author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY McCAMBRY, Defendant-Appellant.
    First District (1st Division)
    No. 1-87-3452
    Opinion filed September 3, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Shelton O’Neal Green, Assistant Public Defender, of counsel), for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Anthony L. Burrell, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After a bench trial, the defendant LeRoy McCambry was convicted of robbing David Anderson (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 1(a)). The defendant appeals his conviction.

On October 22, 1986, at approximately 4 a.m., the defendant was arrested for robbing David Anderson. At a preliminary hearing, David Anderson testified: On October 22, 1986, at approximately 1:20 a.m., he was waiting in his car at 40 East 113th Place in Chicago, Illinois. While he waited for his car to start, he fell asleep, and the defendant and Bernard Watts, a codefendant, approached the car. The defendant and Watts threatened Anderson; forced him out of the car; threw him to the ground; held him; beat him; and stole $230, a money order for $190 and his wife’s wedding ring, which was a diamond solitaire, and his wife’s wedding band, which had three small diamond settings. Later that day, Anderson identified his wife’s rings at the police station.

On cross-examination, Anderson testified: He had fallen asleep in his car and the assailants woke him up. He had been drinking earlier that evening. He had some car trouble. He was not sure how long the robbery took place. He pleaded with the assailants. He did not remember how far the nearest light was to his car, but the light was at the corner. Prior to the incident, he had never seen the assailants. He was hit by both assailants. He was “hurting pretty bad” as a result of the robbery.

On July 22, 1987, the State argued its pretrial motion to introduce Anderson’s preliminary hearing testimony on the grounds that Anderson was an unavailable witness. Before ruling on the admissibility of Anderson’s testimony, the court stated “I’ll make a ruling on the admissibility of Mr. Anderson’s purported testimony for the purposes of the truth and falsity of that testimony after I’ve heard all of the evidence relative to the entire issue of admissibility.”

As support for its motion, the State called Rodney Fontaine. He testified: He is employed by the Cook County sheriff’s police department. He was assigned to the State’s Attorney’s office to assist the assistant State’s Attorney assigned to this case. He attempted to locate Anderson. He tried to serve two subpoenas on Anderson. He visited Anderson’s purported residence, 21637 Clyde in Sauk Village, Illinois, three times. Initially, he visited the house before May 1987 and left the subpoena in the mailbox. Then, he visited the house on May 22, 1987, and on June 16, 1987. Anderson’s neighbors said that they had not seen anyone in the house since March of 1987. On the telephone, he spoke with Anderson’s ex-employer, Jewel Foods, in Munster, Indiana, and they told him that Anderson was terminated in February of 1987 and that they did not have any further address or information.

On June 16, 1987, the post office told Fontaine that they sent Anderson’s mail back to the senders. The post office did not have a forwarding address. Anderson’s telephone was disconnected and there was not a forwarding number. When Fontaine ran a “check” on Anderson’s driver’s license, he discovered that Anderson’s license expired in 1986 and that he had previously resided at 8106 South Chap-pel in Chicago. When Fontaine visited 8106 South Chappel, he discovered that Anderson was not living there. The neighbors of such residence said that Anderson had moved to Sauk Village. On June 16, 1987, the Illinois Department of Public Aid indicated that Anderson was not employed and that his last employer was Jewel Foods in Munster, Indiana. On May 22 and June 16, 1987, he spoke with Anderson’s ex-wife, Carolyn Anderson. Carolyn said that Anderson owed her child support and that she had not seen Anderson in several months. “The last she heard he was living out of State, possibly in Indiana with relatives.” She did not know where Anderson was or how to reach him. Carolyn said that she would call Fontaine if she obtained any more information about Anderson. Fontaine did not run any “checks” to determine if Anderson had an address in Indiana.

After hearing arguments, the trial court ruled that the transcript of Anderson’s testimony would be admissible but directed that Carolyn should be contacted one more time to determine if she had any address regarding the witness’ family. Then, the assistant State’s Attorney stated that, as an officer of the court, she spoke with Carolyn two days ago and she had no idea where her husband was located, where his relatives resided or how to find him. Thereafter, the court allowed the transcript of Anderson’s testimony to be allowed into evidence.

On August 4, 1987, the defendant’s and Watts’ trial commenced. The transcript of Anderson’s preliminary hearing testimony was read into the record. Thereafter, the State called Chicago police officer Steven Shoup and he testified: On October 22, 1986, he was working from 12 to 8:30 a.m. with his partner, Patricia Dowling. While Officers Shoup and Dowling were responding to a different incident, they were informed that a robbery occurred at 113th and State and received the offenders’ descriptions. When Officer Shoup was in the area of the robbery, he saw two individuals run from a yard. One of the individuals ran back into the yard, and the second individual, Darryl Williams, was stopped. Sometime later, Officer Shoup placed the defendant under arrest. Later that morning, Bernard Watts was arrested. Officer Shoup was present when the defendant was searched. Two rings were found in the defendant’s pockets. In a lineup, Anderson identified the defendant and Watts as the individuals who robbed him. Officer Shoup was of the opinion that Anderson was not intoxicated.

On cross-examination, Officer Shoup testified: Anderson’s breath smelled of alcohol, his speech was slightly slurred, his eyes were red and he swayed a bit as he stood. He was present at the lineup that included the defendant, Watts and two other men. He identified a photograph that depicted the lineup. The lineup consisted of four black men. Two of the men were wearing black “baseball” hats. The defendant and Watts were not wearing hats.

Then, Carolyn Anderson testified: She had been married to David Anderson, and on October 22, 1986, she was living with David Anderson. On October 26, 1986, she owned an engagement ring and a wedding ring. During the day, she took the rings off and placed them on top of her refrigerator. After David Anderson left her home on October 22, 1986, she never saw her rings again until she came to court and identified them. She had the rings for over three years and she recognized the initials inscribed into the ring. David Anderson had her rings the evening of October 22,1986.

The defendant testified, on his own behalf, to the following: He had never seen those rings before, but he admitted that he had possession of them. On October 22, 1986, he bought the rings from Darryl Williams around 1:45 a.m. at 114th and South Perry. On cross-examination, the defendant stated that he spoke with the police after he was arrested and told the police that the rings were his girl friend’s.

After closing arguments, the court found Watts not guilty and the defendant guilty. The defendant was sentenced to five years’ imprisonment.

Defendant argues that the trial court erroneously admitted Anderson’s testimony. We agree. A witness’ previous testimony may be admitted into evidence at trial, as an exception to the hearsay rule, if the witness has become unavailable and the current opponent of the evidence had the opportunity to cross-examine the witness at the earlier hearing. (In re J.S. (1987), 153 Ill. App. 3d 154, 157, 505 N.E.2d 1128, appeal denied (1987), 115 Ill. 2d 541, 511 N.E.2d 429; People v. Aldaco (1982), 107 Ill. App. 3d 672, 676, 437 N.E.2d 905.) The party seeking admission of a witness’ prior testimony must satisfy a three-pronged test: (1) that the witness is dead or unavailable to testify; (2) that a reasonably diligent, good-faith effort to produce the witness has been made; and (3) that there has been an adequate opportunity to cross-examine the witness at the preliminary hearing. (In re J.S. (1987), 153 Ill. App. 3d 154, 157, 505 N.E.2d 1128; People v. Aldaco (1982), 107 Ill. App. 3d 672, 675, 437 N.E.2d 905.) In short, we reverse the defendant’s conviction because he did not have an adequate opportunity to cross-examine Anderson and, thus, Anderson’s testimony lacked reliability.

The confrontation clause was designed primarily to secure a defendant’s right to cross-examine those witnesses who appeared and testified adversely to the defendant. (Flewallen v. Faulkner (7th Cir. 1982), 677 F.2d 610, 612, cert. denied (1982), 459 U.S. 908, 74 L. Ed. 2d 170, 103 S. Ct. 214.) The United States Supreme Court has recognized that the right of cross-examination would mean little if the admission of hearsay were not also restricted to some degree. Thus, hearsay must pass two tests before it can constitutionally be admitted against a criminal defendant. First, the hearsay must be necessary, which means the declarant must be unavailable for the trial. (Ohio v. Roberts (1980), 448 U.S. 56, 65-66, 65 L. Ed. 2d 597, 607, 100 S. Ct. 2531, 2538; Burns v. Clusen (7th Cir. 1986), 798 F.2d 931, 936-37.) Second, the prosecution must make a showing of particularized guarantees of “trustworthiness” or that the testimony is marked by adequate “indicia of reliability.” (Ohio v. Roberts (1980), 448 U.S. 56, 65-66, 65 L. Ed. 2d 597, 607, 100 S. Ct. 2531, 2539; United States v. Howard (7th Cir. 1985), 774 F.2d 838, 845-46.) Testimony given at a preliminary hearing which was cross-examined by defense counsel is admissable when it has the requisite “indicia of reliability.” (Ohio v. Roberts (1980), 448 U.S. 56, 66, 65 L. Ed. 2d 597, 607-08, 100 S. Ct. 2531, 2539 (where the court found that the confrontation clause was not violated when defense counsel had tested such testimony at preliminary hearing with the equivalent of “significant” cross-examination).) Consequently, the question is not whether there was an opportunity for full and complete cross-examination, but rather, whether there is adequate indicia of reliability.

Here, the defendant was unable to question Anderson about the lineup’s “suggestive nature.” His counsel was not aware that two out of the four men in the lineup wore hats, because Supreme Court Rule 411 did not allow discovery before a preliminary hearing and because cross-examination was limited by the scope of direct examination. We find that defense counsel’s inability or failure to cross-examine Anderson with respect to the lineup was significant and affected the trial court’s ability to gauge the reliability of Anderson’s identification. There simply was not enough time for defense counsel to learn that the lineup was allegedly suggestive, to learn that there were photographs, to issue a subpoena for the photographs and to have the photographs produced at the preliminary hearing. Thus, Anderson’s testimony failed to fulfill the Roberts “indicia of reliability” test because the defendant did not have an adequate opportunity to cross-examine Anderson about what Anderson claimed to know and the claimed basis for the knowledge.

Based upon the foregoing, the defendant’s conviction is reversed.

Reversed.

MANNING, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    WESLEY STEAD, Plaintiff-Appellant, v. GLENN VALENTINE et al., Defendants-Appellees.
    First District (1st Division)
    No. 1-89-3211
    Opinion filed September 3, 1991.

      Propp & Schultz, of Chicago (David V. Schultz, of counsel), for appellant.
    Bollinger & Ruberry, of Chicago (Nicholas Riewer and Ciara R. Ryan, of counsel), for appellee Michael Construction Company.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Wesley Stead appeals from the trial court’s order which granted summary judgment in favor of Glen and Linda Valentine and the Michael Construction Company on the grounds that Stead could not recover under the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60).

On or before June 19, 1984, Stead worked for John Warrener, a roofer. The general contractor, the Michael Construction Co., paid John Warrener to reshingle the Valentines’ house roof. The house’s roof was pitched with two sides. At the rear of the house, an approximately eight-foot-wide wooden sun porch or balcony was attached. The porch was on the second story, approximately 25 feet above the ground. The porch was enclosed by railings which were approximately 3V2 feet high. The porch was supported by railings which attached to the side of the house and the porch’s floor. In addition, the porch was supported by two beams. The porch was not being repaired. After completing a day’s work, Stead walked to the middle of the porch to retrieve his trowel and shingles wrapping that he had dropped. While he was in the middle of the porch, the porch collapsed and he was injured.

Subsequently, Stead filed a complaint alleging, inter alia, a violation •of the Structural Work Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.). The trial court granted summary judgment in favor of the Valentines and the Michael Construction Co. on the grounds that the porch was not a “support” within the meaning of the Act. The Act states:

“All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Ill. Rev. Stat. 1987, ch. 48, par. 60.

At John Warrener’s deposition, he stated the following: On June 19, 1984, he erected an aluminum extension ladder at the rear of the Valentines’ house. The ladder was placed towards the roof’s peak and to the left of the porch, so he could gain access to the higher or uppermost part of the roof. The ladder was not placed next to the porch in order to use the porch in any way. The ladder was not placed next to the porch so that materials could be set upon the porch when he ascended or descended the ladder.

Additionally, at Wesley Stead’s deposition, he testified to the following: The ladder was already in position before he started working on the Valentines’ house. The porch was not involved in the roofing. After completing a day’s work, Stead climbed onto the ladder to descend from the roof. While Stead was on the ladder, he had a five-gallon “bucket” of tar in his right hand and a pulley was on top of the bucket of tar. He was holding onto the ladder with his left hand. As he was coming down the ladder, he stopped at the deck and set the bucket and the pulley on the railing. The railing was a wooden “two by four.” Then, he stepped on the railing with both feet. Next, he heard the railing start to crack, so he put his hands on the railing and his feet on the porch’s floor. He walked to the middle of the porch to get his trowel and to pick up the shingles wrapping. When he was in the middle of the porch, it caved in and he fell to the ground, injuring himself. After the porch collapsed, the railing remained in place with the five-gallon bucket of tar and pulley still resting on top of it. Additionally, the following colloquy was exchanged:

“Q. So this [porch] was not in a way being used to aid you or assist you in doing your roofing job, was it?
A. Not the [porch] itself, but the railing, we used it for bracing ourselves as we’re [sic] coming up the ladder or coming down like I did when I set the [tar] on there so I could climb onto the [porch].
Q. But the only reason you would climb onto the balcony was to take the paper off that you had thrown there earlier?
A. Yes.”

Stead appeals, contending that his injury falls within the Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.). In particular, Stead argues that the trial court erroneously granted summary judgment in favor of the Valentines and the Michael Construction Co. because the porch was a “support” within the meaning of the Act. We disagree.

The Act was enacted to protect workers engaged in extra-hazardous occupations of working in and about construction. (Meyer v. Caterpillar Tractor Co. (1990), 135 Ill. 2d 1, 7-8, 552 N.E.2d 719; Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 423, 512 N.E.2d 1223.) “While the Act is to be liberally construed to effectuate this purpose, the Act was not intended to cover any and all construction activities and the hazards attendant thereto.” (Meyer v. Caterpillar Tractor Co. (1990), 135 Ill. 2d 1, 8, 552 N.E.2d 719.) “By its terms, the Act speaks only to the peculiar hazards presented by certain support devices engaged in the enumerated structural work activities.” (Meyer, 135 Ill. 2d at 13, citing Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 423-24, 512 N.E.2d 1223; Long v. City of New Boston (1982), 91 Ill. 2d 456, 467-68, 440 N.E.2d 625.) Whether a certain device falls within the Act is a matter of statutory construction and, thus, a question of law. (Smith v. Excello Press, Inc. (1988), 169 Ill. App. 3d 1084, 1091, 523 N.E.2d 1231, appeal denied (1988), 122 Ill. 2d 594, 530 N.E.2d 265, citing Page v. Corley Cos. (1985), 131 Ill. App. 3d 56, 58, 475 N.E.2d 571.) In determining whether a certain device falls within the Act, the following three-prong test is used: (1) the device’s intended use at the time of the injury, (2) whether the injury had some connection •with the hazardous nature of the device; and (3) whether this was the danger that the legislature attempted to alleviate. Smith v. Excello Press, Inc. (1988), 169 Ill. App. 3d 1084, 1091-92, 523 N.E.2d 1231, appeal denied (1988), 122 Ill. 2d 594, 530 N.E.2d 265; Ashley v. Osman & Associates (1983), 114 Ill. App. 3d 293, 297-98, 448 N.E.2d 1011.

Based upon our application of the test stated above to the facts of this case, we find that the Act does not apply to Stead’s injury because the porch is not covered by the Act. First, at the time of Stead’s injury, he used the porch in its traditionally intended purpose. He simply walked across the porch’s floor to retrieve the papers and trowel that he had dropped. Stead plainly used the floor as a floor, the purpose for which it was designed. The porch’s floor was not being used as a scaffold or as a support when he was injured. Second, Stead’s activity, i.e., walking on the porch and retrieving his trowel and the wrappers that he had dropped, is not a hazardous activity. (See Vuletich, 117 Ill. 2d 417, 512 N.E.2d 1223.) Third, we do not believe that Stead’s actions on the porch were within the contemplation of the Act. Thus, his activity does not constitute a protected structural work activity. Similarly, in Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1093, 428 N.E.2d 1051, citing Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 325 N.E.2d 607, the court stated, “a floor is not a scaffold when it is being used merely as a walkway.” Also, in Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 664, 418 N.E.2d 1011, the court held that the floor of a building was not being used as a working platform at the time of the plaintiff’s injury when the plaintiff tripped over debris on a completed floor.

However, Stead cites Meyer v. Caterpillar Tractor Co. (1990), 135 Ill. 2d 1, 552 N.E.2d 719, as authority for his argument that the Act applies to his action, contending that he used the railing as support for his materials and that the railing was part of the porch. In Meyer v. Caterpillar Tractor Co. (1990), 135 Ill. 2d 1, 12-13, 552 N.E.2d 719, the Illinois Supreme Court held that the Act applies to devices used for the support of materials, as well as workers, where the device is among those listed in the Act and the device is “erected or constructed ‘for the use in the erection, repairing, alteration, removal or painting’ of any of the enumerated structures.” We are not persuaded by Stead’s argument that the porch supported his materials. When Stead was injured, he was on the porch’s floor, and the porch, even if the railing is part of the porch, was not being used as support for Stead or his materials. Additionally, there is not any evidence that the porch had been erected or constructed originally as a scaffold. It was a permanent porch. While, generally, it has been held that a permanent structure, used as a stay or temporary support, is within the broad coverage of the Act, the element of danger involved in its use and whether this was the danger which the legislature was attempting to alleviate must be considered. We do not believe, under the facts present here, that the porch, even if the railing is part of the porch, was intended by the legislature to be within the meaning of a scaffold or support erected or constructed for the use in repairing a house. A finding that the porch, again assuming that the railing is a part thereof, was a scaffold or support device would encompass a hazard extremely remote from the dangers contemplated by the Act and such a finding would be unwarranted where the hazard was unrelated to the dangers generally associated with scaffolds and supports. Further, we note “that case law clearly states that the Act should not be expanded by strained or unnatural interpretations and that this is especially true if other remedies, such as workers’ compensation and tort remedies, are available to the plaintiff.” Smith v. Excello Press, Inc. (1988), 169 Ill. App. 3d 1084, 1097, 523 N.E.2d 1231, appeal denied (1988), 122 Ill. 2d 594, 530 N.E.2d 265, citing Quinlin v. Northwestern Steel & Wire Co. (1985), 139 Ill. App. 3d 535, 538, 487 N.E.2d 1124.

Consequently, the Valentines and the Michael Construction Co. were entitled to summary judgment because the pleadings, depositions and affidavits showed that there was no genuine issue as to any material fact. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421, 512 N.E.2d 1223.) Accordingly, the circuit court of Cook County’s order granting summary judgment in favor of the Valentines and the Michael Construction Co. is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRELL CALDWELL, Defendant-Appellant.
    First District (1st Division)
    No. 1-90-0295
    Opinion filed September 3, 1991.

      Elliot R. Zinger, of Chicago, for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Walter Hehner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Terrell Caldwell appeals from his convictions, following a jury trial, for attempted murder, aggravated battery, and armed violence (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 12 — 4, 33A — 2) in the shooting of Dedrick Jones. Defendant also challenges the propriety of the 30-year prison term imposed for those convictions.

We affirm.

The victim, Dedrick Jones, testified at trial that at approximately 12:30 a.m. on December 14, 1986, he was driving alone in his automobile when he stopped to talk to a friend at the intersection of Chicago Avenue and Harding Street, near a roller skating rink. A group of approximately 10 young men surrounded the car. Defendant, defendant’s brother, and Chris Younger were among those at the driver’s side of the automobile. Jones heard someone identify him as “one of them,” and observed defendant reach over the half-opened driver’s side car door window to open the door, which had no handle, from the inside. Jones wrestled with defendant in an effort to remove defendant’s hands from inside the car. Defendant removed his hands from inside the car and grabbed “something shiny.” Jones started the car. He then felt a sharp pain and realized he had been shot. Because he had lost feelings in his legs, Jones could not prevent the car from rolling toward Chicago Avenue, where it collided with another vehicle driven by Roy Parnell. Jones later identified, for police, defendant, defendant’s brother, and Younger from a group of seven photographs as the individuals involved in the incident.

Roy Parnell testified he saw a group of 8 to 10 young men chasing Jones’ car, beating it with sticks, and pulling at Jones as he drove. After Jones’ automobile struck Parnell’s vehicle, Parnell approached Jones. Jones explained he had been shot.

Rodney Williams also witnessed the incident. Williams saw defendant, defendant’s brother, and Younger, all members of a particular street gang, present at the driver’s side door of Jones’ automobile. Defendant was the closest to the driver’s side door. Williams stated defendant’s brother asked Jones why Jones had brought members of a rival street gang to the area. Defendant then reached into the driver’s side window with a gun in his hand and shot Jones. As the car moved away, the gun fell. Williams stated Younger retrieved the gun and fired it again at Jones’ car.

Williams identified defendant, defendant’s brother, and Younger in a police lineup as those involved in the incident and specifically identified defendant as the individual who fired the gun. Williams’ identifications were confirmed by the testimony of Chicago police detective Gene Harris.

Chris Younger also testified for the State. Younger stated he, defendant, and defendant’s brother were members of the same street gang. On the day of the incident, Younger and defendant had accompanied defendant’s brother in search of a rival street gang member to revenge an earlier altercation. Later, when they saw members of their own street gang surround Jones’ car, they approached at the driver’s side. Defendant attempted to open the driver’s side door as the car rolled forward. Defendant reached into the window of the car and Younger heard a shot. Younger stated only defendant was beside the driver’s side door when the shot was fired.

On appeal, defendant first contends the evidence was insufficient to prove him guilty beyond a reasonable doubt.

In assessing a challenge to a criminal conviction based on insufficiency of the evidence, the question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) In that determination, a reviewing court is not free to substitute its judgment for the trier of fact on questions involving the weight of the evidence or the credibility of witnesses. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.

The testimony presented at trial amply supported defendant’s convictions. Jones positively identified defendant as the individual who shot him. His identification was corroborated by both Williams and Younger. Williams specifically testified that he saw defendant reach into Jones’ car with a gun and fire the shot. Based on that testimony, there exists no reason to disturb the jury’s determination of defendant’s guilt.

Defendant also argues that he was denied a fair trial because comments made during closing argument by the State misstated the law of accountability and did so in a manner which left the jury with the impression that the defendant could be found guilty by mere association if it determined he was a street gang member.

Defendant, however, has waived the opportunity here to object to the closing remarks because he failed to object to the remarks at trial and failed to preserve that objection in his written post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Given the positive identification of defendant as the individual who shot Jones, we further conclude the plain error doctrine unavailable to defendant to otherwise permit consideration of the issue. People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.

Defendant next contends the trial judge abused his discretion in denying defendant a hearing on a motion for a new trial in light of the attached affidavit, of Michael H. Branks, a private investigator, indicating Younger had recanted his testimony. Branks’ affidavit stated Younger had told Branks that an individual other than the defendant shot Jones after reaching through the open driver’s side rear window.

A motion for a new trial based on newly discovered evidence is addressed to the discretion of the trial judge, and the motion’s denial will not be disturbed upon review in the absence of a showing of an abuse of discretion. (People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199.) Courts generally view recanted testimony with caution absent sufficient proof to establish that the earlier testimony was indeed perjured. People v. Nash (1966), 36 Ill. 2d 275, 222 N.E.2d 473, cert. denied (1967), 389 U.S. 906, 19 L. Ed. 2d 223, 88 S. Ct. 222.

The record simply does not support the argument that the trial judge abused his discretion. The parties stipulated at trial that the physician who initially treated defendant for the gunshot wound would testify the bullet entered at the nipple of Jones’ chest and passed diagonally downward, from left to right. Younger’s purported recantation that Jones was shot from the back is inconsistent with the stipulated testimony as to the nature of Jones’ wound. Given that evidence, and considering the skepticism with which recantations are viewed in the absence of independent facts indicating the initial testimony was perjured, we cannot conclude the denial of the motion was improper.

Lastly, defendant concedes the 30-year prison term imposed was within the permissible statutory sentencing range but contends the sentence was nevertheless excessive in view of his age, lack of prior criminal record, and potential for rehabilitation.

Because defendant was 17 years old at the time of the shooting, his prosecution under the Criminal Code was not prohibited or limited even though he was then a minor. (See Ill. Rev. Stat. 1985, ch. 37, par. 702 — 7(4).) As for mitigating factors, we must presume the trial judge properly considered the presentence investigation report as well as defendant’s counsel’s offer of proof that defendant had not been involved in like prior incidents and had helped to care for his family. (See People v. Goodman (1983), 116 Ill. App. 3d 125, 451 N.E.2d 607; People v. Shumate (1981), 94 Ill. App. 3d 478, 419 N.E.2d 36.) In short, no reason exists which would allow the substitution of our own judgment for that of the trial judge in determining the appropriateness of defendant’s sentence.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


text:
    ANGELA MOORE, Indiv. and as Mother and Best Friend of Corey Moore, a Minor, Plaintiff-Appellee, v. ONE STOP MEDICAL CENTER et seq., Defendants (Albert Milford et al., Defendants-Appellants).
    First District (1st Division)
    No. 1-90-2157
    Opinion filed September 3, 1991.

      Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, Robert J. Franco, and Anne Scheitlin, of counsel), for appellant Albert Milford.
    Bollinger & Ruberry, of Chicago (Barry G. Bollinger and Timothy J. Young, of counsel), for appellant Habans Gill.

      Law Offices of Dennis T. Schoen, P.C., of Chicago (Michael L. Vittori, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Codefendants, Drs. Milford and Gill, appeal the trial court’s authority to strike Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) language from a previous order that dismissed plaintiffs’ complaint.

On May 28, 1985, plaintiff Angela Moore, individually and as mother and next friend of Corey Moore, a minor, filed a two-count complaint. Count I was against Dr. Harbans Gill, Chicago College of Osteopathic Medicine, Chicago Osteopathic Medical Center, and Dr. A. Milford et al. Count II was against the Chicago College of Osteopathic Medicine and Chicago Osteopathic Medical Center.

Subsequently, Dr. Milford filed a motion to dismiss pursuant to section 2 — 612 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 612), contending that the complaint contained insufficient allegations. On November 6, 1985, the trial court granted Dr. Milford’s motion and struck count I. The court also granted the plaintiffs leave to file an amended complaint within 28 days, which was on or before December 4,1985.

On February 4, 1987, Dr. Milford filed a motion for judgment on the pleadings, pursuant to section 2 — 612 of the Illinois Code of Civil Procedure, contending that the plaintiffs never filed an amended complaint. On May 5, 1987, the court heard Dr. Milford’s motion and counsel for Dr. Gill appeared. During argument on Dr. Milford’s motion, the following colloquey was exchanged:

“THE COURT: *** Count I was dismissed in ’85 *** why would anyone want to dismiss—
DR. MILFORD’S COUNSEL: Because *** they sent an amended complaint over—
THE COURT: But is [sic] has not been filed?
PLAINTIFFS’ COUNSEL: No, it has not.
DR. MILFORD’S COUNSEL: No, it has not, your Honor.
THE COURT: Then there is nothing to dismiss.”

Additionally, at the close of Dr. Milford’s argument, counsel for Chicago Osteopathic stated, “I would only concur with the co-defendant” and counsel for Dr. Gill said, “same with me.” On May 5, 1987, trial judge Nicholson granted, with prejudice, Dr. Milford’s motion for judgment on the pleadings. In pertinent part, the order stated the following:

“This cause coming on to be heard on the motion of defendant, due notice having been given, and the Court being fully advised in the premises,
IT IS HEREBY ORDERED THAT defendant Dr. Milford’s Motion for Judgment on the Pleadings with respect to Count I is granted with prejudice.
IT IS FURTHER ORDERED THAT there is no just reason to delay the enforcement or appeal of this order pursuant to Supreme Court Rule 304.” (Emphasis in original.)

The plaintiffs did not seek a reconsideration, did not attempt to vacate the dismissal order, nor did they appeal.

On August 27, 1987, defendants Chicago College of Osteopathic Medicine and the Chicago Osteopathic Medical Center (collectively referred to as Chicago Osteopathic) filed a motion for judgment on the pleadings. Dr. Milford and Dr. Gill received notice of Chicago Oste-pathic’s motion for judgment on the pleadings. Thereafter, Chicago Osteopathic’s motion was set for hearing on November 24, 1987. Dr. Milford and Dr. Gill received notice that Chicago Osteopathic’s motion would be presented on November 24, 1987. On November 24, 1987, by agreed order, Chicago Osteopathic’s motion was continued. The November 24, 1987, order stated that “[i]t is hereby ordered that Defendant’s Motion for Judgment on the pleadings is entered and continued to *** February 22, 1988, without further notice.” (Emphasis added.) On February 22, 1988, trial judge Quinn denied Chicago Osteopathic’s motion and sua sponte vacated the final and appealable language of the May 5,1987, order with respect to Dr. Milford.

Thereafter, on August 22, 1988, plaintiff filed an amended motion to vacate the May 5, 1987, order with respect to the minor plaintiff. Notice was served upon Dr. Milford and Chicago Osteopathic. After several continuances and briefing schedules, the amended motion to vacate was heard on April 18, 1989. Dr. Gill did not receive notice of the motion to vacate and did not appear at the hearing. On April 18, 1989, the court vacated the May 5, 1987, judgment as to the minor Corey Moore and refused to vacate the final and appealable nature of the order as to the adult plaintiff, Angela Moore. Further, the court indicated that it would certify the vacatur of the May 5, 1987, order for interlocutory appeal pursuant to Supreme Court Rule 308.

On February 26, 1990, the court denied Dr. Milford’s motion to reconsider the vacatur.

Pursuant to Supreme Court Rule 308(a), the certified issue for interlocutory appeal is “whether the [t]rial [j]udge acted within her discretion on April 18, 1989, in vacating an order of dismissal as to the minor plaintiff only, which order was entered with 304(A) language on May 5, 1987, for plaintiff’s failure to refile a [c]omplaint within one year after dismissal for [w]ant of [p]rosecution, and where another [t]rial [j]udge had stricken the finding of finality by appealability sua sponte from the dismissal order on February 22, 1988.”

Dr. Milford argues that Judge Quinn erroneously vacated the May 5, 1987, order that dismissed Dr. Milford with respect to the minor plaintiff’s complaint, contending that the May 5, 1987, order was final and appealable because the order contained Supreme Court Rule 304(a) language, i.e., that there was “no just reason to delay the enforcement or appeal of this order.” We disagree. The trial court did not lose jurisdiction with respect to the May 5, 1987, order because the order was not final. The minor plaintiff’s failure to file an amended complaint within the time specified by the court is characterized as a dismissal for want of prosecution and, thus, was not an adjudication on the merits. (Kraus v. Metropolitan Two Illinois Center (1986), 146 Ill. App. 3d 210, 213-15, 496 N.E.2d 1080.) Plaintiff’s dismissal had to have been for want of prosecution because count I of plaintiff’s complaint had been stricken, thus, there were not any pleadings to dismiss pursuant to section 2 — 612 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 612). Contrary to the doctors’ assertion at oral argument, the record does not reflect that the plaintiff stated that he would stand on count I of his original complaint.

Accordingly, under section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217), a party who receives a dismissal for want of prosecution may refile his action within one year or within the remaining period of limitations, whichever is greater. (Kraus v. Metropolitan Two Illinois Center (1986), 146 Ill. App. 3d 210, 213, 496 N.E.2d 1080.) In the case at bar, the minor plaintiff failed to refile an amended complaint within one year. However, pursuant to section 13 — 211 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 211), the applicable statute of limitations for the minor plaintiff did not run until January 15, 1993, which is within two years from the time the minor attains the age of 18 years. Thus, the minor plaintiff could amend his complaint until January 15, 1993, and the May 5, 1987, order was not final. “[I]t is well established that inclusion of Rule 304(a) language does not make a nonappealable order final and appealable.” (O’Hara v. State Farm Mutual Automobile Insurance Co. (1985), 137 Ill. App. 3d 131, 134, 484 N.E.2d 834, citing Smith v. Goldstick (1982), 110 Ill. App. 3d 431, 442 N.E.2d 551; Aetna Casualty & Surety Co. v. Le Pes (1972), 3 Ill. App. 3d 817, 279 N.E.2d 184.) Accordingly, because the order was not final, the trial court improperly included Supreme Court Rule 304(a) language. Thus, the trial court retained jurisdiction over the matter.

The defendants argue that Judge Quinn improperly reviewed Judge Nicholson’s May 5, 1987, order. We disagree. Because, the May 5, 1987, order was not final, as discussed above, it was interlocutory, meaning the order did not dispose of all of the parties’ rights and liabilities. (Peoples Gas Light & Coke Co. v. Austin (1986), 147 Ill. App. 3d 26, 31, 497 N.E.2d 790.) Consequently, Judge Quinn had the power to review and amend the order if he believed it was erroneous. Peoples Gas Light & Coke Co. v. Austin (1986), 147 Ill. App. 3d 26, 31, 497 N.E.2d 790.

Additionally, Dr. Gill argues that Judge Quinn’s order is void because he did not receive notice of the court’s intention to vacate the final and appealable language in the May 5, 1987, order. We disagree. The record clearly reflects that Dr. Gill received notice that Chicago Osteopathic’s motion was pending and received notice of the continuances. The order which continued that motion to February 22, 1988, explicitly stated that the motion was continued without further notice. Thus, Dr. Gill was not denied due process. He had notice of the February 22,1988, motion.

Dr. Gill also argues that Judge Nicholson’s April 18, 1989, order, which vacated the May 5, 1987, order granting judgment on the pleadings, is void with respect to him because he did not receive notice of the motion. We agree. “Parties to an action who have properly appeared are entitled to notice of any motions and hearings.” (City of Chicago v. American National Bank & Trust Co. (1988), 171 Ill. App. 3d 680, 688, 525 N.E.2d 915.) Further, Supreme Court Rule 104(b) provides that “written motions *** shall be filed with the clerk with a certificate of counsel or other proof that copies have been served on all parties who have appeared.” (134 Ill. 2d R. 104(b).) Dr. Gill was entitled to notice before the May 5, 1987, order was vacated with respect to the minor plaintiff because the modification clearly affected his rights and he was entitled to be heard. Accordingly, Judge Quinn’s February 22, 1988, order that vacated the final and appealable language still stands with respect to Dr. Gill. However, the April 18, 1989, order which vacated the May 5, 1987, judgment was void with respect to Dr. Gill because he did not receive notice and was denied his constitutional rights to due process. City of Chicago v. American National Bank & Trust Co. (1988), 171 Ill. App. 3d 680, 688-89, 525 N.E.2d 915.

In conclusion, the “final and appealable” language was properly stricken and the May 5, 1987, order was properly vacated with respect to Dr. Milford. However, the trial court’s order vacating the May 5, 1987, order as to Dr. Gill was void because he did not receive notice of the motion.

Reversed in part; affirmed in part; and remanded.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE WHITE

text:
    THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Plaintiff-Appellant, v. DEBORAH HARRIS et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1-89-2361
    Opinion filed September 4, 1991.

      Board of Education of City of Chicago, of Chicago (Patricia J. Witten and Camille E. Willis, of counsel), for appellant.
    Witwer, Burlage, Poltrock & Giampietro, of Chicago (Wayne B. Giampie-tro and Sharon M. Goss, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

A hearing officer appointed by the State Board of Education (the State Board) directed that defendant Deborah Harris be reinstated as a schoolteacher. Plaintiff, the Board of Education of the City of Chicago (the board), sought administrative review in the circuit court of Cook County, naming the State Board and Marvin Hill, Jr. (the hearing officer), as additional defendants. The circuit court affirmed the hearing officer’s decision.

On appeal, neither party formally contests the hearing officer’s finding that Harris’ conduct was insubordinate and unbecoming a teacher. Rather, the parties frame three issues, involving the adequacy of Harris’ predismissal warnings, the nature of the proceedings before the hearing officer, and the question of irremediability. We need not address the first two issues at length, for we reverse on the third, holding that Harris’ conduct was irremediable.

I. PROCEDURAL HISTORY

The board suspended Harris from her employment and instituted dismissal proceedings against her, charging both insubordination and conduct unbecoming a teacher. The hearing officer found that Harris had been insubordinate but that the board had not demonstrated that her conduct had been irremediable. The hearing officer thus decided that she should not be dismissed and directed the board to reinstate her.

The circuit court affirmed the hearing officer’s findings but remanded the cause for additional findings on (1) whether Harris had engaged in conduct unbecoming a schoolteacher; (2) if so, whether such conduct had been irremediable; and (3) whether Harris’ actions in relation to all charges against her had constituted irremediable conduct.

After remand, the hearing officer found that Harris had engaged in unbecoming conduct but that her actions had not constituted irremediable conduct either separately or in combination.

The board then filed a supplemental complaint for administrative review, but the court affirmed the hearing officer’s decision after remand. This appeal ensued.

II. Facts

The administrative hearing record, including the hearing officer’s findings, reveals the following salient facts.

Harris had been employed by the board as a teacher since 1971 and for the first 12 years received “superior” or “excellent” ratings. During the 1983-84 school year, while she was teaching at Thomas Brenan Elementary School, her school was assigned a new principal, and Harris then received an “unsatisfactory” rating. The rating was rescinded after she filed a grievance, and she subsequently filed a discrimination charge and then a retaliation charge with the Illinois Department of Human Rights.

Prior to the beginning of the 1985-86 school year, she was administratively transferred to John D. Shoop Elementary School. However, when she reported there, no position was available for which she held a teacher’s certificate, and she performed miscellaneous duties. According to her principal’s testimony, he soon found it possible to assign her to a third-grade classroom for which she was certified, but she told him that she had a special status calling for her to be assigned only to the fifth grade and that she would supply him with pertinent documentation. The principal testified that he never received such documentation.

On or about September 16, 1985, the principal assigned her to an eighth-grade classroom to replace a teacher who had gone on medical leave. At first she refused the assignment but accepted it under protest the next day. When the original teacher returned from leave, that teacher was assigned to a reading laboratory, and Harris continued to teach the eighth-grade class.

Harris complained of depression and back problems as a result of stress from the eighth-grade classroom, which was disorganized and contained several students with disciplinary and emotional problems. A physician prescribed medication but eventually concluded that her condition precluded further teaching duties, and she obtained a medical leave of absence. Meanwhile, a fact-finding conference on her human rights charges was conducted.

In the summer of 1986, Harris’ physician concluded that she could return to employment but not to classroom duties. According to Harris, she sent a copy of his letter to the attorney who was then representing her and asked him to forward it to the board. She testified that later the attorney told her that he had done so.

In August 1986, Harris asked the board for reinstatement to her teaching position and was told to report to Shoop School.

On September 2, 1986, Harris reported to Shoop School and was assigned to a seventh-grade class. According to Harris, she told her principal that her physician had sent a letter to the board saying that she could not perform classroom duties. She testified that, later on the same day, she told the district superintendent the same thing. The principal and district superintendent denied that Harris had so informed them, and the hearing officer found that she had not done so. Eventually, though, in mid-October 1986, Harris sent each of them a copy of her physician’s letter.

The principal and district superintendent testified that Harris had refused to accept her 1986 assignment. However, the principal acknowledged that Harris had suggested that he telephone the board’s attorneys regarding her failure to accept her assignment but that he never did so.

Harris continued to report to Shoop School until about October 22 and usually remained in the office of the school’s community representative. According to her testimony, she performed miscellaneous tasks there, even though she received no pay for any day after the first.

The principal told Harris by letters on September 2 and 18 that she was assigned to the seventh grade and that refusal to accept the assignment might subject her to charges of irremediable conduct unbecoming a teacher. However, the board itself never served Harris with a notice to remedy the failure to accept her assignment.

The principal also handed Harris a memorandum at the end of each day on which she reported. Each memorandum told her that she had failed to teach her assigned classroom and that the school had been required to engage a substitute teacher. After September 2, 1986, the district superintendent made no effort to talk with Harris and ascertain why she was refusing to accept her assignment, though he talked with her principal about her every one or two days.

The director of the board’s bureau of teacher personnel provided Harris with a presuspension hearing on November 13, 1986. Following the hearing, at which Harris appeared with counsel, the director recommended that a proposed recommendation for Harris’ suspension and dismissal be presented to the board as soon as possible. Then, on November 19, 1986, the board adopted charges against Harris, thereby initiating formal dismissal proceedings. Her suspension from employment began on November 21, 1986, when she received notice of the board’s action.

IIL ANALYSIS

A. LAW OF DISMISSAL AND REMEDIABILITY

Under section 34 — 85 of the School Code (Code) (Ill. Rev. Stat. 1985, ch. 122, par. 34 — 85), no permanently appointed teacher in the Chicago public school system is to be removed except for cause. The local board must first approve a motion containing written charges presented by the general superintendent of schools, and written notice of the approved charges is to be served on the teacher. If requested by the teacher, a hearing is then to be held before a disinterested hearing officer paid by the State Board of Education and selected by the parties from a list furnished by the State Board. Pending the hearing, the teacher may be suspended pursuant to local board rules but, if acquitted, is to suffer no pay loss.

At the dismissal hearing, the teacher may appear with counsel, cross-examine witnesses, and present evidence and defenses. Afterward, the hearing officer is to make a final decision on whether the teacher is to be dismissed. Under section 34 — 85b of the Code (Ill. Rev. Stat. 1985, ch. 122, par. 34 — 85b), the hearing officer’s decision is subject to the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 101 et seq.).

If the causes for dismissal may be deemed remediable, the local board is not to serve notice of charges unless the teacher has first been given reasonable written warning, specifying the causes that, if not removed, might result in charges. (Ill. Rev. Stat. 1985, ch. 122, par. 34 — 85; Board of Education v. State Board of Education (1987), 160 Ill. App. 3d 769, 773, 513 N.E.2d 845, 847 (Parkman).) However, as stated in section 24A — 5 of the Code, the warning requirement does not apply if the teacher’s deficiencies are deemed irremediable. (Ill. Rev. Stat. 1985, ch. 122, par. 24A — 5; Parkman, 160 Ill. App. 3d at 773, 513 N.E.2d at 847.) The warning requirement is also inapplicable (Ill. Rev. Stat. 1985, ch. 122, par. 34 — 85) if the causes for dismissal have been the subject of a remediation plan developed under article 24A of the Code (Ill. Rev. Stat. 1985, ch. 122, par. 24A — 1 et seq.); however, no plan had been developed for Harris.

The statutory written warning, when required, must be sent by or at the direction of the local board and must state causes that may result in charges leading to dismissal; a written warning from a principal without prior local board approval is insufficient. (Litin v. Board of Education (1979), 72 Ill. App. 3d 889, 893, 391 N.E.2d 62, 64-65; cf. Stratton v. Wenona Community Unit District No. 1 (1990), 133 Ill. 2d 413, 551 N.E.2d 640.) If insufficient written warning is given to a tenured teacher prior to dismissal proceedings, the local board has the burden of proving not only that causes for dismissal existed but also that those causes were irremediable. (Parkman, 160 Ill. App. 3d at 773, 513 N.E.2d at 847; Morris v. Board of Education (1981), 96 Ill. App. 3d 405, 411-12, 421 N.E.2d 387, 392.) If the local board fails to prove irremediability in such a case, it is deprived of jurisdiction to seek dismissal of the teacher. Parkman, 160 Ill. App. 3d at 773, 513 N.E.2d at 847; Chicago Board of Education v. Payne (1981), 102 Ill. App. 3d 741, 749, 430 N.E.2d 310, 316.

A teacher’s conduct is irremediable if it (1) has caused significant damage to students, the faculty, or the school and (2) could not have been corrected even if superiors had given the teacher the statutorily prescribed warning. (Gilliland v. Board of Education of Pleasant View Consolidated School District No. 622 (1977), 67 Ill. 2d 143, 153, 365 N.E.2d 322, 326; Parkman, 160 Ill. App. 3d at 776, 513 N.E.2d at 849; see Board of Education of School District No. 131 v. State Board of Education (1983), 99 Ill. 2d 111, 119-21, 457 N.E.2d 435, 439-40 (Slavin).) However, subsequent cases have seen at least two refinements of the Gilliland-derived irremediability test. First, it has been held that individual acts, separately remediable, may be irremediable when considered in totality; they must have long continued, and a court may consider whether the cause for dismissal is itself irremediable and whether the teacher demonstrated willingness to correct the conduct. (Parkman, 160 Ill. App. 3d at 779, 513 N.E.2d at 851.) Second, criminal conduct has been held to be irremediable per se regardless of the test. E.g., McBroom v. Board of Education of District No. 205 (1986), 144 Ill. App. 3d 463, 474, 494 N.E.2d 1191, 1198. See generally Thurston, Dismissal of Tenured Teachers in Illinois: Evolution of a Viable System, 1990 U. Ill. L. Rev. 1.

In the present cause, if Harris’ conduct had been remediable, the principal’s own written warnings and daily memoranda could not have constituted a statutorily required predismissal warning, because they were not the product of a decision by the board. Thus, to support Harris’ statutorily unwarned dismissal, the irremediability of her conduct was one of the facts that the board had to prove.

At oral argument before us, the board’s counsel rightly receded from a position taken in briefs, instead agreeing that the hearing officer, not the board, was the fact finder on remediability and that his findings, not the board’s, are what merit deference on administrative review. Indeed, this court has rejected contentions similar to those from which the board now recedes here. See Board of Education, School District No. 151 v. Illinois State Board of Education (1987), 154 Ill. App. 3d 375, 381, 507 N.E.2d 134, 138-39 (Weathers); Board of Education, Niles Township High School District No. 219 v. Epstein (1979), 72 Ill. App. 3d 723, 726, 391 N.E.2d 114, 116.

It is true that some cases have appeared to state a rule of appellate deference to a local board’s (rather than a hearing officer’s) decision on remediability. E.g., Gilliland, 67 Ill. 2d at 153, 365 N.E.2d at 326; Hegener v. Board of Education (1991), 208 Ill. App. 3d 701, 732, 567 N.E.2d 566, 586; Board of Education v. Box (1989), 191 Ill. App. 3d 31, 39, 547 N.E.2d 627, 632; deOliveira v. State Board of Education (1987), 158 Ill. App. 3d 111, 121, 511 N.E.2d 172, 179; Fadler v. State Board of Education (1987), 153 Ill. App. 3d 1024, 1027, 506 N.E.2d 640, 643; McBroom v. Board of Education of District No. 205 (1986), 144 Ill. App. 3d 463, 473, 494 N.E.2d 1191, 1198; Stamper v. Board of Education of Elementary School District No. 143 (1986), 141 Ill. App. 3d 884, 887, 491 N.E.2d 36, 38; Szabo v. Board of Education of Community Consolidated School District 54 (1983), 117 Ill. App. 3d 869, 872-73, 454 N.E.2d 39, 42; Chicago Board of Education v. Payne (1981), 102 Ill. App. 3d 741, 749, 430 N.E.2d 310, 316; Morris v. Board of Education (1981), 96 Ill. App. 3d 405, 411, 421 N.E.2d 387, 392; Lowe v. Board of Education (1979), 76 Ill. App. 3d 348, 355, 395 N.E.2d 59, 63; Yuen v. Board of Education of School District No. 46 (1966), 77 Ill. App. 2d 353, 358, 222 N.E.2d 570, 572.

However, each of those cases either involved a dismissal that predated the present statutory system of impartial hearing officers (Gilliland, 67 Ill. 2d 143, 365 N.E.2d 322; Morris, 96 Ill. App. 3d 405, 421 N.E.2d 387; Lowe, 76 Ill. App. 3d 348, 395 N.E.2d 59; Yuen, 77 Ill. App. 3d 353, 222 N.E.2d 570) or, without discussion or reliance, merely cited outmoded precedent stemming from such a dismissal (e.g., Hegener, 208 Ill. App. 3d 701, 567 N.E.2d 566; Box, 191 Ill. App. 3d 31, 547 N.E.2d 627; Szabo, 117 Ill. App. 3d 869, 454 N.E.2d 39). Meanwhile, in Board of Education of School District No. 131 v. Illinois State Board of Education (1980), 82 Ill. App. 3d 820, 823-24, 403 N.E.2d 277, 279-80 (Murray), the distinction between present and former dismissal procedures, and the resulting shift of appellate deference from the local board to the hearing officer, was clearly pointed out. (See also Pub. Act 79 — 561, §1, eff. Aug. 26, 1975 (amending Ill. Rev. Stat. 1973, ch. 122, par. 24 — 12) (governing dismissals in districts outside Chicago); Pub. Act 80 — 1308, §1, eff. Aug. 7, 1978 (amending Ill. Rev. Stat. 1977, ch. 122, par. 34 — 85) (governing dismissals in Chicago district).) Moreover, even in those modern cases that cited the old rule of deference to the local board, actual deference to a local board’s own determination of irremediability typically was not shown. Rather, hearing officers heard local boards’ evidence on irremediability de novo, and the appellate court discussed the evidence in the same light. See Hegener, 208 Ill. App. 3d 701, 567 N.E.2d 566; Box, 191 Ill. App. 3d 31, 547 N.E.2d 627; Fadler, 153 Ill. App. 3d 1024, 506 N.E.2d 640; McBroom, 144 Ill. App. 3d 463, 494 N.E.2d 1191; Szabo, 117 Ill. App. 3d 869, 454 N.E.2d 39; Payne, 102 Ill. App. 3d 741, 430 N.E.2d 310.

Having now reaffirmed that dismissal hearings before hearing officers are de novo proceedings, at which preponderance of the evidence is the standard of proof on factual issues (see Board of Education v. State Board of Education (1986), 113 Ill. 2d 173, 189, 497 N.E.2d 984, 990 (Kimbrough)), we turn to the central issue of this cause: whether Harris’ conduct was remediable.

B. IRREMEDIABILITY OF HARRIS’ CONDUCT

We must decide whether the hearing officer’s finding of reme-diability, though normally entitled to deference, was contrary to the manifest weight of the evidence or was erroneous as a matter of law.

The board contends that Harris’ conduct should not be judged by the two-part Gilliland remediability standard (i.e., insignificant damage and potential corrigibility) but should be regarded as irremediable per se in the same way as criminal conduct has been regarded. (See McBroom, 144 Ill. App. 3d at 473-74, 494 N.E.2d at 1198.) Acknowledging that Harris’ conduct was not criminal, the board argues nevertheless that, like the theft from a student’s locker that was classified as irremediable per se in McBroom, Harris’ insubordination was unconnected with teaching deficiencies or corporal punishment, it reflected an abnormal employee behavior norm, and it had “no legitimate basis in our society” (McBroom, 144 Ill. App. 3d at 474, 494 N.E.2d at 1198). The board also argues that Harris was intended to be a role model and that flaunting her insubordination subverted that function, just as criminal conduct was seen to do in McBroom.

In reply, Harris denies that she was shown to have flaunted any insubordination, asserting that in any event the McBroom analogy is strained. She contends that simply reporting to school, signing in, and working in the school community representative’s office constituted neither flaunting nor conduct unbecoming a teacher, even if other teachers saw her. In addition, Harris contends that cases amounting to adjudications of irremediability per se have been limited to criminal conduct. McBroom, 144 Ill. App. 3d 463, 494 N.E.2d 1191 (theft); Chicago Board of Education v. Payne (1981), 102 Ill. App. 3d 741, 430 N.E.2d 310 (illegal drug possession); cf. Board of Education of Argo-Summit School District No. 104 v. State Board of Education (1985), 138 Ill. App. 3d 947, 487 N.E.2d 24 (Hunt) (“immoral” conduct of pinching young girls’ buttocks).

Alternatively, if the two-part Gilliland test for irremediability does apply, the board argues that, despite the hearing officer’s finding of no damage, Harris’ conduct must have damaged the students. The board reasons that this was because of Harris’ role-model status and because the proficiency of the students’ substitute teacher must have been impaired by anxiety over potential job displacement if Harris were to return to the classroom. The board contends that, because the amount of such damage is immeasurable, the mere fact that some damage occurred should be enough to satisfy the first part of the Gil-liland test.

The board also argues that, even though the hearing officer found Harris’ conduct to be less serious than in certain reported cases of ir-remediability, Harris’ conduct in fact was more serious. The board contends that Harris’ permanent refusal to accept her classroom assignment was more serious than the unauthorized temporary absences in three irremediability cases, while being just as intentional and willful as the conduct in those cases. (Christopherson v. Spring Valley Elementary School District (1980), 90 Ill. App. 3d 460, 413 N.E.2d 199; Pittel v. Board of Education of School District 111 (1974), 20 Ill. App. 3d 580, 315 N.E.2d 179; Yuen v. Board of Education of School District No. 46 (1966), 77 Ill. App. 2d 353, 222 N.E.2d 570.) In addition, the board argues that Harris had engaged in similar conduct a year earlier, that she had been warned not to repeat it, and that certain other cases of remediability on which the hearing officer relied were not factually comparable.

The board contends that, although the hearing officer found no damage, he failed to make a finding as to whether Harris’ conduct could have been corrected if she had been given a statutory warning. The board continues that, as demonstrated by her persistent three-month refusal to take her assignment, Harris’ conduct clearly could not have been corrected by a statutory warning.

Finally, the board argues that the hearing officer failed to consider evidence of other damage to the school system, such as the need to procure and supervise temporary substitute teachers, to draft numerous letters and memoranda, and to communicate with Harris’ eventual assigned substitute; the psychological stress on Harris’ principal and colleagues; and the public knowledge that a board employee had refused to perform her duties.

Harris replies that the school’s classroom schedule had not been disrupted and that, in fact, because the principal did not expect Harris to return to teaching at the beginning of the 1986-87 school term, the principal already had a full complement of teachers on hand at that time. Harris also argues that the evidence as to what occurred in conferences between her and school authorities was conflicting but that the principal admittedly was asked by her to call the board about her status and failed to do so. She also argues that by October the principal and district superintendent were admittedly given a copy of her doctor’s letter but failed to request a medical examination, discuss her situation further with her, check official board records of her status, issue a formal warning letter, or do anything else to resolve her situation except refer her case to the board’s law department.

Harris also argues that her conduct contrasts with the irremediable conduct of teachers in Christopherson and Yuen. She asserts that she never announced her intention to defy a board ruling, her doctor’s advice constituted a reasonable justification for her insubordination, her conduct had not harmed the board, and there is nothing in the record to show that she would not have corrected her behavior if she had been formally warned. Harris also compares her case to others in which conduct was found to have been remediable.

Harris contends that, in order to support a claim of irremediability and thus rid itself of an employee whose human rights complaint was pending, the board allowed her case to languish for months without ever issuing a statutory warning (despite her principal’s request for one) or otherwise bringing the case to a head. Harris argues that a board is not permitted to withhold a statutory warning in order that once-remediable conduct might continue for long enough to justify a determination that, by the passage of time, it had become irremediable. Hegener, 208 Ill. App. 3d at 738, 567 N.E.2d at 590; Paprocki v. Board of Education of McHenry Community High School District No. 156 (1975), 31 Ill. App. 3d 112, 114, 334 N.E.2d 841, 844.

The board denies that it purposely allowed Harris’ conduct to continue unwarned in order to support an eventual finding of irreme-diability. The board reasons that, because Harris had relented and accepted an assignment in 1985 after one day of refusal, the board was entitled to assume that she would behave similarly in 1986. The board asserts that, by the time it became clear that she would not relent in 1986, her conduct had become irremediable through no fault of the board’s.

To decide this cause, we need not consider the board’s invitation to expand a concept of per se irremediability. Instead, we agree with the board’s alternative argument: that Harris’ conduct was irremediable as judged by the normal two-part Gilliland test. We believe that the hearing officer’s decision to the contrary was based on an incorrect view of the law.

The first part of the Gilliland test for irremediability requires that the teacher’s conduct have caused damage to students, faculty, or school. Here, the hearing officer found “little, if any, detrimental effect on the students” from Harris’ refusal to accept her assignment. The hearing officer reasoned that the students were “better off” with their capable substitute teacher than they would have been with “a recalcitrant Mrs. Harris.” By definition, however, if Harris had taught her class, she would not be “recalcitrant.” Harris was not found to be any less competent than the substitute teacher; Harris merely was unwilling to teach as assigned.

We feel that the hearing officer put the cart before the horse: Harris was not recalcitrant because a substitute teacher was found; rather, school administrators had to find the substitute because Harris was recalcitrant. Any question of comparing Harris’ recalcitrance to a substitute’s competence would never have arisen had Harris performed her duty. By the hearing officer’s logic, no matter how severe the damage that a teacher’s conduct threatened, school officials whose efforts succeeded in minimizing or averting the damage would also have automatically immunized the conduct from unwarned dismissal proceedings. Besides, whether or not Harris’ conduct damaged the students, it damaged the faculty and the school — which the hearing officer acknowledged. That damage to faculty morale, parental relations, and orderly school administration certainly satisfied the Gilli-land test’s first part.

The second part of the Gilliland test requires that the conduct have been incapable of correction even if the teacher had been warned. It is true that a board cannot lawfully evade its predismissal warning duty by purposely allowing a teacher’s conduct to persist long enough to be classified as irremediable and thus exempt from the warning requirement. The hearing officer was mystified as to why, despite the principal’s request to do so, the board never gave Harris an official written warning. However, Harris did not actually show that the board’s failure to warn was a subterfuge to expedite dismissal. Neither did she show that she would have altered her conduct if officially warned by the board in writing. On the contrary, she persisted despite many oral and written warnings by the principal and the district superintendent — warnings that referred to the possibility of losing her position if she did not comply.

While the lack of a written board warning may be decisive of whether the board must prove irremediability, it need not be decisive of the irremediability question itself. We think that the history of this cause amply shows that, even had Harris received an official written warning from the board rather than the warnings she did receive, she would have continued her insubordinate and unbecoming conduct.

According to the board’s evidence, Harris insisted that she would not accept a classroom assignment, demanded that the principal call the board’s attorney to learn why, and, six weeks into the school year, finally advised the principal and district superintendent of a medical problem. She maintained her refusal throughout meetings with district personnel as well as with the principal. According to Harris, she repeatedly spoke of a medical problem, beginning with her first 1986 contact with the principal. However, Harris acknowledged that she never communicated with the board’s administrative offices about her claim of a medical problem, and that she simply reported to the school’s community representative’s office each day despite the principal’s instructions to report to a classroom. The hearing officer specifically found that Harris did not inform the principal of a medical problem as early as she said she did. The hearing officer also found that Harris had a duty to make school authorities aware of any medical problem she claimed and that it was insufficient for her simply to demand that they call the board’s attorney: “If there was any misunderstanding it was created by Mrs. Harris who, from day one, made it clear that she was not interested in teaching.”

In order to avoid any appearance of leading Harris down the path of irremediability by passage of time, it would have been better if the board itself had promptly given her an official written predismissal warning. However, the warnings she did receive included references to possible dismissal. From her reaction to those warnings, we think it is clear that she would have behaved the same way even if they had come on a different letterhead. Thus, while the board’s failure to give a written warning in the board’s name required it to prove irreme-diability, the nonboard warnings that Harris received and defied are persuasive evidence of irremediability.

This is not a case in which a teacher went without any warnings at all until suddenly irremediability was alleged to have resulted from the passage of time. (Cf. Hegener, 208 Ill. App. 3d at 739, 567 N.E.2d at 591 (“cases which deal with the principle of once remediable conduct becoming irremediable *** require some continuing warning that the conduct *** was inappropriate”).) Rather, this is a case of patent irremediability resulting from Harris’ obstinate defiance of the repeated warnings that school officials gave her, as well as from the passage of time. Irremediability having thus been clearly shown, no formal written warning in the board’s own name was required in order to dismiss Harris. The hearing officer and circuit court erred in concluding otherwise.

Accordingly, the judgment of the circuit court and the decision of the hearing officer are reversed and remanded.

Reversed and remanded.

CERDA, P.J., and RIZZI, J., concur.

       This opinion was authored prior to Justice White’s retirement.


author: JUSTICE LINN

text:
      In re MARRIAGE OF EVANGELIA TRAVLOS, Petitioner-Appellee, and DIONISIOS TRAVLOS, Respondent-Appellant.
    First District (4th Division)
    No. 1-90-1355
    Opinion filed September 5, 1991.
    Rehearing denied October 3, 1991.
    John Thomas Moran, Jr., of Chicago, for appellant.

      Matthew J. Berardi, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

The circuit court of Cook County entered a judgment dissolving the marriage of petitioner, Evangelia Travlos, and respondent, Dioni-sios Travlos. Included in the judgment was a distribution of the marital assets.

Dionisios subsequently filed a petition for relief from judgment. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401.) He petitioned the trial court to vacate the judgment and redistribute the marital assets. The trial court dismissed the petition. Dionisios then filed a motion to vacate the dismissal; the trial court denied the motion. Dionisios appeals from both orders, contending that the trial court exceeded its discretion.

We affirm the orders of the trial court.

Background

A

The record contains the following pertinent facts. On October 22, 1985, Evangelia filed an amended petition for dissolution of marriage. In the petition, after describing their marital property, Evangelia alleged that she had “no assets, income, or property.”

On October 28, 1987, Evangelia filed a response to Dionisios’ request for production of documents. She stated in pertinent part:

“1. Petitioner [Evangelia] has had no legal, equitable or beneficial interest [in] any bank accounts for the period of January 1, 1984 to present, except as Guardian of Nick Vasilatos in that capacity held a checking and a money market account held at the First National Bank of Lincolnwood from approximately December 1985 until his demise in March 1987. No documents pertaining to these accounts are in possession of [Evangelia], being retained in the possession of [her probate attorney].”

On November 10, 1987, Evangelia filed an affidavit in which she stated as follows:

“II. *** Petitioner [Evangelia] further states that she personally owns no real estate in any foreign country but had acquired an interest in vacant farm land belonging to her uncle [Nicholas Vasilatos] and she believes that a Greek Court divested her of that interest. Matters pertaining to said proceeding both in the Probate Court of Cook County and in a Greek Court were documented by papers now in the possession of her probate attorney ***.
[III]E. Affiant [Evangelia] had personal control over two bank accounts at the First National Bank of Lincolnwood, a checking account and a Money Market Account in her name and that of Nicholas Vasilatos, her uncle, a disabled person. These accounts became the subject matter of a Probate proceeding handled by [Evangelia’s probate attorney] and he was given all of the documents in her possession and he retains same to this date.”

On November 16, 1987, Evangelia testified in a deposition as follows:

“Q. Are there any other accounts that you have any money in at the present time?
A. No.
Q. Any accounts in Greece?
A. No.
Q. Is that property now yours?
A. No, they took it away from me.
Q. When did they take it away?
A. I don’t know exactly.
Q. Were you in Greece at the time they took it away?
A. I was, but I didn’t know, I found out later.
Q. When you were in Greece it didn’t happen that they took this property away from you?
A. No. They did, they have it, but I didn’t know at the time
Q. Who was the person who claimed the right to the property?
A. His nephew.
Q. So as you know, this property was taken away from you and now belongs to the nephew?
A. Yes.”

On April 11, 1988, Evangelia testified during her direct examination at trial as follows. Dionisios owned property in Greece prior to their marriage, but they built a house on the property subsequent to the marriage. Further, they spent between $2,000 and $3,000 annually, for 16 or 17 years, to maintain the property. The fair market value of the property with the house was between $40,000 and $50,000. She last saw this property in 1980. Evangelia’s attorney asked her whether she or Dionisios owned any other real estate in Greece. She testified that Dionisios owned farmland in Greece that he acquired prior to the marriage.

During cross-examination by Dionisios’ counsel, Evangelia provided additional testimony on Dionisios’ land in Greece. Dionisios’ counsel questioned Evangelia on how Dionisios acquired the land, and the extent of the furnishings of the house in Greece. Dionisios’ counsel did not question Evangelia on her interest in the land acquired from her uncle.

On October 27, 1988, the trial court entered judgment dissolving the marriage of Evangelia and Dionisios. The judgment also allocated their assets. One such provision is as follows:

“V. That each of the parties shall be awarded their [sic] respective properties located in Greece, free and clear of any interest that the other may have therein.”

B

On November 23, 1988, Dionisios filed his first post-trial motion. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203.) Dionisios raised therein various issues pertaining to the distribution of marital property. On January 26,1989, the trial court denied the motion.

On February 7, 1989, Dionisios filed a second post-trial motion — a petition to vacate the judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). Dionisios alleged as follows. He learned facts that would have changed the judgment had they been available. Dionisios learned of these facts from a pleading in the estate proceeding of Evangelia’s uncle. Further, Evangelia knew of these facts long before the trial court entered judgment, “but she misled [the trial court] by either omitting to reveal them affirmatively or by deliberately stating falsehoods when asked about them specifically.”

Dionisios accused Evangelia of individually owning land in Greece. On August 26, 1985, Evangelia contracted with her uncle to buy, based on Greek property law, the “naked title” to a parcel of land in Greece. In May 1986, Evangelia contracted to buy the “use or usu-fruct” of the same property.

Dionisios noted that litigation ensued in Greece over the right to possess the above-mentioned property. He alleged that Evangelia prevailed in the Greek litigation approximately one year prior to the entry of judgment. Dionisios charged that Evangelia “lied on a number of occasions *** and falsely stated that she had no right to the possession or title to that property.” As an example, Dionisios specifically referred to Evangelia’s November 16, 1987, deposition, where she stated that the land was taken away from her. Dionisios alleged that at that deposition, Evangelia “knew that she had prevailed in the litigation in Greece and was the legal owner of the full title to that property.” Further, despite her victory in that litigation, Evangelia “has continually maintained the contrary throughout these proceedings.”

The petition also alleged that on September 2, 1985, Evangelia’s uncle devised to her various parcels of farmland in Greece. The petition alleged that Evangelia “omitted to inform the [trial court] of her ownership of these parcels of real estate.”

Dionisios also accused Evangelia of having “control and access to a secret account at an unknown financial institution in Athens, Greece, having a current balance of *** approximately $23,000.00.” Dionisios alleged that Evangelia concealed the existence and her use of this fund. On April 17, 1990, the trial court granted Evangelia’s motion to strike and dismissed Dionisios’ section 2 — 1401 petition to vacate the judgment.

On May 9, 1989, Dionisios filed a third post-trial motion. In his “Emergency Motion,” he asked the trial court to vacate the dismissal of his section 2 — 1401 petition. Dionisios essentially repeated the allegations in his section 2 — 1401 petition. He attached a certified English translation of a decision of a Greek appellate court, which apparently reversed a lower court and ruled in Evangelia’s favor. The appeal was decided on November 24, 1987, and, according to its procedure, entered on December 8, 1987. Dionisios specifically charged that Evangelia “never revealed to [the trial court] or corrected her deposition testimony that the Greek property had been ruled to be hers.” On May 11, 1989, the trial court denied Dionisios’ emergency motion. Dionisios appeals from the trial court’s dismissal of his section 2— 1401 petition to vacate the judgment, and from the trial court's denial of his emergency motion to vacate the dismissal.

Opinion

The legal principles that pertain to a petition for relief from judgment are quite settled. The cases are legion. A trial court cannot review its own judgment after the expiration of 30 days from the date of entry. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505, 165 N.E.2d 294, 296.) However, section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401), formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), provides a procedure for obtaining relief from final orders and judgments after 30 days from the date of entry. Plavec v. Plavec (1961), 30 Ill. App. 2d 345, 348, 174 N.E.2d 578, 579.

The statute substitutes a simple remedy for the relief previously available through various common law writs. The function of a section 2 — 1401 petition is to bring before the court that rendered a judgment facts not appearing of record which, if known to the court at the time judgment was entered, would have prevented its rendition. (Petrauskas v. Motejunas (1971), 133 Ill. App. 2d 293, 296, 272 N.E.2d 805, 807-08.) Although courts apply the provision with the aim of achieving justice, section 2 — 1401 was never intended to give a litigant a new opportunity to do that which should have been done in an earlier proceeding. The provision was never intended to relieve a litigant of the consequences of his mistake or negligence. Malek v. Lederle Laboratories (1987), 152 Ill. App. 3d 493, 497, 504 N.E.2d 893, 895.

A section 2 — 1401 proceeding is a new action separate and apart from the proceeding in which the judgment complained of was entered. A section 2 — 1401 petitioner bears the burden to allege and prove facts sufficient to justify relief. (Petrauskas, 133 Ill. App. 2d at 296, 272 N.E.2d at 808.) Where the petition fails to state a cause of action or shows on its face that the petitioner is not entitled to relief, the petition is subject to a motion to dismiss. Ostendorf v. Internartional Harvester Co. (1982), 89 Ill. 2d 273, 279-80, 433 N.E.2d 253, 256.

Based on the foregoing, a section 2 — 1401 petitioner must allege and prove: (1) that if the ground for relief had been known at the time judgment was entered, it would have prevented the entry of judgment against him; and (2) that failure to discover and present the ground for relief was not the result of his own lack of diligence. (Ostendorf, 89 Ill. 2d at 283, 433 N.E.2d at 257; Mutual National Bank v. Kedzierski (1968), 92 Ill. App. 2d 456, 460, 236 N.E.2d 336, 338.) Specifically, to set aside a judgment based on newly discovered evidence, it is quite settled that the evidence must be such as could not reasonably have been discovered at the time of or prior to the entry of the judgment. Meudt v. Travelers Insurance Co. (1978), 57 Ill. App. 3d 286, 294, 372 N.E.2d 902, 908; Ulrich v. Glyptis (1967), 79 Ill. App. 2d 447, 453-54, 224 N.E.2d 581, 585.

Lastly, we noted earlier that Evangelia did not answer the allegations in Dionisios’ section 2 — 1401 petition. Rather, the trial court granted her motion to strike. Therefore, we must accept as true his well-pled allegations, and the only issue before this court is whether the petition adequately sets forth sufficient facts to show that the trial court exceeded its discretion in dismissing the petition. (See Johnson v. Steiner (1988), 179 Ill. App. 3d 556, 560, 534 N.E.2d 391, 394.) The petition is addressed to the sound discretion of the trial court. A court of review will disturb the trial court’s ruling only if the trial court clearly exceeded its discretion. Meudt, 57 Ill. App. 3d at 294, 372 N.E.2d at 908.

Applying these principles to the case at bar, we conclude that Dionisios failed to plead sufficient facts to support the requirements of a section 2 — 1401 petition. Dionisios alleged essentially that Evangelia: (1) bought an interest in land, and subsequently full title thereto, from her uncle, Nicholas Vasilatos; (2) received a devise of additional Greek land from the same uncle; and (3) held a “secret” bank account in Greece.

We first turn to Dionisios’ allegation that Evangelia held approximately $23,000 in “a secret account at an unknown financial institution in Athens, Greece.” Dionisios does not supply any supporting affidavits or other information, such as the name of the bank, to support this bald allegation. Only well-pleaded facts stand admitted for the purpose of our review of a section 2 — 1401 petition. (Kedzierski, 92 Ill. App. 2d at 462, 236 N.E.2d at 339.) We hold that this allegation is insufficient to establish Dionisios’ right to section 2 — 1401 relief. See State Bank v. Fair Winds, Inc. (1979), 73 Ill. App. 3d 597, 600-01, 392 N.E.2d 638, 640-41; Kedzierski, 92 Ill. App. 2d at 461-63, 236 N.E.2d at 338-39.

We next turn to Dionisios’ allegations that Evangelia individually owned land in Greece. Dionisios alleged that on August 26, 1985, Evangelia bought an interest in Greek land and, in May 1986, she bought full title thereto, from her uncle. Dionisios also alleged that on September 2, 1985, Evangelia’s uncle devised to her various additional parcels of farmland in Greece.

After closely reviewing the record, we conclude that the evidence that Dionisios presents could reasonably have been discovered prior to the entry of judgment. Evangelia notified Dionisios of these facts during pretrial discovery approximately one year prior to the entry of judgment. She stated that she had acquired the interest in the land, but she believed that a Greek court divested her of that interest. She additionally stated that she was her uncle’s guardian and that he died in March 1987. She also stated that her probate attorney possessed documents and other information pertaining to all of these matters. At trial, Dionisios’ counsel cross-examined Evangelia on several matters, but did not question her on her interest in the land acquired from her uncle. Armed with Evangelia’s statements several months prior to trial and approximately one year prior to judgment, Dionisios should reasonably have been able to discover and present this evidence prior to the entry of judgment. This conclusion, standing alone, would require us to affirm the trial court’s dismissal of the section 2 — 1401 petition.

Dionisios, however, contends that he exercised due diligence in presenting the evidence of Evangelia’s Greek real estate. He alleged in his section 2 — 1401 petition not only that the proffered evidence would have changed the result, but also that Evangelia concealed the information. Dionisios is correct that the fraudulent concealment of evidence is a factor in determining whether a section 2 — 1401 petitioner exercised due diligence in discovering and presenting the ground for relief. (Malek, 152 Ill. App. 3d at 497-98, 504 N.E.2d at 895-96.) Courts reason that when an opponent suppresses information, as to prevent the inquirer from realizing what has occurred, the failure to discover the information is the result of the opponent’s fault and not the inquirer’s negligence. 152 Ill. App. 3d at 499, 504 N.E.2d at 897, quoting Ostendorf, 89 Ill. 2d at 284-85, 433 N.E.2d at 258.

To prove fraud, the complainant must show that the other party falsely stated a material fact or concealed a material fact that he had a duty to disclose; the fact was intentionally misstated or concealed to induce the complainant to act; and that the complainant detrimentally relied upon the misstatement or the nonexistence of the fact. The complainant bears the burden of proving fraud by clear and convincing evidence. In re Marriage of Bashwiner (1982), 107 Ill. App. 3d 772, 779, 438 N.E.2d 490, 495 (and cases cited therein).

After carefully reviewing the record, we conclude that the element of detrimental reliance is absent from the case at bar. We initially note that Dionisios did not even allege in his section 2 — 1401 petition that Evangelia’s conduct was the cause of his delay in presenting the new evidence. This defect alone requires us to affirm the trial court’s dismissal. See Jordan v. Jordan (1976), 38 Ill. App. 3d 781, 784, 349 N.E.2d 116, 119-20; Kedzierski, 92 Ill. App. 2d at 462, 236 N.E.2d at 338-39.

Even if Dionisios made such an allegation, the record shows that he could not support it. As an example of Evangelia’s fraud, Dionisios cited the Greek litigation of her interest in the land which she bought from her uncle. Evangelia disclosed this interest during pretrial discovery: a November 10, 1987, affidavit and a November 16, 1987, deposition. She further stated however, that litigation ensued, and that she believed that she lost her interest in the land. In his subsequent “Emergency Motion,” Dionisios presented a certified English translation of a decision of a Greek appellate court. The court apparently reversed a lower court and ruled in favor of Evangelia. In his section 2 — 1401 petition, Dionisios alleged that at the time of her affidavit and deposition, Evangelia “knew that she had prevailed in the litigation in Greece and was the legal owner of the full title to that property.”

This example of Evangelia’s fraud is illogical and lacks merit. The decision of the Greek appellate court states, apparently according to its procedure, that the court decided the case on November 24, 1987, and entered judgment on December 8, 1987. It is logically impossible for Evangelia to have lied on November 10 and 16 about an outcome that occurred on November 24. Dionisios’ section 2 — 1401 petition and subsequent motion do not attempt to explain the absurdity. “A statement which is merely an expression of opinion or which relates to future or contingent events, expectations or probabilities, rather than to pre-existent or present facts, ordinarily does not constitute an actionable misrepresentation.” (Metropolitan Bank & Trust Co. v. Oliver (1972), 4 Ill. App. 3d 975, 978, 283 N.E.2d 62, 64; Plavec, 30 Ill. App. 2d at 349, 174 N.E.2d at 579.) Courts regard such statements as mere promises or conjectures upon which the other party has no right to rely. Hayes v. Disque (1948), 401 Ill. 479, 488, 82 N.E.2d 350, 355.

Pursuing this argument, Dionisios alleges throughout his section 2 — 1401 petition and subsequent motion that Evangelia never “corrected the deposition testimony that the Greek property had been ruled to be hers.” It is quite settled, however, that mere silence or a failure to communicate information, absent a duty to do so, does not constitute fraud. Zanbetiz v. Trans World Airlines, Inc. (1966), 72 Ill. App. 2d 192, 201, 219 N.E.2d 98, 102-03.

Dionisios was obliged to prove his case. The appeal before the 'Greek court was decided approximately 10 to 11 months prior to the entry of judgment in the case at bar. He had notice of the Greek litigation approximately five months prior to trial. At trial, Dionisios’ counsel did not question Evangelia on the Greek litigation. The record does not support Dionisios’ allegations of fraud.

In sum, Dionisios’ allegations of fraud fail because he does not, and the record demonstrates that he cannot, show that Evangelia’s statements caused his delay in presenting his new evidence. The issue of detrimental reliance necessarily includes the question of whether Dionisios had a right to rely on Evangelia’s alleged misrepresentations. We view this question in light of all of the facts of which Dioni-sios had actual notice, and also of such facts as he might have obtained by the exercise of ordinary prudence. If Dionisios did not avail himself of the means of knowledge open to him, he cannot be heard to say that he was misled by misrepresentations. (See Plavec, 30 Ill. App. 2d at 349, 174 N.E.2d at 580; see also Lagen v. Lagen (1973), 14 Ill. App. 3d 74, 81, 302 N.E.2d 201, 206.) We cannot say that the trial court exceeded its discretion in dismissing Dionisios’ section 2 — 1401 petition and denying his subsequent motion to vacate the dismissal.

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

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.