author: JUSTICE JOHNSON PRESIDING JUSTICE ROMITI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES E. FORD, Defendant-Appellant.
    First District (4th Division)
    No. 81—1890
    Opinion filed September 22, 1983.

      ROMITI, RJ., dissenting.
    Steven Clark, of State Appellate Defender’s Office, of Chicago (Daniel C. Marson, of Winston & Strawn, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and James E Sullivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, James E. Ford, appeals his conviction for murder and armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a), 18 — 2(a)) and raises the following issues for review: (1) whether the trial court erred in not giving an instruction to the jury explaining that a verdict of not guilty by reason of insanity results in a hearing to determine whether he is subject to involuntary commitment and (2) whether the trial court erred in not granting his motion for a mistrial where statements made by the prosecutor were improper and prejudicial, and denied him a fair trial.

We affirm.

The facts of this case are unrebutted. Testimony at trial established the following.

John Rimkus, a Chicago policeman, testified that on October 24, 1979, at about 11:15 p.m., he went to the subway station at 30 South Dearborn Street, in Chicago, Illinois, in response to a radio message. He saw a man, later identified as Joseph Ardell, lying in a pool of blood on the subway platform. Ardell was dead with stab wounds on his neck. There was no money in his wallet.

Austin Ware, a Chicago policeman, testified that at about 4:10 a.m. on October 25, 1979, he was in the subway station at 128 North State Street in Chicago. He saw five people exiting a subway train and shouting that a crazy man was aboard. When Ware boarded the train, he saw two men pushing each other, one of. whom was the defendant. The other person, who was older than defendant, said that defendant was crazy and was threatening him. Ware pulled defendant off the train, and, during a protective search, he discovered a bloodstained knife in defendant’s pocket. Ware advised defendant of his Miranda rights; he observed blood on defendant’s trousers and shoes. When Ware asked defendant about the blood on his clothes, defendant gave various stories: first he said he had been cutting chickens at home; then he said his mouth was bleeding, that his head had been “busted,” and finally he said he had been assisting a man on the “el” who had been cut about the face and neck.

After Ware took defendant to the police station, a Chicago Transit Authority (CTA) pass with the name “John Wahlund” was taken from defendant and also money which had blood on it. Ware observed that defendant had been drinking but was not intoxicated.

Robert M. Kirschner, a forensic pathologist and deputy medical examiner for Cook County, performed an autopsy on the victim on October 25, 1979. The victim’s death was caused by stab wounds to the neck.

John Markham, a Chicago police detective, had conversations with defendant on October 25, 1979. After Miranda warnings were given to him, defendant stated that while he was in the subway a man said, “Hey, baby,” and patted defendant’s behind. Defendant pulled out a knife and stabbed the man. Markham stated that defendant was not under the influence of alcohol or drugs when he made the statement.

Bernadett Kwak, a microanalyst for the Chicago police department, stated that the stains on defendant’s clothes, the knife and the money were blood.

John Wahlund testified that he was robbed in a subway station on October 14, 1979, at 3:50 a.m. A man grabbed him from behind and held a knife against his neck. The offender took Wahlund’s CTA pass and $50.

James Linn, an assistant State’s Attorney, described the circumstances surrounding the taking of defendant’s confession and then read the statement to the jury. After the State rested, two witnesses testified for the defense.

Dr. Bobby Wright, a clinical psychologist and director of the Garfield Comprehensive Community Mental Health Center, testified as an expert witness. He administered psychological tests to defendant and concluded that defendant suffered from alcoholism dependency. In Dr. Wright’s opinion, there was a reasonable doubt whether defendant possessed substantial capacity to appreciate the criminality of his conduct or to conform his behavior to the requirements of law.

Geraldine Galvin testified that she has known defendant for approximately 10 years, that she and defendant lived together for about a year, and that defendant is the father of her child. The witness stated that defendant often became violent after drinking and that she had filed complaints against him for battery.

Detective John Markham was recalled as a witness on rebuttal and gave his opinion that defendant was sane on October 25,1979.

Dr. Gerson Kaplan, a psychiatrist, was qualified as an expert witness. He examined defendant twice and diagnosed defendant as having an antisocial personality. In Dr. Kaplan’s opinion, defendant was sane at the time he murdered the victim.

After this jury trial, defendant was convicted of murder and armed robbery. He was sentenced to a term of natural life without parole for the murder, and to a concurrent term of 60 years for the armed robbery. Defendant appeals.

The first issue raised by defendant is whether the trial court erred in not giving an instruction to the jury explaining that a verdict of not guilty by reason of insanity results in a hearing to determine whether the defendant is subject to involuntary commitment. Defendant argues that the prosecution implied that he would go free if found not guilty by reason of insanity. This argument confused the jury and biased them against such a verdict. Defendant also argues that Illinois courts should adopt a rule requiring explanation of the consequences of a verdict of not guilty by reason of insanity. Alternatively, defendant argues that even if the instruction is not mandatory, it should be given when requested and should have been allowed because of the special circumstances, namely, the misrepresentation of the consequences of an insanity acquittal.

Defendant tendered the following instruction:

“If you find the Defendant not guilty by reason of insanity, you must find that the Defendant committed the acts charged but at the time of the commission of these acts the Defendant was insane. In the event of a verdict of not guilty by reason of insanity, a hearing shall be held to determine whether the Defendant is subject to involuntary admission.”

The trial judge refused the instruction because the jury need not be confronted with the matter of what happens to a defendant after he is found not guilty by reason of insanity.

In People v. Meeker (1980), 86 Ill. App. 3d 162, 170, 407 N.E.2d 1058, 1065, the appellate court declined to adopt as a general rule a requirement that the jury be given an instruction which relates the consequences of a verdict of not guilty by reason of insanity. (See also People v. LaFiura (1981), 92 Ill. App. 3d 714, 415 N.E.2d 1365.) The court reasoned that such an instruction would inject into the trial and the deliberations of the jury extraneous and irrelevant matters that would have no bearing on defendant’s guilt or innocence. In the court’s view, the jury’s verdict should not be influenced by its possible consequences. Such an instruction invites the jury to reach a compromise verdict, finding defendant not guilty by reason of insanity despite clear evidence of legal sanity because defendant will be incarcerated anyway. Requiring an instruction in all cases, or even in close cases, involving an insanity defense would not help the jury reach a true and correct verdict. (People v. Meeker (1980), 86 Ill. App. 3d 162, 170.) In accordance with People v. Meeker, we hold that in the instant case the trial court did not commit reversible error in refusing defendant’s proposed instruction describing the consequences of a verdict of not guilty by reason of insanity.

The defendant next argues that the trial court erred in not granting his motion for a mistrial where statements made by the prosecutor were allegedly improper and prejudicial and denied the defendant a fair trial. The allegedly improper comments include the prosecutor’s representations that defendant’s defense of intoxication was “B.S.,” that the defense of intoxication was only recently disclosed by defendant, that the jury should be insulted by this defense of intoxication, that defendant’s insanity defense was a “fake,” that defendant did not have “a license to kill,” and that the jury should not be “fooled” by the defense psychologist.

Defendant argues that these remarks violate the rule which govern prosecutorial argument to the jury which are stated in People v. Witted (1979), 79 Ill. App. 3d 156, 165-66, 398 N.E.2d 68, 77. Defendant contends that (1) the above-mentioned remarks violate the rule prohibiting the argument that defense counsel fabricated the defense, (2) the remarks were not based on evidence presented at trial, (3) the State tried to confuse the jury by misrepresenting the insanity defense, (4) the remarks were designed to arouse passions and prejudice the jury, and (5) the prosecution continued to make improper arguments despite repeated objections sustained by the court. Finally, defendant argues that a failure to reverse and remand for a new trial will encourage prosecutors to continue to use such improper argument.

Where a defendant claims prejudice resulting from certain remarks made by the prosecution in closing argument, he must establish that there was a reasonable possibility that the questionable language, in light of all the evidence, was a material factor in his conviction. People v. Shorter (1978), 59 Ill. App. 3d 468, 479, 375 N.E.2d 513, 521.

In our opinion, the prosecutor’s statements were not a material factor in defendant’s conviction. There was evidence from which the jury could conclude that defendant was sane at the time of the offense. Defendant made false exculpatory statements to account for the blood on his clothes; he gave a detailed account of the incident; and an expert witness testified that defendant was sane. Therefore, we hold that statements made by the prosecutor, even if improper, did not constitute reversible error. People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200, 1205.

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

Affirmed.

JIGANTI, J., concurs.

PRESIDING JUSTICE ROMITI,

dissenting:

Because I believe this defendant was deprived of a fair trial I respectfully dissent. In People v. Meeker (1980), 86 Ill. App. 3d 162, 407 N.E.2d 1058, this court specifically reserved the question of whether under special circumstances, such as misleading prosecutorial comments on the consequences of acquittal by reason of insanity, an instruction such as that requested by defendant here should be given. In People v. Hebein (1982), 111 Ill. App. 3d 830, 444 N.E.2d 782, the defendant’s contention that such misleading prosecutorial comments had been made was rejected by the court so the issue was again not decided. In this cause, although the majority has not addressed that specific issue, it is clear to me that we are squarely presented with it.

The prosecution successfully prevented defense counsel from having the jury instructed that a verdict of not guilty by reason of insanity would not automatically result in the defendant’s release from custody. The pertinent section of the barred instruction stated:

“In the event of a verdict of not guilty by reason of insanity, a hearing shall be held to determine whether the defendant is subject to involuntary admission.”

In final argument to the jury the prosecutor then made statements which appear to have been calculated to give the jury precisely the erroneous impression which this instruction would have prevented them from drawing. The prosecutor told them:

“The psychiatrist tells you yes. There was no excuse to be an alcoholic for what he did. They tell you there’s ten million alcohol dependents out there and if you believe Dr. Bobby Wright, every one of them has a license to kill, go out and commit free murders because they are all not responsible.
* * *
He says if Mr. Ford drinks, he will kill again. Well, that’s fine. You want to let that happen? Let him go.
* * *
That’s the defense. They want you to give him a free murder.
* * *
One doesn’t accept this, I won’t use the word B.S., this insanity defense, this fake insanity defense, this cloud insanity defense guise in alcoholism, because then there are ten million insanity defenses in this country and then there are ten million Joseph Ar-dells yet to die.”

Clearly these arguments implied to the jury that their acceptance of defendant’s insanity defense would automatically result in his release. (See People v. Brown (1982), 104 Ill. App. 3d 1110, 433 N.E.2d 1081.) This in a case where according to the arresting officer five witnesses described the defendant as “crazy” and where the testimony of defendant’s expert witness, if believed by the jury, would have resulted in his acquittal by reason of insanity.

Under these circumstances I believe defendant has been deprived of a fair trial. (Dipert v. State (1972), 259 Ind. 260, 286 N.E.2d 405.) I would reverse his conviction and remand the cause for a new trial at which the prosecution may seek his conviction in a manner consonant with his duty to see that justice is done.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    GEORGE C. SUTTON, Plaintiff-Appellant, v. ALBERT HOFELD et al., Defendants-Appellees.
    First District (1st Division)
    No. 82—652
    Opinion filed August 25, 1983.
    Rehearing denied October 20, 1983.

      Synek and Bishart, of Chicago (Henry Thrush Synek, of counsel), for appellant.
    Charles E. Reiter III, of Chicago, for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, George C. Sutton, M.D., filed a two-count complaint against defendants, Albert E Hofeld, an attorney at law, and Albert F. Hofeld, Ltd., a professional corporation. The issue on appeal is whether plaintiff’s complaint sufficiently states a cause of action.

This lawsuit resulted from an earlier suit for medical malpractice which was filed in 1975. In that suit, defendant Hofeld was the attorney for Donald Palmer, the plaintiff. The plaintiff in the instant suit, George C. Sutton, was one of the defendants in the 1975 medical malpractice suit, along with the hospital where the death occurred, as well as several physicians and nurses. The 1975 suit sought recovery for the wrongful death of George Ann Palmer, the wife of Donald Palmer. Plaintiff Sutton was dismissed with prejudice from the malpractice suit in 1977, two years after its institution, but prior to trial. No appeal was taken from that dismissal.

Sutton filed this suit in 1979 against defendants Hofeld, Ltd., the corporation, and Hofeld, the attorney, who prosecuted the 1975 malpractice suit. Hofeld moved to strike both counts of plaintiff’s complaint. The parties submitted memoranda of law on the motion after which the trial court granted the motion to strike. Sutton then filed an amended two-count complaint.

Count I of plaintiff’s amended complaint alleged abuse of process by defendant, and the following was stated in support: (1) that Hofeld filed the 1975 malpractice suit knowing that the allegations pertaining to Sutton were false; (2) that Hofeld committed abuse of process; (3) that Sutton was libeled, slandered and defamed; (4) that Sutton suffered various losses including income of $2,000 and expenditures for legal fees; (5) that Hofeld acted with malice; and (6) that Hofeld’s ulterior motive was to force a settlement from plaintiff’s insurance carrier. Count II alleged malicious prosecution. Sutton sought total damages of $2,100,000.

Hofeld moved to dismiss plaintiff’s amended complaint on the ground that it failed to allege facts sufficient to state a cause of action. Both parties filed memoranda of law on the motion. On February 19, 1982, the trial court granted Hofeld’s motion to dismiss the complaint and this appeal followed.

Plaintiff contends that his amended complaint sufficiently stated a cause of action for malicious prosecution and abuse of process since Hofeld admitted the allegations necessary to establish both torts. He argues that Hofeld’s motive in filing the medical malpractice suit in 1975 was solely to harass him and to induce payment of damages by his insurance carrier. Additionally, all the necessary elements of malicious prosecution and abuse of process were properly alleged in the amended complaint. Plaintiff concludes that it was erroneous for the trial court to dismiss his complaint.

In support of his contention that his action for malicious prosecution was erroneously dismissed, plaintiff argues that the elements necessary to sustain the cause of action were clearly established by his complaint. We do not agree.

To sustain an action for malicious prosecution, plaintiff must allege and prove (1) the institution of civil proceedings by defendant, (2) termination of such proceedings in plaintiff’s favor, (3) want of probable cause for the proceedings, (4) malice on the part of the defendant in bringing the proceedings, and (5) special injury to plaintiff as a result of the action. Balthazar v. Dowling (1978), 65 Ill. App. 3d 824, 826, 382 N.E.2d 1257, 1259.

Plaintiff vigorously asserts that the termination of the 1975 malpractice action was in his favor, that there was no probable cause for bringing an action against him in the first place, and that Hofeld acted maliciously. Plaintiff points out that he was dismissed from the 1975 malpractice suit “with prejudice” and that such a dismissal is proof that the cause was terminated in his favor. He explains that the cause was terminated at a pretrial hearing and that “no factual issues” were reached by the trial court.

In Kurek v. Kavanagh, Scully, Sudow, White & Frederick (1977), 50 Ill. App. 3d 1033, 1038, 365 N.E.2d 1191, 1194, the court said that termination of a civil suit in favor of the plaintiff must be a judicial determination which deals with the factual issues. Voluntary dismissal, settlement, or even involuntary dismissal are not such terminations. 50 Ill. App. 3d 1033, 1038.

In the earlier case, the trial court never reached the merits of the cause as related to the claim against plaintiff. The record sheds no light on the reason for Sutton’s dismissal from the 1975 malpractice suit. We do not believe that the designation “dismissal with prejudice,” standing alone, establishes a termination in Sutton’s favor.

Plaintiff also argues that Hofeld admitted that he knew there was no liability against plaintiff when the 1975 suit was filed. This clearly shows lack of probable cause and implies that Hofeld was maliciously attempting to harass plaintiff.

Plaintiff stated in his brief and during oral argument that Hofeld admitted the allegations necessary to establish malicious prosecution and abuse of process. During oral argument, plaintiff conceded that the “admission” by Hofeld was based on the filing of a motion to dismiss plaintiff’s complaint instead of an answer denying the allegations. In other words, plaintiff is saying Hofeld made a constructive admission. We reject this reasoning.

We do not agree with plaintiff that under these facts, Hofeld’s filing of a motion to dismiss instead of a denial of the allegations was tantamount to an admission. The very purpose of a court of law is to determine whether an action has merit. We refuse to recognize a rule which would hold a party liable for negligently or even wantonly failing to determine in advance that which only a court can determine. Lyddon v. Shaw (1978), 56 Ill. App. 3d 815, 822, 372 N.E.2d 685, 690.

Additionally, plaintiff has failed to prove malice on the part of Hofeld by his representation of Donald Palmer in the latter’s malpractice suit against plaintiff in 1975. Plaintiff’s statement that the suit was brought solely to harass him and that Hofeld knew plaintiff was not liable, standing alone, is insufficient to establish malice.

We note that Hofeld denied that harassment of plaintiff was his purpose. He argued convincingly that the 1975 malpractice suit sought money damages for the torts alleged. The purpose of the suit, i.e., payment of damages, could not be achieved by harassment of plaintiff.

Plaintiff next takes issue with the dismissal of his action for abuse of process. He makes similar arguments in support of this claim as was made on the question of malicious prosecution. While there are similarities between both torts, they are not synonymous and each tort requires proof of different elements.

To establish a cause of action in abuse of process, plaintiff must prove (1) an ulterior purpose by defendant in the use of regular court process and (2) the use of regular judicial process for an improper purpose. (Kurek v. Kavanagh, Scully, Sudow, White & Frederick (1977), 50 Ill. App. 3d 1033, 1038, 365 N.E.2d 1191, 1195.) Specifically, the defendant must have intended to use the action to accomplish some purpose which could not be accomplished through the suit. 50 Ill. App. 3d 1033.

In order to determine whether there has been an abuse of process, we must determine whether defendant could have achieved some other purpose by filing the action which could not otherwise be achieved. Plaintiff does not explain how Hofeld could acquire damages from him (by harassment) which could not otherwise be achieved through the suit. Here, the 1975 suit sought damages for the alleged negligence resulting in the death of George Ann Palmer, the wife of defendant’s client. Plaintiff does not deny that money damages were sought. He does argue, however, that in addition to seeking damages, Hofeld sought to harass him. Plaintiff does not explain what form the harassment took other than the fact that defendant demanded medical records from plaintiff. Defendant argued that such is proper procedure in a medical malpractice suit.

We agree with defendant that an appropriate use of the legal system is to seek money damages for an alleged wrong. Therefore, plaintiff’s argument that the sole purpose of the suit was to force payment of damages by his insurance carrier is without merit. We find no ulterior purpose in seeking money damages as was done here.

Furthermore, the mere filing of a lawsuit even with a malicions motive does not constitute an abuse of process. (Kurek v. Kavanagh, Scully, Sudow, White & Frederick (1977), 50 Ill. App. 3d 1033, 1038, 365 N.E.2d 1191, 1195.) Thus, even if we accept plaintiff’s argument that Hofeld specifically sought to harass him, that allegation, standing alone, is insufficient to establish a cause of action for abuse of process.

We hold that plaintiff did not sustain his burden of establishing a cause of action in either malicious prosecution or abuse of process. Therefore, the trial court properly dismissed plaintiff’s complaint.

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

Affirmed.

ROMITI, RJ., and JIGANTI, J., concur.


author: PRESIDING JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JACK A. GATES, Defendant-Appellee.
    First District (4th Division)
    No. 82—692
    Opinion filed August 18, 1983.
    Rehearing denied October 20, 1983.

      Richard M. Daley, State’s Attorney, of Springfield (Michael E. Shabat, Paula Carstensen, and Bryan David Schultz, Assistant State’s Attorneys, of counsel), for the People.
    Stephen Wade Zucker, Ltd., of Skokie (Herbert Abrams, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The State appeals from an order of the circuit court quashing a search warrant and suppressing the evidence obtained as a result of the search, contending the complaint for search warrant established probable cause and that the police acted “in good faith” in obtaining and executing the warrant. 87 Ill. 2d R. 604(a)(1).

On September 10, 1981, special agent Michael Maley of the Northeastern Metropolitan Narcotics and Dangerous Drugs Enforcement Group appeared before a judge of the circuit court of Cook County requesting a search warrant for defendant’s person and for a single-family residence and two detached garages at 13843 South Halsted Street in Riverdale, Illinois. The judge issued a warrant authorizing a search for controlled substances, drug paraphernalia, proof of residence and all pre-recorded United States currency of Official Advanced Funds, property of the Northeastern Metropolitan Narcotics and Dangerous Drugs Enforcement Group. The warrant was executed at 6:30 p.m. on September 10, 1981. On September 11, 1981, defendant was charged in two separate complaints, signed by agent Maley, with delivery of a controlled substance to Officer Maley on August 26, 1981, and August 27, 1981. (Ill. Rev. Stat. 1981, ch. Bd1^, par. 1401.) Defendant was subsequently charged by information with the following offenses, alleged to have occurred on September 10, 1981: (1) possession of controlled substance (cocaine) with intent to deliver; (2) possession of controlled substance (pentobarbital); (3) possession of controlled substance (methylenedioxyamphetamine, sometimes called MDA); and (4) manufacture of cannabis. Ill. Rev. Stat. 1981, ch. BBVs, pars. 1401(a)(2), 1402(b), 1401(b), 705(c).

In summary, special agent Maley’s complaint for the search warrant contained the following averments. On August 17, 1981, special agent Arturo Martinez purchased a quantity of what was subsequently determined by laboratory analysis to be MDA. He bought this from James Lau in the area of 150-137th Street in Riverdale, Illinois. Lau had asked Martinez to drive to that area, saying that they had to go meet his “man” so Lau could obtain the MDA. Maley, who was conducting surveillance at that location, saw defendant drive up in a car registered to Barbara Wieck at 13843 Halsted in Riverdale. Defendant and Lau met at defendant's car and then drove away in that car. Another special agent, Johnson, saw the car circle the area without stopping and then return. Maley saw Lau leave defendant’s car and return to Martinez’ car. Martinez later told Maley that when Lau returned he had the MDA, which Martinez then purchased.

On August 26, 1981, in Chicago Maley purchased a quantity of what was later determined to be MDA from Lau. Prior to the purchase surveillance personnel followed defendant from his residence at 13843 Halsted in Riverdale to an Ivanhoe Liquors parking lot in Riverdale where he met Lau, who was also under surveillance. Lau was followed by the surveillance team to the Chicago location where he delivered the MDA to Maley. When asked by Maley if he could obtain larger quantities Lau responded, “My guy’s got a lab.” Lau also said his “connect” obtained the needed chemicals for making MDA from students at a Chicago college.

On August 27, 1981, Maley met Lau in a Riverdale parking lot to purchase MDA. Lau asked for $400 and said he would go to his “connect,” get the MDA, and bring it back. After receiving the $400 (in pre-identified bills) Lau was followed by a surveillance team to the Ivanhoe Liquors parking lot. Another team followed defendant from his home to the same location. Defendant left his car and entered Lau’s vehicle. Lau subsequently returned to the parking lot where Maley was waiting and gave what was subsequently determined to be MDA to Maley, saying “My connect has all you would ever want.”

On September 9, 1981, Maley spoke to Lau by telephone, asking him if he could obtain a quantity of MDA for him the next day from his “connect.” Lau replied “I told you my guy has all you want.” When Maley said he might want an even larger quantity the next day Lau told him “Just let me know before you come over if you want more than a half ounce, all I have to do is call my guy and tell him how much to bring me.”

According to Maley a confidential informant told him on August 17, 1981, that Lau had told the informant he was purchasing MDA directly from a person operating a laboratory. Maley also stated in the complaint that according to the Illinois Bureau of Identification defendant had been arrested and convicted of “one count of Dangerous Drugs.” The complaint also listed a number of vehicles registered to defendant at the Halsted Street address in Riverdale.

In its brief, the State contends that the complaint met the standard of reliability for the issuance of search warrants based on hearsay established by the United States Supreme Court in Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, and in any event, that the officers acted in “good faith.” In Illinois v. Gates (1983), 462 U.S. ___, ___, 76 L. Ed. 2d 527, 534-35, 103 S. Ct. 2317, 2321, the United States Supreme Court declined to address the latter question,' although it had required the parties to brief the issue whether the exclusionary rule “ ‘should to any extent be modified, so as, for example, not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment.’ ” (462 U.S. ___, ___, 76 L. Ed. 2d 527, 534-35, 103 S. Ct. 2317, 2321.) As more fully explained herein, we find it unnecessary to reach the issue of “good faith” raised by the State in its brief.

In determining whether the substantive content of a complaint for a search warrant is sufficient to establish probable cause, the courts have set forth certain general principles applicable here. In People v. Thomas (1975), 62 Ill. 2d 375, 342 N.E.2d 383, our supreme court set forth the principles to be applied in considering whether affidavits for search warrants establish probable cause:

“In Ventresca [United States v. Ventresca (1965), 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741] the court said that ‘the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the court’s cases are to be followed and the constitutional policies served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts towards warrants would tend to discourage police officers from submitting their evidence to a judicial officer before acting.’ [Citations.] *** ‘*** Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’ ” 62 Ill. 2d 375, 379-80.

In quashing this warrant, the trial court made the following finding:

“*** j say for the record, if I were to allow this search warrant, I would have to engage in making so many inferences and speculations from the complaint for the search warrant that it would be really unwarranted to do so, and I believe that this particular execution of this particular search warrant, on the basis of the complaint I saw, violates the right of privacy to Jack Gates.”

For the reasons set forth below, we conclude that a fair, commonsense reading of the complaint (cf. People v. Bauer (1981), 102 Ill. App. 3d 31, 37, 429 N.E.2d 568) established sufficient facts for the issuance of the warrant; that is, the facts were “sufficient in themselves to warrant a man of reasonable caution to believe that the law was being violated and that evidence of it was in the premises or vehicle or on the person to be searched.” People v. Francisco (1970), 44 Ill. 2d 373, 376, 255 N.E.2d 413.

In Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514, the court said: “Although an affidavit may be based on hearsay information and need not reflect the personal observations of the affiant *** the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed *** was ‘credible’ or his information ‘reliable.’ ”

In Illinois v. Gates (1983), 462 U.S. ___, ___, ___, 76 L. Ed. 2d 527, 543, 548, 103 S. Ct. 2317, 2327-28, 2332, the court concluded it was wiser to abandon the Aguilar-Spinelli test in favor of the “totality of the circumstances analysis that traditionally has informed probable cause determinations.” (462 U.S. ___, ___, 76 L. Ed. 2d 527, 548,103 S. Ct. 2317, 2332.) The court stated:

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for *** concludpng]’ that probable cause existed. * * * We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli.” 462 U.S. ___, ___, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332.

The complaint for a search warrant clearly establishes the reliability of James Lau’s information. On three separate occasions law enforcement officers purchased controlled substances through Lau. Lau was named. The agents actually observed and participated in the sales and thus were not relying entirely on the uncorroborated word of an anonymous informant. Moreover, with respect to the statements of his fellow agents, the rule is that a law enforcement officer such as special agent Maley is entitled to rely on knowledge obtained by his fellow officers who are working together with him in the same investigation. (Cf. People v. Peak (1963), 29 Ill. 2d 343, 348-49, 194 N.E.2d 322; Illinois v. Andreas (1983), 463 U.S. ___, ___ n.5, 77 L. Ed. 2d 1003, 1010 n.5, 103 S. Ct. 3319, 3324 n.5.) Therefore, it was reasonable for agent Maley to rely on the various items of information set forth in the complaint which, although hearsay, were provided to him by his fellow agents as a result of their observations and investigations.

Moreover, laboratory tests confirmed that the substances obtained by Lau were in fact contraband. The complaint recites in copious detail: (1) the incident on August 17, 1981, when special agent Martinez purchased a controlled substance from Lau, who, according to agent Maley’s own observations, very probably obtained the substance from defendant; (2) the instance on August 26, 1981, when Maley bought a controlled substance from Lau after Lau’s meeting with defendant nearby; (3) the incident on August 27, 1981, in which Maley purchased a controlled substance from Lau again after a meeting with defendant; in addition, (4) on September 9, 1981, Lau confirmed in a conversation with Maley that Lau’s supplier could get agent Maley “all you want,” and that all Lau had to do was “call my guy and tell him how much to bring me.” Lau proved he could obtain the contraband at will, claiming he only had to make a phone call to his supplier. Lau’s meeting with defendant, which the officers observed, was strong circumstantial evidence that defendant was Lau’s supplier. The various vehicles involved were all registered to the address in the warrant, whence defendant was actually observed to begin the journey to meet Lau. And defendant’s criminal record suggested a drug background. Despite these incriminating appearances, defendant contends the complaint fails to set forth any of the underlying circumstances necessary to enable the judge to independently decide on the validity of the affiant’s conclusion that the narcotics were at 13843 Halsted, reasoning that the statement by Lau, “My guy’s got a lab,” is an unsubstantiated conclusion. We disagree and find the conclusion was eminently reasonable and substantiated by the sales of contraband on August 16,17 and 26 and all the other circumstances Maley enumerated.

Defendant’s presence on these occasions when a sale was consummated was not mere coincidence. Rather, it is clear from the affidavit that when Lau said his “guy” operated a lab, he was referring to the person who supplied him with drugs, and it was reasonable under these circumstances for the officers to conclude that this person was defendant Gates and that defendant and Lau were acting jointly. On three separate occasions the officers observed defendant supply Lau with drugs he then sold to police. Every circumstance set forth in the warrant is consistent with this conclusion.

We believe it misses the point to argue, as does defendant, that at no time did the officers see anything resembling the passing of narcotics or anything else from defendant to Lau. Although the officers apparently did not actually observe the narcotics changing hands between Lau and defendant, the extensive undercover police work resulted in police observations from which the only reasonable conclusion was that defendant had met Lau on these three occasions to provide him with the contraband he then sold to the law enforcement agents. Concerning the question of where the drugs were located, we believe it was reasonable under all the circumstances for the law enforcement officers on September 10, 1981, to credit these statements of Lau that defendant had a source of narcotics in his home. Under Aguilar, Spinelli or Gates, it was reasonable for these officers to believe that defendant had controlled substances either in his home or in the vehicles they had observed. People v. Winters (1983), 97 Ill. 2d 151.

The judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

JIGANTI and LINN, JJ., concur.


author: JUSTICE LINN

text:
    ARTHUR TEPFER et al., Plaintiffs-Appellants, v. DEERFIELD SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee.
    First District (4th Division)
    No. 82—1764
    Opinion filed August 11, 1983.
    Rehearing denied October 20, 1983.
    Robert Schey, of Schey, Goffen & Associates, Richard Hollander, of Hollander & Hollander, and William J. Harte, of William J. Harte, Ltd., all of Chicago, for appellants.
    Bradley, McMurray, Black & Snyder, of Chicago (W. A. Black, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiffs, Arthur H. and Judith M. Tepfer, individually and as representatives of a class, brought an action in the chancery division of the circuit court of Cook County seeking monetary and injunctive relief against defendant, Deerfield Savings and Loan Association. Plaintiffs contend that they were damaged when, at the time their mortgage loan was closed, defendant deducted interest charges for the period of time between the loan disbursement and the first regular monthly principal and interest payment. Plaintiffs claim that the interest deduction violated the terms of the mortgage note. Following a hearing, the trial court dismissed plaintiffs’ complaint. Plaintiffs appeal, arguing that the note’s provisions regarding monthly interest payments “wholly control[led] the method of calculation and amount of interest” and therefore precluded defendant from deducting post-closing interest. We affirm the trial court’s dismissal of plaintiffs’ complaint.

Facts

In April 1976, plaintiffs applied to defendant for a mortgage loan of $52,000. The loan application was approved on April 26, 1976. The loan commitment document (1) indicated that monthly principal and interest payments would be $402.89 and that the first payment was due on July 1, 1976; (2) described estimated loan costs; and (3) provided the following: “Interest, from the date of closing to the first day of the month in which first payment is due, must be added to TOTAL ESTIMATED LOAN COSTS.” Both plaintiffs signed the loan commitment form.

On May 2, 1976, plaintiffs signed a “disclosure statement of cost of loan pursuant to Federal Reserve Regulation ‘Z’ ” sent to them by defendant. The disclosure statement set out the amount of the loan, the terms of repayment, and the finance charges and other costs. Among the specified finance charges to be prepaid was “interest on loan from date of closing [anticipated to be June 14, 1976] to first regular payment date ... $208.76.”

On May 2, 1976, plaintiffs executed a note for payment of the loan that provided:

“FOR VALUE RECEIVED, the undersigned [plaintiffs] hereby promise to pay to [defendant] *** the principal sum of FIFTY TWO THOUSAND AND NO/100 DOLLARS ($52,000), together with interest on the unpaid balance from time to time at the rate of EIGHT AND ONE HALF per centum (8x/2%) per annum thereafter.
* * *
Said principal and interest shall be paid in monthly installments of FOUR HUNDRED TWO AND 89/100 DOLLARS ($402.89) on the FIRST day of each month, commencing with July 1,1976 until this note is fully paid.
Said monthly payments shall be first applied to interest and the balance to principal. Interest for each month shall be added to the unpaid balance on the first day of each month at the rate of one-twelfth (l/12th) of the annual interest rate and shall be calculated upon the unpaid balance due as of the last day of the preceding month.”

The loan was disbursed on June 15, 1976, one day later than expected at the time the disclosure statement was prepared. Plaintiffs received a disclosure settlement statement at this time, which they both signed. Under the heading of “items required by lender to be paid in advance” was an entry for “interest from 6/15/76 to 7/1/76 @ $12.28/day ... 196.48.” The amount of interest payable for the post-closing interval was reduced from $208.76 to $196.48 because of the one-day delay in closing.

Plaintiffs repaid the loan in May 1980. On August 7, 1980, they filed a complaint in chancery, individually and as representatives of a class, alleging that because the note did not provide for payment of interest for the post-closing interval, “the aforesaid charge should have been credited to the principal and not to interest.” On June 15, 1982, following a hearing, the trial court, on defendant’s motion, ordered that plaintiffs’ complaint be stricken and the cause dismissed with prejudice. Plaintiffs appealed.

Opinion

The only issue in this appeal is whether the above-quoted provisions of the note precluded the payment of interest on the mortgage loan for the 16-day post-closing interval after disbursement of the funds but before the due date of the first regular monthly installment. Plaintiffs’ position is that the note is the exclusive statement of the contract between plaintiffs and defendant, and because the note is silent regarding post-closing interest, it was legally impermissible for defendant to charge interest for the post-closing interval. Defendant maintains that plaintiffs are seeking a windfall in the form of an interest-free loan for this period that was not contemplated in the parties’ mortgage contract. We agree with defendant and disagree with plaintiffs.

Defendant argues first that the note itself requires plaintiffs to pay post-closing interest because it provides that the principal sum is to be repaid “together with interest on the unpaid balance from time to time *** thereafter.” Defendant maintains that, read together with the provision of the Illinois Uniform Commercial Code that “[ujnless otherwise specified a provision for interest means interest *** from the date of the instrument” (Ill. Rev. Stat. 1979, ch. 26, par. 3— 118(d)), this language indicates that interest began to accrue on May 2, 1976, the date of the note, although defendant waived interest until the date of disbursement. While we do not disagree that such an interpretation is reasonable, we find it unnecessary to determine whether defendant’s or plaintiffs’ interpretation of the language of the note alone should prevail because, in our view, the trial judge correctly held that “the transaction must be viewed in its entirety. All documents executed as part of one transaction are to be given effect.”

The general rule is that in the absence of evidence of a contrary intention, where two or more instruments are executed by the same contracting parties in the course of the same transaction, the instruments will be considered together and construed with reference to one another because they are, in the eyes of the law, one contract. (17 Am. Jur. 2d Contracts sec. 264 (1964); 17A C.J.S. Contracts sec. 298 (1963); Main Bank v. Baker (1981), 86 Ill. 2d 188, 427 N.E.2d 94; see, e.g., Lynch v. Bank of America National Trust & Savings Association (1934), 2 Cal. App. 2d 214, 223, 37 P.2d 716, 720 (“The rule that separate written documents between the same parties and relating to the same subject-matter *** are to be construed together as one transaction, has been determined by so many authorities there is no room for controversy regarding that principle”).) This is true whether or not the instruments were executed simultaneously; if executed at different times as parts of the same transaction they will be construed together. 17A C.J.S. Contracts sec. 298 (1963).

“Construing contemporaneous instruments together means simply that if there are any provisions in one instrument limiting, explaining, or otherwise affecting the provisions of another, they will be given effect.” (17 Am. Jur. 2d Contracts sec. 264, at 670 (1964).) ‘ ‘[Contemporaneous means so proximate in time as to grow out of, elucidate and explain the quality and character of the transaction, or an occurrence within such time as would reasonably make it a part of the transaction.” (Elsberry Equipment Co. v. Short (1965), 63 Ill. App. 2d 336, 346-47, 211 N.E.2d 463, 468.) In Elsberry, this court held that in an action on a note it was permissible for the trial court to admit into evidence agreements executed 41 days earlier than the note in question as contemporaneous writings that were part of the same transaction.

This long-recognized principle of contract law is applied by statute to negotiable instruments:

“As between the obligor and his immediate obligee or any transferee the terms of an instrument may be modified or affected by any other written agreement executed as a part of the same transaction ***.” (111. Rev. Stat. 1979, ch. 26, par. 3— 119(1).)

“Accordingly, as between the same parties, a note may be affected by a separate writing.” (Main Bank v. Baker (1981), 86 Ill. 2d 188, 201, 427 N.E.2d 94, 99.) The writing, although physically separate from the instrument being construed, is logically viewed as an integral part of the total transaction, and thus is legally treated as a part of the contract between the parties.

Because “[a]s between the immediate parties a negotiable instrument is merely a contract” (Ill. Ann. Stat., ch. 26, par. 3 — 119, comment 3, at 85 (Smith-Hurd 1963)), and a mortgage is a negotiable instrument, these principles apply when a mortgage is to be construed. Thus, where separate documents are executed in a mortgage transaction, “a stipulation or condition inserted in the one is an effective part of the contract of the parties, although not found in the other, provided there is no necessary inconsistency.” (10 C.J.S. Bills and Notes sec. 45 (1938).) Clearly, no “necessary inconsistency” is to be found among the instruments in the instant case: those that refer to post-closing interest agree that it was to be paid, and the note, being silent on the question, is not inconsistent with them.

In the case at bar the note at issue was both preceded and followed in the mortgage transaction by contemporaneous writings that elucidated the character of the transaction. The loan commitment document of April 26 provided that post-closing interest must be added to the loan cost. The disclosure statement of May 2 specified an interest charge of $208.76 for the period from June 14 to July 1. The note, also executed on May 2, set forth the manner in which the regular monthly payments would be calculated and paid beginning on July 1, but made no mention of the post-closing period. Finally, the June 15 closing statement specified that interest of $196.48 for June 15 to July 1 must be paid in advance. Applying the foregoing principles of mortgage, negotiable instrument, and contract law to these instruments in the context of the overall transaction, as we are required to do, we find it abundantly clear that the payment of interest on the loan during the post-closing interval was an element of the agreement between the parties in this case.

We think it important to point out that this finding corresponds to the expressed intention of the parties at the time the bargain was struck between them. Not only did plaintiffs sign all the documents described above, they also stated in affidavits on May 26, 1982, that at the time they signed these documents they believed the figures were correct. Thus plaintiffs were aware that they would be charged post-closing interest, and closed the loan on that basis. “Where different instruments are executed at the same time, but are all parts of one transaction, it is the duty of the court to suppose such a priority in the execution of them as shall best effect the intention of the parties.” (17 Am. Jur. 2d Contracts sec. 264, at 671 (1964).) Because “the instruments will be so interpreted as to permit each to perform its own function agreeably to the intent of the parties” (10 C.J.S. Bills and Notes sec. 45 (1938)), we hold that interest for the post-closing interval was provided in the contract at issue in this case and properly was deducted by defendant.

Plaintiffs rely on Wishnoff v. Guardian Savings & Loan Association (1975), 34 Ill. App. 3d 107, 339 N.E.2d 494, and Lustgarten v. First Federal Savings & Loan Association (1963), 42 Ill. App. 2d 86, 191 N.E.2d 434, which held that the language of the mortgage note was controlling in ruling that the lender could collect a full month’s interest for the month in which the loan was prepaid (Wishnofj) and that the lender could charge interest for each month in advance (Lustgarten). We do not find that these decisions require a holding that defendant in this case could not begin to charge interest at the time plaintiffs’ loan was disbursed. These two cases are factually distinguishable, as defendant points out, in that no language could be found in contemporaneous loan documents to modify the disputed terms in the notes and the notes accordingly were enforced as written. In the case at bar, as we have said, three contemporaneous instruments require payment of post-closing interest and must be given effect in interpreting the transaction as a whole.

For all of the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

ROMITI, P.J., and JOHNSON, J., concur.


author: JUSTICE McGLOON

text:
    DONALD S. KENDZIOR, Plaintiff-Appellant, v. STANLEY T. KUSPER, JR., Cook County Clerk, et al., Defendants-Appellees.
    First District (1st Division)
    No. 82—1925
    Opinion filed September 19, 1983.
    John J. O’Toole and Tom Scheuneman, both of Carey & Scheuneman, Ltd., and Franklin J. Lunding, Jr., of Biggam, Cowan, Marquardt & Bunding, Chartered, both of Chicago, for appellants.
    John H. Hager and David K. Staub, both of Cowen, Crowley & Hager, of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff filed a class action against Stanley Kusper, the clerk of Cook County, and Edward Rosewell, treasurer of Cook County, challenging the constitutionality of a legislative amendment which allowed the clerk to extend levies of certain taxing districts. Defendant Board

of Education of Township High School District No. 211, intervened with leave of court. Defendants’ motions for summary judgment were granted and plaintiffs appeal. On appeal, plaintiffs contend the amendment violated the special legislation clause of the Illinois Constitution, and violates their rights to equal protection and due process.

We affirm.

On July 29, 1981, the legislature enacted the Truth in Taxation Act (the Act) (Ill. Rev. Stat. 1981, ch. 120, par. 861 et seq.). The Act requires taxing districts to notify the public of and hold hearings on their intentions to adopt aggregate levies which exceed 105% of the amount of property taxes extended or estimated to be extended upon the levy of the preceding year. Defendant Board of Education of Township High School District No. 211 (the Board) filed a tax levy certificate with the county clerk of Cook County, but did not publish notice or hold a hearing because it had determined that its 1981 levy was 104.8% of its 1980 tax extensions. The county clerk found that the levy exceeded 105% and would not extend any amounts which the clerk found exceeded that amount.

The discrepancies in calculations were the result of differing interpretations of the term “aggregate levy” used in the Act. The Board believed this term included debt-service levies whereas the county clerk excluded debt-service levies in calculating the Board’s aggregate levy. Thirty-one other taxing districts failed to comply with the Act’s notice and hearing provisions because they, too, included debt-service levies in determining their aggregate levies. Thirty-seven other taxing districts violated the Act in other ways.

The Board filed an action against the county clerk seeking to have its entire levy extended. The case was ultimately decided by the Illinois Supreme Court in Board of Education v. Kusper (1982), 92 Ill. 2d 333, 442 N.E.2d 179. The court concluded that the term aggregate levy did not include debt-service levies. While that action was pending in the Supreme Court, the legislature amended the Truth in Taxation Act by enacting section 9.1 which is the subject of this appeal. Section 9.1 provides:

“If any taxing district lying wholly within a county having more than 3,000,000 inhabitants, by including debt service levies as a part of its aggregate levy pursuant to the estimating procedure set out in Section 4 of this Act, had a levy prior to January 1, 1982 which was more than 105% of the amount of ad valorem property tax, exclusive of election costs and debt service levies, extended or estimated to be extended upon the levy of the preceding year, such levy shall not be deemed invalid due to noncompliance with the provisions of this Act.” Ill. Rev. Stat., 1982 Supp., ch. 120, par. 869.1.

After the enactment of section 9.1 the county clerk extended the levies of the 32 taxing districts in Cook County to which section 9.1 applied. The other districts which failed to comply with the Act were not affected by the amendment.

On July 1, 1982, a class action challenging the constitutionality of section 9.1 was filed. The parties filed cross-motions for summary judgment. After a hearing, the trial court granted defendants’ motions.

On appeal, plaintiffs first contend that section 9.1 violated the constitutional proscription against special legislation in that it discriminates between taxing districts lying within and those outside Cook County.

The special legislation clause of the Illinois Constitution does not prohibit all legislative classifications. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560.) Differential treatment among those similarly situated is permitted if the classification bears a rational relationship to a legitimate legislative purpose. (Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 428 N.E.2d 489; Anderson v. Wagner; Fox v. Rosewell (1977), 55 Ill. App. 3d 860, 371 N.E.2d 287.) Before a court can interfere with a legislative enactment, it must appear that there is no fair reason for the law which would require the distinction between units. (County of Champaign v. Adams (1978), 59 Ill. App. 3d 62, 375 N.E.2d 184.) A statute will not be considered arbitrary if any reasonable set of facts can be conceived to sustain it. Fox v. Rosewell.

Applying the aforementioned principles, we find that section 9.1 does not violate the constitutional prohibition against special legislation. The transcript of the Senate and House debates on the bill indicate that the legislature viewed the problem as one unique to school districts in Cook County. Senator McMillan noted that there was confusion in a number of districts regarding the inclusion of debt-service levies in computing their total levies and that the problem existed primarily in Cook County school districts which were required by law to file their levies in September. Senator Rhoads noted that suburban Cook County districts filed their levies prior to the issuance of the Attorney General’s opinion stating that debt-service levies were not to be included. (Illinois Senate, 82d General Assembly, June 22, 1982.) Representative Ewing expressed identical reasons for the amendment during the House debates. Illinois House of Representatives, 82d General Assembly, 125th Legislative Day, June 17, 1982, and 126th Legislative Day, June 18,1982.

From the debates, it is reasonable to conclude that the legislature acted to cure the harm which Cook County districts would have incurred by a good-faith misinterpretation of the term aggregate levy. Unlike other areas in the State, these taxing districts did not have the benefit of the Attorney General’s opinion because their levies were due in September. The opinion, which is included in the record on appeal, was not issued until October 15, 1981. We are aware that the Attorney General’s opinion does not have the force and effect of law. (See Rogers Park Post No. 108, American Legion v. Brenza (1956), 8 Ill. 2d 286, 134 N.E.2d 292.) However, it was nonetheless instructive to other districts which had the benefit of the opinion. Thus, we find that there was a rational basis for the legislative classification. As noted in People ex rel. County of Du Page v. Smith (1961), 21 Ill. 2d 572, 173 N.E.2d 485, wherein the court addressed a special legislation issue:

“[T]he legislature is not bound to pass one law meeting every exigency, but may consider degrees of evil, and if a law hits the evil where it is most felt, it is not to be overthrown merely because there are other circumstances to which it might have been applied.” 21 Ill. 2d 572, 579,173 N.E.2d 490.

Second, plaintiffs argue that section 9.1 is violative of equal protection because it deprives Cook County taxpayers of the benefits of the Truth in Taxation Act. The standards employed in determining whether a statute violates equal protection are similar to those used in determining whether the statute violates the special legislation clause. (Fox v. Rosewell (1977), 55 Ill. App. 3d 860, 371 N.E.2d 287.) As noted in Fox, equal protection is not violated even though legislation differentiates between persons so long as the legislation bears a rational relationship to a legitimate legislative purpose. As noted above, the legislature expressed a rational basis for enactment of the amendment in issue. Therefore, we find no violation of the equal protection clause.

Third, plaintiffs contend section 9.1 deprives them of due process. They argue that the legislature could not deprive the public of their right to notice and a hearing once such right was granted.

Here, we can find no violation of plaintiffs’ due process right. We first note that the public has no vested right in the continued existence of a taxing statute. (Schlenz v. Castle (1981), 84 Ill. 2d 196, 417 N.E.2d 1336.) Second, the purpose of section 9.1 is to validate the miscalculated levies of districts which misinterpreted the term aggregate levies. The amendment corrected procedural defects. The legislature has authority to retroactively correct procedural defects in tax levies “ '*** when the defect consists of the failure to observe some requirement of the law without which the legislature might have authorized the levy to be made.’ ” (Schlenz v. Castle (1981), 84 Ill. 2d 196, 209, 417 N.E.2d 1336, 1342, quoting People v. Holstrom (1956), 8 Ill. 2d 401, 404-05, 134 N.E.2d 246, 247.) Plaintiffs do not allege that a hearing was constitutionally required. Thus, the retroactive validation of incorrectly calculated levies and the validation of the levies despite the failure to conduct public hearings does not violate due process.

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

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE WHITE

text:
    COSMOPOLITAN NATIONAL BANK, Trustee, et al., Plaintiffs-Appellants, v. THE VILLAGE OF NILES, Defendant-Appellee.
    First District (3rd Division)
    No. 81—2427
    Opinion filed September 14, 1983.

      Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago (R. Marlin Smith, of counsel), for appellants.
    Sneider and Troy, of Chicago (Richard J. Troy and Randy G. Black, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiffs, Cosmopolitan National Bank as trustee of a trust holding certain real estate that is the subject matter of this suit, Louis Capazolli, Joseph Capazolli, and Aida Guss, the beneficial owners of the trust, and McDonald’s Corporation, lessors of the subject property, appeal from an order of the trial court upholding the decision of defendant, the village of Niles, that denied plaintiffs’ petition for a special use permit.

Plaintiffs seek to develop a McDonald’s restaurant on the property. On December 17, 1979, they filed a petition with the zoning board of appeals and the plan commission of the village of Niles requesting reclassification of the subject property from the R-4 residential district to the B-l business district and the issuance of a special use permit for the proposed McDonald’s restaurant. The zoning board of appeals held public hearings on the petition for rezoning and a special use permit, and on March 24, 1980, recommended that the board of trustees of the village of Niles deny the request for rezoning and a special use permit. On May 13, 1980, the board of trustees concurred in that recommendation and adopted a resolution denying plaintiffs’ petition.

Plaintiffs then brought an action in the circuit court of Cook County seeking review of the village’s decision. At the commencement of trial, the village conceded that the property should be rezoned to the B-l business district. Therefore, the sole issue before the trial court was whether the village had abused its discretion in denying the requested special use permit. After a bench trial on the merits, the trial court entered judgment in favor of the village. Plaintiffs appeal from that order.

McDonald’s Corporation proposes to develop the subject property with a McDonald’s restaurant, with a drive-through window, and five retail stores. The McDonald’s restaurant would have 4,386 square feet and the retail stores would contain 11,400 square feet. One of the stores would have 1,800 square feet of space and the remaining four stores would each have 2,400 square feet of space. There would be 99 parking spaces on the property, 61 for the McDonald’s restaurant and 38 for the retail stores. McDonald’s restaurants receive from the corporation 11 inspections each year by regional personnel, including one full field consultation. A McDonald’s restaurant and its immediate surrounding area is policed for litter and debris every half hour and each morning an employee walks a one-block square area around the restaurant to pick up any letter from the store. The control of exhaust emissions on McDonald’s restaurants is considered the standard for the industry.

The property is located at the northeast corner of Grace and Dempster streets in Niles. It contains 111,015 square feet, measured from street center line to street center line and 84,129 square feet of frontage on Grace. Dempster Street is a four-lane highway and is one of the main east-west streets in Niles.

The property is the last vacant parcel in a commercial area on Dempster Street in Niles between Greenwood Avenue on the west, and Cumberland Avenue on the east. Immediately west of Greenwood, both sides of Dempster are occupied by major shopping centers. The shopping center on the south side of Dempster is in Park Ridge, and contains a Dominick’s Food Store, a Walgreen’s Drugstore and other convenience shopping facilities. On the north side of Dempster is the Dempster Plaza Shopping Center which contains approximately 200,000 square feet of retail stores including a Jewel store, Armanetti’s Liquors, and K-Mart. At the southwest corner of the DempsterGreenwood intersection in Park Ridge, there is a Shell gas station and an Arthur Treacher’s Fish and Chips restaurant. At the southeast corner of the Dempster-Greenwood intersection, there is a Union 76 gas station with a carwash and Spicer’s Restaurant. Next to Spicer’s Restaurant is an office building, and immediately east of that is Jonathan’s Restaurant at the southwest corner of Grace and Dempster. There is a gas station at the northeast corner of the Dempster-Greenwood intersection and a Poppin’ Fresh Pies Restaurant. Next to Pop-pin’ Fresh Pies are businesses known as G & M Party Needs Incorporated and a J. D. Enterprises Landscaping and Construction. Across from the subject property at the northwest corner of the DempsterGrace intersection is the Dempster Plaza State Bank which has eight drive-up windows. Immediately east of the subject property is the First Federal Savings and Loan building which has four drive-up windows. The northern half of the block on which the subject property is located is occupied by multiple-family dwelling units. On the south side of Dempster Street across from the subject property the land is occupied by multiple-family dwellings at a density of 22 dwelling units per acre.

Plaintiffs contend that the finding of the trial court that the board of trustees’ denial of the special use permit was not arbitrary and capricious was not contrary to the manifest weight of the evidence.

In judicial review of a denial of a special use permit, the court is concerned with the constitutionality of the special use denial insofar as it prohibits a particular use as designed. (La Salle National Bank v. County of Lake (1975), 27 Ill. App. 3d 10, 15, 325 N.E.2d 105.) Thus a finding by a court that a special use permit should not have been denied in effect recognizes that the proposed use as designed is compatible with the surrounding area. (La Salle National Bank v. County of Lake (1975), 27 Ill. App. 3d 10, 16.) The burden is on the plaintiff to prove by clear and convincing evidence that the denial of the special use permit was arbitrary, capricious and unreasonable in that it bore no real or substantial relationship to the public health, safety, morals or general welfare. (La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428, 312 N.E.2d 625.) For the reasons stated below, we find that the plaintiffs have sustained their burden of proof and that the denial of the special use permit was arbitrary and unreasonable.

The Niles zoning ordinance sets forth three standards by which application for special use permits are to be measured:

“No special use shall be granted by the Village Board unless the special use:
(a) Is deemed necessary for the public convenience at that location;
(b) Is so designed, located, and proposed to be operated that the public health, safety, and welfare will be protected; and
(c) Will not cause substantial injury to the value of other property in the neighborhood in which it is located.”

In regard to the “public necessity” standard the trial judge found that the proposed McDonald’s restaurant was not necessary for the public convenience since there are four other restaurants located within a two-block area of the site in question. We note, however, that the term “necessary” as used in the zoning ordinances does not mean “absolutely necessary” but has been construed to mean “expedient” or “reasonably convenient” to the public welfare. (Illinois Bell Telephone Co. v. Fox (1949), 402 Ill. 617, 85 N.E.2d 43; Foster & Kleiser, Division of Metromedia, Inc. v. Zoning Board of Appeals (1976), 38 Ill. App. 3d 50, 347 N.E.2d 493; Hope Deliverance Center, Inc. v. Zoning Board of Appeals (1983), 116 Ill. App. 3d 868, 452 N.E.2d 630.) Furthermore, the control or restriction of competition is not a proper or lawful zoning objective. See Lazarus v. Village of Northbrook (1964), 31 Ill. 2d 146, 152, 199 N.E.2d 797; see generally, 1 Rathkopf, The Law of Planning and Zoning 2—16 n.13 (4th ed.).

In applying these principles to the case at bar we hold that the trial court erred in finding that a special use permit was properly denied because of an absence of public necessity. Public necessity is relevant to determining the relative gain or detriment to the public caused by the development. (See La Salle National Bank v. County of Lake (1975), 27 Ill. App. 3d 10, 17, 325 N.E.2d 105.) Here, there exists a clear, commercial pattern along Dempster Street. Thus the proposed site is compatible with its surrounding area and, consequently, is not a detriment to the public. Accordingly, the trial court’s finding on this issue is against the manifest weight of the evidence.

With respect to the protection of the public health, safety, and welfare standard, the trial judge, found that this standard would not be met because of potential traffic problems. Our review of the evidence, however, reveals that the trial judge’s finding was manifestly erroneous. In La Salle National Bank v. City of Park Ridge (1979), 74 Ill. App. 3d 647, 663, 393 N.E.2d 623, a case involving a similar fact situation, this court stated:

“Undoubtedly, the McDonald's restaurant would add considerably to the amount of traffic on or near the subject site, and the trial court so found. The fact remains, however, that any retail business or commercial use of the property would result in an increase of traffic. For this reason, traffic, while an important factor to consider, is not entitled to too much weight in the instant case in evaluating the reasonableness of this zoning restriction.”

The same is true here where under the Niles B-l zoning classification, 75 retail business or commercial uses are permitted as of right on the subject property, including, for example, grocery stores, liquor stores, laundries, post offices and taverns and cocktail lounges. We believe, therefore, that any of the uses now permitted as of right on the subject property under the B-l category, would result in an increase of traffic. Furthermore, the evidence showed that some of the permitted uses would generate more traffic than the proposed use of the subject property and would have the same access problems. Accordingly, a potential traffic problem, under the facts of this case, is not sufficient to justify the denial by the village of the special use permit sought by plaintiffs.

Finally, with respect to the question of whether there would be substantial injury to the value of other property in the neighborhood, differing expert opinions were presented at trial. However, the trial judge found that, based on the evidence he heard, he could not say that the proposed site would cause substantial injury to the property in the neighborhood. After our review of the record, we hold that the evidence supported the trial judge on this issue.

Accordingly, we conclude that plaintiffs have complied with all of the requirements of the ordinance. However, we note that the village of Niles may impose additional reasonable conditions upon the developer in order to insure the public health, safety, morals and general welfare if the factual situation warrants. See La Salle National Bank v. County of Lake (1975), 27 Ill. App. 3d 10, 21, 325 N.E.2d 105.

As we have found that the denial of the special use permit itself is unreasonable, we need not consider plaintiffs’ remaining arguments.

For the aforementioned reasons, the order of the circuit court of Cook County is reversed.

Reversed.

McGILLICUDDY and RIZZI, JJ., concur.


text:
    LEROY NEUBERG et al., Plaintiffs-Appellants, v. MICHAEL REESE HOSPITAL AND MEDICAL CENTER et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 81—3160, 82—66 cons.
    Opinion filed August 29, 1983.
    Rehearing denied October 17, 1983.

      Charles E. Adler, of Law Offices of Joseph I. Adler, of Chicago, for appellants.
    Lord, Bissell & Brook, of Chicago, for appellees Michael Reese Hospital and Medical Center and Michael Reese Research Foundation.
    Wildman, Harrold, Allen & Dixon, of Chicago, for appellee Samuel J. Pearlman.
    Pretzel & Stouffer Chartered, of Chicago, for appellees Executors of the Estate of Philip Rosenblum.
   JUSTICE McGLOON

delivered the opinion of the court:

Tonsil X-ray treatment was administered to plaintiffs’ sons (Leland and Joel Neuberg) in 1947, prior to the discovery that tonsil radiation was linked to thyroid cancer. One son developed thyroid cancer and the other developed a nodule that was thought to be cancerous. The treatment allegedly caused plaintiffs to suffer “great painful mental, psychological and emotional trauma as well as pain and worry over the present and future health of their sons.” These consolidated appeals relate to actions filed by plaintiffs (Leroy and Sari Neuberg) in 1975 for intentional infliction of emotional distress and in 1980 for fraud.

In case No. 81 — 3160, plaintiffs appeal the dismissal of their motion for rehearing whereby plaintiffs sought to vacate the court’s prior order dismissing plaintiffs’ amended section 72 petition.

In case No. 82 — 66, plaintiffs appeal from the trial court’s order of July 1, 1981, dismissing plaintiffs’ action for fraud on res judicata grounds.

We affirm in part, reverse in part and remand.

Michael Reese Hospital and Medical Center (Michael Reese) accepted Leland and Joel Neuberg as patients for treatment of tonsilitis in 1947. At that time, an X-ray treatment involving the application of radiation to the throat and neck areas was extensively used as an alternative to surgery for tonsilitis and lymphadenitis. The Neuberg boys received X-ray treatments to shrink the inflammation of their enlarged tonsils upon the recommendation of Dr. Philip Rosenblum, the boys’ treating physician. Dr. Erich M. Uhlmann was the radiologist in charge of the X-ray treatments the boys received. Both doctors died prior to the filing of plaintiffs’ complaint. Their respective estate representatives were joined and remain defendants-appellees in case No. 82-66.

Although Drs. Arthur Rosenblum and Samuel J. Pearlman never treated the Neuberg children, they are named as party defendants in both actions. Dr. Rosenblum was a member of the Pediatrics Department at Michael Reese and an associate of Dr. Philip Rosenblum. Dr. Pearlman authored medical publications which advocated the use of X-ray treatments and was a member of the ear, nose, and throat department at Michael Reese.

Michael Reese and Michael Reese Research Foundation are also named party defendants in both actions. Allegedly, the hospital and foundation failed to use reasonable diligence in employing the other named defendants, negligently used the X-ray radiation procedure as a treatment, and committed assaults on the Neuberg sons.

Leland Neuberg developed cancer of the thyroid gland in 1962 and had to under a thyroidectomy and radical neck resection. In 1974, Joel Neuberg developed a nodule on his thyroid gland that was suspected of being cancerous.

As scientific evidence linking thyroid cancer to tonsil radiation became available, Michael Reese discontinued or reduced its use of the procedure. The proximate causal connection between radiation and cancer was acknowledged in 1975 when Michael Reese contacted former patients for re-examination.

The procedural history of this litigation is pertinent to the disposition of the issues raised.

I

(No. 81-3160)

On November 12, 1975, plaintiffs filed an action against defendants for intentional infliction of emotional distress. The emotional distress claim was based upon the allegation that plaintiffs suffered great emotional trauma over their sons’ conditions. Plaintiffs’ amended complaint, filed in 1976, included allegations that defendants were guilty of fraudulent concealment. On October 1, 1976, the trial court granted defendants’ motion to dismiss plaintiffs’ amended complaint on the ground that it failed to state a cause of action under Illinois law. Plaintiffs did not attempt to file a second amended complaint, but chose to appeal the dismissal. This court affirmed the trial court’s dismissal of plaintiffs’ complaint on May 22, 1978, holding that even given the most favorable inferences from plaintiffs’ pleadings their complaint failed to state a cause of action of recovery. Neuberg v. Michael Reese Hospital (1978), 60 Ill. App. 3d 679, 377 N.E.2d 215.

Thereafter, plaintiffs did not file a petition for rehearing nor did they move for leave to appeal to the Illinois Supreme Court. Instead, plaintiffs sought leave to file a second amended complaint, which requested the same relief and attempted to allege the same cause of action as was alleged in their previously dismissed complaint on which plaintiffs stood through appeal. Plaintiffs’ motion was denied on July 2, 1979.

On November 7, 1980, plaintiffs filed a section 72 petition in the circuit court requesting that the October 1, 1976, judgment of the circuit court and the May 22, 1978, judgment of this court be set aside. Defendants moved to dismiss the section 72 petition, alleging that (1) the trial court lacked jurisdiction to vacate the appellate court’s decision; (2) the section 72 petition was filed more than two years after the entry of the relevant orders; and (3) the petition did not show due diligence or meritorious grounds for vacating the prior judgments. Defendants also moved for section 41 costs. Ill. Rev. Stat. 1981, ch. 110, par. 41.

After several continuances, plaintiffs were granted leave to file an amended section 72 petition. Defendants moved to dismiss the amended petition.

After a hearing on August 5, 1981, the trial court allowed defendants’ motion and entered a final order dismissing the amended section 72 petition. The order included the express finding that “There is no just reason to delay enforcement or appeal.” On September 2, 1981, plaintiffs filed a motion for rehearing or reconsideration requesting the circuit court to vacate its August 5, 1981, order dismissing plaintiffs’ amended section 72 petition.

Following a hearing on November 25, 1981, the trial court dismissed plaintiffs’ motion for rehearing. On December 21, 1981, plaintiffs filed a notice of appeal from the order of August 5, 1981, dismissing their amended section 72 petition and the order of November 25,1981, dismissing their motion for rehearing.

Plaintiffs first contend that the trial court misconstrued the nature of a section 72 petition. They specifically argue that their notice of appeal was timely filed since the motion for rehearing directed against the judgment denying their amended section 72 petition tolled the running of the 30-day period for filing plaintiffs’ notice of appeal. We agree. See Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 431 N.E.2d 358.

Supreme Court Rule 304(b)(3) (73 Ill. 2d R. 304(b)(3)) provides that “[a] judgment or order granting or denying any of the relief prayed in a petition under section 72 of the Civil Practice Act ***” is final and appealable. Rule 303(a) (73 Ill. 2d R. 303(a)) provides that timely notice of appeal must be filed within 30 days of the date on which the circuit court judgment becomes final.

Defendants argue that by reading these statutory provisions together, it becomes clear that a party has 30 days from the denial of a section 72 petition within which to file a notice of appeal. Furthermore, they contend that the time for appeal is not tolled by the filing of a motion for rehearing. They cite In re Application of County Collector (1981), 95 Ill. App. 3d 1118, 420 N.E.2d 1055, and City Auto Paint & Supply, Inc. v. Brandis (1979), 73 Ill. App. 3d 863, 392 N.E.2d 703, to support their contentions.

However, the Illinois Supreme Court recently rejected this view in Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 431 N.E.2d 358. The defendant in Burnicka filed a section 72 petition seeking to vacate a default judgment entered against them. The petition was granted on October 31, 1979. Plaintiffs did not file a notice of appeal from the granting of defendant’s section 72 petition, but within 30 days, they filed a motion to set aside that judgment. Their motion was denied on January 3, 1980. Within 30 days after the order of January 3, plaintiffs filed a notice of appeal from the judgments of' October 31, 1979 and January 3, 1980. The appellate court dismissed the appeal for want of jurisdiction. 89 Ill. App. 3d 1201, 417 N.E.2d 271.

In reversing the appellate court, the supreme court reiterated that a petition under section 72 is the filing of a new action. (See Reuben H. Donnelley Corp. v. Thomas (1979), 79 Ill. App. 3d 726, 398 N.E.2d 972.) The court concluded that the motion to set aside the judgment is a post-trial motion allowable under Rule 303(a) which sets

the 30-day limit for filing the notice of appeal from the entry of the final judgment” *** or, if a timely post-trial motion directed against the judgment is filed, * * * within 30 days after the entry of the order disposing of the motion.” 73 Ill. 2d R. 303(a).

Applying the above reasoning, the court held:

«*** pjf within 30 days of the grant or denial of a section 72 petition a post-trial motion directed against that judgment is filed, the motion will extend the time for filing a notice of appeal until 30 days after the order disposing of the motion is entered.” Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 531, 431 N.E.2d 358, 361.)

In the instant case, plaintiffs’ post-trial motion was filed within 30 days of the denial of their amended section 72 petition. As in Donnelley, it was the first such motion filed and therefore cannot be characterized as successive or repetitious. (See Burnicka, wherein the court stated that successive post-judgment motions will not be recognized.)

Applying the holding in Burnicka to the instant case, we find that the trial court erred in dismissing plaintiffs’ motion for rehearing on the grounds that it lacked jurisdiction over the matter. The judgment of the circuit court denying plaintiffs’ motion for rehearing for lack of jurisdiction is reversed and the cause is remanded for consideration of the motion.

II

(No. 82-66)

On September 30, 1980, plaintiffs filed a complaint purporting to state a cause of action for fraud against defendants. Defendants moved to dismiss. On July 1, 1981, the trial court entered an order striking plaintiffs’ complaint as to all defendants without leave to amend. It was further ordered that plaintiffs’ action be dismissed entirely on the grounds of res judicata. Plaintiffs filed a petition for rehearing on July 29, 1981. After a hearing, the trial court reaffirmed its previous finding that the action was barred. The order was entered on December 11, 1981, and on December 31, 1981, plaintiffs filed their notice of appeal.

The issue presented by appeal in case No. 82 — 66 is whether the trial court properly dismissed plaintiffs’ complaint on grounds of res judicata. We conclude that it did.

The doctrine of res judicata bars a second adjudication where there is a former adjudication on the merits by a court of competent jurisdiction. (Yaw v. Beeghly (1982), 109 Ill. App. 3d 627, 440 N.E.2d 1066.) In order to invoke the bar of res judicata an identity of parties (or their privies), subject matter, and the cause of action must exist between the two actions. (O’Neill v. DeLaney (1980), 92 Ill. App. 3d 292, 415 N.E.2d 1260.) When properly invoked the judgment in the former suit is conclusive not only as to all questions actually decided, but also as to all questions which could have been litigated in the action. Beeghly; Thornton v. Williams (1980), 89 Ill. App. 3d 544, 412 N.E.2d 157.

The dismissal of plaintiffs’ amended complaint for failure to state a cause of action for intentional infliction of emotional distress was a final judgment upon the merits. (73 Ill. 2d R. 273.) The dismissal order was affirmed by this court. (Neuberg.) The filing of plaintiffs’ section 72 petition does not affect the order or suspend its operation. Ill. Rev. Stat. 1981, ch. 110, par. 72(4).

Plaintiffs further contend that the judgment in the 1975 action is not on the merits because the theory of recovery which they presented (intentional infliction of emotional distress upon nonimpacted third parties) was determined to be unavailable to them. The fact that the theory of recovery in the earlier action was held not to state a cause of action does not afford plaintiffs the right to bring a second action based upon a different theory. Even if different theories of recovery are sought, where the same facts are essential to the maintenance of either proceeding, there is identity between the causes of action and res judicata bars the latter action. (See Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 421 N.E.2d 278, and cases cited therein.) (Pratt v. Baker (1967), 79 Ill. App. 2d 479, 223 N.E.2d 865, cert. denied (1967), 389 U.S. 874, 19 L. Ed. 2d 157, 88 S. Ct. 165.) Having reviewed the pleadings in the two proceedings, we find that there is no material difference between the separate causes of action. The issues raised in both complaints relate to the X-ray treatments received by plaintiffs’ sons and are grounded upon the same duties that defendants allegedly owed to plaintiffs. (Baker.) The evidence relied upon to establish fraud (the publicity and media pronouncements, the articles published in medical journals, and the recall program) is also relied upon to establish intentional infliction of emotional distress. Here, as in Morris all that has been substituted in the second lawsuit is a different theory of recovery.

Plaintiffs’ theory of recovery based upon fraud is no more than a substitution of labels. Moreover, allegations of fraudulent concealment are included in the complaint filed in 1975 as well as the one filed in 1980. To allow plaintiffs to avoid the bar of res judicata under such circumstances would undermine its very purpose.

Finally, plaintiffs contend that the doctrine of res judicata was not properly invoked because the parties to the two actions are different. They argue that their complaint for fraud named the following additional defendants: the estate of Philip Rosenblum, the estate of Erich M. Uhlmann, Lionel Cohen, Martin Coleman and unknown members of the governing board of Michael Reese since 1947.

The estates of Drs. Philip Rosenblum and Erich M. Uhlmann were dismissed from the former action pursuant to a motion to quash prior to the time that plaintiffs’ complaint was dismissed on the merits. Thereafter, plaintiffs made no efforts to bring the estates back into the case before the final order dismissing the amended complaint as to all other defendants was entered. To require the estates to defend a second action would be patently unfair since no person should be unnecessarily harassed with a multiplicity of lawsuits. (Radosta v. Chrysler Corp. (1982), 110 Ill. App. 3d 1066, 443 N.E.2d 670; Bonanno v. LaSalle & Bureau County R.R. Co. (1980), 87 Ill. App. 3d 988, 409 N.E.2d 481.) Moreover, Dr. Philip Rosenblum was an associate in the pediatric practice of Dr. Arthur Rosenblum, a named defendant. Therefore, the estate was in privity with Dr. Arthur M. Rosenblum for the purpose of applying the doctrine of res judicata. {Bonanno.) Accordingly, the judgment dismissing plaintiffs’ first action against Dr. Arthur M. Rosenblum also bars a subsequent action against the estate of Philip Rosenblum.

Likewise, Dr. Uhlmann, Dr. Coleman and Dr. Cohen are alleged to have been agents or employees of Michael Reese. This is also true with respect to the unknown members of Michael Reese’s governing boards since 1947. It is well established that a claim against an employee predicated on the same acts which form the basis of liability of an employer will be barred when a prior judgment bars a subsequent action against the employer. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217; Muscare v. Voltz (1982), 107 Ill. App. 3d 841, 438 N.E.2d 620; Bonanno.) The operative facts which would establish liability on the part of Michael Reese are identical to those which indicate its employees liability. We find that plaintiffs attempt to name additional defendants to avoid the applicability of the doctrine of res judicata is without legal effect.

Finally, we must address the issues raised by defendants in their cross-appeal concerning the trial court’s denial of their motion for costs and attorney fees. At various stages of this litigation, defendants filed motions for costs and attorney fees pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 41).

On June 25, 1981, and June 30, 1981, hearings were held on defendants’ motions. After the hearings, the trial court entered an order dismissing plaintiffs’ 1980 complaint for fraud on the grounds of res judicata. On July 1, 1981, the court also entered an order denying defendants’ section 41 motion for expenses incurred with respect to defending the action for fraud.

Thereafter, plaintiffs filed a petition for rehearing seeking to set aside the court’s order striking their complaint. On September 22, 1981, defendants filed a response to the petition. They also filed a second section 41 motion for costs and attorney fees. Although the court held an extensive hearing on plaintiffs’ petition for rehearing, defendants’ second motion for costs was not considered.

On cross-appeal, defendants contend that the trial court erred in denying their motion for costs on July 1, 1981. They argue that plaintiffs persisted in this litigation in bad faith, without reasonable cause and for the purpose of harassment.

Section 41 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 41) provides in part:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.”

The granting or denial of penalties under section 41 rests within the sound discretion of the trial court and will not be overturned absent a clear showing that the court abused its discretion. Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 417 N.E.2d 1297.

In the instant case, the trial court determined that plaintiffs’ action for fraud was brought without good cause and constituted harassment. However, the court held that plaintiffs’ allegations were not found to be untrue and denied defendants’ motions. We have examined the record and found nothing to indicate that the trial court abused its discretion. We hold that the trial court’s order of July 1, 1981, denying defendants’ motion for expenses was proper.

However, we agree with defendants’ contention that they are entitled to a hearing on their second section 41 motion for costs filed on September 22, 1981, in response to plaintiffs’ petition for rehearing. The fact that no hearing was held thereon is evidenced by the court’s order of December 11,1981, which stated:

“This Court makes no additional finding on the requests of various defendants for costs and attorneys’ fees, this matter having been argued only in defendants’ response to plaintiffs’ Petition for Rehearing and having been denied in the order of June 30,1981.”

In Pole Realty Co. v. Sorrells, the Illinois Supreme Court held that a movant is entitled to a hearing on whether to permit penalties under section 41 prior to the trial court’s denial of its motion. Accordingly, we remand this matter to the trial court for a hearing on defendants’ second section 41 motion.

For the reasons stated, we reverse the circuit court’s judgment denying plaintiffs’ motion for rehearing in case No. 81 — 3160. In case No. 82 — 66: (1) we affirm that part of the court’s judgment dismissing the second action on res judicata grounds; (2) we affirm that part of the court’s judgment denying defendants’ section 41 costs; and (3) we reverse the court’s judgment insofar as it denied defendants’ section 41 costs (filed in response to plaintiffs’ petition for rehearing), without a hearing. The causes are remanded to the circuit court of Cook County for further proceedings consistent with this opinion.

Case No. 81 — 3160, reversed and remanded.

Case No. 82 — 66, affirmed in part, reversed and remanded in part.

BUCKLEY, P.J., and CAMPBELL, J., concur.

       A separate suit on behalf of plaintiffs’ sons was filed in Federal court and is still pending there.