author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSIE LEWIS, Defendant-Appellant.
    Second District
    No. 82—96
    Opinion filed February 15, 1983.
    Rehearing denied March 10, 1983.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Steven Clark and Michael J. Pelletier, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Fred Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Jessie Lewis, was found guilty of three counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4) and two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). He was sentenced to concurrent terms of six years for each armed violence conviction and to two years for one count of aggravated battery. Defendant appeals contending: (1) the State violated the mandatory joinder provisions of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 3 — 3, 3 — 4) by adding six new counts to its original information after defendant’s first trial in which a mistrial had been declared; and (2) he was improperly convicted and sentenced for offenses based upon a single physical act.

The facts are not disputed by the parties. It appears that on August 16, 1980, during a dispute over the right to possession of an automobile, defendant fired a shot at John Strickland which struck him behind the left ear wounding him. Defendant was charged by a three-count information as follows:

Count I — attempt murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4(a), 9 — 1(a)(1));

Count II — aggravated battery (w/deadly weapon) (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(b)(l));

Count III — armed violence (predicated on the offense charged in count II) (Ill. Rev. Stat. 1979, ch. 38, par. 33A— 2).

The case initially proceeded to trial on March 17, 1981, in which the jury returned a verdict finding defendant not guilty of attempted murder, but was unable to reach verdicts to the charges of aggravated battery and armed violence. After the court declared a mistrial as to counts II and III, the State expressed its intention to retry defendant for those offenses and the cause was continued.

On September 16, 1981, the State amended the information by adding six additional offenses based upon the August 16 shooting of John Strickland, as follows:

Count IV — aggravated battery (great bodily harm) (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(a));

Count V — aggravated battery (permanent disability and disfigurement) (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(a));

Count VI — aggravated battery (w/deadly weapon) (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1));

Count VII — armed violence (predicated on count IV) (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2);

Count VIII — armed violence (predicated on count V) (Ill. Rev. Stat. 1979, ch. 38, par. 33A— 2);

Count IX — armed violence (predicated on count VI) (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2).

Defendant moved to dismiss the additional charges prior to trial, at the close of all the evidence and in a post-trial motion. All such motions were denied by the trial court.

On November 23, 1981, the retrial commenced and the evidence presented was similar to that adduced at the first trial. At the close of all the evidence, the State nolle prossed counts III, VI and IX and the jury found defendant guilty of the three remaining counts of aggravated battery (II, IV and V) and the two remaining counts of armed violence (VII and VIII). The court imposed concurrent sentences of two years under count II and six years each under counts VII and VIII, but did not impose any sentences for the aggravated battery counts (IV and V) upon which the armed violence convictions were predicated.

Defendant contends that the amendment to the original information adding six charges, all of which could have been charged prior to the first trial, was in violation of sections 3 — 3 and 3 — 4 of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, pars. 3 — 3, 3 — 4) and, therefore, the prosecution of those additional charges is barred.

Defendant has also contended that as his conduct in shooting the victim constituted a single physical act his conviction for three offenses based thereon was improper. In this regard, the State correctly admits error; the record clearly reflects that the defendant committed a single physical act. Thus, defendant’s conviction for more than one offense was improper. People v. Dixon (1982), 91 Ill. 2d 346, 355, 438 N.E.2d 180, 185; People v. Donaldson (1982), 91 Ill. 2d 164, 168, 435 N.E.2d 477, 479; People v. Myers (1981), 85 Ill. 2d 281, 288, 426 N.E.2d 535, 538.

The question presented by this appeal is a determination of which one of the three charges of which defendant was convicted may stand. Ordinarily, the greater offense for which a defendant is properly convicted will be sustained. (People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 479-80; People v. Felton (1982), 108 Ill. App. 3d 763, 770, 439 N.E.2d 1107, 1112.) In this case, if the amendment of the information was improper, only the aggravated battery (w/deadly weapon) charged in count II could stand as defendant was acquitted of attempted murder charged in count I and the State nolle prossed armed violence charged in count III. Armed violence predicated upon count II could not be sustained in any event since it constituted a double enhancement of defendant’s use of a gun. People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627, 634; People v. Post (1982), 109 Ill. App. 3d 482, 487, 440 N.E.2d 631, 635.

Conversely, if the amendment was proper either, but not both, of the armed violence convictions under counts VII and VIII may stand as they were predicated upon the charges of aggravated battery causing great bodily harm and permanent disability in counts IV and V and were not twice enhanced by the weapon. (People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 479-80; People v. Roman (1981), 98 Ill. App. 3d 703, 705, 424 N.E.2d 794, 796; People v. Ross (1981), 100 Ill. App. 3d 1033, 1036-37, 427 N.E.2d 955, 957-58, appeal denied (1981), 83 Ill. 2d 573.) Resolution of this case thus turns upon whether the amendment to the original information was proper. We find it was not.

Section 3 — 3(b) of the Criminal Code of 1961 provides, in part:

“(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution *** if they are based on the same act.” (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 3(b).)

The effect upon a subsequent prosecution of the State’s failure to join all charges in an initial prosecution is set forth in section 3 — 4(b), which provides, in part:

- “(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense *** if such former prosecution:
(1) Resulted in *** an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code ***.”
Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4(b).

The committee comments accompanying section 3 — 3 state that the mandatory joinder requirement “involves a substantive protection of the defendant” (Ill. Ann. Stat. ch. 38, par. 3 — 3, Committee Comments, at 197 (Smith-Hurd 1972)) and that it would be “unjust to permit the prosecutor in his discretion to put the defendant to the strain and expense of several trials, on the speculation that a later jury will be more severe than an earlier one, or for any other reason unrelated to the proper trial of the issues in the several offenses.” (Ill. Ann. Stat., ch. 38, par. 3 — 3, Committee Comments, at 200 (Smith-Hurd 1972).) While section 3 — 3 does not require that all possible offenses be charged, “[t]he result of trying only some of the offenses *** would be that [the State] could not prosecute the other offenses at all.” (Ill. Ann. Stat., ch. 38, par. 3 — 3, Committee Comments, at 201 (Smith-Hurd 1972).) Although other, less strident, alternatives were considered by the Committee, they were rejected because “none of these suggestions seemed to meet adequately the objection that a defendant should not be subjected to more than one prosecution when that one will permit the presentation to the jury *** of all pertinent issues of the related offenses arising out of the same act.” (Ill. Ann. Stat., ch. 38, par. 3 — 3, Committee Comments, at 203 (Smith-Hurd 1972).) It is the purpose of section 3 — 4 to give effect to the provision of section 3 — 3 by barring subsequent prosecution for offenses which should have been charged in the first. Ill. Ann. Stat., ch. 38, par. 3— 4, Committee Comments, at 217 (Smith-Hurd 1972).

Reviewing courts have recognized that the prosecution bar does not apply unless there was either a conviction or acquittal in the initial prosecution; a mistrial alone will not invoke the bar. (People v. Miller (1966), 35 Ill. 2d 62, 65, 219 N.E.2d 475, 478; People v. Piatt (1966), 35 Ill. 2d 72, 73-74, 219 N.E.2d 481, 482; People v. Peterson (1982), 108 Ill. App. 3d 856, 859, 439 N.E.2d 1103, 1106; People v. Renslow (1981), 98 Ill. App. 3d 288, 291, 423 N.E.2d 1360, 1362-63.) However, once the initial prosecution has resulted in either a conviction or acquittal on any of the charges known to the prosecutor, the State may not thereafter amend the information by adding charges for which the defendant could have been convicted and which should have been joined in the initial prosecution. (People v. Mullenhoff (1965), 33 Ill. 2d 445, 448-49, 211 N.E.2d 744, 746; People v. Murray (1982), 106 Ill. App. 3d 50, 52, 435 N.E.2d 772, 773-74; People v. Baker (1979), 77 Ill. App. 3d 943, 944-45, 397 N.E.2d 164, 166, appeal denied (1980), 79 Ill. 2d 632.) In Mullenhoff, an acquittal on the charge of deviate sexual assault barred a subsequent prosecution for attempted rape since both crimes were known to the prosecution and were based upon a single act. In Murray, an acquittal for mob action barred prosecution for obstructing a peace officer when both are based on a single act. Similarly, in Baker, defendant’s guilty plea to possession of cannabis barred a subsequent prosecution for possession of a controlled substance since the possession of both items constituted a single act.

When the procedural history of this case is examined in light of the statutes, policies and case law discussed herein, it becomes evident that the amendment of the information after mistrial was improper. The State concedes that the additional charges are based upon the same physical act as were the original charges. Defendant could have been convicted of any of the new charges if brought at the time of the first trial and section 3 — 3 of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 3 — 3) required the State to charge those offenses before the initial trial if it were to charge them at all. The State did not do so, and its failure precluded it from doing so after the first trial. Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4.

The State argues that the new charges were merely alternative theories of the offenses brought under the same statutes as were the original charges of aggravated battery and armed violence. The cases relied upon by the State do indicate that the information could have been properly amended to add the new charges prior to the initial trial, or, could have been submitted to the jury in the first trial as alternative theories of liability although not specifically charged. (People v. Foster (1975), 32 Ill. App. 3d 1009, 337 N.E.2d 90; People v. Turner (1976), 35 Ill. App. 3d 550, 342 N.E.2d 158.) The State did not do so here, however. Rather, it prosecuted defendant for attempted murder, aggravated battery and armed violence and, after his acquittal for attempted murder and a mistrial on the other charges, then amended the information by adding the additional charges for the second trial. The State has cited no authority in support of this procedure, and portions of People v. Allen (1974), 56 Ill. 2d 536, 309 N.E.2d 544, cert. denied (1974), 419 U.S. 865, 42 L. Ed. 2d 102, 95 S. Ct. 120, cited in the State’s brief, would seem to suggest an opposite result. In Allen, the court stated:

“Each of subparagraphs (1), (2) and (3) under section 9 — 1(a) describes the mental state or the conduct of the defendant which must accompany the acts which cause the death. If the defendant were charged with murder under subparagraph (a)(1) and acquitted, he could not again be charged and tried for the murder of the same individual under subparagraph (a)(2) or (a)(3).” (56 Ill. 2d 536, 543, 309 N.E.2d 544, 547.)

See also People v. Simmons (1982), 93 Ill. 2d 94, 99-100, 442 N.E.2d 891, 894.

The fact that the added charges are alternative pleadings of the offenses originally charged does not make the subsequent prosecution in the case at bar any less onerous than if a wholly new crime had been charged. As Justice Dooley stated:

“To subject a person to multiple successive prosecutions because of differences in detail in proofs undermines the fundamental basis of the double jeopardy ban. Considerations of fairness and finality, the very foundation of the double jeopardy bar, require a nontechnical evaluation of the ‘same evidence’ test, and a focus upon the similarity of the elements involved in the two-proceedings.” (People v. Gray (1977), 69 Ill. 2d 44, 51, 370 N.E.2d 797, 800, cert. denied (1978), 435 U.S. 1013, 56 L. Ed. 2d 395, 98 S. Ct. 1887.)

Although the court in Gray was addressing the issue of constitutional double-jeopardy protections, the analysis is no less applicable here since it is the purpose of sections 3 — 3 and 3 — 4 to cover “situations in which more than one offense is found to arise out of the same conduct, or the same act and the defense of double jeopardy is unavailable.” (Ill. Ann. Stat., ch. 38, par. 3 — 3, Committee Comments, at 198 (Smith-Hurd 1972).) Essentially, the State is attempting to take a second bite of the apple simply because it did not like the taste of the first. Such prosecutorial practices are antithetical to the language and policies embodied in sections 3 — 3 and 3 — 4 of the Criminal Code of 1961. Thus, the amendment to the original information was error and the only count for which the defendant was properly convicted in the retrial was under count II, charging aggravated battery (w/deadly weapon).

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed as to defendant’s conviction and sentence for aggravated battery under count II. All other judgments of conviction entered and sentences imposed by the circuit court in this case are vacated.

Affirmed in part, vacated in part.'

UNVERZAGT and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ROBERT C. SCHWARZE, Plaintiff-Appellee and Cross-Appellant, v. SOLO CUP COMPANY, Defendant-Appellant and Cross-Appellee.
    Second District
    No. 82—175
    Opinion filed February 9, 1983.
    Rehearing denied March 10, 1983.

      Stewart Dolin, of Fox & Grove, and Paul J. Bargiel, of Doss, Puchalski, Keenan & Bargiel, Ltd., both of Chicago, for appellant.
    Ellis E. Fuqua and William P. Anderson, both of Fuqua, Winters, Wysocki & Stiles, Ltd., of Waukegan, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Robert C. Sehwarze, brought this action in the circuit court seeking damages from defendant, Solo Cup Company (Solo), for the alleged breach of an employment agreement. After a bench trial, the trial court entered judgment in favor of Sehwarze for $71,271,23, together with costs of suit. Solo appeals, contending that the trial court erred: (1) in considering parol evidence to find a breach of the employment agreement; and (2) in its calculation of damages. Schwarze cross-appeals, also contending that the court miscalculated the damages due to him.

The parties appear to be in substantial agreement as to the facts underlying this litigation. Prior to November 7, 1978, Sehwarze was employed by Libby, McNeil & Libby as corporate vice-president in charge of sales management. During 1978 Sehwarze was approached by Robert Wolfe, a corporate placement executive, who had been retained by Solo to recruit employees for executive sales and marketing positions. Sehwarze expressed an interest in those positions and over the next several months met with Wolfe and officers of Solo to discuss employment. During some of these meetings Sehwarze mentioned that he owned a house in Lake Bluff and that his children were currently enrolled in a local high school. Because of this, Sehwarze said he would not consider a position which would require his relocation outside of the Chicago area until after his children had graduated from high school.

On November 7, 1978, after much negotiation, Sehwarze and Solo entered into a written letter of agreement (Agreement) delineating the terms of his employment with Solo which was prepared on Solo’s corporate sales office letterhead in Highland Park, Illinois. As pertinent, it provided that Sehwarze would be employed as “Vice-President, Sales and Marketing, Institutional and Consumer Products Divisions” for a period of four years commencing November 7, 1978. Sehwarze would receive as compensation a salary of $85,000 per year plus the following benefits: annual membership at a Lake Forest tennis club, use and expenses of a company car, health insurance, life insurance, vacation and reimbursement for all properly incurred business expenses. Either party could terminate the Agreement, with or without cause, by giving the other one month’s prior written notice. If Sehwarze terminated the Agreement, he would receive only salary and benefits which had accrued to the date of termination; if Solo terminated the Agreement, it would continue to pay to Sehwarze “salary and benefits” from the date of termination until the expiration of the term of the contract. However, in that event, the “salary” payments would be reduced by the amount of salary received by Schwarze from other employment and would terminate altogether upon Schwarze being offered substantially equivalent employment. “Substantially Equivalent Employment” was defined in the Agreement as any employment providing total compensation of at least $85,000 a year. In addition, Solo had the right to assign the contract to any business or company which was wholly owned by it. There was no express provision in the contract which specified either Schwarze’s place of employment or Solo’s right to transfer him out of the Chicago area.

Schwarze began employment and five months later, in April of 1979, Leo Hulseman, an officer of Solo, informed Schwarze that he was to begin working full-time for Premore, Inc. (Premore), as corporate vice-president in charge of sales and marketing. Schwarze assumed his new duties and continued to receive his salary from Solo together with the other benefits provided for in the Agreement; he continued to work out of the Highland Park office.

Subsequently, on December 14, 1979, Schwarze received a telephone call from Leo Hulseman directing Schwarze to move out of the Premore office and “spend 100% of his time looking for another job.” Although not in writing, both parties treated this conversation as a termination of the Agreement. Schwarze ceased fulfilling his duties for Premore and Solo continued to pay his salary and benefits as provided for in the event of Solo’s termination of the Agreement. The parties did not then, nor do they now, contest the validity of the termination because it was not in writing as specified in the Agreement.

Schwarze sought other employment and on February 13, 1980, he received another call from Leo Hulseman inquiring as to his progress. After Schwarze explained his actions, Hulseman replied “we can’t wait forever” and accused Schwarze of being “on the gravy train too long.” Hulseman also recommended that Schwarze take a job for less money. On that same date, Hulseman sent a letter to Schwarze informing him that he was being assigned “to a sales capacity for Solo Cup Company in the New York City territory.” The letter stated that Schwarze should assume his duties within seven days and that a permanent relocation to the New York area was expected. It also stated that if Schwarze accepted his new assignment, Solo would continue to honor the Agreement. Hulseman subsequently advised Schwarze that Solo would not reimburse him for the costs and expenses of relocation.

Schwarze refused the assignment and Solo terminated its payments under the Agreement on February 20, 1980. Subsequently, in April 1980, Schwarze was again employed at Libby, McNeil & Libby with an annual salary of $62,000, and on May 27, 1980, this litigation was commenced.

During trial, the court found that the Agreement was ambiguous as to whether Schwarze was to be employed solely in the Chicago area. Although the Agreement is silent as to this issue, the trial court relied upon the facts that the Agreement was printed on the corporate sales office letterhead in Highland Park, Illinois, and that Schwarze’s benefits included membership at a Lake Forest tennis club. Over Solo’s objection, the court admitted parol evidence, including precontract negotiations, and found that the Agreement contemplated employment only in the Chicago area. The court concluded that Solo’s attempt to transfer Schwarze to New York was a breach of the Agreement by it.

In determining damages, the court calculated the difference in salary received at Schwarze’s current position and that which he would have received under the terms of the Agreement in the sum of $71,271.23. However, the court refused to increment the damages by the monetary value of the benefits which Schwarze would have received under the Agreement. That sum was stipulated by the parties to be $19,346 (auto expense $9,600; medical expense $2,814; dental expense $1,307; life insurance $600; tennis club $5,025). The court also declined to offset against damages $1,293 in unemployment compensation received by Schwarze during his unemployment and a $5,000 bonus awarded Schwarze by Libby, McNeil & Libby which was deferred by Schwarze until his retirement. Accordingly, judgment was entered against Solo in the amount of $71,271.23.

On appeal, Solo contends that the circuit court erred in considering parol evidence to impose a geographical employment restriction on the Agreement. It asserts that no such express provision is found in the Agreement and therefore the transfer of Schwarze’s employment to New York was proper and his failure to accept the assignment was a termination of the Agreement by him. Solo further argues that any damages awarded should have been reduced by the amount of bonus and unemployment compensation Schwarze received. On cross-appeal, Schwarze contends that his damages should have been increased by the monetary value of the benefits he would have received from Solo under the Agreement.

Initially, it should be noted that in the absence of any material questions of fact the construction of a contract and its legal effect present questions of law which may be independently determined by the reviewing court unrestrained by the trial court’s judgment. (Mazanek v. Rockford Drop Forge Co. (1981), 98 Ill. App. 3d 956, 959, 424 N.E.2d 1271, 1276, appeal denied (1981), 85 Ill. 2d 578; Ancraft Products Co. v. Universal Oil Products Co. (1981), 100 Ill. App. 3d 694, 697-98, 427 N.E.2d 585, 587, appeal denied (1982), 88 Ill. 2d 549.) Thus, the reasons given for a judgment by the trial court are not material if the judgment is correct, and the reviewing court will affirm the judgment upon any legal grounds which have support in the record. Keck v. Keck (1974), 56 Ill. 2d 508, 514, 309 N.E.2d 217, 220; Ogden Group, Inc. v. Spivak (1981), 92 Ill. App. 3d 932, 934, 416 N.E.2d 393, 394; Lasswell v. Ehrlich (1981), 92 Ill. App. 3d 935, 936, 416 N.E.2d 423, 424.

In making this determination, the courts must give meaning to the plain language of the written contract. Mazanek v. Rockford Drop Forge Co. (1981), 98 Ill. App. 3d 956, 959, 424 N.E.2d 1271, 1276, appeal denied (1981), 85 Ill. 2d 578; Ahlvers v. Terminal R.R. Association (1975), 31 Ill. App. 3d 166, 171-72, 334 N.E.2d 329, 333-34.

We consider that the December 14 telephone call from Hulseman to Schwarze was a termination of the Agreement by Solo. The parties thereafter treated it as such as Solo continued to pay salary and benefits to Schwarze after he had moved out of the corporate offices, ceased performing his duties and began looking for other employment on a full time basis. This conclusion is supported by the testimony of the witnesses at trial and by certain exhibits consisting of correspondence between the parties, through their attorneys, in which the December telephone call is characterized and treated as a termination of the Agreement by Solo. Thus, the issue before this court is not whether the February 13 letter was a transfer to New York in violation of an implied geographical restriction in the Agreement as determined by the trial court. Rather, the issue is whether the February 13 letter was an offer of reemployment which Schwarze had to accept in order to mitigate his damages as required by paragraph 10 of the Agreement.

Paragraph 10 of the Agreement provides in pertinent part:

“Should the Employer desire to terminate the employment with or without cause, Employer agrees to give Employee one (1) month’s prior notice in writing and in such event Employee shall continue to be paid full salary and benefits from the date of termination for the period of time remaining under this contract. Salary shall be reduced by the amount of any salary from any source paid Employee after termination or shall be discontinued upon Employee being offered substantially equivalent employment. ‘Substantially equivalent employment,’ as the term is used herein, shall be defined to mean employment of any nature providing total compensation of at least Eight-five Thousand Dollars ($85,000.00) per year.” (Emphasis added.)

This provision is essentially an express incorporation of the common law rule that a wrongfully discharged employee must act to mitigate his damages by seeking similar employment, and that his damages will be reduced by those sums which he earns or could have earned through the exercise of reasonable diligence in seeking employment. People ex rel. Bourne v. Johnson (1965), 32 Ill. 2d 324, 326-27, 205 N.E.2d 470, 473; Grauer v. Valve & Primer Corp. (1977), 47 Ill. App. 3d 152, 157, 361 N.E.2d 863, 867; Foster v. Springfield Clinic (1980), 88 Ill. App. 3d 459, 465, 410 N.E.2d 604, 609.

However, when the alternate employment is, in fact, an offer of reemployment by the original employer, exceptions arise to the general rule of mitigation. Depending upon the substance of the offer and the circumstances under which it is made, the employee need not always accept such an offer or be precluded from seeking damages. It has long been recognized that a discharged employee need not accept an offer of reemployment where to do so would constitute a disadvantages renegotiation of his original contract or an abandonment of his rights and remedies thereunder. (Trawick v. Peoria & Fort Clark Street Ry. Co. (1896), 68 Ill. App. 156, 159; Claeson v. Hennessey (1959), 20 Ill. App 2d 437, 443, 156 N.E.2d 234, 238.) In Trawick the court held that an employee had no duty to continue employment at a reduced wage since to do so would have operated as an abandonment of his rights under his original contract. Similarly in Claeson, the employer’s offer to reemploy two weeks after his breach of the employment contract was held not to be a valid defense to the action.

Other jurisdictions have recognized similar exceptions to the mitigation rule where an offer to reemploy constitutes a renegotiation or abandonment of the original contract. Williams v. Albemarle City Board of Education (4th Cir. 1974), 508 F.2d 1242, 1243-44 (need not accept demotion at same salary); Parker v. Twentieth Century-Fox Film Corp. (1970), 3 Cal. 3d 176, 474 P.2d 689, 89 Cal. Rptr. 737 (offer of inferior employment); Rotter v. Stationers Corp. (1960), 186 Cal. App. 2d 170, 8 Cal. Rptr. 690 (general exception to rule); Billetter v. Posell (1949), 94 Cal. App. 2d 858, 211 P.2d 621 (offer for less wage); Smith v. Beloit Corp. (1968), 40 Wis. 2d 550, 162 N.W.2d 585 (offer for less wage); Larson v. Fisher (1951), 259 Wis. 355, 48 N.W.2d 502 (offer must not require loss of rights under original contract); Redman v. Department of Education (Alaska 1974), 519 P.2d 760 (offer prejudices prior contract rights); University of Alaska v. Chauvin (Alaska 1974), 521 P.2d 1234 (tenured employee need not accept nontenured position); Steranko v. Inforex, Inc. (1977), 5 Mass. App. 253, 362 N.E.2d 222 (offer for lesser capacity in humiliating circumstances).

In light of the foregoing authority we conclude that Schwarze was not required to accept the February 13 offer of employment by Solo in New York in order to mitigate his damages. He had been originally employed as “Vice-President, Sales and Marketing, Institutional and Consumer Products Division,” and his remuneration included reimbursement for properly incurred business expenses. However, the February 13 offer was for a lesser sales position which would require Schwarze to pay his own relocation expenses. Additionally, considering the circumstances of the offer, his future position at Solo could, at best, be described as compromised.

It has been recognized that if an employee is hired for a specific position, a subsequent demotion or diminution of duties may be a breach of the employment contract. (Angle v. Hanna (1859), 22 Ill. 429, 432; Seymore v. Reader’s Digest Association, Inc. (S.D.N.Y. 1980), 493 F. Supp. 257; Rudman v. Cowles Communications, Inc. (1972), 30 N.Y.2d 1, 330 N.Y.S.2d 33, 280 N.E.2d 867; Miller v. Winshall (1980), 9 Mass. App. 312, 400 N.E.2d 1306; Hayes v. Resource Control, Inc. (1976), 170 Conn. 102, 365 A.2d 399.) We see no reason why Schwarze should be required to mitigate his damages by accepting an offer from Solo which, in itself, would have breached the original Agreement had it still been in force. The fact that the salary was the same does not erase the stigma attached to the demotion and change of duties. (See Williams v. Albemarle City Board of Education (4th Cir. 1974), 508 F.2d 1242, 1243.) Any other result would clearly be inequitable in that it would allow Solo to breach the Agreement and then cut off its own liability by offering employment not contemplated by the agreement, thus forcing Schwarze to renegotiate the Agreement to his own disadvantage or be precluded from seeking damages. Such a manipulative interpretation of the Agreement, if allowed, would make the employment contract wholly illusory. Accordingly, we hold that Schwarze was not required to mitigate his damages by accepting the offer of reemployment from Solo which would result in a forced renegotiation of his Agreement and an abandonment of his rights thereunder. The judgment of the trial court as to Solo’s liability under the Agreement is therefore affirmed on this basis.

With respect to damages, the parties agree that the difference in salary received by Schwarze pursuant to his current employment visa-vis the Agreement is $71,271.23. However, Solo contends that this sum should be reduced by the amounts of the bonus and unemployment compensation he received. Paragraph 10 of the Agreement states that “salary” payments to Schwarze shall be reduced by “any salary” paid to Schwarze. Thus, the issue is whether a “bonus” is “salary.”

Black’s Law Dictionary defines “salary” as a “reward or recompense for services performed.” (Black’s Law Dictionary 1200 (5th Ed. 1979).) “Bonus” is defined as “[a] consideration or premium paid in addition to what is strictly due. A gratuity to which the recipient has no right to make a demand.” (Black’s Law Dictionary 165 (5th Ed. 1979).) Moreover, Webster states that “bonus refers to anything given over and above the regular wages, salary, remuneration, etc. ***,” (Emphasis added.) (Webster’s New World Dictionary (1966).) From these definitions it can be seen that a “bonus” is not “salary” since the former is an unenforceable gratuity while the latter is payment for services. The case law has upheld such distinctions in similar situations. (Pleasants v. Pleasants (1971), 27 Ohio App. 2d 191, 273 N.E.2d 339 (salary is fixed payment for services); Management Search, Inc. v. Morgan (1975), 136 Ga. App. 651, 222 S.E.2d 154 (bonus is paid in addition to normal consideration); Boyett v. Landon (1977), 238 Ga. 175, 231 S.E.2d 765 (the term “salary” in divorce decree includes only fixed compensation and not bonuses); In re Estate of Gregoriou (1976), 142 N.J. Super. 465, 361 A.2d 636 (bonus is paid in excess of payment for services).) Thus we find that the bonus Schwarze received was not salary and therefore will not be offset against his damages under the Agreement.

The unemployment payments received by Schwarze after Solo ceased salary payments under the agreement and before he secured another position cannot, in our view, be considered as salary within the terms of paragraph 10 of the Agreement. These are benefits payable because of unemployment intended to relieve financial distress (Ill. Rev. Stat. 1979, ch. 48, par. 300 et seq.) and may not be considered as salary. (See Monroe v. Oakland Unified School District (1981), 114 Cal. App. 3d 804, 810, 170 Cal. Rptr. 867, 870; Century Papers, Inc. v. Perrino (Tex. Civ. App. 1977), 551 S.W.2d 507, 510-11; Billetter v. Posell (1949), 94 Cal. App. 2d 858, 860, 211 P.2d 621, 623.) We find the trial court was correct in refusing to offset unemployment benefits against damages and, accordingly, that portion of the judgment is affirmed.

Finally, Schwarze argues that his damages should also include the monetary value of the benefits to which he was entitled under the Agreement. We agree. Paragraph 10 states that Solo will continue to pay Schwarze “salary and benefits” in the event of Solo’s termination of the Agreement. Contracts are to be enforced according to the plain meaning of the language used (Mazanek v. Rockford, Drop Forge Co. (1981), 98 Ill. App. 3d 956, 959, 424 N.E.2d 1271, 1276, appeal denied (1981), 85 Ill. 2d 578; Ancraft Products Co. v. Universal Oil Products Co. (1981), 100 Ill. App. 3d 694, 697-98, 427 N.E.2d 585, 587, appeal denied (1982), 88 Ill. 2d 549), and the trial court should have included the benefits as part of the damages awarded to Schwarze in addition to his salary. Moreover, as there is no corresponding provision in paragraph 10 which would allow Solo to offset current benefits received by Schwarze against the benefits provided for in the Agreement, Schwarze is entitled to retain any benefits received by virtue of his new employment.

Since the value of the benefits has been stipulated by the parties to be $19,346, the case will be remanded to the trial court with directions it enter judgment in favor of Schwarze and against Solo for salary ($71, 231.23) and benefits ($19,346) in the total sum of $90,577.23 and costs.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed in part, reversed in part and remanded with directions.

Affirmed in part, reversed in part and remanded with directions.

HOPF and VAN DEUSEN, JJ., concur.


author: JUSTICE REINHARD

text:
    JOAN SAWICKI, Plaintiff-Appellee, v. HAE J. KIM, M.D., Defendant-Appellant.—(Sherman Hospital, Defendant.)
    Second District
    No. 82—295
    Opinion filed January 27, 1983.

      Edward R. Duncan, Jr., of O’Reilly & Cunningham, of Wheaton, for appellant.
    Maureen P. McIntyre, of Henehan & McIntyre, of Cary, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Hae J. Kim, M.D., appeals from a judgment entered on a jury verdict against him and in favor of plaintiff, Joan Sawicki, in the amount of $18,000. Plaintiff’s complaint alleged medical malpractice on the part of defendant, an anesthesiologist, and another defendant, Sherman Hospital. A directed verdict was entered for the hospital at the close of all the evidence, and the hospital is not a party to this appeal.

The issues raised by defendant for our review are whether the trial court committed error: (1) in denying a motion for mistrial following plaintiff’s attorney’s remarks in opening statement concerning an offer of compromise; (2) in making various rulings on evidentiary matters; (3) in refusing a defense instruction and in overruling a defense objection to one of plaintiff’s instructions; and (4) in failing to order a new trial because of improper and prejudicial closing arguments by plaintiff’s attorney. Defendant also requests we reverse without remand on the basis that the judgment is against the manifest weight of the evidence.

Only a brief review of the facts is necessary since we find prejudicial and reversible error was committed during plaintiff’s opening statement. In plaintiff’s second amended complaint, she alleged causes of action against defendant based on negligence, res ipsa loquitur, and lack of informed consent to the anesthesiological procedure. Plaintiff testified that she had a permanent four-tooth bridge in her mouth at the time she underwent surgery for a left breast biopsy; that prior to the operation no one discussed her teeth or dental work with her nor any risk to them; that after surgery she discovered her bridge was gone and her anchor teeth were broken; and that she was later required to obtain a new six-tooth permanent bridge.

Plaintiff’s expert medical witness, Dr. Herman Libman, an anesthesiologist, testified: that he reviewed various hospital, medical and dental records, and depositions; that he was of the opinion that a deviation from the standard of care occurred because plaintiff was not properly informed of the risks to her dental work posed by general anesthesia; that he believed plaintiff’s teeth were broken due to improper use of a laryngoscope; and that it was his opinion that the chance of healthy teeth breaking was extremely remote in the absence of negligence.

Defendant testified that prior to surgery he did not ask plaintiff whether she had a bridge or examine her mouth. A nurse, testifying for defendant, stated that defendant had asked plaintiff if she had dentures or caps and that plaintiff had said she did not. Defendant and his witnesses further testified: that plaintiff’s anchor teeth were badly decayed; that defendant did not use a laryngoscope or endotracheal tube during the operation; that it was necessary to insert an oral airway made of semirigid plastic in administering the anesthesia; that after surgery defendant attempted to remove the airway, encountered difficulty in maintaining the oxygen flow, and therefore reinserted the airway; and that soon after this reinsertion he noticed that plaintiff’s bridge and anchor teeth were broken and out of her mouth.

In her opening statement to the jury, plaintiff’s attorney stated:

“Subsequent to Mrs. Sawicki being discharged from the hospital, Dr. Kim reduced her bill. In addition, Dr. Kim called her after Dr. Kim was advised that there was an attorney involved in this case, at which time he offered $100.00 to settle the matter, provided no lawyer would be involved.
This, I believe the evidence will show is tantamount to admission of liability.
At the close

Defendant’s attorney interposed an objection indicating the statement was “argumentative.” The trial judge’s response was “[t]ell what the evidence will show.” No further reference was made to this evidence before the jury during the remainder of the trial, nor was anything said to the jury about the trial court’s later ruling on this matter. However, after opening statements had concluded and the jury had been discharged for the day, defendant moved for a mistrial arguing plaintiff’s counsel’s statement referred to an inadmissible offer of settlement and that the statement was highly prejudicial and would cause irreparable harm to defendant. Plaintiff argued that what she referred to in her opening statement occurred before suit was filed and therefore could not be construed as an offer of compromise. She has not pursued this argument on appeal. The trial court refused to grant a mistrial, stating “[w]e’ve told the jury that statements and remarks of counsel are not evidence. I can’t say at this stage that it’s prejudicial.” At the end of the case, the jury was generally instructed that arguments, statements and remarks of counsel are not evidence and to disregard any such argument, statement or remark having no basis in the evidence.

The Illinois courts have consistently held that matters relating to offers of compromise and negotiations for settlement are ordinarily inadmissible. (Bowman v. Illinois Central R.R. Co. (1957), 11 Ill. 2d 186, 213, 142 N.E.2d 104; Barker v. Bushnell (1874), 75 Ill. 220, 222; Smiley v. Manchester Insurance & Indemnity Co. (1977), 49 Ill. App. 3d 675, 681, 364 N.E.2d 683, aff'd (1978), 71 Ill. 2d 306, 375 N.E.2d 118; Lasswell v. Toledo, Peoria & Western R.R. Co. (1976), 41 Ill. App. 3d 568, 574-75, 354 N.E.2d 25; Fenberg v. Rosenthal (1952), 348 Ill. App. 510, 514, 109 N.E.2d 402; Hill v. Hiles (1941), 309 Ill. App. 321, 331, 32 N.E.2d 933.) An exception to this well-established rule, not applicable here, is that admissions as to other facts made during settlement discussions may be admissible. (Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 1099-1100, 410 N.E.2d 266.) The rationale for this rule is that public policy favors the settlement of claims outside of court. (Hill v. Hiles (1941), 309 Ill. App. 321, 331, 32 N.E.2d 933.) In furtherance of the policy of encouraging assistance to an injured party, the Illinois General Assembly has specifically provided that evidence of the providing of, or the payment for medical services, or the offer to pay for or to provide such services is not admissible in evidence, as follows:

“The providing of, or payment for, medical, surgical, hospital, or rehabilitation services, facilities, or equipment by or on behalf of any person, or the offer to provide, or pay for, any one or more of the foregoing, shall not be construed as an admission of any liability by such person or persons. Testimony, writings, records, reports or information with respect to the foregoing shall not be admissible in evidence as an admission of any liability in any action of any kind in any court or before any commission, administrative agency, or other tribunal in this State, except at the instance of the person or persons so making any such provision, payment or offer.” Ill. Rev. Stat. 1979, ch. 51, par. 61.

It has been held that a statement during final argument which implies an offer of compromise is improper and prejudicial. (Lasswell v. Toledo, Peoria & Western R.R. Co. (1976), 41 Ill. App. 3d 568, 574-75, 354 N.E.2d 25.) It is no less prejudicial to comment upon inadmissible evidence in an opening statement with apparent disregard for the subsequent inadmissibility than it is to offer incompetent evidence and then to comment on it to the jury after the court has ruled it inadmissible. (See Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193, 200, 246 N.E.2d 269.) Moreover, no statement should be made in counsel’s opening statement to the jury which counsel does not intend to prove or cannot prove. (Schwedler v. Galvan (1977), 46 Ill. App. 3d 630, 640, 360 N.E.2d 1324.) Generally, in matters involving argument and statements of counsel, the question of the prejudicial effect of a remark during argument is within the discretion of the trial court and the exercise of that discretion should not be overturned unless a clear abuse of discretion appears. Hooper v. Mizyad (1981), 98 Ill. App. 3d 768, 774-75, 424 N.E.2d 851.

It is clearly evident that plaintiff’s counsel’s statements violated the well-established rule of inadmissibility of offers of settlement. Not only did counsel comment on defendant’s offer to settle the matter for $100, but expressly stated that this offer “is tantamount to an admission of liability.” Counsel’s further comment that defendant “reduced her bill” also comes within the statutory prohibition against admission of evidence of payment for medical services. (See Ill. Rev. Stat. 1979, ch. 51, par. 61.) Defendant promptly moved for a mistrial outside the presence of the jury and included the denial of the motion for mistrial in his post-trial motion. We conclude that the comments were prejudicial and that the trial court should have granted a mistrial at this early stage of the trial.

While plaintiff contends that the trial court admonished the jury before commencement of opening statements that the opening statements were not evidence and later instructed them generally to that effect, under the circumstances here we do not believe this can cure the obviously improper and prejudicial effect such comment may have upon a jury. These statements once lodged in the minds of the jury could not be erased by an instruction, and allowing the trial to continue permitted plaintiff to secure the benefit of this statement to the same extent as if she had introduced evidence to prove it. (McCarthy v. Spring Valley Coal Co. (1908), 232 Ill. 473, 479, 83 N.E. 957; Schwedler v. Galvan (1977), 46 Ill. App. 3d 630, 640, 360 N.E.2d 1324.) Even though there was no further mention of any offer of settlement at any later stage of the trial, the remarks of plaintiffs counsel of themselves are sufficiently prejudicial for us to reverse and to remand for a new trial because of the trial court’s abuse of discretion in not granting a mistrial.

Alternatively, defendant maintains that the judgment entered on the jury verdict is against the manifest weight of the evidence and requires reversal without remand. Upon our review of the record, we conclude that the result reached below was one which is reasonable on the facts in evidence. It is the jury’s function to determine the preponderance of the evidence, and we conclude that the verdict here is not against the manifest weight of the evidence. (See Lynch v. Board of Education (1980), 82 Ill. 2d 415, 423, 412 N.E.2d 447.) Therefore, we decline to reverse on this basis.

While defendant has raised on appeal other assertions of trial and instructional error, in view of our reversal and remandment on the ground above discussed we find it unnecessary to pass on the remaining alleged errors, with one exception, as either no error was committed or in all probability the question would not arise in the same context on a retrial. (See United Nuclear Corp. v. Energy Conversion Devices, Inc. (1982), 110 Ill. App. 3d 88, Ill. 441 N.E.2d 1163.) However, we do hold that plaintiff’s counsel’s comment in final argument, “[wjhere are the other eyewitnesses?” was improper since the evidence did not show the witnesses were within the control of the defendant. See Wetherell v. Matson (1977), 52 Ill. App. 3d 314, 319, 367 N.E.2d 472.

For the foregoing reasons, we reverse and remand for a new trial.

Reversed and remanded.

UNVERZAGT and HOPF, JJ., concur.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner-Appellant, v. DONALD STUCKEY et al., Respondents-Appellees.
    Second District
    No. 82—241
    Opinion filed January 17, 1983.
    Rehearing denied March 10, 1983.

      Glen E. Amundsen and Victor J. Piekarski, both of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellant.
    William J. O’Connor and Thomas C. Bielinski, both of Chicago, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

State Farm Mutual Automobile Insurance Co. (State Farm) appeals from a February 24, 1982, order of the Du Page County circuit court which denied its petition to vacate an arbitration award in favor of Donald Stuckey, Judith Stuckey and Todd Stuckey (Stuckeys), and granted their petition to confirm the arbitration award. The only issue State Farm raised on appeal in its appellate brief was whether the arbitrators exceeded their powers under section 12 of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 112) when they refused to apply the Dead Man’s Act (Ill. Rev. Stat. 1981, ch. 51, par. 2) to bar the testimony of Donald Stuckey in the arbitration proceedings. Stuckeys asserted in their appellate brief that the arbitrators’ decision as to the applicability of the Dead Man’s Act to the arbitration proceedings is not a proper matter for judicial review. State Farm in its reply brief then raised the question whether Stuckeys have waived their right to challenge the circuit court’s review of the arbitrators’ decision on the applicability of the Dead Man’s Act by failing to cross-appeal from the trial court’s determination that it had the authority to review the arbitrators’ decision.

The parties agree on the basic facts. Donald Stuckey was covered by an automobile insurance policy issued by State Farm. The policy included uninsured motorist coverage. In the event of an accident involving an uninsured motorist, the policy required State Farm to pay, within the policy limits, all sums which the insured would be legally entitled to recover as damages from the uninsured motorist. The policy provided that if the parties were unable to agree whether payment was owing, or on the amount owing, under the policy, that the decision would be made by arbitration. The policy also provided that the arbitration would be conducted “in accordance with the usual rules governing procedure and admission of evidence in courts of law.”

On December 24, 1975, Stuckeys were involved in a collision with Robert G. Taiman, an uninsured motorist. Stuckeys were injured as the result of this collision and sought recovery under the policy. On June 18, 1981, the matter of recovery was presented for arbitration. At the arbitration hearing, a certified copy of Taiman’s death certificate was presented showing that he had died on July 28, 1979. State Farm then moved to bar the testimony of Donald Stuckey based on the Dead Man’s Act. The arbitrators found that State Farm was not defending the action as a representative of Taiman because State Farm did not fall within the definition of “representative” given in the Dead Man’s Act. Thus, State Farm’s motion was denied and Donald Stuckey was allowed to testify over State Farm’s objection.

On September 10, 1981, the arbitrators awarded $72,000 to Donald Stuckey, $120,000 to Judith Stuckey and $10,500 to Todd Stuckey. State Farm filed a petition to vacate this award in the circuit court. The trial court denied this petition and confirmed the award, but modified it by reducing the amount awarded to Judith Stuckey to $100,000. This reduction is not an issue on appeal.

Before reaching the legal arguments advanced by the parties, we must first consider State Farm’s motion pursuant to Supreme Court Rule 329 (87 Ill. 2d R. 329) to supplement the record with the transcript of the arbitration proceedings. Rule 329 allows the parties to supplement the record with documents that were before the trial court but were not contained in the record on appeal. (See Schumann v. IPCO Hospital Supply Corp. (1981), 93 Ill. App. 3d 1053, 1055-56, 418 N.E.2d 161.) However, matters not properly in the record will not be considered on review. (Gille v. Winnebago County Housing Authority (1970), 44 Ill. 2d 419, 427, 255 N.E.2d 904.) The transcript of the arbitration proceedings in this case was never filed in the trial court or considered by the trial judge. Since documents which are not a part of the trial court record and were not considered by the trial court will not be considered on appeal (Cato v. Thompson (1980), 83 Ill. App. 3d 321, 325, 403 N.E.2d 1239; Santucci Construction Co. v. Metropolitan Sanitary District (1972), 9 Ill. App. 3d 491, 492, 292 N.E.2d 579), State Farm’s motion to supplement the record with the transcript of the arbitration proceedings is denied.

Stuckeys maintained in the trial court and in their appellate brief that the decision of the arbitrators on the applicability of the Dead Man’s Act is not a proper matter for judicial review. While the trial court found that the arbitrators were correct in denying application of the Dead Man’s Act, the trial court also decided that it had the power to determine the correctness of the arbitrators’ evidentiary ruling under that Act. Initially, we must determine whether State Farm is correct when it argues that Stuckeys have waived this argument by failing to file a cross-appeal from the trial court’s ruling that the court had authority to review the arbitrators’ decision in this respect.

An appellee may advance any ground supported by the record to sustain a trial court judgment in his favor. (Vendo Co. v. Stoner (1974), 58 Ill. 2d 289, 307, 321 N.E.2d 1; Spencer v. Community Hospital (1980), 87 Ill. App. 3d 214, 218, 408 N.E.2d 981.) A cross-appeal is not required to" enable the appellee to raise these grounds. (People ex rel. Barrett v. Bradford (1939), 372 Ill. 63, 65-66, 22 N.E.2d 691; Pate v. City of Sesser (1979), 75 Ill. App. 3d 233, 240, 393 N.E.2d 1146; Peterson v. Norfolk & Western Ry. Co. (1976), 42 Ill. App. 3d 570, 572-73, 356 N.E.2d 391.) Thus, we hold that Stuckeys were not required to cross-appeal from the trial court’s finding that it was empowered to review the arbitrators’ ruling in order to argue its nonreviewability, since this ground for upholding the trial court was urged by Stuckeys below and appears in the record. The cases cited by State Farm, Zettel v. Paschen Contractors, Inc. (1981), 100 Ill. App. 3d 614, 427 N.E.2d 189, and DePhillips v. Mortgage Associates, Inc. (1972), 8 Ill. App. 3d 759, 291 N.E.2d 329, are inapposite.

In Zettel, the appellee sought to assert a factual defense which the trial court had decided against it and from which it did not cross-appeal. In DePhillips, the trial court found against appellee on one count of appellants’ two-count complaint but dismissed the appellants’ other count. The court also determined that appellants could not prosecute a class action as to the count found in their favor. Appellants appealed the denial of the class action and also the dismissal of the second count. Appellee did not cross-appeal the finding in appellants’ favor on the other count and therefore was barred from arguing the incorrectness of that finding as a ground to uphold the denial of the class action.

Stuckeys contend that an arbitrator’s award must not be set aside because of errors in judgment or mistakes of law committed by the arbitrators. Our supreme court has recently reaffirmed the principle that it is preferable that disputes be settled without litigation in the context of the Uniform Arbitration Act. (Garver v. Ferguson (1979), 76 Ill. 2d 1, 8-9, 389 N.E.2d 1181.) Because of this preference, judicial review of an arbitrator’s award is more limited than appellate review of a trial court’s decision. (76 Ill. 2d 1, 8, 389 N.E.2d 1181; Seither & Cherry Co. v. Illinois Bank Building Corp. (1981), 95 Ill. App. 3d 191, 195, 419 N.E.2d 940.) Thus, whenever possible, a court must uphold an arbitrator’s award. Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 477, 427 N.E.2d 1199.

It is a well-settled principle that an arbitrator’s award cannot be set aside because of errors in judgment or mistakes of law or fact made by the arbitrator. (Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 477, 427 N.E.2d 1199; Garver v. Ferguson (1979), 76 Ill. 2d 1, 7, 389 N.E.2d 1181; Binkley v. Maros (1979), 79 Ill. App. 3d 105, 108, 398 N.E.2d 321; Freeport Construction Co. v. Star Forge, Inc. (1978), 61 Ill. App. 3d 999, 1006, 378 N.E.2d 558.) Here, the arbitrators decided that State Farm was not within the class of representatives defined in the Dead Man’s Act. Based on this interpretation, they declined to apply the act in the arbitration proceeding. The interpretation of a statute is a decision of law, and therefore, whether the arbitrators made a mistake in deciding that the Dead Man’s Act did not apply, is a question not reviewable by the courts. See Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 477, 427 N.E.2d 1199; Garver v. Ferguson (1979), 76 Ill. 2d 1, 7, 389 N.E.2d 1181.

However, State Farm also argues that the arbitrators’ decision not to apply the Dead Man’s Act here was not merely a mistake of law. Rather, State Farm contends the arbitrators exceeded their powers “by refusing to apply an applicable evidentiary rule during the course of the arbitration hearing contrary to the expressed [sic] provisions of the insurance contract governing the arbitration.” State Farm argues that section 12(a)(3) of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 112(a)(3)) grants the court the power to vacate, correct, or modify an award where the arbitrators have exceeded their powers.

Although somewhat obfuscated, it appears that the “expressed [sic] provisions” of the insurance contract, which State Farm maintains defined the arbitrators’ powers, are found in the language “the arbitration shall be conducted *** in accordance with the usual rules governing procedure and admission of evidence in courts of law.” State Farm then contends the courts may review the arbitrators’ decision on the applicability of the Dead Man’s Act.

Section 12(a)(3) of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 112(a)(3)) provides that an arbitration award shall be vacated where the “arbitrators exceeded their powers.” In Garver v. Ferguson (1979), 76 Ill. 2d 1, 389 N.E.2d 1181, the supreme court adopted a standard for examining an arbitrator’s construction of a contract under section 12(a)(3). The standard the court adopted, quoting from the chairman of the committee that drafted the Uniform Arbitration Act, was “ ‘whether the construction of the contract made by the arbitrator is a reasonably possible one that can seriously be made in the context in which the contract was made. *** [I]f all fair and reasonable minds would agree that the construction of the contract made by the arbitrator was not possible under a fair interpretation of the contract, then, the court would be bound to vacate or refuse to confirm the award.’ [Citation.]” 76 Ill. 2d 1, 9-10, 389 N.E.2d 1181.

Applying this standard, we cannot say that the arbitrators unfairly interpreted the clause of the contract requiring the application of the “usual rules governing procedure and admission of evidence in courts of law.” The contract provisions do not expressly place the insurer in the position of the uninsured motorist with respect to the evidentiary rule of the Dead Man’s Act. Therefore, the arbitrators did not exceed their authority, as set forth in the contract, in determining what evidence was admissible in accordance with the usual rules in courts of law. Thus, the arbitrators’ decisions during the hearing on evidentiary questions, including the applicability of the Dead Man’s Act, were legal rulings not subject to review under section 12(a).

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

Affirmed.

VAN DEUSEN and NASH, JJ., concur.


author: JUSTICE HOPF

text:
    DAVID J. SMITH, Plaintiff-Appellant, v. AARON, AARON, SCHIMBERG & HESS, Defendant-Appellee.
    Second District
    No. 82—351
    Opinion filed January 27, 1983.

      James E. O’Halloran, Jr., of Johnson, Cusack, Bell, O’Halloran & Demaret, of Northbrook, for appellant.
    Joel J. Sprayregen and Nancy G. Abrahams, both of Aaron, Schimberg, Hess, Rusnak, Deutsch & Gilbert, of Chicago, and Robert L. Snook, of Waukegan, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Plaintiff, David J. Smith, appeals from the dismissal of that portion of his complaint which alleged that defendant’s representation of his wife constituted malicious prosecution. Plaintiff’s wife, Dorothy Smith, retained the defendant law firm, which filed a petition for legal separation. (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) Subsequently, the petition for separation was dismissed for want of prosecution by the circuit court of Cook County and plaintiff then filed a complaint for malicious prosecution in the circuit court of Lake County. Plaintiff appeals from the trial court’s dismissal of his complaint.

The defendants in this cause were retained by plaintiff’s wife, Dorothy Smith, and they filed a petition for legal separation on her behalf on December 12, 1977. On the next day they filed a motion for a temporary restraining order, which was granted ex parte and which, in effect, froze plaintiff’s assets. The TRO was served on plaintiff’s employer and resulted in the withholding of his salary. Plaintiff also alleged that it resulted in the termination of his employment.

After plaintiff obtained counsel and had entered into an agreed order modifying the TRO, he moved to strike his wife’s petition for separation, alleging that it failed to allege that the parties were living separate from each other. The trial court granted plaintiff’s motion and vacated all orders entered previously, allowing her to amend. No subsequent petitions were filed, and the case was dismissed for want of prosecution on May 9,1978.

The requisite elements for malicious prosecution are well settled:

“Under Illinois law, a complaint for malicious prosecution must allege five distinct elements: (1) institution and prosecution of judicial proceedings by the defendant; (2) lack of probable cause for those proceedings; (3) malice in instituting the proceedings; (4) termination of the prior cause in plaintiff’s favor, and (5) suffering by plaintiff of some special injury, beyond the anxiety, loss of time, attorney fees, and necessity for defending one’s reputation, which are an unfortunate incident of many (if not most) lawsuits.” Lyddon v. Shaw (1978), 56 Ill. App. 3d 815, 818, 372 N.E.2d 685.

Further, it has been held that an attorney can be held liable for malicious prosecution. (Berlin v. Nathan (1978), 64 Ill. App. 3d 940, 381 N.E.2d 1367.) In Berlin the court noted that if an attorney acts, knowing that his client has no just claim and that his client is actuated by illegal or malicious motives, he may be liable for malicious prosecution. (64 Ill. App. 3d 940, 948.) An attorney cannot always justify himself merely by showing he followed his client’s instructions. Burnap v. Marsh (1852), 13 Ill. 535.

After careful consideration of plaintiff’s contentions, the complaint and other pleadings, we have concluded that the trial court properly granted the motion to strike plaintiff’s complaint. Plaintiff’s complaint for malicious prosecution failed to meet a number of the requirements of Lyddon v. Shaw (1978), 56 Ill. App. 3d 815, 818, 372 N.E.2d 685.

Plaintiff’s first contention is that the petition for separation was instituted without probable cause. He contends that it is a statutory requirement that the petitioner for a legal separation live in a separate abode from the respondent at the time of filing. Ill. Rev. Stat. 1977, ch. 40, par. 402.

Plaintiff alleges that at the time the petition was filed, the defendant law firm was aware that the parties were not living in separate abodes. Therefore, he contends, defendants had no probable cause for filing the petition.

Defendants concede that Dorothy was not living in a separate abode at the time of filing, but it also contends that there is no clear statutory requirement that the parties reside in a separate abode at the time of filing. The statute in issue became effective only two months before the date when defendants filed the petition for legal separation, December 12,1977. It provides in part:

“[I]f a party, prior to trial, requests a judgment of legal separation (formerly known as separate maintenance), rather than a judgment of dissolution of marriage, the court shall grant the judgment in that form, provided that the petitioner has resided in a separate abode from the respondent continuously since the separation, and such separation has been within the petitioner’s fault.” Ill. Rev. Stat. 1977, ch. 40, par. 402.

The statute makes it clear that the parties must reside in a separate abode before the court grants the judgment in the form of legal separation. The statute does not require separate abodes at the time of filing — it is silent on this question. The petition for separation alleged that the wife was seeking to have the plaintiff move out of the marital home, but he had refused to leave the premises. We believe plaintiff has failed to make a clear showing that defendants had no probable cause for filing the subject petition.

Baumgartner v. Baumgartner (1958), 16 Ill. App. 2d 286, 292, 148 N.E.2d 327, held that it was against public policy for a couple to live together during the pendency of a separate maintenance or divorce action. Because the evidence showed that plaintiff and defendant were living together at the time the suit for separate maintenance was filed, and because the complaint lacked an allegation that the parties were living separate and apart, the complaint did not state a cause of action. Therefore, the court held that the suit was not brought in good faith. Plaintiff contends that Baumgartner shows both the element of no probable cause and the element of malice. However, it should be noted that the applicable statute was quite different in Baumgartner from the current statute in that it provided specifically for a remedy in equity against the other spouse “while they so live or have so lived separate and apart.” (Ill. Rev. Stat. 1951, ch. 68, par. 22.) This differs from the present statute, which on its face only requires that the parties maintain a separate abode “prior to trial.” (Ill. Rev. Stat. 1977, ch. 40, par. 402.) Baumgartner was interpreting a different, earlier statute and is not controlling in the case at bar.

Plaintiff relies on Baumgartner v. Baumgartner (1958), 16 Ill. App. 2d 286, 292, 148 N.E.2d 327, for the proposition that defendants’ acts constitute malice as a matter of law. While the facts of the Baumgartner case are quite similar to the case at bar, the statutory guidelines for petitioning for separation have changed since that case. Further, we note that plaintiff’s complaint failed to allege malice in instituting the proceedings.

Defendants contend that Dorothy’s petition for separation is evidence of its good faith and lack of malice. The petition does allege that the parties were living together and that plaintiff would not leave the marital home. It also alleges that plaintiff threatened to leave the State, leave his family without funds and that he had physically assaulted the petitioner and the minor children. Defendants contend that these allegations indicate a good faith attempt by them to protect their client from abandonment by plaintiff. Defendants contend that Dorothy was not required to passively accept her situation, and she was entitled to take steps to remedy it. (DeGeeter v. DeGeeter (1973), 16 Ill. App. 3d 262, 264, 305 N.E.2d 727, 729.) We agree. Although Degeeter was decided under the former act, it appears to have been decided on an equitable basis and it would be applicable to any statute that provides .for separate maintenance. It appears that defendants’ filing of the verified petition was not done maliciously, and may well have been necessary under the circumstances.

An important issue in this case is the question of whether or not plaintiff has shown that the original suit ended or terminated in his favor. The action for separation was dismissed on May 9, 1978, for want of prosecution. Plaintiff contends that the cause was dismissed on the merits, but then points out that leave to amend was granted by the trial court judge. As previously indicated, after no action was taken to amend or refile the petition all prior orders were vacated and the cause was dismissed for want of prosecution. Plaintiff contends that this dismissal was on the merits because a necessary allegation, i.e., “living separate and apart,” was lacking and could not be pleaded. .

On the other hand, it appears that this cause could be reopened and no final determination has been made as of yet. Defendants contend that under the current status of the law there is no requirement that the parties be living separate and apart at the time of filing. At some time in the future this issue could conceivably be decided in accordance with defendants’ position. We cannot say that at this time the cause has been determined favorably for the plaintiff.

In Kurek v. Kavanagh, Scully, Sudow, White & Frederick (1977), 50 Ill. App. 3d 1033, 1038, 365 N.E.2d 1191, 1194, the court discussed this very problem and stated:

“Termination of the civil suit in favor of the plaintiff must be a judicial determination which deals with the factual issues. Voluntary dismissal (Bonney v. King (1903), 201 Ill. 47, 66 N.E. 377), settlement (Schwartz v. Schwartz (1937), 366 Ill. 247, 8 N.E.2d 668), or even involuntary dismissal (Siegel v. City of Chicago (1970), 127 Ill. App. 2d 84, 261 N.E.2d 802) are not such terminations.” See also Savage v. Seed (1980), 81 Ill. App. 3d 744, 748, 401 N.E.2d 984; Executive Commercial Services, Ltd. v. Daskalakis (1979), 74 Ill. App. 3d 760, 767, 393 N.E.2d 1365.

Further, it has been held that an order dismissing a case for want of prosecution is not a final and appealable order. (Flores v. Dugan (1982), 91 Ill. 2d 108, 114, 435 N.E.2d 480.) In Flores the court noted that a judgment, to be final and appealable, must be a determination by the court which “fixes absolutely and finally the rights of the parties in the lawsuit.” (91 Ill. 2d 108, 112, 435 N.E.2d 480.) The court went on to note that the order itself provided that it was not final and appealable. While the question of appealability is not presently in issue, the Flores case is relevant to the issue of whether or not the original suit has terminated. Thus, we believe plaintiff has not met the requirement that the prior cause be terminated in his favor.

There are exceptions to the requirement that a plaintiff show that a prior proceeding terminated in his favor, such as when the action brought was unjustified. (March v. Cacioppo (1962), 37 Ill. App. 2d 235, 246, 185 N.E.2d 397.) Here, however, there was no showing that previous action was not justified other than the fact that plaintiff’s wife dropped her suit. The fact that plaintiff may have suffered damages is not dispositive. It does not appear that plaintiff’s claim falls within this exception to the favorable termination requirement.

In light of our discussion above, we do not reach the issue of plaintiff’s special injuries.

For the reasons stated, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

UNVERZAGT and REINHARD, JJ., concur.


text:
    DALE BENCKENDORF, Plaintiff, v. BURLINGTON NORTHERN RAILROAD et al., Defendants.—(Burlington Northern Railroad, Counterplaintiff and Counterdefendant —Appellant v. Dennis M. Lee, Counterdefendant and Counterplaintiff-Appellee.)
    Second District
    No. 82—505
    Opinion filed February 2, 1983.
    Rehearing denied March 10, 1983.

      Kenneth J. Wysoglad, Thomas J. Knapp, and Michael L. Sazdanoff, all of Burlington Northern Railroad Co., of Chicago, for appellant.
    No appearance for appellee.
   JUSTICE NASH

delivered the opinion of the court:

In this personal injury action we allowed an interlocutory appeal by permission pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308(a)) from an order of the circuit court denying a motion by defendant-counterplaintiff-counterdefendant Burlington Northern Railroad to strike the counterclaim of defendant-counterplaintiff-counterdefendant Dennis M. Lee. The trial court certified the following question for resolution:

“Whether Ill. Rev. Stat., ch. 83, sec. 15 and sec. 18 bars defendant Lee’s counterclaim against defendant, Burlington Northern, which counterclaim was filed, without leave of court, before defendant’s [sic] Lee answer was filed.”

We answer in the negative and, accordingly, affirm the order of the circuit court.

The underlying action was commenced on September 29, 1981, when plaintiff Dale Benckendorf filed a two-count complaint against defendants Burlington and Lee seeking damages for personal injuries sustained on December 1, 1979, when a Burlington train collided -with an auto driven by Lee in which Benckendorf was a passenger. On November 6, 1981, Burlington filed its answer to the complaint and a counterclaim against Lee, in which it seeks contribution due to Lee’s alleged negligent operation of the auto.

On November 25, 1981, without seeking leave of court, Lee filed a counterclaim against Burlington (count 1) and Frederick T. Reinschmidt (count 2), its engineer, in which Lee sought damages for personal injuries he sustained in the December 1, 1979, collision. Subsequently, on December 3, 1981, through other attorneys, Lee filed his answer to plaintiff’s complaint denying any negligence on his part caused the accident.

On January 25, 1982, Burlington moved to strike and dismiss count 1 of Lee’s counterclaim directed against it, asserting Lee had filed his counterclaim prior to filing his answer, in violation of section 38 of the Civil Practice Act (Ill. Rev. stat. 1981, ch. 110, par. 38), now section 2 — 608 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 608), and that the counterclaim was barred by the statute of limitations (Ill. Rev. Stat. 1981, ch. 83, pars. 15, 18), now sections 13 — 202, 13 — 207 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 13-202, 13-207).

After arguments, the trial court made findings that Lee’s counterclaim was timely filed within the statute of limitations and that Lee’s answer by his subsequent attorney was filed after the 30-day response period. The court denied Burlington’s motion to strike the counterclaim and certified the question presented in this appeal.

Lee has not seen fit to assist this court with a brief, and we will review the merits of the issues presented under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493.

Burlington contends that Lee’s counterclaim for personal injuries was not filed within the two-year limitation period governing such actions (Ill. Rev. Stat. 1981, ch. 83, par. 15), now section 13 — 202 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13— 202), and should have been dismissed by the trial court. (See, e.g. Griffith v. Pincham (1978), 67 Ill. App. 3d 316, 384 N.E.2d 870, appeal denied (1979), 74 Ill. 2d 586.) It argues that although the counterclaim filed November 25, 1981, was in fact filed within two years of the December 1, 1979, accident, that was not properly done as it was filed prior to, rather than a part of, Lee’s answer to plaintiff’s complaint. Burlington also asserts that even if the counterclaim is considered to be properly filed as of December 3 when Lee filed his answer, it nevertheless falls then outside the two-year limitation period and it is not “saved” by the provisions of section 17 of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 18), now section 13 — 207 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13— 207).

Section 32 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 32), now section 2 — 602 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 602) provides that a defendant’s first pleading shall be designated an answer. Section 38 of the Act allows a defendant to file a counterclaim against a codefendant and provides that it shall be a part of the answer and designated as a counterclaim (Ill. Rev. Stat. 1981, ch. 110, par. 38, now ch. 110, par. 2-608). While a defendant is not required to immediately assert his rights by way of a counterclaim (Miller v. Bank of Pecatonica (1980), 83 Ill. App. 3d 424, 427, 403 N.E.2d 1262), Lee chose to do so here but did not follow the procedures set forth in the Act. His original pleading was the counterclaim against codefendant Burlington and it was not filed with or as a part of Lee’s answer to plaintiff’s complaint as should be done. Hutchinson v. Brotman-Sherman Theatres, Inc. (1981), 94 Ill. App. 3d 1066, 1073, 419 N.E.2d 530; Trustees of Schools v. Schroeder (1972), 8 Ill. App. 3d 122, 124, 289 N.E.2d 247; cert denied (1973), 414 U.S. 832, 38 L. Ed. 2d 67, 94 S. Ct. 166.

It has been held, however that the trial court has discretion to grant a defendant leave to file a counterclaim subsequent to the filing of an answer. (Trustees of Schools v. Schroeder (1972), 8 Ill. App. 3d 122, 124, 289 N.E.2d 247, cert. denied (1973), 414 U.S. 832, 38 L. Ed. 2d 67, 94 S. Ct. 166; People ex rel. Ames v. Marx (1939), 299 Ill. App. 284, 288, 20 N.E.2d 103, 30 Ill. L. & Prac. Pleading sec. 75 (1957).) We see no compelling reason why the court should not also be permitted to exercise its judicial discretion in circumstances, as here, where defendant irregularly files his counterclaim before his answer or, stated differently, files his answer after his counterclaim. See Winemiller v. Mossberger (1933), 355 Ill. 145, 154, 188 N.E. 903.

Here, Lee’s answer to plaintiff’s complaint was filed eight days after filing his counterclaim against codefendant Burlington. Both pleadings were of record when Burlington sought to dismiss the counterclaim and it has not suggested that it was in any way prejudiced by Lee’s failure to file his answer and counterclaim at the same time (cf., McGrath Heating & Air Conditioning Co. v. Gustafson (1976), 38 Ill. App. 3d 465, 467, 348 N.E.2d 223; Greenlee Brothers & Co. v. Rockford Chair & Furniture Co. (1969), 107 Ill. App. 2d 326, 333, 246 N.E.2d 64). Although it is not shown in the record that Lee requested leave of court to permit him to file his counterclaim prior to answering, the trial court did allow the counterclaim to withstand Burlington’s motion to strike it as prematurely filed. It appears that the court did exercise its discretion in favor of allowing Lee’s counterclaim to stand notwithstanding the procedural pleading defect. The Civil Practice Act provides that it should be construed liberally, rather than strictly, so that controversies may be determined expeditiously and finally according to the substantive rights of the parties and with a view to doing substantial justice between them. (Ill. Rev. Stat. 1981, ch. 110, pars. 4, 33, now Ill. Rev. Stat. 1981, ch. 110, pars. 1 — 106, 2 — 603.) We conclude the trial court did not abuse its discretion, in these circumstances, by allowing Lee’s counterclaim to stand and denying Burlington’s motion to strike it.

Burlington contends further that if Lee’s counterclaim should be considered to have been filed on December 3, 1981, with his answer filed on that day, the cause of action was not commenced within the requisite two years of the December 1, 1979, accident and is barred as untimely.

While section 38 of the Civil Practice Act does not require that a counterclaim be filed with the answer, it also recognizes the differences in the nature of the two pleadings by indicating the counterclaim “shall be complete in itself” (Ill. Rev. Stat. 1981, ch. 110, par. 38, now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 608). A counterclaim differs from an answer or affirmative defense. The former is a cause of action which seeks affirmative relief, whereas an answer or affirmative defense merely attempts to defeat a plaintiff’s cause of action. (Peoria Housing Authority v. Sanders (1973), 54 Ill. 2d 478, 484-85, 298 N.E.2d 173, 175-77 (dissent); Wilson v. Tromly (1949), 404 Ill. 307, 309-10, 89 N.E.2d 22.) In the present case, the only time Lee put into motion the instruments of the court to recover money damages from Burlington was with the filing of his counterclaim, not with his answer, under which he could collect nothing (see 404 Ill. 307, 314, 89 N.E.2d 22, 26). Lee’s action against Burlington commenced with his counterclaim; as it was filed on November 25, 1981, less than two years after the occurrence of the train-auto collision, the cause of action was brought within the applicable statute of limitations.

In any event, even should it be considered that Lee’s counterclaim was filed as of December 3, 1981, under section 17 of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 18), now section 13 — 207 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 207), his cause of action would not be barred by the two-year limitation period.

Section 17 of the Limitations Act “saves” otherwise barred claims by providing that:

“A defendant may plead a set-off or counter claim barred by the statute of limitation, while held and owned by him, to any action, the cause of which was owned by the plaintiff or person under whom he claims, before such set-off or counter claim was so barred, and not otherwise ***.” Ill. Rev. Stat. 1981, ch. 83, par. 18.

Burlington argues that section 17 applies only to actions between a plaintiff and defendant and does not apply where a defendant has filed a counterclaim against another defendant, citing Dignan v. Midas-International Corp. (1978), 65 Ill. App. 3d 188, 192, 382 N.E.2d 559, and Eddy v. Yellow Cab Co. (N.D. Ill. 1977), 434 F. Supp. 447, 448. In both Dignan and Eddy, however, the parties against whom counterclaims had been filed were passive codefendants who had not, as in this case, brought actions against the counterclaimants. Here, when Burlington filed its counterclaim against Lee for contribution based upon Lee’s alleged negligent driving of the auto, Burlington became a plaintiff vis a vis Lee. In our view, Dignan and Lee must be distinguished, and Lee’s counterclaim, even if considered filed two days after expiration of the statute of limitations, would be “saved” by the terms of section 17.

Accordingly, we resolve the issue of law presented in the negative and affirm the order of the trial court denying Burlington's motion to strike and dismiss Lee’s counterclaim against it.

Affirmed.

HOPF and VAN DEUSEN, JJ., concur.


author: JUSTICE HARTMAN

text:
    CENTRAL NATIONAL BANK IN CHICAGO, Plaintiff-Appellee, v. WILLIAM B. BAIME, Defendant-Appellant.
    First District (2nd Division)
    No. 81—525
    Opinion filed November 23, 1982.
    Rehearing denied March 7, 1983.
    William B. Baime, of Northridge, for appellee, pro se.

    Henry C. Krasnow and R. Peter Carey, both of Mandel, Lipton and Stevenson, Ltd., of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

This action was brought by plaintiff Central National Bank in Chicago (Central) to recover on defendant’s unpaid note. Defendant’s answer and counterclaim were stricken and a default entered against him for failure to comply with discovery rules and rulings. Central’s damages were heard by a jury which was directed to return a verdict for Central upon which judgment was entered. Defendant’s post-trial motions were denied and he appeals, raising as issues the propriety of the imposed sanctions and the sufficiency of damage evidence.

For the reasons set forth below, we reverse.

The odyssey of this lawsuit through pretrial proceedings is prolix, but essential. In February 1978 Central filed its complaint alleging that: defendant, a citizen of California, executed a promissory note in favor of Central for the principal amount of $93,000, plus interest, to be repaid within 91 days; Central advanced $78,250 at defendant’s direction; the amount due Central was not repaid on the date due nor upon demand; after Central’s liquidation of certain collateral, which had been applied to the amount due on the note, a $7,853.36 balance remained, plus interest. Defendant’s motion to dismiss was denied on October 31,1978.

Defendant, then represented by counsel, filed his answer on December 20, 1978, admitting that the face amount of the note has not been paid but stating, “[pjlaintiff failed *** to live up to the terms of the agreement and to advance the face amount of the said note thereby breaching the terms of said agreement ***.” Defendant also asserted that when executed it was understood that the note would not be called at the due date.

Central’s motion for summary judgment was denied on March 2, 1979. On that same date, defendant, upon leave of court, filed a counterclaim seeking damages for Central’s alleged breach of an oral agreement to loan him $93,000, for alleged conversion of Baime’s securities given as collateral, and for fraud, all denied by Central.

On October 25, 1978, Central noticed defendant’s deposition for December 4, 1978. He did not appear. On December 20, 1978, the circuit court ordered that defendant’s deposition be concluded before February 8, 1979. On February 2, 1979, Central requested defendant’s production of documents on March 9, 1979. On February 22, 1979, Central renoticed defendant’s deposition to be taken March 20, 1979, and requested that certain documents be produced on that date. Defendant appeared for deposition on March 20, 1979. He brought some documents with him, but did not produce certain others specifically requested, including income tax returns for Da-Mar, Inc., whose stock Baime had pledged as collateral for the subject loan, and still other documents which had been specifically requested, such as income statements from Da-Mar, documentation for brokerage houses, profit and loss sheets, and receipts for sales of personal property. Defense counsel stated that the tax returns were not relevant and would not be produced absent a court order. Defendant gave 104 pages of testimony and remained in Chicago for two additional days; however, the deposition was adjourned because of Central’s scheduling problems, and in order that defendant might produce requested documents.

On June 5, 1980, Central moved to compel defendant’s attendance at a deposition, alleging that: Baime had developed severe medical problems which had prevented him from resuming his deposition; and Baime’s attorney had informed Central that he did not intend to return to Chicago prior to trial, then scheduled for June 18, 1980. The circuit court granted the motion and ordered defendant to appear for his deposition, or produce a medical affidavit excusing his appearance, by July 7, 1980. The trial was continued until September 15,1980.

On August 22, 1980, Central moved for sanctions for defendant’s failure to comply with the June 5, 1980, order. That motion was granted on August 22, 1980. Defendant’s answer and counterclaim were stricken; judgment was entered for Central; Central was awarded attorney fees; and it was ordered to prove up damages, costs, interest and attorney fees.

Defendant’s motion to vacate the August 22, 1980, order, asserting that defendant was available for deposition at any time in California and relating that a letter from defendant’s attending physician set forth reasons for Baime’s absence, was denied on September 12, 1980. On September 15, 1980, defendant’s renewed motion was now supported by a medical affidavit signed by defendant’s doctor which stated that: Baime was under affiant’s care for arteriosclerotic heart disease; he sustained myocardial infarctions in April and again in May 1979, for which he was hospitalized; he had recurrent chest pains; and it was medically inadvisable for Baime to travel to Chicago except in midspring or late fall. The motion was granted and he was ordered to appear in Chicago at his own expense to give his deposition on October 7, 1980.

On October 7 and 8, 1980, defendant appeared for deposition and was asked to produce further documents. For the most part he produced documents previously requested. He was also asked to produce documents which opened new avenues of investigation. He refused, as noted heretofore, to produce his income tax returns.

Central moved to compel defendant to produce certain documents on October 14, 1980, and to appear in Chicago to be questioned regarding said documents. Defendant had agreed during the deposition to send the documents by October 17, but did not want to return to Chicago to testify. Central also moved for attorney fees incurred in enforcing the June 5, 1980, order. On October 29, 1980, the circuit court orally directed counsel to prepare a draft order requiring defendant: to appear at his deposition prior to November 14, 1980, for questioning regarding documents; to produce certain documents; and to produce his 1977 and 1978 Federal income tax returns in camera before November 7, 1980, or file an affidavit explaining his inability to do so. The written order reflecting this October 29, 1980, ruling was not entered, however, until November 10, 1980. Trial was continued to November 24, 1980.

On November 11, 1980, defendant’s attorney served a notice of motion to withdraw. On November 14, 1980, Central filed another motion for sanctions alleging that defendant had failed to comply with the October 29, 1980, order. On November 24, 1980, Central’s motion for attorney fees was granted, defendant’s answer and counterclaim were stricken and a default entered against him on the complaint. A hearing was scheduled for Central to prove its damages, and defendant’s attorneys were allowed to withdraw.

On December 15, 1980, Central submitted proof of its damages; its motion for directed verdict in the amount of $20,889.83 was granted; and judgment for that amount was entered. Defendant’s motions, filed by new counsel on January 15, 1981, to vacate the November 24, 1980, and December 15, 1980, orders, and for judgment n.o.v. in his favor, were denied.

Defendant first argues that he did not receive sufficient notice of the written order entered November 10, 1980, directing him to appear at his deposition on November 14, 1980, in violation of his due process rights. He contends that sanctions were unfairly imposed due to his failure to obey a directive four days after the written order was entered, especially in light of his ill health and California residence. He maintains further that the order required him to produce documents or file an affidavit justifying any noncompliance on his part on or before November 7, 1980, three days before the written order was entered.

No written order appears to have been entered at the October 29, 1980, hearing. On that date, the circuit judge orally directed plaintiff’s counsel to prepare a draft order requiring defendant to appear for deposition prior to November 14, 1980; to produce certain documents no later than November 7, 1980; and to produce his income tax returns in camera by November 7, 1980, or file an affidavit explaining why he could not do so. The half-sheet entry for October 29, 1980, reads simply, “draft order to be submitted.” Inexplicably, the draft order prepared by plaintiff’s counsel was not signed by the circuit judge until November 10, 1980. The threshold question that arises is on what date the court’s order became effective. Supreme Court Rule 271 (73 Ill. 2d R. 271) is applicable here because the circuit court ruling was “*** upon a motion other than in the course of trial, [and] the attorney for the prevailing party *** prepare[d] and presented] to the court the order *** to be entered ***.” (Emphasis added.) The uncertainty resulting from the circumstances at bar under application of Rule 271 can be resolved logically only by considering the order of November 10, 1980, as the sole effective order because it was the only order “to be entered.” (73 Ill. 2d R. 271.) Compounding the apparent confusion was the action of defendant’s attorney who served a notice of motion for leave to withdraw as defendant’s lawyer at that point.

Much of the uncertainty and confusion is attributable to defendant’s sometimes recalcitrant and uncooperative approach to the lawsuit. Discovery must be a cooperative undertaking by all parties and their counsel toward the end that the merits of the case may be expeditiously ascertained for the purpose of promoting either a fair settlement or a fair trial; it is not a game of tactical harassment or obstruction. (Williams v. A. E. Staley Manufacturing Co. (1981), 83 Ill. 2d 559, 416 N.E.2d 252; Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 282, 433 N.E.2d 253.) Nevertheless, defendant’s appearance for deposition on March 20, 1979, and October 7 and 8, 1980, together "with submission of a number of documents from time to time, over which there was no dispute, demonstrate that his deficiencies could not be characterized as a contumacious and persistent disregard for the rules or orders of court. The proceedings were also beclouded by some of the requests for discovery which were ambiguous and inexact, as well as defendant’s serious illness and residence in California. This case is unlike George William Hoffman & Co. v. Capital Services Co. (1981), 101 Ill. App. 3d 487, 428 N.E.2d 600, in which defendant refused to take any steps in compliance with discovery requests or give any reasons for its failure to do so.

Further, the November 10 order was entered after certain of the responses by defendant were already to have taken place. Central’s counsel by that time must have known that the documents and income tax returns had not been produced by November 7 as the circuit court earlier appeared to have intended, yet no accounting for that failure was made in the November 10 order for some reason, whether through some understanding of the parties or otherwise. Discovery orders must be sufficiently clear so as to enable a party to be aware of his obligations thereunder, especially in view of the extreme sanctions obtaining for violations of such orders. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 195, 226 N.E.2d 6; Valdivia v. Chicago & Northwestern Transportation Co. (1980), 87 Ill. App. 3d 1123, 409 N.E.2d 457.) Exacerbating the situation here was the motion filed by defendant’s attorney on the next day, November 11, 1980, seeking to withdraw as his lawyer. Within this milieu of equivocacy the entry of an order striking defendant’s answer and counterclaim was excessive and must be reversed.

Because the cause must be remanded for further proceedings, certain contentions raised by the parties will be considered in order to provide guidance for further proceedings. Defendant claims that he was erroneously required to produce documents which could have been retrieved by Central from other sources, namely: communications between Baime and Central as trustee of a trust of which Baime was a beneficiary regarding requests for loans, which Baime claims were available in the bank’s own files; and all documents relating to his living expenses during 1977 and 1978, which he claims could be found by Central on record in Baime v. Exchange National Bank, No. 79 CH 2767. Defendant also objects to his having to produce income tax returns on the ground that Central did not establish their relevancy.

Defendant does not claim that the documents which allegedly could have been retrieved from another source were not in his possession as well. A party may be required to produce documents which are in the possession of third parties, where he has custody or control of those documents. (See Franzen v. Dunbar Builders Corp. (1971), 132 Ill. App. 2d 701, 708-09, 270 N.E.2d 118; Hawkins v. Wiggins (1980), 92 Ill. App. 3d 278, 415 N.E.2d 1179.) Furthermore, a party is not required to pursue each and every method of discovery. (Hawkins v. Wiggins (1980), 92 Ill. App. 3d 278, 283.) Here, unlike the litigants in Franzen and Hawkins, defendant was not only in constructive, but in actual possession of the documents sought. These documents, moreover, were relevant to the subject matter of the litigation. In his counterclaim Baime asserted that he had incurred damages from losses he sustained through liquidating certain assets to meet personal obligations, which became necessary when Central refused to live up to its loan agreement. The documents requested would thus serve to reveal whether he did in fact suffer those losses. Correspondence between defendant and his trustee regarding loans he requested from the trust would have been relevant as to whether defendant mitigated his damages or suffered any losses. The expense statements would reveal his expenses during that period. The income tax returns would show the amount of income he received in the years when he claimed to have lost money, and the amount of gain or loss he may have incurred from alleged liquidations. Since the income tax returns were relevant, they were discoverable. Defendant placed his income in issue; he thereby waived any privilege against discovery of his income tax returns. (Hawkins v. Wiggins; Freehill v. De Witt County Service Co. (1970), 125 Ill. App. 2d 306, 261 N.E.2d 52; see also Fine Arts Distributors v. Hilton Hotel Corp. (1980), 89 Ill. App. 3d 881, 412 N.E.2d 608.) Finally, even if Central’s discovery demands were excessive, the proper remedy would have been to have sought a protective order. Fine Arts Distributors.

Because of our disposition of this case, it is unnecessary to address defendant’s contentions that Central failed to present a prima facie case during the hearing on damages.

Central has filed a motion in this appeal, taken with the case, to dismiss the appeal for defendant’s failure to post any security for costs pursuant to Supreme Court Rule 364 (73 Ill. 2d R. 364), alleging that defendant is not a resident of this State. This court may waive the posting of any security on appeal where an appellant appears to have a meritorious cause. (See Lyons Brothers Lumber & Fuel Co. v. Shepherd (1980), 81 Ill. App. 3d 213, 400 N.E.2d 975; Petrauskas v. Kipnis (1976), 43 Ill. App. 3d 730, 357 N.E.2d 170.) In light of the facts reviewed above and the substantive conclusions drawn therefrom, the requirement that security be posted in this case is waived. We reverse the order appealed from and remand this cause for further proceedings consistent with the views set forth herein.

Reversed and remanded.

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

      Central requested production “relating to or evidencing” the allegations of certain paragraphs contained in counts I, II and III of defendant’s counterclaim. Previously, Central had requested documents relating to relevant promissory notes and certain income tax returns.

      Central was initially the trustee of the trust described above, but was asked to resign and Exchange National Bank of Chicago became the successor trustee. Baime v. Exchange National Bank was an action initiated by defendant to modify the trust provisions. This trust is not directly relevant to the issues raised here.