author: JUSTICE JIGANTI

text:
    THE CITY OF CHICAGO, Plaintiff-Appellee, v. JONATHAN STRAUSS, Defendant-Appellant.
    First District (4th Division)
    No. 83—2168
    Opinion filed October 18, 1984.
    Thomas C. Crooks, of Chicago, for appellant.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Lynn K. Mitchell, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

Following a bench trial, defendant, Jonathan Strauss, was found to have violated section 36 — 48 of the Municipal Code of Chicago (Chicago, Illinois, Municipal Code 1982, ch. 36, sec. 36 — 48), and was fined $25 for having attempted to sell a ticket to the April 19, 1983, Chicago White Sox baseball game in front of the baseball park. On appeal, the defendant contends that his conviction must be reversed on the basis that the term “speculating” as used in the ordinance is vague and renders it unconstitutional. Alternatively, the defendant argues that “speculating” refers to the selling of a ticket for a price more than the price printed upon the face of the ticket and that, as such, his attempt to sell the ticket for not more than its face value did not constitute a violation of the ordinance.

Section 36 — 48 provides, in pertinent part:

“[No person shall] be permitted to remain at any [street corner or public place in front of any theatre, baseball park or other place of amusement in the city] having in his possession any tickets for any theatre, baseball park or other place of amusement, for the purpose of selling same, or offering the same for sale, in front of, or near any theatre, baseball park or other place of amusement in an attempt at speculating in such tickets.” Chicago, Illinois, Municipal Code 1982, ch. 36, sec. 36 — 48.

The city concedes that the term “speculating” generally refers to the sale of a ticket at a price above that charged by management. However, the city maintains that section 36 — 48 proscribes two distinct kinds of conduct: (1) remaining at a baseball park having a ticket in one’s possession for the purpose of selling the ticket, and (2) offering a ticket for sale in front of, or near a baseball park, in an attempt at speculating in such ticket. The city reasons that the defendant therefore violated the first part of the ordinance by attempting to sell a ticket in his possession in front of the baseball park, regardless of price.

In construing municipal ordinances, the same rules that govern the construction of statutes are applied. (Village of Park Forest v. Wojciechowski (1963), 29 Ill. 2d 435, 437, 194 N.E.2d 346.) The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. (Sayles v. Thompson (1983), 99 Ill. 2d 122, 125, 457 N.E.2d 440.) Where the statutory language is clear and unambiguous, the statute must be given effect without resort to other aids for construction. (People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174.) But where the language is susceptible of differing interpretations, to ascertain the legislative intent it may be necessary to look beyond the express words and to consider the purpose to be served by the statute. (People v. Dugan (1984), 125 Ill. App. 3d 820, 826, 466 N.E.2d 687; Mack v. Seaman (1983), 113 Ill. App. 3d 151, 154, 446 N.E.2d 1217; DeWitt County Taxpayers’ Association v. County Board (1983), 112 Ill. App. 3d 332, 336, 445 N.E.2d 509.) Where more than one construction is apparent, the court will choose that interpretation which leads to a logical result, and will avoid an interpretation which would render any of the provisions superfluous, redundant, or absurd. (Board of Trustees v. Human Rights Com. (1981), 88 Ill. 2d 22, 28, 429 N.E.2d 1207; Budka v. Board of Public Safety Commissioners (1983), 120 Ill. App. 3d 348, 352-53, 458 N.E.2d 126.) Furthermore, penal statutes are to be strictly construed in favor of an accused and any ambiguity therein should be resolved in favor of the defendant. People v. Foster (1983), 99 Ill. 2d 48, 55, 457 N.E.2d 405.

Here, we cannot agree with the city’s proffered construction of the ordinance. Contrary to the city’s assertions, we believe the proper interpretation to be placed on section 36 — 48 is that persons intending to sell or offering to sell tickets in their possession at, or near any amusement park, are prohibited from selling those tickets at a price greater than their face value. If we accepted the city’s construction, the entire latter part of the ordinance would be superfluous, since the ordinance could then be violated either by offering a ticket for sale at any price, or by offering a ticket for sale at a premium. In our view, this interpretation would produce a result not intended by the city council.

Therefore, since the evidence established that defendant offered the ticket for sale at or below its face value, his conduct did not fall within the purview of the ordinance. Consequently, we need not address the issue of the constitutionality of the ordinance.

Accordingly, the judgment of the circuit court of Cook County is reversed.

JOHNSON and ROMITI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    JASON HARTIGAN, a Minor, by his Father and Next Friend, Dennis Hartigan, Plaintiff-Appellee, v. RICHARD BEERY et al., Defendants and Third-Party Plaintiffs and Counterplaintiffs-Appellants (Karen Hartigan, Third-Party Defendant-Appellee; Dennis Hartigan, Counterdefendant-Appellee).
    First District (5th Division)
    Nos. 84—0546, 84—0701 cons.
    Opinion filed October 19, 1984.
    Law Offices of William E. Phillips, of Chicago (Michael F. Healy, of counsel), for appellants.

      Robert C. Collins, Jr., of Law Offices of Darryl R. Lem, of Calumet City, for appellee Karen Hartigan.
    Morris Haas, of Dannen, Crane, Heyman & Haas, of Chicago, for appellee Dennis Hartigan.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from summary judgments against Richard and Peggy Beery (the Beerys) on their counterclaim against Dennis Hartigan and their third-party complaint against Karen Hartigan. The propriety of the summary judgments is the sole issue presented on appeal.

The Beerys were barbecuing in their back yard when the Hartigans, accompanied by their son Jason, walked across the street to the front of the Beery home. While the four adults talked in front of the house, Jason went to play with the other children in the Beerys’ back yard, where he cut his hand on a knife which was on top of the barbecue grill.

Dennis Hartigan — Jason’s father — brought a personal injury action on his behalf against the Beerys, who then filed a counterclaim against Dennis Hartigan and a third-party complaint against Karen Hartigan— Jason’s mother — seeking contribution for any part of Jason’s injury which was caused by their negligent supervision. Both of the Hartigans moved for summary judgment based on the parent-child immunity doctrine, and this appeal followed the grant of those motions.

Opinion

It is contended by the Beerys, on appeal, that while the parent-child immunity doctrine immunizes parents from a direct suit for their child’s injuries, it does not bar a defendant sued by a child from obtaining contribution where negligent supervision of the parents was a contributing cause of the child’s injuries.

Initially, we note that contribution among joint tortfeasors was adopted by the Illinois Supreme Court in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, cert. denied sub nom. Hinckley Plastic, Inc. v. Reed-Prentice Division Package Machinery Co. (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849, and later codified in the Illinois Contribution among Joint Tortfeasors Act, which provides:

“[Wjhere 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.” Ill. Rev. Stat. 1983, ch. 70, par. 302(a).

This court has recently noted that Illinois courts, when balancing the right of contribution with a conflicting immunity, have generally found that the law of contribution must prevail. (Moon v. Thompson (1984), 127 Ill. App. 3d 657.) In Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236, it was held that interspousal tort immunity did not constitute a bar to a third-party action for contribution. The Wirth court reasoned that allowing common law doctrines to constitute loopholes in the contribution scheme would detract from the progress made by the Illinois courts in the equitable apportionment of fault. The court also noted that the legislative history of the Contribution Act indicated that the right of contribution was to take precedence over common law immunities. In Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382, the court came to the same conclusion when it balanced the policy considerations underlying contribution with the employers’ immunity from direct actions provided for in the Workers’ Compensation Act.

Illinois courts have specifically addressed the conflict between an immunity and the right to contribution in the context of the parent-child immunity. Thus, in Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 435 N.E.2d 221, where defendant sought contribution from the minor plaintiff’s father for his alleged negligence in driving his automobile, the court, finding no public policy considerations which would compel a different result than that reached in Wirth, held that the parent-child immunity doctrine did not bar a third-party contribution action.

The issue of negligent supervision as a basis for contribution from a minor’s parents was recently addressed in Moon v. Thompson (1984), 127 Ill. App. 3d 657. There, the minor plaintiff, while riding his bicycle, was struck by an automobile driven by defendant, who sought contribution from the minor’s parents on allegations that they were negligent in fulfilling a statutory duty to instruct their child in regard to the laws pertaining to the operation of his bicycle. The parents argued that parental supervision is “a personal and private aspect of the family unit which falls squarely within the confines of the parental tort immunity doctrine” and that, in the context of a contribution action based on negligent supervision, “a parent’s authority, discretion and control in rearing his child should prevail over any conflicting provisions of the Contribution Act.” (Moon v. Thompson (1984), 127 Ill. App. 3d 657, 660.) The court, stating that the discretion and control of the parents was already circumscribed by the legislature’s imposition of a specific statutory duty to oversee their child’s actions with respect to the operation of a bicycle (Ill. Rev. Stat. 1977, ch. 951/2, par. 11— 1501(b)), followed the reasoning of Larson in holding that the parent-child immunity did not bar the contribution action.

The present case, however, differing from Doyle, Wirth, Larson, and Moon, concerns a pure case of alleged negligent supervision by a parent, i.e., one not involving a statutory violation. Thus, since the doctrine of parent-child immunity in tort actions is a “court-formulated rule which is not based on an absence of duty but upon immunity from suit” (Johnson v. Myers (1972), 2 Ill. App. 3d 844, 845, 277 N.E.2d 778-79), we must determine whether such a pure negligent supervision case involves additional policy considerations which would compel us to deny third parties the right to contribution.

In this regard, we note that our supreme court has stated that it is particularly the province of the courts, who created the doctrine of parental immunity, “to interpret and modify that doctrine to correspond with prevalent considerations of public policy and social needs.” (Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 619, 131 N.E.2d 525, 531.) Here, the parent-child immunity doctrine which, as the Moon court recently noted, is a doctrine which has steadily been eroded by the Illinois courts, is pitted against the strong Illinois policy of equitable apportionment of fault, and it is our belief that the legislative history of the contribution statute indicates that the right of contribution must prevail over any parent-child immunity. It has been stated that “[the right of contribution] is not a derivative right and thus is not barred by any common law or statutory immunity which would preclude the prime claimant from pursuing an action directly against the party from whom contribution is sought.” (Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173, 193 (1980), quoting legislative history behind Senate Bill 308, published by the Chicago Bar Association’s Civil Practice Committee, at 2.) We think this conclusion finds support in the language used by our supreme court in its interpretation of the contribution statute in Doyle v. Rhodes, where it is stated that “the intent of the contribution statute was to reach anyone who is culpable regardless of whether they have been immunized from a direct tort action by some special defense or privilege.” Doyle v. Rhodes (1984), 101 Ill. 2d 1, 9, 461 N.E.2d 382, 386.

Balanced against such a clear indication of legislative intent and the strong underlying policy of equitable apportionment of fault, we do not believe that the parental need for discretion in supervising and disciplining their children should prevail over a third party’s right to contribution. The Illinois case upon which the parental immunity doctrine is based states that it is founded upon a public policy affecting family government and assures that the child shall not contest the parent’s right to govern the child. (Foley v. Foley (1895), 61 Ill. App. 577.) Solely intrafamilial disputes, however, will not be affected by our decision in this case and, since the supreme court has stated that “[a]ny justification for the rule of parental immunity can be found only in a reluctance to create litigation and strife between members of the family unit” (emphasis added) (Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 619, 131 N.E.2d 525, 531), we cannot justify application of the immunity doctrine to bar actions by parties outside the family unit. The use of the parent-child immunity to insulate the parents from a contribution action is simply not consistent with our present system of equitable apportionment of fault. We therefore find that the right of the Beerys here to contribution from the Hartigans based on negligent supervision of their child is not barred by the parent-child immunity.

We are aware of the cases in other jurisdictions cited by the Hartigans which have addressed this issue and of the disparate results reached by those courts, ranging from denial of a third-party right to contribution (Holodook v. Spencer (1974), 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338), to abrogation of the entire parent-child immunity (Gibson v. Gibson (1971), 3 Cal. 3d 914, 479 P.2d 648, 92 Cal. Rptr. 288). We note that in Holodook, which was relied upon as persuasive support for the similar finding in the third case cited by the Hartigans, Schneider v. Coe (Del. 1979), 405 A.2d 682, the court partially based its decision on its conclusion that the allowance of a counterclaim or third-party complaint against a parent for negligent supervision of his child would be contrary to the legislative policy expressed in its contribution statute. Furthermore, although these cases discuss the arguments raised by the briefs of the parties in the present case, we find nothing so persuasive that we will ignore the Illinois contribution statute and the legislative intent here to have the right of contribution prevail over common law immunities.

For the reasons stated above, the trial court’s order dismissing the Beerys’ counterclaim and third-party complaint is reversed, and this case is remanded for further proceedings.

Reversed and remanded.

MEJDA, P.J., and PINCHAM, J., concur.


author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES POLACHEK, Defendant-Appellant.
    First District (3rd Division)
    No. 83—1183
    Opinion filed October 24, 1984.

      James J. Doherty, Public Defender, of Chicago (John Lanahan, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Donna B. More, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

In 1975 the defendant was charged by indictment with attempted murder and aggravated battery. (Ill. Rev. Stat. 1975, ch. 38, pars. 8— 4, 12 — 4(a), 12 — 4(b)(1).) Subsequently, defendant was found unfit to stand trial and, consequently, was held by the Illinois Department of Mental Health and Developmental Disabilities (hereinafter DMHDD) as a mentally unfit criminal defendant awaiting trial until 1983. On April 13, 1983, the criminal charges against defendant were stricken with leave to reinstate. However, the trial court then remanded defendant to the custody of DMHDD pursuant to section 104 — 25(g)(2) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 25(g)(2)). Defendant appeals, contending that the continuing criminal jurisdiction over him by the criminal court under section 104 — 25(g)(2) violates the equal protection and due process clauses of the Federal and State constitutions.

On August 7, 1975, the trial court found defendant unfit to stand trial and, pursuant to section 5 — 2—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—2), remanded him to the custody of the DMHDD for treatment. Pursuant to that provision, defendant’s mental condition was reviewed on a regular basis throughout the remainder of the decade and, after such examinations, it was determined that defendant continued to be unfit for trial. During this time, defendant remained in the custody of the DMHDD.

On March 10, 1981, defendant filed a petition for a discharge hearing pursuant to section 104 — 25 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 25.) The hearing on that -petition was held on March 31, 1981, and at that hearing the following testimony was introduced. John Agresto, one of the victims, testified that he observed defendant in front of his mother’s residence on May 24, 1975. At that time defendant was dressed in a long overcoat, even though the weather was hot, and was holding his stomach and mumbling something about being hungry. The victim then went into his car to get several dollars for defendant. Suddenly, defendant pulled a knife from his overcoat and stabbed the victim in the chest. As a result of this attack, the victim was hospitalized for 21k weeks and missed over three months of work. It was stipulated by the parties that Chicago police officers arrested defendant later that same evening. At that time, defendant warned the officers that they would have to kill him in order to take him into custody. After he was subdued, the police recovered a 12-inch butcher knife from defendant. It was also stipulated that if the other victim, William Fasnacht, were called to testify, he would state that on May 24, 1975, he observed defendant at 4707 North Damen Avenue in Chicago. At that time defendant asked him for money to buy beer. When this victim refused, defendant produced a knife and stabbed him in the shoulder. After hearing this testimony, the trial court found that the State had met its burden of proof on the two attempted murder counts. However, the court decided that defendant was still unfit for trial and remanded him to the DMHDD for two years of extended treatment pursuant to section 104 — 25(d)(1) of the Code of Criminal Procedure of 1963.

After the two years of extended treatment, defendant filed a petition for discharge on April 13, 1983. Defendant contended that he could no longer be held as an unfit defendant, and accordingly, the criminal charges against him had to be dismissed. At the hearing on that petition, the trial court dismissed the criminal charges against defendant with leave to reinstate.

After the dismissal, further proceedings were held to determine if defendant was subject to involuntary admission under the Mental Health and Developmental Disabilities Code. (Ill. Rev. Stat. 1983, ch. 91V2, par. 1 — 100 et seq.) At those proceedings, Dr. Kaplan, a specialist in forensic psychiatry, testified that after he interviewed defendant, he came to the following conclusions:

“In my opinion he’s subject to involuntary admission. I consider him a danger to other people. I also consider him unable to take care of himself. He’s acutely psychotic, delusional, actively delusional. Actively hallucinating and his thinking is very confused. He was agitated and threatening.”

After hearing Dr. Kaplan’s testimony and observing defendant’s behavior in court, the trial court determined that defendant was hallucinating most of the time and acted aggressively toward others. The trial court then ordered that defendant be involuntarily committed. Subsequently, the court remanded defendant to DMHDD pursuant to section 104 — 25(g)(2) of the Code of Criminal Procedure of 1963.

That section states as follows:

“(g) At the expiration of an extended period of treatment ordered pursuant to this Section.
* * *
(2) If the defendant continues to be unfit to stand trial, the court shall determine whether he or she is subject to involuntary admission under the Mental Health and Developmental Disabilities Code or constitutes a serious threat to the public safety. If so found, the defendant shall be remanded to the Department of Mental Health and Developmental Disabilities or to the Department of Rehabilitation Services for further treatment and shall be treated in the same manner as a civilly committed patient for all purposes, except that the original court having jurisdiction over the defendant shall be required to approve any conditional release or discharge of the defendant, for the period of commitment equal to the maximum sentence to which the defendant would have been subject had he or she been convicted in a criminal proceeding.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 38, par. 104 — 25(g)(2).

Under the aforesaid provision, a defendant who is still unfit for trial at the conclusion of his extended treatment and who has not demonstrated his innocence of the criminal charges at the section 104 — 25 discharge hearing can be civilly committed to DMHDD. The distinction between an individual who has been civilly committed pursuant to section 1 — 119 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1983, ch. 91V2, par. 1 — 119) and a person committed pursuant to the Code of Criminal Procedure of 1963 is that the latter individual is subject to the criminal jurisdiction of the court for a period equal to the maximum sentence to which the individual would have been subject had he or she been convicted in a criminal proceeding.

Defendant contends that this continuing jurisdiction of the criminal court violates the equal protection and due process clauses of the Federal and Illinois constitutions.

In determining whether a statutory classification such as section 104 — 25(g)(2) violates the equal protection clause, a court must begin with the presumption that the classification is valid and must impose the burden of showing invalidity on the party challenging the classification. (People v. McCabe (1971), 49 Ill. 2d 338, 340, 275 N.E.2d 407.) A classification must be reasonable, not arbitrary; it must be grounded upon some difference having a fair and substantial relationship to the object of the legislation so that all persons similarly situated are treated alike. (Reed v. Reed (1971), 404 U.S. 71, 75-76, 30 L. Ed. 2d 225, 229, 92 S. Ct. 251, 254.) The equal protection clause does not deny the State the right to treat different classes of persons in different ways; rather, the clause requires equality between groups of persons similarly situated and does not require equality for dissimilar conduct. See People v. La Pointe (1981), 88 Ill. 2d 482, 500, 431 N.E.2d 344.

Moreover, it is well established that a statute will be deemed constitutional against a challenge based on the due process clause if the law is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare. See People v. Bradley (1980), 79 Ill. 2d 410, 417, 403 N.E.2d 1029.

Defendant, citing Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845, contends that section 104 — 25(g)(2) of the Code of Criminal Procedure of 1963 violates the equal protection clauses of the Federal and State constitutions because persons committed under that section are subject to the court’s continuing criminal jurisdiction, whereas individuals civilly committed are not. Defendant also points out that he is no longer confined as a mentally unfit defendant awaiting trial in a pending criminal case.

In Jackson, the United States Supreme Court considered the constitutionality of an Indiana statute which provided that defendants found unfit to stand trial were to be held in a mental health facility indefinitely until the State Superintendent of Mental Health decided that they had regained their fitness. Under that statutory scheme, discharge was discretionary and would not occur until in the opinion of the Department the defendant became sane. In addition, the commitment standards where a defendant was found unfit to stand trial, were more lenient than those standards used to evaluate the feeble-minded or those qualifying for civil commitment. Also, the release standards for an unfit defendant were more stringent than those for the other two categories. The United States Supreme Court held that the more lenient commitment standards and the more stringent release standards violated the equal protection clause of the fourteenth amendment. (406 U.S. 715, 723-30, 32 L. Ed. 2d 435, 442-46, 92 S. Ct. 1845, 1850-54.) The court stated that the pending criminal charges did not provide greater justification for different treatment, and therefore, such classification was improper. The court further held that, since the defendant was unlikely to be adjudged sane pursuant to the Indiana statutory standards, the indefinite commitment “until sane” violated the due process clause of the fourteenth amendment.

We are of the opinion that the holding in Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845, is not applicable to the present statute since there is a rational basis for allowing the continuing jurisdiction of the criminal court in certain instances. The difference, as opposed to a civil commitment, is that a primary reason for the present defendant’s commitment is the criminal acts he perpetrated against the victims, as outlined above. We are not holding that defendant was found guilty of attempted murder pursuant to the section 104 — 25 discharge hearing. We merely point out that evidence of those offenses was a major part of the basis for the court’s decision to remand defendant to the DMHDD for two years of extended treatment. It is well established that a determination of guilt is not made in a discharge hearing. (See People v. Rink (1983), 97 Ill. 2d 533, 543, 455 N.E.2d 64.) The discharge hearing is purely civil in nature and is confined to inquiry as to defendant’s continuing illness and whether or not he is a danger to himself and others. However, since the evidence, which supports the trial court’s finding that defendant is indeed dangerous to others, is direct evidence of a criminal offense, the continuing jurisdiction of the criminal court, which is imposed by section 104 — 25(g)(2), is not violative of the equal protection clauses of the Federal and Illinois constitutions. Moreover, we believe that the standards for commitment pursuant to section 104 — 25(g)(2) are exactly the same as the Mental Health and Developmental Disabilities Code’s standards for commitment. The only difference is that the court exercising criminal jurisdiction has the final say in evaluating a defendant pursuant to those standards where it decides to dismiss the criminal charges against that defendant at the expiration of the extended period of treatment.

We also do not believe that this section is in violation of the due process clause of the Federal Constitution. The court retains criminal jurisdiction for a period of time equal to the maximum sentence to which the defendant would have been subject had he been convicted in a criminal proceeding. Since the length of time of the court’s jurisdiction is determined and reasonably related to the conduct complained of, we do not see any constitutional problems. In addition, during such time period defendant will be examined periodically in order to determine whether he is no longer subject to involuntary admission. The Indiana statute in Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845, provided for indefinite confinement until the defendant was adjudged to be sane. It is evident therefore that the time limitation contained in section 104— 25(g)(2) of the Code of Criminal Procedure of 1963 is completely different from the Indiana commitment provision.

Defendant also contends that section 104 — 25(g)(2) of the Code of Criminal Procedure of 1963 undermines the objective of a definite period of commitment for unfit defendants and is consequently unconstitutional under article I, section 2, of the Illinois Constitution. Defendant maintains that where, as in the present case, a defendant has exceeded the extended treatment period of section 104 — 25(d)(1), the legislature has determined that such defendant will not be triable within the foreseeable future, and therefore, should be civilly committed. Defendant argues that the continuing criminal jurisdiction goes counter to this legislative policy, and accordingly violates due process of law. Defendant further maintains that a criminal court should not be allowed to veto a possible determination by a court exercising civil jurisdiction that he could be released pursuant to the standards of the Mental Health and Developmental Disabilities Code. Defendant argues that this fact deprives him of the rights he would have had if he were governed by the release procedures of the Mental Health and Developmental Disabilities Code.

As we stated above, the same standards for commitment will be used by the court exercising its criminal jurisdiction, pursuant to section 104 — 25(g)(2), as would be used by a court exercising civil jurisdiction in determining whether or not an individual is subject to involuntary admission pursuant to the Mental Health and Developmental Disabilities Code. In addition, as stated before, criminal jurisdiction is limited to a time period equal to the maximum sentence to which defendant would have been subject had he been convicted in a criminal proceeding. After the time period equal to the maximum sentence has expired, criminal jurisdiction lapses. Consequently, since the legislature has placed definite time limits on the criminal court’s jurisdiction under section 104 — 25(g)(2) of the Code of Criminal Procedure of 1963, we must conclude that this section does not violate due process of law under the Illinois Constitution.

The judgment of the circuit court of Cook County is therefore affirmed.

Affirmed.

McNAMARA and WHITE, JJ., concur.


author: PRESIDING JUSTICE LINN

text:
    NDK CORPORATION, Plaintiff-Appellant, v. LOCAL 1550 OF THE UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—2747
    Opinion filed October 18, 1984.
    Michael F. Harvey, of Wheaton, for appellant.
    Robert Karmel and Jonathan D. Karmel, both of Karmel & Rosenfeld, of Chicago, for appellees.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Plaintiff employer brought an action in State court to rescind a collective bargaining agreement entered into with defendant Union. The complaint alleged that the parties had engaged in lack of good faith bargaining in negotiating the contract, conduct prohibited as an unfair labor practice under the National Labor Relations Act. 29 U.S.C. sec. 158 (1982).

Defendant filed a motion to dismiss on the ground that the State court lacked jurisdiction over an action that involved unfair labor practices within the exclusive jurisdiction of the National Labor Relations Board. The trial court granted defendant’s motion.

We affirm the decision of the trial court.

Facts

Plaintiff, NDK Corporation (NDK), a supermarket engaged in the selling of food and food products, filed a complaint seeking rescission of a collective bargaining agreement entered into in May 1981 with defendant, Local 1550 of the United Food & Commercial Workers International Union (Union). NDK claims that the contract was procured by fraud arising out of certain oral misrepresentations made by defendant Union. These misrepresentations allegedly arose in the course of what plaintiff plainly describes as “lack of good faith bargaining,” in which plaintiff admittedly and defendant allegedly engaged prior to signing the collective bargaining agreement.

NDK asserts that the parties orally agreed, as was their custom, neither to enforce nor adhere to the terms and conditions of the written contract. In the spring of 1982, in apparent contravention of this illicit pact, the Union began seeking strict compliance with the written collective bargaining agreement. Plaintiff, in response, halted compliance with the agreement and in August 1982, moved for an injunction and rescission of the contract in the United States District Court for the Northern District of Illinois, asserting jurisdiction under section 301 of the Labor Management Relations Act (29 U.S.C. sec. 185 (1982)) and alleging that the contract, induced by the illicit agreement not to comply therewith, was fraudulently procured. The district court, finding that the suit did not arise under section 301 of the Act, dismissed the complaint for lack of subject matter jurisdiction. That decision was affirmed by the Seventh Circuit Court of Appeals on June 17, 1983.

Subsequent to the district court action, the Union filed charges against NDK with the National Labor Relations Board (NLRB). Based thereon, the NLRB issued complaints against plaintiff on October 29 and December 29, 1982, and February 11, 1983, alleging that NDK committed certain unfair labor practices by withdrawing recognition from the Union and repudiating its obligations under the collective bargaining agreement. An order consolidating these complaints issued on February 25, 1983.

In January 1983, after dismissal by the Federal court and while the action before the NLRB was pending, plaintiff filed this complaint in the circuit court of Cook County seeking rescission of the written contract, an injunction and a declaratory judgment. Defendant moved to dismiss the complaint, alleging that the jurisdiction of the State court was preempted by the action then pending before the NLRB, which had exclusive jurisdiction over the regulated conduct. The trial court denied defendant’s motion.

On August 22, 1983, defendant filed a petition for reconsideration of its motion to dismiss the complaint. In its motion, defendant alleged that on July 11, 1983, a hearing before an administrative law judge had commenced on the complaints issued against NDK and that in that proceeding, contrary to the representation NDK had made to the trial court, plaintiff had been given full opportunity to litigate its affirmative defense of fraud.

In an order issued November 16, 1983, the trial court granted defendant’s motion for reconsideration and dismissed the complaint as to all defendants with prejudice, finding that the National Labor Relations Board had exclusive jurisdiction of the matter. It is from this order that plaintiff now appeals.

Opinion

The sole issue on appeal is whether the circuit court of Cook County has subject matter jurisdiction over a complaint brought by an employer, seeking rescission of a collective bargaining agreement on the basis of fraudulent misrepresentations, wherein the conduct complained of arguably constitutes an unfair labor practice under section 8 (29 U.S.C. sec. 158 (1982)) of the Labor Management Relations Act (Act). We believe that under these circumstances, the jurisdiction of the circuit court is preempted by the exclusive primary jurisdiction vested in the National Labor Relations Board.

The preemption doctrine and its effect on the jurisdiction of a State court to hear certain suits involving conduct regulated by the NLRB is predicated on the theory that a single national labor policy is desirable and that such policy can best be administered and applied by the National Labor Relations Board. (Alexander v. Standard Oil Co. (1977), 53 Ill. App. 3d 690, 368 N.E.2d 1010.) In creating the NLRB, Congress confided primary interpretation and application of its rules to a specific and specially constituted tribunal and prescribed particular procedures for investigation, complaint and notice, and hearing and decision. Congress thereby evinced its intent that the administration of these specially designed procedures be centralized to obtain uniform application of its substantive rules as well as to avoid the conflicts likely to result from multifarious local procedures and attitudes towards labor controversies. Motor Coach Employees v. Lockridge (1971), 403 U.S. 274, 286, 29 L. Ed. 2d 473, 483, 91 S. Ct. 1909, 1918; Gust G. Larson & Sons v. Radio & T.V. Broadcast Engineers (1965), 66 Ill. App. 2d 146, 213 N.E.2d 100.

Section 7 of the Labor Management Relations Act (29 U.S.C. sec. 157 (1982)) sets forth certain conduct of employees that is specifically protected. Correspondingly, section 8 of the Act (29 U.S.C. sec. 158 (1982)) defines certain acts which constitute unfair labor practices and are specifically prohibited. It is clear that when an activity is protected by section 7 of the Act or prohibited as an unfair labor practice by section 8 of the Act, State court jurisdiction is preempted. (May Department Stores v. Teamsters Union Local No. 743 (1976), 64 Ill. 2d 153, 355 N.E.2d 7.) Moreover, when an activity is even arguably subject to sections 7 or 8 of the Act, the States must defer to the exclusive primary jurisdiction of the National Labor Relations Board. (San Diego Building Trades Council, Local 2020 v. Garmon (1959), 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773.) This doctrine of preemption has come to be known as the Garmon rule.

Section 8 (29 U.S.C. sec. 158(d) (1982)) of the Act imposes a duty to bargain in good faith and makes violation of that duty an unfair labor practice:

«*** £0 bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached ***.”

It is well settled that the obligation to bargain in good faith imposed by section 8(d) of the Act includes the obligation to execute a written contract embodying an oral collective bargaining agreement reached between an employer and its employees’ bargaining representative and that the failure to execute such a contract violates sections 8(a)(5) and (1) of the Act. (NLRB v. Electra-Food Machinery, Inc. (9th Cir. 1980), 621 F.2d 956, citing NLRB v. Strong (1969), 393 U.S. 357, 21 L. Ed. 2d 546, 89 S. Ct. 541.) The mere pretense at negotiation does not fulfill the duty to bargain in good faith. (NLRB v. Shannon (9th Cir. 1953), 208 F.2d 545.) Plaintiff, by his own admission, has engaged in the very conduct that violates section 8 of the Act.

Plaintiff seeks its “day in court” to try its allegation that defendant Union procured the collective bargaining agreement by fraud. The complained-of fraud stems from an oral agreement allegedly entered into between plaintiff and defendant, prior to the execution of and not embodied in the written contract, in which it was agreed that the terms and conditions of the collective bargaining agreement would never be enforced or carried out by either party. Plaintiff, in its complaint, plainly admits its failure to bargain in good faith, stating at paragraph 8 of count I,

“8. That at all times herein-mentioned regarding [the collective bargaining agreement], plaintiff and defendant did not bargain in good faith, or bargain at all, regarding the wages, hours and other conditions of employment of plaintiff’s employees * * * M

Plaintiff goes on to state that “notwithstanding the lack of good faith bargaining” plaintiff and defendant signed the contract and that plaintiff relied on the oral agreement not to enforce it. In addition to admitting that it failed to bargain in good faith, plaintiff admits that it executed a written contract that did not embody the prior oral agreement. This conduct is “arguably” an unfair labor practice. Plaintiff’s characterization of this conduct as tortious, i.e., fraud, does not alter the fact that it also constitutes an unfair labor practice. What plaintiff fails to understand is that it is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern in determining whether a complaint is subject to the exclusive jurisdiction of the NLRB. 51A C.J.S. Labor Relations sec. 524 (1967, Supp. 1983).

Similarly, plaintiff cannot mask conduct that arguably constitutes an unfair labor practice subject to the doctrine of preemption by seeking a State law remedy. State law remedies for torts, such as that plaintiff seeks, are generally preempted by Federal law, since most claims are based on conduct capable of being characterized as unfair labor practices under section 8 of the Labor Management Relations Act. (Park Electric Co. v. Electrical Workers Local 701 (N.D. Ill. 1982), 540 F. Supp. 779.) It would therefore appear that both plaintiff’s claim and the remedy it seeks are subject to the doctrine of preemption.

While it is true that the Supreme Court has acknowledged a few limited exceptions to the general rule of preemption (San Diego Building Trades Council v. Garmon (1959), 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773), plaintiff has failed to show how the instant action fits within any of these exceptions.

One such exception is where the regulated conduct touches interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, the States are not necessarily deprived of jurisdiction. (San Diego Building Trades Council v. Garmon (1959), 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773.) Examples of such conduct include acts of physical violence or concerted conduct imminently threatening violence. (Park Electric Co. v. Electrical Workers Local 701 (N.D. Ill. 1982), 540 F. Supp. 779.) The instant action, alleging fraud in the procurement of a collective bargaining agreement, does not involve the type of conduct necessary to bring it within this exception.

A second exception to the Garmon rule of preemption has been found where the activity regulated is merely a peripheral concern of the Act. (May Department Stores v. Teamsters Union Local No. 743 (1976), 64 Ill. 2d 153, 355 N.E.2d 7.) Because the instant action arises from conduct that arguably constitutes unfair labor practices, and the prevention of unfair labor practices is a major focus and objective of the Act, the present case does not fall within this second exception.

The third exception to the Garmon rule and the one upon which plaintiff appears to rely is that set forth by the court in Smith v. Evening News Association (1962), 371 U.S. 195, 9 L. Ed. 2d 246, 83 S. Ct. 267. Plaintiff cites Smith and its progeny for the proposition that a State court is not necessarily divested of its jurisdiction over an action merely because the activity involved arguably constitutes an unfair labor practice prohibited under section 8 of the Act. (29 U.S.C. sec. 158 (1982).) While this overgeneralization of the Smith holding is correct as far as it goes, it does not go far enough. Plaintiff fails to acknowledge the crucial factor in Smith that serves as the basis for the exception, distinguishing it from and rendering it inapposite to the case at bar.

In Smith, an employee brought an action in State court against his employer, alleging that the employer had violated a clause in the collective bargaining agreement and seeking damages for breach of contract. The court found that the conduct upon which the breach was based concededly would constitute an unfair labor practice. Despite this finding, the court, following Local 174, Teamsters v. Lucas Flour Co. (1961), 369 U.S. 95, 7 L. Ed. 2d 593, 82 S. Ct. 571, and Dowd Box Co. v. Courtney (1961), 368 U.S. 502, 7 L. Ed. 2d 483, 82 S. Ct. 519, expressly refused to apply Garmon, holding instead that

“[t]he authority of the Board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by sec. 301, but it is not exclusive and does not destroy the jurisdiction of the courts in suits under sec. 301.” (Emphasis added.) Smith v. Evening News Association (1962), 371 U.S. 195, 197, 9 L. Ed. 2d 246, 249, 83 S. Ct. 267, 269.

Section 301 of the Labor Management Relations Act provides in pertinent part:

“(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organization, may be brought in any district court of the United States having jurisdiction of the parties ***.” 29 U.S.C. sec. 185(a) (1982).)

Suits arising under section 301 may be brought in either State or Federal court. Dowd Box Co. v. Courtney (1961), 368 U.S. 502, 7 L. Ed. 2d 483, 82 S. Ct. 519.

The court in Smith v. Evening News Association (1962), 371 U.S. 195, 9 L. Ed. 2d 246, 83 S. Ct. 267, concluded that the petitioner’s action arose under section 301 and was therefore not subject to the preemption doctrine. As defendant correctly points out, however, the clear and unequivocal holding in Smith is that Federal and State courts are not necessarily divested of jurisdiction over suits that arguably or concededly involve unfair labor practices where such suits arise under section 301. Thus, in Humphrey v. Moore (1964), 375 U.S. 335, 11 L. Ed. 2d 370, 84 S. Ct. 363, also relied on by plaintiff, the action alleging breach of a collective bargaining agreement, arising under section 301, was properly brought in State court.

Unlike Smith v. Evening News (1962), 371 U.S. 195, 9 L. Ed. 2d 246, 83 S. Ct. 267, Humphrey v. Moore (1964), 375 U.S. 335, 11 L. Ed. 2d 370, 84 S. Ct. 363), Alexander v. Standard Oil Co. (1977), 53 Ill. App. 3d 690, 368 N.E.2d 1010, and the other cases upon which plaintiff relies, the instant action quite clearly does not arise under section 301 of the Labor Management Relations Act (29 U.S.C. sec. 185 (1982).) This suit alleges fraud arising out of an illicit oral agreement which was in no way embodied in the terms and conditions of the final, written collective bargaining contract. The Federal district court, in flatly rejecting section 301 as a basis of jurisdiction, explained its reasoning as follows:

“Applying these standards to this case, the court finds that jurisdiction does not exist under sec. 301. From its own language, it is clear that this complaint includes charges [of] unfair labor practices, since it alleges that the union did not bargain in good faith. Further, the union has always considered NDK’s position in this matter as conduct violating secs, (a)(1) and (5) of the Act, 29 U.S.C. secs. 158(a)(1) and (5), and the Board has issued a complaint and notice of hearing on the charges. Thus, if jurisdiction existed in this court, it would be one of the limited circumstances in which concurrent jurisdiction exists in the court and the Board, as discussed in Smith v. Evening News Ass’n, 371 U.S. 195 (1962). However, this complaint does not charge a violation of the Agreement nor does it seek a declaration of rights under a provision of the Agreement. It rather seeks a rescission of the Agreement, denying that any of the Agreement’s terms were actually agreed upon. Under these circumstances, the court cannot find that this is a ‘[sjuit for violation of [a] contract between an employer and a labor organization *** ’ sec. 301(a) of the Act, 29 U.S.C. sec. 185(a). Therefore, there is no jurisdiction over this complaint by this court.”

This same reasoning applies with equal force to the instant action. The fraud of which plaintiff complains arises from an oral pact not embodied in the agreement, not from the agreement itself.

Ironically, it is NDK that stresses that this action does not arise under section 301 of the Labor Management Relations Act. Indeed, plaintiff must take this position to make colorable its claim of State court jurisdiction and to distinguish this suit from the suit already brought in and dismissed from Federal court. However, in so doing, plaintiff necessarily renders inapplicable the very authority upon which it relies. Thus, while it is true that State courts exercise concurrent jurisdiction with Federal courts and the NLRB over actions arising under section 301 of the Labor Management Relations Act which involve the construction or enforcement of collective bargaining agreements in addition to what may constitute unfair labor practices, it is undisputed that the instant case is not such an action.

Because the aforementioned exceptions to the Garmon rule are inapplicable to the case at bar, we must conclude that plaintiff’s complaint is subject to the doctrine of preemption, falling within the exclusive jurisdiction of the National Labor Relations Board. The trial court was therefore correct in dismissing the complaint for lack of subject matter jurisdiction.

For all of the reasons mentioned above, we affirm the trial court’s decision.

Affirmed.

JOHNSON and ROMITI, JJ., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    W. R. GRACE & COMPANY, Plaintiff-Appellant and Cross-Appellee, v. BEKER INDUSTRIES, INC., Defendant-Appellee and Cross-Appellant.
    First District (2nd Division)
    No. 84—181
    Opinion filed October 23, 1984.
    Francis D. Morrissey, John W. Dondanville, and Marie A. Monahan, all of Baker & McKenzie, of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (C. Joseph Yast and Hugh C. Griffin, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

W. R. Grace & Company (Grace) sued Beker Industries, Inc. (Beker), in the circuit court of Cook County in 1983 for an alleged breach of an agreement entered into by the parties in 1979 as part of an arrangement settling prior litigation between them, also filed in the circuit court of Cook County. Five days before the present action commenced, Beker had filed a declaratory judgment action in Connecticut seeking a finding that Grace repudiated the agreement and that Beker is not liable for an alleged breach of the same agreement. Beker moved to dismiss the Cook County action, based upon section 2 — 619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 619(a)(3)). That motion was denied by Circuit Judge Lester D. Foreman. Thereafter, Beker filed a second motion to dismiss, per forum non conveniens, which was granted by Circuit Judge Philip A. Fleischman. Grace appeals from the grant of the forum non conveniens motion, and Beker cross-appeals from the denial of the section 2 — 619 motion.

The issues raised on appeal include whether: (1) the 1979 Cook County agreement is enforceable in Cook County; (2) the forum non conveniens dismissal was in error; and, on cross-appeal, (3) the circuit court erred in denying the section 2 — 619 motion to dismiss.

Grace is a Connecticut corporation having executive offices in New York, New York, and its principal place of business outside of Illinois. Beker is a Delaware corporation having its principal place of business in Greenwich, Connecticut, and commercial processing facilities in Marseilles, Illinois, and Taft, Louisiana.

In 1978, Grace’s lawsuit against Beker in the circuit court of Cook County alleged the breach of their antecedent phosphate rock supply contract. Beker’s motion in 1979 to dismiss that case on forum non conveniens grounds was denied. Also in the 1978 Illinois action, Beker filed a counterclaim against Grace. In 1979, the parties entered into a “stipulation of settlement” and executed a new phosphate rock supply agreement (Agreement) to settle the case. In the stipulation of settlement, Grace agreed to dismiss the 1978 case without costs and release Beker from all claims connected with the contract “in consideration of and upon the expressed representation that *** [Beker] will fully perform its obligations under the ‘Agreement’ ***.” In the same stipulation of settlement, Beker agreed to dismiss its counterclaim against Grace. The stipulation then provided for the entry of a consent judgment in the following terms:

“5. Beker Industries Corp. stipulates and agrees that in the event Beker Industries Corp. fails to pay for the minimum tonnage set forth in paragraph 2 above and such failure is not excused under the terms and conditions of the ‘Agreement,’ that separate and apart from any damages W. R. Grace & Co. may have for breach of the ‘Agreement,’ a consent judgment may be entered against Beker Industries Corp. for an amount equal to $1.67 for each ton of phosphate rock less than the 1,200,000 tons minimum under the ‘Agreement’ which it fails to pay for during the term of the ‘Agreement.’ ” (Emphasis added.)

The Agreement required Beker to purchase a minimum of 400,000 tons of phosphate rock per year for three years. The documents were filed together in the circuit court of Cook County. The circuit court entered its order of dismissal on October 19, 1979, in the following language:

“Pursuant to the stipulation of settlement between the Plaintiff, W. R. GRACE & COMPANY, and the Defendant, BEKER INDUSTRIES, INC., the terms of which are hereby noted by the court, and a copy of said agreement being attached to the dismissal order;
IT IS HEREBY ORDERED that, pursuant to the representations made in the stipulation of settlement, the above cause be and hereby is dismissed with prejudice and without costs.” (Emphasis added.)

In 1982, a dispute arose between the parties concerning performance of the Agreement and on January 6, 1983, Beker filed a complaint against Grace in the Connecticut superior court, seeking a declaration that it had fulfilled all its obligations thereunder. The thrust of Beker’s Connecticut complaint is that Grace demanded of Beker the renewal of an existing, but imminently expiring, letter of credit, or that Beker provide a new letter of credit or pay cash in advance. Beker claims that it was not obligated to provide such a letter, but had voluntarily done so in the past. On January 11, 1983, Grace filed the present case in the circuit court of Cook County seeking monetary damages against Beker for breach of the Agreement. Beker’s section 2 — 619(a)(3) motion to dismiss because of the pending Connecticut claim was denied by Judge Foreman, who found that Grace’s 1983 Illinois lawsuit was but a continuation of the original 1978 action. In the same order, Judge Foreman granted Grace leave to file its motion for judgment on the pleadings, based upon the provisions of the 1979 stipulation for a consent judgment, and gave Beker 90 days within which to file a response to the motion. Beker filed its answer to Grace’s complaint, together with affirmative defenses, on April 7, 1983. On June 14, 1983, Beker filed its memorandum in opposition to Grace’s motion for judgment on the pleadings.

While the motion for judgment on the pleadings was still pending before Judge Foreman, Beker filed its motion to dismiss on forum non conveniens grounds before Judge Fleischman. To the latter motion was attached the affidavit of Beker’s executive vice president, who stated there was no connection between Grace’s claim and Illinois. Grace responded. Beker’s motion was thereafter granted by Judge Fleischman. The appeals by Grace and Beker followed.

I

Grace maintains that: the stipulation of settlement is really a consent judgment and is therefore enforceable by the circuit court of Cook County which originally entered it; the Agreement did not involve a judicial determination of the parties’ rights but was the parties’ own determination of their rights; and the circuit court’s approval and recordation of the stipulation of settlement in the dismissal order explicitly indicates that it is a consent judgment, pointing to language which states that “[pjursuant to the stipulation of settlement between *** [pjlaintiff and *** [defendant, the terms of which are hereby noted by the court, and a copy of said agreement being attached to the dismissal order; ***.” Our supreme court has held in Bergman v. Rhodes (1929), 334 Ill. 137, 142, 165 N.E. 598:

“Parties who are competent to contract may agree to the rendition of a decree in respect to any right which may be the subject of litigation. When such a decree is entered it is a decree by consent. As a general rule, such a decree should show upon its face that it was entered by consent, (5 Ency. of PI. & Pr. 961,) but it has been held by this court that such a showing in the decree is not indispensable and that an agreement may be shown by other evidence which does not contradict the record but is consistent with it. (Krieger v. Krieger, 221 Ill. 479; Armstrong v. Cooper, 11 id. 540.)”

To the same effect are Clark v. Standard Life & Accident Insurance Co. (1979), 68 Ill. App. 3d 977, 983, 386 N.E.2d 890, appeal denied (1979), 75 Ill. 2d 589; Pierce v. MacNeal Memorial Hospital Associa tion (1977), 46 Ill. App. 3d 42, 50, 360 N.E.2d 551; and Filosa v. Pecora (1974), 18 Ill. App. 3d 123, 127, 309 N.E.2d 356, appeal denied (1974), 56 Ill. 2d 582. In the present case, the stipulation of settlement and the judgment, which noted its terms and expressly stated that it was being entered pursuant thereto, make it clear that the judgment was entered upon the consent of the parties by reason of the settlement. Under the above-cited authorities, it must be deemed a consent judgment.

It is the policy of Illinois courts to encourage compromises and settlements of litigation, and to construe and enforce them in the courts in which they are entered. (People ex rel. Stead v. Spring Lake Drainage & Levee District (1912), 253 Ill. 479, 492, 97 N.E. 1042; Pierce v. MacNeal Memorial Hospital Association (1977), 46 Ill. App. 3d 42, 48; Dunaway v. Storm (1975), 30 Ill. App. 3d 880, 884-85, 334 N.E.2d 825.) That policy would be furthered by enforcement of the instant settlement in Illinois since the contract dispute has been litigated from its inception in the circuit court of Cook County; the parties ultimately compromised their differences and elected to submit the settlement and agreement for approval and filing with the Cook County circuit court; and the parties sought and secured dismissal of the contract action based upon that compromise in Illinois. To deny construction or enforcement of the Agreement, compromise and settlement in Illinois would encourage new and additional litigation, would discourage settlements, and would undermine the policy encouraging settlements.

In the present litigation, Grace alleges and Beker’s answer admits that as of December 31, 1982, Beker had commenced purchasing and Grace had commenced to sell phosphate rock under the terms of the Agreement. The thrust of Grace’s complaint is that Beker had purchased only about one-third of the full amount agreed to by the parties. It appears, therefore, that the Agreement which was attached to the 1979 dismissal order has been partially performed. In Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 424 N.E.2d 911, appeal denied (1981), 85 Ill. 2d 577, this court held that the circuit court was empowered to entertain enforcement proceedings after the dismissal of a lawsuit by entry of a consent decree under which the parties to the agreement contemplated further performance of certain acts and had partly performed them, but one of the parties declined to fulfill his performance as agreed.

In Comet, we adopted reasoning to the effect that a party seeking to litigate an agreement which had compromised a pending lawsuit cannot initiate in any court any action it may see fit, especially where that agreement has been partially performed, but that such litigation should be referred to the court in which the compromise was effected, citing Melnick v. Binenstock (1935), 318 Pa. 533, 536, 179 A. 77, 78, and Advanced Management Research, Inc. v. Emanuel (1970), 439 Pa. 385, 391-92, 266 A.2d 673, 676. (See also Aro Corp. v. Allied Witan Co. (6th Cir. 1976), 531 F.2d 1368; Kelly v. Greer (3d Cir. 1964), 334 F.2d 434; Nieminen v. Pitzer (1978), 281 Or. 53, 573 P.2d 1227; Wenneker v. Frager (Mo. App. 1969), 448 S.W.2d 932; Brown v. Brown (1951), 135 W. Va. 579, 64 S.E.2d 620.) As in Comet, we hold here that the circuit court of Cook County had the power to entertain Grace’s complaint to enforce the 1979 consent judgment which had compromised the earlier litigation, particularly since the Agreement had been in part performed by both parties. Beker cannot in good faith agree to a compromise and the entry of a consent judgment in the circuit court of Cook County and at the time time insist upon its enforcement in another jurisdiction.

II

We must next decide whether application of forum non conveniens principles require a different result in the present case. Among the factors to be considered in weighing the convenience of the parties and effective judicial administration in forum non conveniens motions are: relevant connections between the forum selected and the litigation involved; the location of witnesses and their amenability to compulsory process where necessary; the relative convenience of the parties; and plaintiff’s choice of forum. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 77, 457 N.E.2d 417.) Jurisdiction can be declined whenever it appears that another forum, in this instance Connecticut, can better serve the conveniences of the parties and the ends of justice. Adkins v. Rock Island & Pacific R.R. (1973), 54 Ill. 2d 511, 514, 301 N.E.2d 729.

In the present case, as illuminated by the history of this litigation in Illinois and the demonstrated willingness of the parties to pursue their claim and counterclaim in Illinois, as well as their utilization of Illinois courts toward their own objectives, it cannot be denied seriously that the factors mentioned favor Grace rather than Beker. Particularly is this true in view of the fact that the present pleadings filed in Illinois and Connecticut reveal that the controversy would be resolved essentially through documentary evidence, principally the Agreement. The affidavit submitted by Beker reveals little, if any, inconvenience to the parties; the partial performance of the Agreement took place either in Florida or Louisiana; invoices and payments for those shipments were at least in part received and paid for in Louisiana; and, although the persons involved in the negotiation or performance of the Agreement do not reside or have their place of business in Illinois, it is not shown that they reside or have their place of business in Connecticut, either. The affidavit also does not show what witnesses will actually be called to support Beker’s defense, nor where they live or office. There is no showing in the record that Connecticut would be a more convenient forum for both parties than Illinois. See e.g., Stone Container Corp. v. Industrial Risk Insurers (1980), 91 Ill. App. 3d 807, 414 N.E.2d 1227.

The stipulation of settlement was signed by Illinois attorneys acting for both Grace and Beker in Illinois. It is probable that they will also be witnesses for both sides. The appearance at trial of a party or a person who at the time of the trial is an officer, director or employee of the party may be required, as well as the production at trial of documents or other tangible things, with special provisions for nonresidents, including payment of reasonable expenses, as governed by Supreme Court Rule 237(b) (87 Ill. 2d R. 237(b)). No suggestion is made that compulsory process for witnesses other than parties, their employees or officers is required by any party.

The question of applicable law is not a determining factor in this case, since neither the law of Illinois nor of Connecticut applies by virtue of the fact that the Agreement stipulates that it shall be governed by the laws of the State of Florida. Application of the law of another forum is not alone dispositive of the issue. See Bedore v. McCulloch Oil Corp. (1982), 108 Ill. App. 3d 578, 582, 439 N.E.2d 114; Stone Container Corp. v. Industrial Risk Insurers, 91 Ill. App. 3d 807, 815-16.

Significant, too, is the fact that a motion to dismiss per forum non conveniens was filed by Beker in the earlier, compromised litigation, which was denied by Circuit Judge Nathan Engelstein on June 27, 1978. No change in circumstances of the parties relating to forum non conveniens principles has been shown by the parties which demonstrate that the circuit court’s 1979 denial of Beker’s forum non conveniens motion was an abuse of discretion. (Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill. 2d 73, 77-78; Fender v. St. Louis Southwestern Ry. (1971), 49 Ill. 2d 1, 4, 273 N.E.2d 353.) Indeed, Beker’s memorandum in support of the present motion asserts that the circumstances in each case are substantially identical. Once a court has exercised its discretion, that ruling should not be reversed by another court of coordinate jurisdiction unless there is a change of circumstances or additional facts which warrant such action, which are absent here. (See Balciunas v. Duff (1983), 94 Ill. 2d 176, 188, 446 N.E.2d 242; People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 257, 357 N.E.2d 534.) Review of the orders of one judge by another in the same case is not consistent with effective judicial administration. (People ex rel. Kelly, Ketting, Furth, Inc. v. Epstein (1974), 61 Ill. 2d 229, 231, 335 N.E.2d 430.) Although filed in 1983 with a new docket number, an examination of the pleadings,.motions and briefs, as well as the ruling of the court on the section 2 — 619 motion, that the present case was but a continuation of the 1978 litigation, should have made clear that the same case was before the court for consideration of construction and enforcement of the consent judgment.

The factors considered do not balance strongly in favor of Beker. Although the choice of forum by Grace as a foreign plaintiff is entitled to less deference than if it were a local plaintiff (Wieser v. Missouri Pacific R.R. (1983), 98 Ill. 2d 359, 367-68, 456 N.E.2d 98), under the foregoing circumstances its choice should have been honored.

For the foregoing reasons, the dismissal of the cause per forum non conveniens was entered in error and must be reversed.

Ill

The issue raised by the cross-appeal, whether the circuit court erred in failing to dismiss the complaint pursuant to section 2— 619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(3)), will next be considered.

Both Grace and Beker sought a declaration of rights regarding the settlement and Agreement, based upon the same set of facts. Therefore, the same cause is involved in both the Connecticut and Illinois claims.

The purpose of section 2 — 619 is to avoid duplicative litigation. (People ex rel. Phillips Petroleum Co. v. Gitchoff, 65 Ill. 2d 249, 255.) The statute does not refer to the filing times of the complaints; the fact that the Connecticut claim was filed six days before the Illinois claim is not controlling. (A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 252, 419 N.E.2d 23.) Section 2 — 619 and the doctrine of forum non conveniens are interrelated procedural devices. (See A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 253.) The Illinois claim is a continuation of the 1978 lawsuit since this claim is based on the settlement which led to the dismissal of that prior lawsuit in the circuit court of Cook County in 1979. To treat this claim as a new and different action because it was filed under a different docket number erroneously exalts form over substance. The denial of Beker’s section 2— 619 motion was correct and must be affirmed.

For the reasons set forth above, the dismissal of Grace’s lawsuit per forum non conveniens is reversed and the denial of Beker’s section 2— 619 motion is affirmed.

Reversed in part; affirmed in part.

STAMOS and PERLEST, JJ., concur.

      The record does not further identify the location of plaintiff’s principal place of business.

      To be noted is that Beker thereafter not only filed an answer, but a counterclaim against Grace. Later, Beker entered into the stipulation of settlement with Grace and, through its attorneys, sought and received the circuit court of Cook County’s approval, memorialization and recordation of these documents. Grace and Beker thereby not only voluntarily submitted to the jurisdiction of the Illinois courts, but also invoked the powers and protections of these courts for all just purposes. (See, e.g., Adam v. Saenger (1938), 303 U.S. 59, 67-68, 82 L. Ed. 649, 654-55, 58 S. Ct. 454, 458.) Although no question of jurisdiction arises, the foregoing underscores the substantial connection between the parties, the litigation and the forum. Beker also does business in Illinois through its ownership and operation of a commercial processing facility in Marseilles, Illinois (see Maunder v. DeHavilland Aircraft of Canada, Ltd. (1984), 102 Ill. 2d 342, 466 N.E.2d 217), a fact which would be of significance only should any judgment for Grace require enforcement in Illinois.


author: JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN B. CAMP, Defendant-Appellant.
    First District (2nd Division)
    No. 83—1482
    Opinion filed October 16, 1984.

      Steven Clark and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Karen C. Wirth, and Edward V. Edens, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

The defendant was found guilty in a jury trial of two counts of reckless homicide. The trial court thereafter sentenced him to concurrent two-year terms in the Illinois Department of Corrections. The defendant appeals his conviction.

The evidence adduced at trial showed that the defendant, Steven Camp, was involved in an automobile collision that occurred on November 1, 1981, at approximately 4:20 a.m. Prior to defendant’s jury trial, the defendant filed a written motion to dismiss the indictment, alleging that it was conclusionary and insufficient to state a charge. The court denied defendant’s motion to dismiss.

The collision occurred at the intersection of Palatine Road and Route 62 and involved vehicles driven by Steven Camp and Victor Rubini. The collision caused the death of Rubini and Karen Musaus, one of the passengers in Camp’s vehicle. The evidence showed that at about 9:30 p.m. in October 31, 1981, Camp, Tim Bost, Patricia LaRocco, Musaus, and another companion, Beth Phillips, had all met early in the evening and went to Camp’s apartment prior to their attending a Halloween party at another residence. While at Camp’s apartment, the members of the group split two quarts of beer between them, each drinking about one glass of beer. The group then left Camp’s apartment at about 10 p.m. and drove in Camp’s car to the Halloween party at a house in Palatine. At the party, Camp and the others danced, talked and drank beer. According to LaRocco, the only member of the group to testify other than Camp, she drank at least eight glasses of beer, while Camp drank at least five. Camp testified to drinking four or five cups of beer. LaRocco also testified that seven guests, including herself and Camp, shared a marijuana cigarette. Camp testified to only taking one or two puffs of marijuana from a pipe and not feeling any effects from it.

The group prepared to leave the party between 3 and 4 a.m. Camp went with Musaus to retrieve the car while the other three waited outside the house. After Camp brought the car around front, the other three entered the car. LaRocco testified that Camp was drunk, though she could not remember what happened after the car began to move. Camp testified that he was not intoxicated when he left the party. He did admit to an assistant State’s Attorney that he was feeling tired and “buzzed” when he went to his car. The defendant further admitted that he was speeding and, because he was tired and had been drinking, that he should not have driven that night.

As Camp drove along Palatine Road, nearing the intersection of Route 62, Carl Traub, a Barrington Hills police officer, testified that he estimated Camp’s speed as being in excess of 65 miles per hour (in a 50 miles per hour zone). Traub was at the intersection at the time of the collision using radar to clock eastbound traffic on Route 62. Camp did not remember seeing a stop sign at the intersection, did not remember how fast he was going, did not remember seeing any warning signs of the approaching intersection, and did not attempt to brake as he entered the intersection. Palatine Road has a stop sign at Route 62. Also, Route 62 is a posted 55 miles per hour zone with no traffic control devices in the immediate vicinity of its intersection with Palatine Road. As Camp attempted to make a right-hand turn onto Route 62, he skidded across three lanes of traffic before colliding head-on with Victor Rubini’s Cadillac, which had been heading eastbound on Route 62. The collision resulted in the death of Rubini and Karen Musaus, the front-seat passenger in Camp’s car.

The jury found the defendant guilty on both counts of reckless homicide and he was sentenced to concurrent two-year prison terms.

The defendant first contends that the trial court erroneously denied his motion to dismiss the indictments. The defendant asserts that the indictments were fatally defective because they failed to particularize the specific acts upon which the two charges of reckless homicide were based. The first indictment provided:

“[0]n November 1st, 1981, at and within the County, Steven B. Camp committed the offense of reckless homicide in that he, without lawful justification, while driving a motor vehicle, to wit: an automobile, recklessly performed acts in such a manner as were likely to cause death or great bodily harm to some individual and such acts caused the death of Karen Musaus in violation of Chapter 38, Section 9 — 3(a) of the Illinois Revised Statutes 1979 as amended.”

The second indictment was identical in all respects save for the name of the victim, which was Victor Rubini.

Under Illinois law, the elements of the offense of reckless homicide are (a) that the defendant caused death while driving a motor vehicle recklessly, and (b) that he drove the motor vehicle in such a manner that he was likely to cause death or great bodily harm to some individual. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a); People v. Boyle (1979), 78 Ill. App. 3d 791, 797, 396 N.E.2d 1347.) If the indictment is otherwise sufficient, then, in reckless homicide cases, it is not necessary to allege the precise acts of recklessness or the particular acts upon which the prosecution will rely. People v. Boyle (1979), 78 Ill. App. 3d 791, 797, 396 N.E.2d 1347; People v. Clark (1977), 55 Ill. App. 3d 496, 499, 371 N.E.2d 33; People v. Jones (1971), 2 Ill. App. 3d 575, 577, 277 N.E.2d 144; People v. Mowen (1969), 109 Ill. App. 2d 62, 68-69, 248 N.E.2d 685.

The defendant’s citation to People v. Hayes (1979), 75 Ill. App. 3d 822, 394 N.E.2d 80, and People v. Griffin (1967), 36 Ill. 2d 430, 223 N.E.2d 158, is unpersuasive in that Hayes was a reckless conduct case and Griffin was a reckless driving case. The Illinois courts have repeatedly distinguished simple recklessness cases from reckless homicide cases in terms of the necessity for particularized indictments. (People v. Boyle (1979), 78 Ill. App. 3d 791, 396 N.E.2d 1347; People v. Clark (1977), 55 Ill. App. 3d 496, 371 N.E.2d 33; People v. Jones (1971), 2 Ill. App. 3d 575, 277 N.E.2d 144; People v. Mowen (1969), 109 Ill. App. 2d 62, 248 N.E.2d 685. Cf. People v. Farris (1980), 82 Ill. App. 3d 147, 402 N.E.2d 629.) The central concern of particularized indictments is the safeguarding of the defendant’s right against double jeopardy. In reckless homicide cases, naming the victim of the homicide in the indictment eliminates any vagueness in the charge, thereby securing the defendant’s rights. People v. Clark (1977), 55 Ill. App. 3d 496, 371 N.E.2d 33; People v. Jones (1971), 2 Ill. App. 3d 575, 277 N.E.2d 144; People v. Mowen (1969), 109 Ill. App. 2d 62, 248 N.E.2d 685.

In this reckless homicide case, the defendant could unquestionably have caused the death of Victor Rubini and Karen Musaus only once, and both were named in the indictments. It was not necessary therefore to allege specific acts of recklessness. Furthermore, the language of these indictments is almost identical to the language of the reckless homicide indictment upheld in People v. Clark (1977), 55 Ill. App. 3d 496, 498-99, 371 N.E.2d 33. It therefore cannot be said that the trial court erred in denying the defendant’s motion to dismiss the indictments.

The defendant next contends that the trial court erred in allowing the prosecution to introduce and comment upon alleged hearsay testimony. During its case-in-chief, the prosecution elicited testimony from a passenger in the defendant’s car (LaRocco) that another passenger (Bost) had asked the defendant questions relative to the defendant’s ability to drive. The record disclosed the following exchange:

“Q. As best as you can recall, what did Mr. Bost say to the defendant, what did the defendant respond?

MR. DOWNS: Objection to what someone said to the defendant.

THE COURT: I’m going to overrule your objection. You may answer.

THE WITNESS: Tim asked Steve if he was all right to drive the car and Steve said yes, and Tim asked him again and Steve still said, ‘Yes, I’m all right to drive.’

MR. PAYNTER: Now, Miss LaRocco, did in fact—

MR. DOWNS: I would object and as [sic] that that be stricken, Judge.

THE COURT: No, that shall stand. Overruled.”

The defendant testified that he had no recollection of any such conversation with Bost. The defendant argues that the preceding testimony was elicited for the purpose of showing that Bost believed the defendant to have been intoxicated and incapable of driving and should therefore have been excluded by the court as hearsay.

Hearsay is defined as “testimony of an out-of-court statement offered to establish the truth of the matter asserted therein, and resting for its value upon the credibility of the out-of-court asserter.” (People v. Rogers (1980), 81 Ill. 2d 571, 577, 411 N.E.2d 223.) Hearsay evidence is generally inadmissible subject to certain exceptions. As explained below, the complained-of testimony in this case does not fall within the purview of the hearsay rule.

The determination of the “matter asserted” in this testimony is complicated by the fact that the “statements” are in question form. As the prosecution points out: “Stated as such, in question form, the statement doesn’t assert anything.” The defendant argues that although the remarks were in the form of a question, the underlying assumption of the statements is that Bost believed the defendant to be intoxicated and that the statements were being introduced to show that belief.

The phrase “matter asserted” in the hearsay definition includes matters directly expressed as well as implicit matters the declarant necessarily intended to express. (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 801.1, at 508 (4th ed. 1984).) The statements at issue here fall within the latter category. Implicit assertions are those the declarant necessarily intends to assert which form the basis or foundation for the directly-expressed matter to the extent that the implicit or foundational assertions must be considered true in order to understand the directly-expressed matter in the context in which it is said. (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 801.1, at 508 (4th ed. 1984).) In this case, the declarant merely asked, “Are you all right to drive the car?” As such, this statement requires no implicit or foundational facts to be accepted as true in order to understand it in context. The statement does not presuppose that the defendant is unable to drive as an implicit fact that must be true. At most, the statement presupposed that Bost believed that the defendant was going to drive the car. Beyond that, however, the defendant’s argument would require an examination into the motives of Bost at the time he asked the question, something clearly unwarranted. The only matter asserted therefore was the directly-expressed one, i.e., are you all right to drive, and perhaps that Bost believed that the defendant was going to drive. The prosecution would obviously not be interested in establishing the truth of the former, and Best’s belief that the defendant was going to drive the car is of no consequence to this action, since it is undisputed that the defendant did in fact drive the car.

If the statements do carry a prohibited assertion, they are still not excluded by the hearsay rule because they were not used for the purpose of establishing the truth of the matter asserted. Out-of-court statements used other than for purposes of establishing the truth of the matter asserted do not rest for their value on the credibility of the out-of-court declarant and are generally admissible. (People v. Richardson (1974), 21 Ill. App. 3d 859, 861, 316 N.E.2d 37.) The extrajudicial statements are admissible to show, inter alia, that the recipient was placed on notice or had knowledge of a certain fact (People v. Campbell (1975), 28 Ill. App. 3d 480, 487, 328 N.E.2d 608) or the recipient’s state of mind upon and after hearing the statement (People v. Cooper (1981), 97 Ill. App. 3d 222, 226, 422 N.E.2d 885) or to show the effect of the statement on the recipient (People v. Canamore (1980), 88 Ill. App. 3d 639, 641, 411 N.E.2d 292).

The defendant argues that the statements were introduced solely to show the declarant’s belief that the defendant was intoxicated at the time he drove away from the party and are thus inadmissible. These statements, however, were used for the purpose of showing their effect on the recipient (the defendant). When the statements were made, the resultant effect was that the defendant considered and evaluated his ability to drive the car at that point in time, and consciously did choose to drive the car. This cognitive action on the part of the defendant was relevant to establish that the defendant had a reckless state of mind, an essential part of a reckless homicide prosecution. (People v. Smith (1984), 99 Ill. 2d 467, 472, 459 N.E.2d 1357.) A reckless state of mind can be proved by showing that the defendant consciously disregarded a substantial and unjustifiable risk. (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.) The effect of these statements on the defendant, therefore, was independently significant in establishing a conscious disregard, and they are not excluded by the hearsay rule.

The defendant further argues that, assuming the statements were admissible, they were rendered inadmissible hearsay during the prosecution’s closing argument. (See People v. Escobar (1979), 77 Ill. App. 3d 169, 395 N.E.2d 1028 (where hearsay purpose of evidence became apparent during prosecution’s closing argument).) During closing arguments the prosecution argued the following:

“Keep in mind the testimony of Patty LaRocco that she heard Tim Bost ask the defendant, ‘Are you okay,’ and Mr. Gamp said, ‘Sure, I am okay. I can drive.’ She [sic] asked again, ‘Are you okay,’ and this is one of his friends. Now, there must be some reason why he is asking those types of questions.

MR. DOWNS: Objection. They were going to call them. Now counsel is not only testifying for Mr. Bost but he is reviewing the thought processes of Mr. Bost.

* * *

THE COURT: Your objection is overruled, Mr. Downs.

MR. DOWNS: Thank you.

THE COURT: The jury is admonished to disregard counsel’s remarks. The objection is overruled.

MR. PAYNTER: What Mr. Bost said to Mr. Camp is a matter of evidence and you heard it. Mr. Camp did not even say that Mr. Bost didn’t say it. He just said that he couldn’t remember him saying it which may be another indication of the state that Mr. Camp was in.”

The defendant argues that the prosecution should not be able to prove by inference what it could not prove directly. When the evidence was originally admitted, however, the defendant did not ask for a limiting instruction in order to help guide the jury in its proper use of the admitted testimony. As a general rule, the opposing party is entitled, on request, to have the judge' instruct the jury to limit its use of the evidence accordingly. (People v. Garza (1981), 92 Ill. App. 3d 723, 733, 415 N.E.2d 1328.) But, the court is under no duty to give a limiting instruction on its own m’otion. (People v. Garza (1981), 92 Ill. App. 3d 723, 733, 415 N.E.2d 1328.) Consequently, in a case where no limiting instruction is requested by opposing counsel and where the court does not give one on its own accord, as in the present case, the evidence is admitted generally. (People v. Webb (1982), 109 Ill. App. 3d 328, 332, 440 N.E.2d 406.) Thus, even though the statements in the case at bar were admissible only for the limited purpose of showing their effect on the defendant, and not to. show the truth of the matter asserted, the defendant cannot be heard to complain that the evidence was admitted generally, and so used by the prosecutor, when he failed to request that the court limit the application of the evidence. (Hackett v. Ashley (1979), 71 Ill. App. 3d 179, 187, 389 N.E.2d 246.) Also, it is less than clear from the quoted portion of the prosecutor’s argument that an improper use was being made of the evidence. The defendant fails to quote the prosecutor’s rebuttal argument, which clearly demonstrates that the State was only using the admitted testimony for the limited purpose of showing its effect on the defendant. Assistant State’s Attorney Mermel argued as follows:

“Mr. Downs talks about conscious disregard. Let me focus your attention on that specific instance, and there was one. You recall the testimony at which Timothy Bost was heard to say to the defendant, ‘Are you all right, can you drive, are you all right to drive.’ It was at that very moment the defendant had the choice to make. I have been drinking here for five hours. I have started drinking even before I got here. Am I all right to drive. He wasn’t and you know it, but he decided to get into that car and drive. That is conscious disregard.”

The trial court did not err in allowing the testimony into evidence, and no subsequent error resulted from its admission. The defendant’s hearsay argument is therefore without merit.

The defendant finally contends that the prosecutor’s closing argument was improper, thereby prejudicing the defendant and requiring a new trial. Our analysis of this contention focuses on the defendant’s post-trial motion, which merely states that the trial court “erred in allowing the State to make a prejudicial and improper closing argument.” The motion does not set forth the specific remarks asserted to be prejudicial. We recently held, however, that a post-trial motion stating that the prosecutor’s closing argument contained “prejudicial, inflammatory, and erroneous statements designed to arouse the passions and prejudice of the jury,” without stating the specific statements complained of, did not preserve the issue for review. (People v. Thomas (1983), 116 Ill. App. 3d 216, 220, 452 N.E.2d 77; People v. Buford (1982), 110 Ill. App. 3d 46, 54-55, 441 N.E.2d 1235.) Similarly, in People v. Turk (1981), 101 Ill. App. 3d 522, 428 N.E.2d 510, the defendant’s post-trial motion was not deemed sufficiently specific where it merely alleged that the prosecutor’s closing arguments were “ ‘inflammatory, prejudicial and invaded the defendant’s Sixth Amendment right to counsel and exhorted the jury to convict the defendant based on matters which [are] dehor [sic] the record in violation of the defendant’s rights under the Sixth and Fourteenth Amendments of the United States Constitution.’ ” (101 Ill. App. 3d 522, 533.) The motion in the instant case is as general as the preceding two examples in which it was held that the alleged errors were not preserved for review. Although this post-trial motion would apparently be sufficient under People v. Rivera (1978), 62 Ill. App. 3d 401, 378 N.E.2d 1293, we decline to endorse such lax post-trial practice as it would effectively defeat the underlying purpose of the post-trial motion, namely, to allow the trial court an opportunity to review and correct alleged errors' that occurred during trial. See People v. Caballero (1984), 102 Ill. 2d 23, 31, 464 N.E.2d 223; Chicago Daily Law Bulletin, Sept. 14, 1984, at 3, col. 3 (letter by assistant State Appellate Defender suggesting that lawyers improve their post-trial motions); and Polelle, A Puzzling Discrepancy: Illinois Civil and Criminal Post-Trial Motion Practice, 58 Chi. Bar Rec. 144 (1976-77).

Also, merely because the defendant made an appropriate objection at trial does not preserve the error for review when his post-trial motion is either not filed, does not contain the alleged error, or contains a general statement of error without stating the specific grounds of complaint. (People v. Thomas (1983), 116 Ill. App. 3d 216, 221, 452 N.E.2d 77.) Further, the defendant’s act of including in the motion the statement that it is “expressly understood that defense counsel has not yet been furnished with an official transcript of the trial and makes this motion on behalf of his client, without prejudice to or waiving the later discovery of error in the trial record,” in an apparent attempt to preserve any and all errors, is ineffective, especially when, as in this case, the error could have been known to defense counsel even without the benefit of a transcript. (People v. Goble (1976), 41 Ill. App. 3d 491, 499, 354 N.E.2d 108; People v. Rogers (1975), 32 Ill. App. 3d 788, 790, 336 N.E.2d 784.) The defense counsel was surely aware of this error, since he objected to the remarks at trial. Counsel could have included at least some of the troublesome language indicative of the prejudicial tenor without the need of the transcript. This was not done, and we accordingly conclude that the issue has been waived.

Under Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)), this court may elect to consider errors that have not been properly preserved for review where the evidence at trial is closely balanced or the errors would deprive the defendant of a fair and impartial trial. (See People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233; People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) In the instant case, however, invocation of Rule 615(a) is not necessary, because the evidence of defendant’s guilt is not so closely balanced that the alleged error could have deprived him of a fair trial.

The testimony overwhelmingly supports the defendant’s conviction. Officer Traub, who was present at the scene of the accident at the time of the occurrence, observed the defendant’s vehicle traveling at an excessive rate of speed and observed the defendant disregard a stop sign. Testimony showed that the defendant slid across three lanes of traffic and that he had been drinking all evening, as well as smoking marijuana. LaRoceo testified that the defendant was obviously drunk when he left the party and got into his car. Also, the defendant admitted that he was speeding, that he was feeling tired and “buzzed,” to not seeing the stop sign or any warning signs and that he should not have been driving that night. The evidence adduced at trial, and the logical inferences therefrom, lead inescapably to the conclusion that the defendant was guilty, and we will not therefore recognize the alleged errors under the plain-error doctrine of Rule 615(a).

For the reasons expressed herein, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and PERLIN, J., concur.