text:
    GEORGE C. JOHNSON et al., Plaintiffs-Appellants, v. NATIONWIDE BUSINESS FORMS, INC., et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 80-2721, 80-2867 cons.
    Opinion filed December 28, 1981.
    Albert Koretzky and Joseph B. Platt, both of Chicago, for appellants.
    James F. Ashenden, Jr., and Kevin M. O’Keefe, both of O’Keefe, Ashenden & Lyons, and Steven Johnson, of Johnson & Colmar, both of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff George Johnson appeals from the dismissal of his action and, on appeal, argues that the action was not barred under the doctrine of collateral estoppel. Plaintiff Roslyn Johnson appeals from the denial of her motion to reinstate an action.

We affirm.

Plaintiffs George and Roslyn Johnson filed several actions alleging that Insurance Producers Bulletin, Inc. (IPB), was fraudulently and maliciously dissolved in order to avoid paying the Johnsons amounts due under their contract to sell IPB. The first action was filed on August 2, 1971, against Nationwide Business Forms, Inc. (Nationwide), the successor to IPB. On July 18, 1972, George and Roslyn Johnson filed an amended complaint adding as defendants Donald C. Peterson, E. Dean McAlister, Robert Shaffer, and Elmer W. Johnson, Jr. The complaint alleged that the individual defendants conspired to dissolve IPB and transfer its assets to Nationwide so as to defeat plaintiffs’ contractual rights in IPB. Roslyn Johnson was dismissed as a party plaintiff and appealed. Thereafter George Johnson filed a second amended complaint, but the action was dismissed for want of prosecution on November 12, 1975. The dismissal of Roslyn Johnson was reversed by this court in Johnson v. Nationwide Business Forms, Inc. (1976), 41 Ill. App. 3d 128, 359 N.E.2d 171, but she made no attempt to reinstate her action until 1980.

On December 1, 1975, George Johnson filed a diversity action in Federal district court against Donald C. Peterson (the Peterson action). Count I of the complaint alleged that Peterson, with the assistance of McAlister and Elmer Johnson, conspired to dissolve IPB and deprive Johnson of the benefit of the sales contract. Count II alleged tortious interference with contractual relations. After a trial, the jury returned a verdict in favor of defendant Peterson on count I and in favor of plaintiff Johnson on count II. The district court thereafter granted Peterson’s motion for judgment n.o.v. on count II.

The action which is the subject of this appeal was filed by George Johnson on October 2, 1976. The named defendants were Shaffer, McAlister, Elmer Johnson, and Nationwide (the Shaffer action). On February 20, 1980, after the Federal court of appeals affirmed the judgment of the district court in the Peterson action, the Shaffer defendants moved to dismiss the action on the grounds that George Johnson was estopped from pursuing it because of the judgment and findings in the Peterson action. On February 29,1980, Roslyn Johnson moved to reinstate her action, to consolidate her case with Shaffer, and to file an amended complaint instanter. Roslyn Johnson’s proposed amended complaint was virtually identical to that filed by George Johnson in Federal court and that filed in the first action in 1971.

After a hearing, the trial court granted the motion to dismiss the Shaffer action filed by George Johnson and denied Roslyn Johnson’s motions. In addition to its order, the trial court issued a supporting memorandum opinion. In the opinion, the trial court found that the Shaffer action was barred under the doctrine of collateral estoppel. It further found that because Roslyn was George’s privy, her action was also barred. George and Roslyn Johnson each filed a notice of appeal. Their appeals were consolidated by this court.

On appeal, George Johnson contends that the issues decided by the Federal court in the Peterson action were not identical to the issues presented in the Shaffer action because the defendants in each action were different. He therefore maintains that he is not estopped from pursuing the Shaffer action.

The doctrine of collateral estoppel provides that an adjudication on the merits of an issue by a court of competent jurisdiction precludes relitigation of the issue in a subsequent action. (General Parking Corp. v. Kimmel (1979), 79 Ill. App. 3d 883, 398 N.E.2d 1104; Riley v. Unknown Owners (1975), 25 Ill. App. 3d 895, 324 N.E.2d 78.) The doctrine is applicable where the following requirements are met:

(1) the issue decided in the prior adjudication is identical to that presented in the action in question;
(2) a final judgment on the merits was rendered in the prior action; and
(3) the party against whom estoppel is asserted is the same as or in privity with a party to the prior adjudication. (Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 7, 398 N.E.2d 9, citing Riley v. Unknown Owners (1975), 25 Ill. App. 3d 895, 899, 324 N.E.2d 78.)

Regarding the third requirement, the court in Illinois State Chamber of Commerce noted the trend to discard the identical parties rule. The court disapproved of In re Hutul (1973), 54 Ill. 2d 209, 296 N.E.2d 332, wherein identical parties were required for the application of collateral estoppel and res judicata, and stated that Hutul should not be followed on this point.

Upon applying the aforementioned legal principles and considering our supreme court’s explicit rejection of the identical parties rule, we find George Johnson’s contention to be without-merit. The mere fact that defendants in the court below were not parties to the Peterson action in Federal court does not preclude the application of the collateral estoppel doctrine.

We further find that the issues raised in and decided by the Federal court were identical to those presented in the action in question. The complaints filed in each action were nearly identical. In each, it was alleged that Peterson, McAlister, and Elmer Johnson manipulated the operation of IPB so that IPB’s records would reflect large artificial losses. As a result, Peterson, McAlister, and Elmer Johnson could claim that IPB was insolvent and had to be dissolved. The complaints further alleged that Peterson and McAlister made loans to IPB in return for demand notes, intending to declare a default on said notes. They then declared defaults and engaged in transactions designed to imply that IPB was being dissolved legitimately. Following the dissolution, IPB’s assets were transferred to Shaffer who, in turn, transferred them to Nationwide which continued the business of IPB without interruption. The complaints further alleged that the above transactions were illegal and undertaken with the specific intent of injuring the Johnsons and depriving them of the benefits of their agreements with IPB.

The Federal court found that Donald Peterson did not intentionally render IPB insolvent; that the dissolution of IPB was not the result of a conspiracy; that the evidence showed a proper business purpose behind the declaration of default and the sale of assets to new investors; that the loans made to IPB were not made in bad faith; that actions taken to salvage IPB were in substantial conformance with the law; and that George Johnson’s complaint turned a business transaction “inside out” by calling it a conspiracy. We find that the issues presented in the Federal action and the action in the case at bar are identical and that the findings and judgment of the Federal court should therefore operate to bar relitigation of these issues in this case.

Roslyn Johnson contends she is not in privity with George Johnson, that therefore she is not collaterally estopped from pursuing her action, and that the trial court therefore erred in denying her motion to reinstate her action. She asks this court to order the reinstatement so that she may proceed with her action against defendants.

Privity has been described in the following manner:

“Privity is a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in their interests are affected by the judgment with reference to interests involved in the action, as if they were parties. " * (Reinstatement of Judgments §83, comment a, at 389 (1942).)

Stated differently, a nonparty may be bound if his own interests are so closely aligned to a party’s interests that the party is his virtual representative. (United States v. ITT Rayonier, Inc. (9th Cir. 1980), 627 F. 2d 996.) As noted previously in this opinion, collateral estoppel may be asserted against a person in privity with a party to the prior adjudication.

Viewing the facts as a whole, we find that the trial court properly found that Roslyn was George Johnson’s privy. As noted in the previous appeal, Roslyn’s action was identical to George Johnson’s action (Johnson v. Nationwide Business Forms, Inc. (1976), 41 Ill. App. 3d 128, 130, 359 N.E.2d 171, 172.) Her proposed amended complaint was based on identical facts and contained identical allegations of misconduct. The same event, the sale of IPB, gave rise to Roslyn and George’s contractual rights in IPB, and the same acts of alleged misconduct gave rise to their actions. Thus, Rosyln and George indeed had an identity of interests in the Federal action. Furthermore, Roslyn and George Johnson were represented by the same attorneys from the time their first actions were filed in 1971. We view the failure to make Roslyn Johnson a plaintiff in Federal court as an attempt to avoid the preclusive affect of an adverse ruling in that court. To allow her to reinstate her action below would undermine the collateral estoppel rule which seeks to avoid repetitive litigation of the same issue by giving a conclusive effect to prior judgments. Thus, the trial court did not err in denying Roslyn Johnson’s motion to reinstate.

For the foregoing reasons, the orders of the circuit court of Cook County are affirmed.

Orders affirmed.

CAMPBELL, P. J., and GOLDBERG, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    RAYMOND M. WALSH, Plaintiff-Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF ORLAND PARK et al., Defendants-Appellees.
    First District (1st Division)
    No. 80-2792
    Opinion filed December 28, 1981.

      Condon, Cook & Roche, Ltd., of Chicago, for appellant.
    Goldstine & Broida, Ltd., of Summit (Ronald J. Broida and Richard J. Skrodzki, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Robert Walsh, an Orland Park policeman, was charged with violating several regulations of the police department as the result of a shooting incident. After a hearing before the Board of Fire and Police Commissioners of the Village of Orland Park (Board) he was discharged from service. On review of the administrative proceedings, the circuit court of Cook County affirmed the Board’s decision. Walsh has appealed these determinations, contending (1) the Board did not have jurisdiction over him since he was on disability suspension at the time of the incident and the hearing, and also since he had resigned from the police department; and (2) the findings of the Board are contrary to the manifest weight of the evidence.

On November 22, 1977, the chief of police of Orland Park filed charges against Walsh based upon a shooting incident that took place September 17-18, 1977. These charges included: excessive use of intoxicants, commission of a crime, conduct unbecoming a police officer, unlawful use of a weapon, conduct tending to cast disrepute on the department, conduct contrary to the public peace or welfare, and drawing a firearm needlessly. Specifications filed with the Board alleged Walsh was under the influence of intoxicants in such a way that he was unfit for duty and that he conducted himself in a manner unbecoming a police officer by illegally drawing, displaying and discharging a weapon so as to commit the crime of reckless conduct and aggravated battery.

A hearing on this matter established the following facts:

Walsh was a member of the police department from the time of his appointment on June 7,1971, to the date of the incident. He had achieved the rank of sergeant. On April 22, 1977, Walsh was placed on medical disability suspension. This suspension was based upon the action of the police chief and Walsh received pension benefits after a Board of Trustees of the Police Pension Fund of Orland Park (Pension Board) determination of Walsh’s mental disability. The police chief and several members of the department were aware of Walsh’s condition and that he was under psychiatric care.

Late on the evening of September 17, 1977, Walsh telephoned his friend and co-worker Sergeant Smith. Walsh said, “it was his time” and that he was “going to do himself in.” Smith tried to calm Walsh down over the phone. After Walsh hung up, Smith called him back and had a similar conversation. Smith then went over to Walsh’s house. He was dressed in civilian clothes and was unarmed. Smith noticed a gun in Walsh’s hands when he was allowed into the house. Walsh’s wife was present as the three of them were in the living room. Several times Walsh pointed the gun at Smith or his wife, pulling the hammer back in a cocked position. Smith warned Walsh not to do this and to put the gun down before someone was hurt. Walsh never laid the gun down, but did hold it down at his side.

After 15-20 minutes Walsh offered Smith a drink. Smith declined and Walsh made himself a drink. Soon thereafter, the drink spilled on the floor. At this point, Walsh shot at the empty glass and missed. He then kicked and broke the glass. Smith tried again to get Walsh to put the gun down. The only response from Walsh was to the effect that he would not put the gun down.

Walsh then moved in the direction of S ~ ;th to get his cigarettes. The gun in his hand was pointed towards Sim m :th did not know if the gun was aimed, just that it was pointed towards him. As Walsh bent down, the gun, which was approximately 3 feet away, discharged and Smith was struck in the face. Smith suffered facial injuries from which he recovered.

Several officers from the Orland Park Police Department were on the scene shortly after the incident. Their testimony at the hearing indicated that Walsh was distraught over the shooting of his best friend.

The Board found that Walsh violated all of the regulations under which he was charged except the charge of excessive use of intoxicants. The Board then found that cause existed for the discharge of Walsh from the police department and ordered him discharged.

Walsh contends that the Board did not have jurisdiction over him for two reasons: First, he was not an employee of the police department since he had tendered his resignation at the start of the hearing. Second, because he was on disability suspension and receiving disability pension benefits from the Pension Board, the Board was divested of its jurisdiction over him.

Walsh tendered his notice of retirement due to medical reasons at the beginning of the hearing. It was upon this notice that he argued there was no need for a hearing because he was no longer an employee of the Orland Park Police Department. The Board, however, did not recognize this tendered retirement notice because it failed to comply with a rule of the Village of Orland Park which required notice of retirement to be made in writing to the chief of the department concerned. Thus it was, and is, the Board’s position that Walsh’s attempted resignation was not effective.

Walsh’s second claim is based on the fact that he was receiving pension benefits from the Pension Board. This status, he argues, precludes any determination that he is a full-time policeman under the jurisdiction of the Board. (Ill. Rev. Stat. 1979, ch. 24, par. 10—2.1—26.) Walsh also relies on section 3—116 of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. 1081/2, par. 3—116), which provides in part:

“A policeman whose duty is suspended because of disability may be summoned to appear before the [Pension] Board, and to submit himself thereto for examination as to his fitness for duty.”

Thus, Walsh argues, he is subject only to the jurisdiction of the Pension Board until his disability suspension is terminated.

We disagree and believe the Board had jurisdiction to proceed with its disciplinary hearing. First, we agree with the Board’s position that Walsh did not properly give notice of his retirement. This finding is an interpretation of the Village’s own rules and regulations and supported by the manifest weight of the evidence. Kirsch v. Rochford (1977), 55 Ill. App. 3d 1042, 371 N.E.2d 899; Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App. 3d 864, 278 N.E.2d 212.

Walsh’s statement that only the Pension Board may terminate his disability benefits and restore him to active duty is correct. (Ill. Rev. Stat. 1979, ch. 108)2, par. 3—116.) However, his cited case, O’Brien v. Board of Trustees (1978), 64 Ill. App. 3d 592, 381 N.E.2d 813, is inapposite to the issues in this case. O’Brien merely decided whether a fireman’s disability pension was properly terminated. Here, the Board was clearly acting in a disciplinary matter. It is settled that it was doing so within the powers granted to it under section 10—2.1—17 of the Municipal Code. (Ill. Rev. Stat. 1979, ch. 24, par. 10—2.1—17.) Through this section a board of fire and police commissioners is given the exclusive power to discharge policemen and firemen. Stearns v. Board of Fire & Police Commissioners (1978), 59 Ill. App. 3d 569, 375 N.E.2d 877, citing Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 302 N.E.2d 313; People ex rel. Carey v. Forberg (1975), 33 Ill. App. 3d 161, 337 N.E.2d 369.

We next consider Walsh’s argument that the findings and decisions of the Board are against the manifest weight of the evidence. The function of a court of review in this type of case is to determine whether a board’s findings and decision are against the manifest weight of the evidence. (Kreiser v. Police Board (1976), 40 Ill. App. 3d 436, 352 N.E.2d 389, affirmed (1977), 69 Ill. 2d 27; Kirsch v. Rochford.) A brief review of the evidence indicates that Walsh was involved in the mishandling of a gun which resulted in the shooting of his friend. The decision of the Board, then, was not against the manifest weight of the evidence.

While the findings of an administrative agency on questions of fact are prima facie true and correct (Ill. Rev. Stat. 1979, ch. 110, par. 274), this is not so as to its findings of cause. A board’s finding that there is sufficient cause for discharge is subject to judicial review. (Caliendo v. Goodrich (1975), 34 Ill. App. 3d 1072, 340 N.E.2d 560; Crowell v. Police Board (1975), 32 Ill. App. 3d 552, 336 N.E.2d 573.) The courts have defined cause to be some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position. (Kreiser v. Police Board, and the cases cited therein.) In a proceeding to remove a police officer, it is the function of the court to decide: whether the charges preferred against the officer are not so trivial as to be unreasonable or arbitrary; whether the commission acted on evidence that fairly tended to sustain the charges; and whether its decision is related to the requirements of the service. DeGrazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 202 N.E.2d 522; Kreiser v. Police Board.

Although this court does not, in any way, condone Walsh’s actions, we believe that the maximum sanction of discharge was unwarranted. The record shows, and the Board found, that Walsh was not intoxicated during this incident. It appears that his conduct was a manifestation of the very psychological problems for which he was on disability suspension. Walsh had not been on active duty for some 5 months and was not, according to the police chief’s testimony, available for any duty. It also appears from the record that those police officers who testified about the incident, including the victim, did so with reluctance. While the charges were not unreasonable or arbitrary, we believe the matter must be remanded so that the Board can consider an alternative sanction to that of discharge. Kirsch v. Rochford.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause remanded to the Board for reconsideration.

Reversed and remanded.

GOLDBERG and McGLOON, JJ., concur.


author: JUSTICE McGLOON

text:
      In re ESTATE OF ESTHER M. NELSON, Deceased.—(ROSALIE KIRSCHNER, Plaintiff and Petitioner-Appellant, v. DROVERS BANK OF CHICAGO, Adm’r of the Estate of Esther M. Nelson, et al., Defendants and Respondents-Appellees.)
    First District (1st Division)
    No. 80-2794
    Opinion filed December 28, 1981.
    Barry A. Feinberg and William J. O’Connor, both of Chuhak, Tecson, Kienlen and Feinberg, of Chicago, for appellant.
    Stephen J. Schlegel, of Schlegel & Trafelet, Ltd., of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff brought an action for specific performance of an oral agreement to make a will. The trial court granted summary judgment in favor of defendants.

The sole issue in this appeal is whether the trial court erred in granting defendant’s motion for summary judgment.

We affirm.

Esther Nelson died intestate on July 13, 1979. Drovers Bank of Chicago (defendant) was appointed administrator of her estate. Rosalie Kirschner (plaintiff) claims that before Nelson died, she promised to write a will devising a parcel of real estate at 3531 S. Hoyne Avenue (Hoyne Avenue property) in Chicago to plaintiff.

Nelson did in fact retain an attorney for the purpose of preparing a will. Although a will was prepared, it was unexecuted at the time of Nelson’s death. The unexecuted will provided in pertinent part: “I devise and bequeath my entire residual estate, real and personal, wherever located to my dear friend, Dr. Rosalie Kirschner.” Further, it provided: “It is my intention to eventually sell my real estate where I presently reside [at 3531 S. Hoyne Avenue] and to live part of the year in California and part of the year in Michigan.”

In the complaint, plaintiff alleged that Nelson orally agreed to make a will devising the Hoyne Avenue property to her in consideration of providing food, shelter and care for Nelson while she was suffering from illness. Further, she alleged that Nelson’s attorney prepared a will devising the Hoyne Avenue property to plaintiff, but that Nelson died prior to signing the document. In her prayer for relief, plaintiff requested the court to declare that an oral agreement did exist and that Nelson breached that agreement.

Defendant filed a motion for summary judgment. The trial court granted defendant’s motion and plaintiff appeals.

The sole issue for our consideration is whether the trial court erred in granting defendant’s motion for summary judgment. The statute pertaining to motions for summary judgment provides that such motions should be allowed where the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1979, ch. 110, par. 57(3).) In determining whether a genuine issue exists, the court must construe the pleadings, depositions and affidavits most strictly against the movant and in favor of the opponent. Baier v. State Farm Insurance Co. (1975), 28 Ill. App. 3d 917, 920, 329 N.E.2d 543, aff'd (1977), 66 Ill. 2d 119, 361 N.E.2d 1100.

Plaintiff argues that a genuine issue of material fact remains as to whether Nelson orally agreed to make a will devising the Hoyne Avenue property to her in consideration of her providing food, shelter and care for Nelson. The evidence in support of plaintiff’s position consists of plaintiff’s own testimony and the affidavits of Gilbert Purze and Anna Speik.

Plaintiff testified that in April 1977, Nelson said to her “* * “if you take care of everything for me, then 0 * * I want you to have whatever is left after that time, so that I’ll know everything is being taken care of • * Plaintiff claims that she replied * * I will take care of all your needs * * Decedent allegedly responded, “I want you to have the building and I will leave you whatever is left over.” In his affidavit, Gilbert Purze stated that he was present during a conversation between Nelson and plaintiff. In that conversation, Nelson declared that she would leave her entire estate, including the Hoyne Avenue property, to plaintiff. In her affidavit, Anna Speik stated that Nelson told her that all of her (Nelson’s) needs would be handled for the rest of her life and upon her death her building and estate would be left to plaintiff.

It is well established that an oral contract to make a will, supported by valuable consideration, can be valid and enforceable. (See Moreen v. Estate of Carlson (1937), 365 Ill. 482, 6 N.E.2d 871; In re Estate of Kucharski (1971), 3 Ill. App. 3d 32, 278 N.E.2d 221.) Evidence in support of such a contract, however, must be clear, explicit and convincing. (Greenwood v. Commercial National Bank (1955), 7 Ill. 2d 436, 440, 130 N.E.2d 753; Linder v. Potier (1951), 409 Ill. 407, 410, 100 N.E.2d 602; In re Estate of Kucharski (1971), 3 Ill. App. 3d 32, 36.) Mere expressions of testamentary intent are insufficient to establish an oral contract to will or devise property to another. Greenwood v. Commercial National Bank (1955), 7 Ill. 2d 436, 441; In re Estate of Kucharski (1971), 3 Ill. App. 3d 32, 36.

It is fairly clear that Nelson did in fact state her intention to bequeath something to plaintiff. It is also fairly clear that plaintiff was willing to care for Nelson. The terms of the alleged “contract,” however, were extremely vague. The evidence presented by plaintiff in support of her contention falls far short of being “clear, explicit and convincing.”

Furthermore, we cannot ignore the terms of the unexecuted will and the affidavit of Nelson’s attorney, which indicates that Nelson had other plans for disposing of the Hoyne Avenue property. The unexecuted will, which was offered by defendant and adopted by plaintiff as part of the record, indicates that Nelson intended to sell her home. It specifically stated: “My intention is to sell my real estate where I presently reside.” The affidavit of Nelson’s attorney also indicates that in July of 1979, Nelson told him that she intended to sell her home.

Even when all of the evidence is considered in the light most favorable to plaintiff, it cannot be said that a genuine issue exists as to whether there was an oral contract. Thus, summary judgment was proper.

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

Judgment affirmed.

CAMPBELL, P. J., and O’CONNOR, J., concur.


text:
    GERALDINE MORRISON et al., Plaintiffs-Appellants, v. EDWIN C. PICKETT, Defendant-Appellee.
    First District (1st Division)
    No. 80-3025
    Opinion filed December 28,1981.
    Ronald J. Lucaccioni, of Chicago, for appellants.

      Stanley J. Davidson and Charles H. Coler both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Geraldine and Eileen Morrison were injured when their automobile was rear-ended by an automobile being operated by Edwin Pickett (defendant). Defendant admitted liability for Eileen’s injuries and admitted that Geraldine (plaintiff) was not contributorily negligent. Defendant denied, however, that plaintiff had sustained any injury as the result of the collision.

On February 20, 1980, the day the case was assigned to the trial judge’s call, defendant’s attorney presented a motion to compel plaintiff to submit to a physical examination pursuant to Supreme Court Rule 215(d) (Ill. Rev. Stat. 1979, ch. 110A, par. 215(d).) Plaintiff objected. The trial court granted defendant’s motion.

A jury trial was commenced on September 10, 1980. During trial, several references were made to the fact that the physician who examined plaintiff was “the court’s witness” and that he was an “independent medical examiner.” In his opening remarks to the jury, counsel for defendant referred to the physician as the “court-appointed, independent medical examiner.” Before the physician was examined by defendant’s attorney, the trial judge informed the jury that the physician “was not a witness for the defendant, but was appearing and testifying as the court’s witness.” While examining the doctor, the defense attorney referred to him several times as the “independent medical examiner.” Again, during his closing argument, defense counsel pointed out that the physician was “not his witness, nor the plaintiff’s, but the court’s witness.”

The issues on appeal are whether the trial court erred: (1) in ordering an independent medical examination of plaintiff, and (2) in referring to the physician called under Rule 215(d) as “the court’s witness” and permitting defense counsel to refer to the physician as an “impartial medical examiner.”

We affirm.

First, plaintiff argues that the trial court abused its discretion in granting plaintiff’s Rule 215(d) motion to compel plaintiff to submit to a physical examination. Supreme Court Rule 215(d) explicitly provides that “[a] reasonable time in advance of trial, the court may on its own motion, or that of any party, order an impartial physical or mental examination of a party whose mental or physical condition is in issue, when in the court’s discretion it appears that such an examination will materially aid in the just determination of the case.” (Ill. Rev. Stat. 1979, ch. 110A, par. 215(d)(1).) Plaintiff contends that the motion, which was made on the day the case was assigned to the trial judge, was untimely. In support of this contention, plaintiff cites In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 398 N.E.2d 198.

In Ragen, the appellate court held that the trial court did not abuse its discretion in denying a Rule 215 motion on the eve of trial. (In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 16, 398 N.E.2d 198.) The court did not hold however, that the granting of a Rule 215 motion on the eve of trial necessarily constitutes an abuse of discretion. The court recognized that the trial court has broad discretion in considering a motion under Rule 215. 79 Ill. App. 3d 8, 16; see People ex rel. Yarn v. Yarn (1979), 73 Ill. App. 3d 454, 392 N.E.2d 606; People ex rel. De Vos v. Laurin (1979), 73 Ill. App. 3d 219, 391 N.E.2d 164.

In the case at bar, plaintiff has failed to show how the trial court, by ordering the examination, abused the broad discretion vested in him.

Second, we must consider whether the trial court erred in referring to the physician who examined plaintiff pursuant to Rule 215(d) as the “court’s witness” and in allowing defense counsel to refer to the physician as an “impartial medical examiner.” As a general rule, references to the fact that a physician examined a plaintiff pursuant to court order are highly inappropriate. (Branch v. Seiler (1977), 54 Ill. App. 3d 693, 697, 370 N.E.2d 873.) Although inappropriate, such references do not necessarily constitute reversible error. (54 Ill. App. 3d 693, 698; see Hehir v. Bowers (1980), 85 Ill. App. 3d 625, 407 N.E.2d 149.) We have found no cases in this jurisdiction which hold that the disclosure to the jury that a physician has testified pursuant to court order or that referring to him as an impartial medical examiner is reversible error. We find, therefore, that the disclosure of the physician’s status to the jury in the case at bar was not reversible error.

An even more compelling reason for our finding is that plaintiff’s counsel failed to object to the disclosure of the court-appointed physician’s status to the jury. Although counsel on appeal strenuously claims that such objections were made, the record merely indicates that prior to trial, counsel made a general objection to the Rule 215(d) order. Apparently, counsel believed it was unnecessary to object specifically to the disclosure on the record during trial.

Clearly, one of the essential purposes for making objections is to give the trial judge the opportunity to review the applicable law and make an informed ruling on the issue. The trial judge in this case was not called upon to make any such ruling. Because no objection was made to the alleged error during trial, the errors are waived for purposes of appeal. See Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 294 N.E.2d 689; Joynt v. Barnes (1979), 71 Ill. App. 3d 187, 388 N.E.2d 1298; King v. Exchange National Bank (1978), 64 Ill. App. 3d 335, 381 N.E.2d 356.

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

Order affirmed.

CAMPBELL, P. J., and GOLDBERG, J., concur.


text:
    CALLIE JOHNSON, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (1st Division)
    No. 80-3228
    Opinion filed December 28, 1981.

      Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Leon Pawlykowycz, Assistant Corporation Counsel, of counsel), for appellant.
    Ronald Kirk Goulding, of Goulding and Kamberos, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Callie Johnson brought an action against the City of Chicago to recover damages for injuries she sustained when she allegedly fell on a city sidewalk. The jury found for Johnson and awarded her $22,603 in damages. The City of Chicago appeals.

The issue in this appeal is whether the trial court erred in not allowing a hospital record into evidence under the past recollection recorded exception to the hearsay rule.

We reverse and remand.

Callie Johnson (plaintiff) testified at trial that on March 21, 1976, at 6:30 a.m. she was walking with her cousin on a city sidewalk in front of 6725 Winchester in Chicago. Plaintiff claimed her right foot got caught in a hole in the sidewalk, causing her to trip and fall forward. She was taken to Central Community Hospital Emergency Room, where she was told that her right ankle was broken.

Defendant City of Chicago called Ruth Ann Kozen to testify. Kozen was the head nurse on duty when plaintiff was brought into the emergency room. She was questioned outside the presence of the jury. On direct examination, she was shown defendant’s exhibit No. 2 for identification. Kozen identified the exhibit as a copy of the hospital emergency room record of plaintiff. The record contained a heading “Description of Accident, state how, when and where occurred.” Below the heading, the following notation was written: “Helped in on crutches states fell off platform shoes at sister’s home and injured right ankle.” Nurse Kozen stated that: she did not remember plaintiff coming into the emergency room; she could not recall anything that was told her concerning plaintiff’s injuries and that there was nothing that would refresh her recollection; the record was in her handwriting and bore her signature; and emergency room records at Central Community Hospital generally are made within minutes after a patient’s arrival.

City of Chicago attempted to introduce defendant’s exhibit No. 2 for identification into evidence for the purpose of impeaching plaintiff. Plaintiff objected, and the trial judge sustained the objection.

The issue in this appeal is whether the trial court erred in sustaining plaintiff’s objection. City of Chicago maintains that the emergency room record should have been admitted under the past recollection recorded exception to the hearsay rule. A document is admissible into evidence under the past recollection recorded exception if the following four requirements are met: (1) the witness must have had firsthand knowledge of the event recorded; (2) the written statement must be an original statement made at or near the time of the event and while the witness had a clear and accurate memory of the event; (3) the witness must lack any present recollection of the event; and (4) the witness must vouch for the accuracy of the memorandum. Smith v. Williams (1975), 34 Ill. App. 3d 677, 679-80, 339 N.E.2d 10.

There is no dispute that the first three requirements were met. Nurse Kozen testified that the record was in her handwriting and bore her signature, which indicates that she had firsthand knowledge of the event recorded. She stated that emergency room records at Central Community Hospital are made within minutes after a patient’s arrival, which fulfills the requirement that the statement must have been made at or near the time of the event. Kozen further stated that she had no present recollection of the event, which satisfies the third requirement.

Plaintiff argues that the final requirement was not met and City of Chicago, therefore, failed to lay a proper foundation for the introduction of the emergency room record into evidence. She claims that the defense failed to show that the record was accurate, true and correct, and therefore, the trial court properly declared the evidence inadmissible.

Although City of Chicago did not specifically ask Nurse Kozen whether the record was accurate, true and correct, it did ask * ° looking at that document, are you able to tell me whether or not the remarks written down there by you were fresh in your mind at the time you wrote them down?” Plaintiff objected to this question and the objection was sustained by the trial court. In our opinion, the question was proper and an affirmative answer would have established the accuracy of the report at the time it was written.

In Minor v. City of Chicago (1981), 101 Ill. App. 3d 823, 428 N.E.2d 1090, we recently addressed the exact issue raised in this case. In Minor, the plaintiff testified at trial that he injured his knee when he tripped and fell on an uneven city sidewalk. His medical history, which was taken upon his admission to the hospital, indicated that the plaintiff had injured his knee when he stepped off a curb and fell.

As in the instant case, City of Chicago attempted to introduce the plaintiff’s medical record into evidence under the past recollection recorded exception to the hearsay rule. An in camera voir dire examination was held to determine whether there was a proper foundation to allow the admitting doctor to testify to his entry in the hospital record. The doctor testified that: he had no independent recollection of having talked to plaintiff; he had no independent recollection of having made the record; the handwriting on the record was his; and it was his practice to take a patient’s medical history within a short time after a patient is admitted to the hospital. The trial court refused to allow the doctor to testify from the medical record. On appeal, we found that a proper foundation had been laid and the evidence, therefore, was admissible under the past recollection recorded exception.

The present case is indistinguishable from Minor. We find, therefore, that City of Chicago should have been permitted to introduce the emergency room record into evidence.

For the foregoing reasons, we reverse the order of the circuit court of Cook County and remand the cause for further proceedings.

Judgment reversed; cause remanded.

CAMPBELL, P. J., and O’CONNOR, J., concur.


author: PRESIDING JUSTICE CAMPBELL

text:
    PASTOR JOHN DALE et al., Plaintiffs, v. GROEBE & CO., REALTORS, et al., Defendants and Third-Party Plaintiffs-Appellants.—(BURBANK STATE BANK, Third-Party Defendant-Appellee.)
    First District (1st Division)
    No. 81-301
    Opinion filed December 28, 1981.

      Lee Montgomery, of Chicago, for appellants.
    Mitchell S. Goldgehn and Nathan H. Lichtenstein, both of Goldgehn, Leonardo, Goldgehn & Isaacson, of Chicago, for appellee.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendants and third-party plaintiffs, Matthew and Eleanor Marzec, appeal from an order of the circuit court of Cook County which granted the motion for summary judgment of third-party defendant, Burbank State Bank. On appeal, the Marzecs contend that the trial court erred in granting Burbank’s motion because there exists a genuine issue of material fact, because Burbank is estopped from denying its mortgage loan commitment to the purchasers of the Marzecs’ home and because the issue of whether Burbank misrepresented or concealed material facts from the Marzecs should be resolved by the trier of fact.

For the reasons set forth herein, we affirm.

The various pleadings, exhibits and other documents filed in this cause disclose that on May 11, 1978, the plaintiffs to this action, Pastor John Dale and the Jordan Baptist Church, Inc., made an offer to purchase the home of Matthew and Eleanor Marzec for $110,000. The Marzecs employed the services of defendant William C. Groebe & Co. to serve as their agent in arranging the sale of the residence. At the time plaintiffs executed the offer to purchase, they deposited with Groebe, as escrowee, $11,000 as earnest money. The offer to purchase was contingent upon plaintiffs obtaining financing in the amount of $99,000 for the purchase of the property within 45 days. On May 26,1978, plaintiffs’ application for a mortgage loan was approved by Burbank, subject to certain terms and conditions. On June 8, 1978, the Marzecs accepted plaintiffs’ offer to purchase. The closing of the sale was scheduled to occur on or before July 20,1978, pursuant to terms of the loan commitment.

On July 17, 1978, the Marzecs approved a contract for the purchase of a new residence. Subsequently, the Marzecs’ attorney, Lee Montgomery, contacted plaintiffs and requested that the sale of the Marzec home be completed by July 20,1978, or that plaintiffs obtain an extension of the loan commitment from Burbank. Plaintiffs obtained an extension of the commitment until October 20, 1978. During the course of negotiations, the Marzecs removed a clause from the contract for the purchase of a new residence which would have made the purchase contingent upon the completed sale of their home to plaintiffs. The Marzecs also deposited with the seller $11,000 as earnest money.

According to the complaint, Montgomery contacted Thomas Sterba, an officer of Burbank, and requested information as . to whether the financing outlined in the commitment letter would be available to plaintiffs, whether the commitment had been extended to October 1 and whether plaintiffs had complied with the terms and conditions set forth in the commitment letter. Montgomery allegedly informed Sterba that the Marzecs were in the process of negotiations for the purchase of a new home and that they needed assurances that financing would be available to plaintiffs. During his deposition, Montgomery stated that this conversation occurred on either July 26 or 27 and that this was the first of two conversations that he had with Sterba. Montgomery stated that he could not remember whether Sterba told him that the commitment had been extended or, if not, whether there would be any problem in obtaining an extension. Montgomery stated that he subsequently wrote Sterba a letter in which he informed Sterba that the Marzecs were negotiating the purchase of a new home and needed assurances that plaintiffs had financing from Burbank. He also requested that Sterba confirm in writing that the loan had been approved and accepted and that plaintiffs had satisfied all of the terms and conditions as outlined in the commitment. Sterba subsequently provided Montgomery with a copy of the commitment letter which indicated that the commitment had been extended until October 1. According to the complaint, it was only after the conversation and correspondence between Montgomery and Sterba that the Marzecs agreed to waive the clause in the contract for the purchase of a new home which would have made the purchase contingent upon the completed sale of their home to plaintiffs.

On July 31,1978, the Marzecs informed plaintiffs that a closing of the sale of the Marzec home was to occur on September 28, 1978. On September 18,1978, Burbank informed the Marzecs that they would not make a loan to plaintiffs because plaintiffs had failed to comply with terms and conditions of the commitment. In particular, Burbank refused to make the loan because of insufficient loan. guarantors. Burbank subsequently refunded to plaintiffs the service fee of $2,400 which had been paid at the time the application for a mortgage loan was made. Because of their inability to obtain suitable financing, plaintiffs requested that Groebe return the $11,000 earnest money which was being held by Groebe. Groebe refused, and plaintiffs then filed this action.

The Marzecs were unable to complete the purchase of a new home and forfeited the $11,000 earnest money deposit to the seller. In plaintiffs’ complaint, the Marzecs and Groebe were named as defendants. The complaint alleged that the Marzecs and their agent Groebe refused to refund plaintiffs’ earnest money deposit. Plaintiffs’ action was predicated upon the clause in the plaintiffs’ contract with the Marzecs which made i the sale of the property contingent upon plaintiffs obtaining suitable financing. The Marzecs filed a countercomplaint alleging that plaintiffs were in • default of the contract and requested that Groebe release plaintiffs’ earnest money deposit to them because of the default. The Marzecs subsequently filed a third-party complaint against Burbank. The Marzecs’ third-party complaint was repeatedly stricken on motion of Burbank until the circuit court let stand their fifth amended third-party complaint. This complaint alleged that the Marzecs relied upon Burbank’s representations that the bank’s commitment to plaintiffs would be honored, that Burbank failed to disclose to plaintiffs that additional loan guarantors would be required to close the loan to plaintiffs and that, as a result of Burbank’s actions, the Marzecs were unable to complete the purchase of a new residence and were required to forfeit their $11,000 earnest money deposit. The circuit court granted Burbank’s motion for summary judgment pursuant to section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57).

The Marzecs contend that the trial court erred in granting Burbank’s motion for summary judgment because there existed numerous issues where material facts appear to be in dispute. They assert that these material facts form the basis of their claim against Burbank on the legal theories that they are third-party beneficiaries of the loan commitment between plaintiffs and Burbank, that Burbank is estopped from denying its loan commitment to plaintiffs under the doctrine of promissory estoppel and that Burbank is estopped from denying its commitment to plaintiffs under the doctrine of equitable estoppel.

A motion for summary judgment will only be granted where the pleadings, affidavits, depositions and other documents demonstrate that there is no genuine issue of material fact which would warrant trying the case. (McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 400 N.E.2d 16.) The trial court should construe the pleadings and other documents in favor of the nonmoving party and strictly against the movant. (Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App. 3d 89, 392 N.E.2d 675.) Although there may exist an issue of fact, the trial court, when viewing the evidence in the light most favorable to the nonmoving party, may grant summary judgment where it concludes that, as a matter of law, no liability exists. McCann v. Bethesda Hospital.

With the foregoing principles in mind, we conclude that the trial court did not err in granting Burbank’s motion for summary judgment because, as a matter of law, the pleadings and other documents filed in this cause fail to establish the liability of Burbank. The Marzecs’ first theory of recovery is predicated upon their claim that they are the third-party beneficiaries of the loan commitment agreement between plaintiffs and Burbank. As a general rule, only a party to a contract or those in privity with him may sue to enforce a contract. In order for a party to assert the rights of a third-party beneficiary, the party must demonstrate that the benefit received was direct and not incidental to the contract. (David v. J. Elrod Realtors on Devon, Inc. (1979), 75 Ill. App. 3d 449, 394 N.E.2d 583.) Our review of the record and the arguments of the parties leads us to conclude that the Marzecs have failed to demonstrate that they are anything more than mere incidental beneficiaries to the loan commitment agreement. Therefore, as a matter of law, the Marzecs are not entitled to maintain an action as third-party beneficiaries and Burbank is entitled to judgment.'

The Marzecs’ second theory of recovery is that Burbank is estopped from denying the loan commitment to plaintiffs. In support of their position, the Marzecs rely upon Morrison v. Home Savings & Loan Association (1959), 175 Cal. App. 2d 765, 346 P. 2d 917. In order to maintain an action for promissory estoppel, the law requires that: (1) there is a promise which is unambiguous in its terms; (2) there is reliance by the party to whom the promise is made; (3) the reliance is expected and foreseeable by the party making the promise; and (4) the party to whom the promise is made relies upon the promise to his detriment. (St. Joseph Data Service, Inc. v. Thomas Jefferson Life Insurance Company of America (1979), 73 Ill. App. 3d 935, 393 N.E.2d 611.) In Morrison, these four elements arguably were present, and the court held that the pleadings were sufficient to withstand a motion to dismiss. In the instant case, the depositions of the Marzecs and their attorney clearly indicate that there was no promise made to them by Burbank concerning its loan commitment to plaintiffs, nor were there any statements which allegedly were made by Burbank which could be construed as a promise. Accordingly, Burbank is entitled to judgment as a matter of law.

The Marzecs’ final theory of recovery is that Burbank is estopped from denying its commitment to plaintiffs because Burbank misrepresented or omitted certain material facts concerning the loan commitment to plaintiffs. Equitable estoppel applies where: (1) a party has made some misrepresentation or omission of a material fact; (2) that party has knowledge, either actual or implied, that the representations were false at the time that they were made; (3) the other party was not aware that the representations were false both at the time that they were made and the time that they were acted upon; (4) the party making the representations intended or expected the representations to be acted upon; (5) the party to whom the representations were made did in fact rely upon the representations; and (6) the party acting upon the representations would be prejudiced unless the party making the representations was estopped. (Strom International, Ltd. v. Spar Warehouse & Distributors, Inc. (1979), 69 Ill. App. 3d 696, 388 N.E.2d 108.) In the instant case, the Marzecs refer to facts in their briefs which arguably might lead to a finding of estoppel. However, none of these facts appears anywhere in the record. Further, those documents and depositions which the Marzecs claim support their contention do not indicate that Burbank made any omission or misrepresentation of any material facts. Therefore, there exists no issue of fact as claimed by the Marzecs and Burbank is entitled to judgment as a matter of law.

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

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ., concur.


text:
    CURTIS BETTS et al., Plaintiffs-Appellants and Cross-Appellees, v. THE DEPARTMENT OF REGISTRATION AND EDUCATION, Defendant-Appellee and Cross-Appellant.
    First District (1st Division)
    No. 81-456
    Opinion filed December 28, 1981.
    Rehearing denied February 1, 1982.

      Kenneth K. Ditkowsky, of Chicago, for appellants.
    Charles J. Pesek, of St. Charles, for appellee.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Curtis Betts and Curtis Pharmacy, Inc., appeal from the decision of the circuit court which affirmed the order of defendant, Department of Registration and Education, which revoked the pharmacy licenses of plaintiffs. Defendant cross-appeals from the decision of the trial court which reversed the order of revocation of the pharmacy license of plaintiff Alfred Evans, Jr. On appeal, Betts and the pharmacy contend that: (1) when an administrative hearing is of a quasi-judicial nature, the liberty and property of citizens shall be protected by the rudimentary requirements of fair play; (2) the conducting of proceedings under unpublished rules and regulations violates due process; (3) when an individual has his license revoked pursuant to an unsworn allegation that he committed a felony, and subsequent proceedings nullify the conviction, a new hearing should be held to determine if revocation was warranted; (4) in applying the statutory criterion mandated by the Illinois legislature, the Illinois Constitution of 1970 and the first 10 amendments to the United States Constitution, the decision of the circuit court and the Board of Pharmacy must be reversed; and (5) when two members of the Board of Pharmacy who were not on the original panel rule on the right of plaintiff to maintain his professional license and said members, without reading the transcript or hearing any evidence, sign the recommendation to revoke, such recommendation is a nullity. On cross-appeal, defendant contends that the term “gross immorality” is not unconstitutionally vague and that the revocation of Evans’ license should be reinstated.

For the reasons set forth herein, we affirm the revocation of the licenses of Betts and the pharmacy and reverse and remand the matter pertaining to the revocation of the license of plaintiff Evans.

On February 9, 1978, Algis Augustine, chief regulatory officer of the Department of Registration and Education (DRE), filed an administrative complaint against Curtis Betts, Curtis Pharmacy, Alfred Evans and Stephen Davis. The complaint alleged that Betts and Davis had been convicted of a felony; that various sales of prescription drugs had been made by an unlicensed individual and without a prescription; that Betts and Evans failed to supervise the operations of Curtis Pharmacy, that Betts and Evans failed to keep adequate records; that Betts and Evans failed to account for approximately 1,500,000 tablets of Talwin and Pyribenzamine, both of which are prescription drugs; and that Betts permitted Davis, who was licensed as an apprentice pharmacist, to operate the pharmacy and handle pharmacy records without supervision. At the time the complaint was filed, Augustine also filed a petition seeking the summary suspension of thé licenses of Betts and Curtis Pharmacy because the practice of pharmacy by Betts and the pharmacy constituted “an immediate danger to the public.” On February 9, 1978, an ex parte hearing before the Director of DRE was held and the Director ordered the immediate suspension of the licenses of Betts and the pharmacy pending a full hearing within 15 days. On February 9, 1978, copies of the Director’s order of suspension, the complaint and petition were served upon Betts’ wife and were mailed to Betts. On February 10,1978, a notice of hearing and a copy of the complaint was sent to each of the individuals named in the complaint.

On February 17, 1978, the Board of Pharmacy informed counsel for plaintiff that rather than proceed with the hearing scheduled for that day, it would seek appointment by the Director of a hearing officer to preside over the hearing. The board told counsel that it felt that the appointment of a hearing officer would expedite the hearing process because the matter before it was an emergency and because it might not be possible for a majority of the board to be present at each session. On February 22, 1978, the Director appointed a hearing officer. The order of the Director required that at least one member of the board be present during the hearing. The hearing officer was precluded from making reports or recommendations concerning the disposition of the case against Betts and the others.

During the course of the hearing which commenced on February 22, 1978, counsel for plaintiffs requested that the Director and Augustine be called to testify. The hearing officer refused this request because he felt that it would not be proper for the Director to testify because she was the ultimate judge in the administrative proceedings and that it would not be proper for Augustine to testify because he was prosecuting the case on behalf of the Board of Pharmacy. At numerous times throughout the hearing, counsel for plaintiffs attempted to portray the entire proceedings against Betts and the others as a conspiracy which violated their civil rights. Counsel also sought disclosure of the events that transpired at what he termed “secret” meetings.

Following an extensive hearing which was conducted on March 9, 1978, the Board of Pharmacy rendered its recommendations and findings of fact and conclusions of law on March 30, 1978. The board found that Betts had been convicted of a felony; that illegal drug sales had occurred on the premises of the pharmacy while Evans was in the pharmacy; that there were large shortages of drugs which were not accounted for by Betts; that Betts permitted an apprentice pharmacist to operate the pharmacy without supervision; that Betts failed to establish and supervise a method for safekeeping and storage of drugs; that Betts failed to keep adequate records for certain controlled substances; that Evans aided and abetted Betts in Betts’ failure to account for large quantities of prescription drugs and that Evans was “grossly immoral” by permitting the sale of large quantities of drugs without a prescription by individuals not licensed to dispense drugs. On April 11, 1978, counsel for the licensees petitioned the Director to vacate the findings and conclusions of the board. After a hearing was held, the Director entered an order on April 27,1978, which revoked the licenses of Betts, Curtis Pharmacy and Evans. Plaintiffs petitioned the circuit court for review of the decision of the Director. Prior to the court’s decision in the case, the felony conviction of Betts was reversed without remand by this court in People v. Betts (1979), 78 Ill. App. 3d 200, 397 N.E.2d 106, because the indictment was improperly amended. This court found that it would be impossible to prove the charges in the unamended indictment because of a technical error. The trial court was apprised of the reversal of Betts’ conviction and remanded the matter to defendant “for reconsideration of the sanction imposed for the reason that the decision, at least in part, under review was based upon a criminal conviction which has been subsequently overturned.” Upon remand, the board recommended, and the Director agreed, that Betts’ license be revoked despite his conviction being reversed. The court then considered this decision of the Director to revoke the licenses and affirmed the revocation of the licenses of the pharmacy and Betts. The court, however, reversed the revocation of the license of Evans because the term “gross immorality” was unconstitutionally vague. Betts and the pharmacy appeal seeking reversal of the trial court’s decision. Defendant cross-appeals contesting the reversal of the suspension of Evans’ license.

I

Although plaintiff Betts and Curtis Pharmacy have raised five issues for review, we shall consider the issues in the same fashion as the circuit court did. We view the issues to be: first, whether the decision of defendant was against the manifest weight of the evidence and, second, whether any constitutional violations marred plaintiffs’ right to a fair and impartial hearing. Plaintiff claims that the decision of the Director was against the manifest weight of the evidence. A review of the record discloses that the Department of Registration and Education offered the testimony of Officer Thomas Eichler to establish that illegal sales of controlled substances had occurred while Betts was the pharmacist in charge and Evans was the pharmacist on duty at the pharmacy. Eichler testified that on November 1, 1977, he observed four separate sales of pills to individuals without prescriptions. Eichler identified the individuals who made the sales as James Gates and Carlton Betts, neither of whom were licensed pharmacists. Eichler testified that when he entered the pharmacy Evans and others threw pills and money on the floor. According to Eichler’s testimony, Evans initially denied any association with the pharmacy. The pills which Eichler observed being sold were subsequently identified as the prescription drugs Valium and Talwin. Officer John Corcoran testified that he and his partner had set up a surveillance of the pharmacy on October 27, 1977. Corcoran stated that he and his partner entered the pharmacy after a sale of a large quantity of drugs was observed. He stated that behind the pharmacy counter he found three paper bags which contained pills and which bore the nicknames of three persons. Corcoran testified that he also found two firearms and a box containing a substantial sum of money. Corcoran stated that the pills in the bags were tested and identified as Talwin.

The Department of Registration and Education next presented evidence and witnesses to establish the alleged violations in storage, record-keeping and dispensing of drugs. Invoices from Zahn Drugs, a supplier, were introduced to establish that Betts purchased 195 cases of Talwin from October 3, 1977, to January 11, 1978, for about $165,000. Irwin Tchon, a DRE investigator, testified that he conducted an investigation of the pharmacy on January 15, 1978. Tchon requested the prescription file from Betts and Evans for the period from January 1, 1977, through January 15, 1978, because Tchon wanted to conduct an accountability audit for Talwin. Tchon stated that Evans only produced three prescriptions from 1978 for that period that he had requested the prescription file. Two prescriptions were for Talwin. Tchon also stated that Evans showed him 10 100-tablet bottles and told him that the bottles represented the only Talwin in the pharmacy. On cross-examination, Tchon stated that no special records, except normal business records, are required to be kept for Talwin. Tchon also stated that pharmacists are required to account for any prescription drugs purchased. DRE investigator Piacentini testified that in June 1977 he conducted an audit of the pharmacy and noticed that there had been purchases of 133,800 Talwin and 166,600 Tripelannamine. He testified that Betts was not able to produce prescriptions for those drugs although there were only 5,000 Tripelannamine and no Talwin in stock. Piacentini. stated that Betts claimed that he had sold the drugs to other pharmacies, although Betts refused to disclose any names to him. United States Drug Enforcement Agent Outright testified that he questioned Betts about his pharmacy records in March 1976. Outright stated that Betts knew little or nothing about the pharmacy records. Betts told Outright that Davis handled the operation of the pharmacy and that Betts knew that Davis was an apprentice pharmacist. Betts also told Outright that he knew that he was obligated to physically supervise Davis. Outright stated that he was not able to audit the pharmacy because no records were available at the time.

Betts and Evans offered the testimony of Charles and David Johnson to impeach the testimony of Officer Eichler. David Johnson stated that Eichler entered his home and arrested his wife. Johnson stated that Eichler told him that he wanted Betts and that if Johnson “could give him Betts,” Eichler would let Johnson go. Charles Johnsons testimony corroborated the raid at David Johnson’s home. Alfred Evans testified that on October 27,1977, Officer Corcoran entered the pharmacy, jumped on the prescription counter and began to throw various items, including the prescription file. Evans stated that Corcoran forced people on the street into the pharmacy and searched them for drugs. At the time that Corcoran and Eichler entered the pharmacy, Evans claimed that he was eating dinner. Evans denied that he attempted to hide any pills or money when the officers entered the store. He testified that Eichler threatened to blow up the pharmacy and that Eichler and others threatened to kill people in the store. On cross-examination, Evans stated that, although he had not seen a copy of the rules and regulations governing the practice of pharmacy since he first was registered, he was aware that a pharmacy was required to keep records for the sale, purchase, possession, storage and return of pharmaceuticals. Evans testified that the pharmacy records were kept on a sheet of paper which Evans gave to Betts every evening. Evans testified that on October 3, 1977, he paid for 12 cases of Talwin with $10,572.71 in cash. Evans also testified that between October 1977 and January 1978 he received additional cases of Talwin, including 76 cases of Talwin in October. Evans stated that the Talwin was “brokered” to other pharmacies, although he refused to divulge the names of any pharmacies to which the Talwin was sold. When asked about the January 15, 1978, audit, Evans was not able to account for the prescription files and failed to provide an explanation of what happened to 32 cases of Talwin which were purchased prior to the audit in January 1978.

Betts testified that he was aware that a pharmacy is required to account for prescription drugs, although no special records for Talwin were required. Betts corroborated Evans’ testimony that he was seldom at the pharmacy. Betts stated that he felt that it was pertinent to keep records for controlled substances, but that it was worthless to keep records for noncontrolled substances. Betts testified that he kept private records for tax purposes, but he refused to permit anyone to see those records. Betts stated that the Talwin and Tripelannamine purchases made between October 1977 and January 1978 were bought for other pharmacists whose identity he refused to disclose. Betts stated that he accepted responsibility for his refusal to account for such large amounts of pharmaceuticals. Betts testified that Davis, an apprentice pharmacist, operated the pharmacy while Betts was attending to his Michigan resort and that if any drugs were missing, Davis disposed of them without Betts’ knowledge. Betts stated that he had never sold prescription drugs to a customer without a prescription. He stated that he was convicted of illegal delivery of a controlled substance but that the conviction is on appeal because there were irregularities at his trial. Betts also stated that at the time the felony was committed, he was not in town.

We reject the contention of plaintiffs that the decision of the trial court was against the manifest weight of the evidence. A careful review of the testimony and the record in this case discloses ample support for the decision of defendant. Therefore, the decision of the trial court was correct in upholding the administrative decision, especially in light of Betts’ refusal or inability to account for the enormous purchases and distribution of drugs where a prescription is required for retail sales.

II

The plaintiffs next contend that their right to due process was violated because hearings in the matter of the license suspensions were held in the presence of an appointed hearing officer and at least one member of the board. Plaintiffs argue that the statute requires a quorum of the board to be present in order for any business to be transacted (Ill. Rev. Stat. 1977, ch. 111, par. 4108), and that, by failing to have a quorum present during each hearing session, the board did not have power to act. Defendant argues that the statutory requirement does not mean that a quorum of the board must be present to hear the evidence presented in order to make findings and recommendations to the director. (See Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 357 N.E.2d 785; McCabe v. Department of Registration & Education (1980), 90 Ill. App. 3d 1123, 413 N.E.2d 1353, cert. denied (Oct. 5, 1981), 50 U.S.L.W. 3056.) Defendant contends that plaintiffs’ complaint that “the Board never met, and in fact lawyers for the Department who represented the complainant wrote the decision” and that the decision of the board was “manufactured” is not supported by the record. Defendant argues that the bare assertion of impropriety on the part of the board by plaintiffs is insufficient to establish any wrongdoing by the board.

In the absence of a statutory provision to the contrary, it is not necessary that those persons who are ultimately charged with making findings of fact, conclusions of law, recommendations of administrative decisions be personally present to hear evidence presented during an administrative proceeding. (See Morgan v. United States (1936), 298 U.S. 468, 80 L. Ed. 1288, 56 S. Ct. 906; Homefinders, Inc. v. City of Evanston; McCabe v. Department of Registration & Education.) In Homefinders, Inc., our supreme court stated:

“Morgan and other Federal decisions have consistently recognized that, in the absence of statutory provisions to the contrary, it is not necessary that testimony in administrative proceedings be taken before the same officers who have the ultimate decision-making authority. [Citations.] They indicate to the contrary that administrative proceedings may be conducted by hearing officers who refer the case for final determination to a board which has not ‘heard’ the evidence in person. The requirements of due process are met if the decision-making board considers the evidence contained in the report of proceedings before the hearing officer and bases its determinations thereon. [Citations.]” (65 Ill. 2d 115, 128, 357 N.E.2d 785, 791.)

In the instant case, the Director appointed a hearing officer to expedite the hearing of evidence. In addition, the Director required that at least one member of the board be present for each session. In its recommendations and findings of fact and conclusions of law submitted to the Director, the board stated that each board member was furnished with a transcript of the proceedings, that each member read the transcript and that each considered the evidence presented therein. We believe that the actions taken by the Director, upon recommendation by the board, are in accord with Homefinders, Inc., and our recent decision in McCabe. Plaintiffs have failed to establish that their rights were prejudiced by the procedures employed by the board. Under the controlling decisions of Homefinders, Inc., and McCabe, the ruling of the trial court was correct.

Plaintiffs next argue that defendant violated their right to due process, as well as the provisions of the Open Meetings Act (Ill. Rev. Stat. 1977, ch. 102, par. 41 et seq.), because the board met in secret and without notice to plaintiff during the summary suspension hearing. Plaintiffs also contend that the board held “secret” meetings which involved the disposition of the proceedings against plaintiffs and which were in violation of the Open Meetings Act. Plaintiffs urge that a violation of the Open Meetings Act voids the actions taken by the board at a “secret” meeting. Defendant argues that the plaintiffs ignore the purpose of the summary suspension procedures because the procedures are designed to permit an administrative agency to act quickly when, in the agency’s determination, prompt action is required to protect the public welfare. (Ill. Rev. Stat. 1977, ch. 127, par. 1016.) Defendant contends that summary suspension procedures have been upheld on due process grounds. See Mathews v. Eldridge (1976), 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893.

We need not address plaintiffs’ contention that the summary suspension procedures violate their right to due process because we view the issue as moot. After the summary suspension procedure which resulted in the initial suspension of plaintiffs’ licenses, plaintiffs received proper notice and a full hearing on the administrative complaint. It was from this hearing that appeal was taken to the circuit court. Plaintiffs complain that the board held secret meetings. Plaintiffs have not cited any facts in the record to support this claim, nor are we able to discern from plaintiffs’ brief when these alleged meetings occurred and what, if anything, transpired at these meetings. In any event, although a public agency which is subject to the provisions of the Open Meetings Act may have conducted business, such as deliberations, at a closed session, this does not necessarily result in the actions taken at such a meeting being null and void. See In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67; Board of Education v. County Board of School Trustees (1978), 60 Ill. App. 3d 415, 376 N.E.2d 1054.

Plaintiffs next contend that they were entitled to a de novo hearing before the board after the circuit court remanded the matter to the board because Betts’ conviction of a felony had been reversed on appeal. Defendant argues that it is significant that after the reversal of the conviction the circuit court remanded the matter to the board for reconsideration of this very sanction as claimed by plaintiffs. The language of the circuit court’s order clearly indicates that only sanctions were to be reconsidered and, therefore, plaintiffs’ contention that the court ordered a new hearing before the board is without merit.

Plaintiffs also have raised numerous other issues which we decline to discuss because they have failed to set forth and point out matters in the record to support their claims or to adequately argue such claims.

Ill

On cross-appeal, defendant contends that the trial court erred in reversing the revocation of plaintiff Alfred Evans’ license on the grounds that the term “gross immorality is too vague a standard against which normal, intelligent persons can gauge their conduct.” Defendant argues that the trial court erred in failing to give proper weight to the administrative agencies who are charged with the interpretation of the laws, rules and regulations and a reasonable interpretation must be left to the agency. (See Olin Corp. v. Pollution Control Board (1977), 54 Ill. App. 3d 480, 370 N.E.2d 3.) Defendant has cited Miller v. Department of Registration & Education (1979), 75 Ill. 2d 76, 387 N.E.2d 300, where the term “gross immorality” was involved! In Miller, the supreme court held that the conviction of a pharmacist who had made illegal kickbacks to nursing homes did not warrant the revocation of the pharmacist’s license because such conduct did not constitute “gross immorality” under the same statute involved in the present case. Defendant argues that implicit in the Miller decision is that the term “gross immorality” is not unconstitutionally vague because the supreme court concluded that the pharmacist’s conduct did not constitute “gross immorality.” Defendant claims that if any doubt as to the term’s constitutionality remained after Miller, it was removed in the supreme court’s recent decision in Chastek v. Anderson (1981), 83 Ill. 2d 502, 416 N.E.2d 247, which was decided after the trial court’s decision in this cause. In Chastek the court reaffirmed the use of the phrase in question and stated:

“The rationale in the cases upholding these statutes is that it is impossible to categorize all the acts constituting terms such as unprofessional conduct’ or ‘gross immorality;’ Further, terms such as ‘unprofessional conduct’ are susceptible to common understanding by the members of the profession. When combined with the legislative purpose of protecting the public from people unfit to practice, the term ‘unprofessional conduct’ provides fair notice to professionals and is not unconstitutionally vague.” (83 Ill. 2d 502, 509, 416 N.E.2d 247, 251.)

Defendant asserts that after Miller and Chastek any doubt as to the term’s vagueness has been removed and argues that, even if the trial court was correct in holding that the term “gross immorality” was unconstitutionally vague, there was sufficient evidence in the record to sustain the revocation of the license of Evans on the grounds that revocation is warranted if a pharmacist “is found to have wilfully violated any of the rules and regulations promulgated for the administration of [the Pharmacy Practice] Act.” (Ill. Rev. Stat. 1977, ch. 111, par. 4019.) Defendant contends that the evidence sustained a number of wilful violations of the rules and regulations, particularly where there may have been a violation by the failure to maintain proper records as to the distribution of drugs where at least some records are required by statute. Ill. Rev. Stat. 1977, ch. 111, par. 4030.

Plaintiff Evans argues that the term “gross immorality” fails to inform plaintiff of conduct which could result in the revocation of his license. Plaintiff argues that to pass constitutional muster, the term must be able to be accurately and precisely defined. He also contends that, in the cases cited by defendant, there has been a criminal conviction which related directly to the practice of the profession of the licensee. Plaintiff argues that he has not been convicted of such an offense and asserts that Chastek is distinguishable from the instant case on the facts because in Chastek, a dentist was found to have committed extreme and repeated acts of malpractice which constituted “unprofessional conduct.” Plaintiff contends that Chastek should be limited to its facts and should not be expanded to cover a situation such as the one which exists in the present case.

We note from the record that it does not appear that the trial court had the benefit of the supreme court’s decision in Chastek at the time of its ruling that the term “gross immorality” was unconstitutionally vague. The statute under review provides that the Director may refuse to renew or may revoke or suspend the license of a person registered under the Pharmacy Practice Act, when, inter alia, the licensee is found to be guilty of “gross immorality.” (Ill. Rev. Stat. 1977, ch. 111, par. 4019.) Rule VII of the Rules and Regulations Promulgated for the Administration of the Illinois Pharmacy Act (1978) defines “gross immorality” to be “any act or practice which is inimical to the public health, safety and welfare as measured by the standards of the Board of Pharmacy, that is wilfully and knowingly committed or engaged in by the holder of a license or certificate of registration issued under the provisions of the Act.” The term “gross immorality” cannot be read in a vacuum, but must be read in conjunction with the applicable statutes and administrative rules and regulations governing the practice of pharmacy. See Chastek v. Anderson; Miller v. Department of Registration & Education.

In construing the meaning attached to a statutory provision, it is necessary to examine the language of the statute and its purpose. (See Chastek v. Anderson; Miller v. Department of Registration & Education.) Guided by the foregoing, we have examined the statute at issue and do not find that the term “gross immorality” as used therein is unconstitutional for any of the grounds asserted by plaintiff Evans. The statute places plaintiff Evans on notice that he could have his license revoked for engaging in repeated conduct which is “grossly immoral” and which is inimicable to the health, safety and welfare of the general public, as is alleged in the charges brought against plaintiff Evans. Chastek and Miller provide sufficient guidance and scope for determining on a case-by-case basis conduct constituting “gross immorality.” From the record, it appears that the circuit court did not determine whether the findings and conclusions concerning the charges against plaintiff Evans were supported by sufficient evidence or were contrary to the manifest weight of the evidence. Therefore, it is necessary to remand this matter to the circuit court as the same relates to the plaintiff Evans for further proceedings consistent with this opinion.

. Accordingly, the judgment of the circuit court of Cook County is affirmed as to plaintiffs Betts and Curtis Pharmacy, Inc. and reversed and remanded as to plaintiff Evans.

Judgment affirmed in part; reversed and remanded in part.

McGLOON and O’CONNOR, JJ., concur.


text:
      In re MARRIAGE OF DIANNE FELICIANO, a/k/a Dianne Chudzik, Petitioner and Counterrespondent-Appellee, and CRISPULO A. FELICIANO, Respondent and Counterpetitioner-Appellant.
    First District (1st Division)
    No. 81-1802
    Opinion filed December 28, 1981.

      Peter F. Geraci, of Chicago, for appellant.
    Schiller & DuCanto, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

The wife, Dianne Feliciano Chudzik, filed petitions seeking leave of court to remove the minor child of the parties to Tennessee, a rule to show cause because the husband, Crispulo A. Feliciano, failed to make child-support payments and a request for attorneys’ fees in prosecuting the foregoing. The husband filed petitions seeking modification of the custody provisions of the judgment of dissolution of marriage and seeking an abatement of child support and for a rule to show cause because the wife removed the child from the jurisdiction without leave of court. The trial court granted the wife leave to remove the child to Tennessee, denied her rule to show cause, ordered the husband to pay the child-support arrearages and awarded her attorneys’ fees. The trial court denied the husband’s petitions and rule to show cause and modified the husband’s visitation privileges.

On appeal, the husband contends that: (1) the trial court abused its discretion in refusing to permit the husband’s attorney to question the wife’s former attorney and by refusing to allow the wife to be questioned about her notification of leaving the jurisdiction; (£) the trial court erred in refusing to abate child support during the time the husband contends that he did not know the whereabouts of the wife; (3) the court abused its discretion by reducing the husband’s visitation privileges, by requiring him to pay for the child’s transportation to Tennessee, by ordering him to pay the wife’s attorneys’ fees and by denying the husband’s petition for a rule to show cause and fees and costs; and (4) the court erred in granting the wife’s petition for removal and denying the husband’s petition for modification of the custody provisions of the judgment of the dissolution of marriage. For the reasons set forth herein, we affirm.

The parties were married in 1970 and had one child, a son, who was born in March 1975. On December 6, 1976, a judgment of dissolution of marriage was entered, which judgment awarded the sole care, custody, control and education of the minor child of the parties to the wife. The judgment also ordered the husband to pay to the wife, as and for child support, $35 per week. In May 1977, the wife married John Chudzik who was employed as a truck driver. In February 1979, Chudzik was laid off and commenced receiving unemployment compensation. In September 1979, Chudzik, the wife and the minor child went to Tennessee to visit the wife’s parents. During the time they were in Tennessee, Chudzik looked for employment because he had been unable to locate work in the Chicago area. After returning to Illinois, Chudzik received a job offer as a truck driver from a firm in Tennessee. In October 1979, Chudzik, the wife and the minor child moved to Tennessee to reside there on a permanent basis. The wife testified that, upon moving to Tennessee, Chudzik was able to secure employment, they were able to purchase a home which would not have been possible had they remained in Illinois and the health of the child had improved. She also stated that she and Chudzik have one other child. She further stated that she notified the husband by mail of her move to Tennessee, although the husband denied receiving such information.

At the time the wife moved to Tennessee, the husband was $140 in arrears for child support. In January 1979, the wife had filed a petition for a rule to show cause because the husband was in arrears for child support. The circuit court entered an order finding that $840 was past due for child support. After the wife moved to Tennessee, the husband stopped making payments for child support. The husband claimed that he did not make the payments because he did not know the whereabouts of the wife and minor child.

In April 1980, the husband filed a petition seeking to modify the custody provisions of the parties’ judgment of dissolution of marriage. In this petition, the husband alleged that the wife had removed the child to Tennessee without providing him with a new address and claimed that the wife was hiding the child because the husband did not agree to reduced visitation with the child. The husband sent the notice of motion concerning his petition to modify to the wife’s former address, although he was aware that she no longer resided at the address. In an ex parte proceeding, the court ordered that custody of the child be changed to the husband. Subsequently, the husband used this court order as a basis for a Tennessee habeas corpus proceeding against the wife and Chudzik. Pursuant to the Tennessee court’s order, the parties agreed to return to Illinois, to vacate the order changing custody of the child and to litigate the issue of the child’s removal to Tennessee.

In November 1980, the wife filed her petitions for leave to remove the minor child to Tennessee and for a rule to show cause based upon the husband’s failure to make child support payments. The wife also sought payment of attorneys’ fees to cover these post-decree matters. In February 1981, the wife filed an emergency amendment to her petition for a rule to show cause because the husband was an additional $280 in arrears for child support. In February 1981, the husband filed his petition for modification of the child support provisions of the judgment of dissolution of marriage and his petition for a rule to show cause because of her removal of the child to Tennessee. During the hearing on the matter, the husband filed his petition seeking to abate child support from the time the wife moved to Tennessee to the date of this petition. At the time of the hearing, the parties stipulated that the arrearage for child support was $1,890.

In June 1981, after the conclusion of the hearings on the various petitions, the court entered an order which granted the wife leave to remove the minor child to Tennessee, entered judgment in the amount of $1,890 against the husband for child support arrearages and awarded the wife’s attorneys $500 for fees. The order denied the wife’s and husband’s petitions for a rule to show cause, and denied the husband’s petition to abate child support and petition to modify the custody provisions of the judgment of dissolution of marriage. The court’s order also set forth a schedule for the husband’s visitation with the minor child, required the wife to pay the cost of transporting the child to Chicago during the summer and Christmas vacations and required the husband to bear the costs of transportation for the return of the child to Tennessee after those visitations.

The husband first argues that the trial court committed reversible error by its refusal to permit the husband to examine the wife’s former attorney and by refusing to permit the examination of the wife about her notification of leaving Illinois. The husband contends that the purpose of questioning the wife’s former attorney was to impeach the testimony of the wife concerning her notification of her former attorney that she was leaving Illinois and that she provided him with her new address. The husband argues that an affidavit from the former attorney exists and concerns, in part, conversations between the attorney and the husband’s attorneys. He contends that the communications between attorneys are not privileged communications. (See Roberts v. Metropolitan Life Insurance Co. (7th Cir. 1938), 94 F.2d 277, cert. denied (1938), 303 U.S. 660, 82 L. Ed. 1119, 58 S. Ct. 764, and 304 U.S. 570, 82 L. Ed. 1535, 58 S. Ct. 1039.) He claims that the affidavit requested the wife’s former attorney to admit or deny whether the mother was planning to leave the jurisdiction and what the wife had requested her former attorney to tell the husband’s attorney. The husband argues that the wife waived whatever privilege may have existed by her conduct. The husband argues that by instructing her former lawyer to communicate a fabrication to her husband’s attorney and by having the husband rely on this fabrication, she has implicitly waived the attorney-client privilege.

The wife contends that the entire line of questioning concerning her communication with her former attorney is irrelevant and immaterial since the communication supposedly occurred in January 1980, and the wife had moved to Tennessee in October 1979. She contends that this . communication could not have any probative value. She argues that she was never asked during the hearing whether she had any communication with her former attorney and that, therefore, there was no statement of hers which could be impeached by her attorney’s testimony. Further, the wife urges that it is improper to refer to an affidavit which is de hors the record and that any references to this affidavit should be disregarded. She claims that any communications between herself and her attorney are privileged and can only be waived by her. The wife argues that even if such testimony had been admitted, there would be no change in the outcome of the court’s decision and that, therefore, any error which might exist would be harmless error.

We believe that the trial court properly refused to permit questioning of the wife or her attorney about the communications between the two. The wife’s former attorney testified that he had sent a letter to her at a Melrose Park, Illinois, address in January 1980. The former attorney testified that he did not have any other address for the wife at that time. The husband’s contention that the wife instructed her former attorney to transmit a fabrication concerning her new address to the husband’s attorney at or about the time she moved to Tennessee appears to be contradicted by the former attorney’s testimony. In addition, it was proper for the trial court to refuse to allow the husband to inquire into the nature of those communications because those communications between the wife and her former attorney may be privileged communications (see Groak v. Groak (1965), 64 Ill. App. 2d 439, 212 N.E.2d 139), and the expected response, if any, was not necessary to the disposition of the matter in dispute before the court.

The husband next argues that the trial court erred in refusing to abate child support payments for the time during which he claims that he did not know the whereabouts of the wife and child. The husband concedes that case law establishes that child support is a vested right of the child, although he urges that courts have applied this principle only where there has been a unilateral termination or a purported agreement to terminate child support. (See Hoos v. Hoos (1980), 86 Ill. App. 3d 817, 408 N.E.2d 752; In re Custody of Potts (1980), 83 Ill. App. 3d 518, 404 N.E.2d 446.) He contends that there is no showing that the child will benefit from the payment of the past-due child support and that if he is required to pay the arrearages, it will serve as punishment to him and reward to the wife.

We view the contention of the husband to be without merit and agree with the position of the wife that under the circumstances of this case, section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 510(a)) precludes any modification of child support payments which have accrued. See Hoos v. Hoos (1980), 86 Ill. App. 3d 817, 408 N.E.2d 752.

The husband next contends that the trial court abused its discretion in reducing his visitation, by requiring him to pay for the child’s transportation to Tennessee, by requiring him to pay the wife’s attorneys’ fees and by denying his petition for a rule to show cause. He argues that the judgment of dissolution of marriage granted him 72 days and 26 Friday evenings of visitation, whereas the modification only provides for one week during the Christmas holidays and one month during the summer. He claims that the child will suffer from this reduced visitation. He further urges that he is penalized and the wife is rewarded by the trial court’s order which requires him to pay the child’s transportation to Tennessee after his visitation with the child and which requires him to pay his wife’s attorney’s fees. He contends that the award of fees was improper because the litigation was due to the wife’s removal of the child without leave of court. The wife argues that a determination by the trial court as to what serves the best interest of the child will not be disturbed unless it is contrary to the manifest weight of the evidence. See In re Marriage of Siklossy (1980), 87 Ill. App. 3d 124, 409 N.E.2d 29; Gray v. Gray (1978), 57 Ill. App. 3d 1, 372 N.E.2d 909.

In the instant case, the trial court was faced with the difficult task of altering the husband’s visitation rights because of the child’s relocation to Tennessee. In viewing the totality of the circumstances, we believe the trial court acted prudently in modifying the visitation rights in the fashion that it did. Similarly, we reject the husband’s contention that the trial court abused its discretion in requiring the husband to provide transportation for the child to Tennessee following visitations since the trial court’s order also required the wife to furnish transportation for the child to Illinois for visitation with the husband. In this case, the trial court awarded the wife $500 for attorneys’ fees. This award must be sustained by virtue of the pursuit and enforcement of past-due child support payments which were admitted by stipulation of the parties. The husband cannot be heard to complain as to the right of the wife to attempt to enforce the orders of the court in this connection. See Roth v. Roth (1977), 52 Ill. App. 3d 220, 367 N.E.2d 442.

Finally, the husband argues that the trial court erred in granting the wife’s petition for removal and in denying his petition for a modification of the custody provisions of the judgment of dissolution of marriage. The husband predicates his argument upon his claimed stability and his wife’s alleged instability. The wife argues that the husband has failed to establish that the present custody arrangement endangers the child’s physical, mental, moral or emotional health as required by section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610). She further contends that the mere relocation of the child to another State is not sufficient grounds to warrant a change in custody. (See In re Custody of Potts (1980), 83 Ill. App. 3d 518, 404 N.E.2d 446; Mathey v. Mathey (1971), 1 Ill. App. 3d 1008, 274 N.E.2d 501.) Finally, the wife claims that removal of the child is in the child’s best interest because the economic opportunities for the family are better in Tennessee, because she and Chudzik have purchased a home in Tennessee with the assistance of a grant program, because the child has made friends in Tennessee and is doing well in school and because there has been a general improvement in the child’s health.

The removal of the child to another jurisdiction, standing alone, is not sufficient grounds to warrant a change in custody. (See In re Custody of Potts (1980), 83 Ill. App. 3d 518, 404 N.E.2d 446.) In order to grant a petition for a change of custody, section 610 of the Illinois Marriage and Dissolution of Marriage Act mandates specific findings by the court. (Ill. Rev. Stat. 1979, ch. 40, par. 610.) In the instant case, the record is devoid of any evidence of findings which would warrant a change in custody pursuant to section 610. Therefore, the action of the court was proper.

Section 609 of the Illinois Marriage and Dissolution of Marriage Act provides that the court may grant leave to remove a child where it is in the best interests of the child. (Ill. Rev. Stat. 1979, ch. 40, par. 609.) In determining whether leave to remove should be granted, the petitioning spouse has the burden of proof to show that there is a desire to move from the jurisdiction, there is a sensible reason for the move and there is some showing that the move is consistent with the best interests of the child. (See In re Marriage of Burgham (1980), 86 Ill. App. 3d 341, 408 N.E.2d 37.) After carefully reviewing the testimony in this matter, we conclude that the wife has established that such a move is in the best interests of the child and has met her burden of proof. In addition, the evidence adduced at the hearing established that there has been a general overall improvement in the child’s living conditions and health and it therefore follows that the action of the court was correct in granting the wife leave to remove the child to Tennessee.

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

Judgment affirmed.

McGLOON and O’CONNOR, JJ., concur.