author: PRESIDING JUSTICE UNVERZAGT

text:
    BETTY MIJATOV, Plaintiff-Appellant, v. FRANKLIN GRAVES, Defendant-Appellee.
    Second District
    No. 2 — 89—0037
    Opinion filed September 8, 1989.
    Rehearing denied October 27, 1989.

      Thomas J. Tartaglia, of River Grove, and Bryan J. O’Connor, Jr., of Nevoral & Corrigan, Ltd., of Chicago, for appellant.
    Glen E. Amundsen, of Querrey & Harrow, Ltd., of Waukegan, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Betty Mijatov, appeals from a summary judgment entered in the circuit court of Lake County, in favor of defendant, Franklin Graves. Plaintiff raises one issue on appeal: whether an employee who has entered into a lump-sum settlement agreement of a worker’s compensation claim may recover damages from a co-worker in a common-law tort suit.

Plaintiff filed a three-count complaint alleging that defendant and plaintiff were employed by the Illinois Tollway Authority (Tollway Authority) and that while they were at work, defendant kicked plaintiff, injuring her. Count I alleged that the act was intentional; count II alleged that it was willful and wanton; and count III alleged that it was negligently committed.

Defendant filed a motion for summary judgment on the basis that the incident occurred while plaintiff and defendant were on a paid break; that plaintiff was in the course of her employment at the time the incident occurred; and that plaintiff filed for and collected worker’s compensation as a result of her injury. Defendant argued that plaintiff was precluded from suing for civil damages since plaintiff had already collected compensation for her injury under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.). Defendant submitted excerpts from plaintiff’s discovery deposition in which she admitted that she filed the worker’s compensation claim in the belief that the injury occurred in the scope of her employment and that she recovered $4,000 from worker’s compensation. Defendant also submitted a copy of the settlement agreement entered into between plaintiff and the Tollway Authority. The terms of the settlement provided:

“Respondent expressly denied that the Petitioner was injured while working for Respondent on April 24, 1986. In order to forsake further litigation, Respondent offers to pay and Petitioner agrees to accept the sum of $4,000.00 in full and final settlement of all claims relative to an alleged injury of April 24, 1986. Petitioner expressly waives review under Section 19(h) and 8(a) of the Illinois Workmen’s Compensation Act.”

In her response to the motion, plaintiff argued that her claim was not barred because the Tollway Authority denied that the injury arose in the course of her employment. Plaintiff also argued that her claim should be allowed because she settled for less than her actual medical expenses and was therefore never compensated by the Tollway Authority for her injury. Plaintiff asserted that there was a genuine issue of material fact regarding whether the injury arose out of the course of her employment. The circuit court granted defendant’s motion, and plaintiff timely filed this appeal.

Summary judgment should be granted when the pleadings, depositions, admissions on file, and affidavits present no genuine issue of material fact. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) In deciding a summary judgment motion, the court must construe the pleadings, depositions, and affidavits liberally in favor of the opponent and strictly against the movant. (In re Estate of Whittington (1985), 107 Ill. 2d 169, 177.) Summary judgment is an expeditious method of disposing of a lawsuit and should only be allowed when the right of the party moving for summary judgment is free from doubt. (Kelman v. University of Chicago (1988), 166 Ill. App. 3d 137, 141.) Although a plaintiff has an affirmative duty to present evidence establishing a cause of action when the defendant moves for summary judgment, the plaintiff is not required to prove his case at that stage. Knief v. Sotos (1989), 181 Ill. App. 3d 959, 963.

Plaintiff contends on appeal that there is a genuine issue of material fact as to whether she was in the course of her employment when defendant kicked her. An employee who files a claim under the Workers’ Compensation Act (Act) is limited by sections 5(a) and 11 of the Act (Ill. Rev. Stat. 1987, ch. 48, pars. 138.5(a), 138.11) to the recovery available under the Act. Section 5(a) of the Act provides in part:

“No common law or statutory right to recover damages from the employer, his insurer, his broker, *** or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a).)

The Act further limits the employee’s remedies as follows:

“The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer *** for accidental injuries sustained by any employee arising out of and in the course of the employment ***.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.11.)

To avoid the effect of these sections, plaintiff would have to prove any of the following: (1) the injury was not accidental; (2) the injury did not arise from the employment; (3) the injury was not received during the course of the employment; or (4) the injury was noncompensable under the Act. Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 237.

Injuries inflicted intentionally by a co-worker are accidental and compensable under the Act if the injuries arise out of and in the course of the employment. (Fregeau v. Gillespie (1983), 96 Ill. 2d 479, 483.) The court in Fregeau determined that if an employee has been compensated for an injury under the Act, he cannot recover under a common-law intentional tort suit against a co-worker. Fregeau, 96 Ill. 2d at 486.

Under Collier and Fregeau it is clear that, if plaintiff has already recovered under the Act, she is barred from collecting civil damages from defendant. Plaintiff, however, argues that Collier and Fregeau are distinguishable because in both of those cases the injured employee “undeniably acknowledged” receiving benefits under the Act, whereas plaintiff does not acknowledge the receipt of benefits. According to plaintiff, this is significant because in spite of her assertion that she was injured in the course of her employment, the Tollway Authority never admitted that allegation and it was therefore never adjudicated by the Industrial Commission. Plaintiff urges us to find that since it was never adjudicated, the question of whether she was injured in the course of her employment existed in the common-law litigation.

Plaintiff based her claim for worker’s compensation on the position that she was injured in the course of her employment, then assumed the contrary position for the civil suit against defendant. This conduct is prohibited by the rule of judicial estoppel which, precludes a party from adopting inconsistent positions in separate legal proceedings. (Giannini v. First National Bank (1985), 136 Ill. App. 3d 971, 983.) This doctrine was designed to promote the truth and prevent litigants from deliberately shifting positions to suit the exigencies of the moment. Department of Transportation v. Coe (1983), 112 Ill. App. 3d 506, 510.

Plaintiff also argues that the exclusivity provisions of the Act do not apply because she did not receive an “award” under the Act, but instead entered into a lump-sum settlement agreement. We find this argument to be without merit. Where a plaintiff has collected compensation on the basis that her injury was compensable under the Act and pursuant to an agreement executed in lieu of a common-law or statutory claim, that lump-sum settlement attains the status of an award, and the plaintiff is precluded from subsequently suing for civil damages. (Sims v. Teepak, Inc. (1986), 143 Ill. App. 3d 865, 871.) Plaintiff agreed to the terms of the settlement and the amount of compensation. She cannot now seek additional compensation in a civil suit merely because she agreed to an amount less than she might have received had the claim been fully adjudicated before the Industrial Commission.

Since plaintiff accepted the award on the basis that her injury arose in the course of her employment, there existed no question of fact in that regard. We therefore conclude that the trial court properly granted summary judgment in favor of defendant.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

NASH and DUNN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER REDISI, Defendant-Appellant.
    Second District
    No. 2 — 89—0060
    Opinion filed September 27, 1989.

      Julius Lucius Echeles and Frederick F. Cohn, both of Chicago, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Following a jury trial, defendant, Peter Redisi, was convicted of home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11). The trial court sentenced defendant to a 45-year extended term of imprisonment. Defendant appealed, and this court affirmed the conviction but vacated the sentence and remanded the cause for imposition of a nonextended term of imprisonment. (People v. Redisi (1988), 172 Ill. App. 3d 1003.) Defendant was subsequently resentenced to a 30-year term of imprisonment after the trial court denied his motion for a substitution of judge (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5(a)). Defendant appeals, contending that it was error for the trial court to deny his motion for a substitution of judge at the resentencing stage of the proceedings. We agree. We therefore vacate the amended judgment and sentence entered on January 6, 1989, and remand the cause for resentencing proceedings consistent with this opinion.

After this court first remanded the cause for resentencing, the cause was placed on the calendar of Judge Harry D. Hartel, Jr., for resentencing. Judge Hartel did not preside at defendant’s jury trial. It is undisputed that defendant’s motion for a substitution of judge was placed on Judge Hartel’s calendar, and it appears from the record that no substantive rulings were made by Judge Hartel prior to denying defendant’s motion. In denying defendant’s motion, the trial court reasoned that the trial was over and that defendant was not entitled to an automatic substitution of judge pursuant to section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5(a)). That section reads:

“Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.” Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5(a).

Based on its particular facts, this appeal presents a matter of first impression in this court. Defendant argues that sentencing is a part of a trial, and thus when the cause was placed on Judge Hartel’s calendar for resentencing according to this court’s order remanding the cause, it was “on the trial call” of that judge within the meaning of the statute, and he was entitled to invoke the automatic substitution of judge provision to obtain a fair sentencing hearing. Defendant buttresses this argument by pointing out that the “imposition of a sentence in a criminal case is a ‘critical’ stage of the trial” to which certain due process rights attach, such as the right to counsel. People v. Vesley (1967), 86 Ill. App. 2d 283, 288.

The State does not dispute that sentencing may be deemed a part of the trial but argues that a motion for the automatic substitution of a judge must be brought before the trial itself. The State attempts to garner support for its position from our supreme court’s decision in People v. Emerson (1987), 122 Ill. 2d 411. In Emerson, the defendant’s conviction was reversed on appeal, and the cause was remanded to the trial court for a new trial. Upon remand, the cause was assigned to the same judge who had presided at defendant’s first trial. The Emerson court noted that a request for an automatic substitution must be made before the trial judge rules on a substantive matter in the case and went on to conclude that the remand constituted a continuation of the original proceedings for purposes of this provision. (Emerson, 122 Ill. 2d at 424.) Therefore, the motion was not timely as the cause had been on the judge’s trial call for a long time. See People v. Crow (1988), 168 Ill. App. 3d 744, 755.

The State interprets Emerson to mean that, where a motion is not timely brought if it is filed before a retrial after remand, then it is certainly not timely brought if it is filed before a resentencing hearing after remand. We believe that the State is not focusing on the appropriate factor in the Emerson decision. Critical to the Emerson decision was the fact that the motion was brought after remand before the same judge who had presided at defendant’s trial. The trial judge had obviously made substantive rulings in the case, and the resentencing was merely a continuation of the same proceeding. Therefore, defendant’s motion came too late.

Here, by contrast, the reality of the changes in defendant’s situation must be taken into account. Defendant was presented with a new trial judge whose impartiality he had never had the opportunity to challenge. Defendant apparently brought his motion at the earliest opportunity before this judge had made any substantive rulings. We will therefore look to see if defendant’s motion can be properly brought within the statute.

The purpose of the provision for the automatic substitution of -judge is to enhance the impartiality of the judicial process. (People v. Hanson (1983), 120 Ill. App. 3d 84.) Assuming good-faith allegations of prejudice and compliance with the statute, the right of the defendant to a substitution of judge is absolute. (People v. Samples (1982), 107 Ill. App. 3d 523, 526; People v. Ehrler (1969), 114 Ill. App. 2d 171, 178.) Our supreme court has vigorously upheld the basic constitutional right to a trial before a fair and impartial judge; this is reflected in that court’s long held view that the automatic substitution statute should be construed liberally to promote rather than defeat substitution and in its willingness to find reversible error where the statute is not so construed. People v. Walker (1988), 119 Ill. 2d 465, 480-81 (and cases cited therein).

Once the motion is properly brought, the trial judge loses all power and authority over the cause except to make the necessary orders to effectuate the change, and if a defendant’s motion is improperly denied, all subsequent action of the trial court is void. (Samples, 107 Ill. App. 3d at 527.) The right to invoke the protection of the statute accrues only after a cause is assigned to a particular judge (People v. Williams (1988), 124 Ill. 2d 300, 307), and the motion is timely if it is brought within 10 days of the date the defendant could be “charged with knowledge” of the assignment of the case to a trial judge (People v. Aldridge (1981), 101 Ill. App. 3d 181, 184). Technical defects in a motion for a substitution of judge may be overlooked if the judge assigned to the case has not ruled on substantive issues. People v. Howell (1974), 16 Ill. App. 3d 989, 993.

The liberal construction rule is intended to guarantee a fair and impartial trial implicit in our legal system. (People v. Samples, 107 Ill. App. 3d at 526; People v. Flowers (1977), 47 Ill. App. 3d 809, 811.) In order to effectuate the purpose of the statute, we believe that, upon remand, when a defendant is assigned a new judge whose impartiality he has had no opportunity to challenge, defendant should be able to invoke the automatic substitution statute so long as he meets the prerequisites established by law.

We are cognizant of the differences between a “trial” and a “sentencing” proceeding. (See, e.g., People v. Vincent (1946), 394 Ill. 165, 170; State v. Johnson (La. 1978), 363 So. 2d 458, 461; 88 C.J.S. Trial §§1 through 3 (1955); 75 Am. Jur. 2d Trial §§1, 3 (1974); see also 24 C.J.S. Criminal Law §1556 (1961).) However, we are satisfied that “trial” is not a word of rigid definition; it may include a judicial examination, in accordance with the law of the land, either civil or criminal, of the issues between the parties, whether of law or of fact, before a court that has jurisdiction over it. (People v. Agnew (1985), 105 Ill. 2d 275, 279.) In its broadest sense, “trial” may refer not merely to the proceedings beginning with the impanelling of the jury and ending with the verdict, but it may also include all the preliminary and subsequent proceedings arising in the progress of the case. (People v. Looney (1924), 314 Ill. 150, 153.) Similarly, under the liberal construction rule, the “trial call” of a judge can be said to include the pronouncement of sentence for purposes of the automatic substitution of judge provisions. In this case, we are satisfied that “trial call” includes the reassignment of the case to a new judge for resentencing purposes.

We hold that, when a cause is reassigned to a new judge for proceedings subsequent to the rendition of a verdict and where such proceedings can be reasonably said to be a continuation of the cause as it is upon remand, the defendant should be able to invoke the automatic substitution of judge provisions, assuming that he has not had any prior opportunity to do so as to that particular judge, and assuming that he meets all the other established legal prerequisites.

Our decision is supported by the analogous situation presented in In re Marriage of Kozloff (1984), 101 Ill. 2d 526. In Kozloff the court interpreted the civil provisions for a substitution of judge (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001(c)) to permit the automatic substitution of a judge in a post-decree proceeding where the cause had been reassigned to another judge, and the motion was made before that judge had made any substantive ruling. The court stated that “the assignment of a different judge at any point in the proceedings entitles the parties to a change of venue as of right if that judge has not made substantial ruling in the case.” 101 Ill. 2d at 532.

The purpose of both civil and criminal venue provisions is the same: to secure a judge who is unprejudiced to preside at the proceedings. (People v. Gerold (1914), 265 Ill. 448, 451.) The need for an impartial judge is no less compelling in a criminal case than it is in a civil case. Thus, whether a civil or criminal matter is involved, when a petition for an automatic substitution of judge is timely filed in due form, the right to a change is absolute, and the request should be granted. See People v. Wilson (1967), 37 Ill. 2d 617, 619.

Finally, we observe that our holding should not create a severe administrative inconvenience upon the judiciary because the sentencing judge is normally the one who presides at trial unless a court of review specifies otherwise upon remand. See People v. Easley (1988), 119 Ill. 2d 535; Ill. Rev. Stat. 1987, ch. 38, par. 1005-4-1(b).

For the foregoing reasons, we vacate the amended judgment and sentence and remand the cause for resentencing proceedings consistent with this opinion.

Vacated and remanded.

NASH and DUNN, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT P. PERUSCINI, Defendant-Appellee.
    Second District
    No. 2 — 88—0905
    Opinion filed September 27, 1989.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph M. Giglio, of Onesto, Giglio, Meltreger & Associates, of Chicago, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from an order entered by the circuit court of Du Page County dismissing traffic violation charges against defendant, Robert P. Peruscini, on due process grounds. The State contends that the trial court was without authority to do so and that defendant’s due process rights were not violated. We reverse and remand.

Defendant was charged by complaint with driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)(2)), as well as improper lane usage and failure to wear a seatbelt. Defendant was arraigned, and his case was set for trial on June 16, 1988. Prior to the trial date, however, both the State and the defendant requested a continuance. The State asserted that a material witness, Officer Córtese, was unavailable; defendant asserted that his attorney had suffered a back injury which required prolonged medical care. Defendant suggested several dates in August 1988 for trial, and the case apparently was reset for August 9. On the trial court’s docketing sheet, however, the “8/9” date has been scratched out and the following appears: “(Tel Df Atty Lf Msg) (Date change from 8/9 to 8/16).”

On August 16, 1988, both the State and defendant appeared at the 10:30 court call and answered ready, and the court placed the matter on the 1:30 call for trial. At 1:30, the State requested a continuance because Officer Córtese was unavailable. The assistant State’s Attorney explained to the court that on August 9 he and the officer had appeared ready for trial, but were then informed that the case had been continued. When the assistant State’s Attorney verified the new trial date, he sent notice to Officer Córtese, but he could not be sure that the officer had received notice, and he had been unable to contact him yet that day. The trial judge could not recall who had made the request for the August 16 date, but he did remember calling defense counsel’s office to advise him of the new date.

In responding to the State’s motion, the trial judge stated that he did not think it was “fair” that the State had answered ready in the morning, requiring the defense attorney to “stay all morning here through a court call,” and that it was not fair “that the defendant should not be allowed to proceed under these circumstances.” The court denied the State’s motion for a continuance. The assistant State’s Attorney then advised the court that the State was not prepared for trial and would not proceed. The defendant then made a motion to dismiss the charges, and the trial court stated:

“THE COURT: Alright. Defense motion to dismiss by answering ready for trial at 10:30 and holding the defense and his witness here until 1:30 in the afternoon, having no affidavit to present to the Court at this time; the defendant’s motion to dismiss under due process grounds is granted.”

The assistant State’s Attorney advised the court that, if the court was dismissing the cause because the State had failed to provide an affidavit or a written motion, those documents could be provided “within five minutes.” In response, the trial court stated:

“THE COURT: Alright. Well, I will go on the record and say that is one of my grounds, but I think there is another ground that there is something inherently unfair about having people here for a trial at 10:30 in the morning, answering ready for trial, the State answering ready for trial, I hold people here all morning with their witnesses and I bring them back here at 1:30 for trial and then we get this situation.”

The assistant State’s Attorney told the court that he believed it was also inherently unfair that the court date had previously been changed by the judge, apparently by telephone, without notice to the State or the officer. The trial court responded:

“THE COURT: I am sure I didn’t just notify the defense attorney on my own behalf or the Court’s — I would not have given this matter an August 16th date without notifying the State.”

The assistant State’s Attorney reiterated that he “received no notice of the change in the trial date, *** absolutely none, and neither did the officer.” He then stated that if fairness is the issue, “it is only appropriate to consider fairness to all concerned.” Whereupon, the court repeated that the motion to dismiss was granted.

On appeal, the State contends that the trial court abused its discretion in denying the State’s motion for a continuance because the State had been diligent in pursuing the prosecution and the trial court was without authority to dismiss the charges against defendant.

Generally, whether to grant or to deny a motion for a continuance is within the sound discretion of the trial court, and the diligence shown by the movant is to be considered in weighing the exercise of discretion. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 4(e); People v. Verstat (1983), 112 Ill. App. 3d 90, 97-98, 444 N.E.2d 1374, 1380.) The trial court’s decision to grant or deny a continuance depends on the facts and circumstances existing at the time of the request, and its decision will not be disturbed on review absent a showing of a clear abuse of discretion. (Verstat, 112 Ill. App. 3d at 98, 444 N.E.2d at 1380.) A trial court should deny continuances sought by the State where defendant’s right to a speedy trial pursuant to section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5) will be improperly obstructed. (Verstat, 112 Ill. App. 3d at 98, 444 N.E.2d at 1381.) As set forth below, however, defendant’s statutory and constitutional rights to a speedy trial have not been impeded in this case, and we examine the facts and circumstances existing at the time of the State’s request for a continuance to determine whether there was an abuse of discretion in denying the State’s motion for a continuance.

The State’s motion was based on the unavailability of a material witness. Section 114 — 4(c)(2) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 4(c)(2)) provides that a motion for continuance made by the State more than 30 days after arraignment may be granted when “[a] material witness is unavailable and the prosecution will be prejudiced by the absence of his testimony.” The unavailability of Officer Córtese, a material witness, was, therefore, a proper basis for the State’s request. Although this was the State’s second request for a continuance, the prior continuance of this case was also sought by the defendant as well. The length of the first continuance, June 16 to August 9, was determined by the defense. Although the State answered ready for trial on the morning of August 16, and the defendant, his witness, and his attorney were inconvenienced by the State’s request for a continuance in the afternoon, the State had been equally inconvenienced when the trial date had been changed from August 9 to August 16 without notice. The assistant State’s Attorney represented that on August 9 the State had appeared with its witness prepared for trial, and when the State learned of the new trial date, it notified the witness. Although the State’s motion was not in writing and supported by affidavit, as required by section 114— 4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 4(a)), the assistant State’s Attorney offered to provide the necessary documents almost immediately. Given the emergency nature of the motion, we consider that the State substantially complied with the rule. Under the circumstances presented here, we believe that the State was diligent in prosecuting the cause, and the court’s denial of the State’s motion for a continuance was an abuse of discretion.

The State also contends that the trial court erred in dismissing the complaint against defendant which, it stated, was on “due process grounds.”"The only due process right which might conceivably be implicated here, and which defendant now argues, is his right to a prompt trial. Trial courts have statutory authority to dismiss charges against defendants for any one of the reasons set forth in section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1), including the failure to provide defendant with a speedy trial. Trial courts also have an inherent authority to dismiss charges where there has been a clear denial of due process even though that is not a ground stated in section 114 — 1. (People v. Lawson (1977), 67 Ill. 2d 449, 455, 367 N.E.2d 1244, 1246.) In this case, defendant’s constitutional and statutory rights to a speedy trial were not denied.

Defendant urges us to analyze the alleged due process violation here in light of Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182. In Barker, the United States Supreme Court formulated a balancing test for determining when the constitutional right to a speedy trial has been denied. The four factors to be considered are: the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. (Barker, 407 U.S. at 530, 33 L. Ed. 2d at 117, 92 S. Ct. at 2192; People v. Adams (1978), 59 Ill. App. 3d 590, 594, 375 N.E.2d 893, 896.) In applying the test, however, the Supreme Court has stated that the length of delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. (Barker, 407 U.S. at 530, 33 L. Ed. 2d at 117, 92 S. Ct. at 2192.) The delay which the trial court and defendant focus on in this case is the three-hour period between the morning and afternoon court calls. A three-hour delay between court calls is not the type of delay which gives rise to a Barker analysis as it cannot be presumptively prejudicial. Furthermore, the trial court here denied the State’s motion before a specific date or period of continuance could be requested, and the actual length of the delay engendered by the State’s motion was not determined. Because we do not know the length of the delay, we have no reason to conclude it might be prejudicial. We note, further, that the defendant made no demand for a speedy trial, the State presented a valid reason for the requested continuance, and, although defendant may have been annoyed or inconvenienced by a continuance, he has failed to demonstrate how his defense was impaired by the request for a continuance. Defendant’s constitutional right to a speedy trial was not violated.

Defendant’s statutory right to a speedy trial was not violated either. Section 103 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(b)) requires that every person on bail or recognizance shall be tried by the court within 160 days from the date defendant demands trial. In this case, defendant did not demand trial.

We conclude that under the circumstances of this case, defendant’s statutory and constitutional rights to a speedy trial or due process were not violated, and the trial court was without authority to dismiss the complaint against defendant.

Accordingly, the judgment of the circuit court of Du Page County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

McLAREN and REINHARD, JJ., concur.


author: JUSTICE LINDBERG

text:
    THE TOWN OF LIBERTYVILLE, Plaintiff-Appellant, v. NORTHWEST NATIONAL BANK OF CHICAGO, as Trustee, et al., Defendants-Appellees.
    Second District
    No. 2 — 89—0105
    Opinion filed September 28, 1989.

      Charles J. Siemon, Gerald P. Callaghan, James N. Azim III, and William D. McElyea, all of Siemon, Larsen & Purdy, of Chicago, for appellant.
    Murray R. Conzelman, of Conzelman, Schultz, Snarski & Mullen, of Waukegan, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, Town of Libertyville, filed an eminent domain action against defendants, Northwest National Bank of Chicago, as trustee under trust No. 2402, et al., seeking to condemn a 40-acre parcel of land pursuant to the Township Open Space Act (the Act) (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.). The trial court, finding that the 40-acre parcel was not “open land” or “open space” under the Act (Ill. Rev. Stat. 1987, ch. 139, par. 322(b)), dismissed plaintiff’s complaint with prejudice. Plaintiff appeals from this dismissal.

The property at issue is a square 40-acre parcel located in southeastern Libertyville Township. It is bounded on the west by St. Mary’s Road. Directly across St. Mary’s Road from the property are 570 acres owned by the Lake County Forest Preserve District. The property is bounded on the east by a 200-acre property owned by Edward H. Bennett, Jr. (Bennett). It is bounded on the north by a subdivision and on the south by properties having various owners.

Bennett has applied to the Village of Mettawa (Mettawa) for “approval of a Preliminary Plat Cluster R-l Development.” In an affidavit filed in the trial court, Bennett indicated that “[i]f the Preliminary Plat is approved by the Village of Mettawa, he intends to donate to the Town of Libertyville for open space purposes” 151.08 acres of his property contiguous to the 40-acre parcel at issue in the case at bar.

Plaintiff has established an open-space program pursuant to the Act. (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.) Plaintiff therefore has the power:

“To acquire by gift, legacy, purchase, condemnation ***, lease, agreement or otherwise the fee or any lesser right or interest in real property that is open land, as defined in Section 2, and to hold the same ***.” (Ill. Rev. Stat. 1987, ch. 139, par. 324.02.)

(See also Ill. Rev. Stat. 1987, ch. 139, par. 324.) Section 2 of the Act provides in part:

“ ‘Open land’ or ‘open space’ means any space or area of land or water of an area of 50 acres or more ***.” (Ill. Rev. Stat. 1987, ch. 139, par. 322(b).)

The parcel of land at issue is only 40 acres in area and so cannot be acquired by plaintiff as open land unless it can be combined with other property to meet the 50-acre minimum requirement of the Act. Plaintiff essentially argues three different theories under which this might be done.

Plaintiff states one theory as follows:

“[T]he Legislature’s choice of language shows that it intended for the 50-acre minimum to apply only to the aggregate area of the various parcels acquired as part of a township’s open space program and not to the individual parcels themselves.”

This theory is untenable because, as we held in Town of Libertyville v. Ypma:

“[T]he statutory language of section 2(b) of the Act is clear and *** it provides that a parcel of land with an area of less than 50 acres cannot be considered open land. Consequently, we find the subject property here, which consists of less than 50 acres, cannot be condemned merely because at the time of the eminent domain action against defendants, Libertyville’s open-space program was comprised of well over 50 acres.” (Town of Libertyville v. Ypma (1989), 181 Ill. App. 3d 305, 309, 536 N.E.2d 1275, 1278.)

Thus, the mere fact that plaintiff has acquired more than 50 acres for its open-space program as a whole does not permit plaintiff to acquire individual tracts less than 50 acres in area under the Act. See Ill. Rev. Stat. 1987, ch. 139, pars. 322(b), 324, 324.02.

A second theory of plaintiff’s is that the Act permits it to acquire a parcel less than 50 acres in area if that parcel is part of a region 50 acres or more in area that is dedicated to open-space purposes, regardless of the ownership of the other property. According to plaintiff, under this theory the 40-acre parcel may be considered in combination with the Lake County Forest Preserve District’s property across St. Mary’s Road for purposes of the Act’s 50-acre minimum requirement.

In a motion for leave to cite additional authority, which this court allowed, plaintiff has cited a case (Town of Libertyville v. Connors (1989), 185 Ill. App. 3d 317, 541 N.E.2d 250) as supportive of its contention that the road between the 40-acre parcel and the Lake County Forest Preserve District property does not preclude considering the two as a single area of land for purposes of the 50-acre minimum requirement. However, under Connors the Lake County Forest Preserve District property could not be taken into account even if there were no road between it and the 40-acre parcel at issue. As we said in Connors:

“Connors’ property consisted of two parcels of land separated by a public road, Guerin Road. Connors presented evidence to show that each parcel was less than 50 acres in size. The parcel north of Guerin Road was approximately 28.45 acres and the parcel south of Guerin Road consisted of 40 acres. Thus, neither parcel alone met the 50-acre minimum of the Act.
We have very recently determined in Town of Libertyville v. Blecka (1989), 180 Ill. App. 3d 677, [130 Ill. Dec. 60, 536 N.E.2d 1271,] that a landowners’ [sic] property was subject to Libertyville’s right of eminent domain if the landowners’ [sic] land was a portion of a tract 50 acres or more being contemporaneously condemned by Libertyville or if the landowners’ [sic] land abutted or adjoined a tract of 50 acres or more already owned by Libertyville. (See also Town of Libertyville v. Ypma (1989), 181 Ill. App. 3d 305[, 130 Ill. Dec. 64, 536 N.E.2d 1275].) In the instant case, the property south of Guerin Road adjoins open land of more than 50 acres, but this land is owned by the Lake County Forest Preserve District. The parcel to the north of Guerin Road abuts or borders upon a tract of open space already acquired by Libertyville. However, it is apparent from Libertyville’s exhibit No. 8, which was a base map depicting, among other things, acquired open space, that the adjacent tract of open space was significantly smaller than Connors’ northern parcel of 28.45 acres. Thus, the northern parcel was not adjacent to a 50-acre tract already owned by Libertyville. As neither the northern nor southern parcel of Connors’ land abuts, adjoins, or lies adjacent to a tract 50 acres or more already owned by Libertyville, the individual parcels are not subject to Libertyville’s right of eminent domain on this basis.” (Emphasis added.) (Town of Libertyville v. Connors (1989), 185 Ill. App. 3d 317, 323-24, 541 N.E.2d 250, 253-54.)

Thus, the property owned by the Lake County Forest Preserve District could not be considered in determining whether plaintiff may acquire the 40-acre parcel at issue as open land even if it were not separated from the 40-acre parcel by St. Mary’s Road. It is therefore unnecessary to determine whether the separation of the 40-acre parcel from the Lake County Forest Preserve District property by St. Mary’s Road would affect plaintiff’s right to condemn the 40-acre parcel. Compare Town of Libertyville v. Connors (1989), 185 Ill. App. 3d 317, 324, 541 N.E.2d 250, 254, with Egidi v. Town of Libertyville (1989), 181 Ill. App. 3d 542, 545, 537 N.E.2d 369, 372.

Plaintiff’s right to acquire the 40-acre parcel by condemnation depends then on its third theory: that the 151.08 acres Bennett intends to donate to plaintiff may be aggregated with the contiguous 40-acre parcel at issue in determining whether the 50-acre minimum requirement of the Act is satisfied. We have held that the Act permits a township to acquire by condemnation a tract having an area less than 50 acres if the tract was a portion of a tract of 50 acres or more being contemporaneously condemned by the township or if the tract abutted or adjoined a tract having an area of 50 acres or more already owned by the township as part of its open-space program. (Town of Libertyville v. Connors (1989), 185 Ill. App. 3d 317, 323-24, 541 N.E.2d 250, 253; Town of Libertyville v. Ypma (1989), 181 Ill. App. 3d 305, 310-11, 536 N.E.2d 1275, 1278-79; Town of Libertyville v. Blecka (1989), 180 Ill. App. 3d 677, 682, 536 N.E.2d 1271, 1275.) The 151.08-acre tract neither was owned nor being contemporaneously condemned by plaintiff. Plaintiff contends that the rule in Connors, Ypma, and Blecka should be extended to include the situation at bar, where plaintiff intends, and expects, to acquire in the future the additional property necessary to meet the 50-acre minimum requirement of the Act, but does not yet own it and has not yet filed a condemnation action. We decline to so extend the rule for two reasons.

First, it is entirely possible that plaintiff will not be able to acquire the 151.08 acres. Mettawa, for instance, may not approve Bennett’s preliminary plat, in which case he has made no representation that he will donate the land to plaintiff. It is also possible that, before making the gift to plaintiff, Bennett might change his mind. Plaintiff suggests that it could, without stating that it would, condemn the 151.08 acres if the gift were not made. While it is obviously true that plaintiff could file such an action, we cannot say whether it would be successful. Plaintiff correctly points out that there is nothing in the record at bar indicating that Bennett’s 151.08 acres are exempt from condemnation. However, that fact is of little import since the case at bar did not litigate the question of whether Bennett’s property could be condemned. Thus, it is not clear that plaintiff will ever acquire the 151.08 acres Bennett has said he will donate if Mettawa’s decision on his preliminary plat application is favorable.

Second, even if it were certain plaintiff would ultimately acquire the 151.08 acres from Bennett, the Act would still not permit the condemnation at bar. If plaintiff acquired and held the 40 acres at issue before acquiring Bennett’s 151.08 acres, plaintiff would, at least for the period between acquisition of the 40 acres and acquisition of the 151.08 acres, have acquired and held land that is not open land by reason of its having an area of less than 50 acres. Such an acquisition and holding of land that is not open land would exceed plaintiff’s powers under the Act, regardless of whether plaintiff later acquired adjacent land exceeding 50 acres in area. See Ill. Rev. Stat. 1987, ch. 139, pars. 324, 324.02.

We hold that a township may not acquire as open land a parcel less than 50 acres in area unless the parcel is a portion of a tract of 50 acres or more being successfully contemporaneously condemned by the township, or the parcel abuts or adjoins a tract having an area of 50 acres or more already owned by the township as part of its open-space program. The trial court correctly dismissed plaintiff’s eminent domain action on the ground that the 40-acre parcel was not open land as defined by the Act. (See Ill. Rev. Stat. 1987, ch. 139, pars. 322(b), 324, 324.02.) The judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT, P.J., and WOODWARD, J., concur.


author: PRESIDING JUSTICE WOMBACHER

text:
      In re J.L.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.L.S., Respondent-Appellant).
    Third District
    No. 3-88-0746
    Opinion filed September 22, 1989.
    Jospeh N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Joseph Navarro, State’s Attorney, of Ottawa (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The respondent minor, J.L.S., appeals from the trial court’s order committing him to the Department of Corrections, Juvenile Division, for an indeterminate term. We affirm.

The record shows that in an earlier cause not directly related to the instant case, the La Salle County probation office and Vernon Johnson of that office were appointed the legal guardian of J.L.S. On October 12, 1988, a petition for adjudication of wardship was filed. The petition alleged that J.L.S. had committed two counts of theft, one count of burglary, and one count of criminal trespass to vehicles (Ill. Rev. Stat. 1987, ch. 38, pars. 16 — 1(a)(1), 19 — 1(a), 21 — 2). The petition named J.L.S.’ mother and father as respondents, but omitted naming Johnson or the probation office as the legal guardian. However, Ginger Martinovich, a juvenile probation officer with the La Salle County probation office, was notified of the adjudicatory hearing. J.L.S. and his parents were served notice by officer’s summons. No notice was sent to Vernon Johnson.

An adjudicatory hearing was held on October 25, 1988. J.L.S. was present and represented by his guardian ad litem, the public defender. J.L.S.’ parents were not present, but Martinovich stated that she had spoken with the father at the courthouse earlier in the day and noted that he had left the building. Following admonishments, the trial court accepted J.L.S.’ plea of guilty to the burglary charge and to one count of theft. By agreement, the other charges were dismissed.

On November 15, 1988, J.L.S., his parents, and Martinovich appeared at the dispositional hearing. At the conclusion of the hearing, the trial court committed J.L.S. to the Department of Corrections, Juvenile Division, for an indeterminate term.

On appeal, J.L.S. contends that the failure to properly name and notify his legal guardian renders the court order committing him to the Department of Corrections void, because the trial court lacked jurisdiction over the cause.

Section 2 — 13 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 13) requires that a petition set forth the names and residences of the minor’s parents and the name and residence of either the legal guardian or the person having custody or control of the minor. Section 2 — 15 requires that summons be directed to the minor’s legal guardian or custodian, and to each person named as a respondent in the petition. (Ill. Rev. Stat. 1987, ch. 37, par. 802— 15.) A pleading that does not name and notify a necessary respondent in a juvenile proceeding fails to invoke the jurisdiction of the court and thereby renders its orders void. (People v. R.D.S. (1983), 94 Ill. 2d 77, 445 N.E.2d 293.) However, when a party appears before the court, although not formally served, and participates in the proceedings, he waives the formality of service of process and voluntarily submits to the jurisdiction of the court. People v. D.J. (1988), 175 Ill. App. 3d 491, 529 N.E.2d 1048.

In In re J.A. (1986), 145 Ill. App. 3d 816, 495 N.E.2d 1340, this court held that when a representative of the Department of Children and Family Services (DCFS), which was the minor’s legal guardian, appeared and participated in the trial court proceedings, the legal guardian submitted, through the appearance of the DCFS representative, to the jurisdiction of the court. We find In re J.A. dispositive of the issue presented in this case and find J.L.S.’ arguments distinguishing In re J.A. unpersuasive.

In the instant case, the record shows that Ginger Martinovich was given actual notice of all the proceedings involving J.L.S. and was present at each of the hearings in the case. The trial court noted the presence of Martinovich as a juvenile probation officer. Thus, the La Salle County probation office and Vernon Johnson submitted, through the appearance of Martinovich, to the jurisdiction of the court. No useful purpose would be served by holding that further notice was required in this case. The trial court was therefore properly vested with jurisdiction over the necessary parties and its subsequent order was valid.

The judgment of the circuit court of La Salle County is affirmed.

Affirmed.

STOUDER and SCOTT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD COLLEY, Defendant-Appellant.
    Third District
    No. 3 — 88—0535
    Opinion filed September 22, 1989.

      Catherine Fitzsimmons, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

A jury convicted the defendant, Donald Colley, of aggravated criminal sexual assault and armed robbery (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 14(a)(2), 18 — 2(a)). The' trial court subsequently sentenced him to two concurrent 40-year terms of imprisonment. The defendant appeals.

According to the trial record, Mary Logan testified that in the early morning hours of March 7, 1988, she awoke to find the defendant standing naked over her bed. He told her that he intended to have sex with her. Logan told him to get away from her, but he climbed into her bed and forced her to have intercourse. He then forced her to submit to oral sex and to perform fellatio on him.

Logan further testified that the defendant got up and rummaged through her dresser. Logan told him that she did not have any money. She then asked to use the bathroom. He accompanied her into the bathroom, and after she was done, he hit her in the eye and told her that he would kill her if she did not give him some money. She again said that she did not have any money, so he threw her on the bed and placed a pillow over her face. After about a minute, he released her and ordered her to go downstairs.

Logan said that after they entered the kitchen together, the defendant closed the window and turned on the gas. He then took a pocket knife out of her purse and cut her on the neck and chin. He told her he would continue hurting her if she did not give him some money.

They went back to her bedroom, where she took some money out of her pillow and gave him $20. He threatened to set her hair on fire, but instead ignited her pillow and sheet. He then ordered her to close her window. After she did so, he set her dresser and a chest on fire.

Logan testified that the defendant took the rest of her money, which amounted to $130. The two then went downstairs, where the defendant ordered Logan to sit on the couch. After she did so, he left her apartment.

The defendant took the witness stand and denied committing the offenses. He said he had been with friends during the early part of the evening and had spent the rest of the night at his girlfriend’s home.

Following deliberations, the jury found the defendant guilty of both charges. At the sentencing hearing, the prosecutor argued that the defendant was eligible for extended terms because the victim was handicapped at the time of the offenses. He noted that the presentence report indicated that Logan had been crippled in a 1965 automobile accident. The report also indicated that Logan had a leg brace. Defense counsel disputed this argument, noting that Logan merely walked with a limp. The trial judge found that the defendant was eligible for extended terms because the victim was handicapped at the time of the offense and because the defendant’s conduct was exceptionally brutal and heinous. He then imposed two concurrent extended terms of 40 years each.

Prior to discussing the defendant’s issues, we shall address a motion filed by the State’s Attorney’s Appellate Prosecutor’s office requesting that it be appointed special prosecutor in this case. According to the motion, Kevin Lyons, the present Peoria County State’s Attorney, was appointed to represent the defendant while Lyons was an assistant public defender. Lyons states in an affidavit that he withdrew from the case prior to its going to trial and that he has played no substantive role in this appeal. The appellate prosecutor’s office requests this appointment, however, in order to avoid any appearance of impropriety. We find the motion to be well-taken and therefore appoint the appellate prosecutor’s office to be special prosecutor in this appeal.

The defendant first argues on appeal that he was not proved guilty of aggravated criminal sexual assault. He notes that the victim’s stab wounds provided the only evidence of bodily harm. He contends that they occurred too long after the sexual acts were completed to be considered part of the same course of conduct.

A defendant commits aggravated criminal sexual assault if, during the commission of a criminal sexual assault, he causes bodily harm to the victim. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(2).) Here, the evidence showed that the defendant stabbed the victim soon after the sexual acts were completed. Under the instant circumstances, we will not draw a bright line between the ending of the sexual acts and the bodily harm occurring afterward, as that would defeat the statutory purpose of protecting victims from sex offenders. We find that the stab wounds occurred sufficiently close in time to the sexual acts that they can be said to have been committed during the course of the sexual assault. See People v. Ortiz (1987), 156 Ill. App. 3d 170, 509 N.E.2d 633.

The defendant next argues that the trial court erred in finding that he was eligible for extended terms because the victim was physically handicapped at the time of the offenses. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(4)(iii).) The defendant contends that the evidence failed to establish that the victim was physically handicapped.

A physically handicapped person is defined as “a person who suffers from a permanent and disabling physical characteristic, resulting from *** injury.” (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 15a.) According to the presentence report, the victim was crippled from an auto accident and had a leg brace. Defense counsel also noted that she walked with a limp. We find that there was sufficient evidence establishing that the victim was physically handicapped within the meaning of the statute.

The defendant’s final argument on appeal is that his conduct was not sufficiently brutal and heinous to support an extended term. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(2).) The evidence showed that the defendant twice stabbed the victim in a particularly brutal manner, threatened to set her hair on fire and to kill her, and also ignited her bedroom furniture while she was still in the home. We find that this evidence established extremely brutal or heinous behavior indicative of wanton cruelty. (See People v. Strait (1983), 116 Ill. App. 3d 110, 451 N.E.2d 631; People v. Turner (1981), 93 Ill. App. 3d 61, 416 N.E.2d 1149.) Accordingly, there was no error.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

STOUDER and SCOTT, JJ., concur.


author: JUSTICE BARRY

text:
    RAYMOND A. KOLANOWSKI, Plaintiff-Appellant, v. ILLINOIS VALLEY COMMUNITY HOSPITAL, Defendant-Appellee.
    Third District
    No. 3 — 88—0586
    Opinion filed September 22, 1989.
    Louis E. Olivero & Associates, of Peru, for appellant.
    Douglas A. Gift, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The plaintiff, Raymond A. Kolanowski, brought suit against the defendant, Illinois Valley Community Hospital, for injuries he allegedly sustained when he fell from a bed while he was in the defendant’s respite care program. The defendant filed a motion to dismiss, contending that the plaintiff had failed to file an affidavit and medical report as required by section 2 — 622 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622). The trial court agreed and dismissed the suit, allowing the plaintiff 90 days to file new pleadings. The plaintiff failed to file new pleadings, and the trial court subsequently dismissed the case with prejudice. The plaintiff appeals, arguing that section 2 — 622 of the Code does not apply to the defendant’s respite care program.

The plaintiff’s complaint stated in count I that when he entered the defendant’s custodial shelter care unit, the defendant knew that he was paralyzed on the left side of his body, rendering him weak, confused, helpless, and susceptible to falling from a hospital bed. It further alleged that on August 2, 1986, the defendant had left him unattended, allowing him to fall out of bed and injure himself. The plaintiff contended that the defendant was negligent in failing to properly supervise him, in failing to fix his bed so that he could not fall out of it or, at least, so that he would not be hurt by a fall, and in allowing him to get out of bed. Count II alleged that the defendant had breached its contract with the plaintiff wherein it agreed to provide him with quality care, 24-hour supervision, and skilled nursing services.

The record contains a copy of a brochure published by the defendant, stating that “Respite Care is an interval of rest or relief for families or primary care-givers of Medicare-aged recipients who need to arrange 24-hour care and supervision for a loved one living with them when they must be away from the home because of short-term business/vacation plans, personal/family commitments, or sheer exhaustion.” The contract between the plaintiff and the defendant indicates that the defendant had agreed to provide respite care at the highest level offered, “skilled.” Services it agreed to perform included “[mjedication administration based upon level of care and physicians’ orders,” “[professional supervision, observation, and treatment at the aforementioned level of care,” and “[sjkilled nursing services at the aforementioned level of care.” The defendant also agreed to provide, as needed, prescribed medication, treatment modalities, physicians’ visits, and medical supplies and equipment.

Section 2 — 622 of the Code provides in relevant part:

“Healing art malpractice, (a) In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiffs attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:
1. That *** [a] reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional’s review and consultation that there is a reasonable and meritorious cause for filing of such action. *** A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional’s determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit ***.
2. That the *** consultation required by paragraph 1 *** could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. ***
* * *
(g) The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2 — 619.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622.

Section 2 — 1704 of the Code provides:

“Medical Malpractice Action. As used in this Part, ‘medical malpractice action’ means any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice. The term ‘healing art’ shall not include care and treatment by spiritual means through prayer in accord with the tenets and practices of a recognized church or religious denomination.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1704.

The term “healing art malpractice” is broad in scope. (Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649, 509 N.E.2d 702.) However, not every injury sustained by a patient in a hospital results from “healing art malpractice.” To determine whether a complaint sounds in ordinary negligence or healing art malpractice, courts look to the evidence that will be necessary to establish the defendant’s standard of care. Edelin v. Westlake Community Hospital (1987), 157 Ill. App. 3d 857, 510 N.E.2d 958.

“Generally, in a medical malpractice case, plaintiff must offer expert ' testimony to establish the standard of care unless defendant’s conduct is so grossly negligent or the treatment so common that a lay person could readily understand it.” (Edelin, 157 Ill. App. 3d at 862, 510 N.E.2d at 961.) If, however, the standard may be established on the basis of defendant’s administrative policies or other evidence short of medical expert testimony, plaintiff will be permitted to proceed with his suit on a theory of ordinary negligence. For instance, an action based on a slip and fall injury allegedly resulting from defendant hospital’s negligent failure to remove or warn of water on the floor constituted an ordinary premises liability claim rather than medical malpractice claim. The standard of care in such a case is that owed by a reasonable owner or occupier of the premises to a business-invitee. (Mooney v. Graham Hospital Association (1987), 160 Ill. App. 3d 376, 513 N.E.2d 633.) By contrast, it has been frequently held in this State and others that the standard of care where an injury allegedly results from a hospital’s failure to provide adequate restraints, including bed rails, can be established only upon expert medical testimony. Consequently, these cases are treated as medical malpractice actions subject to statutory restrictions for healing art malpractice. (See, e.g., Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 491 N.E.2d 803; Lenny v. Loehmann (1980), 78 A.D.2d 813, 433 N.Y.S.2d 135; Bell v. West Harrison County District (Miss. 1988), 523 So. 2d 1031; Howe v. Citizens Memorial Hospital (Tex. Civ. App. 1968), 426 S.W.2d 882; Sexton v. St. Paul Fire & Marine Insurance Co. (1982), 275 Ark. 361, 631 S.W.2d 270.) Under this State’s healing art malpractice act, failure to file the necessary affidavit and report is cause for dismissal with prejudice. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622(g).

The instant plaintiff contends that since no medical treatment was being rendered to him, he did not need to comply with section 2 — 622’s requirements. We disagree. In advancing his argument, plaintiff relies primarily upon Owens v. Manor Health Care Corp. (1987), 159 Ill. App. 3d 684, 512 N.E.2d 820. In Owens, plaintiff complained that defendant nursing home was negligent in failing to provide adequate restraints to protect him from falling out of his wheelchair. In determining whether plaintiff’s complaint was fatally defective for failure to comply with section 2 — 622’s requirement that a written report of a health professional be attached to the complaint, the court reviewed the nature of care being provided to plaintiff in the nursing home and the direct cause of his injury. First, the court noted that plaintiff was in the home for custodial shelter care, and not for the purpose of being restored to a normal physical or mental state. .And second, plaintiff’s fall did not result from any medical condition or treatment, but merely because he had tried to get out of his wheelchair. Under the circumstances, even though plaintiff had alleged that his personal physician had ordered a wheelchair restraint, the defendant’s alleged negligence did not require the assessment of any healthcare professional, and expert medical testimony was not required at trial because defendant’s standard of care under the circumstances was not elevated to that of a “healing art” professional. The court accordingly ruled that plaintiff’s complaint sounded in ordinary negligence and could proceed to trial as such. 159 Ill. App. 3d at 689, 512 N.E.2d at 824.

Unlike Owens, in the case before us plaintiff was evaluated as requiring the highest level of care during his stay in the defendant’s respite care program. His agreement with the defendant stated that the defendant would provide proper supervision and any needed medication, treatment, and physicians’ examinations. The plaintiff’s pleadings alleged that the defendant had failed to provide adequate supervision and restraints in light of his condition of partial paralysis. Plaintiff’s fall, it appears, was directly related to his medical condition. As indicated above, it has been previously determined in this State that the need for bed rails in light of a patient’s medical condition is not a matter of common knowledge, but requires medical knowledge, skill, and training. Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 491 N.E.2d 803.

Under the circumstances of this case, we find that the proper levels of supervision and restraint were determined by the plaintiff’s medical condition and therefore involved medical judgments. Accordingly, an expert’s opinion regarding the defendant hospital’s standard of care would have been required at trial. We hold, therefore, that the gravamen of plaintiff’s complaint alleges healing art malpractice and required strict compliance with section 2 — 622 of the Code. Since plaintiff failed to provide the necessary affidavit and report, the trial court correctly dismissed the cause of action.

The judgment of the circuit court of La Salle County is affirmed.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL ROBINSON, Defendant-Appellant.
    Third District
    Nos. 3 — 88—0339, 3 — 88—0340 cons.
    Opinion filed September 22, 1989.

      Michael Robinson, of Joliet, pro se, and Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John A. Barra, State’s Attorney, of Peoria (Rita Kennedy Mertel and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

A jury convicted the defendant, Michael Robinson, of one count of murder and one count of armed robbery. The trial court sentenced him to concurrent terms of 60 years’ imprisonment for the murder conviction and 20 years’ imprisonment for the armed robbery conviction. This court affirmed his convictions on appeal. (People v. Robinson (1980), 87 Ill. App. 3d 621, 410 N.E.2d 121.) Subsequently, the defendant filed a petition for post-conviction relief. The trial court thereafter dismissed his petition. He appeals.

The sequence of events surrounding the defendant’s commission of the above crimes was set forth in detail in People v. Gulliford (1980), 86 Ill. App. 3d 237, 407 N.E.2d 1094. Here, we will discuss only those facts pertinent to the issues presented by the defendant’s appeal of the trial court’s dismissal of his petition for post-conviction relief.

The defendant’s first argument on appeal is that the trial court erred in dismissing his petition for post-conviction relief without a hearing. He argues that his confession statement was taken in violation of his right to counsel as outlined in State v. Jackson (1986), 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404. In Jackson, the Supreme Court held that if police initiate interrogation after the defendant’s assertion at arraignment of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.

The record in the present case reveals that the defendant was arraigned on July 25, 1977, at which time the public defender’s office was appointed to represent him. The record does not show whether the defendant requested a lawyer at arraignment. However, it does show that the defendant was given a piece of paper with the names and phone numbers of two assistant public defenders. In the defendant’s previous appeal, we noted that he admitted that one of those assistant public defenders had represented him on a previous occasion, but that he nevertheless threw the piece of paper away and made no attempt to choose one of the public defenders before he voluntarily confessed to the crime on July 29, 1977, after being interrogated by police. Furthermore, prior to the commencement of the July 29 interrogation, the defendant did not request the presence of an attorney.

We find that even assuming arguendo that the trial court erred in not suppressing the defendant’s confession statement, any error was harmless in light of the overwhelming evidence of the defendant’s guilt. In support of this finding, we note that there was an eyewitness to the crime. Further, the defendant’s fingerprints were found on the bloody murder weapon discovered inside his car. Moreover, we note that in the first appeal of this case we held that “[t]he record in the present case overwhelmingly establishes defendant’s guilt, and we are convinced that his conviction would certainly have resulted even if his confession had not been admitted into evidence.” (People v. Robinson (1980) , 87 Ill. App. 3d 621, 628, 410 N.E.2d 121, 126.) Accordingly, this finding was res judicata and could not be raised in a petition for post-conviction relief since it was decided on direct appeal adversely to the defendant. See People v. Edwards (1980), 83 Ill. App. 3d 128, 403 N.E.2d 771.

The defendant’s second argument on appeal is that his appellate counsel was ineffective. He argues that his appellate counsel should have raised on direct appeal the issues contained in his petition for post-conviction relief.

A defendant is not entitled as a matter of right to an evidentiary hearing on a post-conviction petition alleging incompetence of counsel. (People v. Hanrahan (1985), 132 Ill. App. 3d 640, 478 N.E.2d 31.) Conclusional allegations regarding incompetency of counsel are not sufficient to require a post-conviction hearing. (People v. Howard (1981), 94 Ill. App. 3d 797, 419 N.E.2d 702.) Moreover, it is not incompetent for appellate counsel to fail to raise an issue on direct appeal which counsel believes is without merit, unless counsel’s appraisal of the merits is patently erroneous. (People v. Crater (1984), 124 Ill. App. 3d 1074, 465 N.E.2d 162.) A petitioner who alleges ineffectiveness of counsel must show that but for counsel’s unprofessional errors, the result of the proceedings would have been different. People v. Madej (1985), 106 Ill. 2d 201, 478 N.E.2d 392.

Applying the above principles to the instant case, we find significant the fact that the defendant’s allegations regarding the competency of his appellate counsel are mere conclusions. His post-conviction petition is devoid of affidavits or supporting memoranda. Furthermore, we note that even if the defendant’s appellate counsel was incompetent, he makes no showing that the outcome of the proceedings was affected. We reiterate that the evidence of the defendant’s guilt was overwhelming. Accordingly, the trial court properly rejected the defendant’s post-conviction claim that appellate counsel was ineffective.

The defendant’s third argument on appeal is that he did not receive the effective assistance of trial counsel. He cites numerous instances in which he was allegedly denied the effective assistance of counsel. He contends that his trial counsel failed to interview certain witnesses and failed to impeach others. He further contends that his attorney failed to have him present during the instructions conference, failed to object to tainted identifications, failed to object to certain hearsay testimony, failed to demonstrate to the jury that a codefendant was awaiting trial, and failed to file certain additional pretrial and post-trial motions.

Initially, we again note that conclusional allegations concerning the competency of counsel are not sufficient to require a post-conviction hearing. (People v. Howard (1981), 94 Ill. App. 3d 797, 419 N.E.2d 702.) When the defendant attacks the competency of his counsel for failing to call or contact witnesses, he must attach affidavits from those witnesses to his post-conviction petition and explain the significance of their testimony. (People v. Carmickle (1981), 97 Ill. App. 3d 917, 424 N.E.2d 78.) Errors in judgment or trial strategy do not establish that counsel was ineffective. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) Moreover, it is axiomatic that in order to establish that counsel was ineffective, a defendant must show not only that counsel’s representation fell below an objective standard of reasonableness, but also that counsel’s shortcomings affected the outcome of the proceedings. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Denial of an evidentiary hearing on a post-conviction petition is discretionary with the trial court, and its decision "will not be reversed absent an abuse of discretion. People v. Hanrahan (1985), 132 Ill. App. 3d 640, 478 N.E.2d 31.

In the case at bar, we find that the defendant’s allegations did not sustain his burden so as to require an evidentiary hearing. His allegations were either mere conclusions which were not supported by the record and affidavits, or were allegations regarding trial tactics. Further, we find that even if, arguendo, counsel did make errors, when the overwhelming evidence of the defendant’s guilt is considered, the defendant clearly failed to meet his burden of demonstrating a reasonable probability that but for counsel’s errors, the outcome of his trial would have been different.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

WOMBACHER, P.J., and SCOTT, J., concur.


author: JUSTICE STEIGMANN

text:
    TERRY CROSS et al., Plaintiffs-Appellants, v. BRENDA A. MOEHRING, Defendant (Muriel Wolland, d/b/a Bacon Manor Farms, Defendant-Appellee).
    Fourth District
    No. 4 — 89—0240
    Opinion filed September 28, 1989.
    Rehearing denied October 30, 1989.

      'Donald K. Birner, of Pekin, for appellants.
    Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, Frederick P. Velde, and Guy A. Studach, of counsel), for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiffs, Terry Cross and Jenny Cross, appeal the trial court’s dismissal of their case against defendant Muriel Wolland (Muriel) for failure to state a cause of action. Plaintiffs allege in their complaint that Muriel placed an advertising sign at an intersection that blocked the view of the cross-traffic. Plaintiff Terry Cross and the other defendant were involved in an automobile accident at that intersection. Plaintiffs allege that Muriel’s placement of the sign constituted a breach of the duty of care Muriel owed to the plaintiffs.

We disagree and affirm.

Plaintiff Terry Cross (Terry) was involved in an automobile accident with defendant Brenda Moehring (Brenda). The accident occurred at an intersection where Brenda had a stop sign facing her as she approached the intersection, and Terry did not. Brenda was traveling eastbound and Terry was traveling northbound when the accident occurred. Muriel’s advertising sign was located on the southwest corner of this intersection. Plaintiffs do not allege in their complaint that the advertising sign obstructed Brenda's view of the stop sign; instead, they allege only that the advertising sign obstructed Brenda's view of the cross-traffic at that intersection.

Muriel filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), alleging plaintiffs’ failure to state a claim for which relief could be granted. Muriel contended that she owed no duty to plaintiffs to erect her sign in a manner that would not obstruct cross-traffic.

The trial court granted Muriel’s motion. At issue is whether plaintiffs stated a cause of action against Muriel for her having erected an advertising sign which, according to the complaint, blocked the view of cross-traffic at a controlled intersection where plaintiff was involved in an automobile accident. The standard of review is whether the complaint sufficiently stated a cause of action. S & F Corp. v. American Express Co. (1978), 60 Ill. App. 3d 824, 828, 377 N.E.2d 73, 77; Ording v. Springer (1980), 88 Ill. App. 3d 243, 246, 410 N.E.2d 428, 431.

In Esworthy v. Norfolk & Western Ry. Co. (1988), 166 Ill. App. 3d 876, 879, 520 N.E.2d 1044, 1046, this court held that, “There is no duty owed in Illinois for trees obstructing visibility of motorists on an adjoining highway by either a municipal landowner or a private one at a controlled intersection and the visibility of the traffic controls has not been obstructed.” (See also Pyne v. Witmer (1987), 159 Ill. App. 3d 254, 512 N.E.2d 993.) The issue presented by this appeal is whether a landowner is under a duty not to erect or to create an artificial condition, such as an advertising sign, at an intersection that obstructs an approaching motorist’s view of cross-traffic. Plaintiffs argue that such a duty should be recognized under Illinois law, citing in support of their argument Lemings v. Collinsville School District No. 10 (1983), 118 Ill. App. 3d 363, 454 N.E.2d 1139, and Restatement (Second) of Torts (Restatement (Second) of Torts §368 (1965)). Plaintiffs urge that we adopt the distinction provided by the Restatement between natural and artificial conditions that obstruct the vision of persons using a public way. While the Restatement (Second) of Torts is authority deserving of the highest respect, we decline to follow its recommendation concerning the issue before us. We also note the specially concurring opinion of Justice Jones in the Lemings case as being a basis for distinguishing that case from our present one. Justice Jones makes clear that the court in Lemings really did not decide the question of duty; instead, it viewed the issue before it as one concerning proximate cause. Lemings, 118 Ill. App. 3d at 368, 454 N.E.2d at 1142.

At oral argument, we asked counsel for the plaintiffs how our finding a duty under Illinois law for landowners not to erect or to create an artificial condition at an intersection that obstructs an approaching motorist’s view of cross-traffic would affect urban landowners who have erected buildings at intersections right up to their lot lines, in some cases no more than a few feet from each intersecting street. Counsel was not able to assuage our concerns about the havoc such a finding might cause. We do not find persuasive counsel’s suggestion that we not concern ourselves with this urban question since this case involves a rural intersection. We decline to do so for two reasons. First, we have difficulty discerning a principled basis for one rule governing rural intersections and another governing urban ones; and second, an urban versus rural distinction may not be all that helpful even if drawing such a distinction were appropriate. Whether a particular area is “urban” or “rural” is often in the eye of the beholder. Also, urban areas gradually become rural as one travels a highway from the center of town to the countryside. We think this distinction would likely cause great uncertainty.

The last problem with the “urban’’/“rural” distinction is that it would provide no stability. Today’s rural crossroads may be tomorrow’s mini-mall.

Following Esworthy, we hold that a landowner owes no duty not to erect or to create an artificial condition at an intersection that obstructs an approaching motorist’s view of cross-traffic. The imposition of such a duty would likely have wide-ranging and possibly adverse consequences. We believe that a balancing of the policy considerations in favor of and against the imposition of such a duty is better left to the legislative branch of our government.

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

Affirmed.

McCULLOUGH, P.J., and GREEN, J., concur.