author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT A. STOUT, Defendant-Appellant.
    Second District
    No. 81 — 13
    Opinion filed July 28, 1982.

      G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Theodore J. Floro, State’s Attorney, of Woodstock (Phyllis J. Perko, William L. Browers, and Cynthia N. Schneider, all of State’s Attorney’s Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant was tried by a jury in McHenry County for burglary of the village of Lakemoor municipal building, theft of merchandise taken in that burglary, and forgery of two checks taken in the burglary. The jury found him guilty of the two counts of forgery, counts VIII and IX in the information, and not guilty of the other charges. He appeals his conviction for the two forgeries.

We address first defendant’s contention that he suffered double jeopardy when the trial directed the verdict in his favor on count IX and then reversed its decision, allowing trial on this count to continue and result in a guilty verdict.

After the State rested its case defendant moved for a directed verdict on all the charges. With respect to the forgeries defendant argues that the State failed to prove they were committed in McHenry County.

After hearing arguments from counsel for the defendant and the State the court stated that it would not direct the verdict on the burglary or theft counts nor on count VIII, one of the forgery charges, but it stated that with respect to count IX, the other forgery charge, the evidence showed the check was not completed in McHenry County but in Lake County. The court then stated the following:

“I am going to direct the verdict on Count Nine because the document was not completed in McHenry County.
* * *
*** [T]he Court will direct — enter a directed verdict of not guilty as to Count Nine.
If you wish to submit something, fine. That’s up to you.”

The prosecutor then asked if he could submit a motion and the court consented. Later in the day the prosecutor moved for reconsideration. The court concluded that the objection to venue was waived and stated that therefore “the directed verdict is withdrawn.” Defense counsel objected to the reconsideration on the basis that the court had already ruled. The court answered,

“Well, that’s perfectly all right. However, *** for the record the ruling has not been announced to the jury or anyone else at this time, so that would in no way affect the jury’s consideration of this matter.”

The granting of a motion to direct a verdict is an acquittal. (People v. Hutchinson (1975), 26 Ill. App. 3d 368, 325 N.E.2d 115; People v. Gallas (1966), 77 Ill. App. 2d 132, 221 N.E.2d 782.) The legal effect of a directed verdict is to bar, under double jeopardy principles, its vacation or reversal. (U.S. Const., amends. V and XIV; Ill. Const. 1970, art. I, sec. 10; Hutchinson; Gallas.) A trial court therefore may not withdraw an order directing a verdict and permit the jury to make a finding on the charge.

The State argues that the trial court here did not direct the verdict but only stated it would do so at a later time. The court indicated it would entertain further arguments on the matter and did not intend to rule until the State had presented its argument, the State contends.

The record shows, however, that the parties and the court all considered that an order directing the verdict was made.

In People v. Hutchinson and People v. Gallas, memorandum orders were entered. In the recent decision of In re L.R. (1982), 106 Ill. App. 3d 244, 435 N.E.2d 908), which also held a directed verdict may not be rescinded, the reviewing court merely stated that the trial court directed the verdict, without stating whether it was recorded in a written order, or stated orally. The State argues that the oral pronouncement by the court here was insufficient to constitute a directed verdict.

Section 115 — 4(k) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4(k)) states that when the evidence is insufficient to support a finding of guilty, “the court may and on motion of the defendant shall make a finding or direct the jury to return a verdict of not guilty, enter a judgment of acquittal and discharge the defendant.”

Here, the trial court simply stated it was directing the verdict for defendant on count IX. It did not direct the jury to return a verdict, enter a judgment of acquittal nor discharge the defendant.

It was held in People v. Gallas, however, that a court has authority to dismiss charges without the submission of a jury instruction. “The court made the determination as a question of law and the followup by an instruction was a formality.” (77 Ill. App. 2d 132, 140.) The lack of a direction to the jury, therefore, cannot prevent the recognition of a directed verdict. The fact that defendant here was not discharged also will not keep1 the court’s order from having effect as a directed verdict, for trial was to continue on three other charges.

As for the fact that judgment of acquittal was not entered, we conclude that the validity of a court’s pronouncement of a directed verdict does not depend upon whether judgment of acquittal is entered. We conclude that the announcement that the verdict is directed for defendant is sufficient to bar further prosecution against a defendant. As the court in Gallas stated about there being no necessity to direct the jury to enter a verdict for the defendant, “[t]he court made the determination as a question of law and the followup *** was a formality.” (People v. Gallas (1966), 77 Ill. App. 2d 132, 140.) The rendition of judgment is a judicial act, “while the entry of a judgment by the clerk is a ministerial act.” (People v. Moran (1930), 342 Ill. 478, 480, 174 N.E. 532; People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283.) It was error to continue the trial with respect to count IX after the court had directed the verdict on that count in defendant’s favor.

Defendant also contends that the State failed to prove beyond a reasonable doubt that the forgery charged in count VIII was committed in McHenry County.

Defendant was charged in this count with violating section 17— 3(a)(1) of the Criminal Code of 1961:

“(a) A person commits forgery when, with intent to defraud, he knowingly:
(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority ***.” Ill. Rev. Stat. 1979, ch. 38, par. 17-3(a)(1).

The State thus had to prove that defendant, with intent to defraud, knowingly made a document in McHenry County capable of defrauding another so that it purported to have been made by another. Defendant argues that the State did not prove he wrote the check entirely in McHenry County.

The circumstances of this forgery were related by a State’s witness, Ronnie Starks. He testified that he, defendant and a companion left a house in Lakemoor, Illinois, by car. About 150 to 200 feet from the house the car in which the three were riding stopped at a stop sign. Defendant wrote the check while the car was stopped. The three then drove on about a quarter of a mile, to Fred and Irene’s tavern, which is also in Lakemoor. Lakemoor is located in McHenry County.

Venue may be proved by circumstantial evidence where the rational conclusion to be drawn is that the offense took place in the county alleged. People v. Toellen (1978), 66 Ill. App. 3d 967, 384 N.E .2d 480.

The forgery was committed at a stop sign 150 to 200 feet from a Lakemoor house. Defendant was on his way to another point in Lakemoor, only a quarter of a mile away. The only rational conclusion to be drawn from this evidence is that defendant was in Lake-moor, McHenry County, the entire length of the short trip. Venue was sufficiently proved.

Defendant next contends that the trial court abused its discretion by denying his motion in limine seeking to exclude from evidence Ronnie Starks’ testimony that defendant had admitted the commission of prior forgeries. The testimony defendant sought to exclude was the following:

“We had brought up about the checks - about writing them out and cashing them, and Mr. Stout told me that he had been in jail before for forgery and he said he was good. And I said, ‘Well, I can’t read and write so I don’t think they would cash one for me.’ And he says, ‘Well, I will write them out if you will cash them,’ and I said ‘okay.’ ”

The trial court denied defendant’s motion in limine reasoning that the testimony, although referring to prior felony convictions of defendant, was probative of the issue of defendant’s intent and motive.

As a general rule, evidence of other crimes committed by a defendant, independent of the crime for which he is being tried, is inadmissible. Such evidence is admissible, however, if it is relevant for any purpose other than to show propensity to commit a crime. (People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200.) Evidence of other crimes is admissible to show motive, intent, identity, absence of mistake or modus operandi. (People v. Pavic (1982), 104 Ill. App. 3d 436, 442, 432 N.E.2d 1074.) If the evidence of other crimes is presented to establish any issue other than defendant’s propensity to commit a crime, then the trial court must determine whether the probative value of the evidence is outweighed by any prejudice to defendant. The decision to admit or exclude evidence of another crime is within the discretion of the trial court. People v. Walls (1980), 87 Ill. App. 3d 256, 267, 408 N.E.2d 1056.

In proving a forgery case, the State must establish two aspects of intent: (1) that the defendant had the intent to defraud and (2) that he knowingly performed one of the three specified acts in section 17 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 17 — 3(a); People v. Hockaday (1981), 100 Ill. App. 3d 762, 765-66, 427 N.E.2d 428). Defendant informed Starks that he had had prior experience in forging checks and that he was good. Defendant’s admission to Starks that he had served time for forgery established that defendant intended to defraud the Fox Lake currency exchange and that he knowingly made a check which was apparently capable of defrauding another. Thus, the trial court did not abuse its discretion in admitting into evidence testimony that defendant had been convicted of a prior forgery.

Defendant finally contends the trial court abused its discretion by refusing to allow a defense witness to testify. Defendant had not included the witness’s name on the list of potential witnesses he had submitted to the State in compliance with discovery rules.

Following presentation of the State’s evidence, defense counsel informed the court that he planned to call Ronnie Starks to the stand as a defense witness. Counsel proposed to ask Starks whether he had talked with a Ray Krahn about the burglary and theft with which the defendant was charged. If Starks denied having spoken with Krahn, defense counsel intended to call Krahn, who would testify that Starks told him that Starks, and not the defendant, had committed the burglary and theft. Counsel explained to the court that Krahn was not on the list of prospective witnesses submitted to the State because defendant had not informed him about Krahn until that morning.

The court refused to allow defense counsel to call Krahn, ruling that it would be too time-consuming for the State to conduct its investigation of Krahn at that late date, and that the defendant should have revealed Krahn’s existence and significance to defense counsel sooner. The court refused to agree to counsel’s request that a short continuance be granted to permit the State to investigate Krahn’s background. The defense then rested without presenting any evidence.

Defendant argues that to refuse to permit him to call Krahn because that witness was not revealed to the State in discovery was too harsh a sanction. We conclude, however, that we need not judge whether the court made too harsh a sanction for failure to observe discovery rules, for defendant could not have called Krahn for the purpose of impeaching Starks. It is well recognized that a party calling a witness vouches for his credibility. (People v. Grant (1976), 38 Ill. App. 3d 62, 347 N.E.2d 244.) A party may not call a witness for the sole purpose of impeaching him. Kubisz v. Johnson (1975), 29 Ill. App. 3d 381, 329 N.E.2d 815.

The impeachment of Starks was the stated purpose for calling Starks and Krahn. Defense counsel told the court that he expected Starks to testify that he had talked to Krahn concerning his knowledge of the burglary. Defendant then would call Krahn to testify that Starks had told Krahn a different story. Though defense counsel asked to reopen cross-examination, this was rightly denied by the trial court, and Starks would therefore have to have been called as defendant’s own witness. At that point it would have been impermissible to call Starks to testify solely for the purpose of impeaching him, and improper to call Krahn solely to give impeaching testimony. To call Krahn for this purpose, therefore, would have been improper, irrespective of discovery rules.

We conclude that the oral announcement of the directing of a verdict on count IX in defendant’s favor was sufficient to bar his continued prosecution on that count. Regarding count VIII we conclude that venue was sufficiently proved. It was not error to admit testimony of defendant’s prior conviction of forgery, nor did the court err in refusing to permit testimony of a witness not revealed to the State during discovery. We reverse the judgment of the McHenry County circuit court as to count IX and affirm as to count VIII.

Affirmed in part and reversed in part.

VAN DEUSEN and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
      In re MARRIAGE OF ARTHUR ARKIN, Petitioner-Appellee, and PATRICIA ARKIN, Respondent-Appellant.
    Second District
    No. 81 — 633
    Opinion filed July 28, 1982.

      Jerome Feldman, of Chicago, for appellant.
    James J. O’Brien & Associates, of Chicago, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The marriage of Patricia Arkin (now Patricia Frank) and Arthur Arkin was dissolved on October 13, 1977. Custody of their only child, a four-year-old son, was awarded to the wife, respondent herein. The dissolution judgment incorporated a property settlement agreement entered into by the parties on October 5, 1977. Respondent remarried on September 22, 1980, and vacated the marital home on or about October 14, 1980. Prior to that time, the home was listed for sale by petitioner, but it was not sold until May 15, 1981. Paragraph 6 of the incorporated agreement, at issue here, provides as follows:

“MARITAL RESIDENCE: That the wife shall have the right of exclusive possession of the marital residence commonly known as 1630 Portage Pass, Deerfield, Illinois and legally described on ‘Schedule A’ attached hereto and made a part hereof through the month of September, 1984, or until the wife remarries if sooner. The wife shall pay all mortgage, insurance and real estate tax payments for said real estate which have accrued and are payable on October 1, 1977 until she terminates possession of said real estate, except that the husband shall pay the real estate tax installment due November 1, 1977. The husband shall be liable for the payment of mortgage, insurance and real estate tax payments accrued and payable in connection with said real estate prior to October 1, 1977 and subsequent to the wife vacating said real estate. Husband shall reimburse wife for any increased taxes in excess of the final assessed 1976 real estate taxes. That during the period of the wife’s exclusive possession, the wife shall pay twenty-five percent of the cost of any necessary exterior decorating and major repairs to said premises, and the husband shall pay seventy-five percent of the cost thereof. In the event the parties can not agree relative to the necessity of any repairs or exterior decorating,---.....this Court reserves the right to adjudicate any such dispute.
That upon the wife vacating the aforesaid real estate, the husband shall pay to the wife twenty-five percent of the then net equity in said real estate in full settlement of the wife’s property claims. In addition, the wife shall be reimbursed in an amount equal to one-half the reduction of mortgage principal for said premises from October 1, 1977 until she vacates same. Net equity as used in this paragraph shall be defined as the difference between the then fair market value of said real estate less the then outstanding balance on the mortgage in connection with same.
Should the husband sell the real estate at or about the time the wife vacates same, and should the husband at the time of vacation advise the wife of his intention to sell said real estate, net equity shall be defined as the difference between the sale price and mortgage and the normal selling expenses actually incurred, including title charges, broker’s commission, if any, attorney’s fees and prorations for real estate taxes.”

On June 19, 1981, the husband, petitioner herein, filed a petition for a rule to show cause, for modification of child support and for other relief. Inter alia, the petition prayed that the court enter a rule to show cause why the respondent wife should not be held in contempt for a wilful violation of the terms of the judgment agreement, and that she pay immediately all past due realty taxes, mortgage payments and utility expenses as required therein.

On July 6, 1981, the wife also filed a petition for rule to show cause alleging, inter alia, that the petitioner had sold the marital residence and that she had not received her share of the proceeds as set forth in paragraph 6 of the agreement. Her petition further alleged that the attorneys for the petitioner had submitted “letters and documents concerning their determination of what they believed the quarter share to be, but their calculations do not follow the formula prescribed in Paragraph 6 of the [agreement incorporated in the] judgment for dissolution of marriage.” Respondent then “suggested” the formula to be applied in order to determine what her quarter share should be as of October 14, 1980, and prayed that the court order the petitioner to pay her $25,145.75.

Following a hearing on the respondent’s petition, the court entered its findings on July 20, 1981, inter alia, that paragraph 6 of the agreement was not ambiguous; that the respondent wife was not entitled to a reduction of mortgage principal during the term of her occupancy through date of closing on the sale of the home in question; that she was responsible for one-half the morgage payments from the date of her vacation of the home to the date the home was sold; and for realty taxes through January 31, 1981. Based on its findings, the court ordered, inter alia, that she receive a balance of $12,282.62 as her one-quarter net equity share.

Because certain other matters raised in the parties’ petitions were reserved and/or continued, the court later ordered, on July 23, 1981, that there was no just reason for delaying the appeal or enforcement of the order, and the respondent timely filed a notice of interlocutory appeal.

Respondent seeks reversal of the court’s findings that she: (1) is not entitled to one-half of the mortgage principal reduction in the amount of $2,713; (2) must pay one-half of the monthly mortgage payments from- October 16, 1980, to May 15, 1981, in the amount of $1,120; and (3) must pay the real estate taxes from October 16, 1980, through January 31, 1981, in the amount of $749. She prays that the cause be remanded with directions that the petitioner pay her the total additional sum of $4,582.

The respondent first argues that the court erred in finding that paragraph 6 of the agreement is unambiguous, contending that the paragraph is susceptible to more than one interpreation; i.e., whether she was entitled to receive reimbursement for one-half the amount of the reduction of the mortgage principal for the premises during the period October 1, 1977, to October 14, 1980, and whether or not she was entitled to receive 25% of the fair market value of the premises at the time she vacated same if the property was not sold at or about the time she vacated. Since the contract is ambiguous, respondent argues, the court must look to evidence of extrinsic facts in order to clarify the intentions of the parties.

Despite its later finding, the record reveals the court initially determined there was ambiguity in the contract, and allowed the parties to testify. Respondent testified her understanding of the contract was that at the time she vacated the premises, whether or not the house was sold, she would receive 25% of the fair market value of the premises, plus an amount equal to one-half the amount the mortgage principal was reduced from Ocober 1, 1977, to the date of the vacation of the premises.

The petitioner, Arthur Arkin, also testified, but he was not queried about his understanding of paragraph 6. He testified that he listed the property with a real estate broker for $180,000 in September 1980; that between that date and the date the house was sold, May 15, 1981, he lowered the listing price of the house from $180,000 to $169,000 and then to $150,000. He testified he did not discuss with the respondent the listing price or the fact of the signing of the real estate contract, nor did he advise her about the closing on May 15, 1981.

Respondent had testified previously, however, that petitioner knew in early August 1980, that she was going to be leaving, and that at the end of August 1980 there was a discussion between petitioner and his attorney, and respondent, her attorney and her fiance, about the house being put up for sale. Although there was no testimony at the hearing, the record reflects the filing on August 18, 1980, of a stipulation between the parties that the premises were to be placed for sale immediately, that the parties were to agree upon a listing price and a real estate broker, and that in all other respects, paragraph 6 of the agreement would be complied with.

After hearing the testimony of the parties, the court concluded that: “[T]he last paragraph of section 6 of the judgment for dissolution is not ambiguous. I think the language is clear and [the] parties have found themselves in that particular paragraph.” After argument, the court also ordered that the parties “equally share the expenses [mortgage payments and real estate taxes] from the time of vacation until closing, May of 1980.”

The petitioner husband contends the court was correct in finding "the contract was not ambiguous, thereby effectively rejecting the respondent wife’s self-serving, subjective testimony as to her interpretation of the agreement which directly contradicted the written terms of the agreement.

Respondent additionally contends that the court erred in refusing to admit two letters which were offered in proof at the hearing and appended to the respondent’s brief. The letters were sent to respondent’s attorney by petitioner’s counsel after the sale of the house, wherein he stated that she was entitled to one-half the mortgage principal reduction for the period October 1, 1977, to May 15, 1981. She argues the letters should have been admitted as extrinsic evidence of the parties’ intentions because the contract was ambiguous, and because a client may be bound by admissions made by his attorney in matters relating to the progress and trial of the cause of action. In support, she cites Bauer v. Saper (1971), 133 Ill. App. 2d 760, and Ellison v. Sinclair Refining Co. (1963), 41 Ill. App. 2d 436. Petitioner counters that since the court found the contract was not ambiguous, it properly excluded the letters because the contract itself affords the only criteria for determining the intentions of the parties, and that offers of settlement are not admissible into evidence as an admission against interest. He cites in support Prewitt v. Hall (1969), 113 Ill. App. 2d 198, Barker v. Bushnell (1874), 75 Ill. 220, and Khatib v. McDonald (1980), 87 Ill. App. 3d 1087.

In interpreting the provisions of a divorce decree, the court seeks to give effect to the apparent intent of the court and the intentions of the parties (In re Estate of Coleman (1979), 77 Ill. App. 3d 397, 399), and the normal rules pertaining to the construction of contracts are applicable. (Sudler v. Sudler (1972), 6 Ill. App. 3d 546, 548.) Thus, the parties’ intentions must be determined from the language of the instrument itself unless it is incomplete or the language is ambiguous, in which case extrinsic evidence will be introduced as an aid to interpretation. (Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105, 114.) Parol evidence is neither necessary nor proper when an agreement is unambiguous. (Potocki v. Potocki (1981), 98 Ill. App. 3d 501, 504.) A contract is ambiguous when the language used is reasonably susceptible to more than one meaning (Schwartz v. Schwartz (1966), 69 Ill. App. 2d 128), and the language is not rendered ambiguous simply because the parties do not agree upon its meaning. White v. White (1978), 62 Ill. App. 3d 375, 379.

The intent of the parties must be determined from the contract as a whole and not from any one clause standing alone. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272.) In the absence of any material, question of fact, whether a contract is ambiguous presents an issue of law (In re Marriage of Adams (1981), 92 Ill. App. 3d 797, 802), so that a reviewing court may independently construe the contract unrestrained by the trial court’s judgment. An- craft Products Co. v. Universal Oil Products Co. (1981), 100 Ill. App. 3d 694.

In our view, the contract is not ambiguous, and the court’s finding in that respect was correct. However, the court further found that respondent was not entitled to a share of the reduction of the mortgage principal. This finding conflicts with the court’s antecedent finding that paragraph 6 is not ambiguous, and is “clear and convincing in its terms and provisions.” The last two sections of paragraph 6 must be construed together. These two sections describe what the husband will pay the wife when she vacates the premises. The payment contemplated as “full settlement of the wife’s property claims” is 25% of the net equity of the premises, plus reimbursement in an amount equal to one-half the reduction of mortgage principal for said premises from October 1, 1977, until the date of vacation. “Net equity” is then defined two different ways. In the first instance, if the wife vacates the premises and the house is not sold (e.g., the husband resumes occupancy, rents the premises, or it remains vacant), she receives 25% of the “difference between the then fair market value of said real estate less the then outstanding balance on the mortgage in connection with same.” In the second instance, if the husband sells the premises “at or about the time the wife vacates same, and should the husband at the time of vacation advise the wife of his intention to sell said real estate, net equity shall be defined as the difference between the sale price and mortgage and the normal selling expenses actually incurred, including title charges, broker’s commission, if any, attorney’s fees and prorations for real estate taxes.” (Emphasis added.)

In our opinion, net equity would not be defined a second time in the judgment except for the express purpose of providing an alternate method of calculating, pursuant to the 25% formula, what amount was to be paid to the wife “in full settlement of the wife’s property claim” in the event the husband sells the real estate rather than retains it. The net equity defined in the instance of a sale of the premises most certainly was meant to be an alternate settlement, “in addition” to which “the wife shall be reimbursed in an amount equal to one-half the reduction of mortgage principal ***.”

This construction of the contract gives full credence to the rule that the intent of the parties must be determined from the contract as a whole and not from any one clause standing alone. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272.) Because the contract is not ambiguous, the court erred by permitting the parties to testify. However, it is apparent respondent’s testimony concerning the reduction of mortgage principal was rejected by the court, since it found she was not entitled to it. Further, respondent’s testimony failed to clarify any potential ambiguity in the agreement. Her testimony, in fact, outrightly contradicted the existence of the two different definitions of net equity set forth in the agreement. In her testimony, she maintained that whether she vacated the premises or whether it was sold, she would be entitled to one-quarter of the amount of the difference between the fair market value — rather than the sale price — at the time she vacated the premises, and the outstanding balance on the mortgage. As petitioner’s counsel candidly noted during the hearing of this cause, he doubted that the parties had anticipated at the time they signed the agreement that it would take seven months to sell the house; nevertheless, he urged that the terms of the agreement were specific and bound the parties despite the untoward condition of the real estate market.

In sum, although the court improperly allowed the parties to testify in view of the fact the contract is not ambiguous, it does not appear the court’s decision was unduly affected by that testimony, and it may be regarded as harmless error. However, the competent evidence before the court (the agreement itself) does not support the court’s finding that respondent was not entitled to one-half the mortgage principal reduction. That amount was clearly meant to be “in addition” to her one-quarter share of whichever definition of “net equity” was applicable. As such, the court’s decision must be reversed.

With regard to the court’s refusal to admit the two letters, if the contract had been determined to be ambiguous, the letters would not only have been admissible, but very relevant to the question of the reimbursement due to her for reduction of mortgage principal. (See, e.g., Hammer v. Sanders (1956), 8 Ill. 2d 414, 421; Ingraham v. Mariner (1901), 194 Ill. 269, 283-84.) Contrary to the petitioner’s argument that the letters were properly excluded on the basis of the general rule that offers of settlement or negotiations therefor are not admissible, no controversy existed between the parties at the time the letters were written (June 1 and 2, 1981) and they could not be characterized as “offers of settlement.” Nevertheless, the letters were properly excluded due to the court’s determination that the contract was not ambiguous, and no reversal is warranted as to that ruling.

Respondent’s final contention is that the court erred in finding that she must pay one-half the mortgage payments for the period after she vacated the premises in October 1980, until the sale thereof in May 1981, and that she must pay the real estate taxes after the date of vacation through January 31, 1981. She points to the first part of paragraph 6 of the property agreement in the judgment for dissolution, which provides:

“The wife shall pay all mortgage, insurance and real estate tax payments for said real .estate which have accrued and are payable on October 1, 1977 until she terminates possession of said real estate ***.” (Emphasis added.)

She contends the court’s findings constituted a modification of the property agreement and that the court was without jurisdiction to make such a modification. She cites In re Marriage of Kekstadt (1980), 85 Ill. App. 3d 952, in support.

In Kekstadt, the parties were divorced and a later supplemental judgment was entered which determined the support, maintenance and property rights of the parties. One year later, the wife petitioned the court “For Instructions and Clarification of Supplemental Judgment.” Upon this petition, the court entered an order which, in effect, modified the property settlement agreement because it awarded the husband one-half the net proceeds from the sale of the marital residence ($25,495.91), rather than one-half the “appraised price” of the residence ($60,000) as set forth in the supplemental judgment concerning property distribution. On appeal, the wife contended the supplemental judgment was ambiguous and that the court retained its jurisdiction to “clarify” the order. The husband argued the judgment was clear and unambiguous; that the “Petition for Clarification” was merely a subterfuge to obtain modification of the judgment. As such, he maintained the court lacked subject matter jurisdiction to modify a decree entered more than 30 days before.

The appellate court agreed that the terms of the supplemental judgment were not ambiguous, and that the court’s purportedly clarifying order amounted to a modification. It then determined the court had lacked subject matter jurisdiction to modify the judgment, citing Waggoner v. Waggoner (1979), 78 Ill. 2d 50, and Lamp v. Lamp (1979), 73 Ill. App. 3d 713. In reversing and remanding for further proceedings consistent with its opinion, the court noted the specific provisions of section 510(a) of the Illinois Marriage and Dissolution of Marriage Act, to-wit:

“[Pjroperty disposition in a decree of dissolution of marriage ‘may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.’ Ill. Rev. Stat. 1977, ch. 40, par. 510(a); English v. English (1979), 72 Ill. App. 3d 736, 393 N.E.2d 18.” In re Marriage of Kekstadt (1980), 85 Ill. App. 3d 952, 956.

The petitioner here does not distinguish Kekstadt, contending the parties below were seeking a declaratory judgment and that it is appropriate for a court to entertain a petition by one of the parties for a declaration of their rights under a property settlement agreement incorporated into a judgment for dissolution of marriage. Roberts v. Roberts (1967), 90 Ill. App. 2d 184.

We find Roberts inapposite. In that case, the wife sought a declaration from the court that certain provisions of the property settlement agreement incorporated as a part of the divorce decree were null and void. The court agreed to consider the question, determining that an actual controversy existed between the parties. In the case at bar, the respondent’s petition was for a rule to show cause why the petitioner should not be held in contempt for failing to tender her the amount provided for in paragraph 6 of the agreement. It is established that a court in a divorce proceeding retains jurisdiction to enforce its decrees. (People ex rel. Kazubowski v. Ray (1971), 48 Ill. 2d 413, 417, cert, denied (1971), 404 U.S. 952, 30 L. Ed. 2d 268, 92 S. Ct. 271.) The court’s order here, however, purportedly entered in enforcement, constituted in our view a modification of the property agreement. Paragraph 6 of the property agreement unambiguously provided that the respondent was to pay the mortgage and real estate taxes on the premises only until she terminated possession, which was in October 1980. The “proration” referred to in the last sentence of paragraph 6 was clearly the proration of real estate taxes which is part of the “normal selling expenses” which would be incurred upon sale of the premises and in no way may be construed to mean a proration of real estate taxes between the husband and wife until the date the premises were sold. Cf. In re Marriage of Adams (1981), 92 Ill. App. 3d 797, 805 (wherein the court affirmed a judgment finding the husband was not responsible for one-half of the expenses incurred in maintaining the former marital residence after the wife had vacated the premises, since the parties had agreed the wife would be solely responsible for same until sale of the home).

Per section 510 of the Illinois Marriage and Dissolution of Marriage Act and Kekstadt, the court below lacked subject matter jurisdiction to enter such a modification. (Ill. Rev. Stat. 1981, ch. 40, par. 510(a); In re Marriage of Kekstadt (1980), 85 Ill. App. 3d 952, 956.) Accordingly, the court’s findings that the respondent owed petitioner for 3V2 months of mortgage payments covering the period after she vacated the premises until the sale in May 1981, and for real estate taxes through January 31, 1981, are hearby reversed.

For the foregoing reasons, the judgment of the circuit court of Lake County is reversed and remanded for entry of an order consistent with this opinion.

Reversed and remanded.

LINDBERG and REINHARD, JJ., concur.


author: JUSTICE LINDBERG JUSTICE VAN DEUSEN,

text:
    DAVID SCHULZ, Plaintiff-Appellee, v. ROCKWELL MANUFACTURING COMPANY, ROCKWELL INTERNATIONAL CORPORATION, Defendant-Appellant.
    Second District
    No. 81 — 474
    Opinion filed July 16, 1982.
    Rehearing denied September 2, 1982.

      VAN DEUSEN, J., dissenting.

      Robert A. Fredrickson, of Reno, Zahm, Folgate, Lindberg and Powell, of Rockford, and Thomas E. Kluczynski, of Epton, Mullin, Segal and Druth, of Chicago, for appellant.
    Bernard P. Reese, Jr., of Reese, Reese and Bagley, of Rockford, for ap-pellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, David Schulz, brought an action for product liability in the circuit court of Winnebago County, asking damages for an injury which he claimed was caused by the unreasonably dangerous condition of a powerized miter box manufactured by defendant, Rockwell Manufacturing. The jury rendered a verdict in favor of the plaintiff in the amount of $400,000. Rockwell appeals, claiming that the trial court erred in denying Rockwell’s motion for a directed verdict; in giving instruction 11(a) proferred by plaintiff; and in failing to grant Rockwell’s motion for a new trial on grounds of juror prejudice. The facts relevant to our disposition are as follows.

Plaintiff brought a claim under a product liability theory seeking damages for an injury he sustained while operating a powerized miter box manufactured by the defendant. At the time he sustained his injury, Schulz was using the powerized miter box to cut lengths of wood to be used in window frames. In order to do this, Schulz placed the wood on the table and with his right hand brought the miter box’s rotating blade down through the piece of wood. The blade is activated by use of a trigger located on a pistol-grip handle. Schulz had cut about 200 pieces, when he caught his right hand on the blade, severing his thumb and two fingers. Plaintiff claimed at trial that the saw portion of the miter box was defective in design and unreasonably dangerous because it did not have a wrap-around blade guard and was .equipped with a manual brake instead of an automatic brake.

After the close of evidence, the judge held a jury instruction conference. Over defendant’s objections, the judge agreed to give plaintiff’s instruction 11(a) to the jury.

The jurors were instructed and deliberated for approximately two hours. On November 5, 1980, the jury returned a verdict in favor of plaintiff in the amount of $400,000. On December 3, 1980, the attorney for defendant learned that the husband of one of the jurors, Ellen Bowers, had, in 1979, applied for employment at MGD Goss Printing, a division of Rockwell. He later filed a lawsuit against Rockwell under the Illinois Fair Employment Practices Act. On December 5, 1980, it was learned that another juror, Ed Benning, had been fired by Goss Printing in 1970. Defendant filed supplemental post-trial motions based upon these facts seeking an evidentiary hearing and/or a new trial due to the alleged prejudice of these jurors.

In support of these motions, defendant presented affidavits concerning the employment record of the two men and the affidavit of one member of the jury. Janet Liskey, the employee relations representative for Rockwell, stated that Benning’s termination report indicated that Rockwell was dissatisfied with his “effectiveness, attitude, and lack of respect for the work force and his fellow superiors.” In a separate affidavit, Ms. Liskey stated that Steve Bowers was turned down for employment at Rockwell due to a back condition, that Mr. Bowers subsequently filed a charge against Rockwell with the IFEPC and that the charge was eventually resolved in favor of Rockwell. Ms. Liskey also testified by affidavit that Steve Bowers had listed the name of his wife as Ellen Bowers.

Marie A. Mayfield, one of the jurors, testified by affidavit that the attorney for Rockwell had asked each of the jurors in her group of four (which included Mr. Benning), if they had ever worked for Rockwell or if they had any contact or connection with Rockwell. She testified that all of the jurors in her group of four answered no to that question. She also testified that during deliberations Mr. Benning had offered the opinion that the plaintiff was entitled to an award of $2,000,000, and that plaintiff’s injury would make it difficult for him to find other employment.

The court denied plaintiff’s post-trial motions and also denied a motion by the plaintiff seeking pre-judgment interest. The defendant appeals, and plaintiff cross-appeals.

During trial the defendant moved the court to grant a directed verdict on grounds that no evidence had been introduced tending to show that it was reasonably foreseeable that the plaintiff would forego the use of a safety feature built into the machine in question. The testimony adduced at trial indicates that the miter box was equipped with a manual coasting brake. The use of this brake would have, in all likelihood, prevented the injury complained of here. Plaintiff testified that at the time of the accident he was not using the coasting brake.

Expert testimony indicated that the design of the coasting brake was such that it had to be operated by applying pressure with the thumb. The firmer the pressure, the more quickly the blade would stop. The expert testified that a fair degree of pressure was needed to stop the blade and that this would cause the operator’s hand to become fatigued over the course of a work day. He further testified that it was predictable that the operator would not, under these circumstances, use the safety device. We find that this testimony was sufficient to allow the matter to go to the jury as the trial judge did in this case.

A directed verdict should be entered only where it appears that “all of the evidence, when viewed in an aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on the evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.

In essence, the defendant’s motion for directed verdict invoked the doctrine of misuse. It is defendant’s contention that the plaintiff’s failure to utilize the thumb brake was the proximate cause of his injury and that the miter box provided, at most, a condition which allowed but did not cause that injury.

Illinois law is clear that the conduct of an operator of machinery is a defense to a product liability action only where it is shown that such conduct amounts to a misuse which was not reasonably foreseeable by the manufacturer. (Anderson v. Hyster Co. (1979), 74 Ill. 2d 364; Derrick v. Yoder Co. (1980), 88 Ill. App. 3d 864, 410 N.E.2d 1030.) In the absence of such proof, the causal connection between a defective machine and the injury remains unbroken. (Lewis v. Stran Steel Corp. (1974), 57 Ill. 2d 94.) Even a showing that plaintiff used the machine incorrectly or carelessly does not bar recovery where that use is reasonably foreseeable by the manufacturer. Lancaster v. Jeffrey Galion, Inc. (1979), 77 Ill. App. 3d 819, 396 N.E.2d 648.

Foreseeability is normally a question for the finder of fact. (DeArmond v. Hoover Ball & Bearing (1980), 86 Ill. App. 3d 1066, 408 N.E.2d 771.) While a manufacturer is not expected to foresee every possibility which might conceivably occur, he is held to a duty to foresee those uses which are objectively reasonable to expect. (Winnett v. Winnett (1974), 57 Ill. 2d 7; Barr v. Rivinius, Inc. (1978), 58 Ill. App. 3d 121, 373 N.E.2d 1063.) In Anderson v. Hyster Co., the supreme court addressed a situation similar to the one at bar. In that case a defendant argued that plaintiff’s injury had resulted solely from the failure of a forklift operator to activate a foot brake. The court held that the expert testimony adduced at trial was sufficient to support a jury verdict for the plaintiff. That testimony included opinions to the effect that although the forklift was capable of being operated safely, various human factors made it likely that the operators would become confused.

The case of Sanchez v. Black Brothers Co. (1981), 98 Ill. App. 3d 264, 423 N.E.2d 1309, relied upon by defendant, held only that evidence should be admitted on the issue of possible misuse and did not set a standard for directed verdict in such a case or involve an assessment of the sufficiency of the evidence presented on this point. Nor does Flores v. U.S. Industries, Inc. (1980), 81 Ill. App. 3d 944, 401 N.E.2d 979, mandate reversal in this case. In upholding the trial court’s order granting a directed verdict to defendant, the appellate court in that case commented on what it considered to be insufficient expert testimony. In this case, however, the record contains sufficient testimony on the point of foreseeability to create a question of fact for the jury. The trial court correctly denied defendant’s motion for a directed verdict.

Defendant also appeals on the ground that plaintiff’s instruction 11(a) should not have been given to the jury. Defendant contends that this instruction is overly broad and vague in its description of the alleged unreasonably dangerous aspects of the product. The instruction reads, in its entirety:

“The plaintiff claims that he was injured while using the electric miter box and there existed in the electric miter box at the time it left control of the defendant a condition which made the electric miter box unreasonably dangerous in one or more of the following respects:
A. There was a failure to design the machine in such a manner as to avoid or minimize the risks to the users of said machine.
B. There was a failure to provide necessary safety features on said machine.
C. That the defendant knew or should have known the potential hazards of the use of the machine in its present condition by an operator and should have made adequate provision to protect the operator in that regard and failed to do so.
The plaintiff claims that one or more of the foregoing was a proximate cause of his injuries.
The defendant denies that any of the claimed conditions existed in the electric miter box at the time the machine left its control; denies that any claimed condition of the electric miter box made the machine unreasonably dangerous; denies that any claimed condition of the electric miter box was a proximate cause of the plaintiff’s injuries; and
The defendant further denies that plaintiff was injured or sustained damages to the extent claimed.”

Instruction 11(a) is a summary of the pleadings filed and the issues raised by both parties in this case. Such an instruction is proper so long as it is succinctly stated without undue repetition or undue emphasis. (Signa v. Alluri (1953), 351 Ill. App. 11, 113 N.E.2d 475.) In Signa, the appellate court held that the practice of reading the entire complaint as an instruction to the jury constituted prejudicial error. The court noted that the sheer length of such an instruction could confuse a jury, but placed even more emphasis on the inequity of putting this one-sided version of a lawsuit into the mouth of the trial court.

In Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, the supreme court commented on such an “issue” instruction which it found to be improper. Emphasizing the need, in such an instruction, for conciseness and the absence of repetition the court noted:

“The issue instruction in this case contained more than 700 words of direct quotation from the plaintiff’s complaint. In that instruction each of the phrases ‘negligently and carelessly’ and ‘with utter indifference to or conscious disregard for’ was repeated eight times in describing the conduct of the defendant. This instruction was improper.” 61 Ill. 2d 31, 38.

Unlike the instruction discussed in Mattyasovszky the text of instruction 11(a) is a fair summary of the pleadings. It is not overly long, containing just over 200 words. Further, the defendant makes no reference to, nor did we discover, any point in the instruction which misconstrues or overemphasizes either set of pleadings.

A similar case was addressed by the appellate court in Gallee v. Sears Roebuck & Co. (1978), 58 Ill. App. 3d 501, 374 N.E.2d 831. There, the court upheld an instruction which read that the plaintiff claimed “he was using [a] ladder in a manner usual and customary and in a manner which was reasonably forseeable by the defendants.” (58 Ill. App. 3d 501, 502, 374 N.E.2d 831, 833.) Commenting that the instruction did no more than inform the jury of plaintiff’s claim and the defendant’s response in a neutral tone, the court found no error.

Darby v. Checker Co. (1972), 6 Ill. App. 3d 188, 285 N.E.2d 217, is offered by defendant as a case in which the appellate court reversed on the basis that an instruction given was overly broad. However, careful reading of that case indicates that the court found prejudicial error in the giving of an instruction which assumed a fact in evidence when no evidence had actually been adduced on that point. The trial court did not err in giving plaintiff’s preferred instruction 11(a) in the case at bar.

Upon ascertaining that two of the 12 jurors sitting in this case had had some contact with Goss Printing, a division of Rockwell International, defendant moved the court alternatively to allow an evi-dentiary hearing concerning the alleged jury improprieties and for a new trial. The defendant submitted affidavits including one from a member of the jury, in support of this motion. Plaintiff submitted no counteraffidavits. During arguments on the motion, the trial judge asked for briefs on the issues of how a record of the voir dire could be reconstructed and under what circumstances a jury may be impeached. Eventually, the court denied defendant’s motion for an evi-dentiary hearing and for a new trial. It is defendant’s contention that the court erred in refusing to conduct a hearing and to consider the submitted affidavits and further erred in its failure to grant a new trial.

Plaintiff, in his brief, raises a question as to whether the affidavits submitted by Rockwell can properly be considered by this court in assessing the need for a new trial on account of possible juror prejudice. Plaintiff cites Supreme Court Rule 323(c) as the only method by which the events of the voir dire in this case may be reconstructed for the purposes of review. Rule 323(c) provides that:

“If no verbatim transcript of the evidence of proceedings is obtainable, the appellant may prepare a proposed report of proceedings from the best available sources, including recollection. It shall be served within 14 days after notice of appeal is filed. Within 28 days after the notice of appeal is filed, any other party may serve proposed amendments or his proposed report of proceedings. Within 7 days thereafter, the appellant shall, upon notice, present the proposed report or reports, and any proposed amendments to the trial court for settlement and approval. The court, holding hearings if necessary, shall promptly settle, certify, and order filed an accurate report of proceedings. Absent stipulation, only the report of proceedings so certified shall be included in the record on appeal.” Ill. Rev. Stat. 1979, ch. 110A, par. 323(c).

It is defendant’s contention that the trial court’s refusal to grant an evidentiary hearing and its denial of subpoenas and discovery motions work to preclude the possibility of compiling such a bystander record. We agree. The dissent comments that there is insufficient evidence in the record to overcome the presumption of correctness which attaches to a trial court’s decision. However, any deficiency in this record is attributable to the trial court’s refusal to grant discovery or hold further hearings. We do not believe that the discretion vested in a trial court permits it to convert a presumption of correctness into an impenetrable cloak of infallibility. We are reluctant to deny review where a trial court by its own order has created an inadequate record.

The defendant further argues that the case law establishes that an appellate court may consider affidavits in lieu of a bystander record where an issue of juror prejudice is involved.

Our supreme court has reviewed allegations of prejudicial false testimony given during voir dire without recourse to either a verbatim transcript or a Rule 323 bystander report on two occasions. In Pekelder v. Edgewater Automotive Co. (1977), 68 Ill. 2d 136, the supreme court affirmed a trial court’s order granting a new trial. The court relied on the trial court’s recollection that it had asked each prospective juror whether he or she had any pending lawsuits and the juror’s testimony at a post-trial hearing to the effect that at the time of the trial he was a party to a lawsuit. Likewise, in Department of Public Works & Buildings v. Christensen (1962), 25 Ill. 2d 273, the court was without a verbatim transcript. The court noted that although the trial judge stated that he had no recollection of contents of voir dire, he accepted counsel’s statement that each juror had been asked whether he had dealings with the State of Illinois. The court noted that an affirmative answer to such a question would not have disqualified a juror and declined, in the absence of a more specific showing or perjury or prejudice to reverse the trial court’s denial of a new trial. We note that Christensen predates Rule 323(c) and its predecessor, former Rule 36 — 1(c) (Ill. Rev. Stat. 1965, ch. 110, par. 101.36(1)(c)). However, these rules served merely to codify the common law requirement, and so this case is of precedential value. See Comments of the Illinois Supreme Court Rules Committee to Rule 36-1 (53 Ill. Bar J. 18 (1964)).

Plaintiff, in urging that a Rule 323 report is indispensable to review of this case, relies heavily on this court’s opinion in Hehir v. Bowers (1980), 85 Ill. App. 3d 625, 407 N.E.2d 149. In that case this court held that it could not determine whether a juror had lied in the absence of a transcription or “any substitute for a report of proceedings.” (85 Ill. App. 3d 625, 629, 407 N.E.2d 149, 152.) The opinion makes no reference to Rule 323(c) and thus implicitly admits, as do Pekelder and Christensen of other methods of recreating the voir dire. Here, the defendant has provided an affidavit of a juror who claims to recall the question regarding Goss Printing as well as affidavits substantiating the interested status of jurors Benning and Bower. Defendant’s affidavits were the only documents submitted to the "court.

In Pekelder, discussed earlier, the supreme court promulgated a two-part standard for the granting of a new trial due to false statements made by jurors during voir dire. A new trial is required if it is established (1) that a juror answered falsely on voir dire, and (2) that prejudice resulted therefrom. Both part of the Pekelder test appeared to have been met in this case. Further, if true, the affidavits presented by defendant give evidence of a situation with a much more powerful prejudicial potential than the fact situations in the case upon which plaintiff relies in opposing the motion for a new trial. For instance, in Pekelder the court upheld a court order granting a new trial where a juror had lied about the fact that he was a party to a lawsuit. In Christensen, a false answer was given in response to a question as to whether or not the juror had had “dealings with the State of Illinois.” In Kuzminski v. Waser (1942), 314 Ill. App. 438, 41 N.E.2d 1008, the juror answered falsely that she had not been involved in any auto collisions. The facts alleged here are strikingly different. The affidavits presented by defendant suggest that two of the 12 jurors were pointedly biased against Rockwell in particular. Further, it seems that one of these jurors played a particularly active role in the jury deliberations. The factual allegations contained in these affidavits must be accepted as true in the absence of any counteraffi-davits contradicting them. (Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 396 N.E.2d 34; People v. Mickow (1978), 58 Ill. App. 3d 780, 374 N.E.2d 1081.) Nothing in the record before us supports the dissent’s hypothesis that the trial court was relying on his own personal recollection of voir dire to contradict those affidavits.

Accordingly, we remand for a new trial due to apparent prejudice on the part of two jurors in the original trial.

In his cross-appeal, plaintiff contends that the trial court erred in denying his post-trial motion for prejudgment interest dating back to the time of his injury. Illinois law provides for the recovery of prejudgment interest in a tort action based upon fraud, trespass, or conversion, where there has been an unreasonable and vexatious delay of payment due. The Illinois state courts have not ruled on the availability of prejudgment interests in personal injury actions. However, the Court of Appeals for the Seventh Circuit, ruling in a wrongful death action, interpreted Illinois law as allowing prejudgment interest only where called for by statute or by agreement of the parties. (In re Aircrash Disaster Near Chicago (7th Cir. 1981), 644 F.2d 594.) The relevant statute is the Illinois Interest Act (Ill. Rev. Stat. 1979, ch. 74, par. 1 et seq.), which provides: “Creditors shall be allowed to receive [interest] at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received through the use of another and retained without the owner’s consent; and on money withheld by unreasonable and vexatious delay of payment.” Ill. Rev. Stat. 1979, ch. 74, par. 2.

The only section of the statute conceivably applicable to the case at bar is section 2, which allows interest in the event of vexatious and unreasonable delay of payment due. It is clear that under Illinois law the conduct of litigation does not constitute such an unreasonable or vexatious delay. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069.) The trial court was correct in its denial of plaintiff’s motion for prejudgment interest.

For the foregoing reasons the order of the circuit court of Winnebago County is affirmed in part, reversed in part, and remanded.

Affirmed in part, reversed in part and remanded.

HOPF, J., concurring.

JUSTICE VAN DEUSEN,

dissenting:

The majority’s opinion sets aside a judgment in the amount of $400,000 entered in favor of the plaintiff on a jury verdict, and remands the matter for a new trial on the sole ground that there was apparent prejudice on the part of two jurors, namely Ellen M. Bowers and Edward Benning. In his order denying defendant’s post-trial motion, the trial court specifically rejected the defendant’s contention that juror prejudice merited the granting of a new trial.

As the majority opinion points out, the supreme court has established a two-part standard for granting a new trial due to jurors’ false testimony dining voir dire. A motion for a new trial should be denied unless it is established (1) that a juror answered falsely on voir dire and (2) that prejudice resulted therefrom. (Pekelder v. Edgewater Automotive Co. (1977), 68 Ill. 2d 136, 139.) Implicit in the majority’s opinion reversing the trial court’s denial of the post-trial motion is a determination by this court that the trial judge’s denial of the motion was an abuse of his discretion. I find no such abuse of discretion on the part of the trial court.

Defendant did not raise the issue of juror prejudice in its original post-trial motion, but did charge prejudice on the part of juror, Ellen M. Bowers, in its first supplement to its post-trial motion, and charged prejudice on the part of juror, Edward Benning, in its second supplement to its post-trial motion.

In the two supplements, the defendant asserts, in substance, that Ellen M. Bowers and Edward Benning testified falsely during voir dire in that they falsely denied any connection with Rockwell International Corporation or involvement in any lawsuits with Rockwell International or its subsidiaries.

On appeal, the defendant has failed to file a transcript, a factual stipulation, or a bystanders report of the voir dire proceedings as required by Supreme Court Rule 323 (73 Ill. 2d R. 323). Defendant has instead attempted to establish a right to a new trial by a set of affidavits.

With reference to the juror, Ellen M. Bowers, defendant submitted a single affidavit in support of its motion. It established that in 1977 the husband of Ellen M. Bowers had applied for employment at MGD Graphic Systems Group, that the rejection of his application prompted him to file a lawsuit against MGD Graphic Systems, a division of Rockwell International. No affidavit or other evidence was submitted to the trial court concerning the nature of any questions put to this juror or of her answers to any questions during the voir dire.

Other affidavits established that the other juror, Edward Benning, commenced working for MGD Graphic Systems in 1960; that North American Rockwell, now known as Rockwell International Corporation, took over MGD Graphic Systems in late 1968 or early 1969; and that Edward Benning’s employment terminated with MGD Graphic Systems in February 1970 because of his attitude and lack of respect toward fellow workers. The affidavits also asserted that Benning was aware of the acquisition of MGD Graphic Systems by Rockwell International.

An affidavit of Charles Banks, president of Rockwell International Corporation Credit Corporation, established that Banks had interviewed several jurors in the case, including Benning. In the affidavit, Banks stated that during the interview, Benning indicated that he did not like Rockwell tools; that he had formerly worked for Rockwell as a foreman; that he questioned the credibility of Rockwell witnesses; and that he thought the verdict was too low. According to the affidavits, Edward Benning’s last contact with MGD Graphic Systems was some 11 years prior to the trial in question.

The defendant filed one more affidavit in support of its contention that Edward Benning answered falsely in voir dire. This fourth affidavit of a fellow juror, Maria A. Mayfield, was taken on February 13, 1981, three months after the trial. In her affidavit, Maria Mayfield stated that during the voir dire examination of the four jurors in her group, which included Edward Benning, the attorney for Rockwell International asked each of these four prospective jurors if any of them had ever worked for Rockwell International Corporation or if they ever had any contacts or connection with Rockwell International Corporation and that all of the jurors in that group answered in the negative. The affidavit of Maria Mayfield also indicated that during jury deliberations, Benning had offered the opinion that plaintiff should be compensated in excess of $2 million and that if plaintiff were to lose his job, his disability would make it very difficult to obtain other employment.

Only one affidavit, that of Maria Mayfield, refers to the voir dire examination. Other than this affidavit this court of review has no other record of the proceedings at the voir dire or during jury deliberations. It is a basic principle of appellate practice that a party who prosecutes on appeal has the duty of presenting to the reviewing court everything necessary to decide the issue on appeal. Marshall E. Winokur, Ltd. v. Shane (1980), 89 Ill. App. 3d 551, 552; Angel v. Angelos (1976), 35 Ill. App. 3d 905, 907.

While this court has not had an opportunity to examine a report of the voir dire proceedings, the trial judge conducted and supervised the voir dire of Benning and Bowers. When ruling on the motion for the new trial, he may well have remembered the questions put to the jurors on this subject matter and their answers thereto. Because he was personally present during the voir dire, he would not have to accept the affidavit of the juror Mayfield as the unrebutted truth, particularly in view of the fact that it was taken some three months after trial and following an ex parte communication with the defendant’s representatives. See Chalmers v. City of Chicago (1982), 88 Ill. 2d 532, 540-41.

The defendant’s failure to present a proper record of the voir dire makes it relatively impossible for this court to determine if the trial court abused its discretion in denying the motion, and where the record is lacking, a reviewing court will indulge every presumption favorable to the judgment or order from which the party appeals. Sch-ranz v. I. L. Grossman, Inc. (1980), 90 Ill. App. 3d 507, 511.

Furthermore, even assuming that the defendant’s affidavits were true and accurate, the defendant has still failed to present sufficient evidence upon which it can be concluded that the trial court abused its discretion in denying the defendant’s post-trial motion. Edward Benning never did work directly for Rockwell International Corporation. Therefore, when defendant’s counsel asked Benning whether he had any contact with Rockwell International, Benning may not have realized that his employment by MGD Graphic Systems some 11 years earlier might be considered as sufficient contact to require an affirmative response. Additionally, Benning’s opinion, given during jury deliberations, concerning the size of the verdict that should be rendered in favor of the plaintiff, and his statement that in view of the plaintiff’s injury, plaintiff would have difficulty securing employment if he lost his job, could not be considered as any real indication of prejudice which may have affected the verdict reached by the jury. Under these circumstances, the trial court could have properly concluded that Benning did not give false testimony at the voir dire, and secondly, that even if the answer could be considered false, no prejudice resulted therefrom.

I would affirm the trial court’s judgment in favor of the plaintiff.


author: JUSTICE RIZZI

text:
    DON CARRILLO, Plaintiff-Appellant, v. JAM PRODUCTIONS, LTD., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80 — 2183
    Opinion filed June 23, 1982.
    Rehearing denied August 24, 1982.

      Donald J. Brooks, Ltd., Jonas, Schey & Associates, and Roger E Mari-tote, Ltd., and William J. Harte, Ltd., all of Chicago (William J. Harte, of counsel), for appellant.
    Rudnick & Wolfe, of Chicago, for appellee Jam Productions, Ltd.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Don Carrillo, filed a class action for breach of contract against defendants, Jam Products, Ltd., and Frank Fried. Plaintiff appeals from a judgment on the pleadings as to count I of the complaint. We affirm in part, reverse in part and remand.

Plaintiff purports to represent the approximately 70,000 people who purchased tickets to view via closed circuit television the Sugar Ray Leonard-Roberto Duran fight held in Montreal on June 20, 1980. Generally, plaintiff alleges that defendants breached their promise to provide a reasonable visual and audible transmission of the fight. Specifically, plaintiff alleges that the color reception was not discernible, that the reception was so dark and unclear that the identity of the fighters could not be determined, that the activity on the screen could not be distinguished or clearly observed, and that the audio was disjointed, garbled, unclear and intermittent. Plaintiff further alleges on information and belief that defendants formed a limited partnership or other legal entity to conduct all business activities related to the event and that this entity would not engage in any other business activity.

In count I of the complaint, plaintiff seeks a preliminary injunction restraining defendants from disposing of the proceeds from the ticket sales. In count II, plaintiff seeks damages.

Jam Productions filed an answer and counterclaim. It also filed a motion for judgment on the pleadings as to count I, which was granted. When the trial court entered judgment on the pleadings, it ruled that the suit could not be maintained as a class action.

We first address the issue of whether this suit may be maintained as a class action. In order for a suit to be maintained as a class action, the following prerequisites must be met: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of fact or law common to the class which predominate over any questions affecting only individual members; (3) the representative parties will fairly and adequately protect the interest of the class; and (4) the class action is an appropriate method for the fair and efficient adjudication of the controversy. Ill. Rev. Stat. 1979, ch. 110, par. 57.2.

In regard to the first prerequisite, plaintiff alleges that approximately 70,000 tickets were sold by defendant to members of the class. We conclude that the size of the class manifests that joinder of all members would be impracticable and that requiring multiple separate claims would be an imposition on the members of the class as well as the courts. See Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 337, 371 N.E.2d 634, 642-43.

The main dispute over permitting this case to proceed as a class action appears to center on the second prerequisite, i.e., that questions of law or fact common to the class must predominate over questions affecting only individual members. Defendant argues that since there were multiple locations where the fight was telecast, there could be no objective measure of clarity or general quality, and therefore questions regarding individual class members predominate. We disagree.

This case involves a series of essentially identical transactions by approximately 70,000 people which arose out of defendant’s promotion, advertising and sale of tickets for the closed circuit telecast of the Leonard-Duran fight. The predominant issues concern the express and implied promises made by defendant to all patrons regarding the type and quality of telecast and whether the telecast was reasonably in conformity with those promises, not whether the telecast fulfilled each class member’s individual expectations. Thus, successful adjudication of plaintiff’s claim will establish a right of recovery in other class members. See Society of St. Francis v. Dulman (1981), 98 Ill. App. 3d 16,18, 424 N.E.2d 59, 61.

Defendant further contends that individual questions predominate because the telecast was viewed at several locations and the quality of the telecast may have varied from place to place. This argument, however, is insufficient to defeat the class action. Under the class action statute, “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues, or divided into subclasses and each sub-class treated as a class.” (Ill. Rev. Stat. 1979, ch. 110, par. 57.3(b).) The determination of whether the class should be subdivided should be made by the trial court at a preliminary hearing. (Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 17, 428 N.E.2d 478, 484, cert, granted (1982), 456 U.S. 914, 72 L. Ed. 2d 173, 102 S. Ct. 1767.) Therefore, upon remand, the trial court should determine the feasibility of subdividing the class.

The third prerequisite for maintaining a class action concerns the ability of the representative parties to fairly and adequately protect the interest of the class. Thus, the plaintiff’s interest must not be antithetical to that of other class members, and the suit must not be a collusive action. Also, the plaintiff’s attorney “ ‘must be qualified, experienced and generally able to conduct the proposed litigation.’ ” (Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 14, 428 N.E.2d 478, 482; Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 338-39, 371 N.E.2d 634, 643.) Here, there is nothing to suggest that plaintiff’s claim is antithetical to the class members’ claims or that the suit was brought as a collusive action. Also, the record demonstrates that plaintiff’s attorney is qualified, experienced and generally able to conduct the proposed litigation. Thus, based on the record before us, it appears that plaintiff and his attorney have the ability to fairly and adequately represent and protect the interest of the class.

Finally, we believe that the fourth prerequisite for maintaining a class action, which requires that the class action be an appropriate method for the fair and efficient adjudication of the controversy, is present here. Since there are numerous class members with substantially similar claims, a class action will conserve time, effort and expense* (See Society of St. Francis v. Dulman (1981), 98 Ill. App. 3d 16, 19, 424 N.E.2d 59, 61-62.) Accordingly, we conclude that the trial court erred in refusing to permit this case to proceed as a class action.

In view of our conclusion, we address the question which arose at oral argument as to whether or not Indiana residents may be included in the class. The question of whether or not an Illinois plaintiff may maintain a multistate class action in Illinois was raised in Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 478, cert. granted (1982), 456 U.S. 914, 72 L. Ed. 2d 173, 102 S. Ct. 1767. In that case, the court upheld the right of the Illinois plaintiff to maintain the multistate class action. The court determined that such actions are constitutional if plaintiff adequately represents the nonresident parties and if notice can insure the class of its constitutional opportunity to be heard and protect each member’s option to choose not to participate. Miner v. Gillette Co. (1981), 87 Ill. 2d 7,14, 428 N.E.2d 478, 482.

In the present case, we conclude the record sufficiently demonstrates that the plaintiff can properly and adequately represent the Indiana residents provided that they are given sufficient notice which includes information regarding their right to be excluded from the class and the procedure to be used in seeking exclusion. If questions regarding Indiana law are found to predominate as to Indiana class members, then the trial court should determine at a preliminary hearing whether a subclass composed of Indiana residents should be made. See Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 17-18, 428 N.E.2d 478, 484.

We next address plaintiff’s contention that the trial court erred in denying the entry of a preliminary injunction to prevent defendant from disbursing the proceeds of the ticket sales. We conclude that plaintiff’s contention is untenable.

In order for the court to grant a preliminary injunction, the plaintiff must establish that (1) he possesses a clearly ascertainable right which needs protection; (2) he will suffer irreparable harm without the injunction; (3) there is no adequate remedy at law for the injury; and (4) he is likely to be successful on the merits of his action. In addition, the court must conclude that the need for temporary relief outweighs any possible injury defendant might suffer by its issuance. (Cross Wood Products, Inc. v. Suter (1981), 97 Ill. App. 3d 282, 284, 422 N.E.2d 953, 956.) Injunctive relief is such an extraordinary remedy that the plaintiff must plead facts which clearly establish his right to this relief. Consequently, allegations consisting of mere opinion, conclusion or belief are not sufficient to support a preliminary injunction. (Allstate Amusement Co. v. Pasinato (1981), 96 Ill. App. 3d 306, 308, 421 N.E.2d 374, 375; Betts v. Department of Revenue (1979), 78 Ill. App. 3d 102, 108, 396 N.E.2d 1051, 1154.) In this regard, it has long been recognized that allegations made only upon information and belief are insufficient to support a preliminary injunction. Phelan v. Wright (1964), 54 Ill. App. 2d 178, 181-82, 203 N.E.2d 587, 589; Tri Square Realty Corp. v. Bressler (1958), 17 Ill. App. 2d 336, 339, 149 N.E.2d 798, 800; Hope v. Hope (1953), 350 Ill. App. 190, 194, 112 N.E.2d 495, 497; Fox v. Fox Valley Trotting Club, Inc. (1953), 349 Ill. App. 132, 137, 110 N.E.2d 84, 86; Will v. City of Zion (1922), 225 Ill. App. 179,184.

Here, the allegations in the complaint to support the issuance of a preliminary injunction are as follows:

“11. Upon information and belief, the Defendants formed a limited partnership or other legal entity to conduct all the business activities in connection with the event and said limited partnership or other legal entity will engage in no other business activity.
12. Plaintiff and the class, therefore, have no adequate remedy at law since the limited partnership or other legal entity formed by the Defendants will most likely have distributed to third parties all monies received by it long prior to the time of the Plaintiff and the class obtaining the judgment for damages against it and the judgment will be, for all intents and purposes, an empty judgment incapable of being satisfied. Plaintiff and the class would thus be irreparably injured because recovery of their damages would be denied them forever. There is a reasonable likelihood that the Plaintiff and. the class will prevail on the merits because the deficiencies in the audio and visual transmission of the event received widespread notoriety and publicity, is generally known by the public to have occurred and literally thousands of first-hand witnesses are available to testify on Plaintiff’s behalf.”

Plainly, these allegations are an insufficient basis for the issuance of a preliminary injunction. The allegations in paragraph 11 of the complaint are made upon information and belief. In his affidavit verifying the complaint, plaintiff specifically excludes “those matters alleged upon information and belief.” The allegations in paragraph 12 consist only of conclusions and opinions. In the absence of material allegations sworn to by plaintiff, a preliminary injunction should not be issued. (See Will v. City of Zion (1922), 225 Ill. App. 179, 184.) Therefore, the trial court did not err in denying plaintiff’s request for a preliminary injunction.

Accordingly, the ruling of the trial court that the case cannot be maintained as a class action is reversed, and the case is remanded for further proceedings consistent with what is stated in this opinion. The judgment on the pleadings as to count I with respect to the denial of a preliminary injunction is affirmed.

Affirmed in part, reversed in part and remanded.

WHITE, P. J., and McNAMARA, J., concur.

      It appears that defendant Fried was never served with summons, and he is not involved in this appeal.


author: JUSTICE GOLDBERG

text:
    LOIS J. LAUFENBERG et al., Plaintiffs-Appellants, v. DIANE H. GOLAB et al., Defendants-Appellees.
    First District (1st Division)
    No. 81 — 1316
    Opinion filed July 19, 1982.
    Shearer, Blood, Agrella, Boose & Balog, of St. Charles (Richard H. Ba-log, of counsel), for appellants.
    Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Harry Ray Chiles, Jr., and Henry J. Marquard, of counsel), for appellee Maywood Park Trotting Association.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Lois J. Laufenberg (plaintiff) and Melvin Laufenberg, her husband, brought suit against Diane H. Golab, Maywood Park Trotting Association (defendant), Village of Maywood, Proviso Township and County of Cook. Plaintiff was injured by an automobile driven by Diane H. Golab while plaintiff was crossing a public street in the Village of Maywood, in Proviso Township, County of Cook.

Plaintiff’s original complaint consisted of six counts. This appeal, by plaintiff and her husband, is concerned only with counts V and VI, which contain the allegations against defendant. Plaintiff filed first amended counts V and VI. The trial court sustained a motion of defendant to dismiss these counts under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45), on the theory that plaintiff failed to allege facts which would impose a legal duty upon defendant. Ill. Rev. Stat. 1979, ch. 110, par. 45.

Amended count VI sets out the claim of plaintiff’s husband for loss of consortium. Amended count V alleges that on March 6, 1980, plaintiff walked in an easterly direction across 5th Avenue at its intersection with the entrance to the stable area maintained by defendant. At that time Diane H. Golab was operating her motor vehicle in a northerly direction upon 5th Avenue, a duly dedicated public street. The defendant conducts harness-horse races at that location “and does solicit and encourage individuals to race their horses at Maywood Park.” Defendant “did solicit and encourage plaintiffs to race” their horses and knew that plaintiff used stables for her horses on the west side of 5th Avenue.

The amended complaint alleges defendant “had a duty to provide safe access across said 5th Avenue from the stable areas located on either side of 5th Avenue.” The defendant “negligently and carelessly failed to provide adequate and safe conveyance across the aforesaid 5th Avenue.” Plaintiff was struck and injured by the Golab automobile without plaintiff’s fault. The complaint as amended also contains allegations to the effect that defendant failed to exercise reasonable diligence, failed to have signals in the vicinity of the intersection, failed to furnish adequate crossing guards and failed to maintain a crosswalk.

Authority need hardly be cited to the effect that the complaint for damages resulting from the negligence must necessarily allege “the existence of a duty owed by the defendant to the plaintiff ***.” (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374, 308 N.E.2d 617, citing Mieher v. Brown (1973), 54 Ill. 2d 539, 541, 301 N.E.2d 307.) In addition, the existence of duty, “the legal obligation imposed upon one for the benefit of another, is a question of law to be determined by the court.” Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 555, 328 N.E.2d 538, and cases there cited. '

Consequently, our first inquiry is whether as a matter of law defendant owed plaintiff a duty to take steps to prevent injury to plaintiff. Making a general examination of this question, first it is difficult to find the existence of a legal duty. Clearly, the mishap occurred on a public street over which the defendant had no legal authority. Also, the mishap did not result from the condition of the street itself. However, we will examine the authorities upon which plaintiff relies to establish the existence of a legal duty.

In Chapman v. Foggy (1978), 59 Ill. App. 3d 552, 375 N.E.2d 865, plaintiff was a patron of a skating rink. While on the premises owned by defendant, plaintiff placed her arm upon a guardrail and was injured by a wooden splinter. (59 Ill. App. 3d 552, 554.) Clearly, plaintiff there received her injury directly from the condition of the premises owned and maintained by defendant. In the case at bar plaintiff was injured on a public street and not by virtue of any inherent defect of the street itself.

In McGourty v. Chiapetti (1962), 38 Ill. App. 2d 165, 186 N.E.2d 102, appeal denied (1963), 26 Ill. 2d 627, plaintiff and his truck driver used defendant’s loading dock. In attempting to leave the loading area plaintiff “stepped on a concrete block located on the concrete floor of the loading area.” (38 Ill. App. 2d 165, 170.) Ice and snow had accumulated on the block. This court affirmed a judgment in favor of plaintiff. Plaintiff in the case at bar cites McGourty as extending liability beyond the precise boundaries of the defendant’s premises. As shown, the concrete block there was on the concrete floor of the loading area.

It is correct, as plaintiff urges as a matter of law, that the duty of the owner of property may be extended by the facts in a particular case so as to require the furnishing of reasonably safe means of ingress and egress to invitees. This is carefully expressed in cases such as McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345, 272 N.E.2d 369. There, plaintiff was a patron of a tavern. She was injured in attempting to leave. She left the exit door and crossed a sidewalk between parked cars. She fell as a result of stepping into an artificial hole in the parkway. As pointed out by this court, there is a legal duty to provide invitees “with reasonably safe means of ingress and egress” and “within limitations dictated by the facts of the case, beyond the precise boundaries of such premises.” 1 Ill. App. 3d 345, 351.

The citator leads us to Harris v. Union Stock Yard & Transit Co. (1975), 29 Ill. App. 3d 1072, 331 N.E.2d 182. This case states the same rule and uses the same language (29 Ill. App. 3d 1072,1076):

“Plaintiff has alleged that defendants owed him a duty to provide a safe means for him to travel from the Amphitheatre to his automobile after completing work on February 8, 1969. Defendant Union agrees that there is a duty to provide an invitee with a reasonably safe means of ingress and egress, both within the premises owned or controlled by the inviter, and, within limitations dictated by the facts of the case, beyond the precise boundaries of the premises. [Citations.]”

The important language to be noted there is that “the facts of the case” dictate the extent of the duty “beyond the precise boundaries of the premises.”

We find the same distinction made in Decker v. Polk Brothers (1976), 43 Ill. App. 3d 563, 357 N.E.2d 599. In both Decker and Harris this court held there was no liability upon the owner of the property.

The dispositive point of differentiation between each and all of these authorities and the case at bar is the fact that in all of these other cases there was a physical defect of some kind either in the premises as such, or in an area very close to the premises. Absolutely to the contrary, in the case at bar, the injuries allegedly suffered by plaintiff have no connection of any kind with the physical condition of the roadway but resulted entirely from the intervention of an independent factor beyond the control of the defendant. We find no legal duty in this regard.

Plaintiff urges, however, that defendant undertook to assume the duty of the safety of persons crossing the public street between the stable area and the race track operated by defendant. Therefore, plaintiff argues, even though the duty was undertaken gratuitously, the person who assumed it was obliged to discharge said duty with due care. (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 74, 199 N.E.2d 769.) This statement may be theoretically correct. However, we find no factual allegation in plaintiffs complaint as amended which could conceivably justify the imposition of a legal duty upon defendant by application of that theory. The complaint alleged that “at various and diverse times” the defendant “did provide traffic control systems for horses and pedestrians crossing the aforesaid 5th Avenue.” In our opinion this is a pure conclusion. It does not say when these various acts occurred and what was the nature of such acts which constituted “traffic control systems.”

It is correct as plaintiff urges that the motion to dismiss admitted as true all properly pleaded facts (Kendall v. Kendall (1978), 71 Ill. 2d 374, 375, 375 N.E.2d 1280), and that all pleadings are to be “liberally construed.” (Ill. Rev. Stat. 1979, ch. 110, par. 33(3).) However, it is equally correct that pleadings “are to be construed strictly against the pleader.” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 421, 430 N.E.2d 976.) Also, a complaint must state a cause of action by the allegation of facts and failure to do so cannot be aided by any principle of liberal construction. (88 Ill. 2d 407, 427.) In addition, this portion of the complaint states a pure conclusion of the pleader as distinguished from an allegation of fact. Consequently this type of statement is not admitted by the filing of the motion to dismiss. (88 Ill. 2d 407, 426.) Conclusions may not take the place of facts and are not accepted as true and correct in the face of a motion to dismiss under section 45 of the Civil Practice Act. Ill. Rev. Stat. 1979, ch. 110, par. 45.

We conclude that counts V and VI of the complaint were properly dismissed by the trial court.

The order of dismissal is affirmed.

CAMPBELL, P. J., and McGLOON, J., concur.