author: JUSTICE JOHNSON

text:
    ALAN TEPLITZ, a Minor, by his Parents and Next Friends, et al., Plaintiffs-Appellants, v. MOUNT PROSPECT ELEMENTARY SCHOOL DISTRICT NO. 57 et al., Defendants-Appellees.
    First District (4th Division)
    No. 82 — 1794
    Opinion filed August 25, 1983.

      Wayne B. Giampietro and Kathrin A. Koenig, both of Chicago (DeJong, Poltrock & Giampietro, of counsel), for appellants.
    Ancel, Glink, Diamond, Murphy & Cope, of Chicago (Joseph A. Murphy, John B. Murphey, and Peter D. Coblentz, of counsel), for appellee Mt. Prospect Elementary School District No. 57.
    Neil E Hartigan, Attorney General, of Springfield (Georgene M. Wilson, Assistant Attorney General, of counsel), for other appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

This appeal arises from an action brought by plaintiffs, Ralph and Roberta Teplitz, parents of Alan Teplitz, a learning disabled child. Plaintiffs sued to review an order of defendant, Joseph Cronin, Illinois State Superintendent of Education, which found that they were not entitled to reimbursement for their expenses in placing Alan in a private school. The sole issue presented for review is whether plaintiffs may recover, the cost of placement of their handicapped son in a nonpublic school when defendant local public school district failed to provide an appropriate learning program for him and failed to inform the parents of their right to contest the district’s proposed inappropriate placement.

We affirm.

Plaintiff Alan Teplitz (Alan) and his parents, plaintiffs Ralph and Roberta Teplitz, live in Mount Prospect, Illinois, which is within the boundaries of defendant Mount Prospect Elementary School District No. 57 (school district). Alan, born on September 11, 1967, attended the school district’s Westbrook Elementary School (Westbrook).

In 1975, Alan was diagnosed as having a learning disability and was placed in a learning disabilities (LD) program which consisted of placement in a self-contained LD room two or three times a week for approximately one-half hour per session. A school district staff recommendation report, dated September 5, 1975, noted that Alan’s academic progress was depressed, that he had audio-visual perceptual difficulties, and motor problems as well as “some emotional overlay.” The report also recommended counseling for the parents.

The Templitzes attended staffing conferences on October 25, 1975, January 26, 1977, and May 23, 1977, to evaluate Alan’s performance. At the 1976 conference, it was noted that there was little or no carryover of progress from Alan’s LD resource room to the regular classroom. At the January 1977 conference, the following was reported: alternate programs for Alan were discussed; Alan seemed to be making some academic progress despite apparent strange behavior in the classroom and lack of progress in day-to-day studies; there had been a change in medication in order to change Alan’s classroom performance; Alan would continue in the LD program until the end of the school year, and the family agreed to explore further counseling.

At the May 1977 conference, it was reported that the Teplitz family had sought counseling and that Alan had seen a counselor on a limited basis. Alan was transferred to another homeroom in the hope that a change in environment might improve his interest and progress. The school staff received a report from a neurologist recommending that Alan be placed in a LD classroom which was highly structured and quiet. The consensus was that Alan could not adequately perform in a normal classroom, although test results showed him only slightly below normal grade level. Alan’s teachers reported that his greatest problem was his inability to help himself and his general inattentiveness. The report stated that “Mrs. Gundersen will explore the possibilities of a placement in a self-contained learning disability program, possibly at Euclid School, Summit, ***, and will report to the parents sometime in the near future.” Finally, it was recommended that the family continue in the counseling program and explore the possibility of a more sustained program for Alan. At the end of the report was the statement, “The parental right to review this placement decision will be honored upon request.”

The Teplitzes claimed that despite repeated attempts over the summer of 1977 to learn what arrangement had been made for Alan for the next school year, they were never advised of any possible alternative placement or of the institution of a program designed to meet Alan’s educational and psychological needs. When the 1977-78 school year began, no program had been suggested for Alan. Plaintiffs then enrolled Alan at Cove School in Evanston, Illinois, a nonpublic school for children with learning disabilities.

The principal of Westbrook contacted the Teplitzes when Alan did not return to that school on August 30, 1977. A conference was arranged in September 1977 which was attended by the Teplitzes, John Gatto, Westbrook’s principal, Dr. A. R. Yeslin, school psychologist and Shirley Gundersen, coordinator of special services. The staff suggested that Alan be tutored for an hour a day until he could be placed in a self-contained LD classroom in eight or nine weeks. In August 1977, the school staff had rechecked on the availability of a placement for Alan but had received no firm commitment. The Summit school district reported that a placement might be available in eight or nine weeks. The Teplitzes stated that they are unwilling to remove Alan from the Cove School.

On October 3, 1977, Earl Sutter, superintendent of the school district, informed the Teplitzes by letter that Westbrook was the most appropriate placement for Alan and that Cove School was more restrictive than was warranted by circumstances. He informed the Teplitzes of their right to file an objection in writing to the proposed placement. In a letter dated October 13, 1977, the Teplitzes informed the superintendent of their objection and requested a hearing by an impartial hearing officer.

On November 21, 1977, Richard Aronoff, an impartial hearing officer, convened a due process hearing under article 10 of the Illinois Rules and Regulations to Govern the Administration and Operation of Special Education. Persons in attendance included Earl Sutter, superintendent of district 57, Shirley Gundersen, coordinator of special services for the district, Arthur Yeslin, psychologist, John Gatto, principal of Westbrook, Carlene Heiden, Westbrook classroom teacher, Yvonne Amber, Westbrook LD teacher, Mr. and Mrs. Teplitz, and Dan Tokarski, principal of Cove School.

The hearing officer made the following findings of fact. Alan needed significant special education intervention and should be placed in a highly structured small classroom. Alan’s rights were not fully observed because his parents were not notified in writing at least 10 days in advance of the district’s proposed placement and were not notified of the district’s inability to provide recommended services. The hearing officer recommended that Alan be placed in a self-contained LD class in a public school for at least 50% of the school day, that one hour per week of social work or an additional therapeutic program be offered to Alan and his family, and that the district provide additional diagnostic evaluation by a multidisciplinary staff for more specific delineation of Alan’s needs. The hearing officer reasoned that private placement was not justified because the public schools were required to provide the type of placement he recommended for Alan.

On December 19, 1977, Shirley Gundersen informed the Teplitzes of the school district’s plan to implement the recommendations of the hearing officer, but on January 13, 1978, the Teplitzes notified the dis-

117 Ill. App. 3d 495 Teplitz v. Mt Prospect Elem. School Dist. trict of their intent to appeal.

On June 15, 1978, the State Superintendent of Education issued an interlocutory order in which he found himself unable to determine whether Alan’s rights had been observed. He ordered the school district to conduct a full case study of Alan’s needs and to submit an individualized education plan. Alan was found ineligible for private placement because “his exceptional characteristics are not so profound, complex, and unique that no public school program can adequately and appropriately meet his needs ***.”

District superintendent Sutter informed the Teplitzes of his intent to implement the interlocutory order, and on July 18, 1978, a staffing conference was held which the Teplitzes attended as observers. The Teplitzes were informed that, under the superintendent’s order, if they continued to enroll Alan at Cove, it would be at their own expense.

On August 10, 1978, the Teplitzes wrote a letter to Superintendent Cronin asking for reimbursement for tuition at Cove. On October 25, 1978, Cronin issued an administrative order in which he found that the district had completed an appropriate case study evaluation and had developed an individualized education plan for Alan. He also found that Alan’s rights had not been observed for 1977 to 1978 and that the school district had offered Alan an inappropriate placement not directly related to his needs. Cronin sustained the district’s decision that Alan was ineligible for placement in a nonpublic facility. He ordered the district to place Alan in a self-contained LD classroom for the 1978 to 1979 school year and to provide evidence on whether the Teplitzes were provided with timely notice of their right to appeal Alan’s placement for the 1977 to 1978 school year. Again, the district superintendent informed the Teplitzes of his intent to implement the administrative order.

On March 29, 1979, Cronin issued a supplemental order which found that district 57 failed to timely notify the Templitzes of their right to a due process hearing and that this failure caused an unwarranted financial burden to fall on the Teplitzes. Cronin concluded that the remedy for a failure to timely notify would be direct appeal to the State Superintendent of Education. However, the Teplitzes could not be awarded retroactive reimbursement for tuition at Cove School for 1977 to 1978 because it would be “tantamount to a penalty or money damages. The State Superintendent of Education is not authorized to enforce a penalty or award money damages under these circumstances, thus an administrative appeal cannot resolve this issue.”

On May 4, 1979, the Teplitzes filed a complaint under the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) to review the March 29, 1979 order. On June 18, 1982, the circuit court confirmed the order. Plaintiffs appeal.

At issue in this case is whether plaintiffs may recover the cost of placing their learning disabled child in a nonpublic school where the school district failed to provide an appropriate learning program and failed to inform the parents of their right to contest the district’s proposed inappropriate placement. Plaintiffs argue that Alan’s right to a free appropriate education is guaranteed by the education article of the Illinois Constitution and the School Code. His procedural rights are based on both Federal and State laws. According to plaintiffs, they are entitled to reimbursement because of Superintendent Cronin’s findings that the school district breached its duty to timely notify them and this failure of notice caused an unwarranted financial burden to fall upon them. Plaintiffs had no choice but to place Alan in a school that would meet his needs.

Plaintiffs further contend that Superintendent Cronin misconstrued the School Code in holding that he had no authority to order retroactive reimbursement. The State Board of Education has wide discretion in formulating sanctions or remedies to deal with unlawful practices committed by the school district. The circuit court was not bound by the superintendent’s interpretation of the School Code. Limiting the remedy for a violation of due process rights to an administrative appeal leave plaintiffs with no remedy for that violation because the superintendent concluded that he was not authorized to award retroactive reimbursement even if plaintiffs had appealed. Finally, plaintiffs contend that the school district’s breach of its duty to provide an appropriate education and a due process hearing shows bad faith and thus they are entitled to reimbursement under In re Special Education Placement of Walker (1982), 107 Ill. App. 3d 1053, 438 N.E.2d 582.

The education article of the Illinois Constitution provides that “[a] fundamental goal of the People of the State is the educational development of all persons to the limits of their capacities. *** Education in public schools through the secondary level shall be free.” (Ill. Const. 1970, art. X, sec. 1.) In Elliot v. Board of Education (1978), 64 Ill. App. 3d 229, 237, 380 N.E.2d 1137, 1143, the appellate court interpreted this provision of the Constitution, together with the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 14 — 1.01 et seq.) and rules and regulations of the Illinois Office of Education (Rules and Regulations to Govern the Administration and Operation of Special Education, effective August 23, 1976) to mean that the education of handicapped students is part of the responsibility of the public school system and must be free of tuition charges through the secondary level. See Board of Education v. Rowley (1982), 458 U.S. 176, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (discussion of Federal aid to State special education programs).

In In re Special Education Placement of Walker (1982), 107 Ill. App. 3d 1053, 438 N.E.2d 582, the appellate court addressed the issue of whether a parent could be reimbursed for expenses in unilaterally placing a child in a nonpublic school. The court relied on Anderson v. Thompson (7th Cir. 1981), 658 F.2d 1205, 1213-14, which described two circumstances justifying such an award: (1) where a child’s health would have been endangered had the parents not made alternative arrangements to those offered by the school system and (2) where the defendant had acted in bad faith by failing to comply with statutory procedural provisions in an egregious fashion.

Both requirements were met in In re Special Education Placement of Walker. Plaintiff, Mrs. Walker, unilaterally placed her son in a nonpublic facility the day after an incident of physical violence by him, and the school district showed bad faith by ignoring plaintiff’s repeated requests for a due process hearing over a five-month period. The school district did not initially inform Mrs. Walker of her right to a due process hearing, and the hearing was not held until after her fourth request.

In the instant case, the requirements of Anderson v. Thompson have not been met. Plaintiffs have not demonstrated that Alan’s health would have been endangered had he not been placed in the Cove School. We cannot infer bad faith merely from the school district’s failure to inform the Teplitzes of their procedural rights. In In re Special Education Placement of Walker, plaintiff made repeated requésts for a hearing before it was granted. In the instant case, plaintiffs were granted a hearing upon their first request. The school district’s initial failure to comply with procedural provisions was not so egregious as to justify reimbursement for the Teplitzes’ unilateral placement of Alan in the Cove School.

The instant case is also distinguishable from In re Special Education Placement of Walker insofar as in Walker the hearing officer found appropriate the type of placement which was unilaterally made by Mrs. Walker. In the instant case, the hearing officer did not recommend a full-time placement in a self-contained LD class, but a halftime placement. Thus, he did not find that the Cove School was the appropriate placement for Alan. In fact, the hearing officer stated that private placement was not justified because the public schools were required to provide the type of placement he recommended for Alan. Therefore, we hold that plaintiffs are not entitled to reimbursement for their expenses in unilaterally placing their learning disabled child in a nonpublic school.

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

Affirmed.

ROMITI, P.J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    WAYNE D. PEMBERTON, Plaintiff-Appellee, v. DR. LYMAN TIEMAN et al., Defendants—(Medical Emergency Services Associates, S.C. (MESA) et al., Appellants).
    First District (5th Division)
    No. 82 — 2773
    Opinion filed August 19, 1983.

      Abramson & Fox, of Chicago (James L. Fox and Donald P. Colleton, of counsel), for appellants.
    Arnold & Kadjan, of Chicago (L. Steven Platt, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Defendants, Medical Emergency Services Associates, S.C. (MESA), and John Guy, counsel for MESA, appeal from an order holding Guy in contempt and fining him $1 for his declared refusal to produce an officer of MESA for a discovery deposition.

Plaintiff’s action sought damages based in pertinent part upon a claimed malpractice by an emergency room doctor at Northwest Community Hospital. Count IV of his third amended complaint alleges that the emergency medical personnel at the hospital were employees of MESA and acting within the scope of their employment at the time of his injury; that MESA had the right to control their actions and to implement policies and procedures to be followed by them; and that MESA had negligently breached various duties it owed to him.

After a notice to produce Dr. Zydlo, an officer of MESA, for a discovery deposition, MESA moved to quash the notice on the basis that his testimony would be irrelevant to the material issues of plaintiff’s action because Dr. Zydlo “has never seen nor treated the plaintiff” and “[tjhere is no indication in any of the medical records of the plaintiff herein that Dr. Zydlow [sic] was ever involved in any care or treatment of the plaintiff.” The parties subsequently conferred and exchanged letters regarding the deposition pursuant to Supreme Court Rule 201(k) (87 Ill. 2d R. 201(k)) and when Dr. Zydlo was not produced plaintiff moved to compel his appearance. Following a hearing, the court ordered MESA to produce him and when its counsel, John Guy, refused to do so, he (Guy) was found in contempt of court and fined $1. This appeal followed.

Opinion

The sole issue presented for review is whether the trial court erred in finding counsel for MESA in contempt and imposing a fine for failure to produce a MESA officer for a discovery deposition. It is counsel’s position that plaintiff has failed to show how that deposition is relevant, asserting that the officer in question has no knowledge of the treatment provided, and that other documents produced show that the emergency room physician was an independent contractor, and MESA had no right to control his professional judgment.

In seeking to depose Dr. Zydlo, plaintiff relied on Supreme Court Rule 202, which provides that “[a]ny party may take the testimony of any party *** by deposition upon oral examination *** for the purpose of discovery” (87 Ill. 2d R. 202) and Rule 204(a)(3) stating that “[s]ervice of notice of the taking of the deposition of a *** person who is currently an officer, director, or employee of a party is sufficient to require the appearance of the deponent” (87 Ill. 2d R. 204(a)(3)). It is well established that discovery is to be “a mechanism for the ascertainment of truth, for the purpose of promoting either a fair settlement or a fair trial.” (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 282, 433 N.E.2d 253, 257.) To this end, the object of all discovery procedures is disclosure (Buehler v. Whalen (1977), 70 Ill. 2d 51, 374 N.E.2d 460), and the right of any party to a discovery deposition is “basic and fundamental” (Slatten v. City of Chicago (1973), 12 Ill. App. 3d 808, 813, 299 N.E.2d 442, 445); however, that right is limited to disclosure regarding matters relevant to the. subject matter of the pending action (Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 382 N.E.2d 95; Harris Trust & Savings Bank v. Joanna-Western Mills Co. (1977), 53 Ill. App. 3d 542, 368 N.E.2d 629). Nevertheless, great latitude is allowed in the scope of discovery (Elliot v. Board of Education (1975), 31 Ill. App. 3d 355, 335 N.E.2d 33), and the concept of relevance is broader for discovery purposes than for purposes of the admission of evidence at trial, since it includes not only what is admissible at trial but also that which leads to what is admissible (Mistier v. Mancini (1982), 111 Ill. App. 3d 228, 443 N.E.2d 1125). For this reason, “[r]elevaney is determined by reference to the issues, for generally, something is relevant if it tends to prove or disprove something in issue.” (Bauter v. Reding (1979), 68 Ill. App. 3d 171, 175, 385 N.E.2d 886, 890.) The rules governing pretrial discovery vest wide discretion in the trial court (M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122, 424 N.E.2d 1193), and we will not disturb its exercise thereof unless the appellant makes a clear, affirmative showing that it has been abused (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 377 N.E.2d 1125; Hanes v. Orr & Associates (1977), 53 Ill. App. 3d 72, 368 N.E.2d 584).

Initially, we note that counsel’s assertion that Dr. Zydlo knows nothing of the treatment provided in the emergency room is unsupported by the record. There is no affidavit by Dr. Zydlo to that effect, nor do the answers to plaintiff’s interrogatories filed by MESA support his position. Those answers deny that any minutes of meetings or reports on the treatment provided are in MESA’s possession, but do not state that no oral discussions took place to which Dr. Zydlo might have been a party. Furthermore, the only means plaintiff has of testing the asserted lack of knowledge is through a deposition. In effect, it appears to be counsel’s position that plaintiff is not entitled to a deposition unless he can state specifically what information -will be gained. We are in accord, however, with the decision in Mistler v. Mancini (1982), 111 Ill. App. 3d 228, 233, 443 N.E.2d 1125, 1129, wherein the court noted, when faced with a similar assertion, “[i]f [the deponent] indeed knows nothing, that may be appropriately ascertained through his deposition. Such an assertion should not operate to preclude his being deposed, however, given his business relationship with the parties.” Here, the deponent is an officer of one of the defendants, and it is our view that plaintiff has a right to test his knowledge of the incident in question, and is not bound by counsel’s unsupported assertion that there is no relevant information to be obtained.

Counsel further contends that the only issue before the court is whether the emergency room physician was negligent. However, it is clear from the pleadings that other issues are involved, principally whether a master/servant relationship existed between MESA and' that physician. Counsel argues that the issue is conclusively resolved by the contract between MESA and the physician in question, which describes his position vis-a-vis MESA as that of an independent contractor. We disagree as that contract is not determinative of the relationship (see Hamilton v. Family Record Plan, Inc. (1966), 71 Ill. App. 2d 39, 217 N.E.2d 113); rather, the question whether one acting for another is a “servant” or an “independent contractor” is to be determined by consideration of all the facts of a particular case (Ryan v. Associates Investment Co. (1938), 297 Ill. App. 544, 18 N.E.2d 47). Here, Malcolm MacCoun, president of Northwest Community Hospital, stated in his deposition that the hospital has contracted with MESA to provide emergency services, and that MESA is responsible for the emergency room doctors. In its answer, MESA denied that it had the right to control the actions of emergency room personnel, or that it established policies and procedures for the operation of the emergency room, but in its answer to plaintiff’s interrogatories stated that it conducts “audits or random reviews of a selected number of Emergency Room charts,” although it does not explain the purpose of these reviews. Plaintiff is entitled to inquire into these matters in an attempt to discover which entity is responsible for establishing emergency room policies and procedures as well as their adequacy, and whether MESA, in conducting its review, is in fact exercising some control over physicians engaged by it to provide emergency medical care.

Finally, counsel asserts that Dr. Zydlo’s deposition is irrelevant because MESA could never be vicariously liable for the emergency room physician’s exercise of his professional judgment. However, we have held under analogous circumstances that a hospital may be held liable for the negligent medical judgment of a physician who is employed and salaried by it and who works under its direction. (Holton v. Resurrection Hospital (1980), 88 Ill. App. 3d 655, 410 N.E.2d 969; Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 399 N.E.2d 198.) We see no reason why a similar rule should not be applied where the physician is employed by and works under the direction of a medical services corporation which undertakes to provide services traditionally provided by a hospital. This question cannot be resolved until the relationship between MESA and the emergency room physician is established, and the deposition of Dr. Zydlo is relevant to that inquiry.

For the foregoing reasons, we believe that counsel has failed to show that the deposition in question is irrelevant or that the trial court abused its discretion in ordering that Dr. Zydlo be produced for a discovery deposition. Under these circumstances, the trial court acted properly in finding counsel in contempt for refusing to comply with the discovery order. However, because Mr. Guy’s action was a good-faith effort to secure an interpretation of the rules, the fine is vacated. 87 Ill. 2d R. 615(b)(1); see Bicek v. Quitter (1976), 38 Ill. App. 3d 1027, 350 N.E.2d 125.

Affirmed in part, vacated in part, and remanded for farther proceedings not inconsistent with this opinion.

LORENZ and MEJDA, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOOKER T. EPPS, Defendant-Appellant.
    First District (1st Division)
    No. 81 — 3073
    Opinion filed August 22, 1983.

      James J. Doherty, Public Defender, of Chicago (R.H.R. Silvertrust, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and Thomas A. Rieck, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Booker Epps, after a jury trial, was convicted of voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(b)) and sentenced to a term of five years. On appeal, defendant raises the following issues: (1) whether the trial court erred by excluding evidence of the victim’s prior convictions offered to show that the victim was the aggressor; (2) whether defendant was proven guilty beyond a reasonable doubt; and (3) whether the prosecutor’s improper comments during closing argument denied defendant a fair trial.

At trial, Officer Robert Thomas testified that on May 21, 1980, at approximately 3 p.m., upon responding to a call with his partner, he found a dead man lying on the porch just outside the back door to a second floor apartment located at 4720 West Adams. The victim, who wore a dress shirt and dress pants, was shot in the back of his head and was unarmed. There were no tools or household products near the victim’s body. Officer Thomas observed a bullet hole through the back door and shade on the door to the second floor apartment. The officer testified that defendant, who lived in the first floor apartment of that building, told the police that he did not know of a shooting at that location and that he did not own any weapons. However, after defendant consented to a search of the first and second floor apartments, the police officers found a rifle case in defendant’s bedroom and a rifle behind some basement paneling. Defendant was arrested and taken to the police station.

Assistant State’s Attorney Richard Schwind testified that defendant made a statement at the station. In the statement, which was admitted into evidence, defendant said that upon hearing noises, he got his rifle and went upstairs to the vacant second floor apartment. In the kitchen, he caught a glimpse of what appeared to be a person running out the back door and fired in the direction of the door. After seeing a person’s body going down, defendant ran and hid his gun behind the panel in his basement. Defendant told the investigating officers that he had not heard gunshots. He subsequently found out that the person he shot was Leon Hatley, who had been in jail with him.

Defendant’s testimony was substantially the same except that he testified that as a person appeared from behind the refrigerator, “flashing up as soon as the door swung open,” defendant fired a shot. Defendant further testified that his brother owned the second floor apartment and that defendant was the custodian of the premises. On cross-examination, defendant admitted that the victim neither exhibited any weapons nor threatened defendant. Defendant also stated that he lied to the investigating officers regarding not knowing about a shooting and not owning a gun in order to cover up his actions.

During the trial, defendant attempted to introduce evidence of the victim’s character by the use of prior convictions for manslaughter and robbery. According to defendant, the purpose of this evidence was to support defendant’s testimony that the victim was the aggressor and had illegally broken into the premises. The State maintains that this evidence was properly excluded since defendant had no knowledge of the victim’s criminal history at the time defendant shot him. Furthermore, the State asserts that the victim could not have been the aggressor since he already had run outside through the back door at the time he was shot. Additionally, the decedent was unarmed and did not possess or have near him any kind of tools or household goods.

We agree with the State’s contention that the determination of whether the defendant’s subjective belief was reasonable in a manslaughter case was for the jury (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520), and that based upon the evidence the jury could have properly concluded that defendant’s belief that the shooting was necessary was unreasonable. The trial court did not err in excluding defendant’s evidence of the victim’s prior conviction for manslaughter and robbery for the justification of the use of deadly force.

Defendant next contends that he was not proved guilty beyond a reasonable doubt. Defendant relies upon the affirmative defense of justifiable use of force to protect his dwelling and has cited section 7 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 3), which provides:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s trespass on * * * or interference with *** real property (other than a dwelling) ***. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent the commission of a forcible felony.”

Defendant asserts that his version of what led up to and caused the shooting and death of the victim was the only one given at trial and that the facts were not such as to prove that he was guilty beyond a reasonable doubt. Defendant stated that he heard noises and footsteps in the second floor apartment he was trying to rent, where he kept two refrigerators. The only people who had keys were his wife and himself. His wife was at work and he had not given anyone permission to be in the apartment. He concluded that a burglary was in progress and grabbed his loaded rifle and ran upstairs through the apartment. As he entered the kitchen, suddenly a person jumped out from behind one of the refrigerators and defendant fired immediately.

The People argue that the facts refuted defendant’s belief that deadly force was necessary. At first, defendant denied having any knowledge of the shooting and denied owning a weapon. After the defendant consented to a search of the building, the police found a rifle case in defendant’s bedroom and retrieved a rifle secreted behind some paneling in the basement. Later, at the police station,, defendant admitted that he had lied to the police. Thereafter, defendant made a statement wherein he admitted shooting the decedent through the rear door of the second floor with the rifle recovered from the basement.

The uncontradicted evidence showed that the defendant shot an unarmed man (People v. Easter (1981), 102 Ill. App. 3d 974, 430 N.E.2d 612; People v. Lester (1981), 102 Ill. App. 3d 761, 430 N.E.2d 358) after the decedent was outside the door. The bullet went through the shade on the door, through the glass portion of the door, and then struck the decedent in the back of the head, killing him. The decedent’s body was found outside the apartment. Defendant admitted that decedent was running through the door, and the physical evidence proved that the defendant fired the rifle after the decedent was outside the door.

The People maintain that what defendant saw for sure was the back door closing and that defendant’s argument that his decision to shoot an unarmed man in the back of the head through a closed door was not a reasonable belief under the circumstances. Defendant did not know the identity of the victim at the time of the shooting, and any evidence of the victim’s criminal history is irrelevant. (People v. Vega (1982), 107 Ill. App. 3d 289, 437 N.E.2d 919; People v. Wolski (1980), 83 Ill. App. 3d 17, 403 N.E.2d 528.) Despite the exclusion of some evidence of the victim’s criminal history, the jury heard evidence that the defendant knew the victim from their time together in the Cook County jail.

It was for the jury to determine whether the decedent’s death was manslaughter or a justified killing and whether the defendant’s subsequent belief that deadly force was necessary was a reasonable belief. (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.) The jury was entitled to consider the facts as they confronted the defendant and the evidence the defendant knew at the time of the shooting. The jury knew from the uncontradicted evidence that the defendant did not rely upon the identity of his victim. The jury heard the defendant’s story and rejected it. A reviewing court will not disturb the jury’s verdict unless the evidence is so unreasonable, improbable, or unsatisfactory that it justifies entertaining a reasonable doubt of the defendant’s guilt. (People v. Evans.) We believe from the evidence that the jury could have properly concluded that defendant’s belief of justifiable use of deadly force was necessary to protect his dwelling was an unreasonable belief and that the evidence proved defendant’s guilt of voluntary manslaughter beyond a reasonable doubt. Defendant’s reliance on People v. Fausz (1983), 95 Ill. 2d 535, is misplaced.

Defendant’s final contention is that improper comments made by the prosecutor during closing argument denied him a fair trial. Defendant claims that the prosecutor misstated the law, incorrectly shifted the burden of proof, and repeatedly stated that the defense had created smokescreens to mislead the jury. Defendant claims that the prosecutor told the jury that in order to justifiably use deadly force in defense of dwelling, one must show that it was necessary to prevent a felony and that the defense had not proven that the victim was a burglar. The State maintains that such statements were used to convey the message that the defendant had not produced credible evidence which would raise the defense of dwelling and shift the burden to the prosecutor to disprove that defense. Moreover, the statement demonstrates that the prosecutor had indeed disproved the affirmative defense of dwelling if the trier of fact believed that defendant had presented evidence to raise the defense. The State further claims that defense counsel’s argument initiated and provoked a response by improperly offering his own personal assessment of the affirmative defense to mount a subtle personal attack upon the prosecution.

A prosecutor is permitted great latitude in his closing argument, and such argument may denounce the accused, reflect upon witness credibility, and urge the fearless administration of the law if it is based on the facts in the record or inferences fairly drawn from those facts. (People v. Bryant (1983), 94 Ill. 2d 514; People v. Bibbs (1981), 101 Ill. App. 3d 892, 428 N.E.2d 965.) The prosecutor may not properly make comments which shift the burden of proof to the defendant. This undermines the presumption of innocence. (People v. Smith (1982), 111 Ill. App. 3d 494, 444 N.E.2d 565.) However, defense counsel may not invite or provoke a response and then claim that he was prejudiced thereby. Here, the court instructed the jury that closing arguments are not evidence and any statement made in argument, not based on evidence, should be disregarded. (People v. Smith) An examination of the record has failed to show substantial prejudice as a result of the assailed arguments and has failed to show any or all of the prosecutor’s arguments constituted a material factor in the conviction. (People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011; People v. McNair (1981), 102 Ill. App. 3d 322, 429 N.E.2d 1233.) Defendant’s claims of the denial of a fair trial are unsupported by the record in the case.

For these reasons, the judgment of the circuit court of Cook County is affirmed and the State’s motion for costs in the amount of $50 is granted.

BUCKLEY, P.J., and McGLOON, J., concur.


author: JUSTICE WELCH

text:
    BOBBY J. HAYS, Plaintiff-Appellant, v. LOUISIANA DOCK COMPANY et al., Defendants-Appellees.
    Fifth District
    No. 82 — 369
    Opinion filed September 2, 1983.

      Lance R. Mallon and Hugh M. Talbert, both of Talbert & Mallon, RC., of Alton (Sidney Z. Karasik and Sam J. Cahnman, of counsel), for appellant.
    Raymond L. Massey, Dan H. Ball, and Mary K. Bennett, all of Thompson & Mitchell, of East St. Louis, for appellee Louisiana Dock Company.
    Daryl F. Sohn, of Goldstein & Price, of St. Louis, Missouri, for other appellees.
   JUSTICE WELCH

delivered the opinion of the court:

The present appeal is taken from a dismissal of the plaintiff’s action to recover damages for personal injuries allegedly suffered aboard the M/Y Tennessee on the Mississippi River on approximately March 2, 1978. The question presented here is whether that action is barred on res judicata grounds due to a dismissal with prejudice in Federal court of a prior action brought by the plaintiff.

The plaintiff first filed suit in the circuit court of Madison County on March 16, 1978, against American Commercial Barge Line Company (ACBL) and Louisiana Dock Company, Inc. (La. Dock). In his complaint, the plaintiff alleged that agents of ACBL and La. Dock had allowed the Tennessee to be returned to navigation, even though a substantial amount of grease had been left on the shaft alley floor and water was leaking into the shaft alley compartment at a rate of flow “equivalent to a fire hose discharge.” The plaintiff contended that he had suffered injury when he slipped and fell on grease on the shaft alley floor.

This action was removed to the United States District Court for the Southern District of Illinois through a petition filed by ACBL and La. Dock in that court on April 17, 1978. La. Dock filed a third-party complaint in Federal court against the Peavey Company (Peavey), the plaintiff’s employer, seeking contribution or indemnity for any damages recovered by the plaintiff from La. Dock. Pursuant to Rule 14(c) of the Federal Rules of Civil Procedure, La. Dock requested judgment to be entered directly against Peavey and in favor of the plaintiff, should the plaintiff’s claim and the third-party claim both be successful. Peavey therefore filed two answers in the Federal proceedings, one to La. Dock’s third-party complaint, and one directly to the plaintiff’s complaint against La. Dock.

Discovery continued in this case until May 20, 1980, when plaintiff’s counsel filed a “stipulation for dismissal” in Federal court. This document requested that through the stipulation of the parties, the plaintiff’s complaint and the third-party complaint, inter alia, should be dismissed voluntarily and without prejudice. It was signed only by an attorney in the firm of the plaintiff’s counsel and was not signed by the plaintiff, or by the other parties or their counsel. The court accepted this stipulation on May 20, 1980, and approved the dismissal without prejudice of the complaints mentioned in the stipulation.

Subsequently, according to a statement given by the plaintiff on August 29, 1980, in connection with settlement negotiations, the plaintiff discovered on his own that his counsel had obtained a dismissal of his case without his approval. On July 17, 1980, the plaintiff sent a telegram to the Federal court requesting that no further documents be accepted from his attorney, and, on July 21, he sent a letter to his attorney discharging him. The plaintiff then undertook settlement negotiations directly with counsel for ACBL, La. Dock and Peavey.

A result of these negotiations was that the plaintiff, together with counsel for ACBL, La. Dock and Peavey, filed documents in the Federal court on September 9, 1980, which effectuated a dismissal with prejudice of the plaintiff’s action and the third-party action against Peavey. On February 5, 1981, the plaintiff, with new counsel, filed a three-count complaint against La. Dock, Peavey and Greenville Towing Company, Inc. (Greenville), in the circuit court of Madison County. This complaint also sought damages for the injuries allegedly suffered by the plaintiff on approximately March 2, 1978, aboard the M/V Tennessee. The first count, directed to Peavey, claimed that that defendant had negligently failed to provide the plaintiff with a safe place to work and had failed to inspect the M/V Tennessee or clean its engine room before launching it. In the second count, the plaintiff averred that La. Dock had negligently tendered the Tennessee in an unseaworthy condition to its operator, Peavey, after repairs. Greenville, the owner of the Tennessee, was charged in count III with having negligently failed to inspect or clean the vessel before it was launched after repairs.

On April 10, 1981, all three defendants filed a motion under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48, now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619) to dismiss the action as barred by the dismissal of the Federal suit. Attached to this motion were certified copies of the petition to remove the plaintiff’s initial action to Federal court, the stipulations for dismissal with prejudice of the plaintiff’s complaint and the third-party complaint, and the order dismissing the plaintiff’s action. Also attached to the motion were a copy of the plaintiff’s original complaint and the summons in the first State court action. On May 1, 1981, the plaintiff filed a reply to the motion to dismiss. Attached to this reply were a copy of the stipulation for dismissal without prejudice in Federal court and the docket sheet of the Federal court for the plaintiff’s action. After accepting briefs and authorities and hearing argument from all parties, the trial court granted the motion to dismiss.

In this court, the plaintiff challenges the trial court’s order of dismissal as erroneous. He states that the motion to dismiss did not comply with section 48 of the Civil Practice Act, now section 2 — 619 of the Code of Civil Procedure, and that even if it did, the court should not have dismissed the action on res judicata grounds because the Federal court improperly entered a dismissal with prejudice of the plaintiff’s complaint after that complaint had been dismissed without prejudice and not reinstated. Additionally, he asserts that any res judicata effect of the dismissal with prejudice could not have extended to the third-party defendant, Peavey, or to Greenville, which was not a party to the Federal action. We first consider those arguments which pertain to all of the defendants.

The plaintiff contends that the motion to dismiss was procedurally defective, in that no affidavits were attached to the motion. But, as argued by the defendants, the plaintiff did not object at the trial level to the motion to dismiss for failure to present an affidavit. This argument has thus not been preserved for purposes of this appeal. (Mutschler Kitchens of Chicago, Inc. v. Wineman (1981), 95 Ill. App. 3d 728, 420 N.E.2d 672; Setliff v. Reinbold (1966), 73 Ill. App. 2d 208, 218 N.E.2d 814.) Also, it has been held that an affidavit did not need to be attached to a motion to dismiss where a certified copy of a land trust agreement was sufficient to support the issues presented by the motion. (White Way Sign & Maintenance Co. v. Montclare Lanes, Inc. (1976), 42 Ill. App. 3d 199, 355 N.E.2d 632.) If, as alleged in the motion to dismiss, the plaintiff’s action were barred on res judieata grounds, there seems little that an affidavit could add to certified copies of the prior dismissal and other relevant proceedings.

It is further averred that the record at trial failed to include several documents which were necessary to the resolution of the issues presented by the motion to dismiss. Specifically, the plaintiff lists among the missing documents the answers of ACBL and La. Dock to the plaintiff’s complaint, the plaintiff’s and defendants’ answers to interrogatories and requests to produce, a motion for leave to file a third-party complaint, Peavey’s counterclaim against La. Dock, La. Dock’s reply to Peavey’s counterclaim and the order of September 9, 1980, dismissing the third-party complaint of La. Dock and ACBL. However, the plaintiff did not bring to the attention of the trial court the failure of the defendants to include these documents in the record. Moreover, the doctrine of res judicata may be used as a bar to further proceedings if the parties involved are the same, or those in privity with them, and if the causes of action and the subject matter of both suits are the same. (See Keith v. B & B Builders Supply, Inc. (1981), 101 Ill. App. 3d 1123, 428 N.E.2d 1194; Village of Northbrook v. Cannon (1978), 61 Ill. App. 3d 315, 377 N.E.2d 1208.) The identity of parties, subject matter and causes of action may be determined from the record as well as from the pleadings in both actions. (Pierog v. H.F. Karl Contractors, Inc. (1976), 39 Ill. App. 3d 1057, 351 N.E.2d 249.) In the case at bar, the plaintiff has not suggested how this inquiry could be performed by the trial court if the listed documents were included in the record, and how it could not be performed with the documents presently in the record. In other words, it has not been demonstrated that the present record was and is inadequate for a determination of the issues raised in the motion to dismiss, and thus we do not find the plaintiff’s objections to the motion and the supporting documents in the record to be well taken.

As his primary argument against the application of res judicata to this case, the plaintiff asserts that the Federal court erred when it issued the September 1980 dismissal of his action with prejudice. He reasons that the May 1980 dismissal of his complaint without prejudice effectively terminated the proceedings in that case, and, without a motion to file a new complaint or otherwise revive those proceedings, the court was without authority to enter the dismissal with prejudice. Consequently, he concludes, the second dismissal in Federal court was void and thus is not entitled to recognition in the State courts. The defendants respond that the Federal court had the authority to enter the dismissal with prejudice under Rule 60 of the Federal Rules of Civil Procedure. Alternatively, they maintain that even if the Federal court erroneously interpreted Rule 60 in granting the second dismissal, any such error would not render the Federal judgment void for the purpose of res judicata.

Because the judgment asserted by the defendants as a bar to the plaintiff’s action is one of another court system, the mandates of the full faith and credit clause are implicated. (U.S. Const., art. IV, sec. 1.) This clause requires that one court system give the same res judicata effect to a judgment as it would be given in the court system which rendered it. (Durfee v. Duke (1963), 375 U.S. 106, 11 L. Ed. 2d 186, 84 S. Ct. 242.) The question presented here is therefore what effect the dismissal with prejudice would be given if used to bar the plaintiff’s action had it been brought again in Federal court.

Like the courts of this State (People v. Kidd (1947), 398 Ill. 405, 75 N.E.2d 851), the Federal courts hold that a judgment will be given binding effect and will not be subject to collateral attack unless it is “void.” (V.T.A., Inc. v. Airco, Inc. (10th Cir. 1979), 597 F.2d 220.) To promote the finality of Federal judgments, the definition of a void judgment has been narrowly drawn. (V.T.A., Inc. v. Airco, Inc.; Ben Sager Chemicals International, Inc. v. E. Targosz & Co. (7th Cir. 1977), 560 F.2d 805.) A judgment is not void merely because it is erroneous. (Simer v. Rios (7th Cir. 1981), 661 F.2d 655, cert. denied (1982), 456 U.S. 917, 72 L. Ed. 2d 177, 102 S. Ct. 1773; William Skillings & Associates v. Cunard Transportation, Ltd. (5th Cir. 1979) , 594 F.2d 1078.) A void judgment is generally defined as one in which the rendering court lacked subject matter jurisdiction over the dispute or jurisdiction over the parties, or acted in a manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment. V.T.A., Inc. v. Airco, Inc.; In re Four Seasons Securities Laws Litigation (10th Cir. 1974), 502 F.2d 834, cert. denied (1974), 419 U.S. 1034, 42 L. Ed. 2d 309, 95 S. Ct. 516.

In fact, it has also been held that a judgment which results from a Federal court’s erroneous interpretation of a statutory grant of jurisdiction is not void for purposes of allowing a collateral attack. In Kansas City Southern Ry. Co. v. Great Lakes Carbon Corp. (8th Cir. 1980) , 624 F.2d 822, cert. denied (1980), 449 U.S. 955, 66 L. Ed. 2d 220, 101 S. Ct. 363, a judgment was entered by a Federal district court and was not appealed. Subsequently, this judgment was attacked in the district court on the ground that the United States, alleged to have been a necessary party, had not been joined as a defendant. The district court refused to vacate the earlier .judgment, and this action was upheld on appeal, the circuit court describing any error in not joining the United States as not such an error which would render the judgment void. Similarly, in Independence Mortgage Trust v. White (D. Ore. 1978), 446 F. Supp. 120, the district court entered judgment, acting on the belief, later admitted as mistaken, that it had diversity jurisdiction. This judgment was not appealed, but a party to it eventually petitioned the court for relief. As in Great Lakes, the court denied the petition, holding that the previous judgment, even if entered after an erroneous decision by the court concerning the extent of its own jurisdiction, was not void.

The Eighth Circuit explained the rationale behind these cases as follows:

“Absence of subject matter jurisdiction may, in certain cases, render a judgment void. [Citation.] However, this occurs only where there is a plain usurpation of power, when a court wrongfully extends its jurisdiction beyond the scope of its authority. [Citations.] Stated another way, such plain usurpation of power occurs when there is a ‘total want of jurisdiction’ as distinguished from ‘an error in the exercise of jurisdiction.’ [Citation.] Since federal courts have ‘jurisdiction to determine jurisdiction,’ that is, ‘power to interpret the language of the jurisdictional instrument and its application to an issue by the court,’ Stoll v. Gottlieb [(1938)], 305 U.S. at 171, 59 S. Ct. at 137, [83 L. Ed. 104, 108,] error in interpreting a statutory grant of jurisdiction is not equivalent to acting with total want of jurisdiction. Such an erroneous interpretation does not render the judgment a complete nullity. [Citations.] A void judgment, as opposed to an erroneous one, is one which from its inception was legally ineffective.” (Kansas City Southern Ry. Co. v. Great Lakes Carbon Corp. (8th Cir. 1980), 624 F.2d 822, 825.)

From Great Lakes and White, it may be seen that, if a Federal court acts in a type of case within its competency (such as a diversity case), if it has personal jurisdiction over the parties, and if it does not deny a party due process of law or transgress constitutional boundaries in other ways in rendering judgment, that judgment cannot be attacked collaterally as void.

Here, the Federal court judgment relied upon by the defendants was entered after the action was removed from State court on diversity grounds. The parties did not and have not contested the Federal court’s diversity jurisdiction. Nor is it asserted by the plaintiff that the court lacked personal jurisdiction over the parties. He also fails to allege any constitutional violation committed by the district court in those proceedings. The only shortcoming raised by the plaintiff to establish that the Federal judgment was void is that the court erroneously took action to dismiss the plaintiff’s complaint and the third-party complaint after they had both been dismissed without prejudice and without reinstatement.

Even if we would agree with the plaintiff that the district court lacked authority, under Fed. R. Civ. R 60 or otherwise, and that this is a “jurisdictional” defect, we cannot agree that this is the sort of error which would render the Federal judgment void. A misinterpretation by the district court of its power to grant post-judgment relief does not convert an otherwise valid judgment into “one which from its inception was legally ineffective.” (624 F.2d 822, 825.) At most, the Federal judgment can be described, not as void, but as erroneous, and it cannot be denied res judicata effect for that reason.

The plaintiff’s remaining assignments of error pertain to defendants Peavey and Greenville. He argues that, even if the dismissal with prejudice of the complaint in Federal court bars his subsequent action against La. Dock, it should not bar any suit against Peavey, the third-party defendant in the Federal action. According to the plaintiff, he and Peavey were never directly adverse to each other in Federal court and thus it cannot be said that the dismissal of the plaintiff’s complaint resolved any issues between the plaintiff and Peavey. The plaintiff also contends that since the stipulation for dismissal of his complaint only referred to La. Dock and ACBL, that stipulation shows that he and Peavey were not adversaries at that point and that the dismissal cannot benefit Peavey.

Peavey responds that the plaintiff’s claim that he and Peavey were not direct opponents in Federal court is unsupported by the record. Rule 14(c) of the Federal Rules of Civil Procedure states,

“When a plaintiff asserts an admiralty or maritime claim within the meaning of Rule 9(h), the defendant or claimant, as a third-party plaintiff, may bring in a third-party defendant who may be wholly or partly liable, either to the plaintiff or to the third-party plaintiff, by way of remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences. In such a case the third-party plaintiff may also demand judgment against the third-party defendant in favor of the plaintiff, in which event the third-party defendant shall make his defenses to the claim of the plaintiff as well as to that of the third-party plaintiff in the manner provided in Rule 12 and the action shall proceed as if the plaintiff had commenced it against the third-party defendant as well as the third-party plaintiff.” (Emphasis added.)

As noted above, La. Dock and ACBL requested that judgment be granted against Peavey and in favor of the plaintiff, and Peavey answered the plaintiff’s complaint directly, as required by this rule. From the time that this procedure was invoked, then, the plaintiff and Peavey were adversaries, and thus the dismissal of the plaintiff’s complaint did effectively decide issues between the plaintiff and Peavey. Because Rule 14(c) treats the third-party defendant who is tendered to the plaintiff as a defendant to the original action, it necessarily follows that a dismissal of the plaintiff’s complaint is effective against Peavey as well as against La. Dock and ACBL, even if the stipulation for dismissal of the complaint did not specifically list Peavey. The dismissal of the complaint and the third-party complaint, taken together, also show that all claims raised in the Federal litigation were to be resolved with finality. Since a direct claim by the plaintiff against Peavey arose in those proceedings by virtue of Rule 14(c) and was dismissed with prejudice, such a claim cannot be allowed in State court.

Finally, the plaintiff maintains that the motion to dismiss was insufficient to support the dismissal of his action against Greenville. He acknowledges that the pleadings in this case show that Peavey was the operator of the M/V Tennessee and Greenville was its owner, but he observes that Greenville did not attach any additional information to the motion to dismiss to establish the precise nature of the relationship between itself and Peavey. Greenville responds that no further elaboration of that relationship was necessary, because, as it argues, a judgment in favor of the operator of a vessel, in a prior suit for personal injuries, operates as a conclusive bar to the assertion of the same claim by the same plaintiff in a subsequent suit against the vessel’s owner.

As support for this proposition, Greenville directs our attention to Bruszewski v. United States (3d Cir. 1950), 181 F.2d 419, cert. denied (1950), 340 U.S. 865, 95 L. Ed. 632, 71 S. Ct. 87, and Adriaanse v. United States (2d Cir. 1950), 184 F. 2d 968, cert. denied (1951), 340 U.S. 932, 95 L. Ed. 673, 71 S. Ct. 495. In both cases, the plaintiffs brought unsuccessful personal injury actions against the operators of the vessels upon which they were injured. They then sued the owner of the vessels, the United States, to recover damages for those injuries. The circuit court affirmed dismissals of the actions against the United States on res judicata grounds.

According to the plaintiff, neither Bruszewski nor Adriaanse can be read as broadly as Greenville asserts. In both cases, the vessels were operated under a so-called General Agency Agreement, and as a result, the operator of the vessel could properly be considered an agent of the United States. The second action in each case, against the United States, was therefore brought under the theory of respondeat superior. In these circumstances, an adjudication of liability in favor of the agent would necessarily exonerate the principal. This, as the plaintiff argues, is the reason that the Bruszewski and Adriaanse courts held the plaintiff to be bound by the result of his litigation against the operator of the vessel, even though he would not be able to rely upon a successful judgment against the operator in a second suit against the owner.

In the present case, neither the pleadings nor the motion to dismiss establish the existence of an agency relationship between Peavey and Greenville. Nor does the plaintiffs complaint suggest that his cause of action against Greenville is based upon the doctrine of respondeat superior. In fact, nothing in the record indicates the nature of the relationship between those parties, beyond the description of Peavey as the operator of the M/V Tennessee and Greenville as its owner. We cannot tell whether Peavey is an agent of Greenville, or is a lessee, or whether there is some other connection between them. If the grounds upon which a motion to dismiss is based do not appear on the face of the pleading attacked, those grounds must be raised in a supporting affidavit. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a); First National Bank v. Minke (1981), 99 Ill. App. 3d 10, 425 N.E.2d 11.) Since Greenville has not demonstrated that the bare assertion of an “owner-operator” relationship between itself and Peavey allow it to rely upon the dismissal of the Federal action against Peavey, additional clarification of the connection between Greenville and Peavey should have been provided in supporting affidavits attached to the motion to dismiss. The failure of Greenville to do so requires us to reverse the dismissal of the plaintiff’s action against it.

For the foregoing reasons, the judgment of the circuit court of Madison County dismissing the plaintiff’s suit against La. Dock and Peavey is affirmed. The dismissal of his cause of action against Green-ville is reversed, and this cause is remanded for further proceedings on that portion of the complaint.

Affirmed in part, reversed in part, and remanded.

HARRISON, P.J., and KASSERMAN, J., concur.