C. sec. 1985 (1982) because there are no constitutional rights implicated by an Objection 1 proceeding; thus, none could have been violated.

In order to state a claim for conspiracy under this sub-chapter, section 1985, it must be shown that the conspirators did in fact violate the constitutional rights of the claimant. (The Dells, Inc. v. Mundt (S.D. N.Y. 1975), 400 F. Supp. 1293.) In the instant case, the taxpayer claims he was denied equal protection by being precluded from a hearing on the merits in the Objection 1 proceeding on May 24, 1978. It has been established in Illinois that an Objection 1 procedure is a device unauthorized by statute and that a taxpayer may not rely upon an Objection 1 procedure for correction of alleged errors. (First Lien Co. v. Markle (1964), 31 Ill. 2d 431, 202 N.E.2d 26.) Rather, a taxpayer is provided with statutory remedies with which to protect his interest. (Ill. Rev. Stat. 1981, ch. 120, par. 675.) As a result of the procedures established above, it has been determined that a taxpayer does not have any constitutional rights in an Objection 1 proceeding. (First Lien Co. v. Markle (1964), 31 Ill. 2d 431, 202 N.E.2d 26; In re Application of County Treasurer (1978), 65 Ill. App. 3d 307, 382 N.E.2d 311.) Therefore, since the taxpayer does not have a constitutional right to a hearing on the merits in an Objection 1 proceeding, no constitutional right of the taxpayer could have been violated, thus there can be no violation of section 1985. Accordingly, we agree that the trial court correctly dismissed the taxpayer’s civil rights counterclaim.

The taxpayer raised a number of additional issues that we believe are not necessary for us to address on appeal, but rather are issues that can be raised at other proceedings at the trial level.

The judgment of the trial court is reversed as to the taxpayer’s motion to dismiss pursuant to section 48(1)(c) of the Civil Practice Act but is affirmed as to all other matters.

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