author: JUSTICE COCCIA

text:
    AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME), AFL-CIO, Plaintiff-Appellant, v. THE STATE OF ILLINOIS, Department of Corrections, et al., Defendants-Appellees.—AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, Council 31, AFL-CIO, Petitioner-Appellant, v. THE ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents-Appellees.
    First District (5th Division)
    Nos. 1—86—2988, 1—87—1392 cons.
    Opinion filed December 8, 1989.

      Cornfield & Feldman, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, for appellees.
   JUSTICE COCCIA

delivered the opinion of the court:

These consolidated appeals arise under the Illinois Public Labor Relations Act (IPLRA) (Ill. Rev. Stat. 1985, ch. 48, par. 1601 et seq.). In No. 86 — 2988, the American Federation of State, County and Municipal Employees (union) appeals from an order entered by the circuit court, vacating an arbitration award entered in favor of one of its members. In No. 87 — 1392, the same union appeals from the dismissal of an unfair labor practice claim it filed with the Illinois State Labor Relations Board, charging certain employers with failing and refusing to comply with several arbitration awards, including the award at issue in No. 86 — 2988. We have concluded that appeal No. 86 — 2988 must be dismissed, as it was not taken from a final order; we affirm appeal No. 87 — 1392 on the merits. Each case shall be discussed separately.

NO. 86-2988

On March 17, 1986, the union filed an application to confirm an arbitration award in the circuit court. The union named the State of Illinois, Department of Corrections, and its Director, Michael P. Lane, as defendants, along with the Department of Central Management Services, and its Director, Michael F. Tristano. The Union alleged that defendants employed Ralph Hrobowski, one of its members, in the position of parole officer. Defendants suspended Hrobowski without pay on June 9, 1985. The union filed a grievance, protesting that defendants terminated him without just cause.

The union also averred that this dispute was ultimately submitted to arbitration, as contemplated by the collective bargaining agreement in effect between it and defendants. On February 12, 1986, the arbitrator ruled that defendants had discharged Hrobowski without just cause. The arbitrator ordered defendants to reinstate Hrobowski and to make him whole by paying all wages he would have earned had defendants not discharged him.

The union further asserted that defendants refused to comply with the terms of the arbitration award. Pursuant to the IPLRA and the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 10, par. 101 et seq.), the union requested that the circuit court direct defendants to comply with the award.

In response, defendants moved to vacate the arbitration award. They stated that Hrobowski was discharged for heroin possession, contrary to the criminal law of this State as well as the rules of the Department of Corrections. The arbitrator had granted the union’s motion to suppress all evidence regarding Hrobowski’s heroin possession, on the basis of the exclusionary rule. That evidence had also been excluded in an earlier criminal action against Hrobowski, the trial court ruling that it had been seized in violation of the fourth and fourteenth amendments to the Constitution of the United States. After the evidence of Hrobowski’s heroin possession was suppressed in the criminal case, the State’s Attorney declined to prosecute him.

In their motion to vacate, defendants argued that the arbitrator’s decision to apply the exclusionary rule outside the realm of criminal law violated public policy. The circuit court denied defendants’ motion, but they moved to reconsider that ruling. Subsequently, the circuit court granted their motion to reconsider and vacated the arbitration award. The circuit court decided that the exclusionary rule was incorrectly applied in the arbitration proceeding and that the award violated public policy. The circuit court remanded the matter for a hearing consistent with its decision. Moreover, the circuit court made a finding, under Illinois Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal of its order. The union has now appealed to this court.

On February 17, 1987, defendants moved to dismiss the union’s appeal, contending that the circuit court’s order was not final and, thus, not appealable. The union retorted that the circuit court’s order was final, because of the limited grounds available for review of arbitration awards. In any event, contended the union, defendants’ objections to this court’s jurisdiction should have been raised by brief rather than by motion. We denied defendants’ motion on February 22, 1987. Defendants then raised the finality issue in their briefs. Subsequently, our supreme court decided American Federation of State, County & Municipal Employees v. State of Illinois (1988), 124 Ill. 2d 246, 529 N.E.2d 534 (AFSCME). In light of AFSCME, we have now concluded that the order appealed from is nonfinal. Since the union has appealed from an order which is not final, its appeal must be dismissed.

The fact that the circuit court made a finding pursuant to Supreme Court Rule 304(a) does not end our analysis of the finality question. Such language alone cannot make a nonfinal order final and, consequently, appealable. (Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006, 1007, 443 N.E.2d 268, 269.) Indeed, the Committee Comments to Rule 304(a) state:

“[I]t is not the court’s finding that makes the judgment final, but it is the court’s finding that makes this kind of a final judgment appealable.” 107 Ill. 2d R. 304(a), Committee Comments, at 399.

The finality of an order is not necessarily determined by its form; therefore, the ordering of a remandment does not invariably render a judgment nonfinal. (Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 249, 449 N.E.2d 843, 844.) Wilkey was an administrative review action, in which the circuit court reversed and remanded orders of the Illinois Racing Board for de novo hearings. On appeal, the supreme court stated that it adhered to the same definition of finality in the context of administrative review as in other appeals. (Wilkey, 96 Ill. 2d at 250, 449 N.E.2d at 845.) The ultimate test of finality is whether the judgment appealed from fully and finally disposes of the rights of the parties to the cause so that no material controverted issue remains to be determined. (Wilkey, 96 Ill. 2d at 249, 449 N.E.2d at 844.) Because the supreme court concluded that the circuit court’s order was nonfinal, it held that the appellate court properly dismissed the Board’s appeal. Wilkey, 96 Ill. 2d at 251, 449 N.E.2d at 845.

Given Wilkey, we must conclude that the circuit court’s order, remanding the cause to the arbitrator, is nonfinal. We see no reason to apply a different definition of finality than that expressed by our supreme court. A contrary conclusion would be unjustified in view of the Uniform Arbitration Act, which provides that appeals from arbitration awards “may be taken in the same manner, upon the same terms, and with like effect as in civil cases.” (Ill. Rev. Stat. 1985, ch. 10, par. 118.) Here, in the language of Wilkey, the circuit court’s judgment does not fully and finally dispose of the parties’ rights so that no material controverted issue remains to be determined. Rather, on remand, the material controverted issue remains to be determined — whether defendants had just cause for terminating Hrobowski. Of course, on remand the arbitrator must consider evidence he previously excluded. We cannot and do not presume that either Hrobowski or defendants will prevail before the arbitrator; thus, the parties’ rights have not been fully and finally determined. See Doyle v. City of Crystal Lake (1989), 183 Ill. App. 3d 405, 411, 539 N.E.2d 796, 800.

The union attempts to distinguish Wilkey on the grounds that the standard of review of labor arbitration awards under the Uniform Arbitration Act is narrower than the standard of review for administrative agency decisions. Yet in arguing that the circuit court’s order is final, the union characterizes review of arbitration awards more narrowly than the cases warrant. In AFSCME, the supreme court recently explained the standard of review for arbitration awards governed by the IPLRA. Review of such awards is indeed limited. (AFSCME, 124 Ill. 2d at 254, 529 N.E.2d at 537.) A labor arbitration award must be enforced if the arbitrator acts within the scope of his authority and if the award draws its essence from the parties’ collective bargaining agreement. (AFSCME, 124 Ill. 2d at 254, 529 N.E.2d at 537.) However, an arbitration award in contravention of paramount considerations of public policy is not enforceable. (AFSCME, 124 Ill. 2d at 260, 529 N.E.2d at 540.) Furthermore, courts refuse to enforce arbitration awards that require violations of law. AFSCME, 124 Ill. 2d at 263, 529 N.E.2d at 541.

The arbitrator could rule in Hrobowski’s favor on remand. Therefore, were we to reach the merits of the circuit court’s order now, we might be deciding matters that need not be decided. (See Fleetwood Development Corp. v. Northbrook Property & Casualty Insurance Co. (1988), 172 Ill. App. 3d 83, 86, 526 N.E.2d 381, 384.) This would constitute a waste of judicial resources. On the other hand, if the arbitrator rules in defendants’ favor, the union could then seek review in the circuit court on public policy grounds, or the other grounds expressed in AFSCME. If necessary, we could then review the circuit court’s judgment. We need not decide today whether, under the IPLRA, circuit court orders remanding arbitration awards are nonfinal for all intents and purposes. But in light of AFSCME and the facts of our case, we are persuaded that the union’s appeal in No. 86 — 2988 must be dismissed for the reason that it was not taken from a final order.

NO. 87-1392

Essentially the same parties involved in No. 86 — 2988 have joined issue in No. 87 — 1392. Furthermore, the procedural history of No. 86 — 2988 provided the union with grounds to bring an unfair labor practice charge before the Illinois State Labor Relations Board (Board) in No. 87 — 1392. The charge was brought against the State of Illinois, and the Departments of Central Management Services, Corrections, Revenue, and Mental Health (employers). The union charged employers with failing and refusing to comply with certain arbitration awards, one of which was the award entered in Hrobowski’s favor, discussed above.

Specifically, the union claimed that employers violated sections 10(a)(1) and 10(a)(4) of the IPLRA. (Ill. Rev. Stat. 1985, ch. 48, pars. 1610(a)(1), (a)(4).) The union alleged that employers violated section 10(a)(1) by interfering with the right of employees to final and binding arbitration, and that employers violated section 10(a)(4) in that they bargained in bad faith by not abiding by arbitration awards. In effect, the union asserted that only the Board, and not the circuit court, had authority to vacate arbitration awards on public policy grounds.

In response to the union’s charges, employers invoked section 8 of the IPLRA:

“Grievance Procedure. The collective bargaining agreement negotiated between the employer and the exclusive representative shall contain a grievance resolution procedure which shall apply to all employees in the bargaining unit and shall provide for final and binding arbitration of disputes concerning the administration or interpretation of the agreement unless mutually agreed otherwise. *** The grievance and arbitration provisions of any collective bargaining agreement shall be subject to the Illinois ‘Uniform Arbitration Act’.” (Ill. Rev. Stat. 1985, ch. 48, par. 1608.)

Section 12 of the Uniform Arbitration Act states the grounds upon which the circuit court shall vacate arbitration awards, such as corruption or partiality of the arbitrators. (See Ill. Rev. Stat. 1985, ch. 10, par. 112(a).) Given the IPLRA’s section 8 and the Uniform Arbitration Act’s section 12, employers concluded that they had a statutory right to seek vacation of arbitration awards in the circuit court. In addition, employers argued, no language in the IPLRA gave the Board authority to review arbitration awards.

After the union’s charges had been investigated, the Board’s Executive Director dismissed them. The Director noted that the IPLRA’s section 8 incorporated the Uniform Arbitration Act. Under the latter statute, he stated, either the union or employers could seek vacation of an arbitration award in the circuit court. Therefore, the Director decided that the evidence substantiated reliance by employers on their statutory right to review, instead of conduct amounting to an unfair labor practice. He consequently found no violation of the IPLRA merely because employers were resorting to their statutory right to seek vacation of arbitration awards in the courts.

The union appealed the Executive Director’s dismissal of its charge to the Board. After briefing and oral arguments, the Board upheld the dismissal. The Board first placed the union’s charges in statistical context. In the case before it, observed the Board, employers contested approximately five arbitration awards that had been rendered pursuant to arbitration proceedings contained in their collective bargaining agreements with the union. There are thousands of State employees, and 600 to 700 grievances are filed monthly across the State. These grievances result in 150 to 180 arbitration hearings per year. In each of the underlying cases before the Board, including Hrobowski’s grievance, the arbitrator had reinstated employees who had been discharged pursuant to just cause provisions in the collective bargaining agreements. Employers then challenged the arbitration awards in court under the Uniform Arbitration Act.

The Board characterized the issue before it narrowly: whether employers were guilty of unfair labor practices for noncompliance with arbitration awards when those awards were being challenged in the courts pursuant to the Uniform Arbitration Act. The Board stated that Illinois courts had yet to settle which grounds were available for review of arbitration awards issued under collective bargaining agreements. The Board found, however, that employers’ good-faith pursuit of their statutory right to judicial review was a defense to the union’s unfair labor practice charges. The Board reasoned that it would not effectuate the IPLRA’s purposes to find employers guilty of unfair labor practices when they were only exercising their statutory right to review.

The union has sought administrative review of the Board’s decision under the IPLRA. (See Ill. Rev. Stat. 1985, ch. 48, par. 1611(e).) After the parties’ initial briefs were filed, the Illinois Supreme Court rendered decisions that are relevant to the disposition of this appeal. We have reviewed those decisions, as well as the supplemental briefs submitted by the parties, and conclude that the Board must be affirmed.

AFSCME, discussed above, is the most important of these recent decisions for our purposes. In point of fact AFSCME, like Hrobowski’s claim in No. 86 — 2988, is one of the cases which undergirds the union’s unfair labor practice charges in No. 87 — 1392. In AFSCME, the same union involved in this consolidated appeal brought an application in the circuit court to enforce an arbitration award. As in No. 86 — 2988, defendants — including certain employers involved here — moved to vacate the award on public policy grounds. The arbitrator had reduced discipline imposed on two employees for mistreating a service recipient of the Department of Mental Health. The circuit court vacated the arbitrator’s award, ruling that it represented a departure from Illinois’ public policy, which is to protect rather than endanger mental patients. This court reversed the circuit court, holding that the award did not violate public policy. American Federation of State, County & Municipal Employees v. State of Illinois (1987), 158 Ill. App. 3d 584, 511 N.E.2d 749.

Upon defendants’ appeal, the supreme court affirmed this court. As we observed in our discussion of No. 86 — 2988, the supreme court analyzed appellate review of labor arbitration awards in detail. It bears repeating here that appellate review of such awards is narrow, but that an award in contravention of paramount public policy concerns is not enforceable.

In view of AFSCME, we are compelled to hold that the Board did not err by upholding the dismissal of the union’s unfair labor practice charges. The supreme court disagreed with the circuit court’s application of public policy, but it never suggested that the circuit court lacked jurisdiction to vacate arbitration awards on public policy grounds. What is more, the supreme court stated that such awards cannot stand if they are contrary to paramount notions of public policy. Thus, AFSCME leaves no room for the Union to argue that employers’ conduct — in seeking to vacate arbitration awards in the circuit court on public policy grounds — constituted an unfair labor practice. Indeed, by ruling in the union’s favor, we would be overstepping the bounds of our authority, for such a ruling would be inconsistent with AFSCME’s implicit teaching: that Illinois courts have the power, albeit limited power, to vacate public labor arbitration awards on the basis of public policy.

The union has cited cases under the IPLRA’s companion statute, the Illinois Educational Labor Relations Act (IELRA) (Ill. Rev. Stat. 1985, ch. 48, par. 1701 et seq.), in its attempt to persuade us that the Board erred. Principal among these cases is Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 217, 526 N.E.2d 149, 150, wherein the supreme court held that the IELRA divests the circuit courts of jurisdiction to vacate or enforce educational labor arbitration awards. In Compton, the supreme court stated that no provision of the IELRA gives the circuit courts power to vacate, modify, or enforce such arbitration awards. (Compton, 123 Ill. 2d at 221, 526 N.E.2d at 152.) In contrast, the IPLRA’s section 8 incorporates the Uniform Arbitration Act, which in section 12 undeniably contemplates vacation of arbitration awards — such as those at issue in our case — by circuit courts.

In setting forth the reasons for its interpretation of the IELRA, the supreme court distinguished that statute from the IPLRA:

“Several aspects of the Act [IELRA] support the conclusion that the legislature intended to divest the circuit courts of primary jurisdiction over educational labor arbitration awards. First, the Act was adopted in the same legislative session as the Illinois Public Labor Relations Act [citation]. The two acts together were an attempt to provide ‘a comprehensive regulatory scheme for public sector bargaining in Illinois.’ [Citation.] The Illinois Public Labor Relations Act [citation], unlike the Educational Labor Relations Act, explicitly provides for enforcement of arbitration awards in accordance with the Uniform Arbitration Act [citation]. Under the Uniform Arbitration Act, all proceedings to compel arbitration, to stay arbitration, to seek vacation of an award, or to enforce an award are through the circuit court. [Citation.] The absence of any reference to the Uniform Arbitration Act in the Illinois Educational Labor Relations Act strongly suggests that the legislature did not intend review of arbitration awards by the circuit court ***.” (Emphasis added.) (Compton, 123 Ill. 2d at 221-22, 526 N.E.2d at 152.)

If, as the supreme court reasoned in Compton, all proceedings to seek vacation of public labor arbitration awards are through the circuit court, then we must reject the union’s contention that only the Board has jurisdiction to vacate such awards.

The union also relies upon the recently decided case of City of Decatur v. American Federation of State, County & Municipal Employees (1988), 122 Ill. 2d 353, 522 N.E.2d 1219, in support of its claim that the unfair labor practice charges were wrongly dismissed. We find Decatur to be factually distinct, for the dispute therein centered upon section 7 of the IPLRA (Ill. Rev. Stat. 1985, ch. 48, par. 1607). Section 7, which is not at issue here, governs the duty to bargain collectively. Yet the supreme court recognized, although it did not apply, the rule that courts generally accord deference to the interpretation placed upon a statute by the administrative agency charged with its administration. Decatur, 122 Ill. 2d at 361, 522 N.E.2d at 1222.

The Board is charged with the administration of the IPLRA, and the Board’s interpretation of that statute is supported by its plain language. The IPLRA’s section 8 incorporates the Uniform Arbitration Act; the Uniform Arbitration Act’s section 12 gives the circuit courts authority to vacate arbitration awards. If we accepted the union’s reading of the IPLRA, section 8’s reference to the Uniform Arbitration Act would be rendered superfluous in important respects. That is, employers — and employees, too, by parity of reason — would in effect be deprived of their statutory right to a form of review. This court has previously stated that it does not interpret statutes so as to render portions of them meaningless. (See In re Petition to Form a New Park District Coterminous with the Village of Maywood, Illinois, to Supercede the Existing Central Area & West Maywood Park Districts (1989), 182 Ill. App. 3d 973, 981, 538 N.E.2d 849, 854.) In this case, we decline to read a remedy available to both employers and employees out of the IPLRA. Accordingly, the Board’s interpretation of the statute that it administers shall be upheld.

We are grateful to the parties for bringing to our attention cases and statutes, both Federal and those of other States, on the issues before us. However, given the recent decisions of our own supreme court, as well as the plain language of our statutes, we deem discussion of them unnecessary.

For the reasons stated, we dismiss No. 86 — 2988 and affirm No. 87-1392.

Appeal No. 86 — 2988, Dismissed.

Appeal No. 87 — 1392, Affirmed.

LORENZ and PINCHAM, JJ., concur.

      This case.was assigned to Justice Coccia on April 1,1989.


source: Caselaw Access Project

author: JUSTICE PINCHAM

license: Public Domain

text:
    IRWIN K. CARSON, Plaintiff-Appellant, v. NORTHWEST COMMUNITY HOSPITAL et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—86—3259
    Opinion filed December 8, 1989.

      Terry F. Moritz, Alan P. Solow, and Mindy B. Gordon, all of Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd., of Chicago, for appellant.
    Francis X. Grossi, Jr., Michael R. Callahan, Laurence H. Lenz, Jr., and Cynthia Photos Abbott, all of Fatten, Muchin & Zavis, of Chicago, for appellees.
    Mark Damian Deaton and Daniel J. Mulvanny, both of Illinois Hospital Association, of Naperville, for amicus curiae Illinois Hospital Association.
   JUSTICE PINCHAM

delivered the opinion of the court:

Plaintiff, Irwin K. Carson, appeals from the dismissal of his complaint against defendants Northwest Community Hospital, Rollo Nesset, James Cox, Ralph Lidge, Robert Alfini, David Bakken, Wilton Bunch, Kris Howard, Joseph Vavra, John Woods, Edwin Bruning, Don Torisky, Mark Beaubien, Thomas Kim, Miles Lynch, Blaine Yarrington, Robert H. Bukowski, Dennis Brown, Malcolm MacCoun, Burton Chotiner and Charles Kennedy, following the summary suspension of his hospital staff privileges.

In his four-count complaint plaintiff sought a mandatory injunction that he be reinstated to full staff privileges at the hospital and damages for breach of contract, tortious interference with contractual relations and violation of the Antitrust Act (Ill. Rev. Stat. 1985, ch. 38, par. 60—1 et seq.). The issue presented on appeal is whether the trial court improperly dismissed plaintiff’s complaint.

Plaintiff’s complaint alleged that he was a physician and board-certified specialist in orthopedics when he became a full staff member of the hospital in 1976. In August 1984, the secretary of the medical executive committee notified plaintiff that a request for corrective action had been filed against him with regard to a “ ‘series of surgical cases.’ ” The following month, the committee informally interviewed plaintiff. Afterwards, it issued recommendations that he be placed in a two-year probation; that his cases be reviewed; that he obtain consultation before performing further surgery; and that his surgical cases be monitored pending a hearing on the charges against him.

The complaint further alleged that on October 9, 1984, during a telephone conversation with the chief administrator of the hospital, plaintiff was advised that his surgical privileges had been summarily suspended and that the suspension was immediately effective. The disciplinary action was taken because plaintiff had failed to obtain consultants on surgical patients and the hospital had questions regarding a patient upon whom plaintiff had performed surgery. On October 10, 1984, plaintiff submitted a written request to the secretary of the medical staff for a hearing. The following day, plaintiff filed his initial complaint seeking injunctive and other relief. After the court dismissed that portion of the complaint seeking injunctive relief, plaintiff amended his complaint.

Plaintiff further alleged that he requested a hearing before the medical executive committee on his summary suspension. Two days after he met with the committee, the latter issued a decision sustaining plaintiff’s summary suspension on the basis that he had exhibited inadequate preoperative decision making and provided inadequate post-operative care and “ ‘problems relating to a recent patient who suffered a multiple fracture and degloving injury.’ ” The committee indicated that the suspension “ ‘was taken in the interest of protecting the life and well being of patients’ ” at the hospital.

According to plaintiff’s complaint, he requested a hearing to refute the decision. A panel composed of five physicians who were plaintiff’s peers convened nine times over six months to hear plaintiff’s case. Over plaintiff’s objection, counsel for the hospital provided legal assistance to the panel. Plaintiff was also represented by counsel. The committee entered a decision which found that the summary suspension had been properly entered but that it would be lifted conditioned upon plaintiff’s completion of a continuing education course on management of orthopedic infection and submission to supervision, review, consultation and assistance of his surgical procedures for one year, at which time another hearing panel would review his performance and make recommendations to the medical executive committee. Thereafter, the attorney for the hospital issued a summary of the evidence heard by the panel and its decision. When the board of directors of the hospital met in executive session, it rejected the recommendation of the panel and reinstated plaintiff’s summary suspension.

We shall now consider plaintiff’s contention that the trial court improperly dismissed the first count of his complaint on the ground that the claim was barred by other affirmative matters. Plaintiff had sought a mandatory injunction reinstating him to full staff privileges. We first observe that section 2 — 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(q)) provides for the dismissal of an action on the ground that the claim is barred by “other affirmative matter avoiding the legal effect of or defeating the claim.” The affirmative matter must be more than evidence to dispute a material issue of fact. It must completely dispose of the cause of action or rebut crucial conclusions of law or conclusions of material fact unsupported by allegations of specific facts contained or inferred from the complaint. (Downers Grove Associates v. Red Robin International, Inc. (1987), 151 Ill. App. 3d 310, 315, 502 N.E.2d 1053.) The scope of judicial review is limited in a case where a physician whose staff privileges at a private hospital have been revoked and he seeks reinstatement. The court may only determine whether the hospital has complied with its bylaws in taking the disciplinary action. (Jain v. Northwest Community Hospital (1978), 67 Ill. App. 3d 420, 424, 385 N.E.2d 108.) Further, the revocation of staff privileges made pursuant to hospital bylaws will only be reviewed and set aside if arbitrary, capricious or unreasonable. Lapidot v. Memorial Medical Center (1986), 144 Ill. App. 3d 141, 146, 494 N.E.2d 838.

Here, the trial court found that plaintiff was accorded procedural due process, in that he was given notice, an opportunity to be heard, and representation by counsel at his disciplinary hearing. The trial court also concluded that the hospital substantially complied with its bylaws in suspending plaintiff. As we have indicated, the scope of judicial review in the case herein is strictly limited to ascertaining whether the hospital complied with its bylaws in rendering its decision. Where the court finds noncompliance its sole available remedy is to order compliance and not reinstatement of plaintiff. Under the circumstances, we believe that the trial court’s order was proper.

Plaintiff also asserts that the trial court erroneously dismissed counts II and IV of his complaint which sought damages for tortious interference with contractual relations and violation of antitrust laws. More specifically, in count II of plaintiff’s complaint it is alleged that certain physicians who participated as a review committee of plaintiff’s cases, tortiously interfered with his contract with the hospital. In count IV, plaintiff alleged that by suspending him, defendants conspired to reduce the number of available orthopedic surgeons in violation of criminal antitrust laws. In dismissing both counts the trial court relied upon the medical studies act. (Ill. Rev. Stat. 1987, ch. 110, par. 8—2101 et seq.) The purpose of the statute is to improve health care by facilitating a constructive examination of the quality of care provided by medical professionals through the process of peer review. (Jenkins v. Wu (1984), 102 Ill. 2d 468, 480, 468 N.E.2d 1162.) The statute grants immunity to those, who through peer review, assist a hospital in determining whether to grant, revoke or limit staff privileges. (Ill. Rev. Stat. 1987, ch. 110, par. 8—2102.) In relevant part, section 8—2101 provides:

“All information, interviews, reports, statements, memoranda or other data of *** committees of licensed or accredited hospitals or their medical staffs *** used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care, shall be privileged, strictly confidential and shall be used only for medical research, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges, except that in any hospital proceeding to decide upon a physician’s staff privileges, or in any judicial review thereof, the claim of confidentiality shall not be invoked to deny such physician access to or use of data upon which such a decision was based.” Ill. Rev. Stat. 1987, ch. 110, par. 8—2101.

Additionally, section 8 — 2102 provides:

“Such information, records, reports, statements, notes, memoranda, or other data, shall not be admissible as evidence, nor discoverable in any action of any kind in any court ***.” Ill. Rev. Stat. 1987, ch. 110, par. 8—2102.

Also helpful in resolving the issue before us is section 10.2 of the Hospital Licensing Act, which, in relevant part, provides:

“[N]o hospital and no individual who is a member, agent, or employee of a hospital, hospital medical staff, hospital administrative staff, or hospital governing board shall be liable for civil damages as a result of the acts, omissions, decisions, or any other conduct of a medical utilization committee, medical review committee, patient care audit committee, medical care evaluation committee, quality review committee, credential committee, peer review committee, or any other committee whose purpose, directly or indirectly, is internal quality control or medical study to reduce morbidity or mortality, or for improving patient care within a hospital, or the improving or benefiting of patient care and treatment, whether within a hospital or not, or for the purpose of professional discipline.” Ill. Rev. Stat. 1987, ch. 1111/2, par. 151.2.

This statute confers immunity to hospitals, their staffs and agents from civil damages resulting from participation in peer review to improve the quality of health care.

We believe that based on sections 8 — 2101 and 8 — 2102 of the medical studies act and section 10.2 of the Hospital Licensing Act, the trial court properly dismissed plaintiff’s claims for civil damages based on tortious interference with contractual relations and antitrust violations. The foregoing statutory provisions grant absolute immunity to physicians, hospitals and their staffs from civil liability for services performed as alleged in plaintiff’s complaint. Barrows v. Northwestern Memorial Hospital (1988), 123 Ill. 2d 49, 58-60, 505 N.E.2d 1182; Knapp v. Palos Community Hospital (1988), 176 Ill. App. 3d 1012, 1022-25, 531 N.E.2d 989.

Plaintiff also asserts that the trial court improperly dismissed count II of his complaint, which sought damages for breach of contract. Plaintiff argues that the bylaws constituted a contract of employment and by suspending him, the hospital committed a breach of that contract. As we have heretofore indicated, the scope of judicial review in cases in which a private hospital has revoked or reduced a physician’s staff privileges is limited to the issue of whether in doing so it complied with its bylaws. (Rodriguez-Erdman v. Ravenswood Hospital Medical Center (1987), 163 Ill. App. 3d 464, 470, 516 N.E.2d 731.) Our review of the record leads us to conclude that the hospital substantially complied with its bylaws. Thus, we believe that the trial court properly dismissed plaintiff’s complaint.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

LORENZ and COCCIA, JJ., concur.


text:
    CHERYL BREZINSKY, Plaintiff-Appellant, v. JAMES R. CHERVINKO, Defendant-Appellee.
    First District (5th Division)
    No. 1—87—3160
    Opinion filed December 8, 1989.
    Schiller, DuCanto & Fleck, Ltd., of Chicago (David B. Yavitz and Sarañe C. Siewerth, of counsel), for appellant.

      Paul M. Brayman, of Law Office of Paul M. Brayman, of Chicago, for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiff Cheryl M. Brezinsky appeals from an order entered by the circuit court, dismissing her petition for attorney fees. She expended the fees in defending defendant James R. Chervinko’s appeal from a paternity judgment in her favor. The petition was brought under section 17 of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2517), as well as section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—611). We affirm for the following reasons.

Brezinsky commenced her paternity action, out of which this appeal arises, on November 18, 1985. She claimed that Chervinko was the father of her son. Chervinko denied that he had sexual intercourse with Brezinsky during the time her son was conceived. Chervinko admitted, however, that he signed a “Consent to Adoption of Unborn Child” form on June 25, 1985, as a favor to her. At a hearing held the same day, Chervinko admitted in court that he fathered Brezinsky’s son. On December 5, 1985, Brezinsky moved for summary judgment upon the paternity issue, relying on Chervinko’s admissions. The circuit court granted her motion on February 14, 1986, and Chervinko appealed. The circuit court’s ruling was affirmed in a Rule 23 order (107 Ill. 2d R. 23) issued on November 26, 1986. This court held that the circuit court did not err in entering summary judgment against Chervinko on the paternity issue, reasoning that he was bound by his admissions in the consent form and the June 25,1985, hearing.

The present action for attorney fees was commenced on December 24, 1986. As noted above, recovery was sought under section 17 of the Parentage Act, which provided:

“Costs. Except as otherwise provided in this Act, the court may order reasonable fees of counsel, experts, and other costs of the action and pre-trial proceedings to be paid by the parties in proportions and at times determined by the court.” Ill. Rev. Stat. 1985, ch. 40, par. 2517.

Recovery was likewise sought pursuant to section 2 — 611 of the Code of Civil Procedure, which stated:

“Untrue Statements. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.” (Ill. Rev. Stat. 1985, ch. 110, par. 2—611.)

Regarding section 2 — 611, Brezinsky averred, the circuit court found Chervinko’s defense to be untrue, and that finding was affirmed on appeal. Thus, his denial of paternity was without reasonable cause, contrary to section 2 — 611. Fees in excess of $6,000 were sought.

In response, Chervinko argued that the General Assembly did not intend that attorney fees be recoverable for defending appeals from paternity judgments, because such fees were not specifically mentioned in section 17 of the Parentage Act. Concerning section 2 — 611 of the Code of Civil Procedure, Chervinko contended that even if his denial of paternity was untrue, it did not follow that he knew it to be untrue. This was in keeping with his theory that he executed the consent form as a favor to Brezinsky, rather than as an admission of paternity.

A hearing was held on the petition for attorney fees on April 4, 1987, and the circuit court denied it. The circuit court ruled that it had no jurisdiction under section 17 to award attorney fees for defending Chervinko’s appeal of Brezinsky’s paternity judgment, and that there was no evidence as to any unreasonable pleading by him in violation of section 2 — 611. She then moved to reconsider, but the circuit court denied her motion on September 25, 1987. Subsequently, Brezinsky perfected this appeal. The parties waived oral argument, so we have decided this case on the briefs.

I

Illinois courts generally construe fee-shifting provisions, like section 17 of the Parentage Act, strictly. (See Saskill v. 4-B Acceptance (1985), 139 Ill. App. 3d 143, 145, 487 N.E.2d 97, 99.) Under the “American Rule,” the losing litigant is not obliged to pay the prevailing litigant’s fees; consequently, fee-shifting provisions are in derogation of the common law. (Saskill, 139 Ill. App. 3d at 144-45, 487 N.E.2d at 98.) In Saskill, the appellate court refused to reverse the circuit court’s denial of plaintiff’s appellate attorney fees. She sought fees under the Interest Act (Ill. Rev. Stat. 1983, ch. 17, par. 6413). The appellate court concluded that since the legislature had not provided specifically for appellate attorney fees in the Interest Act, as it had in other statutes, plaintiff was not entitled to them. Saskill, 139 Ill. App. 3d at 144-45, 487 N.E.2d at 98-99.

Indeed, the General Assembly has specifically provided for appellate attorney fees in other domestic relations legislation. As the cireuit court observed below, section 508(a)(3) of the Illinois Marriage and Dissolution of Marriage Act permits recovery of attorney fees for the defense of an appeal:

“Attorney's Fees, (a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred by the other spouse, which award shall be made in connection with the following:
(3) The defense of an appeal of any order or judgment under this Act, including the defense of appeals of post-judgment orders.” Ill. Rev. Stat. 1985, ch. 40, par. 508(a)(3) (amended by Pub. Act 85-357, §1, eff. Jan. 1, 1988).

In light of the foregoing, we are compelled to hold that the circuit court did not err in ruling that Brezinsky was not entitled to attorney fees, for defending Chervinko’s appeal of her paternity judgment, under section 17 of the Parentage Act. As section 17 is a fee-shifting provision, it must be construed strictly. Moreover, section 17, unlike section 508(a)(3) of the Dissolution Act, does not specifically allow recovery of attorney fees for defending appeals. The fact that the legislature specifically authorized recovery of appellate attorney fees in section 508(a)(3) suggests that it did not intend that such fees be recoverable in section 17, as the latter section, in contrast to the former section, is silent on this particular subject.

Section 17 of the Parentage Act is based upon section 16 of the Uniform Parentage Act. (9B U.L.A. 328 (1987).) Brezinsky has cited three cases from other jurisdictions that have adopted versions of section 16, in support of her claim that she is entitled to attorney fees for defending Chervinko’s appeal: D.P. v. Stewart (1987), 189 Cal. App. 3d 244, 234 Cal. Rptr. 420; In re Petition of Miller (Minn. App. 1987), 409 N.W.2d 11; and Lake v. Butcher (1984), 37 Wash. App. 228, 679 P.2d 409. She also relies upon People ex rel. Perz v. Schneemilch (1967), 82 Ill. App. 2d 371, 227 N.E.2d 132, which was decided under section 9 of the Paternity Act (Ill. Rev. Stat. 1965, ch. 1063/4, par. 59), which has been replaced by the Parentage Act. It appears that none of the parties ordered to pay appellate attorney fees in these torn-eases questioned the courts’ authority to award them. It cannot be argued, consequently, that the propriety of such fees was at issue in the four cases. Here, by way of contrast, Chervinko successfully challenged the circuit court’s power to award appellate attorney fees. Thus, Brezinsky’s authorities are not analogous to this case, for they assume the propriety of granting appellate attorney fees.

In addition, Brezinsky argues, the meaning of the word “action” in section 17, quoted above, is broad enough to include appeals; therefore, she concludes, the attorney fees expended in defending her paternity judgment against Chervinko are recoverable. But the General Assembly did not believe that the meaning of the word “action” was broad enough to include “pre-trial proceedings,” for it was moved to explicitly identify such proceedings in order to bring them within the purview of section 17. How can it be said, then, that the meaning of the word “action” is broad enough to include appeals, yet not broad enough to include “pre-trial proceedings?” Furthermore, it is worth noting that the legislature has recently amended section 17, which now provides:

“Costs. Except as otherwise provided in this Act, the court may order reasonable fees of counsel, experts; and other costs of the action, pre-trial proceedings and post-judgment proceedings to enforce or modify the judgment to be paid by the parties in accordance with the relevant factors specified in Section 508 of the Illinois Marriage and Dissolution of Marriage Act, as amended.” (Pub. Act 85 — 1417, §3, eff. Jan. 1,1989.)

In amending section 17 the legislature apparently meant to replace the method of determining fees set forth in the original version of section 17 — “in proportions and at times determined by the court”— with the more detailed criteria set forth in section 508. But the reference to section 508 in the amended version of section 17 gives rise to the inference that the General Assembly knew that appellate attorney fees were recoverable under the Dissolution Act, and that it again declined to make those fees recoverable under the Parentage Act. Accordingly, when the legislature clearly had another opportunity to include fees for defending appeals in section 17, it did not do so.

Finally, Brezinsky urges as a matter of policy that Illinois courts must eliminate the possibility that, due to financial hardship, a party might be foreclosed from securing adequate representation to defend a paternity judgment on appeal. To support this proposition, she cites In re Marriage of Wentink (1984), 132 Ill. App. 3d 71, 476 N.E.2d 1109, and In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 429 N.E.2d 867. However, both cases were decided under section 508 of the Dissolution Act, which explicitly contemplates the recovery of attorney fees for the defense of appeals. Presumably, we reiterate, the General Assembly would have specifically authorized the recovery of such fees in section 17 of the Parentage Act, had it seen fit to do so. In the event that the legislature inadvertently omitted fees for defending appeals from the Parentage Act, perhaps our opinion will call attention to this discrepancy.

II

The version of section 2 — 611 in effect when Chervinko made the denials for which Brezinsky sought sanctions is quoted above. The purpose of that section was to prevent abuse of the judicial process by sanctioning parties who engaged in vexatious litigation predicated upon false statements. (In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 638, 494 N.E.2d 541, 549.) As section 2 — 611 was a penal statute, it could only be invoked in cases that fell strictly within its terms. The movant had the burden of proving not only that the allegations were false, but also that they were made without reasonable cause. (Passiales, 144 Ill. App. 3d at 638, 494 N.E.2d at 549.) Under section 2 — 611, it was not an abuse of discretion for a circuit court to refuse to impose sanctions when a party made untrue statements, as long as that party did not know they were untrue. See In re Petition of Sullivan (1985), 134 Ill. App. 3d 455, 465-67, 480 N.E.2d 1283, 1291-93.

In our case, the circuit court followed Sullivan, concluding that even if Chervinko’s denial of paternity was untrue, he did not necessarily know it to be untrue. It is noteworthy that the same circuit court judge presided over both Brezinsky’s paternity action and her subsequent action for attorney fees. In the paternity action, the judge recalled, Brezinsky never proved that she and Chervinko had sexual intercourse at the time her boy was conceived, as he denied. Instead, according to the judge, she was awarded summary judgment on the basis of Chervinko’s admissions, which he never denied making, in the consent form and at the consent hearing. Chervinko claimed in the paternity action that his admissions in the consent proceedings, the purpose of which was not to establish paternity but rather to facilitate adoption, were made as a favor to Brezinsky. In our Rule 23 order, as noted above, we held only that Chervinko was bound by his admissions. It does not follow, then, that Chervinko’s denial of paternity was false and made without reasonable cause. This being the case, Brezinsky did not meet her burden under 2 — 611, and the circuit court did not abuse its discretion by refusing to sanction Chervinko.

Brezinsky likewise claims that she is entitled to attorney fees under the amended version of section 2 — 611. (Pub. Act 84 — 1431, art. 2, §1, eff. Nov. 25, 1986.) But in the circuit court, Brezinsky did not argue that she was entitled to fees under the amended version. This court has previously stated that if parties do not raise theories below, they cannot raise them for the first time on appeal. (See Burys v. First Bank (1989), 187 Ill. App. 3d 384, 387, 543 N.E.2d 253, 255.) We therefore conclude that Brezinsky has waived the claim that she is entitled to attorney fees under the amended version of section 2 — 611.

For the stated reasons the circuit court’s judgment, dismissing the petition for attorney fees incurred in defending Chervinko’s appeal of Brezinsky’s paternity judgment, is affirmed.

Affirmed.

MURRAY, P.J., and LORENZ, J., concur.


author: JUSTICE LORENZ

text:
    SALTZMAN PRINTERS, INC., Plaintiff-Appellant, v. GUNTHORP-WARREN PRINTING COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—0588
    Opinion filed December 8, 1989.

      Alan R. Borlack, of Gordon & Glickson, P.C., of Chicago, for appellant.
    H. Barringer Pusch and Kenneth N. Adamson, both of Kelly, Olson, Pusch, Rogan & Siepker, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Saltzman Printers, Inc., appeals from an order granting summary judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005) in favor of defendant, Gunthorp-Warren Printing Co. We address the issue of whether the order was final and appealable, and we dismiss the appeal for lack of jurisdiction.

Plaintiff filed a petition to vacate an arbitration award pursuant to section 12 of the Uniform Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 112), which stated the following. Defendant filed a complaint against plaintiff alleging that plaintiff did not pay for certain printing work defendant had completed. Plaintiff claimed the work was defective and filed a counterclaim against defendant for lost profits. Plaintiff and defendant submitted their respective claims against each other to binding arbitration with the Printing Industry of Illinois Commercial Board of Arbitrators (Board).

The rules of the Board provided that if a party was represented by an attorney at the arbitration hearing, the Board charged a $700-per-day fee plus expenses for its own legal counsel. To avoid the fee, plaintiff agreed to proceed without an attorney.

At the hearing, the parties were informed that one of the arbitrators, Stanley Kukla, was unable to attend and that an employee of Kukla’s company, Wayne Obermiller, would substitute. The parties signed a “Submission to Arbitration” which listed Obermiller as one of the arbitrators and indicated that the parties approved of the arbitrators. David Rallo, the Board’s attorney, was present at the hearing, and plaintiff alleged that on Rallo’s advice, the arbitrators refused to hear plaintiff’s counterclaim for lost profits. Plaintiff did not present evidence on that issue. Kukla arrived midway through the hearing, and plaintiff alleged he participated in the hearing. Plaintiff further alleged that both Kukla and Rallo participated in the arbitrators’ deliberations.

The arbitrators found in favor of defendant and stated that plaintiff must pay defendant $22,185, which was $3,000 less than defendant’s invoice for the work involved.

In the petition to vacate the award, plaintiff claimed that it was denied the right to counsel, that evidence of its claim for lost profits was improperly excluded, and that Kukla and Rallo improperly participated in the proceedings.

Defendant filed an answer to the petition, raising as an affirmative defense plaintiff’s failure to make a timely objection to any alleged impropriety that occurred in the arbitration hearing. Defendant alleged that plaintiff did not raise any objection to the hearing until after the arbitrators handed down their award against plaintiff.

Both plaintiff and defendant moved for summary judgment on the petition. Plaintiff requested that the court vacate the arbitration award, and defendant requested that the court confirm the award.

The trial judge granted defendant’s motion for summary judgment, finding that plaintiff waived any impropriety that may have occurred in the arbitration hearing. The issue of plaintiff’s claim for lost profits was remanded to the arbitration panel for a determination as to whether the reduction of the award by $3,000 was a finding on plaintiff’s claim for lost profits. Although it is apparent from the record that the trial judge issued a written opinion elaborating his findings, the opinion was not included in the record on appeal. Also not included in the record was the transcript of proceedings for the day the motions were argued. The judge entered an order denying plaintiff’s motion for summary judgment, granting defendant’s motion for summary judgment, and remanding the issue of plaintiff’s claim for lost profits to the arbitration panel. Plaintiff appeals from that order.

Opinion

The Uniform Arbitration Act provides that “[ajppeals may be taken in the same manner, upon the same terms, and with like effect as in civil cases.” (Ill. Rev. Stat. 1987, ch. 10, par. 118.) Illinois Supreme Court Rule 304(a) provides:

“(a) Judgments As To Fewer Than All Parties or Claims — Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. *** In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (107 Ill. 2d R. 304(a).)

The failure to include Rule 304(a) language in an otherwise final order involving multiple claims or parties will result in the dismissal of an appeal from that order. (First National Bank v. Lewis (1987), 163 Ill. App. 3d 160, 516 N.E.2d 552.) The purpose of Rule 304(a) is to “discourage piecemeal litigation.” First National Bank, 163 Ill. App. 3d at 161, 516 N.E.2d at 552.

Defendant has moved this court to dismiss the appeal because the case involved multiple issues and the trial judge did not make a finding pursuant to Rule 304(a). Defendant contends there were two issues involved, namely, defendant’s complaint against plaintiff for the unpaid bill and plaintiff’s counterclaim against defendant for lost profits. Because plaintiff’s claim for lost profits was remanded to the arbitration panel, defendant argues an issue remains pending and a Rule 304(a) finding was required.

Plaintiff argues that Rule 304(a) is inapplicable because the lost profits issue was not pending before the circuit court. Initially, we note that Rule 304(a) does not contain such restrictive language as requiring the issue to be pending before the circuit court. Rather, the rule provides generally that a finding must be made when multiple issues are involved in an action and a final judgment is entered on less than all of those issues. Also, the Uniform Arbitration Act provides that appeals may be taken in the same manner and on the same terms as other civil cases (Ill. Rev. Stat. 1987, ch. 10, par. 118), and therefore, Rule 304(a) is applicable to arbitration cases.

For its argument, plaintiff relies on Board of Trustees v. Cook County College Teachers Union, Local 1600 (1981), 96 Ill. App. 3d 913, 422 N.E.2d 115, where the trial court remanded a case to arbitration and the appellate court considered the appeal. Plaintiff argues that because the appellate court in Board of Trustees considered the appeal, it had jurisdiction to hear the appeal despite the remand and, therefore, this court has jurisdiction to hear plaintiff’s appeal. However, Board of Trustees presented a different situation from the case at bar. There, the trial court remanded the entire case to arbitration, and as a result, there was no Rule 304(a) issue presented. Here, only one issue was remanded to the arbitration panel, and therefore, we must determine whether a Rule 304(a) finding was required before plaintiff could appeal.

Although our research has not disclosed an Illinois case directly on point, the United States Court of Appeals for the Seventh Circuit has considered a similar issue. (Shearson Loeb Rhoades, Inc. v. Much (7th Cir. 1985), 754 F.2d 773.) In Shearson, the district court enforced an arbitration award on the issue of liability but remanded the case to the arbitrator to recalculate damages. On appeal, the court addressed the jurisdictional question of whether an order vacating and remanding the damages portion of an arbitration award was final. The appellate court dismissed the appeal for lack of jurisdiction, finding that remanding part of the case to arbitration could render certain issues moot or raise additional issues and, therefore, the order was not final.

Additionally, the present case is analogous to the situation presented in Deerfield Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill. App. 3d 837, 529 N.E.2d 243, where a final judgment was entered on a counterclaim but the complaint remained pending. Without a Rule 304(a) finding, the appeal from that judgment was dismissed.

Rule 304(a) was intended to prevent piecemeal appeals. In the present case, the arbitration award on defendant’s claim against plaintiff was effectively confirmed by the grant of summary judgment in defendant’s favor. The trial judge’s order granting defendant’s motion for summary judgment and denying plaintiff’s motion for summary judgment finally disposed of the issues on defendant’s complaint against plaintiff. (See Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314.) However, the order also remanded the issue of plaintiff’s counterclaim for lost profits to the arbitration panel to determine whether the reduction of the award by $3,000 was a finding on plaintiff’s claim for lost profits. That issue remained pending but the parties did not request a Rule 304(a) finding. Whatever the determination of the arbitrators on remand, the parties may again seek review of the award at a later date. This situation is what Rule 304(a) was intended to prevent.

Appeal dismissed.

MURRAY, P.J., and PINCHAM, J., concur.


author: PRESIDING JUSTICE MURRAY

text:
      In re CUSTODY OF TONY BUTLER (Joan Butler et al., Plaintiffs-Appellants, v. Rodney Butler, Defendant-Appellee).
    First District (5th Division)
    No. 1—88—3167
    Opinion filed December 8, 1989.
    Steven R. Lake, Alan J. Toback, Julie Parker, and Judith Brenner, all of Steven R. Lake & Associates, Ltd., of Chicago, for appellants.
    James T. Friedman and James L. Rubens, both of Davis, Friedman, Zavett, Kane & Macrae, of Chicago, for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Joan and Bernard Butler (Joan and Bernard) appeal from an order of the trial court in a custody proceeding involving their grandson, Tony Butler (Tony). Defendant in the case is Rodney Butler (Rodney), the father of Tony and son of Joan and Bernard. The facts underlying the case are as follows.

Joan and Bernard filed a petition for custody of their grandson, Tony. Thereafter, they filed a petition for an order of protection, charging Rodney with the physical abuse of Tony. On September 7, 1988, the trial court granted a motion filed by Rodney to dismiss the cause based on an issue of standing. The trial court also rejected Joan and Bernard’s claim that a guardian ad litem ought to be appointed for Tony because of the standing and physical abuse issues. Joan and Bernard filed a timely appeal from the order.

On appeal Joan and Bernard contend that the trial court erred and abused its discretion in: (1) its determination that Joan and Bernard did not have standing to bring a child custody action concerning their grandson; and (2) that the court erred in refusing to appoint a guardian ad litem to represent the grandson.

The provisions of our Marriage and Dissolution of Marriage Act (Illinois Marriage Act) expressly permit a person, other than a parent, to file a petition for custody if a child is “not in the physical custody of one of his parents.” (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2).) In the interpretation of this section, our supreme court has held that a nonparent must show that the child is “not in the physical custody of one of his parents.” When this requirement has been met, the nonparents will be considered for legal custody of the child under “a best interest of the child” standard. In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150.

Recognizing this now settled Illinois law, the grandparents, Joan and Bernard, argue that they had physical custody of their grandson Tony, and that the trial court should have applied the best interest of the child standard to the issue of custody. We affirm the trial judge for the following reasons.

The facts disclose that Tony was born on September 1, 1976, as a result of the marriage of Rodney and Susan Butler. Rodney was awarded the sole care, custody, control and education of Tony on January 19, 1981. Tony lived with his father at the home of his father’s parents, Joan and Bernard, until October 1987. On that date, Tony and Rodney moved into their own home in Palatine, Illinois. The reason Rodney moved from his parents’ home, according to Rodney, was his concern about sanitary conditions and the alleged refusal of his parents to allow Tony to attend school. The grandparents, on the other hand, base their right to bring the custody proceeding on the years Tony lived with them and a spanking of Tony by his father which allegedly caused bruises on Tony’s buttocks. Rodney admits the spanking, but alleges it was due to Tony’s misconduct. The spanking was apparently never reported, nor was Tony medically treated for the spanking.

Before this court can determine whether the “good of Tony” should be the determinative factor, we must first conclude that the grandparents had custody of Tony within the meaning of the cited provision of the Illinois Marriage Act.

The burden of establishing standing rests on the grandparents, not the parent. (In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, 527 N.E.2d 131.) The reason for this apparently harsh rule is that the interest of natural parents in the “care, custody and management” of their children is a fundamental liberty interest protected by the fourteenth amendment. Our supreme court has recently held in child abuse cases that the standard of proof required by the constitution in such cases is a “clear and convincing” standard rather than a “preponderance of the evidence” norm. (In re Enis (1988), 121 Ill. 2d 124, 129, 520 N.E.2d 362.) No Illinois cases have set forth the standard of proof required by the Illinois Marriage Act to establish the standing of grandparents to bring an action for custody of their grandchild against the child’s natural parent. Yet, even by a mere manifest weight standard, the grandparents in this case have failed to demonstrate standing. First, the evidence discloses only that Rodney and Tony lived with Joan and Bernard before Rodney was awarded custody on January 11, 1981, until October 1987. From October 1987 until August 26, 1988, Tony lived with his natural father, Rodney. The petition for custody was filed while Tony was visiting his grandparents and they observed evidence of a severe physical spanking. Possession of the child at the time a petition is filed is not sufficient to equate the standing required under the cited section of the Illinois Marriage Act to invade a natural parent’s right. In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150.

The plaintiffs do cite cases where the grandparents or others had standing to bring a custody proceeding, such as in In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 453 N.E.2d 835. However, in that case the court affirmed a trial court’s conclusion that the father relinquished custody to the grandparent and then abducted the child. In this case there is no evidence that Rodney either relinquished custody of his child to the grandparents or abducted him. At best, the evidence discloses a joint physical custody of the grandchild between the grandparents and their son for 11 years and custody of the child by the father at the time the petition was filed. We also find the case of In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 440 N.E.2d 1036, also cited by plaintiffs, inapplicable. In Barokas this court reversed an order awarding the custody of a 15-year-old to nonparents because the trial court had not considered the natural parent’s superior right. We also remanded the matter for a hearing on the issue of jurisdiction and standing as of the date of the filing of the petition.

Since we must affirm the trial court on a jurisdictional ground, i.e., standing, we do not meet “the good of the child issue.” Even if we did meet that issue, we would have to affirm since the evidence presented by the grandparents falls far short of the proof required by the “good of the child test” to take away custody of a child from his natural parent. At best, the evidence shows a single act of physical discipline administered by the father for disciplinary reasons.

The plaintiffs further argue that the court erred in failing to appoint a guardian ad litem. This charge is without merit. The request for a guardian ad litem was made after the court determined that the grandparents lacked the standing required by Illinois law to attack the custody of a minor child held by his father. It was also made after the trial court had heard from the minor himself, and although we note that the court had the jurisdiction and discretion to appoint a guardian, we conclude under the facts of this case now before the court that the trial judge did not abuse that discretion.

Finally, we find laudable the concerns of the grandparents over their 11-year-old grandchild. However, it is obvious that the father in this case has an equal concern. Although the plaintiffs charge that Rodney would completely terminate his son’s 11-year-old relationship with them, the record does not support that charge and, in fact, refutes it. The record reflects that the plaintiffs enjoy visitation rights with their grandson.

Lastly, nothing we have said precludes young 11-year-old Tony from visiting his grandparents, raking their leaves, or even putting up their storm windows to keep the cold wind out and the warmth of their hearts in.

For the above reasons, the trial court’s order is affirmed.

Affirmed.

LORENZ and PINCHAM, JJ., concur.


text:
    FRED KILIANEK, Plaintiff-Appellee, v. JUNG K. KIM, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—3573
    Opinion filed December 8, 1989.

      James Tarsney, of Chicago, for appellant.
    Law Office of Robert J. Mangan, of Chicago (Robert J. Mangan, of counsel), for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

This appeal is taken from the order of the circuit court, chancery division, which entered judgment in favor of the plaintiff, Fred Kilianek, and against the defendant, Jung Kim, in the amount of $2,652, affirming the arbitrator’s award of November 23,1987.

Defendant-appellant Kim preserved his right to appeal by timely assertion of his motion arguing that the arbitrator was without jurisdiction in reaching his findings.

The record advises us that the appellant properly raised the issue of jurisdiction, both before the arbitrator and before the circuit court. In both instances his claim was rejected.

We have for decision the question of whether this court has jurisdiction to review the judgment of the circuit court under these special circumstances. If this court does have jurisdiction, then we are called upon to decide whether all fair and reasonable minds would agree that the construction of the contract made by the arbitrator was not possible under a fair interpretation thereof.

Appellant Kim is the owner of a home in Chicago, Illinois. On March 25, 1986, he entered into a contract to have Kilianek, an experienced contractor, add an additional room onto his home. The contract was a standard form agreement entitled “Abbreviated Form of Agreement Between Owner and Contractor.”

Under the terms of the agreement, the architectural work in designing the additional room was to be done by Park & Associates, Inc., a firm with which Kilianek had previously worked. Park & Associates provided the architectural drawings. Various changes were made during the course of construction. Kim made periodic payments for a total of $14,100 toward the costs of construction. On March 29, 1987, Kilianek demanded a final payment in the sum of $2,739. For reasons discussed below, Kim did not make payment, which prompted Kilianek to file arbitration proceedings pursuant to the terms of the contract.

Appellee points to article 13 of the contract, which provides in pertinent part as follows:

“All Claims or disputes between the Contractor and the Owner arising out of, or relating to, the Contract Documents or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise.”

The appellant, however, relies upon article 5 of the same agreement, which states as follows:

“Final payment, constituting the entire unpaid balance of the Contract Sum, shall be paid by the Owner to the Contractor when the work has been completed, the contract fully performed, and a final Certificate for Payment has been issued by the Architect.”

Appellant and appellee both agree that a final certificate for payment has not been issued by the architect. The appellee takes the position that if this question is in dispute, then it is to be resolved as any other claim or dispute under article 13 of the agreement.

On the other hand, the appellant states that inasmuch as the contractor has not provided him with a final certificate for payment pursuant to article 5 of the agreement, the lack of compliance therewith amounts to an unfulfilled condition precedent, and there is no obligation on him to perform. We agree with the appellant-owner and for reasons expressed below reverse and remand for further proceedings not inconsistent with this ruling.

The appellee contends that, notwithstanding the fact that no certificate of payment from the architect was provided by him, he was entitled to and in fact made a demand for final payment. Upon refusal by the appellant to make payment, the appellee instituted arbitration proceedings.

Regrettably the record is devoid of a transcript of the proceedings that took place, either before the arbitrator or before the chancellor, and we are not assisted in any way towards understanding the reasoning of the arbitrator or the court below on this issue. We therefore must look at the language of the contract and determine the merits of the issue for ourselves.

Opinion

It is clear and unmistakable that the language of the contract controlling the parties contains a condition precedent which has not been met. A condition precedent is one which must be performed by the one party to an existing contract before the other party is obligated. (Peoria Harbor Marina v. McGlasson (1982), 105 Ill. App. 3d 723, 729, 434 N.E.2d 786, 791.) Article 5, dealing with final payment, states unequivocally that final payment is not due from the owner to the contractor until such time as a final certificate for payment has been issued by the architect. Appellee agrees that none was provided. It therefore follows, and we are bound to conclude, that article 5 has not been satisfied, and as a consequence, there was no obligation upon the owner to pay.

We agree that arbitration should receive every encouragement from the courts as a mode of settling disputes. We agree further that judicial review of an arbitrator’s award should be more limited than appellate review of a trial court’s decision. We also recognize as a matter of policy that courts ought not to substitute their judgment for that of the arbitrators chosen by the parties so as to make an arbitration award the commencement, not the end, of litigation. Notwithstanding the foregoing, the Illinois Uniform Arbitration Act sets forth the grounds upon which the courts can vacate an arbitrator’s award and sets forth the various procedures for such action. The Act provides:

“Vacating an Award, (a) Upon application of a party, the court shall vacate an award where:
(3) The arbitrators exceeded their powers ***.” Ill. Rev. Stat. 1985, ch. 10, par. 112(a)(3).

We agree with the principle that the Illinois statute on arbitration must be deemed a part of the contract between the parties. Kaiser-Ducett Corp. v. Housewrights, Inc. (1977), 48 Ill. App. 3d 589, 592, 363 N.E.2d 97, 99.

From this analysis, we conclude that the jurisdiction of the circuit court depended upon whether the arbitrator exceeded his powers. We likewise conclude that he did. We reaffirm the proposition laid down in Kaiser-Ducett that the law is fixed that the question of whether a contract existed is not arbitrable; rather, it is an issue of law determinable only by the courts. 48 Ill. App. 3d at 592, 363 N.E.2d at 99.

We accordingly hold that the contract in question was not binding upon the appellant-owner, as a condition precedent dealing with payments was not performed or satisfied. Consequently, his contractual obligations end. (See Local 165, International Brotherhood of Electrical Workers, AFL-CIO v. Bradley (1986), 149 Ill. App. 3d 193, 205, 499 N.E.2d 577, 585; see also Lyntel Products, Inc. v. Alcan Aluminum Corp. (1982), 107 Ill. App. 3d 176, 180-81, 437 N.E.2d 653, 657.) We also agree with the reasoning in Jones v. Seiwert (1987), 164 Ill. App. 3d 954, 958, 518 N.E.2d 394, 397, where the court stated that a contract is neither enforceable nor effective until the condition precedent is performed or the contingency occurs. See also Dodson v. Nink (1979), 72 Ill. App. 3d 59, 64, 390 N.E.2d 546, 549.

The court in In re Estate of Albrecht (1975), 27 Ill. App. 3d 839, 841, 327 N.E.2d 317, 319, stated that a condition precedent is one which must be performed before a contract becomes effective, or which is to be performed by one party to the existing contract before the other party is obligated to perform. See also Lyntel Products, 107 Ill. App. 3d at 180, 437 N.E.2d at 656; In re Estate of Rice (1985), 130 Ill. App. 3d 416, 428, 473 N.E.2d 1382, 1390.

Thus, we conclude that both the arbitrator and the circuit court erred. We find that the parties herein were bound by the underlying agreement, save that the obligation of the owner to make final payment is not binding as it was the subject matter of a condition precedent which was never satisfied. Given the foregoing, we hold that there was no obligation upon the owner to make final payment until such time as the condition was, in fact, satisfied or waived.

We therefore reverse and remand this matter to the trial court, directing that the arbitrator’s award be vacated and that further proceedings consistent with this opinion be held. Absent the production of the certificate for payment or a reasonable explanation under the law for the appellee’s inability to satisfy the condition precedent, he is not entitled to relief.

Reversed and remanded with directions.

MURRAY, P.J., and LORENZ, J., concur.


author: PRESIDING JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES DEAN, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—0047
    Opinion filed December 8, 1989.
    Randolph N. Stone, Public Defender, of Chicago (Thomas N. Swital, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlavan Czech, and Inez Toledo-Bargioni, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

After a bench trial, the defendant, Charles Dean, was convicted of the criminal sexual assault of his daughter and sentenced to four years’ probation with the first five months to be served with the Cook County Department of Corrections. The five months were considered served.

The defendant first contends that he was not proved guilty beyond a reasonable doubt because his 12-year-old daughter, A.D., recanted the stories that she had previously told her mother, the police and the State’s Attorney and testified that her father had done nothing wrong.

A.D. testified that she was living with her parents, Denise and Charles Dean, at 1846 West Birchwood in Chicago on or about July 29, 1987. On cross-examination she testified that her father did not perform any sexual acts upon her. She admitted that, on August 10, 1987, she told her mother and the police that her father had performed sexual acts upon her. She told her mother about the sexual acts because she was mad that her father would not let her go to a party. Around August 9 or 10 she told her mother that she had missed her period or that it was late. When her mother asked her if she had been “fooling around,” she told her mother that she had been “fooling around” with her father. She knew that she had talked to various police officers and an assistant State’s Attorney, but she did not remember what she had told them.

Detective Katherine Fitzgibbons testified that she interviewed A.D. at the 24th District police station sometime during the day on August 10, 1987. A.D. told her that she was worried that her father had made her pregnant. Her father had had sex with her on at least two occasions. On one occasion, he picked her up, carried her to his bedroom, took off her clothes and licked her vagina. On another occasion he placed his penis inside her vagina. Both incidents occurred in June or July, 1987. One incident occurred around her father’s birthday, either July 29 or 30.

Officer Dan Kenn testified that on August 10, 1987, he went to the defendant’s home about 7:40 a.m. When he arrived he saw Denise Dean and A.D. Mrs. Dean told Kenn that A.D. came to her that morning and told her that she had missed her period and was afraid that she might be pregnant. A.D. told her that she had been “fooling around” with “daddy.” Sergeant Glenn White arrived shortly after that conversation, and Mrs. Dean advised the officers that she had called her husband at work and instructed him to come home. Sergeant White told Mrs. Dean to confront her husband when he came home and that he and Officer Kenn would listen to the conversation.

The defendant arrived home about 20 minutes after Kenn’s arrival. He and his wife talked in the kitchen, and Kenn and White listened in the living room about 5 to 10 feet away. The two rooms were separated by an open doorway. Mrs. Dean became very hysterical and began screaming and yelling at the defendant. She demanded to know whether he had had sex with their daughter. At first the defendant denied knowing anything; then he admitted to having sex with A.D. After hearing that statement, Kenn and White entered the kitchen and placed the defendant under arrest.

After receiving Miranda warnings, the defendant said that he had had sex with A.D. a couple of times at their home, that he was sorry and that he did not intend everything to turn out as it did. He also said that he needed help and wanted to start getting help. At that time both Mrs. Dean and A.D. were crying.

Assistant State’s Attorney Ellen Mandeltort spoke to A.D. at the 24th District police station about 11:30 a.m. A.D. told her that her father had sexually abused her for some period of time. Mandeltort then spoke with the defendant in an interview room and advised him of his Miranda rights. He acknowledged that he understood his rights and agreed to talk. He asked if he could speak to her alone in the lock-up. He was crying at the time and said that he did not want to ruin his family. He told her that he could remember three times when sexual things happened with his daughter; on one occasion he actually inserted his penis into his daughter’s vagina; on two other occasions he had licked his daughter’s vagina. More specifically, he said that “his daughter had asked him to kiss her stomach, and somehow his head wound up by her vagina, and he was just licking it.” On July 30, 1987, his birthday, he had called A.D. into his bedroom, and he licked her vagina then. He said that he had told A.D. that what he was doing was wrong but that he could not help himself.

A.D. testified on behalf of the defense and denied that her father had sex with her. She told the police officers that her father had sex with her because she was mad because he would not let her to go a party and “because that’s the way they talk in the project.” She did not tell the police that she made up the story because she “didn’t know it was going to go this far.”

She admitted that she knew that the police had taken her father to jail based upon what she had said. She confirmed that at a preliminary hearing a few days later she again told the State’s Attorney that her father had sex with her. She never went to the police to admit her lie.

Denise Dean testified that on August 10, 1987, A.D. told her that she and her father had had sexual contact. She believed A.D. She called her husband upon hearing A.D.'s story but denied that she had asked him to come home. She could not remember if she had had any conversation with the police officers after calling her husband. She denied that the officers told her they would wait outside while she spoke with the defendant.

After the defendant came home, they had a loud argument for about a “half a minute.” The police officers were in the living room. She remembered the defendant saying that he did not have sex with A.D. and that she should calm down; but she did not remember him ever saying that he had sex with A.D.

Three days later A.D. told her that she had made up the story because the defendant would not let her go to a party. A.D. came up with that story “maybe to get him out of the house or something. Or, revenge or something.” She told the defendant’s lawyer, and A.D. gave a written statement to that lawyer admitting her lie.

She never went to the 24th District station to advise officers Kenn and Fitzgibbons that A.D. had recanted her story; nor did she speak with either Kenn or Fitzgibbons by telephone. Twenty-one days after her husband had been incarcerated and 18 days after A.D. recanted her story, she took A.D. to her husband’s lawyer where A.D. signed a written statement. She knew that her husband was incarcerated all this time.

When a defendant’s conviction of a sex offense rests upon a child’s testimony of tender years, in order to sustain a judgment of guilt, the evidence must be corroborated or otherwise clear and convincing. People v. Williams (1953), 414 Ill. 414, 111 N.E.2d 343.

The defendant argues that the State failed to prove him guilty beyond a reasonable doubt because the evidence was neither corroborated nor clear and convincing. He makes five contentions: First, A.D. recanted her initial accusations. Second, upon learning that A.D. made up the story, Mrs. Dean took action to advise authorities of the truth. Third, A.D. did not make the initial accusations promptly; and, therefore, the case was void of prompt complaint or outcry. Fourth, no medical evidence corroborated the alleged sexual assaults. Last, the alleged inculpatory statements were insufficient.

We conclude that what action Mrs. Dean took later is not material and that the absence of an immediate complaint or medical evidence does not create a reasonable doubt, as a matter of law; nor does A.D.’s recantation of her initial accusation. Last, we conclude that the inculpatory statements were sufficient.

The first issue, which in our judgment is determinative, is the weight to be given the statements admittedly given by A.D. to her mother, the police and the State’s Attorney.

Section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115—10.1) provides, in part, as follows:

“In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement—
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and
(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought or at a trial, hearing, or other proceeding ***.”

A case much in point is People v. Winfield (1987), 160 Ill. App. 3d 983, 513 N.E.2d 1032, in which a seven-year-old witness testified at the trial of her father that he had not sexually abused her and that her testimony at a preliminary hearing was a lie. The State’s evidence consisted of the witness’ testimony at the preliminary hearing and a nurse’s testimony as to what the witness had told her 24 hours after the alleged occurrence. This court, in reliance on section 115 — 10.1, affirmed the conviction despite the fact that there was no physical evidence corroborating the witness’ account. In our judgment, the facts of this case are stronger than those in Winfield since the defendant here confessed.

The record shows that the judge rejected the defendant’s argument that A.D.’s statements were not admissible as substantive evidence. That ruling was correct. The judge said that the case was one of “credibility.” He found the defendant’s witnesses “unconvincing.” He also observed that he believed that the true facts came out “in the heat of what went on” and not later after the parties had a change of heart. It was his function to determine the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) It is not for us to substitute our judgment for that of the trial judge on questions involving the weight of the evidence and the credibility of the witnesses. (People v. Dunklin (1982), 104 Ill. App. 3d 685, 432 N.E.2d 1323.) We will not, therefore, substitute our judgment for that of the trial judge in determining the weight to be given to the statements made by A.D. to her mother, the police and the State’s Attorney. We would make the same observations with respect to the confessions made by the defendant. We conclude, therefore, that when considering all of the evidence in the light most favorable to the prosecution we cannot say that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

The defendant next contends that the State failed to prove the corpus delicti of the offense with evidence other than the defendant’s alleged statements. The applicable rule provides that some independent or corroborating evidence other than the confession must tend to show that a crime occurred. (People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.) Again, we refer to the observations we made on the question of the weight to be given to the statements of A.D. but add that the necessary independent or corroborating evidence need not be established beyond a reasonable doubt but need only tend to prove that an offense was committed. (Willingham, 89 Ill. 2d at 361.) When corroborating evidence tends to confirm the circumstances related in a confession, a court may consider both in determining whether the State has proved the corpus delicti. (Willingham, 89 Ill. 2d at 360.) We agree with the State that it clearly established consistent evidence corroborating the defendant’s confession. A.D. related to Detective Fitzgibbons specific acts of sexual abuse committed by her father. She also related the time during which these acts occurred. In an interview with Assistant State’s Attorney Mandeltort, the defendant confirmed the very same acts. He also confirmed his daughter’s story that one of the acts took place on or near his birthday. In our judgment the evidence sufficiently established the corpus delicti.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.

       Justice LaPorta participated in this opinion after the resignation of Justice Quinlan, who had participated in the oral argument. Justice LaPorta has read the briefs and listened to a tape of the oral argument.