author: JUSTICE STEIGMANN

text:
    FOSDICK POULTRY PROCESSORS, INC., Plaintiff and Counterdefendant-Appellee, v. HARRY EAGER, Defendant and Counterplaintiff and Third-Party Plaintiff-Appellant (F.W. Tauber, Jr., Third-Party Defendant-Appellee).
    Fourth District
    No. 4—89—0765
    Opinion filed May 17, 1990.
    Stephen C. Weeks, of Traub & Weeks, Ltd., of Fairbury, for appellant.
    No brief filed for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Harry Eager, and third-party defendant, F.W. Tauber, Jr., an agent of Fosdick Poultry Processors, entered into a distributor’s agreement which named Eager as the exclusive sales representative of Fosdick Poultry for a specified territory. In return, Eager paid Tauber $7,500. From August 16, 1986, through November 5, 1986, Eager sold products processed by Fosdick pursuant to the terms of the agreement.

On December 5, 1986, Fosdick sued Eager based on Eager’s failure to honor the distributor’s agreement. Eager counterclaimed, alleging that Fosdick breached the distributor’s agreement by assigning some of his exclusive sales territory to another person. In addition, Eager claimed that Fosdick violated the Franchise Disclosure Act (Act) (Ill. Rev. Stat. 1985, ch. 121V2, par. 701 et seq.) by failing to file a disclosure statement or to register the distributor’s agreement. Eager later filed a third-party complaint against Tauber based on his violation of the Act.

On December 22, 1986, Eager served a notice to rescind the distributor’s agreement based on section 21 of the Act (Ill. Rev. Stat. 1985, ch. 1211/2, pars. 721(2)(a), (2)(b)). (The Act was repealed in 1988, but governs the resolution of this case because all of the relevant events occurred prior to 1988.) Although Eager tendered his inventory of unsold Fosdick products, Fosdick refused to refund the $7,500 set-up fee.

After a bench trial, the circuit court determined that Eager did not acquire a franchise from Fosdick and that the distributor’s agreement was not governed by the Act. In accordance with that finding, neither Fosdick nor Tauber was required to comply with the Act’s disclosure or registration provisions. Eager appeals that determination.

Neither Fosdick nor Tauber, as appellees, filed briefs in this appeal. Nevertheless, this court will decide the merits of this case because the record is simple and the claimed errors are such that the court can easily decide them without the aid of the appellees’ briefs. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.

The definition of franchise set forth in section 3 of the Act reads as follows:

“(1) ‘Franchise’ means a contract or agreement, either expressed or implied, whether oral or written, between 2 or more persons by which:
(a) a franchisee is granted the right to engage in the business of offering, selling, or distributing goods or services, under a marketing plan or system prescribed or suggested in substantial part by a franchisor; and
(b) the operation of the franchisee’s business pursuant to such plan or system is substantially associated with the franchisor’s trademark, service mark, trade name, logo-type, advertising, or other commercial symbol designating the franchisor or its affiliate; and
(c) the person granted the right to engage in such business is required to pay, directly or indirectly, a franchise fee of $100 or more; ***.” Ill. Rev. Stat. 1985, ch. 121V2, pars. 703(l)(a), (l)(b), (l)(c).

The focus of the circuit court’s consideration was whether the requirements of section 3(l)(b) of the Act had been met, e.g., whether the operation of Eager’s business was “substantially associated with the franchisor’s trademark, service mark, trade name, logo-type, advertising, or other commercial symbol designating the franchisor.”

Eager argues that a label required by the United States Department of Agriculture (USDA), indicating (1) the net weight of the product, (2) that the poultry was distributed by Fosdick, and (3) that it was inspected by the USDA, constitutes a trade name substantially associated with his business. In addition, Eager contends that the association of the Fosdick trade name with Eager’s business is further shown by Eager’s use of the Fosdick letterhead for various communications to customers and salesmen.

In response, Tauber claimed that the label served merely to show the origin of the processed poultry as required by the USDA. (The label in question is included as an appendix to this opinion.) Tauber argued that the label, when attached to the product, is relatively inconspicuous. Furthermore, according to Tauber, the rules of both the USDA and the Federal Food and Drug Administration proscribing the use of the label in advertising show that the statute does not cover this situation.

The circuit court determined that Eager failed to prove that the operation of the business was “substantially associated” with the franchisor’s trade name as required by section 3(l)(b) of the Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 703(l)(b)). The circuit court explained as follows:

“To hold otherwise would mean that as a matter of law a trademark or trade name has been established whenever a product is sold which carries upon it the identity of the manufacturer and place of origin as required by governmental standards. Also, to hold otherwise, would mean that as a matter of law, the operation of a particular business is always substantially associated with a label when a label is printed upon the product simply to identify it and show government inspection and approval. Neither the statute [nor] case law suggested by counsel tends to indicate that the statute in question was intended to cover such a situation.”

Few cases have considered under what circumstances a franchise is formed. Recently, however, the Second District Appellate Court considered whether a trademark was substantially associated with the operation of a business. (Salkeld v. V.R. Business Brokers (1989), 192 Ill. App. 3d 663, 548 N.E.2d 1151.) The agreement in Salkeld stated the following:

“[T]he ‘[c]ompany is the authorized Licensee granted certain rights to the use of trademarks, including COCKTAILS NATURALLY which have been registered with the patent Office of the United States.’ ” (Salkeld, 192 Ill. App. 3d at 671, 548 N.E.2d at 1156.)

The agreement further provided that the “ ‘[s]ub-licensee [plaintiff] regognizes [sic] the benefits to be derived from being identified with and sub-licensed by Company [Innovative Concepts and The Buffer Zone], and being able to utilize the systems, patents, name and marks which Company makes available to its Sub-Licensee.’ (Emphasis added.)” (Salkeld, 192 Ill. App. 3d at 671, 548 N.E.2d at 1156.) The appellate court held that these representations were substantially associated with plaintiff’s business such that the requirements of section 3(l)(b) of the Act were satisfied. Salkeld, 192 Ill. App. 3d at 671, 548 N.E.2d at 1156.

The agreement in the present case permits Eager to use “all [of the] company logos, advertising and *** printed material necessary to operate” the business. Any benefits to be derived from the use of the logos were not specifically mentioned in the contract, a factor that is significant in distinguishing this case from Salkeld.

Salkeld is further distinguishable based on the nature of the products to be distributed; e.g., cocktail mixer versus poultry. A cocktail mixer seems more strongly associated with its trademark than a turkey with its processor’s logo. Also, as noted by the trial court, the presence of Fosdick’s logo was required by Federal regulations, a consideration not necessarily applicable to cocktail mixer.

We find the reasoning in the trial court’s written findings to be well stated, and we adopt it. An inconspicuous mark required by the government to designate the origin of a poultry product is not a commercial symbol “substantially associated” with the business within the meaning of section 3(l)(b) of the Act.

Eager also argues that a certificate of noncompliance issued to Fosdick by the Attorney General is prima facie proof that Fosdick was not a franchisor as defined by the Act. Eager cites section 24 of the Act, which states as follows:

“In any civil or criminal action brought under this Act, a certificate under the seal of State, signed by the Administrator, stating non-compliance with the provisions of this Act, shall constitute prima facie evidence of such non-compliance with the provisions of this Act and shall be admissible in any such action.” Ill. Rev. Stat. 1985, ch. 1211/2, par. 724.

However, section 24 addresses a franchisor’s or franchisee’s noncompliance with the Act and not whether an entity holds the status of franchisor or franchisee. Furthermore, section 24 only addresses evidentiary issues. A bench trial was held in this case, and the decision reached is fully supported by all the evidence presented, including the certificate of noncompliance.

Judgment affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.

Appendix


source: Caselaw Access Project

author: PRESIDING JUSTICE KNECHT

license: Public Domain

text:
    CYNTHIA SMOCK et al., Plaintiffs-Appellants, v. MARSHALL HALE, Defendant-Appellee (Passavant Hospital, Defendant).
    Fourth District
    No. 4—89—0673
    Opinion filed May 17, 1990.
    Rehearing denied June 25, 1990.

      Wayne R. Golomb, of Springfield, for appellant.
    Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, Frederick P. Velde, and Francis J. Lynch, of counsel), for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

In this malpractice action, the defendant succeeded in disqualifying the sole disclosed medical expert for the plaintiff in the pretrial setting. He then filed for summary judgment on the ground the plaintiff had failed to show any present ability to offer competent expert testimony on the applicable standard of medical care. The circuit court thereafter disposed of the action on a motion for summary judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c)). We now reverse and remand.

In light of the issues raised on appeal, the following chronology of events is noted:

The plaintiff, Cynthia Smock, is a former obstetrical patient of the defendant family practice physician, Dr. Marshall Hale, M.D. She consulted the defendant to supervise her pregnancy. A normal pregnancy was precluded by her past history of Crohn’s disease (i.e., severe inflammation of the. intestinal tract). In the 38th week of her pregnancy, the plaintiff experienced abdominal pain with rectal bleeding. The defendant had her admitted for emergency medical treatment at Passavant Area Hospital in Jacksonville, Illinois. She was diagnosed as suffering a life-threatening gastrointestinal hemorrhage. The defendant immediately employed nonoperative treatment methods in an attempt to stabilize the medical condition of the plaintiff. These methods proved unsuccessful as the plaintiff succumbed to shock resulting in the intrauterine demise of the fetus. The defendant then ordered surgery to remove the fetus and to repair the intestinal perforation. Upon recovery from surgery, the plaintiff was discharged from the hospital with treatment continuing for her Crohn’s disease.

The plaintiff filed her medical malpractice complaint in the circuit court of Morgan County on August 14, 1985. She initially named Hale as the defendant. She subsequently named Passavant Area Hospital as a codefendant. The complaint apparently alleges negligent medical care of a pregnant patient with a past history of Crohn’s disease. Although the circuit court allowed the plaintiff leave to amend her complaint on four separate occasions, no copies were included in the record on appeal.

The circuit court took an active role in the pretrial management of the action. The circuit court entered its initial discovery schedule order on December 8, 1986. (107 Ill. 2d Rules 218, 220.) The order set forth the following schedule for discovery: (1) disclosure of expert witnesses for the plaintiff by February 9, 1987, with the completion of any depositions by March 31, 1987; (2) disclosure of expert witnesses for the defendants by May 11, 1987, with the completion of any depositions by June 30, 1987; and (3) commencement of jury trial on July 28, 1987.

On February 5, 1987, the plaintiff disclosed her list of expert witnesses in the action. She proposed a single medical expert: Dr. Richard Taylor, M.D., a board-certified gastrointestinal surgeon.

The circuit court entered its second discovery schedule order on March 30, 1987. The order set forth the following revised schedule for discovery in the action: (1) completion of any depositions on the expert witness for the plaintiff by May 15, 1987; (2) disclosure of expert witnesses for the defendants by July 15/1987, with completion of any depositions by September 1, 1987; and (3) commencement of jury trial on October 26, 1987.

The circuit court entered its third discovery schedule order on May 1, 1987. The order set forth the following revised schedule for discovery in the action: (1) completion of any depositions on the expert witness for the plaintiff by June 12, 1987, and (2) disclosure of expert witnesses for the defendants by August 12, 1987, with completion of any depositions by September 29, 1987; and (3) commencement of jury trial apparently remaining on October 26,1987.

The circuit court entered its final discovery schedule order on July 31, 1987. The order set forth the following revised schedule for discovery in the action: disclosure of expert witnesses for the defendants by August 31, 1987, with completion of any depositions apparently remaining by September 29, 1987.

On September 10, 1987, the defendant disclosed his list of expert witnesses in the action. He proposed two medical experts: (1) Dr. Steven Holt, M.D., a gastroenterologist, and (2) Dr. John E. Sutherland, M.D., a family practice physician.

On September 28, 1987, ending its pretrial management role, the circuit court entered an order setting the action for trial on February 1, 1988. That trial date was ultimately vacated because of the death of the presiding judge. Another judge ruled on several matters until a third judge took over responsibility for the case in mid-1988.

On December 18, 1987, the plaintiff, without the leave of the circuit court, disclosed an addition to her list of expert witnesses in the action. She proposed a second medical expert: Dr. Stephen B. Hanauer, M.D., her treating gastroenterologist.

On January 6, 1988, the defendant filed a motion to strike Hanauer as a medical expert in the action. The motion alleged the plaintiff had failed to disclose Hanauer as an expert witness in a timely manner. (107 Ill. 2d R. 220.) The circuit court granted the motion to strike on April 21, 1988.

On June 17, 1988, the defendant filed a motion to disqualify Taylor as a medical expert in the action. The motion alleged Taylor had failed to establish his familiarity with the standard of medical care applicable to a family practice physician in downstate Illinois. (107 Ill. 2d R. 220; Ill. Rev. Stat. 1987, ch. 110, par. 8 — 2501.) The circuit court granted the motion to disqualify on March 2,1989.

The circuit court entered the following finding in support of its order:

“Dr. Taylor stated in his deposition he did not know of the existence of a medical speciality in the field of family practice, he was unfamiliar with the standards and qualifications for becoming a board-certified family physician, and that he did not know the applicable standards of care for one so certified. As a consequence he may not give an opinion concerning Dr. Hale’s alleged deviation from the applicable standard of care.”

On July 29, 1988, the plaintiff filed a motion to amend her list of medical experts to include all treating physicians as witnesses. The defendant responded "with his objection to that motion on August 10, 1988. The circuit court denied the motion to amend on March 2, 1989.

On October 28, 1988, the plaintiff filed a motion to strike Sutherland as a medical expert in the action. The motion alleged Sutherland had not cooperated in setting up a time schedule for taking his deposition. The defendant filed his response to that motion on November 9, 1988. The circuit court denied the motion to strike on November 21, 1988.

On April 7, 1989, the defendant filed a motion for summary judgment in the action! The motion alleged the plaintiff had failed to show any present ability to offer competent medical testimony on the applicable standard of medical care. The plaintiff filed her response to that motion on June 23, 1989. The circuit court entered an interlocutory summary judgment in favor of the defendant on July 31, 1989.

On June 27, 1989, the plaintiff filed a motion to vacate the order disqualifying Taylor as a medical expert in the action. The circuit court denied the motion on July 7, 1989.

On June 27, 1989, the plaintiff also filed a motion to vacate the initial order scheduling discovery in the action and the order striking Hanauer as a medical expert in the action. The circuit court granted the motion to vacate as to the latter request for leave to disclose additional expert witnesses. On July 10, 1989, the circuit court, acting on its own motion, reconsidered that order and ultimately denied the motion to vacate in its entirety.

The circuit court offered the following statement to explain its sua sponte reconsideration of the motion to vacate:

“Said order does violence to good procedure and was entered in sympathy for plaintiff’s plight without giving due consideration for defendant Hale’s nearly four years of case preparation.”

On August 17, 1989, the plaintiff filed a motion to vacate the entry of the interlocutory summary judgment. The circuit court denied the motion to vacate and entered a formal written order granting summary judgment in favor of the defendant on August 21, 1989.

On July 20, 1989, the plaintiff filed a motion for voluntary dismissal of the action. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1009.) The defendant responded with his objection to that motion on the same date. The circuit court denied the voluntary dismissal motion on July 31, 1989, and later made that denial part of the written order entered on August 21, 1989.

On August 28, 1989, the plaintiff filed a timely notice of appeal from the entry of summary judgment in the action.

The defendant initially challenges the notice of appeal filed by the plaintiff in the action. He contends the notice of appeal only confers jurisdiction on the appellate court to review the propriety of the entry of summary judgment. (107 Ill. 2d R. 303(c)(2).) This contention is necessarily based on a literal reading of the contents described in the notice of appeal.

A litigant perfects an action on review by filing a timely notice of appeal in the circuit court. (107 Ill. 2d Rules 301, 303, 606.) The notice of appeal must specify both “the judgment *** appealed from and the relief sought from the reviewing court.” (107 Ill. 2d R. 303(c)(2).) Accordingly, the reviewing court has jurisdiction over only those matters raised in the notice of appeal. Lewanski v. Lewanski (1978), 59 Ill. App. 3d 805, 815, 375 N.E.2d 961, 968.

The notice of appeal is to be liberally construed in the absence of prejudice to the litigants. It therefore follows the notice of appeal may be construed to bring up for review an earlier unspecified order where that order is a step in the procedural progression to the specified order. Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 434-35, 394 N.E.2d 380, 383.

In her notice of appeal, the plaintiff describes the judgment appealed from as “the Final Order *** entered *** in this cause on August 21, 1989, which declared judgment for the Defendant-Appellee and against the Plaintiff-Appellant.” It is apparent, however, the plaintiffs also intended to perfect review over two earlier unspecified orders in the action. The first order resulted in the disqualification of the medical expert for the plaintiff; the second order closed the schedule for discovery. These two orders directly contributed to the entry of summary judgment. Given the interrelationship between the specified and the unspecified orders, the notice of appeal is sufficient to confer jurisdiction on the appellate court to review the propriety of all these orders.

The plaintiff contends the circuit court erred in disqualifying Taylor as a medical expert in the action.

A medical malpractice action, in terms of pleading, is no different from any other negligence tort action. In order to plead a cause of action for medical malpractice, the plaintiff patient bears the burden of proving “[1] the proper standard of care against which the defendant physician’s conduct is measured; [2] an unskilled or negligent failure to comply with the applicable standard; and [3] a resulting injury proximately caused by the physician’s want of skill or care.” (Purtill v. Hess (1986), 111 Ill. 2d 229, 241-42, 489 N.E.2d 867, 872; Walski v. Tiesenga (1978), 72 Ill. 2d 249, 255-56, 381 N.E.2d 279, 282.) Absent proof of negligent medical care, the plaintiff patient is precluded from recovery against the defendant physician for malpractice.

The malpractice apparently alleged here is the negligent care of a pregnant patient with a past history of Crohn’s disease by her family practice physician. This is not a situation in which laypersons could evaluate any lack of medical skill on the part of the defendant physician without the aid of testimony from an expert witness. Walski, 72 Ill. 2d at 256, 381 N.E.2d at 282.

Section 8 — 25.01 of the Code of Civil Procedure states the standards for expert witnesses in medical malpractice actions. (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 2501.) Section 8 — 2501 became effective on August 15, 1985.

Section 8 — 2501 provides:

“In any case in which the standard of care given by a medical profession is at issue, the court shall apply the following standards to determine if a witness qualifies as an expert witness and can testify on the issue of the appropriate standard of care.
(a) Relationship of the medical specialties of the witness to the medical problem or problems and the type of treatment administered in the case;
(b) Whether the witness has devoted a substantial portion of his or her time to the practice of medicine, teaching or University based research in relation to the medical care and type of treatment at issue which gave rise to the medical problem of which the plaintiff complains;
(c) whether the witness is licensed in the same profession as the defendant; and
(d) whether, in the case against a non-specialist, the witness can demonstrate a sufficient familiarity with the standard of care practiced in this State.” Ill. Rev. Stat. 1987, ch. 110, par. 8-2501.

The determination of whether a licensed physician is qualified to testify as a medical expert in a malpractice action is a matter resting within the sound discretion of the circuit court. (Landers v. Ghosh (1986), 143 Ill. App. 3d 94, 102, 491 N.E.2d 950, 956.) In making this determination, the circuit court is to weigh and balance the educational and employment background of the proposed expert to ensure his familiarity with the medical issues in the malpractice action. (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 2501.) Ultimately, the qualification determination of the circuit court rests on its verification that the proposed expert' has predicated his medical opinion on the prevailing “local” or “national” standard of care. Purtill, 111 Ill. 2d at 247, 489 N.E.2d at 874-75.

Under the aforementioned standards, the circuit court erred in refusing to qualify Taylor as a medical expert in the action. (See Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 636-37, 536 N.E.2d 125, 127-28.) Taylor is a physician licensed to practice medicine in Florida. He has specialized his medical practice in the surgical treatment of intestinal (i.e., colon and rectum) diseases. In the course of practicing medicine, Taylor has published articles on the treatment of both inflammatory intestinal diseases and intestinal perforations. He has also successfully treated pregnant patients with a history of Crohn’s disease. Thus, these experiences, taken together, ensure that Taylor was familiar with the medical issue in this action.

In contrast, the fact Taylor professed little knowledge of the family practice certification procedures should not have been the decisive element in the qualification determination of the circuit court. Such knowledge would not have aided the trier of fact in resolving the action. At his deposition, Taylor testified a national standard applied in reviewing the medical care and treatment of patients with Crohn’s disease. In turn, Sutherland, the defendant’s witness, conceded a national standard would properly apply in reviewing such malpractice actions. As a result, the circuit court should have found Taylor qualified to testify as a medical expert. See Sadnick v. Doyle (1987), 157 Ill. App. 3d 279, 510 N.E.2d 603; see also Slezak v. Girzadas (1988), 167 Ill. App. 3d 1045, 522 N.E.2d 132.

The plaintiff next contends the circuit court erred in refusing to vacate its scheduling order for discovery in the action.

The circuit court is authorized to enter orders scheduling discovery in all actions. (107 Ill. 2d Rules 218, 220.) The purpose behind discovery schedule orders is “to insure fair and equitable preparation for trial by all parties.” 107 Ill. 2d R. 220(b)(1).

A discovery schedule order is subject to revision at the discretion of the circuit court. Revision is generally appropriate to accommodate changes in the circumstances of the action. Absent an abuse of that discretion, the revision determination of the circuit court will not be altered on review. Barliant v. Follett Corp. (1977), 53 Ill. App. 3d 101, 106, 368 N.E.2d 654, 657, rev’d on other grounds (1978), 74 Ill. 2d 226, 384 N.E.2d 316.

This action is factually similar to Cometo v. Foster McGaw Hospital (1988), 167 Ill. App. 3d 1023, 522 N.E.2d 117. In that malpractice action, as here, the plaintiff proposed a single witness as his medical expert. After the witness refused to testify at trial, the defendants filed a motion for summary judgment on grounds the plaintiff had failed to show any present ability to offer competent expert testimony on the applicable standard of medical care. In turn, the plaintiff filed a response citing the willingness of the witness to now testify at trial. The defendants then moved to strike the response of the plaintiff as being a violation of the discovery schedule orders entered in the action. At the hearing on these motions, the circuit court struck the response of the plaintiff and granted summary judgment in favor of the defendants. On appeal, the plaintiff argued the circuit court erred in entering summary judgment because changes in the circumstances of his legal position had instead warranted the reopening of discovery in the action. Given the lack of abusive discovery practices on the part of the plaintiff, the appellate court reversed the entry of summary judgment and reopened discovery to allow the plaintiff to disclose additional expert witnesses in the action.

The circuit court initially acted within its authority in entering the scheduling order for discovery in the action. To preserve the sanctity of its order, the circuit court had to sanction the plaintiff for failing to disclose her expert medical witnesses in a timely manner. (107 Ill. 2d R. 220.) The effect of that sanction, however, together with the erroneous witness disqualification order, effectively precluded the plaintiff from presenting the full factual basis of her cause. As in Cometo, there is no evidence the plaintiff engaged in any abusive discovery practices in the action. To the contrary, the trial judge specifically found plaintiff had not engaged in abusive discovery practices. The delay in the disposition of the cause may be attributed to the difficulties both litigants experienced in securing qualified medical experts as well as the unforeseen circumstances which necessitated assignment of several different judges to the case. Thus, the adverse change in the legal position of the plaintiff warrants revision of the discovery schedule on remand. See Jones v. Petrolane-Cirgas, Inc. (1989), 186 Ill. App. 3d 1030, 542 N.E.2d 1186.

The plaintiff last contends the circuit court erred in entering summary judgment in the action.

Summary judgment is a drastic remedy. As a result, the circuit court must act with great caution in entering summary judgment to avoid preempting litigants from presenting the full factual basis of their cause in medical malpractice actions. Miller v. Smith (1985), 137 Ill. App. 3d 192, 196, 484 N.E.2d 492, 496; see also Hansbrough v. Kosyak (1986), 141 Ill. App. 3d 538, 549, 490 N.E.2d 181, 188.

The standards governing the entry of summary judgment are not in dispute. Summary judgment is proper only “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) Thus, in the context of a medical malpractice action, summary judgment is proper only where the plaintiff has failed to show her present ability to offer competent expert testimony on the applicable standard of medical care. Purtill, 111 Ill. 2d at 250, 489 N.E.2d at 876.

There is no evidence the plaintiff abused the rules of discovery in this action. To the contrary, as discussed in the issues above, the plaintiff was preempted from presenting the full factual basis of her cause by the erroneous entry of both a witness disqualification order and a discovery schedule sanction order in the pretrial setting. Under these circumstances, the circuit court erred in disposing of the action on the summary judgment motion.

The judgment of the Morgan County circuit court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

STEIGMANN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID TRAIL, Defendant-Appellant.
    Fourth District
    No. 4—89—0595
    Opinion filed May 17, 1990.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John Turner, State’s Attorney, of Lincoln (Kenneth- R. Boyle, Robert J. Eider man, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, David Trail, was convicted in April 1989 of two counts of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13) and sentenced to consecutive terms of 15 years’ imprisonment. On appeal, defendant argues the following: (1) the trial court erred in denying his motion for severance; (2) the State failed to prove him guilty beyond a reasonable doubt; (3) the trial court erred in refusing to allow his son to testify; (4) the trial court erred in instructing the jury; (5) the prosecutor’s closing argument denied him a fair trial; and (6) the prosecutor’s conflict of interest denied him the effective assistance of counsel.

We affirm.

Defendant was convicted of two' counts of. criminal sexual assault based on acts he allegedly committed upon, his stepdaughters, C.B. and D.B. At trial, C.B., who was then Í9 years old, testified that defendant engaged in anal, oral, and vaginal intercourse with her. The anal intercourse began when she was 10 years old. She testified to repeated instances of vaginal intercourse with defendant from late 1985 through January 1987, when she was 16 and 17 years old. C.B. identified certain People’s exhibits as letters written to her by defendant. These letters suggest an other-than-fatherly relationship between defendant and C.B. Defendant testified that C.B. must have forged the letters, but she denied doing so.

According to C.B., defendant also took nude photographs of her which he placed in a safety deposit box. The police examined the contents of that safety deposit box pursuant to a search warrant on June 1, 1988, at 10:30 a.m., and the box was empty. Earlier that same day, at 9 a.m., defendant had obtained access to that box. The box record showed that defendant had previously obtained access to the box on nine occasions between May 1987 and February 1988, the last such occasion before June 1,1988.

C. B. testified that although neither she nor defendant used contraceptives, she never became pregnant as a result of more than 200 incidents of vaginal intercourse. C.B. testified that she told no one about her sexual activity with defendant, but she thought that her sister, D.B., had, on one occasion, seen her and defendant engaged in sexual activity.

D. B., who was 17 years old at the time of trial, testified that she had witnessed defendant and C.B. engaging in sexual intercourse. D.B. also testified that defendant had engaged in vaginal intercourse with her in 1987 and 1988 when she was 15 years old. As was true with C.B., D.B. never became pregnant despite her using no contraceptives. D.B. told no one about the sexual activity.

Nancy Trail, defendant’s ex-wife and the mother of C.B. and D.B., testified that she never saw the letters allegedly written to C.B. by defendant. She also testified that she did not witness any sexual activity between defendant and her daughters.

A documents examiner for the Illinois State Police crime lab compared the letters allegedly written by defendant to C.B. with handwriting samples identified as coming from defendant and concluded that defendant had written the letters in question. The samples came from handwriting exemplars obtained directly from defendant by a police officer pursuant to a court order and from various checks and notebooks which C.B. and Nancy Trail identified as containing defendant’s handwriting. Defendant acknowledged that most of the writing in the notebooks and on the checks was his, but he also claimed that some of it was not his and that it had been written by his stepdaughters. The handwriting examiner also opined that an attempt had been made to disguise the handwriting in the exemplar obtained by the police officer from defendant.

Defendant testified on his own behalf and denied engaging in sexual activities with either C.B. or D.B. He testified that C.B. often told him she hated him. According to defendant, C.B. threatened to get even with him because sometimes he refused to purchase liquor for her.

Defendant said that he observed C.B. sign his name to various documents. He claimed that portions of some of the checks submitted as known samples of his handwriting contained the handwriting of either C.B. or D.B. However, the cross-examination of defendant demonstrated rather convincingly that his claims regarding these checks were all lies. Defendant also denied writing letters to C.B. or photographing her in the nude.

Defendant attempted to call his 12-year-old son, David, as a witness. An in camera hearing was held wherein David stated that he had seen both C.B. and D.B. copy defendant’s signature and that he had heard his stepsisters talk about how much they hated defendant. David also testified about parties with alcohol held by C.B. and D.B. at their home. The trial court denied defendant’s request to have David testify.

The first issue on appeal is whether the trial court erred in denying defendant’s motion for severance. A defendant may be placed on trial in one proceeding for separate offenses if the offenses are based on the same act or on two or more acts which are part of the same comprehensive scheme (Ill. Rev. Stat. 1987, ch. 38, par. Ill— 4(a)). The trial court has substantial discretion in determining the propriety of joinder. (People v. Terry (1988), 177 Ill. App. 3d 185, 193, 532 N.E.2d 568, 574.) Its determination will not be reversed absent an abuse of discretion. Terry, 177 Ill. App. 3d at 193-94, 532 N.E.2d at 574.

There are no precise criteria for determining whether separate offenses are part of the same comprehensive transaction. (People v. Duncan (1987), 115 Ill. 2d 429, 441, 505 N.E.2d 307, 312.) A common method of operation, proximity in time and location of offenses, a common type of victim, similarity of offenses, and the identity of evidence needed to demonstrate a link between the offenses are some of the factors the courts have considered. (Terry, 177 Ill. App. 3d at 194, 532 N.E.2d at 574-75.) The trial court in the present case, in denying the motion for severance, found “a similarity of parties, setting, circumstances and partially, the time frame involved.” We agree. Defendant was charged with two counts of criminal sexual assault which occurred within the same household during closely related periods of time. The offenses involved similar victims, defendant’s teenage stepdaughters. On the facts of this case, evidence pertaining to one sexual assault count would have been admissible as “other crimes” evidence for the other count on at least the basis of similar modus operandi. We conclude the trial court did not abuse its discretion in trying these offenses together.

We emphasize that where, as here, “other crimes” evidence is' properly admissible, the potential prejudice to a defendant of having the jury decide two separate charges is greatly diminished because the jury is going to be receiving evidence about both charges anyway. While we do not suggest that the admission of “other crimes” evidence should necessarily be determinative of the issue of severance, that admission is nonetheless a significant consideration.

Defendant next argues that the State failed to prove him guilty beyond a reasonable doubt. In support of his claim that the victims’ testimony should not be believed, defendant argues that neither victim tendered a prompt complaint and neither victim became pregnant. However, neither a prompt complaint nor physical evidence, such as pregnancy, is required to sustain a sexual assault conviction. People v. Foster (1990), 195 Ill. App. 3d 926, 951; see also People v. Cole (1990), 193 Ill. App. 3d 990, 550 N.E.2d 723.

In Cole, this court held that the evidence was sufficient to sustain a conviction of aggravated criminal sexual abuse based almost exclusively upon the victim’s testimony. The evidence presented in the instant case, consisting primarily of the victims’ testimony and the incriminating letters identified as having been written by defendant, sufficiently establishes defendant’s guilt beyond a reasonable doubt.

The following observations from Cole are equally applicable to this case:

“The verdicts here reflect the jury’s assessment of the credibility of the witnesses, a function particularly within its province as the fact finder. All the deficiencies in the State’s case now being argued on appeal were similarly argued to the jury which actually saw and heard these witnesses. A reviewing court will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the defendant’s guilt remains. [Citations.] This is not such a case.” Cole, 193 Ill. App. 3d at 995, 550 N.E.2d at 727.

Defendant also appeals the trial court’s refusal to allow his son, David, to testify. Specifically, David was prepared to testify that he had seen the victims forge defendant’s signature, he had heard the victims say they hated the defendant, and he had seen parties with alcohol held by his sisters at their home. The trial court denied defendant’s request, citing David’s age and his eagerness to testify. The trial court also determined that David’s testimony was cumulative and not probative.

To the extent that the trial court barred David’s testimony because of his age (12 years old) and his “eagerness to testify,” the trial court erred. The record demonstrates that both the court and counsel believed an examination of David by the court out of the presence of the jury to be necessary before David could be permitted to testify. We note this trial took place in April 1989 and that section 115 — 14 (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115 — 14), dealing with witness competency, was added to the Code of Criminal Procedure of 1963 by Public Act 85 — 1190, effective January 1, 1989 (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115 — 14; 1988 Ill. Legis. Serv. 1329, 1331 (West)). That new section reads as follows:

“Witness Competency, (a) Every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter, except as provided in subsection (b).
(b) A person is disqualified to be a witness if he or she is:
(1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him or her; or
(2) Incapable of understanding the duty of a witness to tell the truth.
(c) A party may move the court prior to a witness’ testimony being received in evidence, requesting that the court make a determination if a witness is competent to testify. The hearing shall be conducted outside the presence of the jury and the burden of proof shall be on the moving party.” Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115 — 14.

We interpret this new section as a legislative determination to discard the body of law that had developed regarding witness competency, particularly the more rigid of those former rules, such as always requiring competency hearings for prospective witnesses under 14 years of age.

In the present case, there is no suggestion of any kind that David was not a competent witness under section 115 — 14(b) (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115 — 14(b)).

Similarly, the court erred in barring David’s testimony to the extent that it engaged in a weighing of that testimony and found it lacking. It is not the trial court’s role to evaluate witnesses and to permit the testimony of only those witnesses the court finds credible. Credibility determinations are peculiarly within the province of the jury and may never be the basis to reject otherwise admissible testimony.

Even though we find that the trial court erred by excluding David’s testimony, we conclude that this error is not reversible on these facts. This error, in our judgment, could not reasonably have affected the result. (See People v. Carlson (1982), 92 Ill. 2d 440, 442 N.E.2d 504.) Had David testified, there is no likelihood whatsoever that defendant would have been acquitted.

In making this determination, we view David’s testimony as being either substantially cumulative to evidence already before the jury or nonprobative. David testified in camera that C.B. and D.B. hated his father; yet, the ill will they bore him, especially C.B.’s ill will, was already evident. David said he saw C.B. and D.B. forge his father’s signature when they needed a note from a parent for having missed school; yet, he never claimed to have seen either C.B. or D.B. forge his father’s name to a check or write in his father’s notebooks. David said parties involving C.B. and D.B. and alcohol at their home were sometimes held; this testimony, however, was probative of nothing.

The record also reveals that defense counsel was not at all certain whether he would even call David to testify. Indeed, it was defense counsel who requested the in camera examination of David in part, as he explained, to find out what David was going to say because he “had no idea what he is going to testify to. He may testify to matters that would harm us.” Defense counsel’s ardor to call David to testify measurably increased once the trial court indicated that David would not be so permitted. At that point, defense counsel registered his “strong objection” to the court’s ruling.

Defendant also challenges the trial court’s failure to instruct the jury that defendant could not be convicted of sexual misconduct occurring prior to July 1, 1984, the date the crimes charged were enacted. However, defendant did not tender a jury instruction relating to the pre-July 1984 conduct and failed to object to the instruction setting forth the elements of criminal sexual assault without mention of the issue of pre-July 1984 conduct. As a result, defendant has waived this issue. People v. Enoch (1988), 122 Ill. 2d 176, 187, 522 N.E.2d 1124, 1129, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

Furthermore, count I of the information charges defendant with sexual assault occurring during late 1985 through January 1987, and count II alleges conduct committed from 1987 until May 31, 1988. This case is clearly distinguishable from the authority cited by defendant, People v. Wasson (1988), 175 Ill. App. 3d 851, 530 N.E.2d 527, because Wasson involved a defect in the charging instrument. The present case, on the other hand, involves only the presentation of corroborating evidence which arose (in part) prior to the effective date of the new statute. Thus, on the merits, no error resulted.

Defendant also alleges that certain statements made in the prosecutor’s closing argument denied him a fair trial. Specifically, defendant cites as error the prosecutor’s characterization of defense counsel’s argument as a smoke screen, his comment about defense counsel’s failure to call a witness, and a statement of the prosecutor’s personal opinion. However, defendant failed to object to any of the prosecutor’s argument at trial. Again, we are presented with an argument by defendant’s counsel on appeal regarding alleged grievous improprieties of the prosecutor’s closing argument; yet, defendant’s trial counsel, who the record shows presented a vigorous defense, apparently found the prosecutor’s closing argument sufficiently bland as to not warrant a single objection.

Unless the prosecutor’s remarks constitute plain error, defendant has waived consideration of this issue on appeal. (People v. Hall (1986), 114 Ill. 2d 376, 418, 499 N.E.2d 1335, 1353, cert. denied (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618.) Upon our careful consideration of the prosecutor’s closing argument, we find it to be far from plain error. Indeed, we are not convinced that any of the prosecutor’s argument was improper.

Finally, defendant argues that he was denied the right to effective and conflict-free counsel because the prosecutor had previously represented defendant on similar charges. Specifically, the prosecutor represented the defendant in 1987 on a charge of attempt (criminal sexual abuse) and delivery of alcohol to minors.

An attorney must not assist in the prosecution of a criminal case if he has acquired a knowledge of facts upon which the prosecution is predicated or if the cases are closely interwoven. (See People v. Curry (1971), 1 Ill. App. 3d 87, 91, 272 N.E.2d 669, 672.) However, the 1987 case did not involve defendant’s stepdaughters and was based on a set of facts entirely different from those in the present case. Accordingly, we reject the argument that defendant was denied effective or conflict-free counsel.

Defendant further contends that the prosecutor’s mere status as his former counsel renders that counsel ineligible to prosecute him in an unrelated manner. We do not agree, and we find no basis in law or experience for such a novel extension of sixth amendment rights. See People v. Franklin (1979), 75 Ill. 2d 173, 180, 387 N.E.2d 685, 688.

Affirmed.

LUND and GREEN, JJ., concur.


text:
    COHEN FURNITURE COMPANY, Plaintiff-Appellant, v. BRYAN SUMPTER, Defendant (Farmer’s Market, Appellee).
    Fourth District
    No. 4—89—0940
    Opinion filed May 17, 1990.
    Jacqueline M. Gerber, of Brown, Hay & Stephens, of Springfield, for appellant.
    Daniel E. Kepner, of Kepner & Kepner, of Springfield, for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Cohen Furniture Company appeals from an order of the Sangamon County circuit court vacating a default judgment and quashing a citation to discover assets entered against Farmers Market as the alleged employer of defendant Bryan Sumpter. We affirm.

On January 17, 1989, plaintiff filed a small claims complaint against defendant to recover outstanding payments on a charge account. A default judgment in the sum of $1,301.03 plus costs was entered against defendant on January 27, 1989.

On March 21, 1989, plaintiff proceeded with an affidavit for a wage-deduction order directed against Farmers Market as the alleged employer of defendant. A wage-deduction summons issued and was served upon assistant manager Tim Tyson at that business on March 23, 1989. The proof of service showed service as being made on a corporate defendant by leaving a copy of the complaint and summons with an agent of the corporation.

On July 7, 1989, plaintiff filed a motion for conditional judgment based on the failure of Farmers Market to answer its interrogatories under the wage-deduction order. A summons to confirm the conditional judgment was issued and served upon assistant manager Dan Phillips at that business on July 11, 1989. The proof of service once again noted service on a corporate defendant. A final judgment in the sum of $2,095.93 was entered against Farmers Market on August 11, 1989.

On August 21, 1989, a citation to discover assets was issued against Paul E. Edwards, d/b/a Farmers Market. The citation was served upon assistant manager Tim Tyson at that business on August 22, 1989. Proof of service again noted service on a corporate defendant.

On September 1, 1989, Edwards responded with a petition to vacate the judgment and to quash the citation to discover assets. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401.) In the petition, supported by affidavit, Edwards alleged the circuit court lacked jurisdiction because he had not been properly served in his capacity as the sole proprietor of Farmers Market. The circuit court allowed the petition following a hearing on November 3, 1989. The trial court found Paul Edwards had not been properly served with the wage deduction or the summons to confirm the conditional judgment.

On appeal, plaintiff contends the circuit court erred in allowing the petition. Plaintiff argues Edwards was provided with adequate notice of the action, despite any misnomer in summons, through corporate service upon his management agents at Farmers Market. (See AZ Equipment Co. v. Moody (1980), 88 Ill. App. 3d 187, 410 N.E.2d 438.) We disagree.

A court obtains jurisdiction over a person only after proper service of summons. (LaMotte v. Constantine (1980), 92 Ill. App. 3d 216, 217, 416 N.E.2d 23, 25.) In the case of an individual person, as here, summons may be issued through either personal or abode service. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 203(a).) A judgment rendered without such service is void irrespective of whether that person had actual knowledge of the court proceedings. (Kappel v. Errera (1987), 164 Ill. App. 3d 673, 677, 518 N.E.2d 226, 229.) The service here was not upon Edwards personally nor was it abode service.

These general jurisdiction rules are expressly excepted in the case of misnomer. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 401(b).) A judgment is valid where circumstances indicate the individual actually served notice is the person intended to be sued, even though the issued process does not refer to him by his correct name. Ingram v. MFA Insurance Co. (1974), 18 Ill. App. 3d 560, 566, 309 N.E.2d 690, 695.

This is not a case of misnomer. (See Leonard v. City of Streator (1983), 113 Ill. App. 3d 404, 447 N.E.2d 489; Hoving v. Davies (1987), 159 Ill. App. 3d 106, 512 N.E.2d 729.) The record discloses plaintiff was mistaken in its subjective belief as to who owned and operated Farmers Market. Plaintiff served the wage-deduction summons and notice of its judgment on the wage-deduction order against Farmers Market as a corporate entity. The real party in interest was not Farmers Market, but Edwards, who operated the business as a sole proprietorship. Summons was not directed against Edwards in that capacity. Plaintiff did not merely misname the right party, but named the wrong party, thereby depriving the court of jurisdiction.

The court did not err in allowing the petition to vacate the default judgment and to quash the citation to discover assets entered against Farmers Market. Accordingly, we need not address the alternate contentions of plaintiff in our disposition of this matter.

The order of the Sangamon County circuit court is affirmed.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY FOEHRER, Defendant-Appellant.
    Fourth District
    No. 4—89—0640
    Opinion filed May 17, 1990.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On March 20, 1989, in the circuit court of Vermilion County, defendant Jerry Foehrer admitted violating the provisions of his probations for the offenses of burglary and attempt (burglary). (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 1, 8 — 4.) He was sentenced to five years’ imprisonment on the burglary and three years’ imprisonment on the attempt (burglary) conviction, with said sentences to run consecutively. He now appeals, alleging he was denied due process of law by not being sufficiently admonished at the time he admitted the violations. We disagree and affirm.

On February 4, 1988, defendant pleaded guilty to the burglary offense. At that time he was admonished as to the possible penalties. The sentencing hearing was continued. On June 8, 1988, defendant was convicted, following a jury trial, of the attempt (burglary) offense which occurred while he was on bond in the first case.

On June 17, 1988, a consolidated sentencing hearing was held. At that time, the State sought to have the court impose consecutive prison sentences. The court instead placed defendant on probation for each offense. On December 23, 1988, a petition to revoke the probations was filed. On March 20, 1989, defendant appeared and indicated a desire to admit the asserted violations. The court, after some admonishments, accepted the admission. Defendant later received the consecutive prison sentences.

Defendant appeals, alleging he was denied his basic due process rights by these admonitions. Due to the qualitative difference between a probation revocation and a criminal proceeding, Supreme Court Rule 402 (107 Ill. 2d R. 402), which establishes the procedure for acceptance of guilty pleas, is not applicable to probation revocation proceedings. (People v. Beard (1974), 59 Ill. 2d 220, 226-27, 319 N.E.2d 745, 748.) This court, in addressing what admonitions should be given to protect a defendant’s due process rights, stated:

“[W]e believe that in order to protect a defendant’s due process rights, and to make a conscientious judicial determination of the charge, the court must at least determine that the defendant knows what the specific allegations in the petition are, that he knows that he has a right to a hearing with counsel present, that he is not making the admission on the basis of any promises or coercion, and that he understands the consequences of his admission.” People v. Followell (1987), 165 Ill. App. 3d 28, 31, 518 N.E.2d 706, 707.

It is uncontested that defendant was advised that he had the right to a hearing wherein the State would have to prove the allegations by a preponderance of the evidence, the right to confront witnesses, the right to testify, and the right to call witnesses on his own behalf. Defendant was represented by counsel. The court also explained the basis of the petition to revoke defendant’s probation, to which defendant indicated his understanding.

Defendant maintains, however, that the court failed to determine if the admission was based on any promises or coercion, or if defendant understood the consequences of his admission. He observes the court never inquired as to whether he had received any promises or threats. He also points out that the court never explained the possible sentences to be imposed upon a revocation of the probation. He believes these absences run afoul of Followell and require reversal. However, defendant misapprehends the nature of that decision and is attempting to expand the required admonitions to an extent that is unwarranted. In Followell, the court quoted from the supreme court’s opinion in People v. Pier (1972), 51 Ill. 2d 96, 281 N.E.2d 289, which indicated broad due process protections exist for admitting probation revocations. However, the court in People v. Beard (1974), 59 Ill. 2d 220, 319 N.E.2d 745, observed the language in Pier should be limited to the factual situation before it and held that the minimum requirements of due process, which do not require the application of Rule 402, are applicable to probation revocation proceedings. Accordingly, it is to Beard to which we must look to better understand the requirements of Followell.

Beard involved a number of consolidated cases. One is very similar to that now before us. As the court explained:

“Similarly, defendant Blake maintains that at no time during the revocation proceedings was he advised as to the minimum and maximum sentences which could be imposed for theft in excess of $150 upon the revocation of his probation, his right to remain silent and not admit to the violation charge, and of the State’s burden to prove the violation by a preponderance of the evidence at a full evidentiary hearing where defendant could confront adverse witnesses and call witnesses in his own behalf. Thus Blake concludes that he was denied due process of law.” (Beard, 59 Ill. 2d at 223, 319 N.E.2d at 746.)

In holding there was no error, the court stated:

“The record in cause No. 46382 indicates that defendant Blake was informed of the possible penitentiary sentence which could be imposed when he pleaded guilty and requested probation, and there has been no attempt to question the validity of the guilty plea proceedings. The trial court at the time the guilty plea was entered further informed defendant of his right to confrontation and his right to present evidence in defense of the charge. Thereafter, during the first hearing on the probation revocation petition defense counsel was appointed and he immediately entered a denial of the allegation contained therein and requested a continuance. *** The record further reveals that during the course of the proceedings the trial court instructed Blake that the violation alleged in the revocation petition was a felony and an admission thereto would probably result in probation revocation. A factual basis for the violation was established, and Blake stated that he had voluntarily confessed his participation in the burglary to the police and was now admitting his participation for the sole reason that he did commit the offense. There is no contention made that any promises were made to Blake in an effort to induce this admission. We find that the entire record supports the conclusion that Blake was afforded due process of law during the revocation proceedings in which he voluntarily admitted the probation violation.” Beard, 59 Ill. 2d at 227-28, 319 N.E.2d at 748-49.

In the case now before us, defendant repeatedly indicated a desire to admit the allegations of the petition. There is no argument made that any promises were made to him or that he was coerced in any manner. This is sufficient. While Followell contains language which indicates the court failed to inquire of the defendant in this regard, this is simply an explanation of what transpired and does not impose such a requirement on the court. Admittedly, it would have been clearer, and perhaps preferable, for the court to have asked defendant this directly. However, according to Beard, this is not required.

Similarly, defendant was advised of the possible penalties at the time he originally pleaded guilty. At the consolidated sentencing hearing, the State argued for the imposition of consecutive sentences. In the record defendant acknowledged having the penalties explained to him earlier, and the docket sheet also indicates this was done. This is adequate. There is no requirement that defendant be advised of the statutory range. All that is necessary is that he understands the consequence of his admission.

We find that, as in Beard, a review of the entire record supports the conclusion that defendant was afforded due process of law and entered a voluntary admission to the petition to revoke his probations.

Affirmed.

KNECHT, P.J., and GREEN, J., concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TROY COMBS, Defendant-Appellant.
    Fourth District
    No. 4—89—0359
    Opinion filed May 17, 1990.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Vince Moreth, State’s Attorney, of Carlinville (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

On March 4, 1986, defendant pleaded guilty before the circuit court of Macoupin County to a charge of aggravated battery. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4(a).) On the same date, defendant was sentenced to 30 months’ probation.

Subsequently, defendant was found guilty in a jury trial, involving an unrelated incident, of aggravated criminal sexual abuse and criminal sexual abuse. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 16(c)(1), 12— 15(a)(2).) As a result, the State filed a petition to revoke defendant’s probation, and on December 28, 1988, the trial court revoked defendant’s probation. On February 27, 1988, defendant was sentenced to a term of imprisonment of five years. The written judgment order was entered on March 2,1989.

Defendant has now appealed. The State’s responsive brief challenged the jurisdiction of this court to consider the appeal because of the late filing of the notice of appeal. In his reply brief, defendant suggested this court should consider the matter anyway because the late filing of the notice of appeal was due to the ineffective assistance of counsel. The State has filed a motion to strike that portion of defendant’s reply brief, and defendant has filed a response thereto. Both the motion and the defendant’s response have been taken with the case. Because it is clear the notice of appeal was not timely filed and the court is without jurisdiction to consider the appeal, the motion is denied as moot.

It is without dispute that at the sentencing hearing following the revocation of defendant’s probation, defendant was admonished by the court that he had 30 days to initiate appeal. Instead of filing a notice of appeal immediately, however, the defendant, on March 10, 1989, filed a document entitled “a motion to withdraw plea of guilty and to vacate judgment thereon.” Defendant’s motion was denied on April 25, 1989. The notice of appeal was filed on May 1, 1989. No motion to file a late notice of appeal has been filed. 107 Ill. 2d R. 606(c).

Illinois Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) requires that a motion to withdraw a guilty plea be filed within 30 days of the imposition of a sentence for a conviction based on a guilty plea. Except for issues relating to sentencing, the filing of such a motion is a condition precedent to the maintenance of a proper appeal. (People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.) However, it was never contemplated by the rule, as shown by the ordinary meaning of the language employed, that the defendant be given an opportunity three years later to vacate the earlier guilty plea merely because defendant’s probation was revoked. If defendant wanted to raise any issues concerning the guilty plea, defendant should have done so within 30 days of being sentenced to probation. Once that order has become final, defendant cannot attack the guilty plea following revocation of probation.

In an appeal from a revocation of probation, the only issues which ordinarily may be raised are issues concerning the propriety of the revocation of probation and the subsequent sentence of imprisonment. The guilty plea itself may not be collaterally attacked (People v. Willis (1978), 64 Ill. App. 3d 737, 381 N.E.2d 799) unless the guilty plea was accepted as a result of a mistake of law on the part of the trial judge. (People v. McCarty (1983), 94 Ill. 2d 28, 445 N.E.2d 298.) Such an argument is not made by defendant in this appeal. As a result, the motion to withdraw the guilty plea is unnecessary and superfluous. Furthermore, the filing of such a motion does not toll the running of the time for filing a notice of appeal.

Defendant does not argue that the motion filed following the revocation of probation can be construed in any way as a motion to reconsider the revocation of probation or the sentence imposed thereon, such that the motion might be construed in such a way or to toll the running of the time for filing the notice of appeal. Nor could such an argument be made in good faith. The main focus of the motion is clearly directed at having the guilty plea set aside as involuntarily made and for a trial to be conducted in lieu thereof.

Instead, the defendant attempts to convince this court to consider the appeal anyway because the failure to file the notice of appeal may have been due to ineffective assistance of counsel. Defendant relies on People v. Aliwoli (1975), 60 Ill. 2d 579, 328 N.E.2d 555, and other cases, in which the omission of the attorney involved the filing of a document other than the failure to timely file the notice of appeal. The filing of the notice of appeal is, however, unlike the filing of other documents, the step in the process which vests jurisdiction in the appellate court. (People v. Carter (1980), 91 Ill. App. 3d 635, 415 N.E.2d 17; 107 Ill. 2d R. 606(a).) In order to invoke the jurisdiction of this court, defendant must have filed the notice of appeal within 30 days of the final order sentencing defendant following the revocation of defendant’s probation or within 30 days of an order disposing of a timely filed motion directed against the order from which the appeal is taken, specifically the orders of the circuit court revoking defendant’s probation and sentencing defendant. 107 Ill. 2d R. 606(b).

The crux of the problem here is that defendant’s motion, although timely filed, was not directed against the appealable order, but was directed against the earlier conviction entered following the guilty plea. Since a reviewing court cannot consider contentions regarding the original conviction in an appeal from a probation revocation (People v. Susberry (1979), 68 Ill. App. 3d 555, 386 N.E.2d 361; In re Tucker (1976), 45 Ill. App. 3d 728, 359 N.E.2d 1067; People v. Nordstrom (1966), 73 Ill. App. 2d 168, 219 N.E.2d 151, appeal dismissed (1967), 37 Ill. 2d 270, 226 N.E.2d 19), then the filing of the motion by defendant in this case did not toll the running of the 30-day period for filing the notice of appeal.

The notice of appeal having not been timely filed, this court is without jurisdiction to consider the issues raised on appeal even though ineffective assistance of counsel might be involved. The proper remedy for defendant is the filing of a petition for post-conviction relief. Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.

For the foregoing reasons, the above-captioned appeal is hereby dismissed.

Appeal dismissed.

STEIGMANN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL JOHNSON, Defendant-Appellee.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID W. CARTER, Defendant-Appellee.
    Fourth District
    Nos. 4—89—0181, 4—89—0182 cons.
    Opinion filed May 17, 1990.

      Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellees.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen and Sally L. Dilgart, Assistant Attorneys General, of Chicago, of counsel), for amicus curiae.

   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

This consolidated appeal involves the application of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, to correctional center inmates who make admissions to an informant.

This case involves the murder of Robert Taylor, the superintendent at Pontiac Correctional Center in Pontiac, Illinois. In the course of that murder investigation, the prosecution obtained an eavesdrop order to tape conversations between the inmate suspects and an informant visiting them at the prison. The suspects ultimately implicated themselves in a gang conspiracy to solicit the murder of Taylor.

The suspects, David W. Carter and Michael Johnson, were indicted on multiple counts of conspiracy (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 2(a)), solicitation (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 1(a)), and murder (first degree) (Ill. Rev. Stat. 1987, ch. 38, pars. 9— 1(a)(1), (a)(2)). Prior to trial, Carter and Johnson filed motions to suppress the tapes of their respective conversations with the inmate informant. At the consolidated suppression hearing, the defense argued the admission of these conversations, taped in the absence of Miranda warnings, would violate the constitutional privilege against compulsory self-incrimination. (U.S. Const., amend. V.) The Livingston County circuit court ordered suppression of the tapes in accordance with the dictates of People v. Perkins (1988), 176 Ill. App. 3d 443, 531 N.E.2d 141, appeal denied (1989), 125 Ill. 2d 572. The prosecution now appeals from the suppression orders of the circuit court. 107 Ill. 2d R. 604(a)(1).

The sole issue on review is whether the circuit court erred in suppressing the tapes of incriminating conversations between the inmate suspects and the inmate informant. We reverse the suppression orders of the circuit court.

On appeal, the prosecution argues the inmate suspects were not entitled to Miranda warnings because they were not subjected to a custodial interrogation when their conversations with the inmate informant were taped at the prison. The prosecution further argues Perkins is an aberrational application of the Miranda decision.

In Perkins, the police obtained incriminating statements via conversations between the inmate defendant, an inmate informant, and an Undercover agent at a jail. At the ensuing suppression hearing, the circuit court ruled the conversation constituted custodial interrogation for the protection purposes of Miranda. The Fifth District Appellate Court affirmed the suppression order of the circuit court on review.

The circuit court’s order here is consistent with Perkins but we decline to follow that decision because we believe it was wrongly decided. Inmate suspects who choose to meet with and discuss their criminal activity with an informant are not subject to the coercive custodial environment accompanying an interrogation which was the reason for Miranda. See Kamisar, “Brewer v. Williams, Massiah, and Miranda: What Is ‘Interrogation’? When Does It Matter?” 67 Geo. L.J. 1, 63-64 (1978) (hereinafter Kamisar).

Miranda warnings must precede custodial interrogation. (Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706-07, 86 S. Ct. at 1612.) Absent waiver of such warnings, all incriminating conversations obtained through interrogation will be inadmissible as evidence at trial. (Miranda, 384 U.S. at 479, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.) The rationale of Miranda is that the coercion inherent in the custodial interrogation environment would “subjugate the individual to the will of his examiner,” thereby undermining the constitutional privilege against compulsory self-incrimination. Miranda, 384 U.S. at 457, 16 L. Ed. 2d at 714, 86 S. Ct.,at 1619.

Custodial interrogation means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.) The inmate suspects here, incarcerated on unrelated charges, were already in custody in the literal sense. (See Mathis v. United States (1968), 391 U.S. 1, 20 L. Ed. 2d 381, 88 S. Ct. 1503.) We do not believe, however, a suspect is automatically entitled to Miranda warnings by virtue of his inmate status. (See Cervantes v. Walker (9th Cir. 1978), 589 F.2d 424, 427; United States v. Conley (4th Cir. 1985), 779 F.2d 970, 972-73, cert. denied (1986), 479 U.S. 830, 93 L. Ed. 2d 61, 107 S. Ct. 63.) To the contrary, custody in the prison setting “necessarily implies a change in the surroundings of the [inmate] which results in an added imposition on his freedom of movement.” Cervantes, 589 F.2d at 428.

At the time of their admissions, the inmates were visiting with the informant in a large, open visiting room. Their freedom of movement was greater than when they were in their living units. Their visitor, an informant, was not an overbearing examiner who used the environment to subjugate their will to his own. Their visitor was an individual they chose to place on their visitor’s list and chose to accept a visit from.

The inmates cannot attribute their mistaken belief as to the true role of the informant to any kind of coercion under the circumstances here. (See Kamisar, 67 Geo. L.J. at 65.) The rationale underlying Miranda is that a warning will help overcome the pressures of interrogation. There were no pressures here. The informant had successfully concealed his status so there was no pressure to answer his questions or converse with him. The location of the conversation was the same place any inmate would meet any visitor so the environment added no pressure. The inmates knew the investigation had focused on them as suspects following their transfer from the general population into a segregation unit on death row at the prison. The inmates nevertheless agreed to visit with the informant based solely on the strength of their common gang affiliation. Although they could have terminated that visit at any time, they instead entered into a conversation about the crime with the informant, unwittingly implicating themselves in a gang conspiracy to solicit the murder of Taylor. The inmates thus voluntarily accepted the attendant risk the informant would reveal their wrongdoing. See Hoffa v. United States (1966), 385 U.S. 293, 302-03, 17 L. Ed. 2d 374, 382-83, 87 S. Ct. 408, 413-14; see also United States v. White (1971), 401 U.S. 745, 751-52, 28 L. Ed. 2d 453, 458-59, 91 S. Ct. 1122, 1125-26.

The circuit court is presumed to have correctly ruled on a motion to suppress, but in this case, we find there was no custodial interrogation and the protection of Miranda did not apply. Under these circumstances, the circuit court erred in suppressing the tapes of incriminating conversations between the inmate suspects and the inmate informant.

The order of the Livingston County circuit court is reversed.

Reversed.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE GEIGER

text:
      In re MARRIAGE OF CHARLES J. COLOMBO, Petitioner-Appellant and ROSALIE COLOMBO, Respondent-Appellee.
    Second District
    No. 2—89—0625
    Opinion filed May 16, 1990.
    Samuel Alfassa, of Chicago, for appellant.
    Connie R. Gessner, of Lombard, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The petitioner-husband, Charles J. Colombo, appeals from the court’s order granting judgment to the respondent-wife, Rosalie Colombo. We reverse and remand.

The parties’ marriage was dissolved in 1984. The dissolution included the parties’ property settlement agreement which provided that the husband would pay permanent maintenance of $800 per month, based upon his annual income of $23,000. The agreement further provided for “the right to reduction [in maintenance] if the HUSBAND’S income decrease warrants such reduction.” The husband’s occupation was as solo owner and operator of a newspaper distribution business.

In November 1988, the husband entered into a written agreement by which he would retire. Under that agreement, effective January 1989, a third party would pay the husband $800 monthly for the right to operate the husband’s business, paying all expenses of the business and retaining all income. In March 1989, the husband became 65 years old, filed for social security, and filed a petition to reduce his maintenance obligation. In the petition, he alleged that there had been a substantial change in circumstances justifying a change in maintenance.

At the hearing on the petition, the husband testified that he had' decided to retire after his doctor advised him to stop working at the business. He had been hospitalized with chest pains and had been diagnosed as suffering an anxiety neurosis. The husband further testified that he had tried unsuccessfully to sell his business to the Chicago Sun-Times or the Chicago Tribune; he also was unable to secure more than the agreed $800 monthly payments for rights to the business. According to the husband, his monthly social security benefits of $709 began in April 1989.

At the close of the husband’s case, the wife moved for judgment in her favor. The court granted the wife’s motion, and the husband brought this appeal.

In ruling, in a nonjury case, on a motion for judgment at the close of the plaintiff’s evidence, the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1110.) The court must determine whether the petitioner has presented a prima facie case and grant the motion only if he has not done so. (Juzwik v. Juzwik (1986), 140 Ill. App. 3d 644, 648-49.) On appeal, we will not disturb the court’s decision unless it is contrary to the manifest weight of the evidence. 140 Ill. App. 3d at 649.

The Illinois Marriage and Dissolution of Marriage Act provides for modification of maintenance obligations, “upon a showing of a substantial change in circumstances.” (Ill. Rev. Stat. 1987, ch. 40, par. 510(a).) Whether a spouse may rely on his retirement as a change in circumstances justifying modification of maintenance depends on the circumstances of the individual case; relevant factors include his age, his health, his motives and timing for the retirement, his ability to pay maintenance after retirement, and the other spouse’s ability to provide for himself. In re Marriage of Smith (1979), 77 Ill. App. 3d 858, 863.

The husband showed a substantial change in his financial circumstances. At the time he filed his modification petition, his monthly income including his social security benefit was approximately $1,500. Even if that full amount is to be considered to establish the proper level of maintenance, something which the husband disputes, that income level represented a substantial decrease from the $23,000 annual income upon which maintenance was originally determined.

Further, the evidence regarding the circumstances of the husband’s retirement did not negate the appropriateness of a modification of maintenance. The husband presented evidence that he had chosen to cease working upon the advice of his physician and following heart pains significant enough to cause his hospitalization. According to the husband’s undisputed evidence, his business required work seven days a week, with no vacations and time off only while he was hospitalized. Counterbalancing the wife’s suggestion that the husband’s physical condition was not so substantial as to require his retirement, the husband demonstrated that his retirement occurred only three months prior to his 65th birthday. Also, there was no suggestion of any malicious motive associated with the husband’s retirement.

We find that the court’s judgment is contrary to the manifest weight of the evidence. The husband’s evidence established a substantial change in his financial circumstances. His evidence also demonstrated a fortuitous health condition supporting his decision to retire. Further, we find that to the extent that the 65-year-old husband’s decrease in income was voluntary, it was under circumstances reflecting his “right, at some point, to retire or substantially reduce his working hours” (emphasis in original) (Smith, 77 Ill. App. 3d at 863). The husband presented a proper prima facie case.

Based on the foregoing, the judgment of the circuit court of Du Page county is reversed, and the cause is remanded for proceedings to allow the wife to present her case.

Reversed and remanded.

McLaren and INGLIS, JJ., concur.