author: JUSTICE JOHNSON

text:
    ALL PURPOSE NURSING SERVICE, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.
    First District (4th Division)
    No. 1—88—3273
    Opinion filed October 25, 1990.

      Merle L. Royce and Marshall J. Burt, both of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Constantine John Gekas, of Harvitt & Gekas, of Chicago, for respondent Bonnie Walton.
   JUSTICE JOHNSON

delivered the opinion of the court:

This matter comes before the court on direct appeal from the Illinois Human Rights Commission (hereinafter the Commission), pursuant to section 8 — 111 of the Illinois Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 111(A)(3)). Petitioner, All Purpose Nursing Service, appeals from a decision and order of the Commission that reversed the determination of the administrative law judge (hereinafter the ALJ) that petitioner discriminated against Bonnie Walton by unlawfully discharging her from its employ.

We affirm.

Background

Bonnie Walton, an employee of All Purpose Nursing Service, filed a Human Rights Act charge against her employer on September 17, 1981. Ms. Walton claimed that she was unlawfully discharged on September 16, 1981, because she was subpoenaed to appear as a witness against her employer in another case before the Commission known as In the Matter of Vickie Forni and Quality Care Nursing Home (hereinafter Forni). On January 18, 1983, the Commission issued a complaint alleging that All Purpose Nursing Service fired Ms. Walton because she was a witness against it in another proceeding in violation of section 6 — 101(A) of the Illinois Human Rights Act. Ill. Rev. Stat. 1987, ch. 68, par. 6-101(A).

On November 14 and 15, 1983, a hearing was held before Administrative Law Judge Grace Dickler. The administrative record shows that Ms. Walton received favorable performance reviews. Ms. Walton was given an “excellent” evaluation in every category (attendance, attitude, cooperation, phone etiquette, and quality of work) in her March 20, 1980, review. In her evaluation of May 2, 1980, she was rated “good” in every category. Her supervisor noted that she could not give Ms. Walton a rating of “excellent” because of that supervisor’s then short tenure. In addition, Ms. Walton received regular merit pay raises from May 1979 until June 1981.

Ms. Walton had a problem with tardiness earlier in her employment. This problem was remedied when her work schedule was changed. Ms. Walton’s supervisor, Mary Lou Drilich, testified that Ms. Walton was tardy and absent from early August until her termination on September 16, 1981. However, the ALJ excluded the evidence offered to document Ms. Walton’s tardiness and her absenteeism on the grounds of hearsay and for lack of a proper foundation for business records. In addition, Ms. Drilich had no firsthand knowledge of the alleged absenteeism and tardiness because the two women took two consecutive vacations between August 10 and September 14, 1981.

In September 1981, Ms. Walton was called to testify in the Forni case. The Forni case was a complaint filed by Vickie Forni, a former employee of Elmhurst Quality Care (now called All Purpose Nursing Service). Ms. Forni alleged that she was wrongfully discharged from her job because she was pregnant. During the summer of 1981, Charles O’Donnell, the firm’s vice-president, took Ms. Walton and another employee to lunch and suggested that they be loyal to All Purpose Nursing Service in the Forni matter.

On September 11, 1981, Form’s lawyer appeared at a prehearing conference in the Forni case and informed the ALJ and counsel for Quality Care/All Purpose Nursing Service that Ms. Forni would call four witnesses, “both past and current employees.” In a September 14 meeting between Ms. Form’s counsel and Mr. O’Donnell, Ms. Form’s lawyer reiterated that he would call four current or former employees as witnesses.

On September 14, 1981, Mary Lou Drilich gave Ms. Walton a handwritten memorandum of reprimand for insubordination. This reprimand was based upon two allegations: Ms. Walton’s alleged failure to follow correct accounting procedures, and the alleged unauthorized switching of days off during Ms. Drilich’s vacation. Charges of tardiness and absenteeism were not included in the reprimand despite the fact that Ms. Drilich later testified that these were bases for Ms. Walton’s dismissal.

On September 15, 1981, Ms. Walton received a subpoena to testify in the Forni case. On the night of September 15, Ms. Walton telephoned Debby Landa, a fellow employee. Ms. Walton told Ms. Landa that she had been subpoenaed as a witness for Vicki Forni. Ms. Landa, in turn, telephoned Ms. Drilich. Debby Landa told Ms. Drilich that “Bonnie was involved with the Vicki Forni incident and that [Bonnie] may be called to testify.”

On September 16, 1981, Mary Lou Drilich and Charles O’Donnell fired Bonnie Walton for “insubordination.” Both Ms. Drilich and Mr. O’Donnell admitted that they knew Ms. Walton was to be a witness in the Forni case before they fired her.

In February 1985, Judge Dickler issued a “Recommended Order and Decision” in favor of All Purpose Nursing Service. Administrative Law Judge Dickler found that Ms. Walton established a prima facie case of retaliatory discharge in violation of section 6 — 101(A) of the Illinois Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 6— 101(A)). Judge Dickler wrote the following:

“The Complainant was terminated on September 16, 1981. On September 15, 1981, Respondent discovered that the Complainant was going to be a witness against the Respondent. The timing of this in and of itself raises a strong inference that the Complainant was terminated for impermissible motives. This is buttressed by the fact that the Complainant had received a written warning just a few days before the Complainant was terminated. This would not appear a sufficient time to give the Complainant an opportunity to rectify her behavior and her performance. It is for this reason that the Administrative Law Judge deems that the Complainant has in fact established a prima facie case of retaliation.”

However, Judge Dickler concluded that All Purpose Nursing Service articulated legitimate nondiscriminatory reasons for Ms. Walton’s termination and that Ms. Walton did not prove by a preponderance of the evidence that the reasons given by All Purpose Nursing Service were pretextual.

On March 8, 1985, Ms. Walton filed her exceptions to the recommended order and decision with exhibits. One of the exhibits submitted was an interim decision in the Forni case recommending that the Commission enter a default judgment against All Purpose Nursing Service for its failure to comply with discovery orders in the Forni case. Subsequently, All Purpose Nursing Service responded to Ms. Walton’s exhibit and exceptions on April 11, 1985. Oral arguments were heard by a panel of the Commission on May 15, 1985.

On July 24, 1986, the Commission panel reversed Judge Bidder's recommended order and decision and remanded the case for a hearing on damages. The Commission held that the applicable standard was “[i]f the Complainant can prove it is more likely than not that a prohibited reason motivated the employer, judgment must be entered for the Complainant, even though there is no direct evidence of discrimination.” Using this standard, the Commission sustained the complaint and held that Judge Bidder’s ruling was “against the manifest weight of the evidence.” The Commission stated:

“This is one of the strongest cases of retaliatory discharge based on circumstantial evidence it is possible to imagine. *** We find the only clear and reasonable explanation for the actions of [All Purpose Nursing Service] is the fact that between the warning of September 14th and the discharge on September 16[,] Ms. Walton had been given a subpoena which made it virtually certain that she would be testifying against [All Purpose Nursing Service] in the Forni matter.”

On August 26, 1986, All Purpose Nursing Service filed a petition for rehearing. The petition for rehearing alleged that the Commission had not reviewed Judge Bickler’s findings of fact in accordance with the manifest weight of the evidence standard. All Purpose Nursing Service contended that the Commission failed to review the record as a whole and improperly substituted its own opinions as to the credibility of the witnesses. The Commission denied this petition.

The case was remanded to Administrative Law Judge Zeva Schub, who issued a recommended order and decision which reinstated Ms. Walton as an employee with full seniority and awarded $39,304.83 in back wages, costs, and attorney fees. On October 1, 1988, the Commission entered a final order affirming the relief.

Petitioner herein, All Purpose Nursing Service, has appealed to this court for review. First, petitioner contends that the Commission exceeded its statutory authority under section 8 — 107(E) of the Illinois Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 107(E)) by reversing the decision of the ALJ against the manifest weight of the evidence. The Commission maintains that the “manifest weight of the evidence” standard was properly applied.

Second, petitioner argues that the Commission erred by taking judicial notice of a default judgment entered against petitioner in the Forni case. Petitioner contends that this action by the Commission violated (1) the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1987, ch. 127, par. 1001 et seq.) (hereinafter the Act), (2) the common law rule of evidence prohibiting the admission of bad acts to prove culpability on another occasion, and (3) petitioner’s right to procedural due process. The Commission maintains that judicial notice was proper.

Opinion

We hold that the Commission properly took judicial notice of a default judgment entered against petitioner in the Forni matter for failure to comply with discovery orders. The Commission did not violate the Act, the rules of evidence, or petitioner’s right to due process.

The Act provides that an administrative agency may take judicial notice “of matters of which the Circuit Courts of this State may take judicial notice.” (Ill. Rev. Stat. 1987, ch. 127, par. 1012(c).) In general, Illinois courts may take judicial notice of administrative orders, determinations, and judgments in related administrative proceedings involving the same parties. (May Department Stores Co. v. Teamsters Union Local No. 743 (1976), 64 Ill. 2d 153, 159, citing E. Cleary, McCormick on Evidence §330, at 766 (2d ed. 1972).) In addition, the circuit courts may take judicial notice of matters of record in other cases in the same court. (People v. Davis (1976), 65 Ill. 2d 157; Filrep, S.A. v. Barry (1980), 88 Ill. App. 3d 935; People v. Hoffman (1974), 25 Ill. App. 3d 261; People v. Dye (1974), 23 Ill. App. 3d 453.) Therefore, an administrative tribunal may take judicial notice of matters of record in another administrative order, determination, or judgment, especially where these proceedings are related and involve the same parties. Both the case at bar and the Forni case were adjudicated by the same administrative agency. Both cases involve All Purpose Nursing Service, and the proceedings are related because Ms. Walton has alleged that the Forni proceeding affected her employment status. Finally, it is a matter of record that All Purpose Nursing Service acted in bad faith by refusing to cooperate with the discovery orders. Accordingly, pursuant to the aforementioned principles, we hold that the Commission did not violate the Act by taking judicial notice of the interim order in Forni.

In addition, we hold that the Commission’s act of taking judicial notice of the default judgment in the Forni matter did not violate the common law evidentiary rule which bars the admission of prior bad acts into evidence to prove culpability on another occasion. (People v. Lehman (1955), 5 Ill. 2d 337, 342.) The record shows that the Commission considered the judgment evidence of petitioner’s state of mind. The Commission stated that the interim order in the Forni case “provide[d] some indication of the tactics which [All Purpose Nursing Service] was willing to use in the Forni case.” While evidence of bad acts may not be used to show culpability on a separate occasion, it may be used to prove “modus operandi, intent, *** [or] motive.” (People v. McKibbins (1983), 96 Ill. 2d 176, 182.) Therefore, the Commission’s judicial notice of the Forni order was proper.

Furthermore, we hold that the Commission did not violate petitioner’s right to procedural due process. Petitioner alleges that the Commission violated its right to procedural due process by (1) failing to give petitioner notice that it intended to take judicial notice of the default judgment; and (2) failing to base its decision to take judicial notice of the default judgment solely upon the record pursuant to Gregory v. Bernardi (1984), 125 Ill. App. 3d 376, 378, and Cook County Federal Savings & Loan Association v. Griffin (1979), 73 Ill. App. 3d 210, 215-16.

We rule that petitioner had notice that the Commission intended to take judicial notice of the judgment and had an opportunity to contest the material noticed. Section 12(c) of the Act provides that “[p]arties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise” (emphasis added) when the Commission intends to take judicial notice of material. (Ill. Rev. Stat. 1987, ch. 127, par. 1012(c).) Section 12(c) of the Act also provides that the parties “shall be afforded an opportunity to contest the material so noticed.” (Ill. Rev. Stat. 1987, ch. 127, par. 1012(c).) A copy of the default judgment was incorporated into the record on March 8, 1985, when Ms. Walton filed her exceptions to the recommended order and decision. One of the exhibits submitted with the exceptions was the interim decision in the Forni case recommending that the Commission enter a default judgment against All Purpose Nursing Service for its failure to comply with discovery orders. Petitioner had notice that the Forni decision was submitted to augment the record because petitioner had a copy of the exceptions and the exhibit. Petitioner knew that the Commission might take judicial notice of the default judgment at its next proceeding. Petitioner had the opportunity to contest the submission in its response to Ms. Walton’s exceptions and exhibit on April 11, 1985.

Furthermore, we find that the Commission based its decision to take judicial notice of the default judgment solely upon the record. The default judgment was incorporated into the record on March 8, 1985. In July of 1986, the Commission took judicial notice of the default judgment. In effect, the Commission took judicial notice of a fact that was already a part of the record. For the aforementioned reasons, we hold that the Commission did not violate petitioner’s right to procedural due process.

With respect to petitioner’s other complaint, we hold that the Commission properly reversed the decision of the administrative law judge (ALJ). The legislature has charged the Commission with the duty to adjudicate claims of employment discrimination based on race. (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 102(A); Department of Corrections v. Adams (1986), 146 Ill. App. 3d 173.) The Commission may designate an ALJ to conduct a hearing to adjudicate the claim. (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 103(B); Adams, 146 Ill. App. 3d at 180-81.) After the hearing, the ALJ must issue a decision and an order for review by the Commission. The Commission also reviews “any written exceptions and responses.” (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 107(E)(1).) After the Commission reviews the record and any exceptions and responses, it “may adopt, modify or reverse in whole or in part the findings and recommendations” of the ALJ. (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 107(E)(1).) “The Commission shall adopt the [ALJ’s] findings of fact if they are not contrary to the manifest weight of the evidence.” Ill. Rev. Stat. 1987, ch. 68, par. 8 — 107(E)(2); Adams, 146 Ill. App. 3d at 180.

Judicial review of an administrative decision must be limited to a review of the legal standard used by the Commission and the findings of the Commission. Courts may not “pass upon the propriety of the Commission’s determination ***. Rather, we pass upon the actual determination of the Commission just as if the Commission were the original fact finder.” (Carver Lumber Co. v. Human Rights Comm’n (1987), 162 Ill. App. 3d 419, 424.) Judicial review is limited to the findings of the Commission because a “review of the [ALJ’s] decision was not contemplated by the Act and the case law.” (Adams, 146 Ill. App. 3d at 181.) The legislature and the case law “vest the legitimate decision-making authority in the Commission and not its [ALJ].” (Adams, 146 Ill. App. 3d at 181; see Milan v. Human Rights Comm’n (1988), 169 Ill. App. 3d 979.) Therefore, this court will restrict the scope of its review accordingly.

The standard for judicial review of decisions of the Commission regarding employee termination is the “manifest weight of the evidence” test. First, the reviewing court must determine whether the correct standard was applied. If the court is satisfied that the Commission applied this standard, it will then consider whether the Commission’s findings were proper or against the manifest weight of the evidence. The legislature requires courts to affirm the factual findings of the Commission “unless the court determines that such findings are contrary to the manifest weight of the evidence.” (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 111(A)(2); see Smith v. Chicago Board of Education (1988), 176 Ill. App. 3d 109.) This court has held that “[i]f there is any evidence in the record that supports an administrative agency’s decision, [the] decision was not contrary to the manifest weight of the evidence and must be sustained on judicial review.” Lipsey v. Human Rights Comm’n (1987), 157 Ill. App. 3d 1054,1065.

In order to determine whether a decision is contrary to the manifest weight of the evidence, courts employ the United States Supreme Court’s three-part analytical test articulated in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817. The McDonnell Douglas test, as explained in Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 215, 101 S. Ct. 1089, 1093, requires that the plaintiff first prove a prima facie case of unlawful discrimination by a preponderance of the evidence. (McDonnell Douglas Corp., 411 U.S. at 804-05, 36 L. Ed. 2d at 679, 93 S. Ct. at 1825; Acorn Corrugated Box Co. v. Illinois Human Rights Comm’n (1989), 181 Ill. App. 3d 122; Department of Corrections v. Adams (1986), 146 Ill. App. 3d 173, 181; Village of Oak Lawn v. Illinois Human Rights Comm’n (1985), 133 Ill. App. 3d 221, 223.) A prima facie case of retaliatory discharge may be established when the complainant has proved that (1) he engaged in protected activity by participating in a proceeding under the Human Rights Act, or reasonably and in good faith opposing unlawful discrimination; (2) he demonstrated that the employer took some subsequent adverse action against him; and (3) he demonstrated that there is a causal link between the protected activity and the employer’s action. (See In re Lipsey & Chicago Cook County Criminal Justice Comm’n (1982), 5 Ill. HRC Rep. 81, 86-87.) By establishing a prima facie case, the complainant-employee creates a rebuttable presumption that his employer discriminated against him in violation of the Act. Acorn, 181 Ill. App. 3d at 136-37; Carver Lumber Co. v. Human Rights Comm’n (1987), 162 Ill. App. 3d 419, 423; Adams, 146 Ill. App. 3d at 181.

If the plaintiff succeeds in proving a prima facie case, the burden of proof shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. McDonnell Douglas Corp., 411 U.S. at 802, 36 L. Ed. 2d at 678, 93 S. Ct. at 1824; see Acorn, 181 Ill. App. 3d at 137; Oak Lawn v. Illinois Human Rights Comm’n (1985), 133 Ill. App. 3d 221, 224.

If the employer meets this burden, “ ‘the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.’ ” (Smith v. Chicago Board of Education (1988), 176 Ill. App. 3d 109, 114, quoting Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 215, 101 S. Ct. 1089, 1093.) In order to prove discrimination by a preponderance of the evidence, the plaintiff “need not offer direct evidence that a discriminatory reason motivated his employer. Likewise, he need not show direct evidence of pretext.” (Department of Corrections v. Adams (1986), 146 Ill. App. 3d 173, 181-82.) The plaintiff can meet his burden of proof by showing “that his employer’s proffered explanation is unworthy of belief.” (Adams, 146 Ill. App. 3d at 181-82; K mart Corp. v. Illinois Human Rights Comm’n (1984), 129 Ill. App. 3d 842.) In other cases a plaintiff’s burden of proof is met “if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Smith, 176 Ill. App. 3d at 114; Burdine, 450 U.S. at 254-55, 67 L. Ed. 2d at 216,101 S. Ct. at 1094.

We will now address petitioner’s contention that the Commission failed to apply the manifest weight of the evidence standard. We hold that the Commission did apply the manifest weight of the evidence test. The record shows that the Commission panel stated in its order that “[ujnder section 8 — 107(E)(2) of the Human Rights Act, the Commission may not overturn the factual findings of the Administrative Law Judge unless they are against the manifest weight of the evidence.”

Furthermore, we hold that the Commission applied the manifest weight of the evidence rule properly. The record shows that respondent Walton presented evidence sufficient to establish the elements of a violation of the Illinois Human Rights Act (Ill. Rev. Stat. 1987, ch. 68, par. 1 — 101 et seq.) pursuant to the McDonnell Douglas test.

First, Ms. Walton met the burden of proving a prima facie case of unlawful discrimination. Initially, Administrative Law Judge Dickler concluded that Ms. Walton had established a prima facie case of discrimination. She found that “a strong inference that the Complainant was terminated for impermissible motives” was raised, and that “the Complainant has in fact established a prima facie case of retaliation.” The Commission wrote:

“Ms. Walton had never received any kind of written warning regarding her job performance under a variety of supervisors prior to the time it appeared likely that she was going to testify in the Forni case. Every evaluation had listed her as either ‘excellent’ or ‘good.’ Ms. Drilich herself had not issued any sort of written warning until September 14. It defies common sense to believe that Ms. Walton’s job performance had suddenly become so bad in such a short period of time. This is especially so since the Respondent has failed to provide any reason why Ms. Walton’s job performance would have changed so dramatically.”

We must affirm the Commission’s finding that respondent Walton proved a prima facie case. This court must “pass upon the actual determination of the Commission just as if the Commission were the original fact finder.” (Carver Lumber Co. v. Human Rights Comm’n (1987), 162 Ill. App. 3d 419, 424.) The decision of a Commission is not contrary to the manifest weight of the evidence “[i]f there is any evidence in the record that supports an administrative agency’s decision.” (Lipsey v. Human Rights Comm’n (1987), 157 Ill. App. 3d 1054, 1065.) Indeed, there is strong evidence in the record to support the Commission’s finding.

By establishing a prima facie case, respondent Walton created a rebuttable presumption of discrimination. The burden was cast upon petitioner to articulate legitimate reasons for terminating respondent Walton’s employ. Ms. Drilich, an agent of petitioner, gave four legitimate reasons for firing respondent Walton. Ms. Drilich testified: “The Complainant was often tardy, was guilty of insubordination, that she switched her day off without permission, and that she employed incorrect accounting procedures that were not rectified ***.” Ms. Drilich also testified that respondent Walton sought to “discredit” her at “every available opportunity.” The Commission accepted that these legitimate reasons for terminating respondent Walton were articulated by petitioner.

It is not disputed that respondent Walton established a prima facie case, and that the Commission articulated an allegedly nondiscriminatory reason for terminating her. At issue is whether Ms. Walton proved by a preponderance of the evidence that the articulated reason for her firing was a pretext for discrimination. The ALJ found that Ms. Walton failed to meet her burden of proof. The Commission found that petitioner’s justifications were pretextual based upon the evidence. The standard employed by the Commission was accurate. “A Complainant in a civil rights case need not present direct evidence of discrimination.” This court has held that a claimant may meet his burden of proof by presenting evidence of a genuine issue of fact as to whether discrimination occurred. Smith v. Chicago Board of Education (1988), 176 Ill. App. 3d 109, 114; Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 254-55, 67 L. Ed. 2d 207, 216, 101 S. Ct. 1089, 1094.

We affirm the decision of the Commission. This court has held that where there is evidence in the record to support the decision of an administrative agency, the decision must be sustained because it is not contrary to the manifest weight of the evidence. (Lipsey v. Human Rights Comm’n (1987), 157 Ill. App. 3d 1054, 1065.) The record shows that Ms. Walton received good employee evaluations and consistent raises. She was reprimanded and fired by her supervisor after it became clear that she would be called to testify in the Forni case. Furthermore, petitioner refused to comply with discovery orders in the Forni case. Petitioner bears the burden of showing that evidence in the record, when viewed in respondent Walton’s favor, is insufficient to support the Commission’s ruling. Petitioner has failed to meet this burden. It has long been established that evidence should be viewed in the light most favorable to the prevailing party. See Trauscht v. Gunkel (1978), 58 Ill. App. 3d 509; Hall v. Kirk (1973), 13 Ill. App. 3d 656.

For the foregoing reasons, the decision of the Commission is affirmed.

Affirmed.

McMORROW, P.J., and LINN, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON JUSTICE JIGANTI,

license: Public Domain

text:
    MARSHALL McKENZIE, Plaintiff-Appellee, v. ADAM ROMEISER, JR., Defendant-Appellant.
    First District (4th Division)
    No. 1—89—0129
    Opinion filed October 25, 1990.
    Rehearing denied December 19, 1990.

      JIGANTI, J., dissenting.
    Wildman, Harrold, Allen & Dixon, of Chicago (William J. Rogers, Thomas E. Patterson, and Susan J. Flieder, of counsel), for appellant.
    Mullen, Minella & Chase, of Chicago (John C. Mullen and Cynthia L. Chase, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Adam Romeiser, Jr., M.D., appeals from the portion of an order of the circuit court of Cook County granting the motion for a new trial brought by plaintiff, Marshall McKenzie. Defendant also appeals the trial court’s denial of his motion for judgment notwithstanding the verdict. As part of the order, this cause was transferred out of Cook County and into Lake County for retrial. Plaintiff appeals the portion of the order transferring this case to Lake County. The following issues are presented for review: (1) whether the trial court erred in granting a new trial on the damage and liability issues; (2) whether the trial court erred in denying defendant’s motion for a judgment notwithstanding the verdict; and (3) whether this cause was properly transferred to Lake County for retrial.

We affirm in part and reverse in part.

This medical malpractice case stems from injuries sustained by plaintiff as a result of a bariatric surgical procedure performed by defendant. Defendant performed the surgery in an effort to control plaintiff’s weight. Prior to surgery, plaintiff weighed approximately 285 pounds, a level of morbid obesity for a man of his stature.

On January 12, 1981, defendant admitted plaintiff to Lake Forest Hospital. Gastroplasty surgery was performed by defendant the following day. The purpose of the surgery was to reduce the size of plaintiff’s stomach, thereby limiting the amount of food taken in and diminishing plaintiff’s appetite. Approximately five hours after the surgery, complications developed. Plaintiff had begun to bleed through a drain that had been placed in his stomach. When defendant performed a second surgery to correct his problem, he discovered that plaintiff’s spleen had been lacerated during the first operation. Defendant then removed plaintiff’s spleen.

On January 28, 1981, approximately four days after plaintiff had been discharged, he returned to the hospital in a dehydrated and acidotic state. According to defendant, this indicated that although plaintiff had been burning up his body’s store of fat, he had not taken in a lot of food.

Dr. Miles Cunningham examined plaintiff on January 31 and concluded that plaintiff would have to undergo surgery to relieve an obstruction that had developed after plaintiff’s first procedure. X rays, later taken, revealed that an opening in plaintiff’s stomach was obstructed which prevented food from passing through plaintiff’s system. This prognosis was confirmed when a surgical endoscopy was performed on February 16. A surgical endoscopy is an examination performed with an instrument that allows the surgeon to view the interior of a hollow organ.

Based upon preoperative diagnosis, it was determined that plaintiff would also need corrective surgery due to the following: gallstones; an open wound on plaintiff’s abdomen; and an obstructed gastoplasty. Treatment of the open wound required that a skin graft be taken from plaintiff’s left thigh and sutured to the wound.

On February 24, major surgery was performed to remove plaintiff’s gallbladder, relieve the obstruction, and repair his hernia. The hernia had developed beneath plaintiff's abdominal skin graft in the area of a prior wound separation. Plaintiff was discharged in early March 1981. However, he had to have another surgical procedure, performed later, due to a recurrence of his abdominal hernia.

Plaintiff filed a complaint against defendant on April 9, 1981, in Lake County, Illinois. The complaint was amended on June 7, 1982, to add Lake Forest Hospital and several other physicians, including Dr. Lewis T. Segal. Dr. Segal was a resident of Cook County at the time the suit was filed. On December 8, plaintiff voluntarily dismissed this case but refiled it against the same defendants on December 28, 1982, in Cook County. Defendant then moved for a change of venue back to Lake County. This motion was subsequently denied.

Thereafter plaintiff voluntarily dismissed all of the defendants, with the exception of defendant in the instant case. Dr. Segal had been dismissed by summary judgment prior to this voluntary dismissal.

Defendant again moved to transfer venue after the other defendants had been dismissed. On July 22, 1986, defendant’s motion for change of venue was granted. However, after plaintiff moved to reconsider venue, the prior order transferring venue was vacated. The case was then set for trial in Cook County in July 1988.

On July 27, 1988, the jury returned a general verdict in plaintiff’s favor in the amount of $20,000. Medical expenses incurred as a result of these surgeries and ensuing complications were in excess of $54,000. Plaintiff moved for a new trial on the issue of damages or, in the alternative, on the issues of damages and liability. Plaintiff argued that the jury’s award of $20,000 was manifestly inadequate.

Defendant then made a contingent request for a transfer of venue in the event a new trial was granted. The trial court granted plaintiff’s motion for a new trial based on the issues of damages and liability, finding that the two issues intertwined. The court also noted that it appeared the award represented a compromised verdict. Defendant’s motion for a venue transfer to Lake County was also granted. Defendant appeals the trial court’s decision granting plaintiff’s motion for a new trial. Plaintiff appeals the portion of the trial court’s order transferring the case to Lake County for retrial.

The first issue defendant presents for review is whether the trial court erred in granting plaintiff’s motion for a new trial. The motion to grant a new trial is within the sound discretion of the trial court and should not be disturbed unless a clear abuse of discretion appears in the record. (Greco v. Coleman (1985), 138 Ill. App. 3d 317, 322.) An abuse of discretion may be found where there is no basis in the record to support a new trial. Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 647-48.

The trial court, in the instant case, granted a new trial on both the damage and liability issues, noting that the jury verdict was compromised. If a damage verdict is the result of a compromise on the issue of liability, the case must be retried on both damage and liability issues. (Kelty v. Wiseman Construction Co. (1976), 38 Ill. App. 3d 808, 813.) Where the damage issue is so separable and distinct from the issue of liability that a trial of it alone may be had without injustice, the new trial may be ordered solely on the issue of damages. Blevins v. Inland Steel Co. (1989), 180 Ill. App. 3d 286, 290-91.

In the instant case, the jury returned a general verdict finding defendant liable. We do not find the verdict with respect to this issue to be against the manifest weight of the evidence. Moreover, defendant conceded that the trial was fair. Under the circumstances of this case, we cannot presume that the verdict on the issue of liability was the result of a compromise. We, therefore, reverse the trial court’s decision ordering a new trial with respect to the liability issue. As the sufficiency of the evidence of damages is entirely separable and distinct from the issue of liability, we will now determine whether there was sufficient evidence to sustain the damages award of $20,000.

The question of damages is one of fact for the jury and its findings will not be disturbed unless (1) the award is palpably inadequate or against the manifest weight of the evidence; or (2) the amount is shown to be erroneous or the result of passion or prejudice; or (3) the verdict bears no reasonable relationship to the loss suffered by plaintiff. Greco v. Coleman (1985), 138 Ill. App. 3d 317, 322.

In the instant case, the court found that the verdict was palpably inadequate in light of the evidence presented. Defendant contends that the jury’s award is supported by the record. Defendant argues that plaintiff presented several deviations from the standard of care. He reasons that if the jury had only found one of the claimed deviations valid a verdict of $20,000 would be rational. Moreover, defendant argues, where the jury returns a general verdict and multiple theories have been presented by plaintiff, the verdict must be upheld if plaintiff fails to request special interrogatories and there is sufficient evidence to support one of the theories. Defendant cites to Scarsdale Villas Associates, Ltd. v. Korman Associates Insurance Agency, Inc. (1988), 178 Ill. App. 3d 261, 266, to support this proposition.

Scarsdale, however, may be distinguished from the instant case, as the appellate court found that the award in Scarsdale was sufficient to cover the actual damages submitted at trial. Plaintiff also notes that the trial court judge in Scarsdale, who found the award sufficient, was also the trial court judge in the instant case. In the instant case, medical expenses submitted at trial were in excess of $54,000. These expenses were not disputed by defendant. “If there is no question that the claimed out-of-pocket medical expenses are legitimate and reasonable, a verdict for less than that amount may be set aside by the trial court.” Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 649.

Plaintiff also claimed that he sustained a $15,000 loss in wages which would make his total out-of-pocket expenses almost $70,000. There was also evidence of pain and suffering presented at trial. We do not find that the trial court erred in finding that the award of $20,000 was palpably inadequate in light of the damages submitted at trial and the injuries sustained by plaintiff.

Furthermore, “[t]he return of a general verdict creates a presumption that all issues of fact upon which proof was offered were found in favor of the prevailing party.” (Klingler Farms, Inc. v. Effingham Equity, Inc. (1988), 171 Ill. App. 3d 567, 572.) We cannot, therefore, give any weight to defendant’s speculation that the award was based upon one or less than all of the claimed deviations. Defendant has not rebutted the presumption that the jury found him liable for all of the claimed deviations.

Moreover, in Scarsdale four distinct theories of liability were presented. In the instant case, negligence was the sole theory of liability upon which plaintiff sought recovery. Defendant contends that plaintiff attempted to prove liability on several grounds as though each of the claimed deviations from the standard of care should be considered a separate and distinct theory. We disagree. We, instead, follow the trial court’s reasoning that the alleged deviations should not be characterized as isolated situations or disparate acts of negligence. Rather, they should be considered as facets in the overall care and treatment of plaintiff.

Under the circumstances of this case, where the out-of-pocket expenses far exceeded the award and where all allegations of negligence are presumed to have been found in favor of plaintiff, we do not find the need for special interrogatories to determine which percentage of the award may be attributed to which theory of recovery. We, therefore, find that the trial court did not abuse its discretion in ordering a retrial on the issue of damages.

Next defendant contends that the trial court erred in denying his motion for a judgment notwithstanding the verdict. Defendant argues that plaintiff’s expert, Dr. Allan B. Wilkinson, failed to testify to the opinions that he gave based on a reasonable degree of medical certainty. Expert testimony on deviation from the standard of care and causation issues must be given to a reasonable degree of medical certainty. Beasley v. Abusief (1986), 146 Ill. App. 3d 54, 55.

Although we need not address this issue, as we previously found that the jury’s verdict with respect to the liability issue was not against the manifest weight of the evidence, we find defendant’s argument without merit. Dr. Wilkinson’s testimony was presented to the court in the form of a video-taped evidence deposition. Dr. Wilkinson resides in California. A review of the deposition transcript reveals that Dr. Wilkinson’s opinions were preceded by questions from plaintiff’s counsel which incorporated the required language. Counsel prefaced these questions with whether Dr. Wilkinson’s opinion was based on a “reasonable degree of medical and surgical certainty.” Dr. Wilkinson replied in the affirmative to the prefatory questions concerning preoperative and operative negligence. Defendant’s argument fails with respect to this issue.

The final issue is presented by plaintiff. Plaintiff contends that the trial court erred in transferring this caáe to Lake County for retrial. We agree.

When this action was filed in Cook County on December 28, 1982, Dr. Segal was the only defendant residing in Cook County. Venue was predicated upon Dr. Segal’s residence in Cook County. On February 25, 1983, defendant moved for a change of venue based on the fact that the only connection this case had with Cook County was Dr. Se-gal’s residency. This motion was later withdrawn.

On June 14, 1985, Dr. Segal was dismissed from this suit by summary judgment. On February 21, 1986, defendant again renewed his request that this matter be transferred to Lake County based on the doctrine of intrastate forum non conveniens and the statutory sections in the Code of Civil Procedure (hereinafter Code) pertaining to change of venue (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 101 et seq.). Defendant argued that Dr. Segal’s summary dismissal was indicative of the fact that he had been joined in bad faith, rendering venue in Cook County improper. This motion was subsequently denied as there was no showing of bad faith.

Defendant later filed petitions for leave to appeal to this court and the Illinois Supreme Court. All of defendant’s petitions were denied. The trial court, however, ultimately granted defendant’s motion to transfer venue to Lake County on the basis that there were no longer substantial connections with Cook County, as plaintiff had moved to Virginia and defendant resides in Lake County.

In Torres v. Walsh (1983), 98 Ill. 2d 338, the Illinois Supreme Court held that the doctrine of forum non conveniens may be applied on an intrastate basis in actions filed after September 16, 1983, the date the Torres decision was filed. Plaintiff argues that because this suit was filed prior to the date the Torres holding was to take effect, this, prospective rule prohibits consideration of the transfer of this case to Lake County Defendant urges this court to distinguish Torres. That rule, he reasons, was applied prospectively in that case so as not to impose undue hardship or surprise upon those who had relied upon the prior law. Defendant argues that since plaintiff in the instant case was on notice that a transfer of venue based on the doctrine of forum non conveniens was a possibility, the reason for application of the prospective rule in Torres would not apply.

Defendant relies upon Haring v. Chicago & North Western Transportation Co. (1984), 103 Ill. 2d 530, to support this proposition. In Haring, the Illinois Supreme Court allowed the consideration of an alternate forum in a case which was filed before the rule in Torres was to take effect. The court stated:

“This case is not controlled by Torres. There is another forum in Iowa that has jurisdiction to hear this case. Therefore, the typical pre-Torres doctrine of forum non conveniens is applicable. Torres was given prospective application since that was the first holding of this court allowing intrastate application of the doctrine of forum non conveniens. [Citation.] The reason for the prospective holding of Torres does not exist in this case.” Haring, 103 Ill. 2d at 534.

We, however, are not persuaded that Haring should be interpreted so as to support defendant’s proposition.

In Sunich v. Chicago & North Western Transportation Co. (1985), 106 Ill. 2d 538, the sole issue presented for review was whether Torres must be given prospective application. The Illinois Supreme Court, in Sunich, adhered to its previous holding in Torres that the intrastate application of the doctrine of forum non conveniens is available prospectively after September 16, 1983. We note that the defendant in Sunich was also the same defendant in Haring.

The Sunich court declined to reinterpret Torres as a mere restatement of the existing rule of law, as stated in Nabisco, Inc. v. Korzen (1977), 68 Ill. 2d 451, 463, that the retroactive effect of a decision must be limited in those instances where a change in law would produce undue hardship to those relying upon the prior law. (Sunich, 106 Ill. 2d at 542-43.) Sunich, which was decided after Haring, is inapposite to defendant’s proposition. Further, the defendant in Sunich, which moved to have venue transferred, was one of the group of amici in Torres. The Sunich defendant was, arguably, aware that a transfer of venue based on the doctrine of forum non conveniens was a possibility in its case. Defendant’s argument that Torres would not apply since plaintiff was on notice of a possible change of venue is simply without merit.

Defendant also argues that once a new trial is granted, a court may decide that the case may be retried de novo in another forum. However, as plaintiff argues, an action must be tried in the county in which it is commenced unless it was filed in the wrong venue. (Precision Components, Inc. v. Estate of Kuntz (1983), 112 Ill. App. 3d 309, 310.) When the instant case was filed, venue was found to be proper in Cook County. We also find that the case may be properly retried in Cook County.

Moreover, we are not persuaded that this case must be transferred on statutory grounds. Section 2 — 101 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 101) provides that an action must be commenced in any county or residence of any defendant who is joined in good faith. Defendant argues that Dr. Segal was not joined in good faith because he was dismissed on a summary judgment motion without objection from plaintiff. Defendant contends that Dr. Segal was a “sham” defendant as no expert identified any negligence on Dr. Se-gal’s part.

Our review of the record, however, reveals that, according to affidavits filed by counsel for plaintiff, plaintiff’s counsel had expressed opposition to Dr. Segal’s summary judgment motion. Plaintiff had attempted to get a continuance in order to locate an expert to testify against Dr. Segal. The court denied plaintiff’s request for a continuance and granted Dr. Segal’s summary judgment motion. Further, the trial court at no time made a finding of bad faith in joining Dr. Segal. We find no grounds to do so here.

For the foregoing reasons, the judgment of the circuit court is affirmed with respect to the grant of a new trial on the issue of damages. The trial court’s decision with respect to the grant of a new trial on the issue of liability is reversed. We also reverse the trial court’s decision to transfer this case from Cook County to Lake County.

Affirmed in part; reversed in part and remanded.

LINN, J., concurs.

JUSTICE JIGANTI,

dissenting:

I respectfully dissent from that portion of the opinion that grants the plaintiff a new trial on the issue of damages only. I believe it was error for this court to conclude that the trial court abused its discretion in granting a new trial on the issues of liability and damages. The issue of a new trial on damages only was not an issue raised in this court by the parties. Furthermore, even in considering this issue, I believe the court was in error. The manner in which the issue of a new trial on damages only arises is interesting and will be related.

The plaintiff filed a post-trial motion requesting alternative forms of relief. The plaintiff asked for a new trial on the issue of damages or in the alternative for a new trial on both liability and damages. The motion specifically stated that the new trial should be limited to damages only “unless this Court finds evidence of a compromise verdict.” In that event the plaintiff asked for a new trial on both liability and damages. The court made just that finding, that this was a compromise verdict. It accordingly granted a new trial on both liability and damages.

The defendant sought leave to appeal under Supreme Court Rule 306, and leave was granted. The plaintiff had the right to raise the denial of its request for a new trial on damages only. Apparently recognizing that the trial court was within its discretion in finding that this was a compromise verdict, it made no argument in its briefs concerning a new trial on damages only. It did not request that this court grant a new trial on damages only. The plaintiff’s specific request was that the order of the trial court be affirmed because the trial court did not abuse its discretion in granting a new trial.

The issue for a new trial on damages only arose during oral argument by way of a question by one of the judges in the majority. That judge asked if the plaintiff was seeking a new trial on both liability as well as damages. Counsel responded that the trial judge denied the request for a new trial on damages only because liability was intertwined with the damages issue. Counsel commented that this was a compromise and that the cases clearly hold that the trial court can grant a new trial where there is a compromise.

Later on in oral argument, the other member of the majority asked whether counsel was asking for a new trial on damages and liability or on damages only. Counsel candidly responded that a new trial could be ordered on damages only, but that the issue before this court was the propriety of the trial judge’s order which ordered a new trial on both liability and damages. Counsel stated it would be “disingenuous at this point for me to say to you we’d like a new trial on damages only when Judge Lore’s order is really what’s on appeal here *** that order said new trial on all issues.” Both counsel on appeal were especially good lawyers. I believe it is inappropriate for this court to grant relief that was neither argued not requested. It is particularly unfair to the defendant, who had no chance to respond to this court’s argument that a new trial should be granted on damages only.

I further believe that the majority erroneously applied the law in this case. In Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28, 45, 139 N.E.2d 275, the Illinois Supreme Court addressed the issue of the propriety of a new trial on the issue of damages only. The court there stated that a trial court is not justified in ordering a new trial on the issue of damages alone where it appears that the damages awarded by the jury were the result of a compromise on the question of liability. Compromise is described as being a situation where jurors bargained inadequate damages for unjustified liability. Without belaboring the evidence as recited in the majority opinion, I believe that the trial court’s conclusion that the jury rendered a compromise verdict is amply supported and therefore the discretion vested in the trial court must be acceded to since there was no clear abuse of that discretion. Ramseyer v. Illinois Central R.R. Co. (1969), 110 Ill. App. 2d 95, 249 N.E.2d 120.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARLON THOMAS, Defendant-Appellee.
    First District (5th Division)
    No. 1—78—0295
    Opinion filed October 26, 1990.
    Rehearing denied November 26, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
    Catherine L. Grahn, of Grahn & Grahn, Ltd., of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

In this aged case the People of the State of Illinois have petitioned this court to re-review a September 1977 order issued by Judge Aubrey Kaplan that suppressed statements defendant made subsequent to his arrest, which was found to have been illegal. We find, however, that this court lacks jurisdiction and so we dismiss the appeal.

The history of this case, as one might have guessed, is extensive and demonstrates a fundamental defect in our criminal justice system, i.e., that justice delayed is often justice denied. The saga begins with the arrest of defendant Marlon Thomas on March 7, 1974. Thomas, who was 13 years old, was arrested at his home at about 3 a.m. without a warrant, based upon a suspicion that he was involved in the March 6, 1974, shooting death of Gina Somodi. Thomas was taken, handcuffed, to the police station without the knowledge of his parents and there was interrogated, outside the presence of his parents or a juvenile officer, while handcuffed to a restraining ring attached to the wall of an interview room. During the course of questioning, on four separate occasions over the next several hours, Thomas made certain admissions that led to additional evidence and, ultimately, further admissions.

It wasn’t until September 1, 1977, more than three years after his arrest, that Thomas’ attorneys moved to quash the arrest and suppress the statements made to the police subsequent to his arrest. The trial court granted the motion, agreeing that the arrest had been made without probable cause. The State then appealed the suppression order pursuant to the authority granted in Supreme Court Rule 604(a)(1) (58 Ill. 2d R. 604(a)(1)).

On November 17, 1978, this court reversed the trial court’s suppression order, without oral argument and without the benefit of a brief filed on Thomas’ behalf, in a Rule 23 order (People v. Thomas (1978), 66 v. App. 3d 1113 (unpublished order under Supreme Court Rule 23)), shortly after Thomas’ counsel petitioned for an extension of time to file a brief and requested that the case be set for oral argument. Subsequent to the filing of the Rule 23 order, Thomas’ motions were denied.

Thomas was then tried as an adult, convicted of the murder of Gina Somodi, and sentenced to 25 to 50 years in the Department of Corrections. Thomas appealed his conviction, and this court affirmed in an opinion issued March 27, 1981. (People v. Thomas (1981), 94 Ill. App. 3d 895, 419 N.E.2d 480.) Thomas then petitioned for leave to appeal to the Illinois Supreme Court and this request was denied.

Next, Thomas sought relief via a post-conviction petition, which was filed in April 1984. The petition was dismissed and the dismissal affirmed by this court. Again the Illinois Supreme Court denied leave to appeal, although Justice Simon dissented. 111 Ill. 2d 561.

Thereafter Thomas filed a writ of habeas corpus in the Federal District Court. The petition was granted on August 17, 1987, upon a finding that Thomas had been denied the effective assistance of counsel at a critical stage of the prosecution, namely, when his counsel failed to file a brief in response to the State’s appeal of the suppression order. In addition, the Federal District Court determined that the initial trial court ruling had been correct, that Thomas’ arrest had been without probable cause, and that no intervening factors occurred to purge the taint of the illegal arrest. Consequently, respondent Michael O’Leary was ordered to release Thomas if he was not retried within 120 days.

An appeal was taken from this ruling to the United States Court of Appeals, Seventh Circuit. In an opinion dated September 16, 1988, the Court of Appeals affirmed the Federal District Court’s, decision in so far as it held that Thomas had been denied the effective assistance of counsel at a critical stage. (United States ex rel. Thomas v. O’Leary (7th Cir. 1988), 856 F.2d 1011.) The opinion then indicated that the State had three options: (1) release Thomas, (2) retry Thomas, or (3) seek a second review of the initial suppression order of Judge Kaplan.

After initially obtaining a stay of the mandate pending a petition for a writ of certiorari to the United States Supreme Court, the mandate was issued on January 9, 1989, after the State notified the United States Court of Appeals that it was abandoning its petition to the Supreme Court. The State, apparently believing that it had 120 days in which to choose its option, took no further action until May 1, 1989, when an emergency motion was filed, asking this court to recall the mandate, vacate the November 1978 Rule 23 order, and reinstate the appeal from the September 1977 suppression order.

This court reinstated the appeal but ordered that Thomas, who had now been incarcerated for 11 years, be released on bond pending the appeal. The State was then given until June 1, 1989, to file its appellate brief. Without explanation or request for extension, the State failed to comply with this directive so that on January 23, 1990, this court, on its own motion, issued a rule to the State to show cause why the appeal should not be dismissed for want of prosecution. Thereafter, the State moved to file its brief, which was allowed. The record was filed January 29, 1990, and the appellate brief was filed February 2, 1990.

Thomas filed a response on March 21, 1990. Despite the fact that Thomas raised issues not addressed by the State’s brief, no reply brief has been filed by the State to date. On March 6, 1990, the case was marked ready for oral argument, argument was held on September 25, 1990, and we now render our decision on this matter.

The only arguments presented by the State are that Thomas’ arrest was a lawful one or, even if unlawful, that the statements should not be suppressed because Miranda warnings were given and other intervening factors purged the taint of the unlawful arrest. As stated earlier, Thomas, in addition to responding to these arguments, has raised issues not addressed by the State, namely, that the present appeal should be dismissed for want of jurisdiction or because of the State’s failure to prosecute the appeal in a timely fashion. Because we find it to be determinative, we shall first address the jurisdictional issue raised by Thomas.

Initially, we note that it would be a dangerous precedent to hold that a party whose Federal constitutional right to effective appellate counsel had been violated was entitled to a re-review of the appeal. Such a conclusion could open a floodgate of petitions for re-review to this court, which already lacks adequate personnel to process current caseloads. Correlatively, since most criminal appeals are handled by the offices of the public defender and State Appellate Defender, it would also add to the workload of these agencies, which are unable at the present time to complete the processing of appeals in the time required by our court rules due to understaffing because of a lack of funds.

Secondly, and more importantly, we can find no basis for allowing such a re-review by this court. The source of an appellate court’s jurisdiction is founded in common law, the Constitution, State statute or the rules promulgated by our Illinois Supreme Court. A Federal court cannot confer jurisdiction upon a State appellate court. While it is true that our court rules permit the State to appeal from a criminal judge’s order in certain instances (134 Ill. 2d R. 604), notice of appeal must be filed within 30 days of the order from which review is sought in order for this court to be vested with jurisdiction to hear the appeal. (134 Ill. 2d R. 606.) In the present case the 30-day time period has long since passed and we can find no law or rule that would confer jurisdiction upon this court for the purposes of conducting a second review of a criminal court ruling.

We note that the Illinois Supreme Court may, under its supervisory powers, direct this court to assume jurisdiction over an appeal and that the supreme court has taken this action in the past. However, no petition was ever made by the State to the Illinois Supreme Court, requesting that it exercise its supervisory power and direct this court to assume jurisdiction over the appeal in this aged case.

Consequently, we find that we are left with no alternative but to dismiss this appeal for want of jurisdiction. Regrettably, this case does not end here. The State is still left with the remaining options, which are to release Thomas or retry him within 120 days.

Appeal dismissed.

COCCIA, P.J., and GORDON, J., concur.


author: JUSTICE LORENZ

text:
      In re MARRIAGE OF SARAH CHESLER, Petitioner-Appellee, and JACK CHESLER, Respondent-Appellant.
    First District (5th Division)
    No. 1—88—3386
    Opinion filed October 26, 1990.
    Rehearing denied December 3, 1990.

      John J. O’Toole, of Chicago, for appellant.
    Roger A. Rubin, of Pretzel & Stouffer, Chartered, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Respondent Jack Chesler appeals from a finding against him for contempt for failure to comply with orders of the circuit court arising out of an action for dissolution of marriage.

We affirm.

On January 27, 1988, in conjunction with dissolution proceedings begun by Sarah Chesler, the circuit court ordered respondent to pay temporary maintenance and support as well as mortgage payments and related expenses on the parties’ marital residence. The total monthly sum amounted to approximately $2,500. The circuit court reaffirmed that order on November 2, 1988, and commanded respondent to cure all arrearages and costs incident to the mortgage on the marital residence. Arrearages at that time amounted to approximately $17,560. Ultimately, foreclosure proceedings were begun.

On November 18, 1988, the circuit court vacated its order of November 2, 1988, and found respondent in contempt. The court ordered respondent periodically imprisoned for 90 days if respondent did not purge the contempt by complying with payment on November 21, 1990.

This appeal followed.

Opinion

Respondent argues that he was financially unable to comply with the circuit court’s order of January 27, 1988, and therefore could not avoid being held in contempt. Respondent states that, at the time the order was entered, he earned a gross income of approximately $51,000 per year; between $2,600 and $2,700 per month, net. Respondent contends compliance with the order would have left less than $200 per month for all of his other expenses. Further, respondent states, because he was ordered to vacate the marital residence, he encountered increased financial obligations.

Whether a party is guilty of contempt is a question of fact for the trial court, and we may not disturb that finding on appeal unless it is against the manifest weight of the evidence or the record reflects an abuse of discretion. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167.) The record in the instant case reveals that, contrary to respondent’s argument, means were available to respondent to cure the mortgage arrearages. Specifically, the record contains respondent’s own testimony that, as of June 1988, he had approximately $41,000 invested in certificates of deposit available to him.

Because, after reviewing the record in its entirety, we find no basis to conclude the trial judge abused her discretion in determining respondent in contempt, we must affirm the judgment of the circuit court.

Affirmed.

COCCIA, P.J., and MURRAY, J., concur.


text:
    334 BARRY IN TOWN HOMES, INC., Plaintiff-Appellee, v. JOSEPH FARAGO et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—89—3483
    Opinion filed October 26, 1990.

      Leon C. Wexler, of Chicago, for appellants.
    Arvey, Hodes, Costello & Burman, of Chicago (Lawrence C. Rubin and Frank P. Tighe III, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendants, Joseph and Patricia Farago, appeal from entry of summary judgment in favor of 334 Barry In Town Homes, Incorporated, in an action involving a dispute over a condominium parking space.

We affirm.

Defendants are owners of one of six condominium units located at 334 West Barry Avenue in Chicago. The condominium property is located on the north side of Barry Avenue, between Sheridan Road and Lake Shore Drive. The units are arranged in a side-by-side row, designated A through F. The row, itself, is situated perpendicular to Barry Avenue such that the side walls of the units are parallel to Barry Avenue. Unit A is located at the south end of the property, closest to Barry Avenue. Defendants own condominium unit F, which is located at the north end of the property.

Beneath the condominium property is an underground garage, running the length of the row of units. The garage is divided into two halves. The eastern half is designated as a driveway. The western half is further divided into six parking bays and adjoining areas for laundry or storage. Like the condominium units, the length of the parking bays is parallel to Barry Avenue. The space designated for unit A is southernmost and that for unit F is northernmost.

The single entrance and exit to the garage is at the south end of the property and leads into the driveway which provides the access to the parking bays. To park, vehicles must be turned from the driveway to the left, west, into one of the parking bays.

The instant action involves defendants’ use of part of the driveway area at the closed north end of the garage, to the east of, adjacent to, and behind their allotted parking space.

Without disputing that defendants’ use of the adjacent area obstructed or impeded access to the parking bays, the governing body for the condominium development, 334 Barry In Town Homes, Incorporated (Association), sought to preclude defendants’ continued use of the area of the driveway. In a single-count complaint filed in the circuit court, the Association challenged that the defendants were engaged in an unpermitted use of condominium common areas under relevant provisions of the condominium declaration. The Association sought a determination that defendants were in violation of the condominium declaration and that they be enjoined from continued use of the driveway area. The Association also sought reimbursement for attorney fees.

Defendants filed an answer, denying all material allegations.

Subsequently, the Association moved for summary judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005). In support of the motion, the Association submitted a survey of the garage as well as affidavits from four other unit owners. Generally, the affidavits described defendants’ continued use of the adjacent driveway area as additional parking space despite complaints from unit owners and numerous requests by the Association to cease.

Defendants filed a response to the Association’s motion. In support were attached, inter alia, defendants’ affidavits indicating use of the additional area for some 12 years, a copy of the real estate sales contract for the unit indicating two parking spaces were included with the purchase, and photocopies of photographs of the garage.

After considering arguments on the motion, the trial judge granted summary judgment in favor of the Association, concluding that the adjacent area was a common element as defined in the condominium declaration. Defendants were permanently enjoined from their exclusive, personal use of that space. The trial judge also awarded the Association attorney fees pursuant to the condominium declaration.

This appeal followed.

Opinion

The facts of the instant case are not in dispute. We must consider only whether, as the trial judge concluded, the area of the driveway, adjacent to and behind the designated parking area for unit F, is a common element, precluding defendants’ exclusive use as additional parking space. It is defendants’ contention here that the adjacent area is a limited common element and, therefore, their use of that space is permitted. Because the facts are not disputed and because condominium declarations and by-laws are covenants running with the land, we need only examine the declaration’s language in the instant case, to the extent that that language is unambiguous, to determine whethér summary judgment was proper. See Yorkshire Village Community Association v. Sweasy (1988), 170 Ill. App. 3d 155, 524 N.E.2d 237.

Article I of the declaration defines a “common element,” in pertinent part, as:

“All of the [pjroperty, except the [ujnits, and including, but not limited to, the land, foundations, hallways, stairways, entrances and exits, common parking areas, storage areas, basement, roof, incinerator, pipes, ducts, electrical wiring and conduits, *** central heating and air-conditioning system, public utility lines, floors, ceilings and perimeter walls of [ujnits, *** structural components of the [bjuilding, outside walks and driveways, landscaping, and all other portions of the [pjroperty except the individual [ujnits.”

The article further defines a “limited common element” as:

“A portion of the [cjommon [ejlements contiguous to and serving exclusively a single [ujnit or adjoining [ujnits as a inseparable appurtenance thereto, including specifically, but not by way of limitation, balconies, patios, terraces and such portions of the perimeter walls, floors and ceilings, doors, vestibules, windows and entryways, and of all associated fixtures and structures therein as lie outside the unit boundaries.”

The “garage” is defined as:

“That part of the common elements providing for access to the parking spaces.”

Finally, a “parking space” is defined as:

“A part of the [ujnit intended for the parking of a single automobile.”

The above definitions establish that the underground area is comprised of two components. Each unit’s designated parking bay is considered a part of the unit, itself. It is neither a common element nor a limited common element. The declaration contemplates the parking of a single automobile per unit in that space. The “garage” actually constitutes that portion of the underground area which we have referred to above as the driveway. That driveway area is defined as part of the common elements of the condominium property. No part of the driveway area, or “garage” as that term is defined, is designated as a limited common element.

Further, we do not believe the exclusive use of the adjacent area might otherwise cause that area to be viewed as within the scope of the declaration’s definition of a limited common element. Given that the only access underground is at the south end of the property, if the driveway, or “garage,” area behind and adjacent to each unit’s parking bay constituted a limited common element for the exclusive use of that unit’s owner, only the owner of unit A could enter, park, and exit without infringement on another unit owner’s exclusive right to .use the space, adjacent to that unit owner’s parking bay.

Nor do we believe either , the duration of use of the space or the real estate sales contract for the unit is dispositive of this appeal. First, defendants have made no claim to the use of the space based on a theory of adverse possession. Second, even notwithstanding the fact that defendants have not supplied the record with the actual deed to the property, the contract’s provisions are expressly made subject to the terms of the condominium declaration.

We therefore cannot conclude that the space behind and adjacent to the parking area for unit F is a limited common element under the condominium declaration or that defendants are otherwise entitled to an exclusive right to use that property for additional parking. Accordingly, we agree with the trial judge’s determination to enjoin defendants’ use of the space.

Defendants also contend the award of attorney fees and costs to the Association by the trial judge was improper.

Article X of the declaration provides for the condominium board to recover “all” of its expenses, including “court costs and attorneys’ fees” in connection with actions “either at law, or in equity,” “to enjoin, abate or remedy, by appropriate legal proceedings” any breach of the declaration’s provisions.

Defendants here do not challenge the amount of the award or the determination that their use of the adjacent area was a violation of the declaration’s provisions. Rather, defendants argue that the declaratory relief sought by the Association falls outside of the scope'of actions contemplated by article X.

We find no. merit to that argument. Article X clearly contemplates the recovery of expenses for attorney fees and costs incurred in any legal determination necessary to enforce the declaration’s provisions. Here, that determination was dependent upon the ascertainment of the defendants’ rights under the condominium declaration. Because the declaration provided for the recovery of attorney fees and costs (see Yorkshire Village Community Association v. Sweasy (1988), 170 Ill. App. 3d 155, 524 N.E.2d 237), and because we conclude the fees incurred come within the scope of that provision, we find no reason to disturb the trial judge’s award.

We therefore affirm the judgment of the circuit court.

Affirmed.

COCCIA, P.J., and MURRAY, J„ concur.