author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH BROWN, Defendant-Appellant.
    Second District
    No. 81—828
    Opinion filed March 8, 1984.
    Rehearing denied April 12, 1984.

      G. Joseph Weller and Michael F. Braun, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Cheri A. Novak, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendant, Keith Brown, was convicted of the offense of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1), following a jury trial. Judgment was entered on the jury verdict and he was subsequently sentenced to 10 years’ imprisonment. Defendant has appealed.

The State’s case against the defendant rested primarily on the testimony of the complaining witness, Karen Moravek. The substance of her testimony was that on May 23, 1981, at about 5:40 a.m., a man whom she later identified as the defendant attacked her in her house and forced her to have intercourse. Defendant’s defense, in addition to attempting to show inconsistencies in the victim’s testimony, consisted of the testimony of an alibi witness, his sister, and of his own testimony.

On appeal, defendant first contends that the testimony of the complaining witness, Karen Moravek, was so riddled with inconsistencies and weaknesses that the State did not satisfy its burden of proving the defendant guilty beyond a reasonable doubt.

The defendant argues that Moravek’s credibility was severely damaged by her failure to immediately tell the police the suspected identity of her assailant when she was initially questioned at her home. The record indicates that, upon the limited inquiry of Officer Diane Carlson, Moravek generally described her attacker as a black male, 6 feet 1 inch, 170 pounds, without facial hair and approximately 19 years old, and having a short afro hairstyle. However, she did not mention to the officer that she believed the attacker to be Keith Brown, a co-worker of her husband’s whom she had previously met several months before. In addition, at one point, defense counsel elicited from Moravek that her first statement to the assailant was “who are you.” Defendant argues that if Moravek was certain of defendant’s identity she would not have asked this question.

The defendant proceeds to challenge the lack of specificity in Moravek’s description of defendant. In particular, defendant notes that the witness was mistaken by five years in defendant’s age, two inches in his height, 30 odd pounds in weight, and she labeled defendant’s car a white LeMans with a creme top when in fact Keith Brown’s automobile is a white tan-topped Monte Carlo with opera windows and paint primer spots. Finally, defendant attempts to impeach Moravek by contending that she made certain inconsistent remarks as to the exact sequence of events on the morning of the rape.

Defendant concludes that since Moravek’s testimony is not clear and convincing, corroboration was necessary to sustain defendant’s conviction. (People v. Rodriquez (1978), 58 Ill. App. 3d 775, 778; People v. Kepler (1966), 76 Ill. App. 2d 135, 140-41.) According to the defendant, that corroboration is absent in the State’s case. A police fingerprinting of a mirror and telephone which the attacker allegedly grabbed while at the victim’s home was inconclusive. Defendant also argues that the hair, blood and saliva samples taken from Moravek and Brown were likewise inconclusive. While these tests do indicate that defendant could have been the rapist, Brown contends that the statistics represent mere probabilities and are insufficient to corroborate Moravek’s testimony.

In rebuttal, the State properly recognizes that if positive and credible, a complainant’s testimony alone is sufficient to sustain a rape conviction. (People v. Osborn (1977), 53 Ill. App. 3d 312, 323, cert denied (1978), 439 U.S. 837, 58 L. Ed. 2d 134, 99 S. Ct. 122.) Minor variances are mere discrepancies which go only to the issue of credibility (People v. Barr (1980), 85 Ill. App. 3d 992), and credibility is a function to be judged by the trier of fact (People v. Payton (1980), 84 Ill. App. 3d 181).

While there were undoubtedly. some minor discrepancies in Moravek’s testimony, the basic and critical elements of her testimony were consistently repeated, and apparently believed, throughout the trial court proceedings. Each of the purported weaknesses in Moravek’s testimony was successfully explained and accounted for at trial. For example, the fact that Moravek did not tell Officer Carlson the suspected identity of her attacker was related to her initial reluctance at hastily accusing a friend of her husband. Further, her physical description of defendant, although general in detail, was sufficiently accurate to coincide with defendant’s appearance. Obviously a frightened and emotionally distraught victim of a violent crime may not be able to describe her assailant with the exactitude demanded by inquisitive trial attorneys. The fact that a witness does not describe the specific physical features of her attacker does not destroy the credibility of that witness. (People v. Stanford (1975), 34 Ill. App. 3d 485, 488-89; People v. Utinans (1977), 55 Ill. App. 3d 306, 314-15.) Minor discrepancies in height, weight, age, etcetera are matters which a jury might rightfully consider in assessing the credibility of a certain •witness, but they are not generally a basis for the reversal of a conviction. See People v. Barr (1980), 85 Ill. App. 3d 992; People v. Payton (1980), 84 Ill. App. 3d 181.

Moravek’s misdescription of the defendant’s auto may likewise be excused on the basis that both her description and Brown’s actual vehicle were mid-1970’s, white tan-topped, American mid-sized cars. We do not expect ordinary citizens to be experts in making fine distinctions between the many vehicles Detroit produces. See People v. Adkins (1963), 29 Ill. 2d 332.

Finally, the corroborating physical evidence gleaned from police laboratory tests was considered by the trial court to be more illuminating than the defendant suggests. In particular, the vaginal swab taken from Moravek revealed that the rapist was a secretor with a type B blood, PBM type 2-1. Only 4.9% of the black population has these characteristics, and defendant matched these results. While mere physical probabilities might be insufficient alone to establish guilt beyond a reasonable doubt, they provide helpful corroboration to Moravek’s eyewitness testimony as to the crime in question.

Courts of review are charged with the duty of carefully examining the evidence in rape cases, and reversing a conviction if the evidence is insufficient to establish a defendant’s guilt beyond a reasonable doubt; however, in discharging this duty, an appellate court cannot encroach upon the function of the trier of fact to weigh credibility and assess the evidence presented. Consequently a reversal is permissible only where the evidence is so palpably contrary to a guilty determination, or so unreasonable, improbable, or unsatisfactory that it raises a reasonable doubt of defendant’s guilt. (People v. Genus (1979), 74 Ill. App. 3d 1002, 1008-09; People v. Reese (1973), 54 Ill. 2d 51, 58; People v. Szudy (1982), 108 Ill. App. 3d 599, 605; see People v. Secret (1978), 72 Ill. 2d 371.) In the present case, the victim had ample opportunity to view her assailant, her testimony was clear and convincing, and any minor variances and discrepancies in her recounting went only to the issue of credibility. The requirement that a prosecutrix’ testimony be clear and convincing does not mean it must be uncontradicted or unimpeached. (People v. Barr (1980), 85 Ill. App. 3d 992, 999.) Moreover, corroborating evidence was presented in the form of physical evidence as well as Moravek’s prompt complaint to police officers, her husband, and her mother. See People v. Secret (1978), 72 Ill. 2d 371; People v. Trejo (1976), 40 Ill. App. 3d 503, 509; People v. Utinans (1977), 55 Ill. App. 3d 306, 315.

The next issue raised by defendant on appeal is that the trial court erred when it prohibited defendant from cross-examining the complaining witness on her refusal to talk to defense counsel. Defendant contends that the judicial trend in Illinois is to permit the widest latitude possible in cross-examination of witnesses, and since inquiry into a witness’ refusal to talk with one side may affect that witness’ credibility in the minds of the jurors (see People v. VanZile (1977), 48 Ill. App. 3d 972; People v. Timmons (1983), 114 Ill. App. 3d 861; People v. Stout (1982), 110 Ill. App. 3d 830; People v. Foley (1982), 109 Ill. App. 3d 1010), the right to such cross-examination is absolute.

It is the defendant’s desire that this court follow the reasoning aptly stated in the VanZile decision:

“The credibility of a witness is always an issue — more correctly, in issue. A refusal to talk in advance of trial to the other side reasonably could indicate hostility by the witness to the inquiring side, or at least a bias for, or an interest in, a favorable outcome for the side calling him. ***
* * *
We may be crossing a threshold, but it seems to us that when one is asked to be interviewed on what his testimony will be, he declines at the risk that he may be asked later on at trial about such fact and his reasons therefor.” (48 Ill. App. 3d 972, 977-78.)

This court embraced the VanZile approach in People v. Smith (1977), 52 Ill. App. 3d 583. While the VanZile reasoning necessarily reduces the traditional discretion of a trial court regarding the breath of cross-examination (see People v. Peter (1973), 55 Ill. 2d 443, cert, denied (1974), 417 U.S. 920, 41 L. Ed. 2d 225, 94 S. Ct. 2627), the Timmons decision insightfully notes that this reduction is consistent with the trend toward more open criminal discovery. 114 Ill. App. 3d 861, 869.

It does not necessarily follow from the prior discussion however, that the trial judge committed reversible error in limiting defense counsel’s cross-examination of Karen Moravek. Absent a showing that the cross-examination was a material factor resulting in substantial prejudice to the defendant’s right to a fair trial, the trial judge’s error is harmless. (People v. Peter (1973), 55 Ill. 2d 443, 451-52, cert, denied (1974), 417 U.S. 920, 41 L. Ed. 2d 225, 95 S. Ct. 2627; People v. Olmos (1978), 67 Ill. App. 3d 281, 292-93.) The two cases defendant cites which purportedly address the present issue are unpersuasive. In People v. Foley (1982), 109 Ill. App. 3d 1010, the controverted cross-examination involved inquiry into an accomplice’s present parole status. The case does not speak to the issue of a witness’ failure to speak with defense counsel prior to trial. In People v. Stout (1982), 110 Ill. App. 3d 830, the trial court refused to allow defendant’s counsel to cross-examine the State’s witness, who was an accomplice to the crime, regarding that witness’ expectations of leniency in another prosecution in exchange for his testimony.

While the rulings in both Stout and Foley were matters of reversible error, the facts of the instant case are easily distinguishable. Karen Moravek was a victim of an extremely violent sex crime; consequently, unlike the situation of the witnesses in Foley or Stout, any hostility or bias would be self-evident to any jury. Express inquiry into Moravek’s refusal to talk with defense counsel would hardly alter the jury’s perception of her interest in the litigation or her general credibility. (See People v. Eddington (1979), 77 Ill. 2d 41.) The trial court’s decision to limit cross-examination of the prosecutrix did not interfere with defendant’s right to a fair trial and thus does not rise to the level of reversible error. People v. Martin (1978), 59 Ill. App. 3d 785; see People v. Wilkerson (1981), 87 Ill. 2d 151, 157.

The defendant’s third contention on this appeal is that the trial court erred in allowing the complaining witness and her boyfriend to testify as to her statements of prior identification. Urging that these conversations between Moravek and both her boyfriend and her mother constituted impermissible hearsay, defendant determinedly attempts to refute the propriety of the court’s actions in allowing this testimony. Defendant’s initial challenge focuses on two exceptions to the hearsay rule — prompt complaint in rape cases and spontaneous declarations — which he contends were inapplicable to the witness’ statements.

While defendant extensively argues the evidentiary rule of hearsay, it is unnecessary to address his contentions since the witnesses’ statements in the present case were not within the purview of the hearsay exclusion. The Hlinois Supreme Court clearly enunciated our State’s position on the issue in chief in the case of People v. Rogers (1980), 81 Ill. 2d 571. In substance, the court decreed that evidence of out-of-court identifications by an identifying witness, and any third person who saw or heard the identification, is admissible for the purpose of corroborating an in-court identification. Such corroboration is justified to rebut the notion that “by the time of trial the witness’ mind has become so conditioned that there is little likelihood that he would not identify the person in court.” (81 Ill. 2d 571, 578.) Thus, where the identifying witness herself is testifying, she may in fact be repeating an out-of-court assertion for the truth of the matter asserted, yet the opportunity for cross-examination is present and therefore the rationale for hearsay exclusion is absent. (81 Ill. 2d 571, 577; see also People v. Carpenter (1963), 28 Ill. 2d 116.) In very plain terms the court summarized the state of law in Illinois:

“To resolve the uncertainty as to the law in this State concerning evidence of out-of-court identification, we set forth herein the rules that should govern the admissibility of such evidence. If a third person were to testify that he saw or heard A identify B as the person who committed the offense, that would obviously and clearly be hearsay testimony and would not be admissible. However, if A testifies that he previously identified B and his veracity is tested by cross-examination, the reason for excluding the third person’s testimony has been removed. The third person should then be permitted to testify that he heard or saw A identify B because both A and the third person would be subject to cross-examination concerning the out-of-court identification. Evidence of such out-of-court identification by both A and the third person should be admissible but should be used only in corroboration of in-court identifications and not as substantive evidence. Before the third person is permitted to testify as to A’s identification of B, A should first testify as to his out-of-court identification.” (81 Ill. 2d 571, 579.)

The Rogers decision is dispositive of defendant’s initial contentions that Moravek’s conversation with her mother and with Hunter were inadmissible hearsay. (See People v. Williams (1981), 96 Ill. App. 3d 958; People v. Miller (1981), 101 Ill. App. 3d 1029.) Moravek’s statements to Hunter were introduced, and served, primarily as corroborative identification of her in-court identification of the defendant. Since both she and Hunter were available at trial for cross-examination, the rule of Rogers governs the disposition of the present issue. This conclusion obviates the need for discussing defendant’s contention, and the State’s rebuttal, regarding treatment of the' statements in question as spontaneous utterance exceptions to the hearsay rule.

In the alternative, defendant maintains that even if the conversations in issue were not inadmissible hearsay, they are still inadmissible as prior consistent statements. (People v. Fuelner (1982), 104 Ill. App. 3d 340; People v. DePoy (1968), 40 Ill. 2d 433; People v. Hahn (1976), 39 Ill. App. 3d 969.) Again, however, defendant misconstrues the state of law in Illinois regarding the admission of prior identification evidence. It is trae that a prior consistent statement is admissible only to refute an inference of motive to testify falsely or to rebut a showing of recent fabrication (People v. Clark (1972), 52 Ill. 2d 374); nonetheless this rale is inapplicable to identification testimony. (See People v. Andino (1981), 99 Ill. App. 3d 952, 956-57; People v. Rogers (1980), 81 Ill. 2d 571.) Evidence of Moravek’s prior identification of defendant was not barred by the hearsay rule, and the prior consistent statement rule is not applicable.

The last issue raised by defendant is whether the prosecutor’s comments during closing arguments, which referred to the absence of a subpoenaed alibi witness, constituted reversible error. In his rebuttal argument, the assistant State’s Attorney stated, “Now I don’t know why Mr. Tredwell [witness] isn’t here. Is he afraid to take the stand? Is he afraid to tell the truth? Will the truth hurt the defendant? I don’t know. He’s not here. I never got to talk to him. I don’t know. Keep that in consideration.” Defendant does not dispute that he failed to object to the allegedly improper comments but requests that this court review the matter under the doctrine of plain error. 87 Ill. 2d R. 615(a); People v. Scaggs (1982), 111 Ill. App. 3d 633; People v. Popely (1976), 36 Ill. App. 3d 828.

The parties do not disagree that while it is ordinarily error for a prosecutor to comment upon absent witnesses when such witnesses are equally accessible to the State, an exception exists where an alibi witness is injected into a ease by a defendant; in such case, the defendant’s failure to call that witness is an appropriate matter for comment by the State. (People v. Gaines (1982), 104 Ill. App. 3d 974, 977; People v. Blakes (1976), 63 Ill. 2d 354, 358-60.) However, defendant thereafter departs from concurrence with the State and relying upon People v. Smith (1969), 105 Ill. App. 2d 8, contends that an “exception to the exception” exists prohibiting comment on an absent alibi witness when the defendant subpoenaed the delinquent witness. We find that People v. Smith did not recognize any such “exception to the exception,” but held that while it was proper for the State to comment upon the absence of alibi witnesses, the prosecutor’s remarks in that case went far beyond mere comment and constituted error that deprived defendant of a fair trial. 105 Ill. App. 2d 8,12.

The real issue, therefore, is whether the prosecutor’s remarks in this matter exceeded the bounds of any permissible comment and constituted plain error. Here, the prosecutor’s remarks were primarily in the form of rhetorical questions and were in response to the comments defense counsel made in his closing argument. A defendant cannot ordinarily claim error where the prosecutor’s remarks are in reply to, and may be said to have been invited by, defense counsel’s argument. People v. Miller (1983), 115 Ill. App. 3d 592, 602; People v. Dixon (1982), 91 Ill. 2d 346, 350-51; People v. Vriner (1978), 74 Ill. 2d 329, 344, cert, denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858.

In his closing argument, defense counsel stated to the jury:

“Rick Tredwell, no show. I’m sorry he wasn’t here. You’re entitled to ask that question. That’s one I think we gave you a very good answer for. He was served with a subpoena. That is an order from the Court to be here. I can’t help it if he’s willing to violate that court order to get to New Jersey for a job interview. We brought you the people we could. We didn’t have to bring you anyone.”

The only evidence before the jury on this subject matter was the testimony of defendant’s investigator that he had served Tredwell with a subpoena the day before the trial and the testimony of the defendant’s sister that Tredwell had left for New Jersey on the morning of the trial. There was no testimony that Tredwell had left to attend a job interview in New Jersey as alleged by defense counsel in his closing argument; nor was there any other evidence introduced as to why Tredwell had left for New Jersey on the morning of trial.

While it is true that the permissible comment by a prosecutor on an absent alibi witness cannot include misleading, unfair, or unduly prejudicial content (see People v. McShan (1975), 32 Ill. App. 3d 1068, 1073; People v. Stephens (1974), 18 Ill. App. 3d 971, 979; People v. Smith (1969), 105 Ill. App. 2d 8, 10-11), we conclude, in view of the evidence in this case and in light of the defense attorney’s closing argument, the prosecutor’s comments were invited by, and in proper rebuttal to, defense counsel’s remarks. See People v. Miller (1983), 115 Ill. App. 3d 592, 602; People v. Dixon (1982), 91 Ill. 2d 346, 350-51; People v. Vriner (1978), 74 Ill. 2d 329, 344, cert, denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858.

Assuming arguendo that the prosecutor’s remarks went beyond the limits of propriety, under the total circumstances shown by the record in this case, they did not rise to the level of plain error.

The judgment of conviction and sentence of the trial court is affirmed.

Affirmed.

LINDBERG and HOPF, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDBERG

license: Public Domain

text:
    CASEY CHEW, Plaintiff-Appellee, v. WEBSTER GRAHAM, Defendant-Appellant.
    First District (1st Division)
    No. 83—1560
    Opinion filed March 12, 1984.
    Beerman, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin R. Becker, Susan L. Brody, and Howard A. London, of counsel), for appellant.
    Coghlan, Joyce, Nellis & Kelly, of Chicago (Thomas C. Nyhan and Anita M. D’Arcy, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

After an automobile collision at an intersection, Casey Chew (plaintiff) brought this action against Webster Graham (defendant). A jury found defendant was 97% negligent and awarded damages to plaintiff. Defendant appeals.

Plaintiff was driving west on 76th Street. As he approached the intersection with Morgan Street, he drove approximately 20 to 25 miles per hour. He saw his traffic light was red. He braked and slowed to 15 miles per hour. The light changed to green. He increased speed up to 20 miles per hour and proceeded through the intersection. He saw another automobile coming south on Morgan. He observed that this car was not going to slow down or stop. Plaintiff applied his brakes, blew his horn and stopped in the intersection. The other car collided with plaintiff’s bumper and the front of his car.

Plaintiff called James Gordon. He testified he was driving north on Morgan and made a right turn to go east on 76th Street. He saw defendant’s car proceeding south on Morgan. As Gordon proceeded on his turn, his traffic light changed from green to yellow and then to red as he turned. Gordon looked through his rearview mirror. He saw defendant’s car coming through the intersection. He heard brakes. He saw defendant’s car hit that of plaintiff. He stated that at the time of impact the light was green for westbound traffic on 76th Street. Gordon saw plaintiff’s car spinning about and saw defendant’s car cross the street to strike a fireplug on the southwest corner.

Gordon was fully cross-examined by counsel for defendant. No restriction was imposed by the trial court. When specifically asked by defense counsel about the change in his light as he turned, Gordon specified, “I was turning on the yellow.”

Defendant called Jerry Williamson. Williamson was walking north on the west side of Morgan. He intended to cross 76th Street. The traffic light was green for traffic on Morgan. The pedestrian “Walk” signal was on. The witness saw plaintiff driving west on 76th Street when plaintiff was a “couple” of car lengths from the intersection. Plaintiff was driving at a speed in excess of 30 miles per hour. The witness also saw defendant’s car going south at 15 to 20 miles per hour. Plaintiff’s car struck defendant’s car broadside. Plaintiff’s car spun around and stopped in the middle of the intersection. Defendant’s car struck the fire hydrant on the southwest corner.

Williamson testified on cross-examination he recognized the defendant as a customer. Williamson works in a store where defendant bought sandwiches. Williamson was being paid for his “time” in court. He spoke to defendant concerning this accident several times. He went to the office of defendant’s attorney with defendant and signed a statement in defendant’s presence. At the time of the collision, Williamson was south of his home which was six or seven houses south of the intersection. He conceded his written statement which said he saw defendant’s car spin about in the center of the intersection was “wrong.”

Defendant testified he was traveling south on Morgan about 100 feet from the traffic signal. This light was green for him. He focused his eyes on this light on the northwest corner. He looked to see if any traffic was heading west. He did not see plaintiff’s car prior to the impact. Plaintiff’s car collided with the driver’s side of defendant’s car.

Defendant’s attorney told the trial court he had one more witness who would come in “tomorrow morning.” The conference on instructions was completed. Next morning, James Gordon appeared in the courtroom pursuant to a subpoena by defendant. Defendant attempted to call Gordon for additional examination. After hearing argument of counsel, the trial court denied additional testimony from Gordon. However, the trial court permitted examination of the witness by defendant’s counsel out of the presence of the jury, limited to new material. Counsel for defendant questioned Gordon regarding the color of the traffic light as Gordon made his right turn eastbound. Gordon testified the light was changing as he made his turn and was green for plaintiff when Gordon’s turn was completed. Counsel for defendant had a prior written statement given by Gordon which he attempted to use for impeachment. In this statement, Gordon stated the light was changing as he cleared his turn. The trial court expressed the opinion that this statement was not impeaching. The case then proceeded to final argument and verdict.

The only contention raised in defendant’s brief is that the trial court erred in refusing to permit defendant to recall the witness Gordon for further cross-examination. This witness was originally called by counsel for plaintiff and testified on direct examination. He was fully cross-examined by counsel for the defendant at that time and dismissed. The request for additional examination of this witness by defendant came, in effect, after the close of testimony but before defendant had formally rested. Counsel for defendant desired to recall Gordon as his witness but only for the purpose of impeaching him.

In our opinion, the legal principles governing this situation are clear and established. The rule is well stated in Haas v. Tomaszek (1978), 56 Ill. App. 3d 656, 660, 371 N.E.2d 1240:

“It is within the discretion of the trial court to permit or deny a party’s request to recall a witness for further cross-examination, and the trial court’s determination in this regard will not be disturbed unless there has been an abuse of discretion. [Citation].”

In this regard, Haas cites Schutt v. Terminal Railroad Association (1967), 79 Ill. App. 2d 69, 76, 223 N.E.2d 264. Schutt is also cited for the identical conclusion in Rogus v. Continental Illinois National Bank & Trust Co. (1972), 4 Ill. App. 3d 557, 560, 281 N.E.2d 346.

As a matter of historical information, it is interesting to note that this principle regarding the authority of the trial court to conduct the trial was strongly established by the supreme court many, many years ago. In Cal Hirsch & Sons Iron & Rail Co. v. Coleman (1907), 227 Ill. 149, 154, 81 N.E. 21, the rule was stated that the right to recall a witness for additional cross-examination “is largely within the sound discretion of the trial court, and can only be reviewed when it is apparent that the refusal was an abuse of this discretionary power.”

We find the same principle stated with reference to the conduct of cross-examination in a case involving a workmen’s compensation claim. In Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 181, 399 N.E.2d 606, the supreme court stated, “[t]he scope and extent of cross-examination and re-cross-examination are within the discretion of the court.” The identical rule applies in criminal cases. A reviewing court will not interfere with rulings of the trial court regarding the latitude to be allowed in cross-examination without a clear abuse of discretion “resulting in manifest prejudice to the defendant ***.” (People v. Kline (1982), 92 Ill. 2d 490, 504, 442 N.E.2d 154.) The rationale of this strong principle of law needs no elucidation. If the trial court did not have firm control over the extent and scope of cross-examination, legal chaos would be the inevitable result.

Defendant contends there was a breach of discretion here because defendant should have been permitted to introduce the written statement by the witness Gordon. Defendant relies strongly upon the recent change in Supreme Court Rule 238 (87 Ill. 2d R. 238). Effective April 1, 1982, the supreme court amended that rule which presently reads as follows:

“Rule 238. Impeachment of Witnesses;
Hostile Witnesses
(a) The credibility of a witness may be attacked by any party, including the party calling him.
(b) If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination. ’ ’

It readily appears from this change that the purpose of this rule was to liberalize the practice so as to permit a party to cross-examine and discredit his own witness if required by the exigencies of trial. The general purpose of the amendment of the rule was to eliminate the last vestiges of the rule of practice which prevented a party from impeaching his own witness. The theory was that by calling the witness the party had “vouched” for his credibility. An excellent exposition of the theory behind this rule recently appeared in a legal publication. See McDonnell, Impeachment Of One’s Own Witness: An Overdue Change In Illinois Trial Practice, 71 Ill. B.J. 420 (1983).

Manifestly that amendment is completely immaterial in the case at bar. The witness Gordon was never called during the trial as a witness for the defendant. He was called and examined by plaintiff and tendered to defendant for cross-examination. Defendant always had the full right, even the duty, to cross-examine Gordon and to discredit and impeach him or to attack his testimony in any legal manner.

During cross-examination, counsel for defendant had possession of the out-of-court statement signed by the witness. Counsel had every right to confront the witness with this statement if it was contrary to his testimony. But, counsel for defendant never used the out-of-court statement but depended upon other cross-examination to further his cause. We see nothing further in this contention. It is apparent that the trial court was never even called upon to exercise discretion with reference to any attempted discreditation or impeachment of the witness Gordon.

In addition, we find no discrepancy of any kind in Gordon’s testimony. Gordon testified repeatedly regarding this narrow issue:

(1) He saw the traffic light for northbound traffic. In cross-examination he stated, “I was turning on the yellow.”

(2) Again in cross-examination he stated as he was making the turn, “the light changed; as I was making my turn he [plaintiff] proceeded to go west.”

(3) Also, during cross-examination the witness stated, “The light was changing to green for the Cadillac [plaintiff] going west; he proceeded to cross the street.”

(4) In the written statement Gordon said, “The Cadillac had the green light because the light was changing as I cleared my turn.”

(5) On his direct examination Gordon testified, “The light is changing; I make the right-hand turn. *** As I made my turn it changed to red for north and southbound traffic.”

(6) On direct examination he also testified that “at the time of the collision the light was green for westbound traffic ***.”

Thus it seems to us as a practical matter that both sides examined the witness fully on this detail. The testimony of this witness was completely presented and was all before the jury for their use.

Defendant admits he did not intend to call Gordon to elicit substantive evidence but only to impeach his earlier testimony. The offer of proof made by defendant out of the presence of the jury does not in any manner change the situation. The witness repeatedly stated that the light was yellow as he proceeded to make the turn but that it changed to green. Actually it would be impossible for any person to be more accurate. The process of “making the turn” took some time and the precise and exact condition of the light during the turn was impossible of completely accurate delineation.

The judgment appealed from is accordingly affirmed.

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE SULLIVAN

text:
    CATHY KINSER MAURO, Plaintiff-Appellee, v. DR. DEAN PETERSON, Defendant-Appellant.
    First District (5th Division)
    No. 83—1485
    Opinion filed March 9, 1984.
    Edward T. Butt, Jr., and Steven M. Pontikes, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellant.
    Mitgang, Levine and Schwartz, and Goldberg & Goldberg, both of Chicago (John B. Schwartz, Carl Nusbaum, and Michael J. Radtke, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308) from an order of the circuit court of Cook County denying defendant’s motion to transfer venue to Livingston County and certifying the following question of law for our review:

“Whether an objection to venue, raised in a timely fashion by Motion to Transfer Venue is waived once the defendant files a general appearance.”

In granting defendant’s application for leave to appeal, we agreed with the trial court’s determination that this question raises a substantial basis for a difference of opinion, and that an immediate appeal could materially advance the ultimate termination of the litigation.

Plaintiff’s complaint alleged various acts of medical malpractice in defendant’s treatment of plaintiff when she was an inmate at the Dwight Correctional Center in Livingston County, Illinois. Defendant was served with a summons and a copy of the complaint, and he timely and simultaneously filed a general appearance with a motion to transfer for improper venue, supported by an uncontradicted affidavit stating that he was a resident of Livingston County; that all medical treatment complained of by plaintiff was administered in Livingston County; and that venue in Cook County was therefore improper and should be transferred to Livingston County. After a hearing, the trial court denied defendant’s motion and certified the aforementioned question of law for our review.

Opinion

Initially, we note that section 2 — 101 of the Code of Civil Procedure (the Code) provides, in pertinent part:

“Except as otherwise provided in this Act, every action must be commenced (a) in the county of residence of any defendant *** or (b) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.
If all defendants are nonresidents of the State, an action may be commenced in any county.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 101.)

This section is designed to insure that the action will be brought either in a location convenient to the defendant or to potential witnesses (Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 368 N.E.2d 88), and while proper venue is a valuable privilege conferred on a defendant (Turner v. Commonwealth Edison Co. (1978), 63 Ill. App. 3d 693, 380 N.E .2d 477), the right to it may be waived by failure to make a timely objection to improper venue (Howell v. Borgsmiller (1980), 88 Ill. App. 3d 961, 411 N.E .2d 47), as required by section 2 — 104(b) of the Code, which states:

“(b) All objections of improper venue are waived by a defendant unless a motion to transfer to a proper venue is made by the defendant on or before the date upon which he or she is required to appear or within any further time that may be granted him or her to answer or move with respect to the complaint ***.” Ill. Rev. Stat. 1981, ch. 110, par. 2 — 104(b).

Defendant contends that by casting his objection to venue in the form of a motion to transfer the case to a court of allegedly proper venue, and by filing the motion within the time prescribed — in this case within 30 days from the date of service of summons — he has fully complied with section 2 — 104 of the Code and that his motion to transfer venue therefore should have been granted. See Ill. Ann. Stat., ch. 110, par. 2 — 104, Historical and Practice Notes, at 92 (Smith-Hurd 1983).

Although plaintiff does not challenge the form, timeliness, or merits of defendant’s motion to transfer, she posits that under section 2— 104 and prevailing case law, defendant’s right to object to venue was waived by his simultaneous filing of a general appearance with his motion. She argues that to avoid a waiver, defendant should have (1) filed a motion to transfer under section 2 — 104, unaccompanied by an appearance of any kind, within the time he was required to appear (30 days after service of summons) under Supreme Court Rule 181(a) (87 Ill. 2d R. 181(a)); or (2) filed a special and limited appearance for the sole purpose of contesting venue.

With respect to the first argument, plaintiff urges that the absence of any requirement in section 2 — 104 that a motion for a transfer of venue be accompanied by an appearance must be interpreted as a “warning” to defendants that no appearance should be filed; i.e., that this section exists as an alternative to the filing of an appearance. We disagree. Section 2 — 104(b) merely requires that an objection to venue be made by a motion to transfer on or before the date defendant is required to appear. We find nothing additional therein which can be interpreted as providing that such a motion must be filed in lieu of a general appearance or that a venue objection is waived if a general appearance is filed. Furthermore, as defendant correctly states, it is well settled that any action taken by a litigant which recognizes the case as being in court will amount to a general appearance unless such action was for the sole purpose of objecting to the jurisdiction over his or her person. (Lord v. Hubert (1957), 12 Ill. 2d 83, 145 N.E.2d 77; Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 408 N.E.2d 1014.) Here, defendant acknowledges that as an Illinois resident he had no grounds to contest jurisdiction over his person; thus, even if he had filed a motion to transfer venue unaccompanied by an appearance, it would have been an act which, under both Rule 181(a) and existing case law, constituted a general appearance. Under plaintiff’s reasoning, this would have resulted in a waiver of the venue objection raised by the motion. We do not believe that the legislature intended such an incongruous result.

Plaintiff’s alternate argument, that defendant should have preserved his objection to venue by filing a special and limited appearance for the sole purpose of contesting venue, is equally untenable. Section 2 — 301(a) of the Code clearly states:

“Special Appearance, (a) Prior to filing any other pleading or motion, a special appearance may be made *** for the purpose of objecting to the jurisdiction of the court over the person of the defendant. *** Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 301(a).)

As noted above, while defendant maintains that venue should be in Livingston County, he had conceded that the Cook County circuit court had jurisdiction over his person. Thus, if a special appearance had been filed by defendant to contest venue, it would have constituted a general appearance, since it was not an objection to jurisdiction, and as we have concluded above, such an appearance does not waive a venue objection.

We also note, from our review of the transcript of its hearing, that the trial court apparently denied defendant’s motion to transfer on the basis of certain language in Nemanich v. Dollar Rent-A-Car Services, Inc. (1980), 90 Ill. App. 3d 484, 413 N.E.2d 178, which in our opinion does not support plaintiff’s position. In Nemanich, a Lake County, Illinois, resident filed a defamation suit in that county against two foreign-based corporations licensed to do business in Illinois, one of which entered its general appearance on March 26 and then, on May 21, filed a “motion to transfer” asking that plaintiff be directed to institute his suit in California in accordance with the doctrine oí forum non conveniens. The trial court granted the motion, and the issue on appeal was whether the dismissal on the basis of forum non conveniens was proper. This court noted that “a general appearance constitutes a waiver of venue objections” (90 Ill. App. 3d 484, 487, 413 N.E.2d 178, 181), but then held that the waiver did not apply to venue objections based on forum non conveniens.

The trial court here, in finding that defendant waived his venue objection, relied upon the statement in Nemanich that a general appearance constitutes a waiver of venue objections. In making that statement, the court in Nemanich cited as authority therefor section 8(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 8(2)), which is the substantively identical predecessor of section 2 — 104, and Haas v. Pick Galleries, Inc. (1973), 12 Ill. App. 3d 865, 299 N.E.2d 93.

We have found above, however, that under section 2 — 104 a general appearance does not waive venue objections, and we also find no support in Haas for the statement in Nemanich that a general appearance constitutes such a waiver.

In Haas, the issue on appeal was the timeliness of the defendants’ motion to transfer venue, which was made at the commencement of trial more than 16 months after their appearance, answer, and counterclaim were filed. Haas merely affirmed the lower court’s denial of the motion to transfer “because ‘it did not come timely’ ” since defendants had not complied with section 8(2) which, like section 2— 104, required that the filing of such a motion be on or before the date scheduled for appearance. (12 Ill. App. 3d 865, 867, 299 N.E.2d 93, 94. ) Nothing in Haas, however, states or even remotely suggests that the general appearance itself waived the venue objection. Furthermore, as noted above, the issue in Nemanich was the propriety of a dismissal based on forum non conveniens, and the effect of a general appearance on a motion objecting to venue was neither in issue nor germane to the issue presented. It is therefore our view that the Nemanich court’s statement that a general appearance waives an objection to venue was unsupported dictum.

We conclude that an objection to venue, when raised by a timely motion to transfer, is not waived by the filing of a general appearance, and accordingly, the order denying defendant’s motion to transfer venue is reversed and this matter is remanded for further proceedings.

Reversed and remanded.

LORENZ and WILSON, JJ., concur.


text:
    THE BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 170, COOK COUNTY, Plaintiff-Appellant, v. THE ILLINOIS STATE BOARD OF EDUCATION et al, Defendants-Appellees.
    First District (5th Division)
    No. 83—2108
    Opinion filed March 9, 1984.

      Robert H. Ellch and Thomas J. Canna, both of Scariano, Kula & Associates, P.C., of Chicago Heights, for appellant.
    Julia Quinn Dempsey and David A. Thompson, both of Chicago, for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiff Board of Education of School District No. 170 (district) appeals from the dismissal of its petition to recover the expenses of litigation, including attorney fees, pursuant to section 14.1(b) of the Illinois Administrative Procedure Act (section 14.1(b)) (Ill. Rev. Stat. 1981, ch. 127, par. 1014.1(b)). The sole issue before us is the applicability of section 14.1(b) to litigation commenced prior to its January 1, 1982, effective date.

In 1971, the Illinois Superintendent of Public Instruction promulgated Rules and Procedures for the Elimination and Prevention of Racial Segregation in Schools (rules) which were subsequently adopted by the Illinois State Board of Education (Board). Shortly thereafter, the district was notified that it was not in compliance with those rules and was required to take affirmative steps to correct alleged racial imbalance in its schools. On April 21, 1976, after several years of discussion regarding the situation, the district was placed on probationary recognition status for its purported noncompliance and directed to submit a comprehensive desegregation plan. Two such plans were submitted, but the Board rejected them and, in July of 1977, the district was notified that unless it requested an administrative hearing within 30 days, it would be placed on nonrecognition status, jeopardizing its receipt of Federal funds. In response to this threatened action, the district filed suit on August 27, 1977, seeking a declaration that the rules were invalid, and on November 21, 1979, the trial court entered an order finding that the rules were arbitrary, capricious, and illegal and enjoining their enforcement. That determination was subsequently affirmed on appeal by decisions of this court (Chicago Heights Public School District 170 v. Illinois State Board of Education (1981), 97 Ill. App. 3d 246, 422 N.E.2d 898) and of the supreme court (Aurora East Public School District No. 131 v. Cronin (1982), 92 Ill. 2d 313, 442 N.E.2d 511), holding that the Board had acted beyond the scope of its statutory authority in promulgating the rules.

While the Board’s appeal was pending before the supreme court, the General Assembly enacted section 14.1(b), effective January 1, 1982, which provides in relevant part:

“In any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency’s exceeding its statutory authority ***, the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorney’s fees.” (Ill. Rev. Stat. 1981, ch. 127, par. 1014.1(b).)

Pursuant thereto, the district filed the instant petition in the circuit court on February 23, 1983, seeking to recover $130,417.78 in expenses, including attorney fees, purportedly incurred in the above litigation. The Board moved to dismiss the petition on the grounds that section 14.1(b) was unconstitutional and contrary to public policy and that it could not be applied retroactively. Without reaching the other issues, the trial court ruled that section 14.1(b) was inapplicable because it was not in effect when the rules were declared invalid in 1979. The petition was therefore dismissed, and this appeal followed.

Opinion

The district acknowledges that litigation expenses, including attorney fees, are not recoverable unless specifically authorized by statute or provided for by contract (Midwest Concrete Products Co. v. La Salle National Bank (1981), 94 Ill. App. 3d 394, 418 N.E.2d 988), and that, ordinarily, statutes which create new obligations are applied only prospectively in the absence of express language to the contrary (Nelson v. Miller (1957), 11 Ill. 2d 378, 143 N.E.2d 673). Nevertheless, it contends that section 14.1(b) may be applied retroactively, arguing that it is a mere change in remedy or procedure of the type courts have found applicable to litigation pending at the time of enactment.

The general rule regarding the retroactive application of statutes is well established: :

“When a change of law merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure, without regard to whether they accrued before or after such change of law and without regard to whether or not the action has been instituted, unless there is a saving clause as to existing litigation. [Citations.] Changes in procedure or existing remedies will not be applied retrospectively, however, where a vested, constitutionally protected right will be deprived by such application. [Citation.]” (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390-91, 415 N.E.2d 1034, 1042.)

In applying this general principle, courts have permitted retroactive application of statutory amendments affecting jurisdiction and procedures for service of process (Nelson v. Miller (1957), 11 Ill. 2d 378, 143 N.E.2d 673; Ogdon v. Gianakos (1953), 415 Ill. 591, 114 N.E.2d 686; In re Marriage of Levy (1982), 105 Ill. App. 3d 355, 434 N.E.2d 400), since such changes do not affect the substantive rights of the parties, but merely govern the manner and forum in which those rights may be enforced. Similarly, changes in a statute of limitations have been applied retroactively where the party affected has a reasonable time within which to bring an action after enactment of the change (Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 122 N.E.2d 513; cf. In re Petition of Monaco (1936), 287 Ill. App. 540, 5 N.E.2d 755 (amendment which affected merely choice of remedies, without destroying cause of action, applied retroactively)), but denied where the effect would be to totally bar a cause of action without allowing the party a reasonable time within which to commence suit (Hogan v. Bleeker (1963), 29 Ill. 2d 181, 193 N.E.2d 844; cf. Matviuw v. Johnson (1982), 111 Ill. App. 3d 629, 444 N.E.2d 606 (amendment barring discovery, through procedural in nature, would not be applied retroactively where effect would be to destroy substantive rights)).

It is the district’s position that these cases are dispositive of the issue before us, maintaining that the Board has no “vested right” which would be disturbed by retroactive application of section 14.1(b), and that, since the statute is remedial in nature, the general principle set forth above mandates retrospective application. However, we do not find the concept of “vested rights” particularly helpful in the instant case where we are concerned not with a mere change in an existing procedure or remedy, but imposition of an obligation on defendant which heretofore did not exist. If the existence of a “vested right” were the sole criterion, then defendants would have no protection from the imposition of newly created remedies for past actions, for it can hardly be said that anyone has a “vested right” in that which does not exist. Yet, despite the absence of a “vested right,” courts have not uniformly imposed new remedies retroactively. For this reason, we have found it necessary to consider cases in which other courts have confronted this issue, and it appears from our analysis of those decisions that while courts employ varying reasoning, certain common elements are discemable and, we believe, determinative of this question.

We begin our analysis with two cases cited by the district which purport to apply retroactively statutory changes adversely impacting on a defendant. In Songer v. State Farm Fire & Casualty Co. (1980), 91 Ill. App. 3d 248, 414 N.E.2d 768, the court considered the applicability of an amendment to section 155 of the Illinois Insurance Code (section 155) (Ill. Rev. Stat. 1981, ch. 73, par. 767) providing for the imposition of attorney fees upon a finding that an insurance company’s refusal to settle a claim was vexatious and unreasonable. At the time of the incident giving rise to liability under the policy in Songer, section 155 provided for recovery of attorney fees not to exceed $1,000 (Ill. Rev. Stat. 1975, ch. 73, par. 767); however, prior to issuance of a declaratory judgment in that action, section 155 was amended to remove the fixed limit on the amount of attorney fees recoverable (Ill. Rev. Stat. 1979, ch. 73, par. 767). In reversing the trial court’s decision to apply the statute as it existed prior to the amendment, this court stated:

“We believe that the trial court erred in applying the earlier version of the statute. Both versions provide for the recovery of attorney’s fees '*** as part of the taxable costs in the action ***.’ [Citations.] It has been held that there is no vested right in any particular remedy or method of procedure, and statutory amendments affecting procedural rights, including recovery of costs and attorney’s fees, should be applied in litigation instituted prior to the amendment, in the absence of a savings clause pertaining to existing litigation.” (91 Ill. App. 3d 248, 254, 414 N.E.2d 768, 772.)

Similarly, in People v. Frieder (1980), 90 Ill. App. 3d 116, 413 N.E.2d 432, the court applied retroactively an amendment to section 41 of the Civil Practice Act (section 41) (Ill. Rev. Stat. 1979, ch. 110, par. 41), which provides for the recovery of expenses, including attorney fees, incurred in responding to untrue pleadings. At the time the allegedly false pleadings were filed in Frieder, section 41 required the party seeking recovery to show that the opponent’s allegations were made without reasonable cause, were not made in good faith, and were found to be untrue. (Ill. Rev. Stat. 1975, ch. 110, par. 41.) Shortly thereafter, during the pendency of litigation and prior to the filing of a petition pursuant to section 41, an amendment eliminated the requirement that the movant prove lack of good faith. (Ill. Rev. Stat. 1979, ch. 110, par. 41.) We affirm the trial court’s application of the amended version of section 41, stating that “[a] party’s statutory burden of proof cannot be governed by a statute no longer in effect at the time the proceeding in which that party has the burden is initiated.” 90 Ill. App. 3d 116, 120, 413 N.E.2d 432, 436.

Thus, in Songer, the court clearly premised its ruling on the general principle espoused by the district here; i.e., that statutory amendments which affect merely a remedy or a rule of procedure will be applied retroactively. Frieder reaches the same result, albeit without reference to the precise theory; however, we observe two common elements in those cases which are absent here. First, the statutory amendments altered existing remedies, they did not impose new obligations. In Songer, the insurance company was on notice that its vexatious and unreasonable conduct in refusing to settle could expose it to liability for attorney fees; the only change effected by the amendment was the amount of its potential liability. Similarly, in Frieder, the third-party complainant was on notice that the filing of untrue pleadings could subject it to liability; the only change was in the movant’s burden of proof. Second, and perhaps more importantly, in both cases the party affected could have avoided liability even after the amendments — in Songer by settling, and in Frieder by amending the untrue pleadings.

In the instant case, the Board’s action purportedly giving rise to liability under section 14.1(b) is its attempt to enforce invalid rules in 1977. It clearly had no notice at that time that its actions could subject it to liability for the opposing party’s expenses should the rules subsequently be declared invalid. In addition, when section 14.1(b) became effective on January 1, 1982, the Board was no longer in a position to avoid liability; the rules had been declared invalid in 1979, and the Board .could not then undo the actions it took in 1977.

It appears to us that other courts have found this distinction important in determining whether to apply retroactively a statute creating a new obligation to compensate the opposing party for the expenses of litigation. In Horsford v. Rei (1978), 375 Mass. 783, 377 N.E.2d 427, the court refused to give retrospective application to a statute providing for the award of expenses for insubstantial, frivolous, or bad-faith claims or defenses where judgment was rendered prior to the effective date of the statute, even though the petition for expenses was filed after that date. Clearly, under those circumstances, the party against whom liability was sought was not on notice that his action in filing suit might impose liability upon him, even though he had no “vested right” to file an insubstantial, frivolous, or bad-faith claim. In addition, since the statute became effective after judgment was rendered, the plaintiff was no longer able to avoid liability, or at least limit the extent of his liability, by seeking a voluntary dismissal of his action. Similarly, in Bouldin v. Turek (1979), 127 Ariz. 77, 607 P.2d 954, the court refused to apply a statute allowing recovery of attorney fees by the prevailing party in a suit arising out of a contract to an action commenced before the effective date of the statute. Although the court in Bouldin predicated its decision on a finding that the imposition of attorney fees is a substantive rather than a procedural change, it seems that, in that case, the party sought to be held liable also had no notice that its actions might subject it to liability, and had no opportunity thereafter to avoid liability.

In contrast to Bouldin, a similar statute was held applicable where it became effective after the contractual cause of action accrued, but before suit was commenced. (Barboto, Super & Robinson, Inc. v. Koerner (La. App. 1981), 394 So.2d 820; see also Cutter Flying Service, Inc. v. Straughan Chevrolet, Inc. (1969), 80 N.M. 646, 459 P.2d 350.) Under those circumstances, the party sought to be held liable had notice that its actions could give rise to liability for expenses, and had ample opportunity to avoid that liability.

It is our view that the instant situation is analogous to those cases wherein the court refused to give retroactive application to a statute imposing liability for the opposing party’s litigation expenses. In each case, (1) liability did not exist prior to enactment of the legislation; (2) the conduct giving rise to possible liability occurred prior to the statute’s effective date; and (3) the party against whom expenses were sought could not avoid or limit its liability by any action taken after the statute’s effective date. (Compare Overseas African Construction Corp. v. McMullen (2d Cir. 1974), 500 F.2d 1291 (statutory amendment affecting imposition of litigation expenses applied to fees incurred after its effective date on a finding that the affected party was thereafter on notice that its continued action in resisting liability could subject it to the imposition of costs).) For these reasons, we believe that section 14.1(b) is a new obligation, which is to be given prospective application in the absence of legislative intent to the contrary, rather than a mere change in remedy or procedure of the type which may be applied retrospectively.

The district further asserts, however, that the Board did have notice of its potential liability for attorney fees, and that the application of section 14.1(b) is therefore proper. In support of its argument, it analogizes the facts of this case to those in Bradley v. School Board (1974), 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006, wherein the United States Supreme Court gave retroactive application to section 718 of title VII of the Emergency School Aid Act (20 U.S.C. sec. 1617 (1976)). A detailed analysis of that case is necessary to an understanding of the district’s position and our response thereto.

In Bradley, a class action brought in 1961 to force desegregation of the Richmond public schools resulted in approval of a desegregation plan submitted by the defendant, subject to continued court supervision. Thereafter, it became apparent from decisions of the supreme court in other cases that the Bradley plan was constitutionally inadequate; however, the defendant therein took no action to modify its plan, and the plaintiffs were forced to petition for further relief in 1970. That relief was granted in 1972, and the trial court also awarded attorney fees for the 1970-72 litigation pursuant to its common law equitable powers upon a finding that (1) the defendant had unreasonably delayed compliance with relevant legal standards; and (2) the plaintiffs were acting as private attorneys general in seeking to vindicate important public rights. While the defendant’s appeal of that award was pending, section 718 was enacted, granting Federal courts statutory authority to award a reasonable attorney fee in an appropriate school desegregation case. The Supreme Court held that the Circuit Court of Appeals erred in refusing to apply section 718 to affirm the award, stating that “a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” (416 U.S. 696, 711, 40 L. Ed. 2d 476, 488, 94 S. Ct. 2006, 2016.) The court went on to hold that there was no manifest injustice in applying section 718 retroactively, specifically noting that, at the time the defendant engaged in the conduct giving rise to liability, it was aware that its course of action could subject it to the payment of the opposing party’s litigation expenses under then-existing common law principles. 416 U.S. 696, 721, 40 L. Ed. 2d 476, 493-94, 94 S. Ct. 2006, 2021.

Far from supporting the district’s position, we believe that Bradley offers further justification for our view that, in the instant case, application of section 14.1(b) would be unfair. As noted, the Supreme Court in Bradley found that the defendant therein, unlike the Board here, was on notice at the time it acted that its conduct could give rise to liability for expenses; section 718 merely provided an additional basis for imposing that liability. This same analysis is clearly evident in Northcross v. Board, of Eduction (6th Cir. 1979), 611 F.2d 624, and Wharton v. Krefel (8th Cir. 1977) 562 F.2d 550, cited by the district, wherein the Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C. sec. 1988 (1976)) was given retroactive application. Moreover, in these latter cases, the courts also noted that the legislative history of that Act clearly evidenced Congress’ intention that it be applied to pending litigation (see Wharton v. Knefel), further supporting its retroactive application.

The district argues that section 14.1(b) is merely an expansion of the Board’s liability under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611); therefore, it posits, the Board was on notice that its conduct could give rise to liability for the expenses of litigation, rendering its analogy to Bradley valid. We disagree. Section 2 — 611 provides in pertinent part that “[a]llegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee ***.” We fail to see how notice that it could be liable for the consequences of untrue pleadings can be equated with notice that its conduct in seeking to enforce its rules could give rise to liability for all of the district’s expenses in seeking to have those rules declared invalid. In Bradley, the conduct giving rise to liability for expenses under section 718 was the same conduct which gave rise to liability under common law theories; the defendant therein knew the consequences at the time it acted and could have avoided them. Here, there is no relationship between the conduct sought to be proscribed by section 2 — 611, filing untrue pleadings, and the conduct proscribed by section 14.1(b), enforcement of rules later found to be invalid. Thus, at the time it acted, the Board had no notice of the consequences of its conduct so that it might avoid liability.

Although we have determined that section 14.1(b) imposes a new obligation of the kind which requires prospective application, our analysis is not complete, for even new obligations may be applied retrospectively if the legislature so intends. (Nelson v. Miller (1957), 11 Ill. 2d 378, 143 N.E.2d 673.) In United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 204 N.E.2d 4, the supreme court held that a statute imposing fees to compensate the State for the cost of supervising credit unions (Ill. Rev. Stat. 1963, ch. 32, par. 496.25) could be applied retroactively, noting that “[r]etroactive legislation is not favored, and as a general rule statutes are construed to operate prospectively unless the legislative intent that they be given retroactive operation clearly appears from the express language of the acts, or by necessary or unavoidable implication.” (32 Ill. 2d 138, 142, 204 N.E.2d 4, 6.) There, the court looked not only to the logical interpretation of the statute’s language, but to its purpose, and found that purpose best served by retroactive application.

We find nothing in the language of section 14.1(b) which mandates retroactive application thereof, nor is there anything within its legislative history requiring that result. We have also considered the purpose of section 14.1(b), and find that under the circumstances of this case, retroactive application thereof would not further the legislature’s goal. It appears that the legislature had a twofold purpose in enacting section 14.1(b): (1) discouraging enforcement of invalid rules (or, perhaps, encouraging agencies to conduct a review of existing rules and regulations with a view to eliminating those of doubtful validity); and (2) giving those subject to regulation an incentive to oppose doubtful rules where compliance would otherwise be less costly than litigation. Neither of these goals would be furthered by imposition of liability here. The Board had already sought to enforce the rules in question long before January 1, 1982, and the district’s opposition thereto in 1977 was obviously not motivated by section 14.1(b), which did not arise until several years later, but by its perception that the cost of compliance was greater than the cost of litigation. In any event, we do not believe that either purpose would be furthered by retroactive application; therefore, we cannot say here that such was the legislature’s intention.

For the foregoing reasons, the trial court’s order dismissing the district’s petition for expenses is affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.

      We reject the Board’s contention that the operative time is 1971 when the rules were promulgated. There is no liability imposed by section 14.1(b) for the mere adoption of invalid rules; the harm occurs and the liability accrues when an agency seeks to enforce invalid rules, forcing the opposing party to incur expenses in resisting their application. __

      This theory of recovery was prevalent in the Federal courts, albeit not without controversy, until the supreme court held, in Alyeska Pipeline Service Co. v. Wilderness Society (1975), 421 U.S. 240, 44 L. Bd. 2d 141, 95 S. Ct. 1612, that in the absence of statutory authorization, Federal courts could not properly award attorney fees on a “private attorney general” theory. In direct response to the Alyeska holding, Congress enacted the Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C. sec. 1988 (1976)).

      While we do not find the issue dispositive, we also note that, contrary to the district’s assertion, the Board was not subject to an award of attorney fees pursuant to section 2 — 611 at the time this litigation commenced. Section 2 — 611 was amended to provide for the liability of State agencies thereunder effective November 23, 1977, several months after this suit was filed.


author: JUSTICE HOPF

text:
    THE PEOPLE ex rel. TYRONE C. FAHNER, Attorney General, Plaintiff-Appellant and Cross-Appellee, v. THOMAS WALSH et al., Defendants-Appellees and Cross-Appellants.
    Second District
    No. 82—1044
    Opinion filed March 8, 1984.

      Tyrone C. Fahner, Attorney General, of Chicago, pro se (Lawrence K. Sezer and Marty J. Haxel, Assistant Attorneys General, of counsel), for appellant.
    Peter Alexander of Martenson, Donohue & Alexander, P.C., of Rockford, for appellees.
   JUSTICE HOPF

delivered the opinion of the court:

This is a civil action in which the Illinois Attorney General filed a complaint against defendants, Thomas L. Walsh and Bather M. Woolbright, alleging they had violated the Consumer Fraud and Deceptive Business Practices Act (the Act) (Ill. Rev. Stat. 1977, ch. 121½, par. 261 et seq.). The circuit court of Winnebago County found defendants guilty of violating the Act and ordered defendant Woolbright to pay a $5,000 penalty and restitution. On appeal, the State urges that the trial court erred in limiting the class that would be eligible to obtain restitution from Woolbright and erred in allowing Woolbright to retain uncollected profits.

Defendant Woolbright has filed a cross-appeal urging that the court erred in determining that his activities fall within the scope of the Act, and erred in assessing penalties and restitution.

On July 30, 1979, the Attorney General filed a complaint which alleged that defendants had violated the Act (Ill. Rev. Stat. 1977, ch. 121½, par. 261 et seq.) by selling interests in a plan known as the “Circle of Platinum.” Under this plan, a person would purchase a list of six names, paying $500 to the seller and $500 to the person whose name was first on the list. The purchaser then made two copies of a new list, on which his or her own name was added as sixth, the name which had been first was eliminated, and each other name was moved up one position. The purchaser then attempted to sell these two lists to two new people who were told to repeat the process. The plan thus represented that, for an investment of $1,000, a person could make profits of up to $32,000 from an endless chain of recruiting additional purchasers.

The complaint brought by the State sought issuance of an injunction, appointment of a receiver to collect and distribute money defendants received from this scheme, and assessment of a penalty against defendants.

Defendants refused to answer the Attorney General’s initial request for discovery, asserting their fifth amendment privilege against self-incrimination. Defendants were granted immunity on motion of the Winnebago County State’s Attorney, but continued to refuse to present any information. This court upheld the trial court’s order requiring defendants to comply with the Attorney General’s discovery requests and holding defendants in contempt for their failure to comply. People ex rel. Scott v. Walsh (1980), 89 Ill. App. 3d 831, 412 N.E.2d 208.

After taking defendants’ discovery depositions, the Attorney General moved for summary judgment. This motion was denied, and an evidentiary hearing was held. However, Walsh’s debts were discharged in bankruptcy and subsequent proceedings were conducted solely as to Woolbright. On September 10, 1982, the trial court entered an order finding that the sale by Woolbright of interests in the pyramid scheme constituted a violation of the Act. Woolbright was enjoined from further participation in the plan, ordered to pay a $5,000 penalty, and ordered to pay $19,500, his total profits, to a receiver. The Attorney General was to act as a receiver and distribute this money as restitution to claimants, as provided by statute (111. Rev. Stat. 1979, ch. 121½, par. 268). On Woolbright’s motion the trial court modified this order on December 1, 1982, such that Woolbright was required to pay restitution only in the amount necessary to compensate those persons who had lost money due to involvement in the plan and had either purchased from Woolbright or paid money to him. The court noted that there was no just reason to delay enforcement or appeal of the order.

The Attorney General has appealed from this judgment insofar as it limits the class of claimants and allows Woolbright to keep any unclaimed portion of his profits from the scheme. Woolbright has filed a timely notice of cross-appeal (87 Ill. 2d Rules 12, 303), objecting to the finding of a violation of the Act and the assessment of penalties.

The first issue we consider on appeal is the question of whether Woolbright’s activities violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121½, par. 261 et seq.). The Act prohibits “unfair or deceptive acts or practices *** in the conduct of any trade or commerce.” (Ill. Rev. Stat. 1981, ch. I21½, par. 262.) These terms are incapable of precise definition, so whether a given practice is unfair or deceptive must be determined on a case-by-case basis. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 430 N.E.2d 1012; People ex rel. Fahner v. Testa (1983), 112 Ill. App. 3d 834, 837, 445 N.E.2d 1249.) However, in determining whether a practice violates the Act, a court may be guided by the standards used by the Federal Trade Commission to decide whether certain activity is violative of similar Federal law (Ill. Rev. Stat. 1981, ch. 121½, par. 262; see 15 U.S.C. sec. 45 (1976)), i.e., whether the practice offends public policy as established by statutes, the common law, or otherwise, or is within at least the penumbra of some common law, statutory, or other established concept of unfairness; whether the practice is immoral, unethical, oppressive, or unscrupulous; and whether the practice causes substantial injury to consumers or competitors. (People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 438 N.E.2d 924; see Federal Trade Com. v. Sperry & Hutchinson Co. (1972), 405 U.S. 233, 244-45 n.5, 31 L. Ed. 2d 170, 179-80 n.5, 92 S. Ct. 898, 905-06 n.5.) As demonstrated below, the activity at issue here meets these criteria.

In the summer of 1979 Woolbright purchased an interest in a program known as the “Money Pyramid” or “Circle of Platinum.” The plan involved purchasing a list of six names for $1,000, of which $500 was paid to the person whose name appeared first on the list and $500 was paid to the immediate seller. The purchaser then made two new lists, adding his or her name as sixth, moving each other name up one position, and eliminating the name which had been first. These two new lists were then to be sold with the same instructions. Woolbright approached several others in an attempt to sell his two lists and ultimately succeeded in doing so. Although he apparently sold his two lists at his restaurant, Woolbright hosted and attended several parties held for the purpose of explaining the plan and obtaining new participants. This was a typical method of selling the lists. At these parties, and on other occasions, Woolbright spoke to others about the pyramid scheme. He stated that he discussed the list with more than 500 people. Although Woolbright indicated that there was a possibility of losing the initial $1,000 he also stated that this “investment” could be recouped when the participant sold his or her two lists. Woolbright represented that although there was no guarantee there was also a great potential for gain, with receipts beginning when the participant’s name reached the number one position on circulating lists. While Woolbright claimed that the people he dealt with did not expect exorbitant gains, Woolbright told people that the plan worked and repeated, without investigating their veracity, various stories of great success with the plan. As the plan contemplated that the number of circulating lists would double at each step, it was held out to be possible to make up to $32,000 just by the sale of two lists. Woolbright testified that the DeKalb, LaSalle and Rockford newspapers covered the story of people who had bought the lists. One such article stated that a State’s Attorney had stated that as long as the lists were not carried through the mail it was not mail fraud. Copies of the article were passed out at some of the parties. Woolbright encouraged and assisted people in his chain to sell their lists and kept track of the identity of people in the chain.

There are some facts which suggest that Woolbright was attempting to comply with the law, in that he declared his gains for income tax purposes, ceased his activities after being served with summons in this case, and had opinions from several sources, including a State’s Attorney, that the plan was legal. However, Woolbright did not know whether the pyramid scheme was legal. Demand for lists admittedly dropped when the Attorney General became involved.

Woolbright contends on appeal that the Act (Ill. Rev. Stat. 1981, ch. 121½, par. 261 et seq.) is not applicable to the plan he was involved in because the participants were not “consumers” under the Act. We disagree. A person’s status as a consumer is a concept related to his or her standing to sue under the Act and is irrelevant where, as here, suit is brought by the Attorney General. (People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 88, 438 N.E.2d 924; see Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 285, 430 N.E.2d 1012.) Further, although the participants in the pyramid scheme might not have been considered consumers under the prior version of the Act (Ill. Rev. Stat. 1971, ch. 1211/2, par. 261 et seq.) and therefore would not have been protected, the current Act protects any person damaged by unfair or deceptive business practices. (See People ex rel. Scott v. Cardet International, Inc. (1974), 24 Ill. App. 3d 740, 321 N.E.2d 386.) This is consistent with the broad definition of the terms “merchandise,” “trade,” and “commerce” in the Act as it was in effect at the time the charges were brought (Ill. Rev. Stat. 1977, ch. 1211/2, par. 261) and the Act’s prohibition of any “deception *** in the conduct of any trade ***.” (Ill. Rev. Stat. 1981, ch. 121/2, par. 262.) These factors show that the legislature intended the Act to have broad applicability. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 430 N.E.2d 1012; People ex rel. Fahner v. Hedrich (1982), 108 Ill. App. 3d 83, 438 N.E.2d 924.) The broad reach of the Act, and the principle that the Act is to be liberally construed to effectuate its purpose of eradicating all forms of deceptive and unfair business practices (Ill. Rev. Stat. 1981, ch. 1211/2, par. 271a; Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 198, 380 N.E.2d 1040), indicate that the Act is applicable to the issue here.

Additionally, we believe the Attorney General has established that Woolbright’s activities in the “Circle of Platinum” were violative of the Act. This is true regardless of Woolbright’s assertions that he did not make misrepresentations concerning the plan, as the key consideration is the effect of Woolbright’s conduct, not his intent. (Grimes v. Adlesperger (1978), 67 Ill. App. 3d 582, 585, 384 N.E.2d 537; American Buyers Club of Mount Vernon, Illinois, Inc. v. Honecker (1977), 46 Ill. App. 3d 252, 259, 361 N.E.2d 1370.) Similarly a practice may be unlawful “whether any person has in fact been misled” (Ill. Rev. Stat. 1977, ch. I211/2, par. 262; Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 273, 361 N.E.2d 815), thus the fact that no one ever complained to Woolbright is not conclusive.

While there are no cases that have directly applied the issue presented in the case at bar, we believe the statute in question was violated. Pyramid programs, such as the “Circle of Platinum,” which induce a person to participate on the representation that he or she cannot only regain the purchase price, but also reap profits by selling the plan to others, are inherently deceptive and contrary to public policy. (Twentieth Century Co. v. Quilling (1907), 130 Wis. 318, 324-25, 110 N.W. 174, 176; Kugler v. Koscot Interplanetary, Inc. (1972), 120 N.J. Super. 216, 232, 293 A.2d 682, 690-91; State by Lefkowitz v. ITM, Inc. (1966), 52 Misc. 2d 39, 275 N.Y.S.2d 303; In re Holiday Magic, Inc. (Oct. 15, 1974), 84 F.T.C. 748.) The deception arises because the market eventually becomes saturated and the seemingly endless chain must end; consequently, many participants cannot even recoup their investments, let alone make a profit. (State ex rel. Sanborn v. Koscot Interplanetary, Inc. (1973), 212 Kan. 668, 675-76, 512 P.2d 416, 423; 52 Misc. 2d 39, 275 N.Y.S.2d 303; In re Holiday Magic, Inc. (Oct. 15, 1974), 84 F.T.C. 748.) Additionally, such schemes involve aspects of a lottery, in that the controlling inducement to participate is the lure of an uncertain gain. This also renders these programs deceptive, unfair, and violative of consumer protection laws, regardless of whether criminal prohibitions against lotteries also are violated. (Wren Sales Co. v. Federal Trade Com. (7th Cir. 1961), 296 F.2d 456; Gellman v. Federal Trade Com. (8th Cir. 1961), 290 F.2d 666; Surf Sales Co. v. Federal Trade Com. (7th Cir. 1958), 259 F.2d 744, 746; Wesware, Inc. v. State (Tex. Civ. App. 1972), 488 S.W.2d 844.) Due to these considerations, marketing programs based on a pyramid principle have been found to violate other consumer protection statutes. (State ex rel. Sanborn v. Koscot Interplanetary, Inc. (1973), 212 Kan. 668, 675-76, 512 P.2d 416, 423; State ex rel. Turner v. Koscot Interplanetary, Inc. (Iowa 1971), 191 N.W.2d 624, 630; Kugler v. Koscot Interplanetary, Inc. (1972), 120 N.J. Super. 216, 233, 293 A.2d 682, 692-93; Wesware, Inc. v. State (Tex. Civ. App. 1972), 488 S.W.2d 844, 848; In re Holiday Magic, Inc. (Oct. 15, 1974), 84 F.T.C. 748; cf. People ex rel. Scott v. Carded International, Inc. (1974), 24 Ill. App. 3d 740, 321 N.E.2d 386, where the court distinguished certain of these cases and found plaintiffs in a franchise distributorship program were not “consumers” under an earlier less pervasive revision of the Act in issue here (Ill. Rev. Stat. 1971, ch. 1211/, par. 261 et seq.).) Consequently, we believe the “Circle of Platinum” should be found to be a violation of the Hlinois Act. Contrary to defendants’ suggestion this conclusion is bolstered by the Act’s prohibition of chain referral sales practices which evidences a general policy against techniques of this type, a distinguishable but analogous situation. See Ill. Rev. Stat. 1981, ch. 1211/2, par. 262A.

Woolbright next contends that the trial court erred in assessing a $5,000 penalty against him in light of the fact that he was granted immunity. Defendants had asserted their fifth amendment privilege and refused to provide information concerning the pyramid scheme. He contends that the $5,000 fine was improper because it was based on information he gave under immunity. In making this objection, Woolbright does not challenge the injunction or restitution order, nor could he do so. See People ex rel. Scott v. Walsh (1980), 89 Ill. App. 3d 831, 412 N.E.2d 208; State ex rel. Turner v. Koscot Interplanetary, Inc. (Iowa 1971), 191 N.W.2d 624.

Woolbright was granted immunity according to statutory provisions which permit a court, on the State’s motion, to release a witness from all liability to be prosecuted or punished for any offense shown in whole or in part by any testimony or other evidence that the witness is required to produce, except perjury in the giving of such testimony. (Ill. Rev. Stat. 1981, ch. 38, pars. 106 — 1, 106 — 2.) The statute thereby grants transactional immunity, which gives the witness full protection from prosecution for any offenses to which the compelled testimony relates. People ex rel. Cruz v. Fitzgerald (1977), 66 Ill. 2d 546, 363 N.E.2d 835; In re Cook County Grand Jury (1983), 113 Ill. App. 3d 639, 447 N.E.2d 862.

The fifth amendment protects the individual against penalties imposed as part of the punishment for crime. The privilege does not extend to penalties of a noncriminal nature. (United States v. Apfelbaum (1980), 445 U.S. 115, 124, 63 L. Ed. 2d 250, 259, 100 S. Ct. 948, 954.) Immunity is similarly limited to penalties. (In re Schwarz (1972), 51 Ill. 2d 334, 282 N.E.2d 689, cert, denied (1972), 409 U.S. 1047, 34 L. Ed. 2d 499, 93 S. Ct. 527; People ex rel. Scott v. Walsh (1980), 89 Ill. App. 3d 831, 412 N.E.2d 208.) Therefore, in order to determine whether the grant of immunity to Woolbright precludes imposition of the $5,000 fine, we must decide the issue expressly left unresolved in People ex rel. Scott v. Walsh (1980), 89 Ill. App. 3d 831, 412 N.E.2d 208, i.e., whether this penalty is civil, as opposed to criminal, in nature.

We believe it is notable that the legislature has specifically labeled the penalty authorized under the Act as a civil penalty. (Ill. Rev. Stat. 1981, ch. 121½, par. 267; see United States v. Ward (1980), 448 U.S. 242, 65 L. Ed. 2d 742, 100 S. Ct. 2636; People v. Superior Court (1974), 12 Cal. 3d 421, 525 P.2d 716, 115 Cal. Rptr. 812.) Additionally, the Act is a regulatory and remedial provision designed to protect the public; a penalty may be imposed as an aid to enforcement of the regulatory scheme, but this does not render the Act a penal statute. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 430 N.E.2d 1012; see People v. Superior Court (1974), 12 Cal. 3d 421, 525 P.2d 716, 115 Cal. Rptr. 812; State ex rel. Turner v. Koscot Interplanetary, Inc. (Iowa 1971), 191 N.W.2d 624.) Under the circumstances, the penalty here is civil, rather than criminal, in nature (City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482, 313 N.E.2d 161), and the grant of immunity does not bar imposition of the fine. Napolitano v. Ward (7th Cir. 1972), 457 F.2d 279, cert, denied (1972), 409 U.S. 1037, 34 L. Ed. 2d 486, 93 S. Ct. 512.

The next issue to be considered concerns the question of whether, as the Attorney General contends, the trial court erred in limiting its order for restitution so that Woolbright was required to pay only the amount claimed by persons who actually had paid money to Woolbright in the pyramid scheme.

Woolbright obtained $21,500 from his participation in the pyramid scheme. Apparently the trial court excluded the cost of the two lists purchased by Woolbright, and concluded that Woolbright’s profits from this activity amounted to $19,500. Initially, Woolbright was ordered to pay this entire amount to the receiver who, after distribution to claimants, was to pay any unclaimed surplus into the State’s general revenue fund. However, the court subsequently modified its order such that Woolbright was required to make payments, up to a maximum of $19,500, only as necessary to compensate actual claimants. Further, the class of potential claimants was limited basically to those persons who had given money to Woolbright as part of the pyramid scheme and had lost money due to their involvement in the plan. The Attorney General objects to the modification of the judgment, arguing it would permit Woolbright to keep any unclaimed portion of his receipts and prevent recovery by persons in Woolbright’s chain who lost money.

The Act provides that where a receiver is appointed, he or she shall have the power to collect all the money and property derived by means of practices which are prohibited by the Act. (Ill. Rev. Stat. 1981, ch. 121½, par. 268.) Although we have found no case law on point, this statutory language suggests that Woolbright should be required to turn over all of the $19,500 he obtained as profits from participation in the pyramid, regardless of whether this entire amount is claimed.

The Act also provides that any person who has suffered damages as a result of the use of any unlawful practice may particate in the receiver’s distribution of assets to the extent of out-of-pocket losses. (Ill. Rev. Stat. 1981, ch. 121½, par. 268.) Again, there appears to be no case law interpreting this statute as relevant to the inquiry here. However, the clear language of this provision suggests that any person who lost money due to participation in the pyramid scheme and can trace his or her involvements to Woolbright should be entitled to share in the recovery and that the class of claimant should not be limited just to those people who personally gave money to Woolbright.

The trial court limited potential claims to those persons who purchased from Woolbright and lost money due to their inability to resell and to those persons who purchased from others, if they could show that Woolbright received $500 as a result of their purchase, and who lost money due to their involvement in the pyramid plan. As the two people who purchased their lists directly from Woolbright in turn sold their lists, this latter group represents the actual potential claimants. This group appears to be limited to those persons who purchased lists on which Woolbright’s name appeared as number one, thus paying Woolbright $500, and then were unable to sell their lists. This is an improper limitation, especially given the nature of the activity at issue here. The persons most likely to lose money in a pyramid scheme are those at the end of the chain. (See State ex rel. Sanborn v. Koscot Interplanetary, Inc. (1973), 212 Kan. 668, 512 P.2d 416; State by Lefkowitz v. ITM, Inc. (1966), 52 Misc. 2d 39, 275 N.Y.S.2d 303.) These people are the ones who suffered damage as a result of this unfair practice, so as to fall within the class of claimants set forth in the statute. (See Ill. Rev. Stat. 1981, ch. 121½, par. 268.) However, these people conceivably could have purchased a list which, while originally emanating from Woolbright, no longer contained his name. Given the statutory language, such persons also should be able to make claims against the fund ordered to be paid by Woolbright to the receiver. This result can be achieved by modification of the trial court’s order, as opposed to remand. By way of modification we believe that the class of claimants must include persons who purchased an interest in the pyramid scheme who can trace their list to one sold by Woolbright, and thereby lost money due to their participation in the plan.

In limiting potential claimants and allowing Woolbright to keep unclaimed portions of his profits, the trial court may have been considering the fact that Woolbright was not the person who initiated the “Circle of Platinum” and could be viewed as merely one of many participants in the chain. (Compare Kugler v. Koscot Interplanetary, Inc. (1972), 120 N.J. Super. 216, 293 A.2d 682.) While this is a mitigating factor, Woolbright is not being unfairly treated as the amount he must pay as restitution is limited to the amount of gain he received. Additionally, there is a basis for holding Woolbright responsible for people in his chain with whom he did not deal directly, as Woolbright encouraged and assisted the sale of lists in his chain and he was aware that some people would lose money due to this scheme.

The judgment of the trial court is affirmed in part, but modified to require that Woolbright make payment of the full $19,500 to the receiver and to broaden the group of potential claimants as set forth in this opinion.

Affirmed in part, and modified in part.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.