author: JUSTICE MEJDA JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MILO SWIERCZ, Defendant-Appellant.
    First District (5th Division)
    No. 80-2595
    Opinion filed January 22, 1982.
    Supplemental opinion filed on denial of rehearing March 12, 1982.
    Suzanne Philbrick, of Oak Lawn, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Joel A. Stein, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant Milo Swiercz was charged with obstructing a police officer pursuant to section 31 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 1). Following a bench trial, defendant was found guilty and was sentenced to a term of periodic imprisonment of 18 weekends. After a hearing on post-trial motions, the trial court reduced the term of periodic imprisonment to 10 weekends and denied motions for a new trial and to arrest judgment. Defendant’s application for probation was also denied. On appeal defendant contends that: (1) the police officer was not performing an “authorized act” for the purposes of section 31 — 1; (2) he was not proved guilty beyond a reasonable doubt; (3) he did not receive effective assistance of counsel; and (4) the sentence imposed was excessive in view of the circumstances.

The State’s evidence revealed that on March 3, 1980, Oak Lawn police officer Robert Ruger responded to a radio dispatch regarding a disturbance at an apartment building at 9317 South Harlem Avenue, Oak Lawn. Upon arriving at the building Officer Ruger was told by Mrs. Wyatt that she had been hit by her husband, who, she explained, had afterwards walked to apartment 9B across the hall, where he remained with a friend. Mrs. Wyatt told the officer that apartment 9B did not belong to this friend but that it belonged to his girlfriend.

Officer Ruger, dressed in his police uniform, then went across the hall to apartment 9B and identified himself. Defendant opened the door and asked the officer, “What do you want?” Officer Ruger responded, “Would you ask Carl Wyatt to please come out. I want to talk to him.” The officer explained to defendant that he was seeking Wyatt because he had hit his wife. The defendant responded, “Carl Wyatt is not here and you are not coming in.” Officer Ruger then repeated that he wanted to see Carl Wyatt.

As Officer Ruger was speaking, the defendant attempted to close the door but the officer placed his foot in the threshold to prevent the door from closing. Defendant meanwhile repeatedly asserted that the police had no right to enter the apartment. Defendant then attempted a second time to close the door, but the officer’s foot remained in the threshold. Officer Ruger then opened the door with his hand and entered the apartment, walking around defendant. The defendant then stood in front of two additional police officers who were also responding to the radio call and who had just arrived at the scene.

At this moment Officer Ruger announced that defendant was under arrest. Then, from his vantage in the foyer, Officer Ruger saw a man sitting in a kitchen area to the right. The officer asked, “Carl Wyatt?” The man responded, “Yes.” Officer Ruger then placed Carl Wyatt under arrest for battery.

Defendant testified that on March 3,1980, he had been given the key to apartment 9B by his girlfriend at her place of employment. The rent to this apartment was being paid by both defendant and his girlfriend. Defendant was at the apartment in the company of someone known to him only as “Corky” when he heard someone beating on the door. Defendant opened the door and a police officer asked if Carl Wyatt was there. Defendant responded, “Who?” The officer stated that he was coming in. Defendant asked the officer if he had a warrant, to which the officer replied, “No.” At this time Officer Huger walked around defendant and placed him under arrest.

Defendant further testified that he never intended to prevent the officer from making a lawful arrest. He explained his actions by stating that he did not know that “Corky” was in fact Carl Wyatt; the hallway into the apartment was very narrow; and everything happened in less than a minute which left him “fuddled and confused.”

The trial court found defendant guilty and ordered a presentence investigation. On August 12, 1980, defendant was sentenced to a term of periodic imprisonment of 18 weekends. Then, on August 19, 1980, defendant filed several post-trial motions including his motion for a new trial, motions to arrest judgment, to reduce sentence, and for a stay of mittimus. At the hearing on September 26, 1980, the trial court reduced the sentence to a period of 10 weekends and denied all other motions; defendant filed his notice of appeal on the same date.

Opinion

The State initially challenges the jurisdiction of this court to consider this appeal on the grounds that defendant has not timely filed notice of appeal.

Illinois Supreme Court Rule 606(b) (73 Ill. 2d R. 606(b)) governs the time for filing criminal appeals. It reads in pertinent part:

7“[T]he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.”

Ordinarily the final judgment in a criminal case is the sentence (People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283), thus the sentencing commences the 30-day period. However, here defendant has filed a series of post trial motions which are clearly directed to the judgment. Not only does public policy favor that errors be corrected at the trial level (People v. Robins (1975), 33 Ill. App. 3d 634, 338 N.E.2d 222), but by virtue of the filing of the post trial motions the judgment would not have been final and appealable until such motions had been ruled upon by the trial court. (See Bissett v. Gooch (1980), 87 Ill. App. 3d 1132, 409 N.E.2d 515.) Accordingly, the time for appeal commenced with the denial of these motions. (Compare People v. Clark (1979), 80 Ill. App. 3d 46, 399 N.E.2d 261.) Since the instant notice of appeal was filed on the same date as the denial of defendant’s post-trial motions, it was timely filed.

We now consider the merits of defendant’s primary contention that he was not proved guilty beyond a reasonable doubt of obstructing a police officer where the police officer was not performing an “authorized act” for the purposes of section 31 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 1).

Section 31 — 1 of the Criminal Code of 1961 provides that “[a] person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity commits a Class A misdemeanor.” (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 1.) Defendant argues that the officer’s warrantless, nonconsensual and forcible entry into the apartment in which he had an expectancy of privacy violated the Fourth Amendment in view of the United States Supreme Court holdings in Steagald v. United States (1981), 449 U.S. 919, 68 L. Ed. 2d 38, 101 S. Ct. 1642, and Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371. Defendant concludes that such an unconstitutional police entry could not constitute an “authorized act” for the purpose of section 31 — 1.

The State, relying on the Illinois Supreme Court decision in People v. Locken (1974), 59 Ill. 2d 459, 322 N.E.2d 51, strongly argues that notwithstanding Steagald and Payton, defendant was properly convicted of resisting a police officer where it was proved that defendant knowingly and wilfully impeded the officer’s attempt to arrest Carl Wyatt. The State further argues that the instant police action was justified by exigent circumstances and therefore was constitutional and under the holdings in Steagald and Payton.

We have carefully reviewed the record in the instant case and are of the opinion that the Locken ruling does not apply to the circumstances of the police activity here. In Locken our supreme court noted that section 7 — 7 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 7 — 7) provides that a person is not authorized to use force to resist an arrest which he knows is being made by a police officer even if he believes the arrest is unlawful and the arrest is in fact unlawful. The supreme court held that this section is to be read together with section 31 — 1, and that therefore the making of an unlawful arrest is to be considered an “authorized act” for purposes of section 31 — 1. Consequently, under Locken, the obstruction of even an unlawful arrest by a known officer would be a violation of section 31 — 1. The essential element of a Locken situation, however, is the undertaking of an arrest by the police officer. We find no provision in Locken concerning obstruction of an unlawful entry into a person’s home by a known officer which is comparable to section 7 — 7.

In view of the record, we do not regard the instant officer’s actions to have been the undertaking of an arrest. There was no evidence adduced at trial to indicate that an arrest was attempted or even contemplated by Officer Ruger at the time defendant denied him entry into the apartment. To the contrary, Officer Ruger’s own testimony was that he merely sought Carl Wyatt for the purpose of speaking to him and that at no time did the officer even request entry into the apartment. Instead, the officer merely asked defendant from the doorway, “Would you ask Carl Wyatt to please come out. I want to talk to him.” We are convinced that defendant was convicted on the basis of his conduct which impeded the officer from entering the apartment in order to conduct a search for Carl Wyatt for the purpose of interrogating him. Under the fourth amendment, absent exigent circumstances or consent, a home may not be searched without a warrant. (See Steagald.) Here there has been no showing of exigent circumstances. Accordingly, we do not consider the officer’s entry to be an “authorized act” for the purpose of section 31 — 1.

Additionally, we cannot conclude that defendant’s failure to ask Carl Wyatt to please come out alone establishes beyond a reasonable doubt that defendant physically imposed an obstacle which impeded the officer’s stated mission to speak to Wyatt outside the apartment. Nor does the evidence support the conclusion that defendant physically aided Wyatt to avoid arrest. (See People v. Weathington (1980), 82 Ill. 2d 183, 411 N.E.2d 862.) In addition, in our opinion defendant’s uncontroverted and unimpeached testimony to the effect that he did not know his companion’s name was in fact Carl Wyatt does not appear so improbable or incredulous that it should be totally disregarded. See People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 430 N.E.2d 1126.

We think that in considering the totality of the circumstances, defendant was not proved guilty beyond a reasonable doubt of violating section 31 — 1. In view of our conclusion, we do not consider the remaining issues addressed in defendant’s appeal.

Therefore, for the reasons stated, the judgment of the circuit court is reversed.

Reversed.

SULLIVAN, P. J., and WILSON, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE MEJDA

delivered the opinion of the court:

The State, in a petition for rehearing, contends that we “completely overlooked or misapprehended a fact of crucial significance” namely, that defendant’s post-trial motions were not timely filed pursuant to sections 116 — 1 and 116 — 2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, eh. 38, pars. 116 — 1, 116 — 2), and that therefore the notice of appeal was not timely filed after such post-trial motions were denied. The point here presented was not argued in the State’s brief and therefore cannot be raised for the first time in a petition for rehearing. 73 Ill. 2d R. 341(e)(7); People v. Grant (1976), 42 Ill. App. 3d 790, 356 N.E.2d 933; People v. Grayson (1973), 13 Ill. App. 3d 1049, 301 N.E.2d 33.

We adhere to our original opinion, and the defendant’s petition for rehearing is denied.

SULLIVAN, P. J., and WILSON, J., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
      In re MARRIAGE OF DONNA WHITE SWEET, Petitioner-Appellee, and ROBERT A. WHITE, Respondent-Appellant.
    First District (2nd Division)
    No. 81-1759
    Opinion filed February 16, 1982.
    Modified on denial of rehearing March 23, 1982.

      Robert H. Snow, Ltd., of Chicago, for appellant.
    Mark K. Morgan, of Midlothian, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

This appeal emanates from a particularly acrimonious custody contest between the natural parents over the only child born of their marriage, since dissolved, and raises procedural as well as substantive issues. For reasons which shall presently appear, the order of June 23, 1981, from which the appeal is taken, must be reversed and the cause remanded for further proceedings.

After four years of marriage, Robert (Robert) and Donna (Donna) White obtained a default divorce on July 7, 1972, upon stipulation between the parties. Donna was to be awarded sole custody of their only child, William (Bill), then age 2)i No evidentiary hearing relating to custody or fitness was then held. Both parties remarried and had children born to their new families. On August 10,1977, Robert, a career soldier in the United States Army, petitioned for custody of Bill. The petition alleged, inter alia, that Donna and her present husband, David L. Sweet, had no permanent place of residence; lived in a variety of different States and locations; interrupted the lifestyle of Bill; and disrupted his school attendance. The only permanent address provided to Robert by Donna was her mother’s address in Posen, Illinois, to which Robert sent monthly child-support remittances.

The trial court directed the Cook County Department of Supportive Services to conduct an investigation and prepare a report on the respective parties, which was done. The report noted interviews with the father, his wife and his mother; set forth allegations of insufficient food, clothing, discipline, education and supervision while Bill was in Donna’s custody; concluded that Robert was a responsible father and husband; found no economic or emotional limitation to restrict him from having custody, but noted that no information was available on either the custody mother or her husband.

A letter, addressed to Donna in care of her mother in Posen, Illinois, containing a notice and a copy of the petition for change of custody, was refused. Donna did not respond to the petition for change of custody. On December 15, 1977, the trial court awarded Robert custody and granted him “* * 6 full right and authority to take physical possession of # * [Bill] wherever said child may be found.” No findings were made by the trial court with respect to section 610(b) of the Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1977, ch. 40, par. 610(b)) in its modification of custody order.

In February of 1978, Robert went to a Fort Mills, South Carolina, school which Bill attended, presented the principal with a copy of the court order, and school authorities brought Bill to him. They went first to Fayetteville, North Carolina, then back to Fort Sheridan, Illinois, and, one month later, on to Karlsruhe, West Germany, where Robert was next stationed. Robert’s family consisted of his wife, mother, three children and Bill. They lived in a four-bedroom apartment situated in a government complex. Robert did not notify Donna of Bill’s removal, claiming he had no address or telephone number for her.

On February 27,1979, Donna filed a section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72) and moved to vacate the December 15,1977, order on grounds, inter alia, of improper service. Robert denied improper service, claiming that he served Donna with a copy of his petition for change of custody at the same address in Posen, Illinois, to which he had been sending child-support checks. Pursuant to Donna’s motion, the court on August 27,1979, ordered Robert to deliver Bill to O’Hare International Airport on September 15,1979, for a one-month visitation period.

On September 14, 1979, Robert moved to suspend the operation of the order requiring him to deliver Bill at the airport pending further investigation. In support of this motion, Robert attached a number of letters, identified as exhibits. These included a letter from a pediatrician, an elementary school teacher, the principal at Bill’s elementary school in Germany, the clinical director of the Karlsruhe Community Mental Health Service, and the community chaplain. The essences of those communications were that Bill was happy in his environment, and it would be disruptive and not in his best interest to remove him from his present home. A sworn statement by Bill, given to the base adjutant, stated that he got along well with his father and stepmother, with whom he would rather be, and that he was a better student while with them than while he was with his mother.

On September 14, 1979, the trial court denied Robert’s motion to suspend the order of August 27,1979, and ordered that Bill be delivered to O’Hare Airport by September 30, 1979. On October 3, 1979, the court ordered the Cook County Department of Supportive Services to conduct a medical and psychological examination of Bill. On that same day, Bill was presented in court by Robert’s attorney and the court interviewed him in camera. Bill stated that he liked living in Germany. His father, Robert, his stepmother and grandmother were nice to him. He wanted to visit with his mother for at least one month.

An evidentiary hearing on the purported section 72 petition was held on November 15, 1979. The hearing developed evidence that: Robert visited Bill at Donna’s abode more than once during April of 1977; he did not know where Donna lived at various times from 1971 to 1977, nor street addresses at which she lived while a resident of Black Oak, Indiana, St. Joseph, Illinois, St. Louis, Missouri; and he did not know addresses of Donna’s various residences in Chicago. Donna’s mother, living in Posen, Illinois, was the contact concerning news of Bill. No change of address was ever requested by Donna. In July of 1977, Robert claimed, he did not know where Donna lived. At the close of Donna’s case, the court denied her petition to vacate, but extended her visitation of Bill until further order of court, referring to this procedure as granting “temporary custody” of Bill to Donna. No appeal was taken from this order, entered on February 13, 1980.

On February 22, 1980, Donna petitioned for a change of custody alleging, inter alia, that Bill was “° * ° happy in his surroundings, doing well in school and has indicated on numerous occasions that he desires to live with his mother in Posen, Illinois.” At an evidentiary hearing held on March 12, 1981, on an amended petition, the court conducted another in camera interview with Bill, who now stated that he wanted to stay with Donna because she is a lot nicer than his stepmother. He did not like “Bob,” his father. Since he has been living with his mother, he has called his father “Bob,” instead of “dad” as he previously addressed him. He did not want to visit with his father and stepmother. He hated his stay in Germany. His mother and stepfather told him that his grandmother was a prostitute and a bad woman. At this hearing, Donna was “again” awarded temporary custody of Bill until further order of court.

On June 15, 1981, another evidentiary hearing was held on the amended petition. Donna testified that under the 1972 divorce decree Robert was given visitation rights only during the daylight hours in her house and presence, because Robert had homosexual tendencies. From the time of her divorce to the present, she traveled- a lot, but Bill was always in school during that time. In 1975, she went twice to Robert’s house to talk to him because he was not visiting Bill. Robert’s house was filthy, his children ran around naked, and when one boy got in front of the television, Robert kicked him in the face. When Bill arrived from Germany he was very skinny, had sores on his hair and body, and was very nervous. Bill said his stepmother had pulled his hair and caused the sores. He did not know how to use toilet paper. On October 17 or 18, 1979, she heard Bill tell her son, David, while they were in the bedroom, to commit an act of fellatio. She realized then that Bill needed psychiatric help and took him to Bremen Youth Commission. Bill’s grades in school have improved over the course of time. Her husband was then unemployed and out of work for one year, but was starting his own business.

Bill testified that while in school in Fort Mills, South Carolina, his father, aunt and grandmother, came to pick him up. He went with them first to Chicago and then to Germany, where he lived for 16 months. He shared a bed with Bobby, his stepbrother, who “peed” in his bed every night and occasionally had bowel movements in bed. Sometimes his dad hit him on his rear end. He had scars and welts from a switch used on him by his grandmother while in Germany. After his return to the United States, his paternal grandmother told him that if he had oral sex with David, he would be able to stay with his mom and stepfather. He liked where he was then living, had many friends, and wanted to stay with his mother and stepfather.

Robert’s mother, Mae Sutton, testified that she never told Bill to perform oral sex with his half-brother; and never beat him nor did Robert. He had no sores on his head or body. Since October of 1979, Bill had seen his father four times and had not once displayed any fear. On cross-examination she testified that she disciplined Bill sometimes by spanking him with a switch. Bill was happy in Germany and did not have any discipline problems which would require professional help.

Robert testified that since November 1980 he has been living in Raeford, North Carolina. Bill passed all of his classes in the school in Germany and was a member of the Cub Scouts. After Bill was informed that he would be required to return to the United States, he became nervous, and upset and couldn’t sleep at night. He was taken to the doctors at Smiley Barracks Dispensary. When Bill was sent to the United States, he was clean, well groomed, and had no sores, welts or scalp problems. Neither he nor his wife has ever told Bill to perform any sex act at all.

A report from a psychiatrist, Dr. June C. Frye, dated January 5,1980, was filed with the trial court on October 1,1980. The psychiatrist noted a 20-minute interview with Donna, two 55-minute interviews with Bill, a telephone conversation with Don Sebek of the Bremen Youth Commission from whom Bill was receiving psychotherapy, and that no interview was attainable with Robert, who was then in Germany. The report concluded that Bill gave evidence of varied emotional disturbances and that his best interests would be served by allowing him to continue living in his present situation with his natural mother. The report qualified that recommendation by noting inadequate information about either Donna or Robert and that psychiatric evaluations of both were necessary in order to determine in whose custody the boy’s interests will be best served. No followup evaluation appears to have been made, and none appears in the record.

On June 23, 1981, the order of December 15,1977, was vacated and the provisions of the 1972 divorce decree were reinstated with respect to child custody. The trial court gave as its principal reasons for the vacatur that the 1977 order granting Robert custody did not comply with the then newly enacted Illinois Marriage and Dissolution of Marriage Act; that the trial court did not know that Robert would remove Bill to Germany; and that the boy’s best interests would be served by leaving custody with the mother. No reference was made to the 1980 psychiatric report. The trial court asserted that it was considering the proceedings before it as a “rehearing” of the December 15, 1977, change of custody order. No section 610(b) (Ill. Rev. Stat. 1977, ch. 40, par. 610(b)) findings were made. It is from this order that the appeal proceeds.

From the foregoing history of events it is evident that the underlying policy of section 610(b) of the Act, which favors the finality of child-custody judgments and seeks to make their modification more difficult (In re Custody of Harne (1979), 77 Ill. 2d 414, 420-21, 396 N.E.2d 499), was not followed in either the December 15,1977, or June 21,1981, custody orders. The manifestation of legislative aversion to custody changes set forth in that section, by which the legislature sought to promote stability and continuity in the child’s custodial and environmental relations, appears to have been ignored. The situation affecting Bill’s best interests has been exacerbated by the' fact that there was no evidentiary hearing relating to that issue, nor findings made, even at the time the initial order was entered in 1972; custody was agreed upon by stipulation of Robert and Donna to the divorce.

The suggestion made by Robert, that the December 15, 1977, order changing custody of Bill from Donna to Robert required no findings under the then new act, which took effect on October 1, 1977, is without merit. Section 801(b) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 801(b)) states clearly that the Act was applicable to actions pending prior to the effective date of the Act but in which judgment was not entered until after that effective date. Here, Robert’s petition for change of custody was filed in August 1977, but judgment was not entered until December 15, more than two months after the Act had taken effect. Under these circumstances, the provisions of section 610(b)(1), (2), (3) applied (In re Custody of Sexton (1981), 84 Ill. 2d 312, 318-19, 418 N.E.2d 729; Simmons v. Simmons (1979), 77 Ill. App. 3d 740, 742, 396 N.E.2d 631; Miller v. Miller (1978), 65 Ill. App. 3d 844, 846, 382 N.E.2d 823),.and some effort should have been pursued by court and counsel to articulate the reasons requiring the change of custody in light of the strong legislative policy. Only where a trial court sets forth explicit findings that subsection (1) (2) or (3) applies, can the intended boundaries of a trial court’s discretion be reviewed intelligently. In re Custody of Harne (1979), 77 Ill. 2d 414, 421.

The foregoing comments apply with equal force to the entry of the order of June 23, 1981, under the guise of a “rehearing” which the trial court, sua sponte, initiated in this case. No rehearing was sought by the parties, nor was such a procedure authorized by any statutory or case authority, as both parties to this appeal concede. The psychiatric report of Dr. Frye, which underscored the necessity for evaluation of the homes, surroundings and circumstances of both putative custodial parents was never mentioned in any of the transcripts of hearings after the date of its filing. Nothing appears to have been done, insofar as the record discloses, which suggest any effort to ascertain the suitability of either parent or their homes for custody of this child under current circumstances, rather than prior information. (See In re Custody of Ehr (1979), 77 Ill. App. 3d 540, 546, 396 N.E.2d 87; Smith v. Smith (1979), 73 Ill. App. 3d 423, 392 N.E.2d 292.) Whether the absence of section 610(b) findings may be considered jurisdictional or their absence may be considered as having rendered the order invalid (In re Custody of Harne (1979), 77 Ill. 2d 414, 419-22; In re Custody of Nodot (1980), 81 Ill. App. 3d 883, 891-92, 401 N.E.2d 1189), necessary evidence anticipated by the statute, irrespective of the articulation of findings, requires that this case be returned to the trial court for further proceedings directed to whether the putative custodial parents are in a position to present a satisfactory home setting for their child, particularly in light of the charges and countercharges made by the parents and their relatives against each other which reflect upon their suitability to be given custody.

Arguments relating to res judicata and reviewability raised by Robert, and harmless error argued by Donna, are inapposite to the circumstances presented here.

For the foregoing reasons the cause is reversed and remanded with directions to the trial court to vacate the June 23, 1981, order and to conduct the necessary hearings as will establish a proper basis for the custodial award under section 619(b) of the Act.

Reversed and remanded.

DOWNING and PERLIN, JJ„ concur.

       The decree of divorce granted Robert visitation ° ° from noon to 8 p.m. on Saturday and only in the presence of [Donna] * ° No reason was set forth either in the transcript of testimony or in the decree for this limitation.

       The custody order of July 7,1972, was entered by a different trial court.


author: JUSTICE GOLDBERG JUSTICE GOLDBERG

text:
    TRU-LINK FENCE COMPANY, INC., Plaintiff-Appellant, v. THE REUBEN H. DONNELLEY CORPORATION et al., Defendants-Appellees.
    First District (1st Division)
    No. 81-559
    Opinion filed February 22, 1982.
    Supplemental opinion filed on denial of rehearing March 29, 1982.

      Anesi, Ozmon, Lewin & Associates, Ltd., and Collens, Wright, Samuels & Kennedy, both of Chicago (Nat P. Ozmon, Rick A. Gleason, and Karla Wright, of counsel), for appellant.
    Joel A. Haber, Alvin D. Meyers, and Steven J. Teplinsky, all of Chicago (Chatz, Berman, Maragos, Haber & Fagel, of counsel), for appellee Reuben H. Donnelley Corporation.
    L. Bow Pritchett, Patrick J. Kilroy, Jr., and Robert Guritz, all of Chicago, for appellee Illinois Bell Telephone Company.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Tru-Link Fence Company, Inc. (plaintiff), originally brought this action for injunctive relief against The Reuben H. Donnelley Corporation (Donnelley) and Illinois Bell Telephone Company (Bell). Plaintiff’s third amended complaint sought injunctive and additional relief from both defendants and one Stanton Ascher, doing business as Wood and Link Fence Company. Ascher was not served with process. Upon motion of Donnelley and Bell, the trial court dismissed plaintiff’s third amended complaint for failure to state a cause of action. Plaintiff appeals.

Some background information is necessary. Donnelley is a publisher of telephone classified directories commonly known as the yellow pages. Donnelley publishes a separate yellow page directory for the suburban communities of the greater Chicago area and names each of these directories for the municipality it serves, e.g., “Winnetka Telephone Directory.”

In 1976, Donnelley promulgated a new regulation concerning the advertising content of its suburban directories. The regulation states in effect that if an advertiser uses in its business title the name of the suburban municipality served by a suburban directory and the advertiser does not have a business address within that municipality, the advertiser must list its primary street and city address. This regulation is referred to as the “community name standard.”

Count I of plaintiff’s third amended complaint alleges defendant Donnelley, by virtue of an “exclusive contract” with Bell, enjoyed a monopoly to publish the yellow pages in the suburban directories. Donnelley had promulgated the community name standard. Bell expressly or impliedly approved these regulations. Bell and Donnelley were under a duty to insure these regulations did not place an unreasonable restraint on trade or commerce particularly in light of Donnelley’s “suburban monopoly.” Plaintiff further alleged a large number of plaintiff’s potential suburban customers believe a business is not able to serve them adequately if its principal place of business is in Chicago. Plaintiff alleged from 1955 to 1976, Donnelley did not require plaintiff or “most” of its other advertisers to comply with the regulation pertaining to the community name standard. In 1976, Donnelley and Bell entered into a “contract, combination or conspiracy” by agreeing to have Donnelley enforce its regulation as to plaintiff but not against “most” other advertisers. Count I concluded this conduct placed an unreasonable restraint on trade or commerce and was wilful and malicious, causing damage to plaintiff for which there was no adequate remedy at law. Plaintiff therefore prayed for injunctive relief against the enforcement of the regulation pursuant to the Illinois Antitrust Act (Ill. Rev. Stat. 1979, ch. 38, par. 60 — 3(2)).

Count II of the third amended complaint, also against Donnelley and Bell, realleged portions of count I. Plaintiff further alleged Donnelley and Bell were under a duty to insure the advertising regulations did not intentionally interfere with plaintiff’s business prospects, particularly in light of the “suburban monopoly.” Plaintiff alleged Donnelley and Bell breached this duty by enforcing the address requirement against plaintiff and not against “most” other advertisers. This breach forced plaintiff to comply with the regulation and thereby caused plaintiff to lose large numbers of potential customers. Plaintiff prayed for injunctional and compensatory relief including punitive damages.

Count III realleged portions of count I and alleged defendant Stanton Ascher, doing business as Wood and Link Fence Company, induced Donnelley to interfere intentionally with plaintiff’s business prospects by enforcing the community name standard as to plaintiff but not as to “most” other advertisers in order to reduce competition. Plaintiff again prayed for injunctive and compensatory relief in tort.

Count IV sought a declaratory judgment (Ill. Rev. Stat. 1979, ch. 110, par. 57.1) that the community name standard was unreasonable on its face and in its application and contrary to the “public policy” of the State of Illinois.

On January 21, 1981, the trial court dismissed the third amended complaint with prejudice for failure to state a cause of action against the defendants. On February 19, 1981, plaintiff requested the trial court to vacate the dismissal and grant leave to file a fourth amended complaint. On February 20, 1981, plaintiff filed its notice of appeal from the final order of January 21, 1981. On April 9, 1981, the trial court denied plaintiff’s request to vacate the dismissal order of January 21, 1981.

In this court, plaintiff contends the trial court erred in dismissing its third amended complaint. Plaintiff argues the third amended complaint properly alleged a cause of action against both defendants.

“On motion to dismiss we accept as true all well-pleaded facts.” (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 329, 371 N.E.2d 634.) We do not, however, accept as true “conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest.” (Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 980, 387 N.E.2d 785.) In People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, the supreme court stated:

“Illinois is a fact-pleading State. This means that although pleadings are to be liberally construed and formal or technical allegations are not necessary, a complaint must, nevertheless, contain facts to state a cause of action. (Ill. Rev. Stat. 1975, ch. 110, par. 31.) Which facts? The complaint is deficient when it fails to allege the facts necessary for the plaintiff to recover. (Fanning v. LeMay (1967), 38 Ill. 2d 209, 212.) ‘But it is a rule of pleading long established, that a pleader is not required to set out his evidence. To the contrary, only the ultimate facts to be proved should be alleged and not the evidentiary facts tending to prove such ultimate facts.’ Board of Education v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill. 2d 439, 446-47.
To pass muster a complaint must state a cause of action in two ways. First, it must be legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it fails to do this, there is no recourse at law for the injury alleged, and the complaint must be dismissed. (See, e.g., Ritchey v. Maksin (1978), 71 Ill. 2d 470, 475; Pierce v. Carpentier (1960), 20 Ill. 2d 526, 530-31.) Second and unlike Federal practice, the complaint must be factually sufficient; it must plead facts which bring the claim within the legally recognized cause of action alleged. If it does not, the complaint must be dismissed. See, e.g., Van Dekerkhov v. City of Herrin (1972), 51 Ill. 2d 374, 376-77.”

Furthermore, the complaint should not merely paraphrase the law “as though [the pleader] needs only to say that his case will meet legal requirements, without stating the facts.” Richardson v. Eichhorn (1958), 18 Ill. App. 2d 273, 276, 151 N.E.2d 819.

In our opinion, the trial court properly concluded count I failed to state a cause of action. While this court is mindful of the difficulty in distinguishing between “ultimate” facts and “conclusions of law” (see Van Dekerkhov v. City of Herrin (1972), 51 Ill. 2d 374, 376, 282 N.E.2d 723), we are nevertheless constrained to find this count to be legally insufficient.

First, it must be noted plaintiff has based its cause of action entirely upon various legal conclusions it sets forth as factual allegations. Plaintiff concludes, without stating pertinent facts, that Donnelley had an “exclusive” contract with Bell which has resulted in a “suburban monopoly.” Plaintiff then proceeds to establish a duty upon the defendants with respect to the advertising regulations “particularly in light of Donnelley’s suburban monopoly * e Clearly, plaintiff has attempted to base its allegations solely upon a set of conclusions without factual support.

Section 3(2) of the Illinois Antitrust Act (Ill. Rev. Stat. 1979, ch. 38, par. 60 — 3(2)), upon which plaintiff has based count I of its third amended complaint, states:

“Every person shall be deemed to have committed a violation of this Act who shall:
# # O
By contract, combination, or conspiracy with one or more persons unreasonably restrain trade or commerce; ” °

Plaintiff alleges Donnelley and Bell “entered into a contract, combination or conspiracy” to enforce the community name standard as to plaintiff but not as to “most” other advertisers. This conduct, alleges plaintiff, placed “an unreasonable restraint on trade or commerce.” Plaintiff has not, however, alleged any facts to support these conclusions. There are no facts stated as to the alleged conspiracy and no facts as to how it operated. Our courts have held a plaintiff cannot merely repeat or paraphrase the language of a statute without stating the necessary supporting facts. See Van Dekerkhov v. City of Herrin (1972), 51 Ill. 2d 374, 375-76; Richardson v. Eichhorn (1958), 18 Ill. App. 2d 273, 276.

We also find plaintiff’s unsupported conclusion that “most” other advertisers were not forced to comply with the regulation to be insufficient under the holding in Coffey v. MacKay (1972), 2 Ill. App. 3d 802, 277 N.E.2d 748. In Coffey, the court found the plaintiff had failed to state a cause of action under section 60 — 3(2) of the Antitrust Act “where the only allegation is a bare refusal to deal with the plaintiff while dealing with a competitor of the plaintiff.” (2 Ill. App. 3d 802, 810.) In the instant case, plaintiff has not alleged the defendants acted in favor of his competitors, but makes only charges that “most other advertisers” were favored. There are no specific factual allegations as to who was favored and how this favoritism constituted a restraining of trade. By analogy to Coffey, we find this aspect of the count further supports the decision to dismiss count I of the third amended complaint.

This aspect of the complaint differentiates this case from People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, where the supreme court found the complaint at issue both legally and factually sufficient. The court noted the allegation the defendants engaged in a conspiracy to fix prices was legally sufficient, as such an act was a per se violation of the Illinois Antitrust Act (Ill. Rev. Stat. 1975, ch. 38, par. 60 — 3(l)(a)). The supreme court found the complaint to be factually sufficient as it alleged the necessary ultimate facts that the defendants, who would otherwise be competitors, had agreed to fix prices. (88 Ill. 2d 300, 308.) In the instant case, plaintiff only alleged the defendants acted unreasonably to restrain trade, without setting forth the ultimate facts which could establish such a restraint. We must therefore conclude count I was properly dismissed.

Plaintiff contends the trial court failed properly to apply the “rule of reason” as set forth in Board of Trade v. United States (1918), 246 U.S. 231, 62 L. Ed. 683, 38 S. Ct. 242. Plaintiff cites many cases in support of this proposition. This argument, however, fails to understand the actions of the trial court as well as the scope of this court’s review. The decision to dismiss count I of the complaint was based on the failure to state a cause of action, and was not based on the merits of the case. Similarly, our review is limited to the issue of whether a cause of action was set forth in the complaint. The merits of the case are not before us. See People ex rel. Council 19, American Federation of State, County and Municipal Employees v. Egan (1977), 52 Ill. App. 3d 1042, 1045, 368 N.E.2d 481, appeal denied (1978), 67 Ill. 2d 595.

Count II of plaintiff’s third amended complaint alleges Donnelley and Bell intentionally interfered with plaintiff’s business prospects. Plaintiff alleged both defendants were under a duty not to interfere with plaintiff’s business prospects, “particularly in light of Donnelley’s suburban monopoly.” Plaintiff alleged Donnelley breached this duty by forcing plaintiff to comply with the community name standard, and Bell breached this duty by either conspiring with Donnelley or ratifying this action.

Plaintiff contends this count should not have been dismissed for failure to state a cause of action. We do not agree. In order to state a cause of action for intentional interference with business prospects, the plaintiff must allege (Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1973), 16 Ill. App. 3d 709,713-14, 306 N.E.2d 549, rev’d in part on other grounds (1975), 61 Ill. 2d 129, 334 N.E.2d 160):

« * o * the plaintiff’s reasonable expectancy of entering into a valid business relationship; the defendant’s knowledge of this expectancy; an intentional interference by the defendant which prevents the expectancy from ripening into a valid business reíationship; and damage to the plaintiff from such interference.”

Plaintiff’s complaint does not allege the defendants had knowledge of any business expectancy of plaintiff or that there was an intentional action by the defendants to interfere with this expectancy. Rather, plaintiff alleges the defendants had a duty not to interfere with these business prospects and this duty was breached. In Davis v. Thompson (1979), 79 Ill. App. 3d 613, 616, 399 N.E.2d 195, this court stated:

“It is not sufficient that the complaint allege a duty. The pleader must allege facts from which the duty arises. [Citation.] Furthermore, the pleading of conclusions will not suffice for allegations of fact.”

Plaintiff pleaded no facts which support these allegations of duty, but again attempts to buttress the allegation with reference to the “suburban monopoly” enjoyed by Donnelley. Such conclusory allegations without the requisite factual support cannot establish a cause of action.

We also note plaintiff failed to allege either a reasonable expectancy of entering into a business relationship or that the defendants purposely interfered with any of these prospective relationships. In Crinkley v. Dow Jones & Co. (1978), 67 Ill. App. 3d 869, 880, 385 N.E.2d 714, appeal denied (1979), 75 111. 2d 590, this court reiterated this cause of action is actually a “purposely” caused tort, and a plaintiff must set forth facts which suggest the defendants had as their purpose the interference complained of. Without such allegations, the cause of action should be dismissed as “no set of facts could be proved under the pleadings which would entitle [plaintiff] to relief.” (Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400, 404, 357 N.E.2d 211.) This rationale also supports the finding that plaintiff has failed to state a cause of action.

The above principles apply to the dismissal of count III of the amended complaint as well. In count III, plaintiff alleged Donnelley breached its “duty” not to interfere with plaintiff’s business prospects upon inducement by Stanton Ascher, doing business as Wood and Link Fence Company. Again, plaintiff alleges no facts in support of this “duty” outside of the conclusory allegations of Donnelley’s “suburban monopoly.” Plaintiff also fails to allege any purposeful act on the part of Donnelley. We must therefore conclude the trial court was correct in finding this count also failed to state a cause of action. See Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400, 403-04.

In its brief, plaintiff again attempts to establish the counts were improperly dismissed by arguing the merits of its case. As noted above, this belies the scope of review of both this court and the trial court. A complaint must state a cause of action before the merits of the cause are determined. (See Egan, 52 Ill. App. 3d 1042, 1045.) As counts II and III of the amended complaint fail to state a cause of action, the merits are not before us.

In count IV of its third amended complaint, plaintiff seeks a declaratory judgment that the community name standard is against the “public policy” of the State of Illinois on its face and in its application. This count was also dismissed for failure to state a cause of action.

In our opinion, this dismissal was proper. As in previous counts, plaintiff attempts to support the alleged “public policy” of the State with conclusions rather than specific facts. Plaintiff again points to the “suburban monopoly” allegedly enjoyed by Donnelley in arguing the “public policy” of the State requires reasonable regulations controlling the content of advertisements. Plaintiff then proceeds to state the basis for this argument solely in terms of conclusory allegations without detailing any facts upon which the claim is based. For example, plaintiff refers to the failure of the regulation “to protect the legitimate interests of the consumer.” Plaintiff states the regulation “is contrary to the realities of modern trade and commerce in the Chicago metropolitan area.” Such allegations are conclusory and without factual basis, and therefore render the count both legally and factually insufficient. See Ritchey v. Maksin (1978), 71 Ill. 2d 470, 474-75, 376 N.E.2d 991; Van Dekerkhov v. City of Herrin (1972), 51 Ill. 2d 374, 376-77.

In its brief, plaintiff again argues the merits of the case in support of count IV. We can only repeat the merits óf the count are not before this court as the complaint has failed to state a cause of action. See Egan, 52 Ill. App. 3d 1042,1045.

Plaintiff contends in the event this court finds the third amended complaint failed to state a cause of action, plaintiff should be granted leave to file a fourth amended complaint. We disagree. The record shows the third amended complaint was dismissed with prejudice on January 21, 1981. Plaintiff filed a motion to vacate the dismissal on February 19,1981. On the very next day, however, plaintiff filed its notice of appeal from the January 21, 1981, order. The filing of the notice of appeal without obtaining a decision on the pending motion to vacate the judgment constituted an abandonment of the motion to vacate the judgment. (See Richey Manufacturing Co. v. Mercantile National Bank (1976), 40 Ill. App. 3d 923, 925-26, 353 N.E.2d 123, appeal denied (1976), 64 Ill. 2d 598.) This argument is therefore rejected.

For these reasons, the judgment appealed from is affirmed.

Judgment affirmed.

McGLOON and O’CONNOR, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE GOLDBERG

delivered the opinion of the court:

In our analysis of count I of plaintiff’s third amended complaint, we found the count failed to state a cause of action under section 3(2) of the Illinois Antitrust Act (Ill. Rev. Stat. 1979, ch. 38, par. 60 — 3(2)). We attributed the inadequacy of this count to the failure of the plaintiff to plead the necessary facts as to how the alleged combination or conspiracy operated. In its petition for rehearing, plaintiff has strenuously urged this court applied the wrong analysis in affirming the dismissal of count I.

We believe our decision is supported by the recent opinion of the supreme court in People ex rel. Scott v. College Hills Corp. (Nos. 54668, 54679, 54689, 54690, filed March 16,1982),_Ill. 2d_,_N.E.2d__ One issue before the court in that case was the sufficiency of the plaintiff’s complaint charging the defendants with unreasonable restraint of trade in violation of section 3(2) of the Illinois Antitrust Act (111. Rev. Stat. 1977, ch. 38, par. 60 — 3(2)). In its analysis of this count, the supreme court specifically noted the plaintiff alleged four distinct elements which together properly stated a cause of action under the statute. The court first noted the complaint alleged the existence of an illegal conspiracy. Second, the court pointed out the plaintiff specifically described the ways in which the conspiracy allegedly manifested itself. Third, the court noted the complaint described “in detail” what the defendants did in furtherance of the alleged conspiracy. Finally, the supreme court quoted directly from the complaint the four-pronged paragraph detailing the anticompetitive effects allegedly resulting from the conspiracy. The court concluded a cause of action was properly pleaded, stating “[t]he essential elements of the purported conspiracy and its anticompetitive effects under section 3(2) of the Illinois Antitrust Act are sufficiently alleged.” People ex rel. Scott v. College Hills Corp. (1982),_Ill. 2d_,-,-N.E.2d__

Although pleadings are to be liberally construed, they must still be “construed strictly against the pleader.” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 421, 430 N.E.2d 976.) The requirement of liberal construction does “not remedy the failure of a complaint to state a cause of action.” (88 Ill. 2d 407, 427.) In the instant case, plaintiff Tru-Link did allege the existence of an illegal “contract, combination or conspiracy” between the defendants in violation of section (2) of the Illinois Antitrust Act. Plaintiff also pleaded the actions allegedly taken in furtherance of the conspiracy. The complaint before us does not, however, state any ultimate facts as to how this alleged conspiracy manifested itself with respect to the marketplace or what ultimate anticompetitive effects of the alleged conspiracy were realized. Plaintiff alleges only a pure conclusion that the conduct of the defendants “placed, and continues to place an unreasonable restraint on trade or commerce” and has caused plaintiff to lose potential customers. We believe these conclusory statements do not constitute a factual statement as to how the conspiracy operated to the detriment of the plaintiff and the marketplace.

We adhere to our decision affirming the dismissal of count I of plaintiff's third amended complaint. Plaintiff’s petition for rehearing is denied.

Petition for rehearing denied.

McGLOON and O’CONNOR, JJ., concur.


author: JUSTICE HOPE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff and Respondent-Appellee, v. ELMER CARTEE et al., Defendants and Petitioners-Appellants.
    Second District
    Nos. 81-391, 81-394 cons.
    Opinion filed March 10, 1982.

      Lonny Ben Ogus, of Chicago, for appellants.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

This is an appeal from the dismissal of petitioners’ request for post-conviction relief. Petitioners Elmer Cartee and Patrick Russell urge that the Lake County circuit court failed to instruct the jury as required by the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4(i)). The State contends this issue is waived for purposes of appeal.

After a jury trial in Lake County in June 1975, petitioners were found guilty of robbery and were sentenced to 6 2/3 years to 20 years, to be served consecutively to a sentence for an unrelated previous conviction. They appealed from the June 1975 conviction and urged that the trial court erred in sentencing them consecutively. This court affirmed their convictions and dismissed their appeal by Rule 23 issued in December 1976.

Petitioners then filed a pro se petition for post-conviction relief, contending that they had been denied effective assistance of counsel. Counsel was subsequently appointed for them. Their amended petition was denied after a hearing. On appeal, this court affirmed the denial of post-conviction proceedings in People v. Cartee (1980), 86 Ill. App. 3d 895, 408 N.E.2d 396.

On March 19, 1981, petitioners filed their second petition for post-conviction relief with the trial court. The State’s motion to dismiss was granted and petitioners perfected this appeal. They now contend that the failure of the trial court to orally instruct the jury denied them their constitutional rights.

The report of proceedings indicates that the assistant State’s Attorney finished his argument and thanked the jury. After this it is indicated that the jury withdrew for deliberation. The next event transcribed was taken down in chambers, where the judge read a note from the foreman of the jury. It is apparent that the note was written after the jury began deliberating. The page shows no indication of the trial court having read the instructions to the jury. It is, however, clear that the jury did receive written jury instructions.

The first issue addressed is whether or not the question raised by petitioners has been waived for purposes of appeal. The State contends the petitioners have waived their argument because there was a prior appeal and the issues previously raised are barred by res judicata and issues that could have been raised are now waived. (People v. French (1970), 46 Ill. 2d 104, 262 N.E.2d 901.) They urge that the jury instructions issue could have been raised at either of the two previous appeals to this court.

Petitioners contend that the instructions issue could not have been raised prior to this because each prior attorney could not have charged himself or herself with the failure to object to the trial court’s omission. However, this argument is not consistent with the petitioners’ previous appeal in which the appellate defender’s office argued that the Lake County public defender had not adequately represented petitioners at trial. As such, petitioners’ attorney’s failure to object could and arguably should have been raised in the prior appeal. This court has already reviewed the allegations of petitioners that their trial and appellate counsel were incompetent. (People v. Cartee.) It was determined they were competently represented.

In People v. Collins (1968), 39 Ill. 2d 286, 289, 235 N.E.2d 570, the supreme court noted that where the petitioner in post-conviction relief had failed to raise the issue of the competency of his trial counsel in his original appeal, he could not use the Post-Conviction Hearing Act as a device to obtain a hearing upon such constitutional claims. This principle is applicable to the case before this court. Petitioners in this cause could have brought the issue to the court’s attention in either of their previous appeals, especially the appeal which concerned the competency of their public and appellate defenders.

It should be noted that the Supreme Court Rules do address the issue of waiver of jury instructions in criminal cases. Supreme Court Rule 451 (Ill. Rev. Stat. 1979, ch. 110A, par. 451(c)) provides that “Instructions in criminal cases shall be tendered, settled, and given in accordance with section 67 of the Civil Practice Act, but substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.” However, the courts have interpreted this Rule quite restrictively. Section 67 of the Civil Practice Act, (Ill. Rev. Stat. 1979, ch. 110, par. 67) does not explicitly require that instructions be read by the court to the jury.

The supreme court has addressed the question of whether or not a defendant can raise the issue of alleged error in jury instructions when that error was not objected to at trial. In a case where defendants were appealing from a post-conviction hearing, the court held that Rule 451(c) was not applicable and that the defendants had not met its requirements. The court stated:

“As we emphasized in People v. Precup (1978), 73 Ill. 2d 7, 16, in the context of Rule 615 plain error, our exceptions to the waiver rule do not operate in the nature of a general saving clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court. That observation in Precup applies with equal validity to claimed error in jury instructions. Finally in addition to the waiver barrier, Grizzle has not demonstrated a trial error of such magnitude that constitutional standards require the granting of a new trial under the Post-Conviction Hearing Act.” People v. Roberts (1979), 75 Ill. 2d 1, 16, 387 N.E.2d 331, 338.

While the waiver rule does not apply to substantial defects in instructions if the interests of justice require it, we see no grave error here. The relevant portion of the Code of Criminal Procedure of 1963 provides: “After arguments of counsel the court shall instruct the jury as to the law.” (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4(i).) While there is no indication that the jury did not receive written jury instructions it is possible that the instructions were not read orally. It is clear that the reading of these instructions to the jury at the close of oral arguments is a vital part of the trial. (Kinser v. Kruse (1972), 4 Ill. App. 3d 987, 283 N.E.2d 120.) Rinser was a civil case where the trial court read the instructions to the jury but in response to a juror’s statement that he could not hear the judge, the judge stated that “This is not really for you, this is mostly for the court reporters now.” The cause was remanded for a new trial.

We are of the opinion that the record fails to show that an error affecting substantial rights was committed. (People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.) The record is inconclusive as it does not sufficiently set forth that oral instructions were not given. We will presume that the trial court did not err in this respect. (Cunag v. McCarthy (1963), 42 Ill. App. 2d 36, 45, 191 N.E.2d 404, 408.) We see no plain error.

Even if we were to find that this issue was not waived, and were to consider petitioners’ contention, it would fail. The proposition is well settled that the burden on appeal is on appellant to demonstrate error in the record, and failing to do so, there is a presumption of regularity which attaches to the proceeding in the trial court. People v. Schomer (1978), 64 Ill. App. 3d 440, 446, 381 N.E.2d 62, 64.

For these reasons, the trial court’s dismissal of petitioners’ request for post-conviction relief is affirmed.

Affirmed.

UNVERZAGT and LINDBERG, JJ., concur.


author: JUSTICE TRAPP

text:
    ROBERT C. ROBINSON et al., Plaintiffs-Appellants, v. FIRST STATE BANK OF MONTICELLO et al., Defendants-Appellees.
    Fourth District
    No. 17267
    Opinion filed February 4, 1982.
    Rehearing denied April 13, 1982.

      Harlan Heller, of Harlan Heller, Ltd., of Mattoon, for appellants.
    Kenneth Kinser, Monroe, Wilson, Dyar, Houchens & McDonald, and Michael I. Campbell, of Hull, Campbell, Robinson & Gibson, all of Decatur, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiffs appeal from the order of the trial court which dismissed their complaint for money damages upon the motions by the respective defendants made pursuant to section 48 of the Civil Practice Act. Ill. Rev. Stat. 1979, ch. 110, par. 48.

Plaintiffs are the heirs at law of Cordelia Davis, whose will and codicil were admitted to probate on October 10, 1978. On that date defendant (Bank) was appointed executor. Defendant, Doss, received substantially all of the testator’s estate under the will and codicil which were executed on November 15, 1974, and August 20,1976, respectively.

The will and codicil drafted by an attorney, Kenneth Kinser, recited that Doss had been testator’s friend, confidant and legal advisor and that Doss had refused to prepare the will for testator because of his professional relationship. Kinser is the attorney for the decedent’s estate.

Although not included as parties to the actions, we designate five individuals unrelated to testator who were legatees and devisees under a will executed on March 10, 1973, as Anderson. The record discloses that on December 17, 1973, testator executed, in the presence of witnesses, and verified a document designated “Disclaimer, Cancellation, Nullification and Revocation.” It recited that it is directed to the cancellation, disclaimer and revocation of all documents, instruments, pleadings, and other “written data,” as well as a will prepared by an attorney from Chicago. The recitation discloses that the latter apparently became decedent’s attorney at the suggestion of Anderson.

On April 6, 1979, the plaintiffs and Doss, together with Anderson as three designated parties acting through their respective attorneys, entered into a written agreement which stated the interests of the several parties and recited:

“WHEREAS, Robinson (plaintiffs) et al have agreed to refrain from filing a suit to contest either Will of Cordelia R. Davis above described, and Doss and Anderson, et al have agreed to pay Robinson, et al from the estate assets the sum of One Hundred Twenty-Five Thousand Dollars ($125,000.00).
* o e
3. Robinson, et al agree that they will not file a lawsuit to contest the Wills and Codicil of Cordelia R. Davis above described.
4. Doss and Anderson, et al agree that Robinson, et al will be paid the sum of One Hundred Twenty-Five Thousand Dollars ($125,000.00) out of the assets of the estate.”

The document was executed by persons designated as the attorneys acting for each of the three parties. Beneath the signature of the attorneys and to the left margin was the notation “APPROVED AND ACCEPTED” with the signature of the attorney designated as the attorney for the executor.

The record contains a probate form identified as “EXHIBIT 4” to the pleading designated “RECEIPT ON DISTRIBUTION,” reciting the receipt of cash in the sum of $125,000, pursuant to the agreement dated April 6, 1979. The document is not dated and bears no file stamp, but is signed by the attorney in behalf of the plaintiffs. The form waived notice and consented to approval of the final account of defendant Bank in its capacity of executor of the estate.

On March 4, 1981, plaintiffs filed a “PETITION FOR CITATION TO DISCOVER INFORMATION,” directed to the attorney for the estate, the president of the Bank and defendant Doss. As to the Bank and the attorney for the estate it is alleged that there was a duty as a fiduciary to disclose the document which purported to revoke the first will of the testator; that defendants failed to so disclose the existence of the document with the result that plaintiffs failed to file a will contest and entered into the settlement agreement. It was alleged that the original document could not be found, although a photocopy of an executed copy was attached to the petition.

The petition alleged that there were “substantial grounds” to contest the probated will for the reason that Doss was attorney for the testator at the time of the execution of the will and codicil and received most of testator’s property while serving in a fiduciary capacity.

The petition prayed discovery of the document of revocation, correspondence concerning it, and any other wills. Each defendant filed a motion to dismiss the petition. The written order found that the trial court did not have jurisdiction to entertain the petition, and that the petitioners had not shown an interest in the estate. The order contained a finding that there was no just cause for delay of appeal.

No appeal has been sought as to either the order probating the will and codicil or the petition for discovery. On April 6,1981, plaintiffs filed this complaint.

Count I of the complaint is against the defendant Bank, which alleged the interests of the parties, the execution of the first will in 1973, the document of revocation, the execution and probate of the second will and codicil and alleged, in general terms, that as executor the Bank was a fiduciary to the heirs, that the heirs had a right to know of the revocation of the executed will in 1973, and alleged, in general terms, that the heirs had not known of the document of revocation and that the executor knew that the heirs would not have settled as in the agreement if they had known of such document. Without allegation of facts, the Bank’s conduct is characterized as “concealment.”

Count II of the complaint was directed against the Bank as executor and alleged that the defendant Bank had a duty to exercise reasonable care to disclose the facts described and knew that the plaintiffs would settle in the absence of such discovery, but that it negligently failed to disclose the fact of revocation with the proximate result that the plaintiffs were deprived of their inheritance.

Defendant Bank filed its motion to dismiss counts I and II, stating as grounds therefor that section 8 — 1 of the Probate Act requires that a will contest suit be filed within six months and that such time limit is jurisdictional; that plaintiffs were notified of the probate proceedings and that no appeal was taken from the order admitting the will and codicil to probate. This action is characterized as a collateral attack on the order admitting the will and codicil to probate. It was further stated that plaintiffs have no standing to bring this action while the order admitting the will and codicil to probate stands; that the agreement between the parties shows, upon its face, that the Bank was not a party thereto and could not have participated in the negotiations but only acquiesced in the agreement of the parties. It was further stated that plaintiffs’ allegation of a fiduciary duty to them is a conclusion of the pleader and that since the will and codicil have not been set aside, no fiduciary relation existed toward the plaintiffs who were not beneficiaries; that plaintiffs had retained counsel for purposes of the agreement and did not repose an especial trust and confidence in the Bank. It was further stated that defendant, by reason of section 8 — 1(e) of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. IIOJ2, par. 8 — 1(e)) was obligated and under a duty to support the will and codicil, and that the Bank had no obligation to become an advocate of the plaintiffs who occupied an adversary posture to the will and codicil.

The written order of the trial court dismissed the complaint with prejudice as to counts I and II directed against the Bank but stated no finding of fact, conclusions of law, or any other reason in dismissing the complaint.

Analysis of the complaint discloses that relief for plaintiffs against the Bank first requires a determination that testator’s will was invalid as the product of fraud or undue influence on the part of Doss. If the will is valid, it cannot reasonably be said that plaintiffs have suffered as in tort.

The order of probate established the validity of the will against collateral attack, and if no direct proceeding to contest the will is brought within the statutory period, the validity of the will is established for all purposes. (Sternberg v. St. Louis Union Trust Co. (1946), 394 Ill. 452, 68 N.E.2d 892.) A will admitted to probate is valid until the will is set aside. In re Estate of MacLeish (1976), 35 Ill. App. 3d 835, 342 N.E.2d 740.

In Luther v. Luther (1887), 122 Ill. 558, there was a complaint to set aside a will filed some 10 years after probate. It was alleged that testator was incompetent, that there was fraud and misrepresentation in the making of the will, and that the cause of action was fraudulently concealed from plaintiffs. Discussing the history of will contest proceedings, the opinion found that there was no power to contest a will at common law or in equity, and that a court had jurisdiction only by provisions of the statute. The supreme court affirmed the dismissal of the action for want of jurisdiction, saying:

“The original probate of the will upon the testimony of the subscribing witnesses is allowed without delay, in order to secure an orderly settlement of the estate and to prevent the embarrassments and injurious consequences to creditors and others, which might result from the delay incident to a contest over the will. But serious consequences may also result from too long a delay to the property rights and titles of parties interested in and holding under the will, and, therefore, a period should be fixed after which the original probate should be regarded as binding and conclusive.” 122 Ill. 558, 566.

This rule was reiterated in Ruffing v. Glissendorf (1968), 41 Ill. 2d 412, 415-16, 243 N.E.2d 236, 238, and the opinion continued to state:

“This court held that the time limitation of the statute was not a statute of limitations but was a jurisdictional limitation and that the running of the time limitation was not tolled by fraudulent concealment of the cause of action or by any other fact not expressly provided for by the statute itself.” (Emphasis added.)

In Pedersen v. Dempsey (1950), 341 Ill. App. 141, 93 N.E.2d 85, petitioners sought to set aside an order admitting a will to probate some three years earlier alleging newly discovered evidence affecting the validity of the will. The opinion discussed the statutory provisions which successively reduced the time for filing a will contest, and concluded:

“The reason for these reductions in the time within which the validity of a will may be questioned is the pressing importance of securing an orderly settlement of estates, to prevent embarrassment to creditors and others, and to avoid as much confusion as possible in the vast amount of property rights and titles that pass through probate. So important has this been deemed by courts and legislatures that neither fraud and concealment, nor the admitted in competency of an attesting witness nor even the insanity of an heir can upset an order of probate after the time allowed. [Citations.]” 341 Ill. App. 141, 143, 93 N.E.2d 85, 86.

In In re Estate of Moerschel (1980), 86 Ill. App. 3d 482, 407 N.E.2d 1131, a widow sought declaratory judgment that the will of her deceased husband was void. The trial court concluded that the declaratory judgment action was in the nature of a will contest and was barred for failure to file within six months. The opinion quoted the cited language of Pedersen, and continued:

“In considering section 90 of the Probate Act (Ill. Rev. Stat. 1965, ch. 3, par. 90), a predecessor to section 8 — 1 which is before us in the present case, our supreme court held that the period of limitations for filing a will contest was jurisdictional and not tolled by fraudulent concealment or any other fact not provided for by statute. (Ruffing v. Glissendorf (1968), 41 Ill. 2d 412, 243 N.E.2d 236.) 6 • °.” 86 Ill. App. 3d 482, 484, 407 N.E.2d 1131, 1133.

The Moerschel opinion presents a further consideration relevant to counts I and II. The court states:

“Petitioner acknowledges that the validity of a will which has been duly admitted to probate cannot be collaterally attacked but she contends, nevertheless, that since this is a declaratory judgment action, it is not a will contest and is not subject to the six-month limitation period otherwise provided. In Dibble v. Winter (1910), 247 Ill. 243, 251, 93 N.E. 145,148, a case in which a will was sought to be declared null and void and set aside as a cloud on the title of real estate, the court declined to do so, stating, ‘[w]hen the only relief that can be had is to set aside a will and render it null and void, the same as would a contest under section 7 [now section 8 — 1] of the act on wills, it is, in effect, a contest of the will and must be governed by rules of law controlling such contests.’ • * 86 Ill. App. 3d 482, 484, 407 N.E.2d 1131, 1133.

The opinion continues, saying:

“In our view where the only relief which can be provided in an action is a determination that a will is void, it must be construed as a will contest (cf. Neurauter v. Reiner (1969), 117 Ill. App. 2d 141, 254 N.E.2d 66) and therefore must be brought within the six-month statutory period or be barred. Such a result necessarily follows from the jurisdictional nature of the time limitation on will contests and is consistent with the strong and long standing policy of this State favoring the orderly administration of estates.” 86 Ill. App. 3d 482, 485, 407 N.E.2d 1131, 1134.

Upon the facts and allegations pleaded we conclude that the trial court did not have jurisdiction as to count I and count II and the trial court correctly dismissed such counts for such reasons.

Count III of the complaint alleges that defendant Doss was the attorney for testator and as such owed to her a duty as an attorney fiduciary and that he induced testator to execute a will in 1974 making him beneficiary of a substantial amount of the estate and to execute a codicil in 1976 increasing the gift to Doss, as well as cancelling a large debt. It is further alleged that plaintiffs were heirs of testator and the natural objects of her bounty, but that by trick, artifice and abuse of his fiduciary position Doss prevented plaintiffs from receiving their inheritance through his intentional and tortious interference.

Doss filed a motion to dismiss count III, alleging that the will and codicil had been probated so that the court had no jurisdiction since no will contest had been filed within the statutory period. It was further alleged that the order of the trial court which had dismissed plaintiffs’ petition for citation to discover information had determined that the circuit court did not have jurisdiction and that the plaintiffs did not have an interest supporting the proceedings, and that there had been no appeal from such an order made appealable under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)). Upon hearing, the trial court dismissed count III by written order, but made no findings of fact or statement of conclusions of law.

Plaintiffs cite section 774 of the Restatement (Second) of Torts in their argument that we recognize a cause of action in count III of their complaint. Section 774B provides:

“Intentional Interference with Inheritance or Gift. One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” (Restatement (Second) of Torts §774B (1979).)

Comment b of that section defines “inheritance” to include “any devise or bequest that would otherwise have been made under a testamentary instrument or any property that would have passed to the plaintiff by intestate succession.” Restatement (Second) of Torts §774B, comment b (1979).

Two Illinois courts have addressed the issue of whether a cause of action for wrongful interference with inheritance exists in Illinois: Lowe Foundation v. Northern Trust Co. (1951), 342 Ill. App. 379, 96 N.E.2d 831; Nemeth v. Banhalmi (1981), 99 Ill. App. 3d 493, 425 N.E.2d 1187.

In Lowe, plaintiff Lowe Foundation brought a suit for damages alleging that decedent was a resident at a home for Christian Scientists and desired to leave the home $500,000, but was prevented from doing so as a result of representations by an attorney who was a defendant. It was alleged that while in the home decedent had called upon the attorney to draft a codicil to his previous will to leave $500,000 to the plaintiff foundation. The codicil was drafted by the attorney, but it was then discovered that the amount of the bequest had been omitted. When this was brought to the decedent’s attention, he told his attorney to insert the sum of one-half million dollars in the codicil, but the attorney responded that this would exhaust the estate. The attorney advised decedent that he should not place an amount in the instrument until he talked with one Froderman, the testamentary trustee under his will. The following day Froderman and a friend of decedent, Troutman, removed decedent from the home and kept him isolated from plaintiff until his death. In discussing whether a cause of action in tort was stated, the court, noting that the authorities were in conflict, held that since plaintiff did not show that the attorney’s representations were fraudulent when made, the complaint did not state a cause of action. 342 Ill. App. 379, 388, 96 N.E.2d 831, 835.

In Nemeth, plaintiff was the daughter of Rose Steinberg who married decedent following the death of plaintiff’s father. Decedent and Rose had executed a joint and mutual will, leaving the estate to the survivor with the remainder to plaintiff and decedent’s daughter, defendant Kornelia Eanhalmi, in equal shares. Following the death of plaintiff’s mother Rose, decedent moved in with defendant and her husband and revoked his joint and mutual will and left all of his property to defendant. After decedent’s death, defendant claimed that she could not find decedent’s will and so inherited all of his property by intestacy. Plaintiff brought suit against defendant for damages in tort, but the trial court dismissed the complaint. On appeal, the reviewing court determined that plaintiff’s complaint stated a cause of action for intentional interference with inheritance and reversed the trial court’s order. That court, citing Prosser, Torts §130, at 950 (4th ed. 1971), Doremus v. Hennessy (1898), 176 Ill. 608, 52 N.E. 924 (wrongful interference with customer relationships or prospective economic benefits states cause of action), and Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1973), 16 Ill. App. 3d 709, 306 N.E.2d 549, modified on other grounds (1975), 61 Ill. 2d 129, 334 N.E.2d 160 (false credit rating of plaintiff, preventing him from entering into contracts with potential suppliers states cause of action in tort) and cases from other jurisdictions which recognize a cause of action in tort for interference with inheritance, reversed the trial court’s dismissal The court stated that in order for plaintiff to recover on this theory, plaintiff must show (1) the existence of an expectancy; (2) defendant intentionally interfered with this expectancy; (3) the interference involved conduct tortious in itself such as fraud, duress or undue influence; (4) there is a reasonable certainty that the plaintiff would have received the devise but for defendant’s interference; and (5) damages. The court reasoned that since Illinois recognized a cause of action for interference with commercial expectancies, there was no reason not to extend such protection to other noncommercial expectancies when these expectancies had been tortiously interfered with.

We agree with the reasoning of the Nemeth case and conclude that subject to the elements of proof laid down in Nemeth, plaintiffs have alleged sufficient matters to state a cause of action against defendant Doss in tort. While the plaintiffs’ expectancy was the mere interest arising by virtue of the statutory distribution scheme of section 2 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. IIIOJ2, par. 2 — 1), we think this interest should, nevertheless, receive protection. We note, however, that plaintiffs must still prove that there was a reasonable certainty that they would have received their interest but for defendant Doss’ intentional interference.

We note in comparison that counts I and II contain no allegation of fact sufficient to allege that the defendant Bank intentionally interfered with the inheritance of plaintiffs so as to come within the rule creating the tort.

The order of the trial court dismissing counts I and II is affirmed; the order of the trial court dismissing count III is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

Affirmed in part, reversed in part, remanded for further proceedings not inconsistent with the views herein expressed.

MILLS and LONDRIGAN, JJ„ concur.