text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID MAIDEN et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 1 — 87—0275,1—87—0337 cons.
    Opinion filed March 1, 1991.

      George C. Howard, of Chicago, for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Inge Fryklund, Sara Dillery Hynes, and Robyn Berman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

After a bench trial, defendant Leon Rayford was found guilty of manufacture and delivery of more than 30 grams of a controlled substance (PCP) and possession thereof with intent to deliver (Ill. Rev. Stat. 1985, ch. 561/2, par. 1401(a)(10)) and sentenced to 10 years in the Illinois Department of Corrections. Defendant David Maiden was found guilty of possession of less than 30 grams of a controlled substance (PCP) (Ill. Rev. Stat. 1985, ch. 561/2, par. 1401(b)) and sentenced to 21/2 years’ probation with the first six months served in the Cook County Department of Corrections.

The issues raised on appeal are: (1) whether the trial court erred when it denied defendant Maiden’s motion to suppress his statement; (2) whether the trial court erred when it concluded that the State had produced sufficient evidence to establish residency of the search premises by defendant Rayford; (3) whether the trial court erred when it found defendant Rayford guilty of a Class X felony; (4) whether the trial court erred when it denied defendant Rayford’s Franks motion to quash the search warrant and to produce the informant; and (5) whether the trial court erred when it denied defendant’s “no knock” motion.

According to Officer Klunk of the Chicago police department, he went to 11664 South Vincennes Street on October 8, 1985, to execute a search warrant. Upon arrival, the officer observed defendant Maiden outside the residence. The officer was unsuccessful in his attempt to execute the warrant since defendant Maiden quickly entered the house and locked the door behind him. Officer Klunk testified that he yelled “police” and after receiving no response, he and nine other officers forcefully entered the residence. Upon entering, Officer Klunk observed defendant Maiden near the stairs leading to the basement. Officer Klunk, while having his gun drawn, grabbed Maiden. Officer Klunk detected an intense odor which he thought was PCP coming from the basement and thus asked defendant Maiden, “What are you doing, what did you do, or what is the odor?” Maiden responded that he had dumped PCP downstairs. Officer Klunk then proceeded downstairs to the basement, where he observed several jars containing chemicals.

While Officer Klunk proceeded to the basement, Officer Peck went upstairs to the bedroom where he found defendant Rayford in bed with a woman. Officer Peck searched the bedroom and found three “little bottle[s] that [were] crown royal — like you get drinks on the airplane full of liquid.” The officer also recovered a gas bill and a bill of sale for the house in defendant Rayford’s name, a tinfoil packet containing white powder, and men’s clothing in the dresser drawers. Officer Peck then proceeded to the basement, where he observed bottles identical to the ones recovered in the bedroom. He also recovered $28,000 in cash and two plastic bags, one containing a crushed green plant and one containing a white powder.

Prior to trial, both defendants filed a variety of pretrial motions. Defendant Maiden filed a motion to suppress his statement regarding the PCP smell emanating from the basement. Defendant Rayford moved to quash the search warrant and produce the informant and also filed a “no knock” motion claiming that the officers failed to knock and announce their office prior to forcibly entering the premises. The court denied defendant Maiden and Rayford’s motions.

At trial, in addition to the above testimony, Odiest Washington, a forensic chemist for the Drug Enforcement Administration, testified that he smelled PCP and ether emanating from a trap in the basement and that he observed other evidence indicating the manufacture of PCP. Jean Dietrich, a chemist with the Chicago police department, testified that she preliminarily tested the three liquor bottles that were found in the bedroom of the house, and the tests indicated the presence of PCP. She stated that the individual weight of the liquid in the bottles was 23.11 grams, 27.02 grams, and 21.85 grams. The combined weight of the bottles was 66.98 grams. Her preliminary tests of all three bottles indicated the presence of PCP, but she conclusively tested the liquid from only one of the bottles, which tested positive for PCP.

Defendant Maiden rested at the close of the State’s case, calling no witnesses on his behalf. Rayford testified on his own behalf. He testified that he never lived at 11664 South Vincennes, never received a bill for utility service at that address and had never been in the basement of the house on Vincennes. Ida Mae Brown then testified that she lived with defendant Rayford at the Michigan Plaza Hotel. Moreover, the manager and another employee of the hotel testified that Rayford was registered and paid rent at the hotel, but they were unaware whether Rayford actually resided there.

Defendant Maiden’s first contention on appeal is that the trial court erred by not suppressing his reply to Officer Klunk’s question regarding the odor emanating from the basement. Specifically, Maiden contends that he was in custody when he made the statement and therefore should have been advised of his Miranda rights before any questioning.

The prosecution may not use statements of the defendant stemming from custodial interrogation unless Miranda warnings have been given. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) Custodial interrogation of a defendant means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way. Although Miranda rights must be given to an accused during a custodial interrogation, they are not necessary where the police conduct a general on-the-scene questioning as to the facts surrounding the crime. (People v. Parks (1971), 48 Ill. 2d 232, 269 N.E.2d 484, cert. denied (1972), 404 U.S. 1020, 30 L. Ed. 2d 669, 92 S. Ct. 692.) In determining whether a statement was made in a custodial setting the court must evaluate whether a reasonable, innocent person would have felt free to leave. People v. Savory (1982), 105 Ill. App. 3d 1023, 435 N.E.2d 226.

Thus, the question in this case is whether defendant Maiden was subject to general on-the-scene questioning or whether he was under custodial interrogation and thus deprived of his freedom of action. In support of his contention that he was in custody, Maiden relies on People v. Hentz (1979), 75 Ill. App. 3d 526, 394 N.E.2d 586. In Hentz, two police officers received a radio message directing them to a Chicago address where they found the victim of a gunshot wound. After speaking with the wounded man, who stated that the defendant had shot him, the officers proceeded to the defendant’s residence. When the defendant answered the door, an officer with gun drawn asked defendant what had happened. The defendant replied that he had had an argument with the victim and shot him. Although the officer admitted that he had not advised defendant of his rights prior to making the statement, he indicated that the defendant was not in custody or under arrest when he made the incriminating statements. The officer did, however, state that if the defendant attempted to run, he would have stopped him. Hentz, 75 Ill. App. 3d 528.

The court, in affirming the trial court’s decision to suppress the statement, noted that this was not a crime scene questioning and the police considered the defendant a suspect prior to asking him the question. Moreover, the officers had no intention of letting defendant escape. Two police officers covered the back entrance to defendant’s house and another testified that if defendant tried to run he would have been stopped. Moreover, the court stated that “of the greatest significance is the fact that at least one of the officers who greeted the defendant had his gun drawn.’’ Based on these factors, the court determined that defendant was deprived of his freedom in a significant way and therefore should have been given his Miranda warnings prior to being questioned. Hentz, 75 Ill. App. 3d at 530.

The court reached a similar result in People v. Calderon (1981), 101 Ill. App. 3d 469, 428 N.E.2d 571, in which the court concluded that the testimony adduced at the suppression hearing clearly showed that the defendant’s statement was given during a period of custodial interrogation which necessitated Miranda admonishments. Four officers entered the defendant’s home, with revolvers drawn, and ordered the partially clad man out of his bedroom. Defendant assumed a prone position on the floor and during that time an officer had his gun pointed at him. It was at that point that the defendant made a statement. The court therefore concluded that it was evident from these facts that defendant’s statement was given during a police-dominated atmosphere from which he was unable to leave. Calderon, 101 Ill. App. 3d at 478.

The State cites People v. Fischetti (1970), 47 Ill. 2d 92, 264 N.E.2d 191, and People v. Kilfoy (1984), 122 Ill. App. 3d 276, 466 N.E.2d 250, to support its argument that Miranda warnings were unnecessary. In Fischetti, police officers went to the defendant’s parent’s apartment equipped with a search warrant. The ensuing search uncovered marijuana in certain items of clothing which the defendant admitted owning. The supreme court found that the defendant’s admission was not pursuant to a custodial interrogation in light of the fact that the questioning took place in a familiar environment, no prolonged questioning was involved, and there was no danger of intimidation. Fischetti, 47 Ill. 2d at 97.

Similarly, in Kilfoy, the police officers went to the defendant’s home to execute a search warrant for a male defendant. The police were admitted into the house by a female codefendant. The officers asked her if she lived there and she said “yes.” In affirming the trial court’s denial of the defendant’s motion to suppress, the court held that the officer’s simple inquiry of the codefendant regarding whether she lived there did not amount to custodial interrogation even if the officer believed that the codefendant was not free to leave. Kilfoy, 122 Ill. App. 3d at 287.

The facts in the instant case are most similar to those in Hentz and Calderon. Officer Klunk testified that he and nine other officers entered the premises by force and that he had his gun drawn. He further testified that he grabbed Maiden by the arm and, at that time, defendant was not free to leave. Officer Klunk then asked Maiden about the odor emanating from the basement. This was clearly more than simple on-the-scene questioning. There was a danger of intimidation and a reasonable person would not have felt free to leave. Consequently, defendant Maiden was deprived of his freedom in a significant way and should therefore have been advised of his Miranda rights before being questioned.

Since the appropriate admonishments were not given to defendant before his statement concerning the odor emanating from the basement, the remark should have been excluded at trial. There are circumstances, however, where a failure to comply fully with Miranda warnings can be classified as harmless error. If it can be determined beyond a reasonable doubt that the error did not contribute to the conviction, a reversal on constitutional grounds is not warranted. (People v. Calderon (1981), 101 Ill. App. 3d 469, 428 N.E.2d 571.) Under these circumstances, the error in the admission of the statement was harmless. Notwithstanding Maiden’s remark, there was sufficient evidence from the testimony of the officers and the chemists on which the trier of fact could have relied to support the conclusion that the smell permeating from the basement was in fact PCP.

Defendant Rayford next contends that the trial court erred when it found that the State had produced sufficient evidence to establish residency of the search premises by him. To obtain a conviction for the unlawful possession of a controlled substance, the State must prove that the defendant had knowledge of the drug and that it was in his immediate and exclusive control. (People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361, cert. denied (1962), 369 U.S. 853, 8 L. Ed. 2d 12, 82 S. Ct. 939.) Possession may be established by evidence of actual possession or constructive possession. (People v. Scott (1987), 152 Ill. App. 3d 868, 505 N.E.2d 42.) Constructive possession may be proved by showing that the defendant controlled the premises where the narcotics were found. (People v. Morrison (1988), 178 Ill. App. 3d 76, 532 N.E.2d 1077.) Whether the defendant had knowledge and possession are questions of fact for the trier of fact and will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt as to the defendant’s guilt. People v. Gallagher (1990), 193 Ill. App. 3d 566, 550 N.E.2d 255.

Defendant Rayford maintains that a reasonable doubt exists as to whether defendant Rayford controlled the premises where the narcotics were found. Specifically, defendant notes that there was no evidence that defendant paid the mortgage, there was no evidence that defendant frequented the premises on a regular basis, there was no proof that he owned the clothing found in the bedroom, and three other men were present on the day of the arrest.

Defendant’s argument is without merit. Defendant testified that he had in fact used 11664 South Vincennes as his official address. Moreover, the officers discovered a gas bill in defendant’s name indicating 11664 South Vincennes as his address. Furthermore, the officers discovered a bill of sale for the residence referring to 11664 South Vincennes with defendant’s name affixed to the “buyer” line. Men’s clothing was found in the bedroom where defendant was found by the officers clad in his underwear. Moreover, defendant was discovered in bed with a female at the time of the officer’s entrance. See also People v. Galloway (1963), 28 Ill. 2d 355, 192 N.E.2d 370, cert, denied (1964), 376 U.S. 910, 11 L. Ed. 2d 608, 84 S. Ct. 665 (evidence was sufficient to conclude that the premises were in defendant’s control where the officers found personal papers and other correspondence addressed to defendant at that address and a large quantity of money and men’s clothing there); People v. Hester (1980), 87 Ill. App. 3d 50, 409 N.E.2d 106 (evidence was sufficient to establish that defendant had exclusive control of the premises since defendant was present when the officers arrived, was dressed as if staying as opposed to visiting, there was men’s clothing in the closet and defendant received his mail there); People v. Miller (1981), 97 Ill. App. 3d 970, 483 N.E.2d 1152 (evidence was sufficient to establish control in light of the fact that defendant was present when police entered the premises, various forms of identification including a utility bill were found bearing defendant’s name and address, and defendant offered the specified address as her own when she was charged).

While defendant did present evidence that others had access to the premises, this alone does not mandate reversal because mere access to the premises by others is insufficient to defeat a charge of constructive possession. (People v. Stamps (1982), 108 Ill. App. 3d 280, 438 N.E.2d 1282.) Consequently, the evidence clearly established that defendant Rayford controlled the premises where the contraband was discovered.

Defendant Rayford next contends that since the expert chemist only conclusively identified contraband in one of the three samples, the conviction for possessing more than 30 grams of PCP must be reversed because the weight of the conclusively tested sample by itself falls short of the 30-gram minimum. The State, on the other hand, maintains that the case law in Illinois clearly demonstrates that a chemist need only randomly sample a substance in order to render an expert opinion on the whole.

The general rule is that a chemist need only test random samples in order to be qualified to render an expert opinion as to the whole amount seized. (People v. Kaludis (1986), 146 Ill. App. 3d 888, 497 N.E.2d 360.) The trial court in the instant case relied on the decision in Kaludis to support its finding that defendant was in possession of 30 grams of PCP. In Kaludis, the issue was whether random sampling was sufficient to sustain a conviction for possession of 100 tablets suspected of being methaqualine. According to the forensic chemist, the tablets all exhibited the same physical characteristics with respect to size, shape and hardness and all were marked “Lemon 714.” The chemist conducted tests on three randomly selected tablets which conclusively indicated the presence of methaqualine. The court on appeal concluded that since the State’s expert testified that the tablets were in fact homogeneous, random sampling provided a sufficient basis for proving beyond a reasonable doubt that all tablets contained a controlled substance. Moreover, the court noted that the record failed to demonstrate that any test performed by the chemist yielded a result indicative of differing compositions among the tablets or that they were other than homogeneous. Kaludis, 146 Ill. App. 3d at 895-96.

As the court in Kaludis noted, this rule is not without limitation. In People v. Ayala (1981), 96 Ill. App. 3d 880, 422 N.E.2d 127, the defendant was found to be in possession of two bags of a substance which the State claimed was heroin. The chemist testified that one bag weighed 19.35 grams and the other 15.32 grams. He subjected a portion of the contents of each of the bags to a series of chemical color tests which indicated that heroin might have been present in the sample. The contents of only one bag were conclusively tested by the chemist. The court in Ayala distinguished the cases People v. Ohley (1973), 15 Ill. App. 3d 125, 303 N.E.2d 761, and People v. Yosell (1977), 53 Ill. App. 3d 289, 368 N.E.2d 735, which have also been relied on by defendant in the present case, in light of the fact that in those cases the court was concerned with a large number of tablets, similar in appearance, from which a small number of tablets randomly selected were tested. The court concluded:

“The situation here is not comparable. While the difficulty of analyzing 89 tablets or 1,000 tablets is evident, the difficulty in examining a portion from each of the two bags in question here is not evident. Apart from the expert testimony, it might be possible to conclude from other evidence that the substance was heroin. [Citation.] An inference that the untested bag contained heroin could be drawn from the fact that the preliminary test indicated heroin ‘might’ be present, and from the fact that defendant possessed both substances and from their physical similarity. This proof would be sufficient if the standard were that of the preponderance of the evidence, and is perhaps even clear and convincing, but we are not persuaded that the State has proved beyond a reasonable doubt that the untested bag in fact contained heroin.” Ayala, 96 Ill. App. 3d at 882-83.

The court further stated that a test existed which could have proved, beyond a reasonable doubt, that the untested bag in fact contained heroin, yet it was performed on the contents of only one of the two bags. Ayala, 96 Ill. App. 3d at 883; see also People v. Hill (1988), 169 Ill. App. 3d 901, 524 N.E.2d 604 (since chemist only conclusively tested 3 of 63 bags of white powder believed to contain heroin, the court concluded that conclusive test performed on only 21.93 grams of the powder was insufficient to prove beyond a reasonable doubt that over 30 grams of the powder seized in fact contained cocaine).

The instant case is similar to Kaludis in that chemist Deitrich testified that the samples all looked the same and smelled the same. Moreover, there is no testimony that the bottles were not in fact homogeneous. This case, however, is distinguishable from Kaludis and the other cases cited in support of the State’s argument in that it involves a sample of three liquor bottles rather than a random sample of over 100 tablets or capsules. For this reason, the rule in Ayala and Hill should have been applied here. A test could have been performed to conclusively determine whether the substance in the other two bottles also contained PCP; yet, it was uncontroverted that conclusive tests were never performed on the other two bottles. Defendant was, however, clearly proved guilty beyond a reasonable doubt of possession of less than 30 grams of PCP. His conviction is therefore reduced to possession of less than 30 grams of a controlled substance and the cause is remanded for resentencing.

Defendant Rayford contends that the trial court erred by denying his Franks motion in light of Rayford’s testimony that he did not live at 11664 South Vincennes, was not on those premises on October 6, 1985, the date that the informer was to have made the drug purchase, and that he did not sell drugs. Defendant also attached to his Franks motion affidavits from the manager and an employee of the Michigan Plaza Hotel stating that Rayford was registered at and paid rent at the hotel. It should, however, be noted that on cross-examination, Rayford stated that he had in fact used 11664 Vincennes as his address and was aware of a Federal seizure action pending against him and the residence on Vincennes.

Defendant’s contention is without merit. In Franks, the Supreme Court announced a limited exception to the general rule that a defendant is precluded from attacking the veracity of the affidavit supporting the search warrant. (Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.) Under this exception, a defendant is entitled to an evidentiary hearing where he makes a substantial showing that an affiant, knowingly and intentionally or with reckless disregard for the truth, included a false statement in the warrant’s affidavit. Furthermore, the defendant must show that the allegedly false statement is necessary to the finding of probable cause. A defendant’s mere denial of the facts contained in the warrant’s affidavit is insufficient to mandate an evidentiary hearing. Franks, 438 U.S. at 171, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684; People v. Lucente (1987), 116 Ill. 2d 133, 154, 506 N.E.2d 1269 (defendant’s mere claim that “I didn’t do it” would amount to an unsubstantiated denial and would be plainly insufficient in satisfying the substantial preliminary showing requirement).

In the case at bar, defendant merely claims that the statements contained in the affidavits in support of the search warrant were false. His mere conclusory statement that he did not live on the premises where the sale took place and that he was not on the premises on the date of the informant’s alleged drug purchase is insufficient to require an evidentiary hearing. Moreover, the affidavits attached to defendant’s motion merely state that he was registered as a guest at the Michigan Plaza Hotel; they do not create a substantial showing that defendant did not live at 11664 Vincennes and that a drug sale did not occur there on October 6, 1985. Consequently, defendant failed to make a preliminary showing that the officer lied or acted in reckless disregard for the truth, and, therefore, the trial court properly denied defendant’s Franks motion.

Defendant next contends that the officers failed to knock or announce their authority prior to entering the premises at 11664 Vincennes. Specifically, defendant points to the testimony of the officers, claiming that there exists a conflict regarding whether or not the officers knocked or announced their authority.

First, it should be noted that it is the function of the trier of fact to determine the credibility of the witnesses and the weight to be given to their testimony. Furthermore, the trial court is not required to believe the defendant’s testimony over that of the officers. (People v. Trask (1988), 167 Ill. App. 3d 694, 521 N.E.2d 1222.) Where the evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6.) Moreover, a trial court’s ruling on a motion to suppress will not be set aside unless it is clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) Thus, defendant’s contention that the trial court erred in believing the testimony of the officers is without merit.

Moreover, even if the officers in the present case had failed to knock and announce their office, there was sufficient evidence for the trial court to find that exigent circumstances excused the officers’ failure. It is well established that although the failure of law enforcement officers to announce their authority and purpose prior to entering a dwelling is not necessarily a constitutional violation, the presence or absence of such an announcement is an important consideration in determining whether the subsequent entry to arrest and search is constitutionally reasonable. (People v. Saechao (1989), 129 Ill. 2d 522, 544 N.E.2d 745.) Exigent circumstances may, however, in a proper case excuse the failure of officers to knock and announce before entering a dwelling to execute a warrant. (People v. Ouellette (1979), 78 Ill. 2d 511, 401 N.E.2d 507.) Exigent circumstances may encompass such considerations as danger to the police executing the warrant, the uselessness of the announcement or the ease with which the evidence may be destroyed. (Ouelette, 78 Ill. 2d at 518.) The supreme court in Ouellette rejected a blanket assertion that since drugs are easily destroyed, exigent circumstances are always present to warrant a forceable entry without a verbal announcement. Rather, the court stated that the police must have particular reasons to reasonably believe in a particular case that drugs will be destroyed. Ouellette, 78 Ill. 2d at 520.

In the case at bar, the trial court’s denial of defendant’s motion to suppress was not clearly erroneous. First, as noted above, it was indeed proper for the trial court to believe the officers’ testimony that they did in fact knock and announce their authority. Moreover, exigent circumstances were present. The officers did indeed have particular reasons to believe that the evidence could have been destroyed. The officers were recognized by defendant Maiden prior to his hurried entry into the house. Defendant failed to respond to the officers' knock and announcement. In light of the fact that Maiden knew of the officers’ presence, yet refused to allow them entrance to the house, the officers could have reasonably believed that the defendant was either attempting to destroy the drugs or to arm himself. Thus, even if the officers did not knock and announce their authority, sufficient exigent circumstances were present here warranting the immediate and forcible entry into the house.

For the reasons stated above, the judgment of the circuit court of Cook County convicting defendant Rayford of unlawful possession of more than 30 grams of a controlled substance with intent to deliver is modified to a judgment convicting defendant of possession of less than 30 grams of a controlled substance with the intent to deliver. (Ill. Rev. Stat. 1985, ch. 561/2, par. 1401(b).) As modified, the judgment of the circuit court of Cook County is affirmed, and the cause is remanded for resentencing. The conviction of defendant Maiden is affirmed.

Judgment affirmed as modified and remanded.

LORENZ, P.J., and GORDON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LORENZ

license: Public Domain

text:
    JOHN VAN GESSEL, Plaintiff-Appellant, v. SUSAN FOLDS et al., Defendants-Appellees.
    First District (5th Division)
    No. 1 — 89—0468
    Opinion filed March 1, 1991.

      Mark S. Dym, of Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (Daniel J. Zollner and Hugh C. Griffin, of counsel), for appellees.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court;

Plaintiff appeals from an order granting summary judgment in favor of defendants raising issues resulting from trial court error. The facts are discussed only as they relate to the disposition of this appeal.

In his four-count second-amended complaint, plaintiff sought damages against the defendants for their breach of contract, fraudulent and negligent misrepresentation, and their violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 1211/2, par. 261 et seq.) (Consumer Fraud Act) in connection with their sale to him of residential real estate. Defendants answered asserting affirmative defenses and moved for summary judgment. In granting the summary judgment the trial court considered the pleadings, the parties’ memoranda with exhibits, depositions of the parties and an affidavit of plaintiff’s real estate agent.

Pertinent to our disposition are the following as shown by the pleadings, depositions and affidavits. In 1979, defendant Susan Folds purchased the subject property, which had been previously damaged by fire. Although she never lived in the home, she did spend some money rehabbing some of the minor fire damage. She subsequently listed the property for sale with defendants Glenn Portugal and Portiland Realty Company.

After twice inspecting the premises with his real estate agent, Tim Allwardt, plaintiff, an attorney, drafted a contract to purchase, an installment agreement for warranty deed and a rider to the agreement which were then signed by defendant Susan Folds.

The documents provided, inter alia, for the purchase price payment of $59,000 in monthly installments over three years with a balloon payment on December 1, 1983; that the plaintiff would receive $500 credit to “cover the cost of all repairs regardless of actual cost or nature of any defects”; that the conveyance was “expressly subject” to building and zoning ordinances; and that the home would be conveyed “as is.” The “as is” clauses were either handwritten or typewritten into a blank space on the contract form and initialed by the plaintiff. Upon closing the deal, plaintiff placed a handwritten notation on the closing statement indicating the $500 credit was received for repairs to the back porch only.

Plaintiff took possession of the premises in November 1980. While checking the insulation in the attic in January 1983, he discovered evidence of fire damage which he characterized as concealed. He then wrote several letters to the defendants complaining of the damage and requested they remedy the situation. At the same time he reserved the right to pursue legal remedies against them. However, plaintiff continued his monthly payments, including the balloon payment.

Plaintiff had the home appraised in November 1983. The appraiser, using a market value approach, valued the property at $69,000. In 1985, a contractor estimated the cost to repair portions of the damaged area at $3,800. However, the repairs were never made. In 1986, plaintiff had the property reappraised instructing the appraiser to place a value on the home as if no major fire damage had occurred. The appraiser, using a cost approach, valued the property at $117,000 and, by market approach, at $105,000. Plaintiff sold the property in November 1986 for $85,000.

Opinion

While we agree that summary judgment is a drastic remedy to be awarded with caution (Gatlin v. Ruder (1990), 137 Ill. 2d 284, 560 N.E.2d 586), we cannot agree that the trial judge erred in granting summary judgment in this case.

Summary judgment is available to a party, as a matter of law, if the pleadings, taken together with any depositions, admissions or affidavits, demonstrate that there is no genuine issue of material fact. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) Yet the mere allegation that a material fact exists does not create such an issue or avoid the imposition of summary judgment. Turner v. City of Chicaqo (1980), 91 Ill. App. 3d 931, 415 N.E.2d 481.

In the present case, the plaintiff has alleged that there are questions of fact on each of his four counts precluding summary judgment. After careful analysis, we conclude that these mere allegations are not enough to avoid the imposition of summary judgment on each of the counts. On the breach of contract count, plaintiff has alleged that there was a question of material fact whether all three defendants had an ownership interest in the home. The Statute of Frauds, however, provides that no action shall be brought to charge any person upon any contract for the sale of land unless such contract is signed by the party to be charged or by some other person authorized, in a signed writing, to do so. (Ill. Rev. Stat. 1989, ch. 59, par. 2.) Glenn Portugal and Portiland Realty Company did not sign the sales contract, and the plaintiff has presented no evidence of a writing signed by these defendants authorizing Susan Folds to sign for them. Therefore, based on the Statute of Frauds, we hold that Glenn Portugal and Portiland Realty Company are not subject to liability for breach of the sales contract.

We next consider whether the “as is” clauses along with the $500 credit operated as a disclaimer of any contractual representation made by Susan Folds. In order for an “as is” clause to operate as a disclaimer of contractual representations, the “as is” clause must have been both expected and bargained for. Lake Bluff Heating & Air Conditioning Supply, Inc. v. Harris Trust & Savings Bank (1983), 117 Ill. App. 3d 284, 452 N.E.2d 1361.

In the instant case, plaintiff argues that the fire damage which he characterized as concealed raises genuine issues of material fact whether the disclaimer of that damage was both expected and bargained for. We disagree. The plaintiff not only knew that the home had been involved in a fire but also knew that some fire damage still existed. The plaintiff also was given complete freedom to inspect any portion of the home. Although the plaintiff argues that he should not be expected to have ripped down the dry wall during his inspections, we find this argument unconvincing. First, we note that no one was living in the home when the plaintiff inspected the home, so he was not prevented from performing a thorough inspection. Second, we note that the plaintiff ultimately discovered the concealed fire damage while he was checking the level of insulation in the attic. We do not find it unreasonable to hold that the plaintiff should have made a similar check in the attic when he inspected the home before purchasing it. These facts establish as a matter of law that the disclaimer of the fire damage was expected.

The existence of the $500 credit establishes as a matter of law that the disclaimer of the fire damage was also bargained for. The $500 was provided to “cover the cost of all repairs regardless of actual cost or nature of any defects.” Although the plaintiff argues that the handwritten notation on the closing statement established that the $500 was for repairs to the backporch only, we find this argument unconvincing. The plaintiff drafted the purchase documents and any ambiguity must therefore be strictly construed against him. (Berutti v. Bierks Foods, Inc. (1986), 145 Ill. App. 3d 931, 496 N.E.2d 350.) In conclusion, because the test for disclaimer has been satisfied, we hold that the “as is” clauses operated as a disclaimer of the contractual representations made by defendant Susan Folds. Therefore, the trial judge’s entry of summary judgment on the breach of contract count was proper.

The plaintiff’s second and third counts involved the torts of fraudulent and negligent misrepresentation, respectively. The parties are in agreement that the measure of damages for these torts is the value the home would have had at the time of the sale if the damage did not exist, minus the value the home actually had at the time of sale due to the damage. (Kinsey v. Scott (1984), 124 Ill. App. 3d 329, 463 N.E.2d 1359.) Plaintiff has measured damages based upon the appraisal value of the home in 1986 ($117,000 or $105,000), minus the sale price of the home ($85,000) to the third party in 1986. The defendants contend that this measure of damages is irrelevant. We agree. The proper time to measure damages is the time that the defendants sold the home to plaintiff in 1980, not the time plaintiff resold the home in 1986. (Posner v. Davis (1979), 76 Ill. App. 3d 638, 395 N.E.2d 133.) Because the plaintiff has not presented evidence of damages in 1980, we hold that the trial judge’s entry of summary judgment on plaintiff’s second and third counts was proper.

The plaintiff’s fourth count alleged violations of the Consumer Fraud Act. (Ill. Rev. Stat. 1989, ch. 1211/2, par. 261 et seq.) The issue here is whether plaintiff’s claim is barred by the Consumer Fraud Act’s three-year statute of limitations. Defendant Susan Folds conveyed the damaged home to the plaintiff in November 1980. If the limitations period began at that time, it expired in November 1983. Since plaintiff did not file suit until 1985, defendants argue that this count should be time barred.

Plaintiff, on the other hand, argues that the discovery rule should be applied to the Consumer Fraud Act’s statute of limitations. Since plaintiff did not discover the concealed fire damage until 1983, filing suit in 1985 was within the three-year period. Both parties recognize Chicago Board Options Exchange, Inc. v. Connecticut General Life Insurance Co. (N.D. Ill. 1982), 553 F. Supp. 125, rev’d on other grounds (7th Cir. 1983), 713 F.2d 254, as precedent (though not binding) for application of the discovery rule to the Consumer Fraud Act.

We do not reach, however, the issue of application of the discovery rule to the Consumer Fraud Act. If a plaintiff discovers his cause of action or injuries within the limitations period and still has reasonable time in which to file suit, then the discovery rule does not apply and the plaintiff must file suit within the normal limitations period. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560.) In Anderson, the Illinois Supreme Court barred the plaintiffs medical malpractice suit under the statute of limitations where the plaintiff learned of his cause of action seven months prior to the running of the limitations period, but delayed filing suit until after the limitations period had run.

In the present case, plaintiff’s claim under the Consumer Fraud Act accrued in November 1980 and the limitations period expired in November 1983. Plaintiff admittedly discovered the alleged fraud in January 1983. Therefore, plaintiff had 10 months in which to file suit before the limitations period expired. Hence, pursuant to the Illinois Supreme Court’s holding in Anderson, we hold that plaintiff’s count under the Consumer Fraud Act is time barred.

In summary, we hold that the trial judge’s entry of summary judgment on each of the four counts as to each of the defendants was proper.

Affirmed.

MURRAY and GORDON, JJ., concur.


text:
    KELLY DEANN ROBERTS, a Minor, by Doris Ann Ray, her Mother and Next Friend, Plaintiff-Appellant, v. STEPHEN A. MYERS, Defendant-Appellee (Robert P. Olson et al., Defendants).
    First District (5th Division)
    No. 1 — 89—2257
    Opinion filed March 1, 1991.

      Hayes & Power, of Chicago (Larry R. Rogers, of counsel), for appellant.
    Rooks, Pitts & Poust, of Chicago (David J. Pritchard and Patricia C. Nowak, of counsel), for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Doris Ann Ray, on behalf of her daughter, Kelly Deann Roberts, filed suit against defendant Stephen A. Myers, M.D., and others alleging negligence in the prenatal care and delivery of Kelly. Dr. Myers moved for summary judgment on the ground that he was immune from liability pursuant to section 4400 — 30 of the Medical Practice Act of 1987 (Ill. Rev. Stat. 1989, ch. Ill, par. 4400 — 30), commonly known as the Good Samaritan statute. The trial judge granted Dr. Myers’ motion and entered a finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). This appeal followed. We consider whether the trial judge erred in applying the Good Samaritan statute to Dr. Myers.

We affirm.

We note at the outset that the record on appeal, which is over 1,400 pages, contains many irrelevant documents and does not contain many other relevant documents. The relevant documents not contained in the record include the defendant’s motion for summary judgment and reply memoranda, the deposition of the only party with independent recollection of the events alleged, and various medical records. We will limit our consideration to the facts contained in the record.

From the time of birth Kelly Roberts has suffered from quadriplegia and cerebral palsy. The events prior to and during Kelly’s delivery form the substance of the complaint, as amended.

On October 28, 1977, Doris Ray went into labor and was admitted to Rush-Presbyterian-St. Luke’s Hospital (Rush) at 5:30 a.m. Prior to admission to Rush, Doris had been under the care of her personal obstetricians, Drs. Olson, Long and Voyevidka. During the morning and early afternoon of October 28, Drs. Olson and Voyevidka periodically examined Doris at Rush. Sometime in the late afternoon, Drs. Olson and Voyevidka left the hospital, but Doris continued to receive care from the hospital nurses and resident doctors.

Dr. Myers, who had staff privileges at Rush but was employed by Health Care Specialists, S.C., was at Rush that afternoon caring for his own obstetrical patients. Meanwhile, one of the nurses in the labor room applied an electronic fetal monitor to Doris and began observing the fetal heart tones. The nurse also recorded her observations on a labor progress record. The labor progress record, which outlined the relevant events leading up to Kelly’s delivery, stated:

MIDFORCEPS GIRL at 5:55 p.m.”

Dr. Toig was a resident at Rush and at 4:35 p.m. he performed a sterile vaginal exam on Doris. The 5:12 p.m. entry was circled because that was the regular notation used to indicate events that were recorded out of order. At 5:12 p.m., one of the nurses “informed” Dr. Myers of decelerations in the fetal heart tones. The labor progress record did not reflect whether the decelerations were benign or abnormal nor did it reflect whether the nurse actually showed Dr. Myers the tracing strip or just verbally passed along her observations. The tracing strip itself was not available as evidence in these proceedings. At any rate, Dr. Myers did not perform any emergency care for Doris at 5:12 p.m. as a result of having been informed of the decelerations in the fetal heart tones. In fact, the labor progress record indicates that Dr. Myers did not have any personal contact with Doris until 5:30 p.m. when he performed a routine sterile vaginal exam. Dr. Myers then retired to the doctor’s lounge which was located next to the delivery room. At 5:35 p.m., the labor progress record indicates that Doris was taken to the delivery room. At 5:40 p.m., Nurse Weaver could not hear fetal heart tones, but Nurse Gadek could hear some fetal heart tones. Dr. Toig deemed it necessary to obtain immediate assistance from another doctor. Nurse Gadek saw Dr. Myers in the doctor’s lounge and brought him into the delivery room.

Dr. Myers recorded his own involvement with the delivery of Kelly on a progress note which he entitled “Covering Attending Delivery Note.” He wrote this note at 6:15 p.m., after he delivered Kelly. In the note, Dr. Myers characterized the fetal heart tone decelerations which he had been informed of at 5:12 p.m. as “type one dips.” When Dr. Myers was brought to the delivery room by Nurse Gadek at 5:40 p.m., his note explains: “After checking myself and confirming inability to hear fetal heart tones, immediate steps taken to prepare for delivery *** Simpsons forceps applied with the delivery of a depressed female infant approximately 3,000 grams.” A mid-forceps delivery was one of the fastest techniques used for delivering a baby.

Dr. Myers gave his deposition for this case in 1988, over 10 years after he delivered Kelly. He testified that he had no independent recollection of the events on the day he delivered Kelly and could therefore only testify based on the available medical records. When asked to explain why he entitled his progress note “Covering Attending Delivery Note,” Dr. Myers testified that he was not the patient’s attending doctor, so it would have been inappropriate to write “Patient’s Attending Delivery Note.” Furthermore, he was not a resident doctor, so that is why he used the word “attending.” He used the word “covering” simply because he was the doctor that delivered the baby. Dr. Myers repeatedly denied that he was covering for Doris’ personal obstetricians.

Dr. Myers also testified that his progress note was entirely consistent with the existence of an emergency. Furthermore, at one point in Dr. Myers’ deposition, plaintiff’s counsel and Dr. Myers had the following exchange:

“Q. It appears that this was an emergency situation when you were called in, is that right?

A. As far as I can determine.”

Dr. Myers also explained that “type one dips” is one of three ways of describing periodic changes in the fetal heart rate and are not associated with fetal distress. Dr. Myers believed that a condition called “velamentous insertion of the cord” caused the loss of the fetal heart tones. He testified:

“I believe that, since there was really no indication that there was any significant abnormality up until the time heart tones were reported to have been lost, since velamentous insertion of the cord is a condition which is associated with sudden intrapartum fetal death, and since it was very clear that this placental abnormality at any rate was present in this case, there is a very, very strong probability that, in fact, that was the underlying mechanism for why the fetal heart tones were lost.”

In his deposition, Dr. Myers was also shown a memorandum prepared by another doctor who had been employed by Rush in 1977. The memorandum contained a procedure for classifying high risk patients. Dr. Myers did not remember ever using the procedure while he was on staff at Rush. Dr. Myers testified that he classified his patients as high or low risk based on individual assessment. One factor on the memorandum which required a high-risk classification was whether the fetal position was “breech, transverse lie or unknown.” Doris’ medical record indicated that four examinations were performed by the attending doctors for prenatal care all showing a normal cephalic presentation. One junior house officer made a notation, however, that there was a question of a breech presentation. Dr. Myers testified that he was absolutely certain that this last notation did not require that Doris be classified as high risk. Dr. Myers attributed the notation to the junior house officer’s inexperience. Upon delivery, the fetus had, in fact, a normal cephalic presentation.

Finally, Dr. Myers testified that he did not receive a fee for delivering Kelly. Furthermore, he had no knowledge that his employer, Health Care Specialists, received any fee.

Plaintiffs medical expert, Dr. Parer, was also deposed in 1988. His testimony was limited to his review of the medical records and portions of some of the defendants’ depositions. Dr. Parer testified that there was no evidence that trauma was involved in the mid-forceps delivery. There was a question, although, whether the baby might have bled in-utero which would have been consistent with bleeding from a velamentous insertion of the cord. Dr. Parer testified that a velamentous insertion of the cord was not detectable prior to birth in 1977.

Dr. Parer gave testimony concerning a list of factors that most doctors in 1977 agreed were indicative of high risk patients. Dr. Parer was then asked whether any of those factors were present in this case. He answered no, except for the question of the breech fetal position. Dr. Parer admitted, however, that a breech position was not present in this case and that the junior house officer’s notation was probably the result of his inexperience. Dr. Parer testified that as of the time Doris was taken to the delivery room there was no indication of fetal distress.

In Dr. Parer’s opinion, the cerebral palsy was due to asphyxia during labor. He based this opinion on three criteria that were present during and after delivery: low apgar scores, acidosis, and seizures. Dr. Parer admitted that the low apgar scores, seen alone, would not provide a doctor with the ability to differentiate the degree of the asphyxia. Dr. Parer also admitted that he determined that acidosis was present based on a blood gas reading taken 35 minutes after Kelly was delivered. The seizures also occurred after Kelly was delivered.

Dr. Parer testified that he had two concerns with Dr. Myers’ involvement in this case. First, it was his opinion that Dr. Myers’ progress note characterizing the fetal heart tone decelerations as “type one dips” was inconsistent with the rest of the course of the baby including the later acid/base status and blood gas readings. He believed that the decelerations were most likely “late,” a characterization which he described as potentially abnormal. Dr. Parer added, however, that even if the decelerations were “late,” Dr. Myers would not have been able to determine from an isolated reading that the fetus was in distress. Dr. Parer also admitted that “type one dips” could be consistent with what he read in the medical records. Dr. Parer added that he did not know what Dr. Myers was informed of, and that Dr. Myers may have been told, in fact, that the decelerations were “type one dips.” Also, if Dr. Myers was informed that they were “type one dips,” Dr. Parer testified that this information would have provided Dr. Myers with an assumption that the baby was not in immediate trouble.

Second, Dr. Parer testified that the subsequent loss of fetal heart tones at 5:40 p.m. was a sign that the fetus was in jeopardy. Therefore, it was Dr. Parer’s opinion that Dr. Myers delayed too long between the time when no fetal heart tones were heard and when he delivered the baby at 5:55 p.m. Dr. Parer admitted, however, that he did not know whether Doris had already been given an anesthetic or whether the forceps had been put in place. Dr. Parer testified that these factors, which in fact occurred after the fetal heart tones were lost, would minimize his questions over the 15-minute delay.

During the oral arguments on the summary judgment motion, the trial judge expressed two concerns over the plaintiff’s argument that the Good Samaritan statute did not apply. First, the trial judge thought that the facts of this case were indistinguishable from the only case on point which held that a doctor who provided emergency care in a hospital was immune from liability under the Good Samaritan statute. Second, the trial judge believed that, given the facts of the instant case, the plaintiff’s arguments were based on an overly narrow reading of the Good Samaritan statute.

For the reasons that follow, we affirm the trial judge’s entry of summary judgment in favor of Dr. Myers.

Opinion

It is well established that summary judgment is proper where the pleadings, depositions, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) In this case, the trial judge decided that there was no genuine issue of material fact precluding the application of the Good Samaritan statute, which provides doctors with immunity from liability for negligent medical care. (Ill. Rev. Stat. 1989, ch. Ill, par. 4400 — 30.) Application of the statute is based on a three-part test: first, the doctor must not have notice of the illness or injury; second, the doctor must provide emergency care; and third, the doctor must not charge a fee. Johnson v. Matviuw (1988), 176 Ill. App. 3d 907, 531 N.E.2d 970.

Johnson is the only Illinois case on the question whether the Good Samaritan statute applies to doctors providing emergency care in a hospital. The facts of Johnson are as follows. On April 4, 1983, Connie Johnson was admitted to Sherman Hospital under the care of her own physician for an evaluation of chest pains. At that time, Connie was 37 weeks pregnant with an expected delivery date of April 8. At 7:30 p.m. on April 9, Connie experienced cardiac arrest. A “Code Blue” was sounded and some nurses called down the hallway for help. Dr. Mitviuw, who was attending to one of his own patients in the hospital pursuant to his staff privileges, responded to the nurses’ calls. He went to Connie’s room and inserted an endotracheal tube and began resuscitation. A respiratory team arrived and provided more assistance. About 17 minutes later, Connie’s own doctor arrived and declared that he would take over. Connie could not be resuscitated, however. Connie and her child were pronounced dead at 8:20 p.m. that evening. Later, the hospital did bill Connie’s estate for supplies and drugs used during the emergency, but Dr. Matviuw received no fee for his services. The administrator of Connie’s estate sued Dr. Matviuw and others, alleging negligent medical care. The trial judge granted Dr. Matviuw’s motion for summary judgment on the ground that he was immune pursuant to the Good Samaritan statute. The appellate court affirmed.

In the instant case, counsel for the plaintiff stated in his brief that he rests this appeal on an attempt to distinguish our facts from Johnson. Even if there are some distinguishing facts in the two cases, it does not necessarily follow that the trial judge, here, erred in applying the Good Samaritan statute. We have analyzed the record on appeal and have determined that there are no genuine issues of material fact concerning the three-part test for application of the Good Samaritan statute.

The first part of the test is whether Dr. Myers had notice of the illness or injury. In Johnson, the court’s opinion contained limited discussion of notice because the pregnant patient went into cardiac arrest and the defendant doctor began caring for her immediately upon hearing the nurses’ shouts. Here, plaintiff argues that Dr. Myers had notice of the illness or injury because he had several contacts with Doris before he delivered Kelly. Plaintiff raises several points in support thereof. First, plaintiff argues that Dr. Myers was covering for Doris’ own obstetricians and should therefore be held to have had complete knowledge of Doris’ condition. The only evidence that plaintiff cites in support of this argument is Dr. Myers’ progress note which he entitled “Covering Attending Delivery Note.” We find this argument unpersuasive in light of Dr. Myers’ testimony. Dr. Myers repeatedly denied that he was covering for Doris’ personal obstetricians. In his testimony concerning the title of his progress note, he fully explained that he used the word “covering” simply because he was the one that delivered the baby.

The plaintiff also argues that Dr. Myers had notice of the illness or injury at 5:12 p.m. based on the possibility that there was medical information showing abnormal fetal heart tone decelerations and an abnormal fetal lie. The record does show that Dr. Myers was informed by a nurse that the electronic monitor applied to Doris indicated decelerations. The record does not show if the nurse actually showed Dr. Myers the tracing strip or just verbally passed along her observations. Also, the tracing strip itself was unavailable as evidence in these proceedings. Therefore, whether the information given Dr. Myers indicated benign or abnormal fetal heart tones must be gleaned from the rest of the record.

The only statement in the medical records actually characterizing the decelerations was Dr. Myers’ notation that they were “type one dips.” The medical testimony has established that “type one dips” would have provided Dr. Myers with an assumption that the baby was not in trouble. On the other hand, the plaintiff’s medical expert, Dr. Parer, testified that he thought that “type one dips” were inconsistent -with the rest of the course of the baby. We find his testimony unpersuasive for a number of reasons. Dr. Parer admitted that “type one dips” could be consistent with what he read in the records. Dr. Parer also admitted that he did not know what Dr. Myers was informed of, and that Dr. Myers may have been told, in fact, that they were “type one dips.” Dr. Parer also testified that, even if the decelerations were “late,” Dr. Myers would not have been able to determine from an isolated reading that the fetus was in distress.

Plaintiff also argues that there is a question whether the fetus was in a breech position and this should have put Dr. Myers on notice that Doris was a high risk patient. In support of this argument, plaintiff first cites to the notation by the junior house officer indicating there was a question of a breech presentation. Next, plaintiff cites to the memorandum which required that a fetus in a breech, transverse or unknown lie be classified as a high risk patient. However, we find that Dr. Myers’ testimony is conclusive on the question of fetal position. Dr. Myers considered the junior house officer’s notation the result of his inexperience, and Dr. Parer conceded this as well. Dr. Myers relied on the results of four examinations by the prenatal attending doctors which indicated a normal cephalic presentation. The baby was, in fact, delivered in a normal cephalic presentation.

A number of other facts in the record corroborate the conclusion that Dr. Myers had no notice that the baby was in trouble. At 5:30 p.m. Dr. Myers performed a routine sterile vaginal exam. Dr. Myers then retired to the doctors’ lounge. In his deposition, Dr.- Myers testified that “there was really no indication that there was any significant abnormality up until the time heart tones were reported to have been lost.”

In Dr. Parer’s deposition, he testified that as of the time Doris was taken to the delivery room there was no indication of fetal distress. Although Dr. Parer testified that it was his opinion that the cerebral palsy was due to asphyxia during labor, he based that opinion on information that could not have put Dr. Myers on notice prior to delivery. Dr. Parer also testified that a velamentous insertion of the cord was not detectable prior to birth in 1977.

Therefore, we hold that there was no question of fact precluding the trial judge’s decision that Dr. Myers did not have notice of the illness or injury.

The second part of the test is whether Dr. Myers provided emergency care. In Johnson, a “Code Blue” was sounded which clearly established the existence of an emergency. Although there was no “Code Blue” sounded here, there seems to be no question that an emergency existed when the nurse failed to hear fetal heart tones. When the nurse reported the loss of fetal heart tones, the resident doctor deemed it necessary to obtain immediate assistance from another doctor. Dr. Myers’ progress note states that after confirming the loss of fetal heart tones, he took “immediate steps” to prepare for delivery. He then performed a mid-forceps delivery, which was one of the fastest techniques used for delivering babies. We also note that Dr. Parer’s testimony concerning the delay before delivery constitutes evidence of negligence which is not relevant here given the immunity that the Good Samaritan statute provides.

Dr. Myers also testified that the title to his progress note was entirely consistent with the existence of an emergency He added that the loss of the fetal heart tones was a “significant abnormality.” Dr. Parer testified that the loss of fetal heart tones was a sign that the fetus was in jeopardy. Finally, we observe that at one point in Dr. Myers’ deposition, plaintiff’s counsel admitted that there was an “emergency situation.”

Therefore, we hold that there was no question of fact precluding the trial judge’s decision that Dr. Myers provided emergency care.

The third part of the test is whether Dr. Myers received a fee for his services. In Johnson, the defendant doctor did not charge a fee for his services, but the hospital did charge a fee for the supplies and drugs used during the emergency. The court held that these facts satisfied the no fee requirement under the statute. Here, Dr. Myers testified that he did not receive a fee for delivering Kelly and that he had no knowledge that his employer, Health Care Specialists, received any fee. Plaintiff has presented no evidence to the contrary.

Therefore, we hold that there was no question of fact precluding the trial judge’s decision that Dr. Myers received no fee for his services.

In summary, we hold that there are no genuine issues of material fact precluding application of the Good Samaritan statute. Therefore, we affirm the trial judge’s entry of summary judgment in favor of Dr. Myers.

Affirmed.

MURRAY and McNULTY, JJ., concur.


author: JUSTICE MURRAY

text:
    AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Guardian of the Estate of John Libman, a Minor, et al., Plaintiffs-Appellants, v. ANCHOR ORGANIZATION FOR HEALTH MAINTENANCE, Defendant-Appellee (A. William Schafer, Defendant).
    First District (5th Division)
    No. 1 — 90—0780
    Opinion filed March 1, 1991.
    — Rehearing denied April 1, 1991.

      John C. Erb and Lynn Plum Duffey, both of Law Offices of Paul B. Episcope, Ltd., of Chicago, and Edward J. Kionka, of Carbondale, for appellants.
    Max Douglas Brown, and Jerome N. Groark, Joan D. Lindauer, and Edward P. Dismukes, all of Rooks, Pitts & Poust, both of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

The above-named plaintiffs appeal from the dismissal of defendant Anchor Organization for Health Maintenance (Anchor) from their medical malpractice suit filed June 28, 1987. The matter still pends in the lower court against defendant Dr. A. William Schafer, who is not a party to this appeal. The dismissal order, which is the subject of this appeal, was made final and appealable by the trial court’s inclusion of the necessary language as set forth in Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

The facts are as follows.

On June 28, 1987, plaintiffs, American National Bank and Trust Company of Chicago (American National), as guardian of the estate of John Libman, and Samuel Libman, John’s father, filed a two-count complaint against Anchor and Dr. Schafer. In count I, the complaint alleged that at about 11:53 a.m. on January 23, 1986, Roberta CohenLibman was admitted to the labor and delivery unit of Hinsdale Hospital and at about 8:51 p.m. that same day, she gave birth to a son, John. The attending physician, Dr. Schafer, licensed to practice obstetrics and gynecology by the State of Illinois and an agent and employee of Anchor, allegedly used forceps to aid the birth and delivery of John.

The complaint further alleged that John suffered permanent brain damage as a result of the negligent acts and omissions of both Anchor and Dr. Schafer, in that they failed to utilize the skill and knowledge of a reasonably qualified obstetrician/gynecologist by failing to recognize the signs and symptoms of fetal distress, by failing to order and perform a Caesarean section, and by allowing labor to continue for an excessive period of time. In count I American National requested recovery on behalf of John for the injuries he suffered. In count II Samuel Libman reiterated the allegations made in count I and then requested recovery for medical expenses and for the loss of society and companionship with his son.

On January 15, 1988, an amended three-count complaint was filed. Counts I and II were identical to those in the the original complaint. Count III, containing the same allegations as counts I and II, was added by Mrs. Libman, who was now included as a party-plaintiff. She also requested recovery for medical expenses and for her loss of society and companionship with her son.

Subsequently, Anchor filed a motion to dismiss, pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), claiming that it was immune from actions of this type, pursuant to section 26 of the Voluntary Health Services Plans Act (VHSPA or the Act) (Ill. Rev. Stat. 1987, ch. 32, par. 620).

Plaintiffs responded to the motion by arguing (1) that a 1988 amendment to section 26 of the VHSPA, which rescinded the immunity previously granted to health organizations such as Anchor, should be applied retroactively to deny Anchor immunity in this case; (2) that even if the amendment to the immunity provision could not be applied retroactively, Anchor was not entitled to whatever immunity it might have enjoyed under the VHSPA because it failed to comply with section 7 of the Act (Ill. Rev. Stat. 1989, ch. 32, par. 601), by imposing restrictions, both directly and indirectly, upon its physicians; and (3) that the immunity provision of the Act, at least as applied to Anchor, was unconstitutional, constituting special legislation and violating equal protection and due process concerns.

On February 14, 1990, the trial court rejected plaintiffs’ arguments and granted Anchor’s motion, dismissing it from the cause of action. After the trial court denied plaintiffs’ motion to reconsider, plaintiffs filed the instant appeal.

The appeal involves the application and effect of the Voluntary-Health Services Plans Act (Ill. Rev. Stat. 1987, ch. 32, par. 595 et seq.), with respect to Anchor, in the context of a medical malpractice claim raised by plaintiffs. Plaintiffs contend, as they did in the lower court, that Anchor should not have been granted the statutory immunity provided under VHSPA because: (1) Anchor should be denied entitlement to the statutory immunity because it violated certain provisions of the Act; (2) the 1988 amendment to VHSPA, which eliminated the immunity provision for health corporations such as Anchor, should be applied retroactively; and (3) the immunity clause in VHSPA is unconstitutional, as applied to Anchor, because it violates the equal protection and due process clauses of both the Illinois and Feder.l constitutions and constitutes special legislation under the Illinois Constitution.

Anchor argues that the issue of its alleged violations of the Act is not properly before this court because they were not pleaded below. Anchor also contends that all of the remaining issues raised by plaintiffs on appeal have been conclusively determined by Moshe v. Anchor Organization for Health Maintenance (1990), 199 Ill. App. 3d 585, 557 N.E.2d 541, appeal denied (1990), 133 Ill. 2d 559, 561 N.E.2d 698, and Brown v. Michael Reese Health Plan, Inc. (1986), 150 Ill. App. 3d 959, 502 N.E.2d 433, appeal denied (1987), 114 Ill. 2d 543, 508 N.E.2d 725.

While this court finds that some of the issues raised by plaintiffs in this appeal have been dispositively determined by the above-mentioned cases, we find it necessary to address other points plaintiffs have raised.

Section 26 of the VHSPA (Ill. Rev. Stat. 1987, ch. 32, par. 620), prior to the 1988 amendment, stated:

“A health services plan corporation shall not be liable for injuries resulting from negligence, misfeasance, malfeasance, nonfeasance or malpractice on the part of any officer or employee of the corporation, or on the part of any person, organization, agency, or corporation, rendering health services to the health services plan corporation’s subscribers and beneficiaries.”

In August 1988, the Illinois legislature amended portions of the VHSPA (Pub. Act 85 — 1246, eff. August 30, 1988), including section 26. The amended version of section 26 (Ill. Rev. Stat., 1988 Supp., ch. 32, par. 620) now reads:

“A health services plan corporation incorporated prior to January 1, 1965, operated on a not for profit basis, and nei ther owned or controlled by a hospital shall not be liable for injuries resulting from negligence, misfeasance, malfeasance, nonfeasance or malpractice on the part of any officer or employee of the corporation, or on the part of any person, organization, agency or corporation rendering health services to the health services plan corporation’s subscribers and beneficiaries.” (Emphasis added.)

It is undisputed that this amendment eliminated the statutory immunity for Anchor and all other corporations, except one, already chartered under the Act. (Moshe v. Anchor Organization for Health Maintenance, 199 Ill. App. 3d at 597-98; the only organization still immune under the Act is the Union Health Service.) Contrary to plaintiffs’ assertion, however, the Moshe case, a factually similar medical malpractice action involving the same defendant as in this case (Anchor), which was decided by this division of the Illinois Appellate Court, First District, wholly disposed of the question of whether this amendment should be applied retroactively to causes of action that accrued prior to the date the amendment became law and we feel bound by the principle of stare decisis (see generally Williams v. Crickman (1980), 81 Ill. 2d 105, 405 N.E.2d 799) to follow our decision in that case.

In Moshe, a complaint was filed on September 29, 1983, against Anchor and doctors under contract with Anchor, by William Moshe, on behalf of his minor son, for injuries his son sustained as a result of alleged misdiagnosis and negligent treatment; and by Moshe and his wife, on their own behalf, for medical expenses and loss of society with their child. Plaintiffs attempted to hold Anchor liable, indirectly, for the alleged negligent acts and omissions of the doctors and, directly, based on certain policies, procedures, and regulations which allegedly inhibited the physicians’ ability to provide quality health care to their patients. Anchor moved for dismissal from the suit based upon the immunity provision in section 26 of the VHSPA. Despite arguments against dismissal, including arguments that Anchor violated the “unique organizational structure” required by the statute, thereby relinquishing its right to insulation from liability (Moshe, 199 Ill. App. 3d at 593), the trial court dismissed Anchor from the action.

On appeal this court affirmed the dismissal. The Moshe decision held (1) that Brown left no doubt as to the constitutional legitimacy of the statutory immunity conferred upon corporations chartered under the VHSPA by section 26, prior to amendment; (2) that Anchor’s “dual capacity,” as both a VHSPA corporation and HMO, did not diminish its entitlement to the complete statutory immunity afforded it by section 26 of the Act; and (3) that the 1988 amendment to section 26 was a “substantive” change rather than a “procedural” one, so that prospective rather than retrospective application must be presumed. Further, the court held that since the express language of the amendment did not overcome this presumption and a retrospective intent did not appear to be necessarily or unavoidably implied, retroactive application of the amendment was not allowed.

Despite the comprehensive consideration given to the issue of retroactive application of the 1988 amendment to section 26 by this court in Moshe, plaintiffs, citing In re Support of Josic (1979), 78 Ill. App. 3d 347, 397 N.E.2d 204, and Cruz v. Puerto Rican Society (1987), 154 Ill. App. 3d 72, 506 N.E.2d 667, as support, attempt to convince us that Anchor’s right to immunity may be abrogated by the retroactive application of the amendment because the immunity was a “statutory creation” and not a vested right under common law.

We find plaintiffs’ reliance on Josic and Cruz misplaced. Those cases stand for the proposition that a right of action, which was created purely by statutory enactment, could be abrogated by retrospective application of repealing legislation. (Cruz, 154 Ill. App. 3d at 76; Josic, 78 Ill. App. 3d at 350.) In Cruz, section 6 — 21 of the Dramshop Act (Ill. Rev. Stat. 1983, ch. 43, par. 135) had been interpreted by the courts as providing a remedy to the family of the inebriate. Subsequently, that section of the Dramshop Act was amended, effective September 12, 1985, directing that “nothing in this Act shall be construed to confer a cause of action” to the family of the intoxicated person. Thus, at the time the plaintiff filed its complaint on October 18, 1985, it did not allege an existing cause of action. The fact that such a cause of action may have existed at the time the incident occurred was of no consequence.

In Josic, the plaintiff attempted to modify portions of his divorce judgment. His petition for modification was denied because it had been filed on January 21, 1978, after the date that the Illinois Marriage and Dissolution of Marriage Act was made into law, and section 502(f) of the new Act precluded the type of modification being sought.

Clearly, these cases are distinguishable from the present case, where plaintiffs filed their initial complaint against Anchor on June 28, 1987, at a time when Anchor was entitled to the immunity granted to it under section 26 of the VHSPA, yet plaintiffs seek to take advantage of a change in the law which did not occur until August 1988. We respectfully decline to allow plaintiffs to do so, since we feel that such action would violate basic principles of statutory construction, namely, that amendatory acts are generally construed as prospective (Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 522 N.E.2d 1195), and would totally ignore the substantive/procedural analysis for determining whether an amendatory act should be applied retroactively, as set forth in Rivard and followed in Moshe.

Furthermore, plaintiffs’ arguments fail to persuade this court that the legislature intended the immediate and early application of the 1988 amendatory act, and we find no reason to reverse our thinking, clearly expressed in Moshe, that the presumption of prospectivity accorded the 1988 amendment was not “overcome, either by the express language of Public Act 85 — 1246, or because a retrospective intent appeared] by necessary or unavoidable implication.” Moshe, 199 Ill. App. 3d at 602.

We next consider the constitutionality of the immunity provision in section 26 of the Act. We realize, and plaintiffs acknowledge, that the constitutionality of this provision has already been addressed in the case of Brown v. Michael Reese Health Plan, Inc. (1986), 150 Ill. App. 3d 959, 502 N.E.2d 433. However, plaintiffs contend that in Brown the court found that the immunity provision was constitutional on its face, whereas here, they challenge the constitutionality of the provision as applied to Anchor, which operates under a dual capacity as a State-certified and federally qualified HMO as well as a voluntary health service plan. We agree with plaintiffs that the issue of constitutionality raised in this appeal was not reached in the Brown decision nor addressed in Moshe.

In Brown, another medical malpractice action, the plaintiff challenged the constitutionality of the statutory immunity granted to Michael Reese Health Plan, Inc., a health services plan corporation chartered under the VHSPA. The plaintiff claimed, just as the plaintiffs in the present action, that the grant of immunity was a violation of the equal protection clause of both the State and Federal constitutions and a violation of the special legislation clause of the Illinois Constitution. It was argued that the immunity from liability granted to that class of health providers, merely because they were chartered under the YHSPA, was arbitrary and unreasonable and that no rational basis existed to distinguish this class from any other class of health care providers.

The court rejected that argument, finding that the “legislature has clearly carved out a separate and distinct classification of health care providers,” the members of which are distinguishable from other health care providers because they serve the unique function of both insurer and health care provider, because they are regulated by the Department of Insurance, and because they are governed by specific legislative requirements. (Brown, 150 Ill. App. 3d at 961.) Consequently, the court found that there was a rational basis for immunizing the defendant health services plan corporation.

In Brown, however, there was no indication of whether the defendant, Michael Reese Health Plan, Inc., was, at the time of the alleged malpractice, acting in a dual capacity as both an HMO and a voluntary health services plan. Thus, there was no discussion of whether a health services plan corporation having such dual status should be denied the immunity it would ordinarily enjoy under its VH-SPA charter. This court in Moshe did, however, partially address this issue, finding that Anchor’s dual status did not “preclude the operation of the immunity provision, as originally enacted, to bar all malpractice claims against it as a matter of law.” (Moshe, 199 Ill. App. 3d at 594.) However, this court did not go on, in Moshe, to consider the constitutionality of applying the immunity provision to a dual status corporation such as Anchor, since this issue was not raised.

Whenever a court is faced with a challenge to the constitutionality of a statute on equal protection grounds, it must begin with the presumption that the classification created by the legislation is valid. (People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc. (1986), 114 Ill. 2d 252, 500 N.E.2d 34.) We must keep in mind that, as noted in Brown, the equal protection clause of the State and Federal constitutions does not deny a State the right to treat different classes of persons differently, but only requires equality between groups that are similarly situated. (Brown, 150 Ill. App. 3d at 960.) The party challenging the legislation has the burden of proving its unconstitutionality. (People v. Bales (1985), 108 Ill. 2d 182, 483 N.E.2d 517.) If the legislation does not create a suspect classification or infringe upon a fundamental right, but rather, involves economic or social welfare policy, it will be upheld against an equal protection challenge if rationally related to a legitimate State purpose. (Brown, 150 Ill. App. 3d 959, 502 N.E.2d 433.) All reasonable doubts are to be resolved in favor of upholding validity. (People ex rel. Skinner, 114 Ill. 2d at 259.) Furthermore, those standards used to determine an equal protection claim are also applicable when evaluating a claim that the statute constitutes special legislation under our Illinois Constitution. Jenkins v. Wu (1984), 102 Ill. 2d 468, 468 N.E.2d 1162.

We have no doubt that the immunity provision in the Voluntary Health Services Plans Act, as originally enacted, was rationally related to a legitimate State purpose. The Act was originally devised so that an employer or union could provide an improved health services program, in lieu of a traditional health insurance system. Thus, the voluntary health services plan corporations acted as insurers and it was logical to provide them with immunity.

Just as the court in Brown found, corporations chartered under the VHSPA were required to meet certain requirements, report to the Director of Insurance and fulfill various Insurance Code provisions. These special requirements did constitute an organizational structure that was unique at that time. Corporations organized under the Illinois HMO Act were not required to fulfill some of these same requirements.

However, in time, corporations such as Anchor began to deviate from their original function and purpose, while at the same time, the HMO Act was amended substantially (see Pub. Act 82 — 213, eff. Jan. 1, 1982; Pub. Act 84 — 976, eff. Jan. 1, 1986 (which, among other things, made HMOs subject to provisions of the Insurance Code); Pub. Act 85 — 20, eff. July 20, 1987), placing some of the same restrictions that were once unique to VHSPA corporations, upon HMOs. The “persona” of the voluntary health services plans began to dissipate, and the distinction between a health services plan and an HMO became less apparent.

Anchor is a prime example. It came into being in 1971 as a health services agreement between Presbyterian-St. Luke’s (now Rush-Presbyterian) Medical Center and the union representing the center’s employees. However, by 1977, it had become certified as an HMO under State and Federal law. (Ill. Rev. Stat. 1977, ch. 111/2, par. 1401 et seq.; 42 U.S.C. §300e et seq. (1988).) By 1985, it had successfully marketed its program to other employer groups, so that Rush-Presbyterian employees represented only a small fraction of its subscribers. See Moshe, 199 Ill. App. 3d at 590.

It appears to this court that, sometime after 1986, Anchor’s duties, obligations and requirements under the VHSPA merged with its duties, obligations and requirements as a State-certified and federally qualified HMO. We find that, under these circumstances, it would be fundamentally unfair and an unconstitutional unequal treatment to allow Anchor to rely upon its VHSPA charter to be insulated from liability. Consequently, we find that, at the time that this cause of action accrued in 1986, Anchor was acting in the same capacity as any other HMO and that despite its charter under the VHSPA, it was not eligible to take advantage of the immunity that the status allowed.

Because we find that the immunity provision in section 26 of the VHSPA was not available to Anchor because its application to Anchor would be unconstitutional, we find it unnecessary to address the plaintiffs’ remaining issue, that Anchor was not entitled to the immunity provided by section 26 because of alleged violations of the VHSPA.

For the reasons stated above, we reverse the trial court’s dismissal of Anchor from the cause of action and remand for further proceedings consistent with this opinion.

Reversed and remanded.

LORENZ, P.J., and GORDON, J., concur.