author: PRESIDING JUSTICE HEIPLE

text:
    THE PEOPLE ex rel. DENNIS MORIARTY et al., Plaintiffs-Appellants, v. WILLIAM R. RUTTER, Superintendent of the Valley View Public Schools Community Unit District No. 365-U, et al., Defendants-Appellees.
    Third District
    No. 3-84-0303
    Opinion filed January 7, 1985.

      Terence M. Heuel and Nicholas F. Esposito, both of Leake, Esposito & Heuel, of Chicago, for appellants.
    Edward M. Petka, State’s Attorney, of Joliet (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for appellee County of Will.
    Barry L. Moss and George A. Marchetti, both of Moss & Bloomberg, Ltd., of Bolingbrook, for appellee Valley View Community Unit School District No. 365-U.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

This is the second time plaintiff-taxpayers have brought an appeal to this court. We originally dismissed this class action for failure to exhaust administrative remedies under the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 675). (People ex rel. Moriarty v. Rutter (1983), 118 Ill. App. 3d 1166 (Rule 23 order).) Plaintiffs now appeal the denial of their petition for attorney fees.

A brief history of this case is necessary due to the unusual posture of the petition in question. In November 1980, the electorate of Valley View Community School District No. 365-U approved a bond proposition authorizing an issue of $3,600,000 to .install sprinkler systems in district schools. As of October 1982, over $1.3 million in unexpended bond proceeds remained on hand. In response to what it perceived to be the school board’s intention to employ the excess proceeds to install a security system and an energy management system, plaintiffs filed suit in September seeking to enjoin this use of the funds and to have the excess funds returned to the taxpayers by abatement. On October 12, 1982, the board resolved to transfer the unexpended proceeds to its operations, building and maintenance fund. The resolution also stated the board’s intention to use the money to abate taxes, reduce current indebtedness, create a sprinkler maintenance fund and for other operations, building and maintenance purposes. The resolution further stated that the board did not intend to use any portion of the bond proceeds for either a security system or an energy management system.

On December 22, 1982, the court dismissed all counts of plaintiffs’ first amended complaint relevant to this appeal. In its memorandum opinion, the trial court made the following finding:

“The issue of the use of the remaining funds for a security system is now moot. The pleadings clearly bind the defendants to a non-use, now or in the future, to the use of such funds for a security system. Should they attempt to do so, prompt injunctive relief could be afforded on the basis of the pleadings in this cause.” (Emphasis added.)

We affirmed the trial court, but did not address any issues relevant to the fee petition. Ultimately, the school district abated the 1982 taxes by way of a reduced levy in 1983.

Plaintiffs’ argument is as follows. But for the filing of the instant action, the school district would have illegally expended excess bond proceeds to the detriment of the taxpayers. The memorandum cited above was part of a consent “judgment” that the school district could not use the excess proceeds for security or energy management systems. This further resulted in the resolution which created the tax abatement. Thus, the actions of plaintiffs’ counsel have resulted in a judgment which brought a fund within the court’s control to the benefit of taxpayers. Therefore, an award of fees is proper. Hamer v. Kirk (1976), 64 Ill. 2d 434, 356 N.E.2d 524.

The trial court rejected this position out of hand. Particular reliance was placed on the failure of plaintiffs to prevail on any claim. To quote one of the court’s less charitable passages:

“Having now misread the case and statutory law of Illinois, counsel for Plaintiffs wish to be rewarded for their errors, and to have the defendants compensate them for their lack of legal knowledge.”

We affirm the denial of the petition for fees. While there is evidence in the record of some causal connection between this suit and the abatement enjoyed by the taxpayers, the prerequisites for an award of fees have not been met.

The oft-stated “American rule” that attorney fees are not recoverable by the successful party in litigation, absent a statute or agreement providing for same, has been adopted in Illinois. (House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 245 N.E.2d 468.) An exception to that rule is that attorney fees may be awarded when a fund has been brought within the control of the court by the parties. (Hoffman v. Lehnhausen (1971), 48 Ill. 2d 323, 269 N.E.2d 465.) Plaintiffs rely on this exception.

The fundamental flaw in plaintiffs’ position is the absence of judicial action creating a fund. The court’s memorandum of December 22, 1982, is merely a finding that it would be illegal for the school district to expend excess proceeds for security and energy management systems, and that injunctive relief would be afforded if such expenditures were attempted. However, this does not constitute a binding judgment specifically segregating the excess funds. Particularly of interest in this regard is People ex rel. Stephens v. Holten (1922), 304 Ill. 394, 136 N.E. 738. There, taxpayers in East St. Louis sued the city treasurer of East St. Louis and his sureties on his official bonds as treasurer and ex-officio collector of the town, claiming that he had failed to turn over and account for taxes collected in his official capacity. The court responded to counsel’s argument that a fund could be created in the absence of a judgment of liability on part of the defendants as follows:

“Had there been a judgment or decree recovering this fund there would be much force in counsel’s argument. A court of equity should do all in its power to reasonably compensate those who seek to protect the public by compelling the return of public funds. There is no provision in equity, however, permitting a court, in the exercise of equitable powers, to declare an allowance of fees and the payment of them out of a fund of this character before the fund comes under the control of the court. There has been no judgment or decree rendered in the main case finding any amount due from Holten and his bondsmen.” People ex rel. Holten v. Stephens (1922), 304 Ill. 394, 399.

Since we conclude that no judgment was entered here creating a fund, we need not address the questions of the existence of a fund within the court’s control, the power to interrupt the orderly taxation process or the propriety of awarding fees to an unsuccessful litigant.

Accordingly, we affirm the judgment of the circuit court of Will County.

Affirmed.

SCOTT and WOMBACHER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACKIE JOE CHAMNESS, Defendant-Appellant.
    First District (2nd Division)
    No. 83—2738
    Opinion filed December 28, 1984.
    James J. Doherty, Public Defender, of Chicago (Thomas W. Murphy, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Karen C. Wirth, and Peter D. Zaper, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was found guilty by a jury of armed violence, aggravated battery, and attempted murder. (Ill. Rev. Stat. 1983, ch. 38, pars. 33A — 2, 12 — 4, 8 — 4 and 9 — 1.) The circuit court merged the armed violence and aggravated battery offenses with the attempted murder offense, and sentenced defendant to a term of 12 years in custody of the Department of Corrections. Defendant appeals.

The incident giving rise to the charges occurred at about 4 a.m. on February 20, 1983. Defendant got in a cab and on his instructions the cab proceeded to the 1400 block of Cuyler in Chicago. As the cab was stopping, defendant and the driver engaged in a struggle. The driver alleged that defendant tried to rob him and stabbed him several times in the face, head and arms, causing him to lose control of the cab so that it hit a parked car. When the driver jumped out of the cab and tried to find his own knife, defendant fled.

At trial, the State called the cab driver, three police officers, and a witness who lived nearby on Cuyler. The latter testified that he heard a man ask to be let into the next building at 1455-57 Cuyler because the police were looking for him, saw a man jump over a fence and go into 1455-57 Cuyler, and saw police officers lead a man out of that building a short time later. A police officer testified that, after answering a call about a cab accident and stabbing, he found the cab driver in the front seat of the cab covered with blood, and that he followed a trail of blood to a second floor apartment at 1455-57 Cuyler. In that apartment, the officer found defendant in a bathroom with blood on his face and hands and a laceration on his left hand. Bloodstained clothes were also discovered in the toilet. In addition, police testimony disclosed that at the apartment and later at police headquarters defendant claimed that the cab driver had tried to rob him and he had stabbed the driver in self-defense.

Defendant testified in his own behalf and stated that the driver tried to overcharge him and that when he would not pay, the driver lunged at him with a knife. At this point, defendant drew a knife from his boot, stabbed the driver, and fled in fear. Defendant also testified that he accidently dropped his pants in the toilet at the 1455-57 Cuyler apartment.

On appeal, defendant urges this court to reverse his conviction, or, in the alternative, to remand the cause for a new trial.

I

Defendant first maintains that the circuit court abused its discretion and denied his right to a fair trial by an impartial jury by refusing to ask two questions which he had submitted for the voir dire of prospective jurors.

The first question presented was: Would the evidence of serious physical injuries hamper your consideration of all the other evidence in this particular instance? Defendant points out that because his wounds were less serious than those sustained by the cab driver, he had the right to determine whether prospective jurors would weigh the driver’s injuries more heavily than defendant’s claim that he acted in self-defense. Citing People v. Moore (1972), 6 Ill. App. 3d 568, 286 N.E.2d 6, in which it was found that voir dire should include a question regarding prospective jurors’ attitudes toward the insanity defense where such a defense will be raised, defendant argues that it was reversible error not to ask a question which assertedly would probe jurors’ attitudes toward his defense of self-defense.

The second question defendant proposed has not been made a part of this record. Defendant asserts that it concerned the weight jurors may attach to the credibility of police witnesses as opposed to civilian witnesses. Defendant relies on United States v. Martin (7th Cir. 1974), 507 F.2d 428, and Chavez v. United States (10th Cir. 1958), 258 F.2d 816, cert. denied (1959), 359 U.S. 916, 3 L. Ed. 2d 577, 79 S. Ct. 592, for the proposition that when it is anticipated that government agents will testify, a voir dire question should be asked to determine the weight that prospective jurors would give to an agent’s testimony as compared to a nonagent’s testimony. He. maintains that because the State’s case relied upon the testimony of three police officers, the circuit court also erred in refusing to ask this question.

The purpose of voir dire is to assure the selection of an impartial jury. (People v. Jackson (1977), 69 Ill. 2d 252, 371 N.E.2d 602; People v. Phillips (1981), 99 Ill. App. 3d 362, 425 N.E.2d 1040; People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68; People v. Dallas (1980), 85 Ill. App. 3d 153, 405 N.E.2d 1202, cert. denied (1981), 450 U.S. 1000, 68 L. Ed. 2d 202, 101 S. Ct. 1708; People v. Washington (1982), 104 Ill. App. 3d 386, 432 N.E.2d 1020.) Under Supreme Court Rule 234 (87 Ill. 2d R. 234), circuit courts are granted broad discretion in conducting and managing voir dire (People v. Weinger (1981), 101 Ill. App. 3d 857, 428 N.E.2d 924; People v. Barnes (1982), 107 Ill. App. 3d 262, 437 N.E.2d 848), and the decision whether to ask certain questions of prospective jurors is within this discretion (People v. Kendricks (1984), 121 Ill. App. 3d 442, 459 N.E.2d 1137). Voir dire questioning may not be used as a means for pre-educating and indoctrinating prospective jurors as to a particular theory or defense or impanelling a jury with particular predispositions (People v. Phillips (1981), 99 Ill. App. 3d 362, 369), nor may the questions concern matters of law or instructions (87 Ill. 2d R. 234; People v. Kendricks (1984), 121 Ill. App. 3d 442, 459 N.E.2d 1137).

Recently, our supreme court found reversible error in a circuit court’s refusal to ask proposed voir dire questions concerning a defendant’s presumption of innocence, the State’s burden of proof, and a defendant’s right not to testify in his own behalf. (People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062. See also People v. Britz (1984), 128 Ill. App. 3d 29.) In the case at bar, the questions proposed by defendant do not fall into the categories of questions involved in People v. Zehr (1984), 103 Ill. 2d 472. The question which sought to discover jurors who would not be swayed by the seriousness of the cab driver’s injuries improperly tended to highlight aspects of defendant’s case rather than expose bias. (People v. Nicholson (1978), 61 Ill. App. 3d 621, 626, 377 N.E.2d 1063.) Defendant’s contention that the question regarding serious physical injuries relates to his theory of self-defense is not persuasive.

With respect to the question regarding weighing police testimony, in the absence of the precise question sought to be asked, this court would be required to guess or conjecture as to the phraseology and content thereof, which we decline to do. (Augustine v. Stotts (1963), 40 Ill. App. 2d 428, 431, 189 N.E.2d 757.) Nevertheless, the circuit court did ask prospective jurors whether they had any close friends or relatives who were involved in law enforcement and whether such a relationship would prevent them from being fair to both sides. The circuit court also instructed the jury on its role in assessing the weight of evidence and on self-defense.

The circuit court did not abuse its discretion in refusing to ask defendant’s proposed voir dire questions. Further, defendant was not prejudiced by this refusal.

II

Defendant also identifies error in the denial of his motion for a mistrial made after the cab driver testified to an apology made to him by defendant, contrary to the circuit court’s ruling in limine prohibiting such reference. Defendant maintains that his conviction should be reversed and a new trial granted because the reference was incompetent evidence bolstering the driver’s credibility and creating a lasting impression of defendant’s guilt such that no prompt instruction could cure the prejudice. (People v. Curry (1975), 25 Ill. App. 3d 637, 323 N.E.2d 778; People v. Jenkins (1973), 10 Ill. App. 3d 166, 294 N.E.2d 24.) We disagree.

The record shows that the reference to the apology was elicited during defense counsel’s cross-examination in an attempt to impeach the cab driver. Albeit the remark was unresponsive to a question, it was promptly stricken, and the jury was admonished to disregard it. Under these circumstances, the incompetent evidence did not prejudice defendant’s right to a fair trial. (People v. Stacker (1979), 77 Ill. App. 3d 302, 395 N.E.2d 997; People v. Ruberto (1980), 81 Ill. App. 3d 636, 401 N.E.2d 1306; People v. Mathes (1981), 101 Ill. App. 3d 205, 427 N.E.2d 1269.) Moreover, the apology might well have been considered an admission by defendant which would have permitted an inference of guilt of the offense charged (People v. Burns (1981), 99 Ill. App. 3d 42, 45, 424 N.E.2d 1298), which is admissible as an exception to the hearsay rule. (People v. Bryant (1976), 36 Ill. App. 3d 298, 300, 343 N.E.2d 617.) The granting of the motion in limine would have unnecessarily precluded the jury from considering this evidence, perhaps to the prejudice of the State’s case.

Ill

Lastly, defendant urges his deprivation of the jury’s adequately informed consideration of his theory of self-defense because the circuit court refused to give two defense instructions to the jury. Illinois Pattern Jury Instruction, Criminal, No. 24 — 25.06 (2d ed. 1981) provides, in pertinent part, that force likely to cause great bodily harm or death is justified to prevent similar harm to oneself or to prevent the commission of a forcible felony. The circuit court here, however, refused defendant’s request to include the “forcible felony” language and also refused to give defendant’s proposed instruction defining a forcible felony. Defendant maintains that this refusal was reversible error requiring a new trial.

Where there is at least some evidence to support a self-defense theory, an instruction on that theory should be given. (People v. Lockett (1980), 82 Ill. 2d 546, 551, 413 N.E.2d 378; People v. Kalpak (1957), 10 Ill. 2d 411, 140 N.E.2d 726; People v. Cox (1981), 100 Ill. App. 3d 272, 426 N.E.2d 1050.) Here, a self-defense instruction was given which provided that force likely to cause death or great bodily harm is justified to prevent like injury to oneself. Defendant asserts that this instruction did not encompass his self-defense theory, namely, that he acted to prevent the commission of the forcible felonies of attempted murder and aggravated battery upon himself.

The offenses of attempted murder (Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4, 9 — 1) and aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4) each require a level of force which is likely to cause great bodily harm or death. When a jury determines whether a defendant acted to protect himself from great bodily harm or death, it necessarily considers the same evidence which would be involved in a determination of whether that defendant acted to prevent the commission of an attempted murder or aggravated battery upon himself. There is no logic in the suggestion that a jury which found that a defendant was not protecting himself from great bodily harm or death could find that that defendant was trying to prevent an attempted murder or aggravated battery from being committed upon himself. Defendant received the jury’s informed consideration of his theoiy of self-defense; any error in the circuit court’s refusal to give the instructions requested by defendant was harmless. People v. Easter (1981), 102 Ill. App. 3d 974, 982-83, 430 N.E.2d 612.

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

Affirmed.

STAMOS and PERLIN, JJ., concur.


author: JUSTICE HEIPLE

text:
    THE DEPARTMENT OF REVENUE, Plaintiff-Appellant, v. VALLEE FOODS, INC., et al., Defendants-Appellees.
    Third District
    No. 3-84-0244
    Opinion filed January 3, 1985.

      Neil F. Hartigan, Attorney General, of Springfield (Thomas P. Marnell, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Charles J. Zuganelis and Richard L. Cantor, both of Chicago, for appellee Jerry A. Valuch.
    Richard L. Cantor, of Chicago, for other appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

The Department of Revenue obtained a judgment against the defendant for taxes due under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 440 et seq.). The Department also sought statutory interest and penalties but was unable to calculate them for the trial court. Consequently, the court denied interest and penalties. The Department appeals.

The defendant has filed a motion to dismiss this appeal based on the Department’s failure to file a report of proceedings pursuant to Supreme Court Rule 323 (87 Ill. 2d R. 323). Failure to file a report of proceedings is not an automatic ground for dismissal. Such failure requires only that we affirm those issues which depend upon the missing report of proceedings for their resolution. (Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039.) Therefore, the defendant’s motion to dismiss is denied.

The Department argues that the trial court abused its discretion when it denied interest and penalties on the defendant’s unpaid taxes. Section 4 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 443) authorizes the assessment of a penalty on unpaid taxes. The penalty is computed based upon the notice of tax liability issued to the taxpayer by the Department of Revenue. A copy of the notice may be introduced and admitted into evidence without additional proof. Such notice is then regarded as prima facie proof of the correctness of the amount of tax due.

The Department admits that it was unable to immediately calculate the amount of penalties and interest at the circuit court hearing. No further explanation is given. The Department argues that it has been estopped from collecting revenues legally due and that such an estoppel violates the rule set forth by the Illinois Supreme Court in Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1, 5: “Generally, a State cannot be estopped by the acts and conduct of its officers or agents in the performance of the governmental function of collecting taxes legally due.”

There was no estoppel here. The Department simply showed up at the hearing unprepared and was unable to prove its case. The Department does not say why it could not provide a basis for determining penalties or interest or how much time it would have taken to provide the calculations. Furthermore, there is no report of proceedings which might indicate the precise nature of the Department’s failure of proof and the court’s response thereto. The record before us shows only that the Department admittedly and without explanation failed to provide the court with adequate proof and did not request a continuance. Accordingly, there is nothing to support the Department’s charge that the court abused its discretion by failing to award interest and penalties. The judgment of the circuit court of Will County is affirmed.

Affirmed.

SCOTT and BARRY, JJ., concur.


author: JUSTICE McNAMARA

text:
    BYONG K. CHOI, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY et al., Defendants-Appellees.
    First District (3rd Division)
    No. 84—52
    Opinion filed December 19, 1984.

      Fred Lane and Thomas J. Nathan, both of Lane & Munday, of Chicago, for appellant.
    John W. Bell and Robert Bell, both of Johnson, Cusack & Bell, Ltd., and Edward C. Purcell and Sandra Young, both of Purcell & Wardrope, Chartered, both of Chicago, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Byong K. Choi, brought this action against defendants, Commonwealth Edison Company and Bechtel, Inc., seeking recovery for injuries suffered when plaintiff fell on a concrete floor while working at a construction site. In one count, plaintiff alleged that defendants violated the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, pars. 60 through 69). The trial court granted defendants’ motion for summary judgment as to that count. Plaintiff appeals, urging that his injuries occurred on a support within the scope of the Structural Work Act.

Plaintiff was employed by Universal Power Piping, Inc., as a pipefitter. On January 10, 1979, plaintiff was working at Commonwealth Edison’s Dresden nuclear power plant in Morris. Bechtel was the general contractor. The incident, involving plaintiff occurred in the turbine building of the Dresden Unit 1 complex. Plaintiff was transporting pipes on the uppermost deck level of the turbine building, approximately 30 to 40 feet above the ground floor. The floor of the turbine deck area was made of concrete and was completely constructed.

On the day of the accident, plaintiff had been moving carbon steel pipes through the turbine deck area to the reactor building. These pipes were transported from the outdoors, where they had been stored. They were covered with ice and snow. Many of the pipes were eight inches in diameter and up to 20 feet in length. They were raised by a crane to the turbine deck area. Once the pipes reached the turbine deck area, they had to be taken from the crane, placed on a cart and moved through the interlock hatch to the reactor building.

The interlock hatch and access tunnel connected the turbine building to the reactor building. The floor of the interlock hatch was four to six inches lower than the adjacent floors of the turbine deck area and reactor building. Four aluminum spacers were used to make the interlock floor level with the floor of the turbine and reactor buildings. Before moving the cart carrying longer pipes into the tunnel, employees of Universal had to remove certain aluminum spacers. This procedure was necessary in order to angle the pipes so that the safety door of the tunnel could be closed. The turbine deck area was the only place available to deliver the longer pipes for subsequent transport into the reactor building.

Plaintiff and a co-worker, John Dalton, received four to six pipes on the turbine deck and transported them to the interlock hatch. The concrete deck floor had patches of water and ice on it. Snow and ice had melted and dripped from the pipes onto the floor during the transport to the hatch. Plaintiff and Dalton next brought a 20-foot pipe into the interlock and removed the first aluminum spacer from the interlock hatch. The two men were moving a second spacer from the hatch to the turbine deck area, with plaintiff holding one end of the spacer and Dalton holding the other end. While plaintiff was walking backward facing Dalton, he slipped on the wet turbine deck and fell backward. Plaintiff landed on another spacer and the spacer which he was carrying fell on top of him. As a result, plaintiff was injured.

Plaintiff brought a multicount action against several defendants, including Commonwealth Edison and Bechtel, alleging negligence and violations of the Structural Work Act. Pursuant to section 2— 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615), Commonwealth Edison and Bechtel moved to dismiss the count based on defendants’ alleged violations of the Structural Work Act. By agreement among the parties, the court heard the motion to dismiss as a motion for summary judgment. This appeal arises from the order granting defendants’ motion for summary judgment as to count IV. The counts based on negligence against Commonwealth Edison and Bechtel are presently pending in the trial court.

On appeal, plaintiff contends that the turbine deck level where the injury occurred was a platform or support within the scope of the Structural Work Act. Plaintiff’s theory is that the deck was used as a sole support for plaintiff while he was engaged in construction work and was, therefore, a support under the Act.

A permanent part of the structure, such as a roof, can be used temporarily as a support. (Crothers v. La Salle Institute (1977), 68 Ill. 2d 399, 370 N.E.2d 213.) However, a completed, permanent floor of a building under construction has not been considered a support device within the ambit of section 1 of the Act. (Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 325 N.E.2d 607; Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011.) In deciding whether a particular surface or device is a support, our inquiry is directed to the identity of the object and how it was being used at the time of the injury. Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011.

In the present case, plaintiff sustained an injury on a completed concrete floor. No part of the structure was used in lieu of scaffold or support because none was necessary. Plaintiff fell on a wet, slippery floor, but it was not a support. A floor is a floor and not a support device above a floor.

Plaintiff’s contention that Tenenbaum and Quinn are distinguishable is not persuasive. He argues that they are not controlling because the workers in those cases were not performing construction work when they were injured. In Tenenbaum, a foreman was inspecting the intermediate level of flooring and fell to the lower level. In Quinn, plaintiff was evaluating structural work caused by a fire when he slipped on the debris-covered ground floor. Both plaintiffs were involved in the construction process. Moreover, it is not the nature of the work performed, but the use of the surface or device that is dispositive. In both cases, as here, plaintiffs were using the surface as a pathway. Whether a surface is used as a pathway while inspecting a work project or while carrying construction materials, it is still being used as a floor, not a support. “Simply stated, the floor was being used as a floor, the purpose for which it was designed.” Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 664, 418 N.E.2d 1011.

Plaintiff further argues that the floor was his sole source of support while working, and thus falls within the ambit of the Act. Taking plaintiff’s position to its logical extreme, any surface upon which a worker walks or carries construction material, including the ground, could be considered a support. That proposition is an improper construction of the Act and has been rejected. See Herman v. Swisher (1983), 115 Ill. App. 3d 179, 460 N.E.2d 28; Thon v. Johnson (1961), 30 Ill. App. 2d 317, 174 N.E.2d 400.

While the Structural Work Act is to be liberally construed to effectuate its purpose of protecting construction workers (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 317 N.E.2d 573), it should not be interpreted to compel coverage of every construction work injury (Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 263 N.E.2d 817). Moreover, the Act should not be extended by unnatural interpretations, especially where existing workers’ compensation and tort remedies remain to afford relief to injured workers. (Rayfield v. Homart Development Co. (1981), 100 Ill. App. 3d 620, 427 N.E.2d 193; Matthews v. Commonwealth Edison Co. (1980), 90 Ill. App. 3d 1024, 414 N.E.2d 147.) The floor upon which plaintiff was walking was not a support within the scope of the Structural Work Act, and the trial court properly granted summary judgment on that count.

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

Judgment affirmed.

McGILLICUDDY and WHITE, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
      In re MARRIAGE OF MARILYN BOLTON, Petitioner-Appellant, and DOUGLAS BOLTON, Respondent-Appellee.
    First District (3rd Division)
    No. 82—2333
    Opinion filed December 19, 1984.
    Doss, Puchalski, Keenan & Bargiel, Ltd., of Chicago (Paul J. Bargiel and Owen L. Doss, of counsel), for appellant.
    James E. Beckley & Associates, of Chicago (James E. Beckley and Richard S. Schultz, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The petitioner, Marilyn Bolton, filed a petition for rule to show cause against her ex-husband, Douglas Bolton, alleging that he had made no alimony payments to her in 1982 in violation of their judgment for divorce. Following a hearing to determine the amount of Douglas’ net income for 1981, the trial court denied the petition. The petitioner appeals. The issues presented for review are (1) whether the trial court erred in determining that Douglas’ 1981 net income did not exceed $60,000, and (2) whether Marilyn was unfairly penalized by a change in the law defining “adjusted gross income.”

Marilyn and Douglas were divorced on January 7, 1977. The parties had entered into an oral settlement agreement on October 12, 1976, which was incorporated into the judgment. It provided, in pertinent part, as follows:

“C. That as and for consideration for the waiver of alimony aforementioned by the Plaintiff, MARILYN BOLTON, the Defendant hereby agrees to pay to the Plaintiff, and the Plaintiff hereby agrees to accept, as and for alimony in gross, the sum of TWO HUNDRED TWENTY FIVE THOUSAND and No/100 ($225,000.00) DOLLARS, Payable at the rate of TWENTY FIVE THOUSAND and No/100 ($25,000.00) DOLLARS per year in euqal [sic] monthly installments ***.
* * *
E. That at the conclusion of the fifth (5) year following the entry of this Judgment, the amount to be paid by Defendant to Plaintiff shall be reduced to a sum equal to TWENTY (20%) PERCENT of his net income from all sources in the event that his net annual income at such time shall be no greater than SIXTY THOUSAND and No/100 ($60,000.00) DOLLARS, as computed on the Defendant’s Federal Income Tax Return for the taxable year of 1981, net annual income being that sum remaining after deduction of State, Federal, Municipal or other deductible taxes from adjusted gross income as represented on said Federal Income Tax Return. In the event that Defendant’s net annual income for the taxable year 1981, shall exceed SIXTY THOUSAND and No/100 ($60,000.00) DOLLARS, then the Defendant shall pay the aforementioned annual sum of TWENTY FIVE THOUSAND and No/100 ($25,000.00) DOLLARS during the year 1982, subject to an annual reappraisal of Defendant’s income at the conclusion of each taxable year until such time as the Plaintiff shall have received the full amount of alimony in gross as required by and under the terms of the agreement between the parties hereto.”

On July 26, 1982, Marilyn filed a petition for rule to show cause, alleging that Douglas had made no payments under the judgment during 1982. At a hearing on the petition on August 25, 1982, the amount of Douglas’ net income for 1981 was discussed. Marilyn’s counsel argued that Douglas’ 1981 net income was $122,892, which was in excess of $60,000, and that she was therefore entitled to $25,000 in alimony in 1982. Douglas’ attorney countered that since Douglas’ adjusted gross income as represented on his 1981 tax return was $37,595, which did not exceed $60,000, he was obligated to pay her in 1982 only 20% of that amount less taxes. The trial court, agreeing with the latter argument, denied the petition. This appeal ensued.

Marilyn contends that the trial court erred in concluding that Douglas’ net annual income from all sources in 1981 was less than $60,000. The judgment and settlement agreement defined “net annual income” as “that sum remaining after deduction of State, Federal, Municipal or other deductible taxes from adjusted gross income as represented on [Douglas’] Federal Income Tax Return.” According to Douglas’ 1981 Form 1040 individual income tax return, he received income from salaries, interest, dividends and capital gains in the amount of $121,342. After adjustment for his dividends exclusion, business losses and expenses, capital losses and losses from his tax shelter partnerships, Douglas’ total income was $53,282. Subtracting $15,584 for alimony paid produced an adjusted gross income of $37,698. Pursuant to Paragraph E of the judgment and settlement agreement, after a deduction of $5,037 for State and Federal income tax and general sales tax, $32,661 was Douglas’ “net annual income” as defined in the judgment and settlement agreement.

Marilyn asserts that allowing Douglas to make adjustments for business losses and expenses, capital losses and alimony paid in computing his adjusted gross income would be unconscionable. The Internal Revenue Code requires such adjustments in computing adjusted gross income. (I.R.C. secs. 62(1), (4), (13) (1976 & Supp. IV 1980).) According to the divorce judgment, beginning in 1982, the amount of alimony due Marilyn would be based on Douglas’ adjusted gross income for the prior year as reflected in the prior year’s tax return. Since Marilyn agreed to these terms, she cannot now be heard to complain that they are unfair. The trial court did not err in determining that Douglas’ net annual income, as defined in the settlement agreement, from all sources in 1981 was less than $60,000.

Marilyn argues that a change in the law defining “adjusted gross income” occurred subsequent to the dates of the agreement and the entry of the judgment for divorce, and that she has been unfairly penalized thereby. We note that a more appropriate method for a complaint of this type would be to seek modification of the judgment in the trial court.

When the provisions of an oral agreement are incorporated into a judgment, the agreement is merged in the judgment and is conclusive upon the parties in the same manner as if the court had made the determination. (In re Marriage of De Frates (1980), 91 Ill. App. 3d 607, 414 N.E.2d 1188.) After the rendition of a divorce decree incorporating the settlement agreement of the parties, the rights of the parties rest on the decree and not on their agreement. Jacobs v. Jacobs (1946), 328 Ill. App. 133, 65 N.E.2d 588.

On October 4, 1976, the Tax Reform Act of 1976 (TRA) (Pub. L. No. 94 — 455, tit. V, sec. 502(a), 90 Stat. 1525, 1559) amended I.R.C. sec. 62 to authorize a deduction for alimony payments from gross income in calculating adjusted gross income. Section 502(c) of Public Law No. 94 — 455 provided that this amendment would apply to taxable years beginning after December 31, 1976. Prior to 1977, alimony paid was an amount deducted from adjusted gross income to arrive at taxable income.

The parties’ oral settlement agreement of October 12, 1976, was incorporated into the judgment for divorce. Marilyn’s rights as to alimony rest on the judgment, which was entered on January 7, 1977. At that time, the amendment Marilyn complains of had already taken effect. Therefore, she has not been unfairly penalized by the redefinition of “adjusted gross income.”

Although our research has revealed no Illinois case on this issue, both Connecticut and Kansas have encountered arguments similar to Marilyn’s. In these cases, the divorce judgment was entered prior to the effective date of the TRA. The courts ruled in favor of the divorced husband. Where the foundation for computation of alimony payments was the ex-husband’s adjusted gross income as reflected on his income tax return, computation of the alimony payments according to TRA’s redefinition of “adjusted gross income” has been permitted. See Blaydes v. Blaydes (1982), 187 Conn. 464, 446 A.2d 825; Beard v. Beard (1980), 5 Kan. App. 2d 458, 618 P.2d 856.

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

Affirmed.

RIZZI, P.J., and WHITE, J., concur.


author: JUSTICE JOHNSON JUSTICE ROMITI,

text:
      In re CUSTODY OF LYNNETTE PETERSON (Raymond Jadrych et al., Petitioners-Appellants, v. James Peterson, Respondent-Appellee).
    First District (4th Division)
    No. 84—1815
    Opinion filed December 20, 1984.
    ROMITI, J., dissenting.
    Mark Patrick Morgan, of Midlothian, and Law Office of Patrick S. Moore, of Chicago (Patrick S. Moore, of counsel), for appellants.
    Edward J. Burt and John Cossidente, Jr., both of Urban & Burt, of Oak Forest, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This appeal arose from a dismissal by the trial court of a petition for modification of judgment brought by petitioners, Raymond and Patricia Jadrych, who are the maternal grandparents of the minor child, Lynnette Peterson. The grandparents sought to obtain custody of the minor child, who is the subject of this dispute. The trial court granted the natural father’s motion to dismiss the grandparents’ petition. On appeal, we are asked to consider (1) whether the trial court improperly denied petitioner’s motion for a change of venue, and (2) whether the grandparents had standing to bring a petition for modification of custody under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1981, ch. 40, par. 601(b)(2)).

We affirm in part and reverse in part.

Petitioners’ daughter, Felicia Peterson, the child’s mother, was divorced from James Peterson, the child’s father, on February 23, 1983. Lynnette was Vh years of age at the time of the divorce. Felicia and James were married on September 6, 1980. Lynnette was born on August 24, 1981. Felicia, James, and Lynnette lived in the home of Felicia’s parents, the petitioners, from the time of their marriage until May 1982. There is some dispute as to whether Lynnette returned to live with the petitioners in November 1982, which was prior to the divorce of her parents, or in early 1983 after the divorce.

The divorce judgment entered in February 1983 gave Felicia custody of Lynnette and reasonable visitation rights to James. The court found that both parents were fit and proper parties to have custody of the child. After the divorce, Felicia and Lynnette resided with petitioners in their (petitioners’) home until Felicia’s death on May 20, 1984. Upon Felicia’s death, this litigation commenced.

On June 4, 1984, James filed a petition for modification of the divorce judgment in the circuit court of Cook County. James’ petition sought to modify the divorce judgment to grant him custody of Lynnette in light of Felicia’s death. The petition alleged that Lynnette was in the physical custody of petitioners and that petitioners had refused to hand over Lynnette into James’ custody.

On June 7, 1984, the grandparents filed a petition in the same court seeking custody of Lynnette, pursuant to section 601(b)(2) of the IMDMA (Ill. Rev. Stat. 1981, ch. 40, par. 601(b)(2)). Their petition alleged, among other things, that James was not a fit and proper person to have custody of Lynnette; that there were bruises on Lynnette’s body after visiting James; and that James’ life-style was detrimental to Lynnette’s well-being. Both petitions were consolidated before the trial court on June 8, 1984. On June 26, 1984, James filed a motion to dismiss the grandparents’ petition, alleging lack of standing under section 601(b)(2) of the IMDMA. On that date, the attorneys for the parties appeared before the judge and, in the presence of a court reporter, gave the judge a synopsis of what the case involved. The judge was told that the custodial parent was deceased and that the grandparents with whom the child resided sought to have legal custody granted to them. The natural father, James, also sought custody and had filed a motion to dismiss the grandparents’ petition, asserting lack of standing. The judge allowed the grandparents seven days to respond to the motion to dismiss and set a date for a hearing of the motion. A discussion took place between the judge and the attorneys regarding the pending petitions and the upcoming motion to dismiss. The following are excerpts from that discussion:

“MR. MORGAN [counsel for the grandparents]: We are getting into the merits of the case.
MR. BURT [counsel for James Peterson]: On what legal basis are the grandparents holding the child?
THE COURT: I don’t know that. Apparently from what I hear now I don’t take this to be a legal basis. *** [T]he only reason I see is that they are holding the child after their daughter died, is that correct?
MR. MORGAN: The daughter had been sick for several years. She was living with them.
THE COURT: She had custody?
MR. MORGAN: Yes.
THE COURT: The question is does that give them possession. I would say this without giving you any indication that in and of itself does not give them possession.
The child was in their daughter’s possession, not theirs, and the daughter was physically living with them. Don’t forget this everybody bear in mind the natural parents of law in the State of Illinois has [sic] a superior right to the custody of their child.
Now, let me tell you something. Maybe the lawyers should sit down and talk. You know we are talking about a very serious thing here. We are talking about people saying that they want custody of a child over its natural, loving blood parent.
* * *
It is an uphill battle. That is all I am telling you pursuant to Illinois law, not my feelings one way or the other. I don’t give my personal feelings. I am talking strictly Illinois law. Everybody better realize that the natural parent of the child has the superior right to the custody of that child, and if the mother had custody of the child and was either living with her parents or just having her parents take care of the child while she was ill there is a very touchy question whether or not this is considered possession of a child.
It is not like they had possession of the child. The natural father was the visiting parent. They are going to have to show an awful lot.
* * *
MR. MORGAN: That is the gist for the petition for temporary custody.”

On June 29, 1984, prior to the hearing on James’ motion to dismiss, the grandparents filed a motion for a change of venue. The motion alleged that the trial judge would be unable to give them a fair and impartial hearing. On July 2, 1984, a hearing was held on both motions (the grandparents’ motion for change of venue and James’ motion to dismiss the grandparents’ petition). James Peterson, Patricia Jadrych (the grandmother), and Denise Hausfeld (a friend of the decedent, Felicia Peterson) testified at the hearing.

At the close of the hearing, the trial court issued its order, ruling that (1) the motion for change of venue was denied; (2) James’ motion to dismiss the grandparents’ petition was granted; (3) Lynnette was ordered turned over to James instanter; and (4) the grandparents’ motion for a stay of the order pending appeal was denied. This court refused to impose a stay of the trial court’s order and ordered an accelerated briefing and argument schedule.

On appeal, the grandparents argue that they have a clear statutory right to change of venue and the only question is whether their motion was timely. They assert that the trial court did not rule on any issue of substance prior to their motion for change of venue. Therefore, discussions which occurred between counsel and the court cannot be grounds for consideration of their venue motion. We disagree.

It is well settled that a petition for a change of venue must be made at the earliest practicable moment, and once a party has determined the court’s attitude on some portion of the merits of the case, the right to a change of venue no longer exists. (H. Watson Development Co. v. Bank & Trust Co. (1978), 58 Ill. App. 3d 423, 431, 374 N.E.2d 767, 773.) In the instant case, although there was no substantial ruling nor had a hearing commenced, the statute (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1001(a)(2)(c)) does not contemplate a change of venue as of right after a party has had an opportunity to form an opinion that the court might treat his cause unfavorably. (Gilberg v. Toys “R” Us, Inc. (1984), 126 Ill. App. 3d 554, 557, 467 N.E.2d 947, 949.) Prior to the motion for a change of venue, the parties had engaged in an extensive discussion with the trial judge; although the merits of the case were not discussed at length, they were touched upon. The trial judge indicated to counsel for the grandparents that based on his understanding of the facts, at that time, their burden of proof was very-great. The judge pointed out that as he understood it, the law was not on their side. Nevertheless, he gave both sides an opportunity to prepare their arguments for presentation at the scheduled hearing on James’ motion to dismiss.

A strong inference can be drawn from a review of the discussion between the trial judge and counsel for the parties that the grandparents were able to determine the court’s attitude on the merits of the case. The judge’s statements clearly indicated that he believed the law to favor James’ position and not that of the grandparents. Further, he believed that the grandparents could not proceed under the provisions of the IMDMA. Having had such a unique opportunity to determine the thinking of the judge, we believe that, under these facts, the motion for change of venue as of right was untimely. (See H. Watson Development Co. v. Bank & Trust Co. (1978), 58 Ill. App. 3d 423, 374 N.E.2d 767.) Accordingly, the trial court did not abuse its discretion in denying the motion.

We next consider whether the trial court acted improperly in dismissing the grandparents’ petition for lack of standing. The grandparents assert standing under section 601(b)(2) of the IMDMA (Ill. Rev. Stat. 1981, ch. 40, par. 601(b)(2)). That section states:

“sec. 601. Jurisdiction — Commencement of proceeding, (a) A court of this State competent to decide child custody matters has jurisdiction to make a child custody determination in original or modification proceedings as provided in Section 4 of the Uniform Child Custody Jurisdiction Act as adopted by this State.
(b) A child custody proceeding is commenced in the court:
(1) by a parent, by filing a petition:
(1) for dissolution of marriage or legal separation or declaration of invalidity of marriage; or
(ii) for custody of the child, in the county in which he is permanently resident or found; or
(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.”

The language of the statute is clear. (See In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 440 N.E.2d 1036.) At the time that the grandparents filed their petition, Felicia, who had had legal custody of Lynnette, was deceased. James did not have legal or physical custody of the child. The child was in the physical custody of the petitioners. Under these facts, we believe that the petitioners had standing to bring the petition under section 601(b)(2) of the IMDMA. Thus, it was error for the trial court to have dismissed their petition for lack of standing. Having determined that the petitioners had standing, we conclude that they were entitled to a hearing.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part and remanded, with directions that petitioners be granted a hearing.

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

LINN, P.J., concurs.

JUSTICE ROMITI,

dissenting:

Because I conclude that the grandparents here did not have standing under section 601(b)(2) of the IMDMA (Ill. Rev. Stat. 1983, ch. 40, par. 601(b)(2)), I respectfully dissent.

Recent Illinois decisions have held that section 601(b)(2), which permits nonparents such as grandparents to seek custody of a child only if that child is not in the physical custody of one of his parents, imposes upon nonparents the burden of demonstrating that they have standing to commence such an action. (See In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 395-96, 453 N.E.2d 835; In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 541, 440 N.E.2d 1036.) This standing requirement is not satisfied where the nonparents have had no more than intermittent physical possession of the child, since a circumstance such as “[ojvemight contact with third parties fails to fulfill the statutory provision that the child not be in the physical custody of one of her parents.” (In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 544.) Instead, nonparents such as grandparents seeking custody must show circumstances such as “[a] voluntary *** transfer of the child [to their possession], coupled with [a] lengthy period of care by the grandparents and [a] corresponding integration of the child into the home of her grandparents ***.” (In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 398.) Thus, in Barokas the court concluded that nonparents who had had overnight or vacation-time contact with the child did not have standing to file a custody petition under the IMDMA, while in Meneoni the court concluded that nonparents who had had substantial, lengthy and sole responsibility for the care and parenting of the child did, in contrast, have standing to file a custody petition. In short, courts have determined whether nonparents have standing by focusing upon the relationship between the nonparent and the child, and have required a prima facie showing that the nonparents stand essentially in loco parentis to the child whose custody they seek. This rather considerable burden has been imposed in order to promote the “twin policies favoring the superior rights of natural parents to the custody of their children and of fostering greater stability in the home environment by deterring abductions and other unilateral removals of children. [Citations.]” (In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 398.) This also comports with the rationale of the concept of standing in general, which is that a party may commence an action only if he can demonstrate sufficient personal interest in the outcome of the litigation. (See, e.g., Wolinsky v. Kadison (1983), 114 Ill. App. 3d 527, 530-31, 449 N.E.2d 151; Weihl v. Dixon (1977), 56 Ill. App. 3d 251, 253-54, 371 N.E.2d 881.) In the context of child custody, pursuant to the more flexible standards of the IMDMA, this personal stake is shown where the nonparent can establish the equivalent of a parent-child relationship with the child whose custody is sought, or something substantially similar thereto. If this requirement cannot be satisfied, the nonparent may still seek custody under the stricter standards of the Adoption Act (Ill. Rev. Stat. 1983, ch. 40, par. 1501 et seq.) or the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 701 — 1 et seq.; see In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 396-97).

In my view, the facts here do not support the conclusion that the grandparents have standing to file a custody petition under the IM-DMA. The record clearly shows that the grandparents came into physical possession of Lynnette only because of the fortuitous circumstance of her mother’s death, not by any actual transfer of the child to their care. In my opinion, this was insufficient to confer standing upon the grandparents to seek her permanent custody under the more flexible requirements of the IMDMA. Moreover, the facts here do not support the conclusion that Lynnette’s grandparents, rather than her own mother, stood in loco parentis to Lynnette, nor do they establish that the grandparents even substantially shared these responsibilities with Lynnette’s mother. The record does not demonstrate that the grandparents themselves cared for the child during a lengthy period or that they had integrated her into their home environment. Instead, the facts disclose only that Lynnette’s mother, as her custodial parent, lived with Lynnette and her own parents while she cared for and parented Lynnette. For these reasons, I would find that the grandparents failed to satisfy the standing requirements of section 601(b)(2) of the Act, and would affirm the trial court’s judgment.