text:
      In re R.K.K., a Minor. — (The People of the State of Illinois, Petitioner-Appellee, v. R.K.K., Respondent-Appellant.)
    Third District
    No. 82—546
    Opinion filed March 4, 1983.

      Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The respondent, R.K.K., a minor, was charged in a delinquency petition in the circuit court of Peoria County with attempted rape, burglary and battery. (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4(a), 11— 1(a), 19 — 1(a), 12 — 3(a)(2), respectively.) During the adjudicatory hearing held on April 15, 1982, 70-year-old Margaret Voelker testified on behalf of the State. She stated that she was sitting on her front porch at about 6 p.m. on March 30, 1982, when she observed the minor riding his bicycle. Shortly after seeing the minor, Voelker said someone grabbed her from behind. As she was spun around by her assailant, Voelker saw that it was the minor holding her. He told her that he wanted to “screw” her and began pushing her into her house. The minor shoved Voelker through the front doorway and up against a table near the door. Voelker said that the minor then pulled out his penis. She began to scream and call for her neighbor. The minor then backed out of the doorway and told Voelker that he would be back that night to “screw” her.

The next witness called by the State was Peoria Police Officer Phillip Korem. He testified that he interviewed an individual named R.K. at about 8:10 p.m. on March 30, 1982, in the Peoria Police Department. Prior to advising the minor of his Miranda rights, Korem asked him his date of birth. From the date given, Korem testified that the minor was 15 years old.

Korem said that he read the minor his Miranda rights, and he agreed to talk to Korem. At first, the minor denied any knowledge of the incident involving Voelker. However, he subsequently admitted to Korem that he had grabbed Voelker and asked her if she would “screw” him. The minor did state that he pulled his penis out of his pants.

After the State rested, the minor moved for a directed finding of not guilty on all charges based on several grounds. First, the minor argued that although the State had proved that the alleged offenses had occurred in Peoria, Peoria County, it had failed to establish that the crimes occurred in Illinois. Second, Officer Korem did not identify the person he interviewed to be R.K.K. Third, with respect to the attempted rape charge, the minor claimed that the State’s evidence was insufficient to prove that R.K.K. was of the age of 14 years and upwards, an essential element of the offense. Relying upon People v. Dalton (1981), 93 Ill. App. 3d 264, 417 N.E.2d 197, rev’d (1982), 91 Ill. 2d 22, 434 N.E.2d 1127, the minor argued that his age had been obtained prior to the time he was advised of his Miranda rights, and therefore, was tainted evidence. He also claimed that proof of his age could not be established solely by his extrajudicial admission, but that further corroboration, which was lacking, was needed.

After hearing the arguments of counsel, the trial court commented upon Dalton in relation to the case before it. The court noted .that the out-of-court statement made by the minor concerning his age was not corroborated by any other evidence. It pointed out that under Dalton the court could not rely on the minor’s appearance to corroborate his age because whether the minor was 15 years old or 14 years old was too close to distinguish a difference by his appearance. Also, the court found that since age was an element of the offense of attempted rape, it must be obtained subsequent to Miranda rights. The minor’s motion for a directed finding of not guilty was granted.

On April 29, 1982, a hearing was held on the State’s motion to vacate the order of April 15, 1982, and re-open the case to conduct a proper suppression hearing. The State argued in its motion that the minor’s motion for a directed finding at the hearing was, in practical and legal effect, an oral motion to suppress. Since the minor had adequate time to file a timely written motion to suppress prior to the hearing, he waived objection to admission of the evidence. The motion also stated that People v. Dalton (1981), 93 Ill. App. 3d 264, 417 N.E.2d 197, had been overruled by the Illinois Supreme Court on April 16, 1982, and was no longer controlling. People v. Dalton (1982), 91 Ill. 2d 22, 434 N.E.2d 1127.

The trial court discussed the situation it was presented with and noted that there were three issues involved: the evidence of age acquired prior to Miranda warnings; the lack of corroboration of the age of the minor; and, the failure to establish jurisdiction in the State of Illinois. The. court stated that even if the minor’s motion for a directed finding was viewed as a motion to suppress on the pre-Miranda age evidence, the other two issues remained. It said that a motion to suppress would not address the corroboration or jurisdiction issue. The trial court refused to take judicial notice that Peoria County was in the State of Illinois.

The court then concluded that People v. Dalton (1982), 91 Ill. 2d 22, 434 N.E.2d 1127, no longer required Miranda warnings prior to obtaining the age of the minor. It found that Dalton changed the law on the corroboration issue as well. Having found the law changed within 30 days of its order of a directed finding for the minor, the trial court claimed to have jurisdiction to reconsider its ruling. It vacated its order of dismissal and re-opened the case to allow the State to put in evidence of jurisdiction.

A hearing was held on May 6, 1982, in which the State presented the testimony of Margaret Voelker to establish that the alleged offenses occurred in Illinois. The minor did not present any evidence. The trial court found the minor guilty of all charges. He was subsequently sentenced to probation for a period of two years.

On appeal the minor raises one issue. He claims that he was placed in double jeopardy when the trial court vacated its directed finding of not guilty and re-opened the case.

The State argues that the substantive, legal effect of the order was a suppression of evidence. The order was not a judgment of acquittal, but an order of suppression and so the minor was not placed in double jeopardy. By allowing what was in effect a motion to suppress, the trial court denied the State its right to appeal an order of suppression. Had the State appealed, it would have prevailed since the basis of the court’s ruling, People v. Dalton (1981), 93 Ill. App. 3d 264, 417 N.E.2d 197, was overturned in People v. Dalton (1982), 91 Ill. 2d 22, 434 N.E.2d 1127.

As to the problem of jurisdiction, the State argues that it was not necessary to re-open the case to establish jurisdiction. The trial court erred in failing to take judicial notice that Peoria County was in the State of Illinois.

The trial court granted the minor’s motion for a directed finding of not guilty and an order to that effect was entered on April 15, 1982. On appeal the State argues that this order was legally an order of suppression. Its argument fails, however, for three reasons.

First, the order was entered on the grounds that the State had failed to prove all the elements of the offense of attempted rape. This finding was based not only on the exclusion of the evidence of the minor’s age because of a Miranda violation but also because the State had failed to present any corroborative evidence of age. The lack of corroboration was a separate and distinct reason for granting the minor’s motion which would not have been cured by a suppression hearing.

At the time the court entered its order, corroboration was necessary under the law at that time. (People v. Dalton (1981), 93 Ill. App. 3d 264, 417 N.E.2d 197, rev’d (1982), 91 Ill. 2d 22, 434 N.E.2d 1127.) Although a supreme court decision the following day changed the law (People v. Dalton (1982), 91 Ill. 2d 22, 434 N.E.2d 1127), the trial court could no longer vacate its order of acquittal. The fact that the State moved within 30 days of the order to vacate it has no effect. The minor’s motion for a directed finding is decisive, and the court’s attempt to vacate the order is a nullity. People v. Hutchinson (1975), 26 Ill. App. 3d 368, 325 N.E.2d 115.

The case at bar is similar to In re L.R. (1982), 106 Ill. App. 3d 244, 435 N.E.2d 908, and People v. Hutchinson (1975), 26 Ill. App. 3d 368, 325 N.E.2d 115. In those cases a directed verdict was entered based on the trial court’s incorrect understanding of the law. The attempt to correct the mistake of law by vacating its order or rescission was rejected in both instances on appeal. The directed verdicts were final judgments.

The legal effect of a directed verdict bars, under the principles of double jeopardy, the vacation or reversal of the verdict. (In re L.R. (1982), 106 Ill. App. 3d 244, 435 N.E.2d 908.) The same principle applies to a directed finding of not guilty. The minor in the instant case was acquitted under an interpretation of law which was correct at that time. Although that interpretation proved erroneous at a later time, the minor should not be held accountable for the change.

Second, the State’s argument characterizing the order of not guilty as a suppression order does not cure the error below. At the time the trial court entered its finding, the State made no attempt to move for an interlocutory appeal. While part of the court’s finding of not guilty had the effect of suppressing evidence, the court’s failure to exercise its duty to terminate the hearing at that time was not error because the State waived its right to an interlocutory appeal. (People v. Young (1978), 60 Ill. App. 3d 49, 376 N.E.2d 712.) The State did not raise its suppression order argument until after the order of not guilty was entered. Indeed, it did not bring the issue to the court’s attention until after the supreme court decision in People v. Dalton (1982), 91 Ill. 2d 22, 434 N.E.2d 1127, when it was too late.

Finally, the order of acquittal was based on the fact that the State had failed to prove the offenses occurred in Illinois. The court refused to take judicial notice that Peoria County was in Illinois. Whether this decision was erroneous does not effect the order, since the directed finding was decisive. (People v. Hutchinson (1975), 26 Ill. App. 3d 368, 325 N.E.2d 115.) A hearing on the suppression issue would not have cured the jurisdictional problem.

The order of acquittal was final, and the trial court could no longer vacate its order because of a subsequent change in the law. We reject the State’s argument that double jeopardy does not bar retrial. The minor was acquitted, and the effect of the order vacating the directed finding and re-opening the case was tantamount to retrial in this case.

Therefore, the judgment of the circuit court of Peoria County is reversed.

Reversed.

BARRY and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    CLIFFORD G. LEE, JR., Plaintiff-Appellee, v. THE HEIGHTS BANK, Defendant-Appellant.
    Third District
    No. 82—82
    Opinion filed February 9, 1983.
    Rehearing denied March 21,1983.

      Dean B. Rhoads, of Sutkowski & Washkuhn Associates, of Peoria, for appellant.
    Mark D. Hockman, of Leiter, Leiter & Sahn, of Peoria, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This action was brought by Clifford G. Lee, Jr., to recover compensatory and punitive damages occasioned by the alleged fraud of the Heights Bank inducing Lee to cosign a promissory note. The Heights Bank counterclaimed for $1,000 plus interest on another note from Lee to the Heights Bank to fulfill his obligation under the first note. The jury returned a verdict for Lee for $25,000 in compensatory damages and $50,000 in punitive damages. Subsequently, the trial court ordered a remittitur and entered judgment for Lee in the amount of $10,993.62 as compensatory damages and $22,000 as punitive damages. The Heights Bank appeals and presents the following issues for review: (1) whether the plaintiff settled or waived his fraud claim against the defendant as a matter of law; (2) whether the closing argument by plaintiff’s counsel was improper and prejudicial; (3) whether the court abused its discretion in permitting the jury to return an award of punitive damages against the defendant. The plaintiff’s brief raises the issue of whether the court abused its discretion in ordering a remittitur.

On April 29, 1974, Lee’s then brother-in-law, Gregory Gordon, as officer and agent of Potpourri Publications, Inc., signed a $7,000 single payment time promissory note, No. 281. The note’s due date was June 29, 1974, and was in favor of the Heights Bank (hereinafter Bank). On the same day, Gregory Gordon executed a security agreement for one $10,000 Pacific Telephone and Telegraph Company bond as security for the note, No. 281.

Potpourri Publications, Inc., had a checking account with the Bank. On June 24, 1974, this account had a negative balance of $6,831.44. However, on June 25, 1974, $9,215.44 was deposited into the Potpourri account. The source of the deposit was a check from Hornblower and Weeks which represented the proceeds of the sale of the $10,000 Pacific Telephone and Telegraph bond used to secure note No. 281. Note No. 281, however, went into default four days later on June 29, 1974. It remained in default until September 3, 1974, when Gregory Gordon executed a renewal note (No. 399). This renewal note was cosigned by Lee. It was payable to the Bank in the amount of $6,806.30 and was signed at the Bank’s premises. Lee testified that at the time this renewal note was signed, he was assured by Mr. Schafer, the Bank’s chief operating officer and executive vice-president, that the note had as collateral a $10,000 Pacific Telephone and Telegraph bond. Lee further testified that the note at the time of signing, on its face, contained language concerning the collateral.

Several weeks before note No. 399 was signed, Lee contacted Schafer about receiving an $8,000 unsecured loan from the Bank. Lee, a real estate broker, sought the loan to finance his purchase of an apartment building. Lee had previously dealt with Schafer in obtaining unsecured loans from the First National Bank of Peoria when Schafer was associated with that institution. Schafer suggested that Lee contact him at a later date, when Schafer was less busy. Schafer, however, indicated to Lee that he didn’t see any problem with the unsecured loan, but at the same time made no promises. Thereafter, Lee tried unsuccessfully to contact Schafer several times. Finally, on September 3, 1974, Schafer called Lee, apologizing for not contacting him sooner. Schafer told Lee he needed a favor from him and requested that Lee come to the Bank at 2 p.m. Lee agreed.

Lee then met Schafer and Gregory Gordon who was present in Schafer’s office when Lee arrived at 2 p.m. Schafer explained that the Bank examiners were present in the Bank and a problem had developed with Gregory Gordon and Potpourri Publications. Schafer needed Lee’s help. When Schafer first explained to Lee that the requested favor was Lee’s cosigning, as an accommodation party, a note with Gregory Gordon, Lee refused. Schafer then told Lee the note was fully secured by a $10,000 Pacific Telephone and Telegraph Company bond. When Lee inquired why Schafer needed Lee’s signature on a fully secured note, Schafer told him it would help Schafer out with the Bank examiners. When Lee asked Schafer how Schafer knew the note was secured, Schafer showed Lee a copy of the April 29, 1974, security agreement. Reiterating that the note was fully secured, and was without a risk to Lee, Schafer also stated, “you’ve made a loan request and I am going to help you out, too.” After some minutes of deliberation, Lee agreed to cosign the note. According to Lee’s testimony, Schafer then produced a blank note which Lee refused to sign. Thereafter, Schafer produced another note, No. 399, for Lee’s signature; this note expressly provided, “This Note is secured by Security Agreement dated April 29, 1974.” Lee cosigned this note and returned the note to Schafer.

After Lee cosigned the note, Lee reiterated his request for an $8,000 unsecured loan; Schafer replied he was too busy then, September 3, 1974, to discuss it, and invited Lee to call him the following week.

On September 11, 1974, Lee called and arranged an appointment with Schafer to discuss his $8,000 loan request. At their meeting that afternoon, Schafer informed Lee that the Bank’s loan committee was insisting on $8,000 in security for the loan. Although objecting to “being loaned his own money,” Lee acquiesced, went to his Jefferson Bank safety deposit box, obtained $8,000 worth of Commercial National and Jefferson Bank certificates of deposit, and offered to post these as security for the loan. Schafer refused, saying the Bank would only accept its own certificates of deposit as collateral for the loan. Since Lee had long awaited the $8,000 loan from the Bank and was running short on time to consummate his real estate purchase, he proceeded with the loan on the Bank’s terms. He cashed in his certificates of deposit from Commercial National and Jefferson Bank and established two $4,000 certificates of deposit at the Heights Bank.

About three months later, in December 1974 or January 1975, Lee was contacted by Schafer and told that the note that he cosigned with Gregory Gordon was in default. Lee was told to pay the amount due on the note. When Lee advised Schafer that the Bank should and could with Lee’s permission sell the collateral, Schafer replied, “There is no collateral *** you’re going to have to pay this note.” Lee replied, “There is something wrong here; I’m not going to pay that note because it was purported to me that there was collateral.” Lee then hung up the telephone.

Sometime in March 1975, Lee and Gregory Gordon signed and delivered to the Bank a “Notice of Dishonor” disclaiming all responsibility for payment on the note and reserving all rights and defenses.

By 1976, Schafer was no longer employed by the Bank and Kenneth Dickey was the Bank’s vice-president and chief operating officer. Lee contacted Dickey by phone in early 1976. Dickey told Lee that he had to pay note No. 399 as it was in default. The two men met personally in April 1976. Lee told Dickey that he could not understand how he could owe on a note when there was collateral. Dickey informed him that “There is no collateral on the note. The collateral has been sold.” Dickey again urged that the note had to be paid by Lee as the Bank could not collect from Gregory Gordon. Dickey reminded Lee about his certificates of deposit with the Bank and that the Bank could use them to pay the debt owed on the overdue note, No. 399. The process would be easy for the Bank but would ruin Lee’s excellent credit rating. Dickey suggested that the two of them meet with James Kellstedt, who was represented to be the attorney for the Bank.

Later in the spring of 1976, Lee met with Dickey and attorney James Kellstedt. At this meeting, Lee was again informed that, since the Bank could not collect from Gregory Gordon, the Bank was looking to Lee for payment.

Dickey and Kellstedt explained that, unless Lee agreed to pay the note, the Bank would sue him or apply his certificates of deposit toward payment on the overdue note. When Lee repeatedly insisted that the overdue note was secured, he was told there was no collateral that it had been sold. When Lee queried how the Bank could sell the collateral without applying the proceeds toward the note, Dickey and Kellstedt advised Lee to forget about the collateral and unless Lee paid the note, the Bank would take Lee’s certificates of deposit or sue him. Lee “felt intimidated at this point” and asked what could be worked out. The parties discussed the matter and agreed that-Lee could pay off the overdue note by giving the Bank approximately $2,000 in cash, a time note and an installment note.

On June 21, 1976, Lee met with the Bank’s president. Lee paid the Bank $2,000 in cash and signed two renewal notes each in the sum of $3,000. The Bank’s president suggested to Lee that since Lee had paid the note, the Bank would assign the note to Lee and he could attempt collection from Gordon. Accordingly, he signed the note No. 399 and transferred it to Lee. It was at this moment, Lee testified, that he first became aware that the reference to the collateral had been “X-ed” out. Lee brought this to the attention of the Bank president, who informed him the matter was closed.

Expert document examiners testified that the reference to collateral on the note was “X-ed” out by a typewriter different from that used in preparation of the remainder of the document, and after the remainder of the document, including the reference to collateral, was prepared.

After the June 21, 1976, transaction, Lee filed suit against Gregory Gordon on the original note and pursued that action for approximately one year before his complaint was dismissed for want of prosecution. Additionally, after the June 21, 1976, transaction, Lee paid the installment renewal note of $3,000 in full and paid all but $1,000 of the $3,000 lump sum promissory note. The payments on those notes by Lee were over a period of approximately two years from June 1976. In all Lee testified that he paid the Bank $10,993.62. Lee further stated that the difficulties resulting from the September 3, 1976, cosigning transaction severely strained his relationship with his then brother-in-law, Gregory Gordon, and more importantly, his marriage, which ended in divorce.

We believe the evidence shows that the Bank through its officer Schafer induced Lee to sign the original note through a representation that the note was secured when in fact it was not. Schafer knew or should have known that the $10,000 Pacific Telephone and Telegraph bond used to secure the note (No. 281) was sold well before he induced Lee to cosign the renewal note (No. 399) on September 3, 1974. Thus, we believe Lee proved by clear and convincing evidence that he was fraudulently induced to cosign the note No. 399. The Bank, however, asserts by way of affirmative defense that Lee waived or settled his claim of fraud by paying the note with cash and issuing two renewal notes.

The Bank argues that under the circumstances of this case, there are two points in time when Lee could have waived his fraud claim. The first was on June 21, 1976, when Lee signed the notes in renewal of his original note (No. 399) and made a cash payment on that obligation. The Bank contends that Lee was fully aware that he had been fraudulently induced to sign No. 399 and that by renewing that obligation he either waived or settled his fraud claim against the Bank. Alternatively, the Bank argues that even if Lee had no knowledge of the fraud prior to or at the time he signed the renewal notes, he acquired such knowledge shortly thereafter whereupon he continued to pay the- notes and opted to sue his co-maker. Only after this first suit was dismissed for want of prosecution did Lee decide to sue the Bank. According to the Bank, this delay resulted in a waiver of Lee’s fraud claim. We will first consider whether Lee waived or settled his claim when he signed the renewal notes on June 21,1976.

A prerequisite to any finding of settlement or waiver during this transaction is that Lee, prior to or at the time he signed the renewal notes, was aware that he had been fraudulently induced to sign note No. 399. This requirement raises a question of fact for the jury to decide. We believe that the evidence in this case permitted the jury to find that Lee had no such knowledge.

The Bank relies heavily on a March 12, 1976, letter sent by its then executive vice-president to Gregory Gordon’s attorney. Gordon was the co-maker of note No. 399. According to the Bank, this letter allegedly informed Lee that the security for note No. 399..had been sold prior to the time he signed it. We do not believe that this letter conclusively proves that Lee was so informed. The letter was sent to Gordon’s attorney, not Lee. And even if Lee was aware of its contents, the letter is by no means a clear disclosure that the security for note No. 399 had been sold before Lee signed it. What is apparent from the letter is that some unidentified bonds had been sold. There is nothing which links that sale to the bond which the Bank represented as security for note No. 399.

The remaining evidence of Lee’s state of mind prior to his signing the renewal notes is also capable of differing interpretations. Without engaging in a detailed analysis of this evidence, it reveals simply that Lee was aware that something had gone wrong with the collateral and that he was confused as to why he was being held liable on note No. 399. The evidence does not conclusively prove that Lee was aware that the collateral had been sold prior to the time he signed note No. 399. Therefore, we believe that the evidence was sufficient to permit the jury to find that there was no settlement or waiver and that such a conclusion is not manifestly erroneous.

Next, we will determine the legal consequences of Lee’s actions after he admittedly learned of the fraud shortly after the June 21, 1976, transaction.

On June 30, 1976, Lee filed suit against Gordon on note No. 399. Lee received a default judgment which was later reopened by Gordon and then dismissed for want of prosecution on September 31, 1977.

. From June 1976 until the time Lee filed suit against the Bank on April 4, 1978, he continued to make payments on the renewal notes. Despite the fact that Lee filed his action against the Bank within the five-year limitations period (Ill. Rev. Stat. 1977, ch. 83, par. 16), the Bank charges that there was unreasonable delay in bringing the suit and that by his actions Lee waived his fraud claim. We do not agree.

There is very little case law in Illinois covering waiver as applied to actions at law seeking damages for fraud. And the few cases that do touch on the subject either make an incomplete statement of the law of waiver, or confuse waiver with the equitable rule requiring prompt disaffirmance of a contract before it can be rescinded.

The Bank relies heavily upon Kaiser v. Olson (1981), 105 Ill. App. 3d 1008. This case is correct to the extent that it analyzes the law of waiver with respect to legal actions. But that analysis is deficient in one crucial respect. In Kaiser, the court held that a person defrauded in a transaction may, by conduct inconsistent with an intention to sue for damages, waive the right to sue for damages. Such waiver requires that the injured party be aware of the fraud and possess full knowledge of all of its material aspects. In arriving at this definition, the court cites 37 Am. Jur. 2d Fraud and Deceit sec. 386 (1968). However, the court did not fully quote from that source. An additional and essential element is that the injured party intend to affirm the contract and intend to abandon his right to recover damages for the loss resulting from the fraud. The added element of intent places a heavier burden upon the party asserting waiver. The mere passage of time or delay in bringing suit, without more, does not result in waiver. Without proof of intent, a party who relies on the statute of limitations and files his action within that time could unwittingly relinquish his right to sue through no fault of his own. Before we will permit such a result, the party who raises the defense of waiver must prove that the plaintiff intended to give up his right to sue.

Another case relied upon by the Bank is Eisenberg v. Goldstein (1963), 29 Ill. 2d 617. There, the supreme court held that a person who has been misled by fraud or misrepresentation is required, as soon as he learns the truth, to disaffirm the transaction with all reasonable diligence so as to afford both parties an opportunity to be restored to their original positions. In Eisenberg, the court held that due to their unreasonable delay, the plaintiffs were not permitted to rescind a deed which they were induced to sign by defendant’s alleged misrepresentations. The ground for dismissal in the lower court was lack of equity. The instant case is an action at law, and Eisenberg has nothing to do with waiver as applied to legal actions. Furthermore, the court in Eisenberg stated that there was in fact no fraud practiced upon the plaintiffs of which they could complain because their reliance upon defendant’s representations was unreasonable. Such is not the case here. In the present case, the record contains evidence of actionable fraud. For these reasons we find that Eisenberg is inapposite to actions at law for damages. Therefore we will proceed to consider whether the evidence was sufficient to demonstrate that Lee, by his actions subsequent to June 21, 1976, intended to abandon his right to sue.

The question of intent is one of fact for the jury to decide. After reviewing the chain of events leading up to the commencement of this suit, we cannot say that the jury’s verdict is contrary to the manifest weight of the evidence. Less than two years had passed between the time Lee learned of the fraud and the time he commenced the present action. First, in June of 1976, he sued the co-maker, a readily available party. That suit was based on the original promissory note which had been assigned to Lee by the Bank. When this action was dismissed for want of prosecution, Lee then decided to sue the Bank based on fraud. Only seven months had passed between the termination of the prior action and the commencement of the present suit. From this conduct, we are convinced that Lee was persistently seeking relief through the various means open to him and by no stretch of the imagination did he intend to relinquish his right to sue. The simple fact that he chose one alternate form of relief before suing the Bank does not demonstrate an intent to waive his right to sue.

We also note that Lee’s delay in suing the Bank was not for the purpose of reaping a benefit from himself and causing detriment to the Bank. Had he done so, this would be indicative of an intent to abandon his right to sue and instead take whatever benefit there might be from continued performance. By making payments on the notes and trying to sue the co-maker, the only arguable benefit to Lee was to avoid the very real threat of being sued by the Bank and having his credit rating destroyed. In addition, we see no resulting detriment to the Bank. They continued to receive regular payments on the notes as a result of fraudulently inducing Lee to cosign note No. 399. In this respect, the Bank received a benefit at Lee’s expense.

Before leaving the issue of waiver, we note that the Bank’s argument that Lee is guilty of an unreasonable delay in filing his action can also be construed as a laches defense. But laches is not simply a matter of time; rather, it is a principle of “inequity founded upon some change in the condition or relation of the *** parties.” (Holland, v. Richards (1955), 4 Ill. 2d 570, 578.) It must appear that a plaintiff’s unreasonable delay in asserting his rights has prejudiced and misled the defendant. If the defendant is not injured by the delay, then the plaintiff is not guilty of laches. (Biggs v. Health & Hospitals Governing Com. (1977), 55 Ill. App. 3d 501, 507.) In this case, Lee is the only injured party and, as previously mentioned, the Bank was not prejudiced by Lee’s actions.

The next issue is whether the Bank is entitled to a new trial due to a number of allegedly improper statements made by Lee’s attorney during closing argument. The trial court correctly sustained the Bank’s objections to most of the comments which it deemed improper. However, the court did not sustain objections to two other comments which the Bank argues were improper.

According to the Bank, plaintiff’s counsel insinuated that the Bank’s defense of the action was itself fraudulent. But when defense counsel objected, he admitted that his impression may have been mistaken. Also, in answer to this objection, the court explicitly found that there was no such insinuation and overruled the objection. Based on this record, we find no error.

The Bank also argues that plaintiff’s counsel misstated the law and facts with regard to the issue of settlement. Although plaintiff’s counsel may have misquoted a portion of a witness’ testimony we find no misstatement of the law. Furthermore, we find that any error in closing argument was harmless.

The jury’s verdict, at least insofar as liability was concerned, was not influenced by any of the alleged errors. The evidence clearly established that the Bank induced Lee to sign note No. 399 by assuring him that the note was secured when in fact the security had been sold prior to the time Lee signed. On appeal, the Bank does not dispute the sufficiency of this evidence but instead relies on the defense of waiver. As previously discussed, there was ample evidence from which the jury could conclude that there was no waiver.

Even if counsel’s remarks may have influenced the initial award of $25,000 in compensatory damages and $50,000 in punitive damages, any alleged prejudice was cured when the trial court ordered a remittitur which reduced the damage awards to $10,993.62 and $22,000 respectively.

Next, the Bank raises a number of objections concerning jury instructions. First, the Bank contends that the trial court erred in giving an instruction permitting the jury to return an award of punitive damages. We find that punitive damages were proper in this case.

The Bank argues that the justifications for imposition of punitive damages are sharply diminished where, as in the present case, liability is vicariously imposed. In those cases punitive damages can be awarded vicariously against a master only under certain circumstances, one of which is if the agent who engaged in the wrongful conduct was employed in a managerial capacity and was acting within the scope of his employment. (Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31.) According to the Bank, Lee failed to present any evidence that the Bank’s former employee, Mr. Schafer, was acting within the scope of his employment when he fraudulently induced Lee to sign note No. 399. We disagree. The record clearly shows that Mr. Schafer, the Bank’s vice-president and chief operating officer, told Lee that note No. 399 was secured by a bond which had in fact been sold. Also, there was evidence that making representations concerning loans and collateral was within the scope of Mr. Schafer’s employment. Therefore, punitive damages were properly allowed.

The Bank’s final argument is that the court erred when it refused to instruct the jury that alteration of a promissory note is, of itself, not fraudulent. According to the Bank, the refusal to give such an instruction may have led the jury to return a guilty verdict solely based on the evidentiary fact that note No. 399 had been altered so as to delete the reference to collateral. We find no error.

The alteration of note No. 399 was simply a fact in evidence and the court was not required to give an instruction on every fact in evidence. In addition, we find that the jury was properly instructed as to the elements of fraud and any additional comment on what did not constitute fraud was unnecessary.

The final issue is whether the court abused its discretion when it ordered a remittitur which reduced the award of compensatory damages from $25,000 to $10,993.62. This order was entirely proper in light of evidence that Lee’s out-of-pocket loss was only $10,993.62, the amount he paid on the notes. General damages in excess of that amount were not supported by the evidence and were based on speculation and conjecture.

The court also ordered that the award of punitive damages be reduced from $50,000 to $22,000. Although we agree that punitive damages were appropriate in this case, due to the vicarious nature of the Bank’s liability we find that the court did not abuse its discretion in ordering a remittitur of punitive damages. The reduction in punitive damages was proportionate to the reduction in compensatory damages. (Both awards were reduced by 44%.) Had the award of punitive damages been allowed to stand, the amount would have been almost five times greater than the compensatory damages. A remittitur of punitive damages served to reduce this disparity and was a reasonable exercise of the court’s discretion.

Affirmed.

STOUDER and SCOTT, JJ., concur.


author: JUSTICE HEIPLE PRESIDING JUSTICE BARRY,

text:
    RIVERSIDE MEDICAL CENTER et al., Defendants-Appellants, v. EARNEST HOLMAN et al., Plaintiffs-Appellees.
    Third District
    No. 82—476
    Opinion filed February 23, 1983.
    BARRY, P.J., specially concurring.
    Robert J. Baron, of Thomas, Wallace, Feehan, Baron, Kaplan & Bradley, Ltd., of Joliet, for appellants Riverside Medical Center and Richard Cook.
    Richard E. Quinn, of McConnell, Kennedy, Quinn & Johnston, of Peoria (Karen J. Steele, of counsel), for appellant Milton Smit.
    David R. Sinn and Mark D. Stuaan, both of Heyl, Royster, Voelker & Allen, of Peoria (Lyle W. Allen, of counsel), for other appellants.
    Gary L. Clark, of Allen, Clark & Cullinan, of Peoria, and Burton I. Weinstein & Associates, Ltd., of Chicago, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is an interlocutory appeal certified by the trial judge pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308). Venue is the sole issue.

On December 2, 1981, the plaintiffs, Earnest and Gail Holman, filed an action in Peoria County for medical malpractice. One of the corporate defendants, Kankakee Anesthesiologists, Ltd. (hereinafter KAL), was an Illinois professional corporation with its place of business in Kankakee and its registered office in Peoria. The registered office was the only factor linking the case to Peoria County. The defendants moved to transfer venue from Peoria County to Kankakee County based upon their assertion that none of the defendants were residents of Peoria County for venue purposes under a combined reading of the Business Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 157.1 et seq. (hereinafter BCA)) and the Professional Service Corporation Act (111. Rev. Stat. 1981, ch. 32, par. 415 — 1 et seq. (hereinafter PSCA)). Alternatively, defendants moved to transfer venue from Peoria to Kankakee County on the common law doctrine of forum non conveniens. Defendants’ motions to transfer venue were denied by the trial court.

An interlocutory appeal was then taken wherein the following question of law was certified:

“The question to be appealed is whether the fact that the registered agent of a professional corporation resides in a county other than that in which the principal place of business of the corporation is located is sufficient to allow venue to be fixed in the county where the registered agent resides and conducts his business.”

We deem the question certified to be broad enough to cover the question of venue upon consideration of both the statutory venue provisions and the common law doctrine of forum non conveniens.

Section 5 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 5) provides that for venue purposes, a private corporation is a resident of any county in which it has its registered office or other office or is doing business. According to the articles of incorporation of KAL, its initial registered office is in Peoria and it does business in Kankakee. The defendants argued, however, that under the special circumstances of this case, the registered office of KAL in Peoria could not be used to establish venue in Peoria. The trial court disagreed with KAL and denied their motion to transfer venue to Kankakee County.

In order to fully comprehend defendants’ argument, it is first necessary to review the relevant statutes. Section 11 of the BCA requires that every corporation continuously maintain in this State a registered office which may be, but need not be the same as its place of business. (Ill. Rev. Stat. 1981, ch. 32, par. 157.11.) To satisfy this requirement, KAL maintained a registered office in Peoria. However, Section 12 of a different act, the PSCA, forbids a professional service corporation from opening or maintaining an establishment for the purposes for which a corporation may be maintained under the PSCA without a certificate of registration. (Ill. Rev. Stat. 1981, ch. 32, par. 415 — 12.) Section 4 of the PSCA further provides that in the event of any inconsistency or conflict between the PSCA and the BCA or other statute, the PSCA shall take precedence. Ill. Rev. Stat. 1981, ch. 32, par. 415 — 4.

The essence of the defendants’ argument is that since KAL is a professional service corporation, it can have no registered office under the BCA without first complying with the registration requirements of the PSCA. Since the PSCA takes precedence over the BCA in the event of a conflict, and since KAL’s registered office in Peoria does not comply with the PSCA, defendants argue that the Peoria office may not be considered a registered office for purposes of venue. The efficacy of this argument depends upon whether there is indeed a conflict or inconsistency between the relevant provisions of the PSCA and the BCA. We do not find any such inconsistency.

Our conclusion is premised upon the fact that section 11 of the BCA and section 12 of the PSCA do not regulate the same matters. The only offices which need to comply with section 12 are those maintained, for the purpose of providing professional services. The first sentence of section 12 says as much. No one can seriously contend that KAL’s registered office in Peoria is maintained for any of the purposes for which KAL is organized under the PSCA. Therefore, the Peoria registered office need not comply with the provisions of the PSCA and may exist separately under section 11 of the BCA.

The defendants alternatively argue that even though Peoria County may be a permissible venue under the statute, venue should nonetheless be transferred under the common law doctrine of forum non conveniens. This doctrine is a part of the common law of Illinois provided it has not been regulated by statute or rule of court. The plaintiff argues that the Illinois legislature has enacted a comprehensive statutory framework dealing with the issue of venue and transfer of venue, thereby preempting that area of the common law dealing with venue. We disagree.

The Civil Practice Act provides for transfer of venue only when an action is filed in the wrong venue. (Ill. Rev. Stat. 1981, ch. 110, par. 7.) However, the Act provides no remedy where venue is prima facie correct, but needlessly oppressive to the defendant. This is precisely the type of situation in which forum non conveniens relief would be most appropriate. The doctrine acts as an independent judicial check on the abuses that may result from a technically correct application of general venue statutes. The fact that the legislature has remained silent on this problem does not indicate to us an intent to repudiate the doctrine. Instead, we believe that the lack of a statutory solution to the problem justifies the existence of a common-law solution such as forum non conveniens. Notwithstanding the fact that there are no statutory restrictions on the doctrine, the plaintiff argues that Illinois courts have so regulated the doctrine as to make it inapplicable to the instant case. After reviewing the decisions on this subject, we agree.

Common law England first recognized the doctrine of forum non conveniens as a means of reconciling two competing policies in the law. One policy was to provide a plaintiff with a choice of forums to insure that he would have some place to pursue his remedy. The other policy was to prevent a plaintiff from choosing a forum in order to gain a strategic advantage by setting venue in a place most inconvenient to the defendant even though the plaintiff is somewhat inconvenienced himself. To remedy this abuse, courts were permitted to decline jurisdiction when there existed an alternate forum which could more appropriately and conveniently try the case. The doctrine could never be invoked where the action was initially filed in the wrong venue. (Holmes v. Wainright (K.B. 1803), 3 East 329, 102 Eng. Rep. 624.) Modern England still follows this practice. In the United States, the doctrine is followed in Federal court and in most State jurisdictions but is often subject to certain restrictions.

The essential elements of forum non conveniens as practiced in the United States are best set out in Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L. Ed. 1055, 1062, 67 S. Ct. 839, 843. There the court recognized that a plaintiff is entitled to his day in court, and that some degree of inconvenience to the defendant may be necessary to the plaintiff’s right to pursue his remedy. It is implicit that before a court will consider a forum non conveniens argument, there be available another venue in which the plaintiff could have filed his action which is fair to both the plaintiff and the defendant. The doctrine may not be used to deprive a plaintiff of a forum. Therefore, a court should weigh the relative advantages and disadvantages of the competing venues by balancing the legitimate needs of the plaintiff against the burden placed on the defendant. Where the chosen venue places an unreasonable burden upon the defendant in terms of expense, travel time and other practical considerations, with no appreciable benefit to the plaintiff, the court may, in its discretion, decline jurisdiction and dismiss the case. At common law, the doctrine of forum non conveniens only allowed a court to decline jurisdiction. Logically, if a court no longer had jurisdiction over the case, then it had no power to transfer it to a more appropriate venue. The only alternative was dismissal. This harsh result has been eliminated by statute in Federal court and at least 16 States. (See Annot., 74 A.L.R.2d 16 (I960).) Those jurisdictions have statutes which permit a defendant to make a motion to transfer venue for the convenience of parties and witnesses or in the interest of justice. This is the statutory equivalent of forum non conveniens. Only two States that we are aware of, Oklahoma and Kansas, use the doctrine as it existed at common law without any restriction or statutory modification. (See Gulf Oil Co. v. Woodson (Okla. 1972), 505 P.2d 484; Quillin v. Hesston Corp. (1982), 230 Kan. 591, 640 P.2d 1195.) This State follows none of the above practices.

In Illinois, the doctrine of forum non conveniens has been applied only to those cases in which the cause of action arose in another State. Such a limitation was unknown at common law. This type of case most commonly arises under the broad jurisdictional grant of the Federal Employers Liability Act (45 U.S.C. secs. 52, 59 (1976)) (hereinafter FELA). Section 56 of the FELA states that the jurisdiction of the United States courts shall be concurrent with that of the several States. An action under the FELA can be brought in the district where the defendant resides, where the cause of action arose, or where the defendant was doing business. However, this section was subject to abuse by plaintiffs who would select a forum in which the cause of action did not arise for the purpose of harassing the defendant. Often the only connection with the chosen forum was the corporate presence of the defendant while the cause of action occurred hundreds of miles away. Although such a choice of forum was permitted by statute, it placed an unfair burden on the defendant and was a terribly inefficient use of judicial resources. This problem went unresolved for many years because the United State Supreme Court would not permit State courts to decline jurisdiction over these cases. But gradually, through a series of decisions culminating in Missouri ex rel. Southern R.R. Co. v. Mayfield (1950), 340 U.S. 1, 95 L. Ed. 3, 71 S. Ct. 1, the Supreme Court held that although a State court may not refuse jurisdiction in such a case solely because the court might be inconvenienced by applying provisions of Federal law which did not comport with State policy, a State court should be free to apply forum non conveniens if the doctrine was recognized in the jurisdiction.

Blinois first applied forum non conveniens to an FELA case in Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144. There, the plaintiff brought suit in East St. Louis, Blinois, against his employer for injuries sustained in Kentucky where the plaintiff was domiciled. Venue was set in East St. Louis because the defendant operated a railroad switchyard there and was licensed to do business in Blinois. The chosen forum was 358 miles from the place of the injury. All of the witnesses, treating physicians and the plaintiff himself were residents of Kentucky or nearby Ohio towns. The defendant was amenable to process in Kentucky and Ohio in both State and Federal court. This was precisely the type of abuse that forum non conveniens was designed to alleviate. But the trial court denied the defendant’s motion to dismiss based on forum non conveniens, and the appellate court affirmed. The supreme court recognized that the doctrine was available to enable Blinois courts to decline jurisdiction over an action arising beyond the State’s boundaries, but required the defendant to demonstrate that the plaintiff’s choice of forum was made solely to vex or harass the defendant. Since the defendant failed to prove this crucial point, the lower courts were affirmed. This latter requirement has since been repudiated.

In People ex rel. Chesapeake & Ohio R.R. Co. v. Donovan (1964), 30 Ill. 2d 178, the supreme court correctly pointed out that a plaintiff’s motivation in choosing a forum would be extremely difficult to prove and could effectively sterilize the doctrine of forum non conveniens since this requisite subjective frame of mind would seldom exist. The court further stated that the doctrine was not primarily concerned with the subjective state of mind of a litigant, nor was it designed to punish a litigant for improper motivation in choosing a forum. But even though the requirement of improper motivation has been abandoned, the decision in Cotton has made one lasting contribution to the law of forum non conveniens. Blinois courts have interpreted that decision to mean that the doctrine does not apply to actions arising within this State. (See Emerton v. Canal Barge Co. (1966), 70 Ill. App. 2d 49.) This limited version of the doctrine, which was developed in the context of FELA actions, now applies to all cases where the doctrine is in issue.

The most recent supreme court pronouncement on the subject is Horn v. Rincker (1981), 84 Ill. 2d 139. In Horn three separate actions arising from the same occurrence were pending simultaneously in three separate venues. Essentially the same parties, facts and legal issues existed in each case. The trial court denied the defendant’s motion to consolidate the cases in one county. On appeal, the supreme court, pursuant to its constitutional supervisory powers, made an intercircuit consolidation of the cases. In doing so, the court was guided by the underlying principles of forum non conveniens. While at first glance it may appear that the court was sanctioning an intrastate application of the doctrine, closer scrutiny discloses that there is no support for such a conclusion.

In Horn, the consolidation order was primarily based upon the supreme court’s constitutional supervisory powers. (Ill. Const. 1970, art. VI, sec. 16.) The doctrine of forum non conveniens played only a secondary role in helping the court to articulate its reasons for consolidating the cases. In addition, the court specifically pointed out that they were not considering a motion to dismiss based on forum non conveniens and that such a motion may not have been proper. (84 Ill. 2d 139, 150.) The court also noted that regardless of the need for consolidating the cases, no circuit court had the power to order it. (84 Ill. 2d 139, 148.) For these reasons, we cannot escape the conclusions that Horn simply follows established precedent and does nothing to extend application of forum non conveniens to actions arising in this State.

Despite the number of cases which distinguish between interstate and intrastate actions in applying the doctrine, none of those cases provide a rationale for the distinction. Nor do we see any good reason to limit the doctrine to out-of-State actions. Such a distinction is illogical and pointless. If a plaintiff files an action in a technically proper forum which is needlessly oppressive to the defendant, the same problem exists regardless of where the cause of action arose. That problem exists in the present case. But due to an arbitrary distinction in the law, there is no remedy.

The plaintiffs are suing for medical malpractice. The alleged malpractice occurred at the Riverside Medical Center in Kankakee, Illinois. All of the physicians involved in this case, save one, live in Kankakee, and that one has no connection with Peoria. All of the witnesses and sources of proof are located in Kankakee. The plaintiffs themselves are residents of Kankakee. Yet the plaintiffs filed their suit 120 miles away in Peoria County where KAL lists a registered office.

In short, we believe that the trial should be had in Kankakee County where the action arose. Venue in Peoria County is convenient to no one. There is no justification for the additional cost and inconvenience which is certain to result from a trial in Peoria. The plaintiffs are forum-shopping here at the defendants’ expense. That practice should not be tolerated.

Were it within our perceived power, we would grant the defendants’ motion to dismiss based on forum non conveniens or, alternatively, transfer the cause to Kankakee County. Such a solution would be manifestly just and reasonable. But regardless of the need for such relief in the present case, none is available until and unless either our supreme court recognizes intrastate use of forum non conveniens by rule or decision or the legislature accomplishes the same end by statute. Lacking that, we have no choice but to reluctantly affirm the trial court.

Affirmed.

SCOTT, J., concurs.

PRESIDING JUSTICE BARRY,

specially concurring.

I agree that the trial court order refusing to consider venue should be affirmed. However, given the facts and circumstances of this case, I do not agree with all of the reasoning nor with the stated preferences of the majority opinion.

Further, I specifically decline to join in that portion of the majority opinion which considers and discusses the doctrine of forum non conveniens. This is an interlocutory appeal by leave of this court pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308), and we may consider only the question of law certified to us by the trial court. In this case, the only question before us is as follows:

“The question to be appealed is whether the fact that the registered agent of a profession corporation resides in a county other than that in which the principal place of business of the corporation is located is sufficient to allow venue to be fixed in the county where the registered agent resides and conducts his business.”

In my view, the plain language of the question of law as certified does not include the issue of forum non conveniens, but limits us to making a statutory interpretation.

I do agree with the statutory interpretation of the majority that venue was properly found to be in Peoria County. I would also observe that any inconvenience to the owners and employees of KAL that results from trying the case in Peoria County is a difficulty of the owners’ own choosing, since they elected to have a registered agent in a county other than where their principal place of business is located. Further, I would observe that it is not inconceivable that a professional corporation will have more than one place of business, or change the place of business, or change employees or owners, in whole or in part. In any event, the location of the defendant corporation’s registered agent is and was a matter totally within the owners’ control.


author: JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRADLEY S. FOLKERS, Defendant-Appellee.
    Third District
    No. 82—587
    Opinion filed March 4, 1983.

      Gary L. Spencer, State’s Attorney, of Morrison (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Stephen Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The decision in this case requires that we interpret the meaning of section 2 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7). The State appeals from an order of the circuit court dismissing the complaint against a minor defendant charged with a traffic violation. We reverse and remand.

The defendant, Bradley S. Folkers, was issued a traffic citation for driving while under the influence of intoxicating liquor, in violation of section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501). Such a violation is punishable by imprisonment. It was shown at .the arraignment that the defendant was 16 years old. The trial judge dismissed the charge against the defendant based upon the recent decision in People v. Sims (1982), 104 Ill. App. 3d 55, 432 N.E.2d 633, that a minor may not be prosecuted for a traffic offense punishable by imprisonment.

Section 2 — 7 of the Juvenile Court Act (hereafter the Act) provides that:

“(1) Except as provided in this Section, no minor who was under 17 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State or for violation of an ordinance of any political subdivision thereof.
(2) Subject to paragraph (1) of Section 2 — 8, any minor alleged to have committed a traffic, boating or fish and game law violation or an offense punishable by fine only may be prosecuted therefor and if found guilty punished under any statute or ordinance relating thereto, without reference to the procedures set out in this Act.”

The State argues on appeal that the phrase “punishable by fine only,” as contained in section 2 — 7(2), modifies only “an offense” and not “a traffic, boating or fish and game law violation.” Under the State’s interpretation, a minor could be prosecuted for any traffic, boating or fish and game law violation regardless of the potential punishment for such violation.

The defendant relies on the reasoning and decision in People v. Sims (1982), 104 Ill. App. 3d 55, 432 N.E.2d 633. In Sims, as in the instant case, a minor under the age of 17 was charged with a traffic violation which carried a potential sentence of imprisonment. Defendant Sims successfully argued that the exception contained in section 2 — 7(2) of the Act which allows for prosecution of minors under the age of 17 for traffic violations is limited to those violations which carry as punishment a fine only. The trial court agreed and dismissed the charge against Sims. This decision was affirmed on appeal.

The reviewing court in Sims concluded that the language, “or an offense punishable by fine only,” modified the preceding language in section 2 — 7(2). In reaching this conclusion, the court noted that the first purpose of the Act is to correct rather than punish minors. (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 2; In re Armour (1974), 59 Ill. 2d 102, 319 N.E.2d 496.) Given this purpose, the court reasoned: “We do not believe that it was the intent of the legislature to provide protection to minors charged with criminal offenses punishable by imprisonment but not to provide such protections to minors charged with traffic violations or fish and game violations in which imprisonment is a possibility.” (People v. Sims (1982), 104 Ill. App. 3d 55, 56, 432 N.E.2d 633, 634.) The court therefore held that a minor may be prosecuted only for those offenses which are punishable by fine only.

This court addresses this issue for the first time. While the reasoning of the court in Sims is persuasive, we must respectfully disagree with that court’s interpretation of the statute. The primary rule of statutory construction is to ascertain and give effect to the intent and meaning of the legislature. (People ex rel. Carey v. Power (1975), 59 Ill. 2d 569, 322 N.E.2d 476.) We conclude that it was the intent of the legislature to provide that minors under the age of 17 may be prosecuted for either an offense which is punishable by fine only or for any violation of the laws listed in the statute, i.e., traffic, boating, fish or game laws.

We recognize that a general rule of statutory construction is that exceptions within a statute are to be strictly construed. (People v. Lofton (1977), 69 Ill. 2d 67, 370 N.E.2d 517.) Clearly, section 2— 7(2) provides exceptions to the general rule that minors under the age of 17 are to be prosecuted only under the terms of the Act. However, a statute should also be construed, where possible, so that no clause is rendered meaningless or superfluous. (People v. Lofton (1977), 69 Ill. 2d 67, 72, 370 N.E.2d 517, 519.) To find that the exceptions provided in section 2 — 7(2) are limited to offenses punishable by fine only would render the phrase “traffic, boating or fish and game law violation” meaningless and superfluous. The phrase “an offense punishable by fine only” would clearly encompass those laws specifically enumerated in the previous language. The listing of these four distinct areas of law would therefore be superfluous and meaningless. We cannot assume that the legislature randomly chose to employ the phrase “traffic, boating or fish and game law.” We must assume instead that this was a knowing and intentional choice of the legislature which must be given effect by this court.

In reaching this conclusion we further note that the activities specifically mentioned in the statute are activities, such as driving an automobile and hunting, which are generally engaged in by those close to the statutory age of 17. In civil negligence actions, minors engaged in such adult activity are generally held to an adult standard of care. (Restatement (Second) of Torts sec. 283A (1965).) That the laws specifically mentioned in section 2 — 7(2) are those which govern traditionally adult activity supports our conclusion that minors violating these laws are without the protection afforded them by section 2 — 7(1) of the Act.

Clearly, the purpose of the Juvenile Court Act is to correct rather than punish minors. Section 2 — 7(2), however, is devoted to exceptions to the protection afforded such minors by the Act. Given the language of section 2 — 7(2) and its implications, we must conclude, with all due respect, that the purpose of this legislation is to except a minor under the age of 17 from the provisions of section 2 — 7(1) when a minor either commits an offense punishable by fine only or, also, if he violates any traffic, boating or fish and game law.

For the reasons discussed above, the judgment of the circuit court of Whiteside County is reversed, the charge is reinstated, and the cause is remanded for further proceedings in accord with this decision.

Reversed, reinstated and remanded.

SCOTT and BARRY, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES H. GUNN, JR., Defendant-Appellant.
    Third District
    No. 82—594
    Opinion filed February 23, 1983.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Vicki R. Wright, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, James H. Gunn, Jr., was charged by information with the offense of theft by deception of property exceeding the value of $150. (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(b).) The information specifically stated:

“*** James Henry Gunn, Jr. on the 24-27 day of June in the year of our Lord One Thousand Nine Hundred and Eighty at and within said County of Rock Island in the State of Illinois aforesaid# committed the offense of THEFT BY DECEPTION, in that the said defendant knowingly obtained, by deception, control over property of the Moline National Bank, Moline, Rock Island County, Illinois, being Six Thousand Eight Hundred Dollars ($6,800.00) in United States Currency, having a total value in excess of One Hundred Fifty ($150.00) Dollars, intending to deprive the owner permanently of the use and benefit of the property, in that he, between June 24, 1980 and June 26, 1980, deposited three (3) checks totaling $10,200.00 into his checking account with the Moline National Bank, account No. 04443322, said checks being numbered 105, 501, and 505, dated June 23, 1980, June 25, 1980 and June 26, 1980, respectively, made payable to James Gunn, and signed as maker Osier Houston, and he, between June 26, 1980 and June 27, 1980, received United States Currency in the amount of $6,800.00 from the Moline National Bank by writing five (5) checks on his aforesaid account with the Moline National Bank totaling $6,800.00, said checks being numbered 145, 143, 146, 001 and 150, dated June 26, 1980, June 26, 1980, June 26, 1980, June 27, 1980 and June 27, 1980, respectively, made payable to Cash and signed as maker James Gunn, knowing that the three (3) checks deposited into his account would not be paid by the depository, the First National Bank of Rock Island, in violation of Section 16 — 1(b), Chapter 38, Illinois Revised Statutes.”

Prior to trial, the defendant filed a motion to quash or dismiss the information on the grounds that it did not describe a crime or a causal connection between the deposits and withdrawals. The motion was denied following a hearing. The claim was renewed by the defendant in a motion in arrest of judgment filed after the trial. It was denied again.

During the jury trial on the instant offense, the State presented the testimony of numerous witnesses. Their testimony established that the defendant was employed by Osier Houston in May 1980 as an automotive mechanic for a period of two weeks. In June 1980, Houston discovered that someone had signed his name on three separate checks which totaled $10,200. These checks were to be drawn on his account with the First National Bank of Rock Island and were made payable to the defendant. Houston did not owe the defendant money.

The three checks were deposited in the defendant’s account with the Moline National Bank on June 25 and 26, 1980. An expert stated that the defendant had endorsed the checks with his signature. Also, the defendant’s fingerprints were identified on the checks. The First National Bank refused to honor the checks because of insufficient funds.

Five checks totaling $6,800 and drawn on the defendant’s account with the Moline National Bank were cashed between June 26 and 28, 1980. An expert stated that the defendant had written the five checks.

The defendant presented the testimony of Arnold Radar, who accompanied the defendant to the Moline National Bank sometime in June 1980. He saw the defendant deposit a check but did not know the amount of the check or who wrote the check. Radar merely testified that he saw the defendant receive the check from someone.

Following closing arguments and instructions, the jury returned a verdict of guilty. The defendant was subsequently sentenced to a term of three years of imprisonment. He appealed.

The issue on appeal involves the sufficiency of the information. The defendant asserts that the information failed to charge an offense because it did not allege all the essential elements of theft by deception. There was no allegation of facts which showed that the Moline National Bank relied upon the defendant’s misrepresentations. No link between the defendant’s alleged misrepresentations in making the deposits and his conduct in making the withdrawals was alleged or apparent by a natural connection. Simmons v. People (1900), 187 Ill. 327, 58 N.E. 384.

An essential requirement of a valid charging instrument is that it set forth the nature and elements of the offense charged. (Ill. Rev. Stat. 1981, ch. 38, par. Ill — 3(aX3).) The elements of the offense of theft by deception are that a named person owned or possessed specified property; that the accused knowingly obtained control over that property by deception; and that the accused acted with the intent to permanently deprive the named person of the use and benefit of that property. (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(b); People v. Puleo (1981), 96 Ill. App. 3d 457, 421 N.E.2d 367.) Reliance upon the misrepresentation of the accused is not a separate element of the offense which must be specifically alleged, particularly where the connection is apparent between the defendant’s misrepresentation and the acquisition of the property. People v. Wurster (1980), 83 Ill. App. 3d 399, 403 N.E.2d 1306.

The information in the instant case contains the necessary requirements to be a valid charging instrument under section 111 — 3 of the Code of Criminal Procedure of 1963. (111. Rev. Stat. 1981, ch. 38, par. 111 — 3.) It specifically states the elements of the offense of theft by deception in that “the said defendant knowingly obtained, by deception, control over property of the Moline National Bank *** intending to deprive the owner permanently of the use and benefit of the property ***.” The information sufficiently apprised the defendant of the transaction which formed the basis of the offense charged in order to enable him to prepare a defense. People v. Wurster (1980), 83 Ill. App. 3d 399, 403 N.E.2d 1306.

The facts alleged in the information establish a natural connection between the facts and the offense so that reliance upon the defendant’s misrepresentation is apparent. The Moline National Bank demonstrated its reliance upon the defendant’s misrepresentation that the three checks deposited in his account and payable through the First National Bank of Rock Island would be honored by its payment of the defendant’s five checks drawn on his account. The defendant deposited the three checks in his account knowing that they would not be paid by the First National Bank. It was not necessary to allege that the defendant did not have enough money in his account to pay the checks drawn on it, excluding the deposits made on Houston’s account, since this factor is implicit in the language that the defendant obtained control over property of the Moline National Bank. The money paid to the defendant on his five checks belonged to the bank and not the defendant.

Therefore, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

ALLOY and SCOTT, JJ., concur.


author: PRESIDING JUSTICE WEBBER

text:
    FIDELITY FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellant, v. DONALD L. GRIEME et al., Defendants-Appellees.
    Third District
    No. 82—338
    Opinion filed February 25,1983.

      Douglas R. Lindstrom, of West, Neagle and Williamson, of Galesburg, for appellant.
    Richard L. Whitman, of Stansell, Critser & Whitman, of Monmouth, for appellee Donald L. Grieme.
    Barry M. Barash, of Barash, Stoerzbach & Henson, of Galesburg, for appellee Kathleen A. Grieme.
    Ronald L. Henson, of Barash, Stoerzbach & Henson, of Galesburg, for appellee Charles F. Lange.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff filed a complaint to foreclose a real estate mortgage in the circuit court of Knox County. Defendants filed motions to dismiss under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45). The trial court allowed the motions and dismissed the suit with prejudice. This appeal followed.

The parties have represented to us, and our own research has confirmed, that no precise Illinois precedent exists for the question presented here: Is an agreement for deed, made by a mortgagor without the consent of the mortgagee, for the mortgaged premises, a “change in ownership” so as to trigger the due-and-payable clause in the mortgage?

Since the case was dismissed on motion, there is no evidentiary record. A short form complaint (Ill. Rev. Stat. 1979, ch. 95, par. 23.6) was filed by plaintiff on January 11, 1982, with copies of the mortgage, the note, and a supplemental agreement attached. In addition to the formal allegations, the complaint alleged upon information and belief that the mortgagors (Grieme) had entered into an agreement for deed with defendant Lange; that the plaintiff mortgagee (Fidelity) had not consented to the execution of the agreement; that Fidelity had notified Grieme that it intended to enforce its rights; and that Grieme had refused to make satisfactory arrangements.

At issue is the construction of paragraph 7 of the supplemental agreement which provides:

“7. That in the event the ownership of said property or any part thereof becomes vested in a person other than the Mortgagor, the Mortgagee may, without notice to the Mortgagors, deal with such successor or successors in interest with reference to this mortgage and the debt hereby secured in the same manner as with the Mortgagor, and may forbear to sue or may extend time for payment of the debt, secured hereby, without discharging or in any way affecting the liability of the Mortgagor hereunder or upon the debt hereby secured; however, if there shall be any change in the ownership of the premises covered hereby without the consent of the Mortgagee, the entire principal and all accrued interest shall become due and payable at the election of the Mortgagee, and foreclosure proceedings may be instituted thereon.”

As indicated, the defendants filed a motion to dismiss which the trial court allowed with prejudice, finding that the agreement for deed did not constitute a change in ownership under paragraph 7 of the supplemental agreement and hence the payment of the entire principal and accrued interest was not accelerated.

The motion to dismiss admitted the execution of the agreement for deed, but nowhere in the record does there appear anything indicating what the terms of that agreement might be.

Both parties cite considerable authority from other jurisdictions. Fidelity relies largely upon mortgage cases which construe “due-on” clauses. Grieme argues as analogous insurance cases construing clauses in policies which voided insurance in the event of change in ownership of the premises without notification to the company. He also argues that any ambiguity should be construed in his favor and against Fidelity, since the instruments show on their face that they were prepared by Fidelity.

We find neither the mortgage cases cited by Fidelity nor the insurance cases cited by Grieme particularly helpful. • We are dealing here with the phrase “change in ownership.” The mortgage cases from other jurisdictions which sustained the acceleration clause dealt with much more specific language. Some examples will suffice to demonstrate the difference.

In Tucker v. Lassen Savings & Loan Association (1974), 12 Cal. 3d 629, 632, 526 P.2d 1169, 1170, 116 Cal. Rptr. 633, 634, the provision was, “sell, convey or alienate the property *** or any part thereof, or any interest therein ***.” In Baltimore Life Insurance Co. v. Harn (1971), 15 Ariz. App. 78, 79, 486 P.2d 190, 191-92, it was, “upon the conveyance of Mortgagor’s title to all or any portion of said mortgaged property and premises, or upon the vesting of such title in any manner in persons or entities other than, or with, mortgagor.” In Mutual Federal Savings & Loan Association v. Wisconsin Wire Works (1973), 58 Wis. 2d 99, 104, 205 N.W.2d 762, 765, the provision was, “convey away said mortgaged premises or if the title thereto shall become vested in any other person or persons in any manner whatsoever ***.”

The distinctions in semantics are obvious. The only case called to our attention which construes “change in ownership” is Century Federal Savings & Loan Association v. Van Glahn (1976), 144 N.J. Super. 48, 364 A.2d 558. We note first of all that it is a trial court decision only. More importantly, the court relied to some extent on the fact that in the event of loss, it would fall upon the contract purchaser. There is no such indication in the instant case. As previously indicated, we know nothing of the terms of the contract for deed from Grieme to Lange. The allocation of loss argument becomes irrelevant and unpersuasive. As between a contract purchaser and contract vendor, the risk of loss may depend on the Uniform Vendor and Purchaser Risk Act (Ill. Rev. Stat. 1979, ch. 29, par. 8.1), if the terms of the contract are known, but nothing in the Act affects the obligation of a mortgagor to pay the note in full.

The insurance cases cited by Grieme (Hill v. Cumberland Valley Mutual Protection Co. (1868), 59 Pa. (9 P.F. Smith) 474; Great American Insurance Co. v. Merchants & Manufacturers Mutual Insurance Co. (6th Cir. 1970), 423 F.2d 1143; Alexander v. Hanover Fire Insurance Co. (Tex. Civ. App. 1961), 346 S.W.2d 667) all discuss “change in ownership” as it applies in the insurance context, a matter quite different from liability on a mortgage note. In general, they state only the familiar principle of law that one may not have insurance unless he has an insurable interest, i.e., protection against gambling policies. These cases indicate that a contract vendor who retains legal title would have such an interest and hence there would be no “change in ownership” within the meaning of a policy. However, as with the mortgage cases discussed above, the bare allegation of the existence of an agreement for deed tells us nothing.

Both parties have dwelt on the definition of “ownership” while tending to ignore its companion in this case, “change.” The mortgage, which incorporates by reference the note and the supplemental agreement, states on its face, “This instrument prepared by Fidelity Federal Savings and Loan Association, Galesburg, Illinois.” Thus is brought into play the familiar rule of construction that the instruments are to be construed most strongly against their author. Crest Builders, Inc. v. Willow Falls Improvement Association (1979), 74 Ill. App. 3d 420, 393 N.E.2d 107.

“Ownership” in Illinois is an amorphous concept. It was so indicated by the supreme court in People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 489, 389 N.E.2d 540, 544:

“The term ‘owner,’ as applied to land, has no fixed meaning applicable under all circumstances and as to any and every enactment. [Citation.] It usually denotes a fee simple estate, but in Illinois it may include ‘one who has the usufruct, control or occupation of land with a claim of ownership, whether his interest be an absolute fee or a less estate.’ [Citation.] Title to property does not necessarily involve ownership of the property. Title refers only to a legal relationship to the land, while ownership is comparable to control and denotes an interest in the real estate other than that of holding title thereto. [Citation.]”

“Change” suffers from a similar lack of specificity. In Webster’s Dictionary of Synonyms 148 (1951), it is stated:

“Change implies either an essential difference, even a loss of identity, or the substitution of one thing for another. ‘Can the Ethiopian change his skin, or the leopard his spots?’ (Jeremiah xiii. 23). ‘And Earth be changed to Heaven and Heaven to Earth’ (Milton). Alter stresses difference in some particular respect, as in form or detail, without implying loss of identity; as, one may alter a coat without changing its style. ‘The whole existing order must be, if ever so slightly, altered’ (T.S. Eliot). ‘External circumstances may change catastrophically, as during a war; or gradually, as when means of production are altered’ (A. Huxley). The two words are, however, frequently interchangeable.”

The ambiguity in the phrase “change in the ownership” in the supplemental agreement in the instant case is patent. There is no allegation of conveyance by Grieme and therefore it must be assumed that he retained title. It follows that there has been no essential difference or substitution within the Webster’s meaning. There may have been an alteration by surmounting an equitable interest upon the legal title, but this, in itself, is not conclusive evidence that the owner of the equity may ever become the owner of the property. Compare Chandler v. Chandler (1978), 64 Ill. App. 3d 97, 381 N.E.2d 37.

In short, Fidelity, by the use of the phrase “change in the ownership,” has created a situation of sufficient ambiguity that it cannot be said as a matter of law that the execution of an agreement for deed comes within the ambit of that phrase. If it had intended so to include such a' condition, it would have been simple to add a few more words to the already densely packed syntax of the supplemental agreement rather than seek refuge in the umbrella-like phrase which is employed.

Acceleration of debt is a harsh remedy, akin to forfeiture. It is elemental that both law and equity will avoid a forfeiture. Handzel v. Bassi (1951), 343 Ill. App. 281, 99 N.E.2d 23.

One further matter requires brief comment. In his motion to dismiss, Grieme alleged as an additional ground for dismissal that the complaint did not allege that the agreement for deed increased the risk of default or threat to the security, and that the purpose of advancing the financial interest of the lender was openly stated and bargained for at the inception of the contract. This was alluded to in Provident Federal Savings & Loan Association v. Realty Centre, Ltd. (1981), 101 Ill. App. 3d 277, 428 N.E.2d 170, by the court’s citation with approval of First Southern Federal Savings & Loan Association v. Britton (Ala. Civ. App. 1977), 345 So. 2d 300. The trial court did not touch upon the subject in its dismissal order, but it has been raised anew in this court.

The matter has recently been laid to rest by the United States Supreme Court in Fidelity Federal Savings & Loan Association v. de la Cuesta (1982), 458 U.S. 141, 73 L. Ed. 2d 664, 102 S. Ct. 3014. The court there held that regulations promulgated by the Federal Home Loan Bank Board preempted any State law concerning due-on-sale clauses in mortgages held by federally chartered savings and loan associations. Those regulations provided in substance that the due-on-sale clauses should be fixed and governed by the loan contract.

We note, however, that the regulations became effective July 1, 1976, and the mortgage in the instant case was executed July 30, 1975. In footnote 11 to its opinion, the Supreme Court indicated that the regulations applied to loans made after the effective date of the regulations and presumably would not apply to the instant mortgage.

The dismissal order of the circuit court of Knox County is affirmed.

Affirmed.

GREEN and MILLER, JJ., concur.


author: JUSTICE SCOTT

text:
    WILLIAM J. ARMSTRONG, Plaintiff-Appellant, v. FREEMAN UNITED COAL MINING COMPANY, Division of Material Service Corp., Defendant-Appellee.
    Third District
    No. 82—363
    Opinion filed February 25, 1983.
    Nile J. Williamson, of Peoria, for appellant.
    Murvel Pretorius, Jr., and Karen J. Steel, both of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The appellant, William J. Armstrong, was the plaintiff named in a two-count complaint filed in the circuit court of Peoria County. Named as a defendant in that complaint was Armstrong’s former employer, Freeman United Coal Mining Company Count I of the complaint sought damages from the defendant on the theory of retaliatory discharge. Count II of the complaint sought damages from the defendant based upon alleged violations of the Illinois Human Rights Act. Following hearings in the court below, the circuit judge entered summary-judgment for the defendant as to count I and dismissed with prejudice count II. The plaintiff appeals.

On September 9, 1975, the plaintiff was a section foreman employed at the defendant’s Orient Mine No. 3 near Waltonville, Illinois. On that date, he sustained an injury in a work-related accident. As a result of his injuries, the plaintiff was unable to return to the work in which he was previously engaged, but the defendant made a sedentary position as a training instructor available for the plaintiff from December 22, 1975, until April 9, 1979. At that time, plaintiff was reclassified as a mandatory training instructor, a position which he continued to hold until he was terminated from employment on March 28, 1980. From the time of his injury until the time of his termination, the plaintiff claimed and collected temporary total disability benefits under the Workmen’s Compensation Act.

Shortly more than two months after being terminated from employment, on June 5, 1980, the plaintiff filed a complaint to adjust his workmen’s compensation claim arising out of the 1975 injury. It was the filing of this claim for adjustment, or at least plaintiff’s intent to file such a claim, that allegedly spawned the causes of action set forth in counts I and II of the complaint in the instant action.

The tortious actions alleged in count I of plaintiff’s complaint are three in number. First, the plaintiff alleges that the defendant terminated his employment because he exercised his rights under the Workmen’s Compensation Act. Alternatively, the plaintiff alleges that his employment was terminated because the defendant anticipated his exercise of those same rights. Finally, the plaintiff alleges that the defendant refused to rehire or recall the plaintiff, again because he exercised his rights. In urging that these allegations are sufficient to constitute a cause of action, the plaintiff relies primarily on the recent supreme court decision in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.

After conducting pretrial discovery, the defendant filed a motion for summary judgment as to count I. That summary judgment motion was supported by excerpts from the discovery deposition of the plaintiff. Those excerpts, which were uncontradicted and uncontroverted by any depositions or affidavits submitted by the plaintiff, disclosed the following:

a. The plaintiff did not actually file his application for adjustment of claim until June of 1980, two months after he was terminated.

b. The plaintiff never told any agent of the defendant that he was going to file a workmen’s compensation action.

c. There were nine other employees terminated at the same time as the plaintiff, most of whom did not have workmen’s compensation claims.

d. No agent of the defendant ever told the plaintiff why he was terminated.

e. The plaintiff believed there was a company policy that people who file workmen’s compensation claims would be terminated; however, no one in a management position with the defendant ever suggested to the plaintiff that such a policy existed.

Moreover, the summary judgment motion of the defendant was supported by certain sworn testimony of its manager of training, Donald Dame. Mr. Dame’s testimony reveals that the plaintiff’s termination was part of a general cutback in the training section. Nine other employees were terminated at the same time. Mr. Dame made the decision as to which employees would be terminated based on their qualifications, experience, and ability to do the job.

The plaintiff’s opposition to the summary judgment motion is supported only by affidavits of co-workers who espouse an unfounded belief that a company policy of retaliatory discharge exists, yet those affidavits offer no explanation as to why that belief might reasonable be held. Thus, we conclude that no material issue of fact exists as to the defendant’s intent in terminating the plaintiff’s employment. It is uncontradicted by any competent affidavit that the plaintiff was terminated before filing his adjustment of claim, and that the termination was part of a general cutback in employment in the defendant’s training section. Absent an intent to terminate employment in retaliation for exercise of rights under the Workmen’s Compensation Act, no cause of action exists, and summary judgment was properly granted. Cunningham v. Addressograph Multigraph Corp. (1980), 87 Ill. App. 3d 396, 409 N.E.2d 89.

Count II of plaintiff's complaint seeks damages for violation of the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1— 101 et seq.). The plaintiff urges that this count sets forth a cause of action within the scope of the supreme court’s decision in Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876. The Palmateer case recognizes a cause of action for retaliatory discharge where the employer’s decision to terminate employment contravenes public policy. While the principles embodied in the Illinois Human Rights Act constitute the public policy of this State, the same act which establishes the policies also creates certain remedies where those policies are violated. Specifically, grievances under the Act come within the administrative jurisdiction of the Illinois Human Rights Commission. (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 103.) Except by way of administrative review, the courts of this State have no jurisdiction to grant relief for violations of the policies embodied in the Illinois Human Rights Act. (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 111(D).) Thus, the public policy embodied in the Illinois Human Rights Act differs from the policy of promoting the efficient administration of criminal justice which concerned the court in the Palmateer decision, in that in the first instance, a civil cause of action has been expressly provided for by statutes, and in the latter instance, no civil cause of action existed. In light of the express statutory provision requiring the pursuit of administrative remedies under the Illinois Human Rights Act, we believe the circuit court correctly dismissed count II of plaintiff’s complaint for failure to exhaust those administrative procedures.

Finally, the plaintiff urges that the trial court erred when it excused the defendant from filing verified pleadings in answer to the original complaint. The Civil Practice Act provides that where the complaint is verified, then answers subsequently filed must also be verified, “unless verification is excused by the court.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 605.) This is an area where the trial court has considerable discretion, and unless substantial prejudice has resulted from the exercise of that discretion, it will not be the basis for reversible error. We find from the record that the defendant properly petitioned the court to excuse verification of the pleadings, and we fail to see how the circuit court’s decision resulted in any prejudice to the plaintiff. For that reason, we have sustained the decision reached by the trial judge.

In reliance on the reasoning hereinbefore set forth and the applicable precedents cited, we conclude that the judgment of the Circuit Court of Peoria County should be affirmed.

Affirmed.

STOUDER, P.J., and HEIPLE, J., concur.