author: JUSTICE STOUDER JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH ZEHR, Defendant-Appellant.
    Third District
    No. 81-552
    Opinion filed November 10, 1982.
    HEIPLE, J., dissenting.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Defendant Kenneth Zehr was indicted for home invasion, burglary, aggravated battery, and theft. After the theft charge was dismissed, the cause proceeded to a jury trial in the circuit court of La Salle County. Defendant was convicted of the offenses and received respective, concurrent sentences of 22, 6, and SVa years in the Department of Corrections.

The incident leading to defendant’s convictions began the evening of October 27, 1980. Hazel Fox, the 68-year-old victim, was living alone as she had lost her husband a week earlier. According to her audio-visual evidence deposition, defendant and a companion came to her home wanting to examine an old car that was for sale. Speaking through her dining room window, she refused to show them the vehicle. The men then left and walked down her driveway toward the road. Fox did not see or hear any vehicle. She then watched television and fell asleep.

Around 11 p.m., she woke up and went downstairs to her basement to check the furnace. In the basement, Fox heard the rustling of a shower curtain in the bathroom, which was a few feet from the furnace. Two persons appeared in the bathroom doorway. After pausing a moment, one of the persons knocked the witness’ glasses off, rendering her virtually blind. She was then bound, gagged, and kept in the basement for several hours. During that time, the attackers ransacked her home and returned to the basement several times to strike their victim. Fox later heard a truck start and drive away, eventually got loose, found an old pair of glasses, and called her cousin. Several items, which the witness said were missing from her home, were later in defendant’s possession. Much additional evidence was presented, but as the sufficiency of the evidence is not questioned, we shall only consider that necessary for the resolution of the issues herein.

The first issue presented for our review is whether the trial court erred in allowing the victim’s testimony to be recorded by an audiovisual device. Supreme Court Rule 206(e) (87 Ill. 2d. R. 206(e)) provides in part that “[t]he testimony shall be taken stenographically or by sound-recording device, and upon agreement of the parties, or by order of the court for good cause shown, may be taken by audio-visual recording device.” As there was no agreement of the parties, the question becomes whether “good cause” for the audio-visual deposition was shown. It should be noted Supreme Court Rule 206(e) (87 Ill. 2d R. 206(e)) is a rule of civil procedure, not criminal procedure, although its general terms are incorporated into the criminal procedure by Supreme Court Rule 414(b) (87 Ill. 2d R. 414(b)). At the time Supreme Court Rule 206(e)) was amended in 1975 to permit audio-visual recording of evidence depositions, the authors offered no comments or advice about the amendment. This is of special importance since it indicates there was no effort to fashion the amendment in any manner that would have significance in criminal proceedings.

The State contends that the “good cause shown” was the importance of the jury observing the witness’ demeanor and remind us that this is the 20th century. The trial court specifically noted the century and the fact the videotape would show Fox’ demeanor. We quarrel not with the chronometric reminder and observation regarding demeanor; however, we do not believe the legislature intended either to constitute “good cause” in the present context. Assuming the 20th century reminder suggests that available recording technology be utilized, the “agreement of the parties” and “good cause shown” limitations cause a rejection of the suggestion. As to the observation regarding demeanor, this is a factor which will almost always be present. If the observation of a witness’ demeanor were to constitute “good cause,” then such would be present in virtually every case. We therefore find no “good cause shown” and the use of the videotape to constitute reversible error.

We note parenthetically that the legislative limitations are not without reason. Historically, evidence depositions were not admissible in criminal cases. (People v. Malone (1976), 41 Ill. App. 3d 914, 354 N.E.2d 911.) Even now, the circumstances permitting the use of depositions against an accused in a criminal case must be extraordinary (see 23 Am. Jur. 2d Depositions and Discovery sec. 120 (1965); Annot., 41 A.L.R. Fed. 764 (1979) (“exceptional circumstances” under 18 U.S.C.S. sec. 3503), and statutes allowing such depositions are strictly construed (see 23 Am. Jur. 2d Depositions and Discovery sec. 11 (1965)). Videotaped depositions, or televised testimony, present additional problems. Not only do they run the risk of prejudicing the accused by overemphasizing the witness’ testimony, the formal court setting has an impact on witness performance in that it creates psychological compulsions, which may not be present when testimony is taken outside the courtroom, toward testifying accurately and completely (see Annot., 80 A.L.R.3d 1212 (1977), citing Burt, The Case Against Courtroom TV, 12 Trial Magazine 62 (July 1976)). It has also been said that the demeanor of a witness comes across differently over television than when a witness is in the courtroom. (See Kansas City v. McCoy (Mo. 1975), 525 S.W.2d 336, 340 (dissenting opinion).) All of these factors support the legislative limitations of the statute here involved.

As this cause must be remanded for a new trial, we shall address two additional issues likely to arise again. The first is whether the trial court abused its discretion by failing to ask prospective jurors the following supplemental questions provided by defense counsel:

“1. If at the close of all the evidence and after you have heard arguments of counsel you believe that the State has failed to sustain the burden of proof and has failed to prove the defendant guilty beyond a reasonable doubt, would you have any hesitation whatsoever in returning a verdict of Not Guilty?
2. If the defendant, Mr. Zehr, decides not to testify in his own behalf, would you hold it against him?
3. Do you understand that the defendant is presumed innocent and does not have to offer any evidence in his own behalf, but must be proven guilty beyond a reasonable doubt by the State?”

Each of these questions goes to the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury. While the scope of a voir dire examination is ordinarily left to the sound discretion of the court, counsel should be permitted to make any reasonable and pertinent search to ascertain whether the minds of the jurors are free from bias and prejudice. (People v. Carpenter (1958), 13 Ill. 2d 470, 150 N.E.2d 100, cert. denied (1958), 358 U.S. 887, 3 L. Ed. 2d 115, 79 S. Ct. 128.) While Supreme Court Rule 234 (87 Ill. 2d R. 234) proscribes questioning jurors concerning matters of law or instructions, we do not so perceive the supplemental questions as concerning such, but rather see them as directly probing for bias and prejudice. We note further that if such a bias or prejudice is present, a jury instruction is hardly curative. (See People v. Newlun (1980), 89 Ill. App. 3d 938, 940-41, 412 N.E.2d 1055, 1057 (concurring opinion), appeal denied (1981), 83 Ill. 2d 573.) We therefore find the failure of the court to submit the questions to the jury an abuse of discretion and direct it to include the questions in its voir dire examination if they are again tendered. But see, e.g., People v. Lowe (1975), 30 Ill. App. 3d 49, 54, 331 N.E.2d 639, 642.

The second additional issue likely to arise again is whether the trial court erred in denying defendant’s request for an absence of witness instruction, Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971). The witness in question was Terry Garrett, the codefendant. It is well established that the State is not required to call all of the witnesses to a crime in proving its case (People v. Nowak (1970), 45 Ill. 2d 158, 258 N.E. 313), and where a similar instruction was tendered and refused, no error was found (People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029). It further appears that Garrett was known and available to both defendant and the State. The court therefore did not err in refusing the instruction.

Accordingly, the judgment of the circuit court of La Salle County is reversed and this cause remanded for a new trial, with directions.

Reversed and remanded with directions.

SCOTT, J., concurs.

JUSTICE HEIPLE,

dissenting:

I do not agree with the majority’s conclusion that the trial judge erred in admitting the victim’s videotaped testimony, nor do I believe that he abused his discretion by refusing the defendant’s proposed voir dire questions.

The victim in this case was Hazel Fox, a 68-year-old woman with a history of hypertension and arteriosclerosis. The trial court ordered that an evidence deposition of her testimony be taken since the condition of her health raised the substantial probability that her testimony would be unavailable at trial. (Supreme Court Rule 414(a) (87 Ill. 2d R. 414(a)).) This rule also provides that an evidence deposition in a criminal trial shall be taken in accord with Supreme Court Rule 206 (87 Ill. 2d R. 206) which provides that a deposition may be videotaped by order of the court for good cause shown. The State argued that it was important for the jury to observe Mrs. Fox’ demeanor. The trial judge agreed and ordered that the deposition be videotaped. At trial, a medical expert testified that Mrs. Fox’ condition had not improved and that she would not be able to testify in person. Hence, the trial court admitted the videotaped evidence deposition over the objection of defense counsel.

In reversing the trial court, the majority does not challenge the appropriateness of an evidence deposition in this case. Rather, they feel that the State failed to demonstrate good cause for using videotaped testimony. Whether good cause was shown was a matter left to the discretion of the trial judge and he did not abuse that discretion in this case. While I would agree with the majority that the need for the jury to observe a witness’ demeanor would not be good cause in every case, I do believe that it was sufficient under the circumstances of this case.

Good cause must certainly encompass the demeanor of the complaining witness when that witness is the only individual who can identify the defendant as the perpetrator of the crime. Clearly the trial judge did not err in finding that the demeanor of this particular witness was important to the jury in determining the defendant’s guilt or innocence. Even the defense counsel would have preferred that Mrs. Fox testify in person and specifically referred to her demeanor during closing arguments. In view of the importance of her testimony, a videotaped evidence deposition was the next best thing to Mrs. Fox’ presence at trial. It enabled the jury to better assess the credibility of this key witness than the reading of a deposition would have. However, the defense counsel argued that showing the jury a videotape tended to overemphasize Mrs. Fox’ testimony. The majority agrees with the defense, adding that a videotape may not be an accurate reflection of the witness’ true demeanor. It is my position that these alleged problems are not inherent flaws in all videotaped testimony but are factors which the trial court should consider on a case-by-case basis in deciding whether or not to use that method of recording. Annot., 66 A.L.R.3d 637 (1975).

The use of videotaped evidence depositions should be encouraged where good cause is shown. The majority opinion places an undue restriction on the trial judge’s discretion in determining good cause, therefore, I dissent.

I also do not think that the trial judge abused his discretion in refusing to give the following supplemental voir dire questions tendered by defense counsel:

“1. If at the close of all the evidence and after you have heard arguments of counsel you believe that the State has failed to sustain the burden of proof and has failed to prove the defendant guilty beyond a reasonable doubt, would you have any hesitation whatsoever in returning a verdict of Not Guilty?
2. If the defendant, Mr. Zehr, decides not to testify in his own behalf, would you hold it against him?
3. Do you understand that the defendant is presumed innocent and does not have to offer any evidence in his own behalf, but must be proven guilty beyond a reasonable doubt by the State?”

Supreme Court Rule 234 (73 Ill. 2d R. 234) clearly forbids any examination of jurors, directly or indirectly, concerning matters of law or instructions:

“The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions.”

Although the majority may correctly perceive the proposed questions as probing for bias and prejudice, the questions also have the indirect effect of examining the jurors concerning matters of law and instructions.

The agreed statement of the parties concerning voir dire examination indicates that the jurors were asked if they would follow the instructions of law given by the court even though they might personally disagree with the instructions. The questions offered by the defense were then incorporated into the pattern jury instructions given by the court. This procedure adequately encompassed the proposed questions while remaining within the bounds of Rule 234. To allow the defense to submit questions on voir dire which amount to jury instructions is to indoctrinate and pre-educate the jurors concerning matters of law and that is forbidden. People v. Phillips (1981), 99 Ill. App. 3d 362.

I also note that the appellant does not claim that the jury selected was biased or unfair: “Where a voir dire examination — whether conducted by the court or by counsel — results in a qualified and impartial jury, no prejudicial error occurs in its selection.” (People v. Carruthers (1974), 18 Ill. App. 3d 255, 261.) For these reasons, I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: JUSTICE WEBBER

license: Public Domain

text:
    ROBERT BURROUGHS, Petitioner-Appellant, v. TAZEWELL COUNTY COLLECTOR, Respondent-Appellee.—(Hopedale Medical Foundation, Respondent-Appellee.)—HOPEDALE MEDICAL FOUNDATION, Plaintiff and Respondent-Appellee, v. TAZEWELL COUNTY COLLECTOR, Defendant-Petitioner.—(Robert Burroughs, Intervening Petitioner.)
    Third District
    Nos. 81—640, 81—639 cons.
    Opinion filed November 15, 1982.

      Chester C. Fuller, of Peoria Heights, for appellant.
    Thomas M. Atherton, of Frings, Bagley, Atherton & Clark, and G. Edward Orr, Assistant State’s Attorney, both of Pekin, for appellees.
   JUSTICE WEBBER

delivered the opinion of the court:

The plaintiff-petitioner Burroughs is the holder of two tax certificates issued on the property of the defendant Hopedale Medical Foundation for unpaid taxes for the years 1968, 1969, and 1970, and 1971. The total purchase price was $131,466.16. The certificates are dated October 18, 1971, and October 30, 1972, respectively. On February 27, 1980, Burroughs filed separate suits against the County Collector of Tazewell County (Collector) and the Hopedale Medical Foundation (Foundation) seeking a refund from the Collector and reimbursement from the Foundation on the ground that the tax sales were erroneous. The suits were consolidated by the circuit court of Tazewell County and were dismissed on motion of the defendants because of the statute of limitations. Burroughs appeals.

The principal issue is whether actions for refunds or reimbursements on account of taxes sold in error are controlled by section 15 of “An Act in regard to limitations” (Ill. Rev. Stat. 1979, ch. 83, par. 16; now section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 205)). That section provides:

“Except as provided in Section 2 — 725 of the ‘Uniform Commercial Code’, approved July 31, 1961, as amended, and Section 11 — 13 of ‘The Illinois Public Aid Code’, approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.”

The trial court’s ruling was based upon this statute, i.e., that the instant action was a “civil action(s) not otherwise provided for,” and since the action was filed more than five years after the certificates were issued, it was barred. Burroughs posits two arguments against the application of the statute: (1) that his is an equitable action and hence a statute of limitations is no bar, and (2) the statute has not been held applicable to other proceedings under the Revenue Act of 1939. We disagree and hold that this case is governed by section 260 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 741). That section states:

“Whenever it shall be made to appear to the satisfaction of the county clerk or the court which ordered the property sold that any tract or lot was sold, and that such tract or lot was not subject to taxation, or that the taxes or special assessments had been paid previous to the sale of said tract or lot, or that there is a double assessment, or that the description is void for uncertainty, or upon application of the tax purchaser that the improvements upon property sold have been substantially destroyed subsequent to the tax sale and prior to the issuance of the tax deed, the county clerk or the court which ordered the property sold shall declare such sale to be a sale in error and the county clerk he [sic] shall make an entry opposite to such tracts or lots in the tax judgment, sale, redemption and forfeiture record, that the same was erroneously sold, and such entry shall be prima facie evidence of the fact therein stated, and unless such error is disproved, the county collector shall, on demand of the owner of the certificate of such sale, refund the amount paid and cancel such certificate so far as it relates to such tract or lots. The collector shall take credit in settlement of his accounts thereafter with such officers as he may be liable to for their pro rata amounts respectively paid as aforesaid.”

Burrough’s equitable theory is not alleged in his complaints, but it may be gleaned from statements in his brief. He claims that for the years in question the Foundation filed objections without also paying its taxes under protest as is provided in section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1971, ch. 120, par. 675), i.e., objection that the property is not subject to taxation; he further claims that the “novelty” of this procedure led the Collector into error because he was unaware of the provision and consequently sold the taxes. Litigation thereafter ensued concerning the tax status of the Foundation. After various appeals it was ultimately determined on March 1, 1979, that the Foundation was not exempt and that the sales to Burroughs were void; meanwhile, Burroughs had been under an order restraining him from seeking a tax deed. A motion to dissolve this order was denied in late 1979, and the instant suits were then filed.

From this background Burroughs attempts to raise equitable doctrines of unjust enrichment and unfairness in that he has been deprived of both his money and his tax deed. We do not believe that the invocation of labels can convert a statutory remedy into an action in chancery.

In Matchett v. Rose (1976), 36 Ill. App. 3d 638, 647, 344 N.E.2d 770, 778, the court said:

“It is well established that the statute of limitations is a purely legal rather than an equitable defense. [Citations.] Therefore, the question of whether plaintiff’s amended complaint is barred by the statute of limitations arises only after a determination that the alleged cause of action is one at law rather than in equity.”

It is our opinion that an action to recover amounts paid at an erroneous tax sale are governed entirely by section 260 of the Revenue Act of 1939 quoted above. Hence, the action is one at law, and not in equity, and the statute of limitations is a defense.

In this connection Acme Printing Ink Co. v. Nudelman (1939), 371 Ill. 217, 20 N.E.2d 277, is instructive. In that case a class action was brought to enjoin the Director of Finance from imposing Retailers’ Occupation Tax on distributors of ink. The supreme court held that the distributors were subject to the tax and further that the statute provided a remedy for mistaken taxation of nontaxable sales. Its significant holding for the purposes of the instant case was that the statutory remedy must be exhausted before equitable relief can be sought.

As to section 260 itself, in it reference is made to several situations in which a tax sale is deemed to be a sale in error. The specific facts here present are not so stated to be such a sale. However, the supreme court in Thornton, Ltd. v. Rosewell (1978), 72 Ill. 2d 399, 381 N.E.2d 249, held that the list was not exclusive. (See also In re Application of County Collector (1979), 79 Ill. App. 3d 151, 398 N.E.2d 392.) We believe that the facts of this case make it a sale in error within the meaning of the statute and that the statutory remedy must be pursued.

Having determined that this is a legal action under the statute, we next turn briefly to the question as to whether it is controlled by section 15 of the Limitations Act quoted above. Under the authority of Joliet Stove Works v. Kiep (1907), 230 Ill. 550, 82 N.E. 875, the answer is clearly in the affirmative. In that case the supreme court construed sections 213, 214 of the then Revenue Act (Hurd’s Stat. 1905, ch. 120, secs. 213 and 214), which were the predecessors, without material change, to sections 260 and 261 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, pars. 741, 742). The court said of section 261:

“We think, however, it clear that the purchaser, or anyone holding under him, can recover from the owner any tax paid upon the property so erroneously sold until his right is barred by the five year Statute of Limitations.” (230 Ill. 550, 556, 82 N.E. 875, 877.)

Since the court was dealing with an owner, it had no occasion to state specifically what limitation applied under section 260; however, the only difference between the two sections is the identity of the defendant: the county collector in one, the property owner in the other. Common sense dictates that the five-year limitation applies to both.

Burroughs’ second argument, that other cases under the Revenue Act have not invoked the five-year statute, is also without merit. An examination of those cases discloses that in each one the State was plaintiff and the taxpayer was defendant. It is elementary that a statute of limitations will not run against the sovereign. Clare v. Bell (1941), 378 Ill. 128, 37 N.E.2d 812.

Two subsidiary questions remain to be answered. First, Burroughs raises the issue of when the statute of limitations began to run, assuming arguendo that it applies. He claims in his brief that he requested a tax deed in May 1973, although that fact does not appear in the record in this case. Even assuming that date, February 1980 is far beyond the five-year limitation.

The general policy underlying tax sales is an effort to return the property to the tax rolls and into commerce. Consonant with that policy, the statute should begin to run at its earliest possible time. The statute itself is of little assistance. It states only, “Whenever it shall be made to appear ***.”'It is our opinion that it begins to run at the time of sale. The buyer is charged with knowledge of the circumstances which might lead to a sale in error. In La Salle National Bank v. Hoffman (1971), 1 Ill. App. 3d 470, 477, 274 N.E.2d 640, 645, the court said:

“The sole person who is interested in a refund under Section 260 of the Revenue Act of tax-sale money and therefore the only one who can make representations to the County Clerk to induce a ‘sale in error’ entry is the taxbuyer who would lose all the money he invested in a void tax sale but for that Section. It is up to the taxbuyer to discover the facts that void his purchase, if there be any, and to demand a refund from the County Collector based on the County Clerk’s ‘sale in error’ entry which is made on one or more of the four grounds set forth in section 260.”

The buyer thus has five years from the date of sale in which to determine its validity. He may seek a deed, and if that fails, he may request alternative relief, refund under section 260. This is exactly what occurred in In re Application of County Collector (1979), 79 Ill. App. 3d 151, 398 N.E.2d 392.

If in fact Burroughs sought a deed in May 1973 and it was refused, he has slept on his rights insofar as a refund or reimbursement is concerned.

The second subsidiary issue is Burroughs’ claim that litigation tolled the statute. However, he does not explain what litigation. There are two prior reported cases involving the Foundation: Hopedale Medical Foundation v. Tazewell County Collector (1978), 59 Ill. App. 3d 816, 375 N.E.2d 1376, and People ex rel. County Collector v. Hopedale Medical Foundation (1970), 46 Ill. 2d 450, 264 N.E.2d 4. The latter held that the Foundation was not exempt from taxation from 1962 through 1966; it obviously has no bearing on the current litigation. In the 1978 case Burroughs is included as an intervening petitioner but the court said that he made no appearances in the trial court and did not pursue the appeal. The 1978 case, like the 1970 one, established the Foundation’s liability for taxes but otherwise does not pertain in any way to the tax sales.

In any event, litigation over the Foundation’s status, whether Burroughs were a party to it or not, would not prevent a suit for refund or reimbursement unless the latter were specifically precluded. In 25 Ill. L. & Prac. Limitations sec. 94 (1956), it is said:

“While the pendency of other legal proceedings may suspend the running of the statute during the period that such pendency precludes the plaintiff from proceeding with the cause of action, in order that pendency of other proceedings should have the effect of tolling the statute of limitation the proceedings must be such as to prevent enforcement of the remedy by action. The pendency of proceedings as to a different matter will not toll the statute of limitations.”

For all the foregoing reasons, the order of the circuit court of Tazewell County dismissing the complaints is affirmed.

Affirmed.

GREEN, P.J., and LEWIS, J., concur.


author: JUSTICE SCOTT

text:
      In re MARRIAGE OF LARRY A. FAIRCHILD, Petitioner and Cross-Respondent-Appellee, and LINDA L. FAIRCHILD, Respondent and Cross-Petitioner-Appellant.
    Third District
    No. 82—19
    Opinion filed November 8, 1982.

      Watts C. Johnson, of Johnson, Martin & Russell, of Princeton, for appellant.
    Matthew A. Maloney, of Pierson & Maloney, of Princeton, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

On November 24, 1981, the circuit court of Bureau County entered a judgment order dissolving the 18-year marriage of Larry A. Fairchild and Linda L. Fairchild. Mrs. Fairchild appeals from that order alleging that the lower court erred in dividing the marital property of the parties, in setting the amount of maintenance and child support, and in awarding attorney fees. In addition, by motion of the appellant, agreed to in oral argument by the appellee, we have been asked to correct certain mathematical errors appearing on the face of the judgment order. We consider the relief requested in the motion along with the issues raised by the notice of appeal.

Three children were born of the Fairchild marriage, Kelly, born September 30, 1963, and now of age, Allen, bom December 22, 1965, and Jody, born July 10, 1967. The parties acquired certain nonmarital property during their marriage, consisting primarily of the marital residence in Princeton, Illinois, two automobiles, and pension/savings benefits arising by reason of the appellee’s employment. That employment is with Jones & Laughlin Steel Co., where appellee earns $39,852 annually. The appellant, also employed, earns $350 biweekly, or $9,100 annually.

In its judgment order, the circuit court added the cash value of the parties’ marital assets, including the equity in the marital home, the vested value of the appellee’s pension/savings employment benefits and the two automobiles. It then awarded to the appellee the pension/savings benefits and an automobile, and to the appellant the marital residence and an automobile. To equalize this division, the lower court entered a money judgment bearing interest at the statutory rate in favor of the appellee against the appellant in the sum of $25,930, providing, however, that the appellee was enjoined from enforcing the judgment until July 10, 1985. It is apparent that the circuit court intended to provide the appellant and the minor children placed by its order in her custody the use of the marital residence until the younger child reached the age of majority. Then, presumably, the residence would be sold to satisfy the judgment and complete the division of property. Further, the judgment order required the appellee to pay $530 monthly to the appellant as unallocated maintenance and child support as well as $750 to the appellant for attorney fees, the latter amount being less than half of the fees actually incurred.

In her brief, the appellant urges that the circuit court’s division of the marital property was flawed for three reasons. First, it is suggested that the lower court failed to include as marital property certain health and life insurance benefits enjoyed by the appellant by reason of her husband’s employment. Mr. Donald Rickard, an economist, testified that the value of these benefits as of the date of dissolution was $43,614. We find no authority, nor has appellant cited any authority, for treating employee benefits of this type as “property” within the meaning of that term as used in section 503 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503). There is authority for labeling as “property” the contractual right to future payments by reason of past employment. (In re Marriage of Evans (1981), 85 Ill. 2d 523, 426 N.E.2d 854; In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511.) As we understand the health and life insurance benefits here in issue, they are a right to current payments by reason of current employment. Therefore, we conclude, as did the trial court, that these benefits are not “property” within the contemplation of section 503 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503).

The appellant also contends that the division of marital property ordered below was flawed by reason of the trial court’s use of the “vested value” of the pension/savings benefits rather than the “accrued value.” The difference in these values was recently explained in a respected journal.

“Most retirement plans will express the participant’s interest in two different ways, accrued and vested. The employee’s accrued interest is the amount that he has earned and will receive if he works for a sufficient period of time to satisfy the vesting requirements. His vested benefit is that portion of his accrued benefit which is nonforfeitable, and is usually determined according to the number of his years of employment. When an employee terminates employment, he is entitled to receive only his vested benefit.” Dickinson, Role of Retirement Plans, Real Property, 10 Probate & Trust J. 644.

In the instant case, Mr. Rickard established the accrued value of the pension/savings benefits as $24,642, while the vested value was only $6,069.

Illinois courts have held that in valuing employment benefits of this nature, the benefits that have accrued should be considered marital property, regardless of whether the benefit is vested or nonvested. (In re Marriage of Hunt; In re Marriage of Donley (1980), 83 Ill. App. 3d 367, 403 N.E.2d 1337.) The rationale for this position recognizes that

“[o]ne of the most valuable assets possessed by the average married couple may be the husband’s right to retirement pay or pension benefits, often times earned while the wife has remained as a homemaker, mother and career-builder for her husband.” Buser, Division of Pension Benefits in Dissolution of Marriage Proceedings Under Illinois Marital Property Law, 2 Ill. Trial Lawyers J. no. 3, at 21.

Indeed, one writer has suggested that these benefits may be a couple’s “only significant asset.” Dickinson, Role of Retirement Plans.

“The important expectations attached to this asset by both husband and wife cannot be overstated. They involve, after all, the fundamental belief by both spouses that their mutual security in later years will be protected by pension benefits. They also involve an assumption of interdependence and wealth sharing that has almost certainly been held jointly by both husband and wife during their years of marriage. As between the two spouses, it would seem unfair to deny to one of them the security and the sharing that both assumed would occur, at least where there are available adequate and fair judicial tools for measuring, valuing and allocating the interests involved.” Bonavich, Allocation of Private Pension Benefits as Property in Illinois Divorce Proceedings, 29 DePaul L. Rev; 1, 16 (1979).

Yet, it is precisely the problem of measuring and valuing which recently received attention by our supreme court.

Writing for a unanimous court, Justice Ward observed:

“Where one spouse has acquired a right to potential future benefits through his employment there is no way in which the other spouse may be awarded some defined interest in those benefits as marital property without a determination of the value they have to the employed spouse. A profit-sharing or retirement plan is a complex entity in which many factors must be taken into account in order to ascertain the monetary impact of the plan upon a given employee. [Citation.] Without evidence of the value of the benefits here in question the circuit court could not award an interest in them to the other spouse as a just apportionment of marital property.” (In re Marriage of Evans (1981), 85 Ill. 2d 523, 529, 426 N.E.2d 854, 857.)

In the case sub judice, unlike the situation in Evans, the circuit court was provided with precise measures of valuation by Mr. Rickard. Nevertheless, the values offered by Mr. Rickard, based on standard actuarial assumptions, are only as valid as those assumptions. It has been suggested that

“[t]his method of valuation is suspect *** because it fails to take into account *** [the] possibility of forfeiture of the retirement fund by death, discharge, illness or termination by the employee spouse.” Buser, Division of Pension Benefits in Dissolution of Marriage Proceedings Under Illinois Marital Property Law, 2 Ill. Trial Lawyers J. no. 3.

Another respected writer has observed that

“a great portion of the actuary’s approach will be based on total ‘speculation’ — ‘guesswork’ not fact due to his need to rely on statistics which are all based on an average hypothetical person of a certain age.” (Goldberg, Retirement Plans—Part III, 128 Chi. Daily Law Bull. no. 96, at 14 (May 17,1982).)

A potentially unfair situation thus arises, as the employee spouse risks making a final division of property with the non-employee spouse based upon a fixed value of future pension/savings benefits which may, in fact, be valueless if the actuarial assumptions for the hypothetical person are inapplicable to the very real person before the court.

“This risk would be created if the court awarded the nonemployee spouse [marital] assets equal to one-half the value of the actuarial value of the expected retirement benefits. A present award to the nonemployee spouse of [marital] assets equal to one-half the actuarial value of the expected retirement benefits ignores the possibility that the employee spouse may never satisfy the conditions precedent to retirement. While the nonemployee spouse enjoys the equivalent of these benefits from the time of dissolution, the employee spouse must wait until his retirement, a fact which might not occur, to realize his share of the property division.” (Gudebski and Jovovich, Retirement Pay: A Divorce in Time Saved Mine, 24 Hastings L.J. 347, 356 n.41 (1973).)

The circuit court in the instant case, while rejecting the actuarial valuations of the nonvested benefits, was obviously cognizant of the potential unfairness of these valuations should Mr. Rickard’s assumptions prove incorrect.

The dilemma, then, is that while it is unfair to ignore the value of nonvested benefits in the division of marital property, those benefits in some instances being the only significant marital asset, it is also unfair to effect a present division of the marital property utilizing an actuarial value of those benefits computed in reliance on speculative, albeit actuarily accepted assumptions. Numerous authorities have suggested a solution to this dilemma.

“[Reserving jurisdiction over the future benefits and effecting a subsequent division of the actual monetary benefits had the dual advantage of allocating equally between the parties the risk that the rights may never vest and enabling the court to better determine the actual proportion of future benefits that accrued to each party during the marriage.” (Keating, Recent Decision, 70 Ill. B. J. 582, 585 (1982).)

In accord, it has been observed:

“Divorce courts are accustomed to retaining jurisdiction over their decrees and exercising a high degree of supervisory power over the immediate parties and even over third parties. It is not uncommon for a decree to require the performance of specific acts over a long period of time, eg., a court might require that a wife retain possession of the marital home for the children’s minority, and that the home then be sold, with a specified division of the proceeds. The argument that nonvested or nonmature plan benefits should not be considered property because they are incapable of immediate enjoyment, or incapable of precise valuation at a particular time, or uncertain as to availability fails given this typical divorce procedure. There is no reason to suppose that divorce courts cannot, in particular cases, cope with those problems through an exercise of their continuing jurisdiction.” (Bonavich, Allocation of Private. Pension Benefits as Property in Illinois Divorce Proceedings, 29 DePaul L. Rev. 1, 15 (1979).)

The concept of reserving jurisdiction has been suggested as a solution to this dilemma not only by legal scholars, but by Illinois reviewing courts as well. (In re Marriage of Hunt.) A similar but conceptually distinguishable approach would classify nonvested pension benefits and other nonvested employee benefits as future income to the recipient, income which would be relevant in considering whether to award or modify maintenance to the nonemployee spouse. (In re Marriage of Evans (1980), 85 Ill. App. 3d 260, 406 N.E.2d 916 (Barry, J., dissenting).) As maintenance is subject to the continuing jurisdiction of the court (Ill. Rev. Stat. 1981, ch. 40, par. 510(a)), this approach offers the same flexibility in allowing the court to apportion to the nonemployee spouse an interest in pension benefits accrued during the marriage, yet at a time in futuro when the value of those benefits is no longer speculative. We believe it is preferable to classify accrued pension benefits as “property” rather than as “income.” Pension benefits are shared wealth which the parties to a marriage consider to be their mutual security. (Bonavich, Allocation of Private Pension Benefits as Property in Illinois Divorce Proceedings, 29 DePaul L. Rev. 1 (1979).) Each party is entitled to a just proportion of their shared retirement wealth. And, while “[t]he court is permitted to enter a maintenance order only if it finds that the spouse satisfies certain need-oriented criteria” (Bonavich, Allocation of Private Pension Benefits as Property in Illinois Divorce Proceedings, 29 DePaul L. Rev. 1, 5 (1979)), the division of marital property is to be in “just proportions.” Ill. Rev. Stat. 1981, ch. 40, par. 503(c).

We believe that under the facts of the case at bar, it is particularly appropriate to adopt the reserved jurisdiction approach, in that it equitably considers the interests of both parties, and assures that neither party will suffer an unfair or unjust result from the division of marital property. Accordingly, we are remanding this cause to the circuit court -with directions to find that the appellee’s pension/savings benefits are marital property, that the appellant has an apportionable ownership interest in those benefits and that the nature and extent of that apportionable interest is a matter reserved for subsequent judgment by that court and subject to its continuing jurisdiction.

As a third objection to the circuit court’s division of marital property, the appellant urges that it was error to award the appellee a money judgment bearing interest at the statutory rate as a means of equalizing the division. While our remand to the circuit court regarding other matters of marital property, to-wit, the pension/savings benefits, must also necessitate a reconsideration by the circuit court of the amount of this judgment intended to equalize the division of all property, we deem it appropriate also to consider the award of judgment interest payable to the appellee by the appellant during the children’s minority. We find no basis in statute or case law for such an award of interest, although authority does exist for deferring division of the marital residence for reasonable periods of time. (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(4); In re Marriage of Woolsey (1980), 85 Ill. App. 3d 636, 406 N.E.2d 1142; In re Marriage of Thompson (1979), 79 Ill. App. 3d 310, 398 N.E.2d 17.) Awarding interest under these facts effectively assures the appellee that his portion of the marital property will appreciate at the statutory rate annually, while denying the appellant any such assurance. Indeed, should the actual rate of appreciation of the real estate fall short of the statutory rate, the appellee would enjoy a greater appreciation on his share of the marital property, viz., the marital residence, at the expense of his spouse. We believe fairness requires both parties to share equally in the appreciation or depreciation of the property, subject to a credit to the appellant for mortgage payments and improvements. Thus on remand, we direct the circuit court to reconsider its division of this marital asset following the rule of In re Marriage of Thompson (1979), 79 Ill. App. 3d 310, 397 N.E.2d 17.

The circuit court ordered the appellee to pay $530 monthly for the unallocated support and maintenance of the appellant and her minor children. As previously recounted, the appellee enjoyed an income of $39,852 annually, while the appellant earned merely $9,100 annually. Adjusting the earned incomes for the amount of maintenance and support, the appellee is left with a gross income of $33,492, while the appellant has only $15,460. The appellant testified that she incurred annual expenses totalling $14,529, a figure based upon testimony received before the emancipation of Kelly. Nevertheless, the appellant is asked to support two children and herself with less than half the funds available to the appellee. Clearly, the appellee will have substantial discretionary income at his disposal, income which would have enhanced the standard of living of the children had the marriage ' not been dissolved. The appellant will have little if any such discretionary income. Equally as clear is the fact that the resources of the appellee are far superior to those of the appellant as regards their ability to provide for the children’s support. We conclude after reviewing these factors and the others enumerated in sections 505 and 504 of the Marriage and Dissolution' of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, pars. 505 and 504) that the award of maintenance and support is inadequate. Accordingly, the award is reversed and the matter remanded to the trial court with directions to consider the relative resources of the parties and the standard of living established during the marriage.

Finally, the appellant urges that the circuit court erred in failing to award her the full amount of the attorney fees which she incurred as a result of this litigation. As we have noted on prior occasions, an award of attorney fees is appropriate only after considering the financial resources of the parties. (Ill. Rev. Stat. 1981, ch. 40, par. 508(a).) Inasmuch as our decision today will cause this matter to be remanded to the trial court fqr further proceedings regarding the division of marital property and the award of maintenance, we believe the financial resources of the parties to be too uncertain to evaluate this alleged error, and thus we decline to consider same. Also, since the mathematical error which was the subject of appellant’s motion in this court involved the division of marital property, we believe our reversal of the division previously ordered renders the motion moot.

For the reasons above set forth, and in reliance on the authorities cited and the policies therein embodied, the judgment of the circuit court is reversed with directions for further proceedings consistent with this opinion.

Reversed and remanded with directions.

ALLOY and STOUDER, JJ., concur.


text:
    FREDMAN BROTHERS FURNITURE CO., INC., Petitioner-Appellant, v. THE DEPARTMENT OF REVENUE, Respondent-Appellee.
    Third District
    No. 82—275
    Opinion filed November 16, 1982.
    Herbert I. Fredman, of Collinsville, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Scott D. Spooner, Assistant Attorney General, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court;

Fredman Bros., a retail furniture business, and the Department of Revenue of our State, became embroiled in a controversy as to whether Fredman was liable for taxes due under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.). Notice of tax liability was issued by the Department on August 30, 1979, which was followed by an administrative hearing which led to the Department’s issuance of a final assessment on August 24, 1981. Fred-man’s request for a rehearing was denied and on November 19, 1981, the taxpayer Fredman filed a complaint in the circuit court of Peoria County for judicial review of the final assessment. The Department filed a motion to dismiss based on section 12 of the Illinois Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1981, ch. 120, par. 451), which provides for involuntary dismissal in the event the plaintiff taxpayer fails to post a bond within 20 days after filing a complaint. After hearing the Department’s motion to dismiss was granted, judgment was entered against Fredman, from which this appeal ensued.

The primary issue presented in this appeal is whether the trial court was correct in dismissing Fredman’s suit for a review of the Department’s tax assessment. In determining this issue further facts will be set forth as they become pertinent.

Fredman argues that the filing of the bond within the statutory time was not jurisdictional and the same could be waived. In support of this argument Fredman relies on the supreme court case of Glaseo Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 427 N.E.2d 90. We quarrel not with this argument, for in Glaseo it was held that section 12 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 451), which requires the filing of an appeal bond within 20 days after complaint for review has been filed, is mandatory but not jurisdictional. In Glaseo our supreme court further held that even though mandatory, the 20-day filing period could be waived and was waived in Glaseo as the result of certain acts of the Department.

The question of “waiver” is not strongly urged in the instant case and rightfully so, because the record does not reflect sufficient facts or conduct on the part of the Department which could support a finding that the Department waived the 20-day filing requirement.

We note that in Glasco our supreme court determined that the legislative intent in requiring the filing of a bond by a taxpayer in a suit seeking review of an assessment was to protect the Department’s interest against a taxpayer dissipating or otherwise disposing of assets while the review before the circuit judge is pending.

In the instant case Fredman had overpaid its sales tax in an amount between $14,132.94 and $12,535.32. The cause of the overpayment and the period of time the overpayments were made is immaterial. The Department knew or should have known of such overpayment. The trial court in its judgment found that Fredman had made overpayments in the amount of $12,535.32 and that the Department was entitled to $12,791.16, leaving a balance due and owing from Fredman in the sum of $255.84. Whether the computation of the trial court is correct or incorrect we have no way of knowing, since the taxpayer Fredman was not afforded an opportunity to have the Department’s assessment reviewed. What is clear to this court is that the Department had sufficient funds of Fredman so that there was no danger that the State of Illinois would suffer a loss of tax revenue from Fredman because of dissipation or disposition of assets.

The facts in the instant case compel us to hold that the filing of a review bond is not mandated where the same is not required for the protection of the Department of Revenue. The Department, relying on a case from this court, argues that funds available to the State as the result of overpayment does not excuse the filing of the section 12 bond. The case cited by the Department in support of this contention is Streator Brick Systems, Inc. v. Department of Revenue (1978), 58 Ill. App. 3d 8, 373 N.E.2d 1040. In Streator Brick we were confronted with a situation unlike that presented in the instant case in that the taxpayer had an overpayment credit with the Department of Labor in an amount in excess of the amount of unpaid taxes claimed by the Department of Revenue. This court held that the overpayment to the Department of Labor would not serve to alleviate the necessity of the taxpayer to file a bond in proceedings reviewing the Department of Revenue assessment. We noted that the Department of Revenue and Department of Labor are two separate and distinct entities. We would not cast upon the Department of Revenue the duty or burden of checking with or searching the records of other departments in order to determine if a taxpayer had a credit allowance which in some way might alleviate the filing of a section 12 bond. In the instant case the Department of Revenue knew or should have known of Fredman’s overpayment and unreimbursed tax payments.

For the reasons stated the taxpayer Fredman should be permitted to have a review in the circuit court of the Department's tax assessment. The circuit court of Peoria County is reversed and this case is remanded with directions that Fredman be granted a review in said court.

Reversed and remanded.

STOUDER and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE STAMOS

text:
    ANDREA DUMON, INC., Plaintiff-Appellant, v. PITTWAY CORPORATION et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81—1351
    Opinion filed November 9, 1982.

      Leonard M. Ring and Judith E. Fors, both of Leonard M. Ring & Associates, of Chicago, for appellant.
    William R. Carney and John W. Rotunno, both of Bell, Boyd & Lloyd, of Chicago, for appellees.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff Andrea Dumon, Inc., brought this action in the circuit court for an injunction and for damages, alleging that defendant Pittway Corporation, through its division known as the Barr-Stalfort Company (Barr), misappropriated Dumon’s secret processes and methods for the manufacture of an aerosol foam depilatory. The trial court held that the methods and processes were not protectable because they were not of such a special nature as to be trade secrets, and that Barr had been expressly released from the secrecy agreement between the parties because Dumon’s manufacturing methods were commonly known in the industry at the time that Barr began to use them and to divulge them to others. Plaintiff appeals, contending that: (1) the trial court’s finding that the manufacturing process was not a trade secret was against the manifest weight of the evidence; (2) the trial court erred in finding that Barr had not breached a fiduciary duty which existed apart from the secrecy agreement between the parties; (3) the trial court , should have stringently tested the authenticity of two of defendant’s exhibits before receiving them into evidence; (4) the trial court abused its discretion in allowing two of defendant’s witnesses to testify as experts; (5) the trial court abused its discretion in allowing defendant’s trial counsel to testify as a witness in the case without requiring him to withdraw; and (6) plaintiff was denied a fair trial due to the physical and mental infirmity of its trial counsel, who was terminally ill during the pendency and trial of this case.

Plaintiff is an Illinois corporation which was engaged in the sale of various cosmetic products. Defendant Barr manufactures and packages various aerosol products for others according to formulas and manufacturing procedures developed by Barr, its customers, or both. The events which culminated in this litigation began in March 1969, when Bernard Malits, plaintiff’s president, entered into an agreement with Sam Rogers under which plaintiff purchased the rights to a formuía and manufacturing process for an aerosol foam depilatory that Rogers had developed. In June of 1969, plaintiff and Barr entered into an agreement by which Barr would prepare and package a foam depilatory for plaintiff to be marketed under the trade name “Gone.” The ingredients of the product were to be provided by plaintiff in coded containers and the exhibit to the manufacturing contract which set out the compounding instructions did not identify the ingredients other than by code name. The agreement provided that Barr would keep the “processes and methods set forth in said attached Exhibit A secret and in and of the strictest confidence.” The agreement also provided that if those processes or methods “are or should become a matter of general knowledge within the industry, Barr’s duty of nondisclosure hereunder shall then terminate.” Although the agreement states that the pertinent exhibit was attached, the exhibit was not shown to Barr’s officers until after the contract was signed. The exhibit reads as follows:

“Heat 2000cc distilled water or deionized water to 85C, then add solid Chemical X and stir until dissolved. Then add 1460cc cold water and stir a little. Then cool this mixture to 31 or 30°C. Then slowly add the calcium thioglycollate (240 grams) and stir mechanically for 10 minutes. The rpm rate of stirring should be between 1000 to 4000 rpm and less rpm if the blade is larger. After 10 minutes of stirring the above mixture, slowly add liquid chemical No. 3 and again stir for 10 minutes. After 10 minutes, add the perfume slowly and again stir for 10 minutes. The whole process should take 40 minutes after adding the calcium thioglycollate. Propellants 8% of 114-40% 12-60%.”

Barr commenced production of “Gone” for plaintiff. Plaintiff had some difficulty in marketing the product as it was first compounded, because the original mixture removed hair slowly, had an unpleasant odor, and was irritating to the skin of users. Barr stopped producing “Gone” for plaintiff in 1970.

In 1971, Barr began packaging an aerosol foam depilatory known as “Take 3” for Depilan, Ltd. Three hundred thousand cans of this depilatory were eventually produced. The manufacturing procedure used for “Take 3” was similar to that used for “Gone,” although the parties dispute whether the procedures were identical. In that same year, Barr furnished 5,000 cans of depilatory to Scholl, Inc., for test marketing in Europe. An agreement was contemplated by which Barr would supply Scholl with depilatory for sale in the United States and would provide Scholl with a formula and production method for Scholl’s use in manufacturing a depilatory for the European market. Barr, in correspondence with Scholl, stated that it was providing the formula and production method “in confidence.” No final contract was ever made between the companies and no secrecy agreement was entered into.

The names of the coded ingredients in plaintiff’s formula were never revealed to Barr. It is undisputed that those ingredients were well known and commonly used in the manufacture of aerosol foam depilatories. Plaintiff’s contention at trial and on appeal is that the method of manufacture, particularly the heating and cooling of the formula to the specific temperatures set forth in the exhibit to the agreement, prevents a valve clogging problem common to this type of product and that therefore this “process and method” of manufacture is a legitimate trade secret which Barr appropriated by using the process in the manufacture of subsequent products.

Defendant Morris Root, a chemist and the Barr vice-president who executed the contract with plaintiff, testified that he did not know what “processes and methods” meant in the context of the contract, but that he felt certain when the contract was entered into that the formula must have contained “secret ingredients,” because he had been making depilatories using the same manufacturing procedure that was used for plaintiff for many years.

Sam Rogers testified for plaintiff that he had conducted many experiments while seeking to eliminate the valve clogging problem that had once been common to aerosol foam depilatories. He stated that 85 °C was the optimum temperature for melting the first ingredient in the formula, because that ingredient, an emulsifier, will develop “bubbles” or “globules” if it is heated at temperatures a few degrees higher or lower. On cross-examination, Rogers stated that no bubbles appear at 75°C, but later stated that some bubbles are present if the emulsifier is heated to that temperature. He also stated that although 85 °C was the best temperature, giving a specific temperature to the manufacturing workers was a matter of “picking one number” to put into the instructions.

Defendant’s expert witnesses included Dr. Robert Sliwinski. Dr. Sliwinski testified that he had been working with aerosol products since 1959 and that he obtained a patent on a formula for an aerosol foam depilatory in 1967. In his patent he set forth instructions for manufacturing the product which were similar to the process at issue in this case. He did not attempt to patent the production method provided with his formula. Dr. Sliwinski’s production method calls for heating the emulsifier to a range of 75 °C or 80 °C rather than to a specific temperature. He testified that the procedures set out in his patent were common practices among emulsion chemists, and that a range of heating temperatures between 65 °C and 90 °C would create no difference in the emulsion, although if a higher temperature was used a simple adjustment would have to be made to compensate for the evaporation of water in the mixture.

Dr. Paul Sanders, an organic chemist with experience in foam depilatories and the author of two books on aerosol technology, testified that a formula for an aerosol foam depilatory could be heated to within a range of temperatures with no difference in the product and that the temperature to which the mixture is cooled is not important. Dr. Sanders stated that his answer to a contention that a functional depilatory could only be made by cooling and heating the formula to specific temperatures would be that such a statement was “nonsense.”

Peter Cade testified that he was the Director of Research for Croda, Inc., which manufactures the emulsifier which is called “chemical X” in the plaintiff’s formula. He stated that in order to make an emulsion from that product it was only necessary to heat the water to a fairly high temperature, melt the emulsifier, and add the emulsifier to the water with good agitation. He also stated that as long as the heating temperature is above the melting point of the emulsifier, it does not matter how high the temperature gets, so long as the water in the mixture does not boil.

Plaintiff’s first contention on appeal is that the trial court’s finding that plaintiff’s methods and processes are not a protectable trade secret is against the manifest weight of the evidence. The judgment of a trial court sitting in a bench trial will not be reversed as being against the manifest weight of the evidence unless the appellant presents evidence so strong and convincing as to overcome the evidence existing in the appellee’s favor. (Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, 1136, 405 N.E.2d 1076.) The trial judge sitting without a jury evaluates the credibility of the witnesses, and determines the weight to be accorded to contradictory testimony, and his findings are presumed to be correct. See Hill v. Hill (1979), 79 Ill. App. 3d 809, 814, 398 N.E.2d 1048.

In the instant case, the trial court’s findings of fact stated that “[plaintiff’s procedures, methods and processes employing particular temperatures were not of such a special nature so as to possess a protectable value.” A manufacturing process is regarded as a protectable “trade secret” if it is

“ ‘known only to its owner and those of his employees to whom it is necessary to confide it. *** ’ [A] mere mechanical advance in the use of a process is not a new process or discovery. To be a new process there must be employed creative faculties in originating it amounting to a meritorious discovery or invention.” Victor Chemical Works v. Iliff (1921), 299 Ill. 532, 546-47, 132 N.E. 806.

Plaintiff contends that its method of heating the water to 85 °C to dissolve the emulsifier and then cooling the mixture to 30 °C before adding the other chemicals has a unique value because it eliminates the valve clogging problem that plaintiff asserts is present when the mixture is heated to other temperatures. Defendant presented three expert witnesses who testified that the specific temperatures used in the production of a depilatory make no difference in the quality of the product as long as the mixture is heated and cooled within a range of temperatures. Plaintiff’s expert witness was Sam Rogers, who developed the method in issue and sold it to plaintiff. Rogers testified that after many experiments, he determined that 85 °C was the best temperature to use.

During cross-examination on Rogers’ background, defendant produced a membership application submitted by Rogers to the American Chemical Society which stated that he held degrees from M.I.T. and Northwestern University. Rogers admitted that he held no such degrees. He stated that he received an M.D. degree from the Kansas City College of Medicine and Surgery in 1942. The court then took judicial notice of a Missouri Supreme Court decision which affirmed the revocation of the charter of that school in 1926. Rogers testified on surrebuttal that he had been incorrect in his earlier testimony and that he had actually received his degree from the Kansas City University of Physicians and Surgeons in 1943 or 1944, and that his mother had lost his diploma from that school. The trial court remarked that the credibility of Rogers as to “anything other than what exactly he did in the performance of and perfection of his depilatory and ultimately selling it to plaintiff and his relationship with the Pittway-Barr Company has been destroyed, in my estimation, beyond rehabilitation.”

Rogers was the only expert witness who stated that the specific temperatures used in preparing the depilatory were a critical factor in the performance of the product. Defendant’s experts testified that the specific temperatures were unimportant, and it is undisputed that the use of the specific temperatures rather than a range of temperatures is the only difference between plaintiff’s process and common industry practice. We hold that the trial court’s finding that plaintiff’s manufacturing procedure was not a protectable trade secret was not against the manifest weight of the evidence.

Plaintiff’s next contention is that the trial court erred in failing to find that a confidential relationship was created between the parties by Barr’s receipt of the methods and processes, and that that relationship was breached by Barr’s use of the manufacturing methods for clients other than plaintiff. Plaintiff asserts that this relationship existed apart from the secrecy agreement between the parties. The secrecy agreement provides that Barr’s duty of nondisclosure shall terminate if the manufacturing method which was made a part of the agreement should become a matter of general knowledge in the industry. The trial court specifically found that the method was a matter of general knowledge at the time that Barr divulged it to others. Plaintiff essentially seeks to establish an implied duty of nondisclosure which is more far reaching than the duty which the parties made a part of their express contract. Barr’s express duty of nondisclosure had terminated by the time it first used the production method for a client other than plaintiff. Any implied duty of nondisclosure would directly contradict the express agreement of the parties. We also note that matters of common knowledge cannot be transformed into trade secrets by labeling them as such in an agreement. (Packard Instrument Co. v. Reich (1980), 89 Ill. App. 3d 908, 917, 412 N.E.2d 617.) Thus, an express agreement which provided for a perpetual duty of nondisclosure would not have bound Barr to a duty not to disclose the methods and processes. Therefore, we hold that the trial court did not err in refusing to imply such a duty.

Plaintiff also contends that the trial court erred in failing to require that the authenticity of one of defendant’s exhibits be “vindicated” before allowing it into evidence. The exhibit is a production sheet from Barr’s labs which purports to show that Barr did not use plaintiff’s process in producing a depilatory for Depilan, Ltd. The exhibit was first filed as part of Morris Root’s affidavit in support of defendant’s motion for summary judgment and was the subject of a petition filed by plaintiff to show cause why Root and Pittway Corporation should not be held in contempt. On August 20, 1975, the judge who was presiding over this cause prior to the eventual trial judge entered an order finding that the exhibit was a fabrication and holding Root and Pittway in contempt. On September 18, 1975, the same judge vacated the order. The order of vacation is not in the record, but is was presumably entered in response to defendant’s motion to vacate which was filed on September 11, 1975. That motion was supported by affidavits which stated that no intentional alterations were made to the exhibit by defendants. In the September 18 order, the judge also granted defendant’s motion for change of venue. That motion was based on defendant’s asserted inability to receive a fair trial due to the extreme prejudice of the judge to whom the case was assigned at that time.

Plaintiff argues that because of the unusual history of the exhibit, the trial court should have stringently tested its authenticity before receiving it into evidence. Plaintiff cites no appropriate authority in support of the proposition that the exhibit should have been “vindicated.” It is well settled that the admission of evidence is largely within the discretion of the trial judge, and his decision will be disturbed only when that discretion has been clearly abused. (Cratsley v. Commonwealth Edison Co. (1976), 38 Ill. App. 3d 55, 59, 347 N.E.2d 496.) The trial court was not bound by the vacated order which declared the exhibit to be a fabrication, and plaintiff objects to the exhibit on no other grounds. We also note that no prejudice to plaintiff resulted from the admission of the exhibit. The trial court’s holding was based on a finding that plaintiff’s process was not a trade secret; no part of the judgment was premised on a finding that Barr did not use or disclose the process. We hold that the trial court did not abuse its discretion in receiving the exhibit into evidence.

Plaintiff also contends that the trial court committed an abuse of discretion by allowing Peter Cade and Paul Sanders to testify as expert witnesses.

A witness may testify as an expert if he possesses specialized knowledge which will assist the trier of fact. (See Taylor v. Carborundum Co. (1969), 107 Ill. App. 2d 12, 18-19, 246 N.E.2d 898.) This knowledge may be acquired by skill, experience, training, education, or otherwise. See Stanley v. Board of Education (1973), 9 Ill. App. 3d 963, 973, 293 N.E.2d 417.

In the instant case, both of the witnesses complained of testified on the issue of whether the use of specific temperatures rather than a range of temperatures, in the production of an aerosol foam depilatory, makes any difference in the quality of the resultant product. Paul Cade was the director of research of the company which produced the emulsifier used in “Gone.” The duties of his employment included troubleshooting for customers and instructing them in the proper uses of the emulsifier. He had been performing these duties for 12 years at the time he testified. Paul Sanders was a recognized expert on aerosol technology. He was the author of two books on the subject and the recipient of several professional awards. He was familiar with aerosol foam depilatories that used the same ingredients which were contained in “Gone.” Plaintiff’s trial counsel stipulated to his qualifications.

The essence of the testimony of both witnesses was that the specific temperatures used to heat and cool the depilatory formula made no difference in the quality or performance of the product. In light of the experience of the witnesses with the product involved and its ingredients, we cannot say that the trial court abused its discretion in allowing them to testify as experts.

Plaintiff’s next assignment of error is that the trial court should not have permitted defendant’s trial counsel to testify as a witness without requiring him to withdraw from the case. The circumstances surrounding defense counsel’s testimony are as follows: In the latter stages of the lengthy trial of this case, Sam Rogers testified that he had met with defendant’s counsel during the pendency of the litigation, and that during that meeting defendant’s counsel offered him a “substantial” amount of money to testify for defendant. After hearing argument, the trial court allowed defendant’s counsel to testify to that conversation without withdrawing as trial counsel. Defendant’s counsel testified shortly before closing arguments, and stated that he had interviewed Rogers and had told Rogers that he would receive an appropriate expert witness fee if he did in fact qualify as an expert and if the defense decided to call him, but that no other offer of money was ever made to Rogers.

The testimony of an attorney in a case that he is trying should be allowed only when the court, in its discretion, deems it necessary. (Cannella v. Cannella (1971), 132 Ill. App. 2d 889, 893, 270 N.E.2d 114.) Rule 5 — 102(a) of the Illinois Code of Professional Responsibility (79 Ill. 2d R. 5 — 102(a)) provides that an attorney may testify without withdrawing from the case when his withdrawal would “work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.” (79 Ill. 2d R. 5 — 101(b)(4).) American Bar Association Committee on Ethics and Professional Responsibility Formal Opinion 339, issued January 31, 1975, states that one of the situations in which an attorney may properly testify without withdrawing is where a complex suit has been handled for a long period of time by that attorney when an unanticipated development makes the attorney’s testimony necessary. An attorney may testify without withdrawing when surprise testimony is given which only the attorney can rebut. See Cannella v. Cannella (1971), 132 Ill. App. 2d 889, 893.

This trade-secret case, replete with technical testimony and exhibits, proceeded in the circuit court for seven years between the time the complaint was filed and the time defense counsel offered his testimony. Defense counsel had conducted defendant’s case from the pleading stage to trial, and to deprive defendant of counsel familiar with the case in mid-trial because of Roger’s allegations would have been extremely prejudicial to defendant. It should also be noted that the testimony of an attorney who is involved in the trial of the case is not incompetent or inadmissible because of the attorney’s involvement with the case, although that factor goes to the weight to be accorded the testimony. (Manion v. Chicago, Rock Island & Pacific Ry. Co. (1956), 12 Ill. App. 2d 1, 23, 138 N.E.2d 98.) Plaintiff does not contend that defense counsel’s testimony was accorded improper weight by the court. Plaintiff simply asserts that it was prejudiced by the court’s failure to require withdrawal. We hold that the trial court’s decision to allow defense counsel to conclude the trial of this case did not deny plaintiff a fair trial.

Plaintiff’s final contention is that it was deprived of a fair trial because plaintiff’s trial counsel, now deceased, was too ill during trial to present plaintiff’s case adequately, and that a new trial should be granted for that reason. The factual support for this contention is little more than a bare assertion, and no authority is cited for the proposition that a civil judgment may be reversed because of a party’s dissatisfaction with its chosen attorney. It has been held that it is an abuse of discretion to allow a motion for a new trial in a civil case when the basis of the motion is inadequacy of counsel for the losing party. (See Matyskiel v. Bernat (1967), 85 Ill. App. 2d 175, 181, 228 N.E.2d 746.) Plaintiff does not contend that any theory or claim was not presented to the trial court, but only that its case could have been presented better. We find this contention to be meritless.

For the reasons stated herein, the judgment of the trial court is affirmed.

Affirmed.

PERLIN and HARTMAN, JJ., concur.