text:
    The People of the State of Illinois, Petitioner-Appellee, v. Gregory Bradley, Respondent-Appellant.
    (No. 59583;
    First District (2nd Division)
    September 24, 1974.

      Paul Bradley and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and William F. Linkul, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This appeal arises from an order finding respondent, Gregory Bradley, in need of mental treatment and ordering his commitment to the Department of Mental Health pursuant to the Illinois Mental Health Code. Respondent contends on appeal:

1. He was not proved to be in need of mental treatment;
2. Proper notice of the commitment hearing, as required by Section 7 — 6 of the Mental Health Code, was not served upon respondent’s wife; and
3. Respondent did not knowingly waive his right to a jury trial on the issue of his need for mental treatment.

In a petition for emergency hospitalization, dated February 4, 1972, and signed by one Walter Borchard (described only as a “reputable citizen of Illinois”), respondent was alleged to be in need of mental treatment. Petitioner stated that the facts were established by the attached certificate of Dr. S. Lipkin. Pet tioner alleged that an emergency existed, and that he believed that the respondent “is in such condition that he is likely to physically harm himself or others if not immediately hosp'talized.” The space provided for a summary of the facts upon which petit'oner based his belief was left blank.

The petition was accompanied by a “Certificate of Need for Hospitalization” signed by S. Lipkin, M.D. Th:s certificate asserted that Dr. Lipkin is a licensed psychiatrist, and that he personally examined respondent on February 4, 1972 and found:

“Previously at Tinley State Hosp. Presently uncooperative, suspicious and self-protective without cause, loss of sense of reality and paranoid in his th'nking. Behaviour becomes assaultive and uncontrolled on the slightest stimulation.”

Dr. Lipkin certified that in his op'nion respondent was in need of mental treatment and that he should be hosp talized immediately “for the protection from physical harm of himself and others.”

The record also conta'ns a second “Certificate of Need for Hospitalization.” This also purportedly was filed with the clerk of the court on February 4, 1972; however, it is not stamped filed. This certificate indicates that one Dr. Rebic, a licensed phychiatrist, examined respondent on February 8, 1972 (not on February 4, 1972), and found:

“Pt. withdrawn, suspicious, very resentful of physician interview. Vague, on guard and evasive when finally did allow himself into dialog. It was learned that he was arrested Jan. 18 at CCIL when he decided not to lleve [sic] bedside of his wife. Dr. called the police. During the court appearance Judge charged him [with] contempt of court and sentenced him [to] 6 months to [sic] jail. He does not know of any reason why he was taken here in the middle of his sentence. He believes this is a ‘railroad’ or it was about 2 years ago when he was hosp. of [sic] Tinley and from there to Downey where he stayed a year and decided to leave on his own because ‘they would not let him go.’
Pt. believes ‘he cannot get fair trial in America’ and is not going to give me a chance to alallze [sic] him and there is no use trying. He avoided relating on interpersonal level. Appeared preoccupied. I believe autistic and did say that all his life is based on anti-American'sm and when one day he gets chance to speak on Radio, TV and write for newspaper he’ll express more to the point and we’ll know what he has been concerned about. Pt. seems more depressed and more disturbed than he allows to meet the eye.”

Dr. Rebic certified that in her opin'on respondent was in need of mental treatment and that he be “hospitalized in a suitable public or private hospital.” This certificate also contains a notation “paranoid state” written in the margin.

Also shown as filed on February 4, 1972 is a “Notice of Hearing” directed to respondent’s wife, Debra Bradley. A deputy sheriff noted that a copy was personally served on Mrs. Bradley on February 9, 1972. The notice was captioned “In the matter of Gregory Bradley 3 ° ** asserted to be in need of mental treatment.” Following this statement Mrs. Bradley was informed that on February 4, 1972, a petition was filed. The printed notice form then lists four explanations for the petition: “is in need of mental treatment and requires hospitalization,” “is mentally retarded and requires hospitalization,” “is in need of continued hospitalization,” and “is not in need of mental treatment or hospitalization.” None of these explanations were checked. Finally, the notice informed Mrs. Bradley that a hearing had been set for February 10, 1972, at 9:30 A.M. at 6500 Irving Park Road, Chicago, Illinois.

On February 9, 1972, a timely order for hearing on the petition was filed. The hearing was set for February 10, 1972. The sentence on the order form “A jury be impanelled consisting of six persons” was stricken.

On February 16, 1972, the evidentiary hearing was held (the record does not reflect what proceedings, if any, occurred on February 10, 1972). Respondent elected to act pro se; an assistant public defender was present to “assist” him. The court initiated the proceedings by asking for “some background on the patient.” A person identified only as a “Social Worker” then testified without objection that:

“Mr. Bradley was previously hospitalized at Tinley Park transferred from Chicago State on July the 31, of 1970 and then was transferred at that date to Tinley Park. From 8/7/70 and was discharged 9/29/70. He was also at V.A. Hospital, Downey, in particular in 1971 from September until August. Patient, uh, was not cooperative with me and gave me very little information to his family background and as to what he was doing and as to why he was arrested. However, I did speak to his wife.”

The “Social Worker” proceeded to state that respondent’s wife related that she had been ill in the hospital and that because of that respondent had stayed in the hospital with her for over a week and would not leave until “his wife was ready to go.” Security guards and police were summoned and respondent was taken to the House of Correction and then transferred “here” to Chicago State.

At this point respondent and the court entered into a lengthy colloquy whereby respondent related that a doctor at the hospital told him it was perfectly all right for him to remain with his wife. His wife was pregnant and he took care of her because “they didn’t allow the special attention that she needed at the time.” This was his wife’s third eye operation. Hospital personnel told him to go home and rest. Respondent answered that he would like to stay at least a day or two after the operation. The woman doctor told him he could not and “the next thing I knew the guards came in.” This incident occurred at approximately 8 or 9 P.M. Respondent told the court:

“I wasn’t aware of the fact, if I didn’t leave she would go get the officers. Under those circumstances I would have left, but I wasn’t informed and I thought, just realize, my concern and let me, allow me to stay.”

The court responded: “Yes, Well, must have been more to it. You must have refused to leave.”

Dr. Rebic, in response to the court’s questioning, then testified as to her examination of respondent subsequent to his admission into the hospital. Dr. Rebic found respondent to be very tense during the interview, “He kept his hands, completely withdrawn and distant.” During the course of the interview respondent stated that he did not intend to cooperate. Respondent would not “discuss the pertinent issue,” or “go into details.” Respondent related to Dr. Rebic that he was arrested in Cook County Hospital at the bedside of his wife who had undergone her third eye operation. He stated that “he did not trust to leave her alone with the professional people there. He felt there [sic] not going to give her the right treatment.” Respondent stated that he had a right to be concerned, but he refused to explain his suspiciousness. He related that he decided to remain at the hospital, the doctor asked him to leave and told him he would call the police. Respondent refused to leave and when the police arrived he resisted arrest.

Dr. Rebic testified that she “couldn’t get him to talk about what did happen in the Courtroom, that they said he was disorderly and was fighting with the bailiffs,” and that therefore she “had to use the record quite a bit.” At this point the assistant public defender raised a hearsay objection which the court sustained. Dr. Rebic then stated that respondent related to her prior to the hearing that “he could not tolerate the treatment in the Courtroom, simply, decided he’s not going to cooperate and did fight with the bailiffs.” He was sent to County Jail prior to being transferred to the hospital.

Dr. Rebic further testified that respondent felt that he could not receive a fair trial in America; that his life was “Anti-American”; that Dr. Rebic would not understand anything he told her; that he was “railroaded” at Downey and this hospitalization was a “railroad”; that he was charged with selling Panther literature at the time of the Panther trial and he resisted arrest and was sent to Tinley Park and then Downey. Dr. Rebic related that respondent was unemployed and that he expressed concern for the mistreatment of his family and his race, concern with America, the sexual revolution, “all of the books written, all of the movies made.” Respondent stated that when he has access to the communication med'a, he will let the world know his thoughts.

Dr. Rebic then stated her conclusions from the interview:

“It is impossible to elicit any delusional material, simply, because the patient would not respond to this type of questioning.
# * *
He did not offer any spontaneous conversation * I*******9 *. I asked about hallucinatory experiences, if he had anv, although I had my doubts that he did. He sa:d. he laughed and he said, he never had these why would I ask such a quesrion. Now what was left for me to observe was generally his attitude which was suspicious, his speech evasive and a marked guard. There was no way to get him engaged in any relevant conversation. He was borderline agitated, quite anxious, very tense * * *. Was most definitely not willing to talk to me.
ft ft ft
[I]t was very difficult for me, very difficult to decide if he’s schizophrenic, paranoid, very much so at this time. My impression was simply considering the previous hospitalization of one year duration and him now at the present time that the patient is suffering from some kind of paranoid state which I’m not quite able to define.
ft ft ft
I would recommend hospitalization.
# # a
I don’t believe this patient is able to conduct h'mself as he showed in a time of much pressure. It’s just simply difficult to elaborate on and I don’t believe that he’s going to be able to take care of himself adequately.
ft ft ft
He doesn’t seem to be concerned of the relevant things, a job and his conduct. * * s Th's young man is preoccupied, he just very difficult to elaborate on it, because he doesn’t let anything out.”

Dr. Rebic answered affirmatively to a question by the assistant State’s Attorney as to whether the incident in the hospital and the incident in the courtroom indicated that “he conceivably could be a danger to himself or others.” Dr. Rebic commented that respondent was not discharged from Downey, but left of his own accord.

Respondent then made a statement to the court that at the time of the interview with Dr. Rebic, his tenseness was caused by medication he had received. Respondent also explained the incident in the courtroom: He was speaking and the judge was talking. A bailiff grabbed him and he turned around and swung. Twenty policemen then beat him. Respondent stated, in response to Dr. Rebic’s opinion, that after he left Downey he took care of his wife until she recovered. The court inquired of respondent’s stay in Tinley Park and respondent answered that he was there for 1 month and in Downey for 1 year and was then discharged.

The court found respondent to be suffering from mental illness, as a result of which “he’s likely to cause harm not to himself particularly, but to other people # Respondent was found to be in need of mental treatment and was ordered hospitalized for treatment.

The Illinois Mental Health Code defines a person in need of mental treatment as one, who as a result of his mental illness,

“* * * is reasonably expected at the time the determination is being made or within a reasonable time thereafter to intentionally or unintentionally physically injure himself or other persons, or is unable to care for himself * *

Respondent’s first contention is that he was not proved to be in need of mental treatment. In his brief he argues that the burden of proof in civil commitment proceedings must be beyond a reasonable doubt. In a recent opinion, which considered at some length the authorities cited by respondent here, this court resolved this precise issue. In People v. Sansone, 18 Ill.App.3d 315, 309 N.E.2d 733, leave to appeal denied May 29, 1974, we rejected a reasonable doubt standard of proof and held that the State must prove that an individual is in need of mental treatment by clear and convincing evidence:

“The facts upon which a medical opinion is based must be established by clear and convincing evidence, and the medical testimony upon which the decision to commit is based must be clear and convincing. 18 Ill.App.3d 315, 326.”

In Sansone we recognized that a matter of paramount importance in an involuntary civil commitment proceeding is the right of the individual to be free of unjustified and unreasonable confinement. From our scrutiny of the entire record in this case, we conclude that the evidence adduced is insufficient to support a finding that respondent is in need of mental treatment. Neither the facts upon which Dr. Rebic’s medical opinion was based, nor the medical opinion itself are clear and convincing. The decision to commit respondent was based upon (1) the incident at the hospital; (2) the incident in the courtroom; (3) respondent’s previous hospitalization; and (4) Dr. Rebic’s observations of respondent’s demeanor and her medical opinion.

Initially we note that criminal charges alone are insufficient evidence that a person may reasonably be expected to harm himself or others. (Cf. Jackson v. Indiana, 406 U.S. 715.) However, it is clear that conduct which is the subject of criminal prosecutions may provide the basis for a medical opinion that a person may be likely to cause physical injury, and for a finding that a person is in need of medical treatment.

In the instant case the facts concerning the hospital incident were established by (1) the hearsay testimony of an unidentified social worker who stated that respondent’s wife related that he would not leave the hospital until she was discharged; (2) Dr. Rebic’s testimony that respondent told her that he refused to leave the hospital and he resisted arrest; and (3) respondent’s own testimony that he was concerned about his wife and wanted to remain with her, but that he would have left voluntarily if he had known that police were going to be called. From this evidence, it cannot be said that the State proved by clear and convincing evidence that respondent’s conduct was violent or assaultive at the hospital.

Likewise, we do not believe that the evidence adduced by the State regarding the incident in the courtroom clearly and convincingly established that respondent, without provocation, initiated the scuffle in the courtroom. Respondent’s testimony was that he was brought to court and there assaulted from behind; he responded by turning and swinging. Dr. Rebic testified that respondent would not speak of the incident and that she relied on the “record.” She then altered her position somewhat and stated that respondent told her that “he could not tolerate the treatment in tire courtroom” and that consequently he fought with the bailiffs. Dr. Rebic’s testimony does not in any material way contradict respondent’s testimony of the incident. The only competent evidence adduced indicated that respondent did not initiate the scuffle. Respondent’s action cannot be condoned; however, under the circumstances of his wife’s illness and his arrest at the hospital, it becomes more understandable.

The State urges that the incident at the hospital and the incident in the courtroom, taken together, “exhibit respondent’s propensity to resort to violence.” We do not agree. The “facts” adduced by the State were unclear, and in some instances, were merely hearsay.

Evidence of prior hospitalization was adduced and corroborated by respondent. However, due process requires that a decision to commit be based upon a fresh evaluation of an individual’s conduct and state of mind and not upon prior hospitalization or prior commitment proceedings. (Cf. People v. Sansone, supra.) Evidence of prior hospitalization, together with facts underlying that hospitalization, may, of course, be relevant factors in the prediction of future behavior. However, here the sole fact adduced was prior hospitalization.

Moreover, we conclude that the medical opinion that respondent conceivably could cause harm to himself and others does not meet the cléar and convincing standard set forth in Sansone:

“[W]e are of the opinion that a decision to commit based upon a medical opinion which clearly states that a person is reasonably expected to engage in dangerous conduct, and which is based upon the experience and studies of qualified psychiatrists, is a determination which properly can be made by the State.
* * * [A] finding must be based upon an explicit medical opinion regarding the patient’s future conduct, and cannot be based upon a mere finding of mental illness.” 18 Ill.App.3d 315, 323.

In the instant case Dr. Rebic’s explicit medical opinion was that respondent was suffering from a mental illness and that he should be hospitalized. However, as stated in Sansone, this finding of mental illness cannot alone sustain an order requiring commitment to a mental hospital. An explicit medical opinion must be rendered that, based upon the patient’s conduct, it is reasonably expected that he will harm himself or others or will be unable to care for himself. The medical opinion rendered here does not meet this standard. Dr. Rebic’s diagnosis was equivocal and unclear. She found it “difficult to decide if respondent was schizophrenic, paranoid.” Her “impression” was that, based upon his previous hospitalization and his present demeanor, he was “suffering from some kind of paranoid state which I’m not quite able to define.” In answer to the assistant State’s Attorney’s question as to whether respondent “conceivably could be a danger to himself or others,” Dr. Rebic answered affirmatively.

Perhaps Dr. Rebic’s difficulty in diagnosing and rendering an opinion arises because the “facts” upon which her opinion was based do not clearly and convincingly lead to a conclusion of likelihood of harm or injury. Therefore, tire most that could be said is that respondent could “conceivably” be dangerous. In Sansone, we recognized that the science of predicting future behavior is inexact and that a psychiatrist cannot assure infallibility of his prediction. However, the tenuous medical opinion rendered in the instant case cannot be a basis for commitment pursuant to section 1 — 11 of the Mental Health Code.

We also note that Dr. Rebic found respondent to be unable to care for himself. However, the trial court did not base its decision to commit on this opinion. In any event, this opinion was based upon respondent’s seeming unconcern for “relevant things,” i.e., a job, “his conduct.” Suffice to say that we are not convinced that the facts adduced in this regard present a sufficient basis for such an opinion.

To hold that a medical opinion that an individual could “conceivably” be dangerous, based upon such facts as appear in this record, is adequate to support a decision to commit for emergency hospitalization would be a total disregard of an individual’s right not to be unjustly or unreasonably confined. The evidence adduced in the instant case by no means approaches the quantum of proof established in Sansone. There a psychiatrist and a social worker, both of whom interviewed Sansone on two different occasions, testified without contradiction as to Sansone’s delusions regarding law and law enforcement officers. The psychiatrist testified that Sansone’s statements and actions “strongly” indicated that he believed “people are after him,” and that persons whom the psychiatrist had known with the same type delusions had injured or attempted to injure others. Therefore, in Sansone, unlike in the instant case, the facts adduced and the medical opinion led to a clear finding that the patient could reasonably be expected to injure others, and that therefore, the patient was in need of mental treatment. The facts and medical opinion here have not been established by clear and convincing evidence, and accordingly, the decision to commit must be reversed. See People v. Sciara, 21 Ill.App.3d 889, 316 N.E.2d 153.

In view of the nature of civil commitment proceedings, we deem it advisable to consider respondent’s additional contentions. Respondent argues that his wife received improper notice of the hearing. Section 7 — 6 of the Mental Health Code provides:

“[Reasonable notice of the time and place of the hearing be served upon the patient, his attorney, if any, and the persons entitled to receive a copy of the petition pursuant to Section 7 — 4.”

It is undisputed that the notice of the hearing was served upon respondent’s wife and that it did indicate the time and place of the hearing. In those respects the notice complied with the statutory requirements. Respondent’s argument is based upon the fact that, because the printed notice form contained four possible explanations as to the purpose of the hearing and none of these had been checked, Mrs. Rradley was not notified of the purpose of the hearing. However, we note that section 7 — 4 of the Code requires that a copy of the petition be served upon the patient’s nearest relative, and therefore, we assume that Mrs. Bradley received a copy of the petition (the record is silent as to this fact, as are the briefs). The petition informed her that proceedings had been initiated for the hospitalization of her husband. Additionally, the notice of hearing referred to the-petition and indicated that respondent was asserted to be in. need of mental treatment. Under these circumstances, there is no merit to the contention that Mrs.' Bradley received no notice of the purpose of the hearing.

Respondent’s final argument, that he did not knowingly waive his right to a jury trial,, is premised upon the related contention that due process requires a right to a jury trial in involuntary civil commitment proceedings. In People ex rel. Keith v. Keith, 38 Ill.2d 405, 231 N.E.2d 387, our supreme court held that the Illinois Constitution of 1870 does not require a jury trial in civil commitment proceedings. The right to trial by jury in special statutory actions exists, not by virtue of' any constitutional requirement, but by virtue of the rights conferred under these acts by the legislature. People v. Studdard, 51 Ill.2d 190, 281 N.E. 2d 678.

Our supreme court, in People v. Studdard, supra, has recently held, in proceedings pursuant to the Illinois Sexually Dangerous Persons Act, that due process of law does not require a right to trial by jury as in criminal matters nor the safeguards surrounding the waiver of jury trial as in criminal matters. We are of the opinion that the rationale in Studdard is applicable in proceedings under the Illinois Mental Health Code. Section 9 — 2 of the Code provides that a patient, his attorney or relative may demand a jury trial. We find nothing in this provision which violates due process of law. There is a significant difference between a waiver of- an existing constitutional right and a failure to comply with a condition precedent to the existence of a statutory right.. Accordingly, we reject respondent’s contention that he did not knowingly waive his right to a jury trial.

For the foregoing reasons, we reverse the order of commitment.

Reversed.

HAYES, P. J., and DOWNING, J., concur.

       Ill. Rev. Stat. 1971, ch. 91%, par. 1 — 1 et seq.

       Ill. Rev. Stat. 1971, ch. 91%, par. 7 — 6.

       Ill. Rev. Stat. 1971, ch. 91%, par. 7 — 1.

       Ill. Rev. Stat. 1971, ch. 91%, par. 7 — 1, provides that a petition for emergency hospitalization should be accompanied by a certificate of a physician.

       This apparently is certification by a psychiatrist that the pat:ent is in need of mental treatment. Such certification is required within 24 hours, excluding Saturdays, Sundays and holidays, of a patient’s admission inLo a hosnital (Ill. Rev. Stat. 1971, ch. 91%, par. 7 — 5). Because February 4, 1972, was a Friday, more than 24 hours elapsed before certification.

       Ill. Rev. Stat. 1971, ch. 91%, par. 7 — 6, requires reasonable notice of the time and place of the hearing to be served upon the patient’s nearest relative.

         Ill. Rev. Stat. 1971, ch. 91%, par. 7 — 6, provides that after the petition and certificate are filed with the clerk, he “shall immediately present them to the judge * * * who shall set them for hearing at a time not more than 5 days, excluding Saturdays, Sundays and holidays, after the admission of the patient to the hospital.”

       Ill. Rev. Stat. 1971, ch. 91%, par. 1 — 11.

       Ill. Rev. Stat. 1971, ch. 91%, par. 7 — 6.

       Ill. Rev. Stat. 1971, ch. 91%, par. 9 — 2.


source: Caselaw Access Project

author: Mr. JUSTICE LORENZ

license: Public Domain

text:
      In re Application of County Treasurer of Cook County—(The People ex rel. Bernard Korzen, County Treasurer, Relator-Appellee, v. Fulton Market Cold Storage Company, Objector-Appellant.)
    (No. 59447;
    First District (5th Division)
    September 27, 1974.
    Moses, Gibbons, Abramson & Fox, of Chicago (James L. Fox, of counsel), for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Sheldon Gardner, Henry A. Hauser, Donald P. Smith and Alan L. Fulkerson, Assistant State’s Attorneys, of counsel), for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Upon application of the Cook County collector, the circuit court of Cook County, basing its decision on objector’s failure to exhaust its administrative remedies, entered judgment against objector for 1969 real property taxes. On appeal objector contends: (1) that it was not required to exhaust its administrative remedies; (2) that the judgment resulted in a deprivation of due process of law; (3) that the Federal civil rights act is applicable; and (4) that the civil rights act is not affected by the exhaustion of administrative remedies doctrine.

Objector, after paying its taxes under protest as required by sections 194 and 235 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, pars. 675 and 716), filed lengthy objections to the Cook County collector’s application for judgment and sale of its 1969 real property taxes. The thrust of the objections was that because of the improper assessment procedures utilized in Cook County it was required to bear a disproportionate part of the tax burden.

The Cook County collector filed a motion to dismiss the objections for failure to exhaust administrative remedies pointing out that the objector had not filed a complaint regarding its 1969 assessment with the Cook County Board of Appeals. Objector filed an answer to the motion to dismiss alleging that the statute does not require it to appear before the Board of Appeals; that an appearance before the Board would be a useless act; that the Board had adjourned prior to the determination of the 1969 multiplier; and that the value of the property is not at issue.

After an evidentiary hearing, the trial court made the following determinations substantially in accord with the allegations in the objections: (1) that the objector owns improved property at 1000 West Fulton Market in Chicago; (2) that the fair market value of the property in 1969 was $1,451,000; (3) that for 1969 the property was assessed at $1,080,785, or at about 65% of the fair cash value, and was equalized at $1,642,793, which is within the realm of reasonable differences of opinion regarding fair cash value; (4) that objector did not file a complaint for 1969 with the Cook County Board of Appeals; (5) that median assessment for real property in Cook County for 1969 and the five preceding years are less than or equal to 27% of fair cash value indicating a continuity of purpose on the part of assessment officials to keep the assessment levels below the level of fair cash value prescribed by the Revenue Act; (6) that wide variations exist in the assessment levels of the different classes of property in Cook County arid among the propertiés in each class indicating a continuity of purpose on the part of the assessing officials to assess property at different percentages of fair cash value; (7) that both county and state officials have taken no steps to correct the situation; and (8) thát there is an intentional, wilful and systematic discrimination against the objector as a result of which objector’s property is assessed at about 240% of the level for property generally in Cook County. The court concluded that this situation worked a constructive' fraud on objector; that the assessing officials were violating sections, 20, 130, 131, and 140 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, pars. 501, 611, 612 and 621); and that those officials were depriving objector of its rights under the uniformity provisions of the Illinois Constitution of 1870. The court noted that objector would have been entitled to a refund of approximately $62,000 had it filed a complaint with the Board of Appeals. However, since objector did not file- such a complaint, on the strength of People ex rel. Nordlund v. Lans, 31 Ill.2d 477, 202 N.E.2d 543, and People ex rel. County Collector v. Bostwick, 33 Ill.2d 74, 210 N.E.2d 189, the court entered judgment for the county collector.

OPINION

Objector first contends that it was not required to exhaust its administrative remedies. It argues that an appearance before the. Board of Appeals was a useless act since the Board lacked authority to change the instant assessment and because it had previously been denied relief before the same Board; that justice requires that an exception to the doctrine of exhaustion of administrative remedies be made here; and that the cases relied upon by the trial court are distinguishable.

, Objector’s primary argument is that the Board of Appeals lacked authority to change the 1969 assessment on its property. The Revenue Act-was specific regarding the standard to be applied in 1969 for valuing real property. Section 20(1) of the Code (Ill. Rev. Stat. 1969, ch. 120, par. 501(1)) provides:

“Each tract,or lot of real property shall be valued at its fair cash value, estimated at the price it would bring at a fair, voluntary sale.”

. Objector points out that the equalized assessment of its property for 1969 was essentially equal to the fair cash value of its property and .the trial court made a-finding to that effect. Thus, it is clear that the ultimate effect of the process of assessment and equalization in the instant-case was-in conformity with section 20(1) as it then existed.

Objector argues-that since-its property was properly valued, albeit •after, equalization, the' Board of Appeals had no authority to act on, any complaint it might have filed even upon a showing that it was bearing. a disproportionate share of the tax burden as a result of other property in the county being under assessed. Section 113 of the Revenue Act (Ill. Rev. Stat. 1969, ch. 120, par. 594) specifies the powers and duties of Boards of Appeal in counties of 500,000 or more inhabitants. Paragraph (1) of that section states:

“On complaint that any property is over assessed or under assessed, or is exempt, review and order such assessment corrected.”

The State argues that the terms “over assessed” in this paragraph provide ample authority for the Board to act in the instant case where" objector complains that its property was assessed at a higher level than was other property in the county. However, in view of section 20(1) of the Revenue Act, establishing fair cash value as the standard of; real property valuation for tax purposes, the Board upon complaint had no authority to reduce objectors assessment to anything less than fair cash value. (See Chicago, Burlington & Quincy R.R. Co. v. Department of Revenue, 17 Ill.2d 376, 391, 161 N.E.2d 838, 847.) Indeed, had objector filed a complaint, the Board, pursuant to section 20(1), may have been obligated to raise objector’s assessment to fair cash value. Such action, together with the application of the equalizing multiplier, would only have aggravated objector’s plight since its property was already assessed at a value above that of the other property in the county and would not have resulted in raising the assessments on those properties which are underassessed. Furthermore, objector cannot be expected to file a complaint with the Board of Appeals for each and every parcel of under-assessed property in the county.

When a taxpayer properly complains that he is bearing a disproportionate share of the tax burden because of the undervaluation of other property in the county, the Illinois Supreme Court has indicated that the tax objection procedure is the proper remedy to pursue. (People ex rel. Cain v. Illinois Central R.R. Co., 33 Ill.2d 232, 210 N.E. 516; People ex rel. Kohorst v. Gulf, Mobile & Ohio R.R. Co., 22 Ill.2d 104, 174 N.E.2d 182; People ex rel. Hillison v. Chicago, Burlington & Quincy R.R. Co., 22 Ill.2d 88, 174 N.E.2d 175; People ex rel. Callahan v. Gulf, Mobile & Ohio R.R. Co., 8 Ill.2d 66, 132 N.E.2d 544.) The proper measure of damages in such circumstances is not the amount of tax the objector would have paid had its property been valued at the same level as other property in the county. Such a measure of damages would require a departure from the statutory standard of valuation. (People ex rel. Hillison v. Chicago, Burlington & Quincy R.R. Co., 22 Ill.2d 88, 102, 174 N.E.2d 175, 181-182.) Rather, as the court explains in People ex rel. Kohorst v. Gulf, Mobile & Ohio R.R. Co., 22 Ill.2d 104, 112, 174 N.E.2d 182, 187, “[t]he measure of recovery is the difference between the amount of taxes extended against the objectors and the amount which would have been extended had the locally assessed property been equalized at 100% full, fair cash value." It is clear that the Board of Appeals was in no position to grant this relief, the amount of the tax bill not then being known.

In these, circumstances, objector was not required to file a complaint with the Board of Appeals. The judgment of the circuit court of Cook County is reversed and the cause is remanded to that court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

SULLIVAN, P. J., and BARRETT, J., concur.


author: JUSTICE McLAREN

text:
    JUAN VALLEJO, Plaintiff-Appellant, v. JOSE LUIS MERCADO, Defendant-Appellee.
    Second District
    No. 2—91—0201
    Opinion filed October 18, 1991.

      John G. McAuley, of Rigsby & McAuley, of Chicago, for appellant.
    Linda E. Spring and John W. Barbian, both of Wildman, Harrold, Allen & Dixon, of Waukegan, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Juan Vallejo, appeals from an order entered by the circuit court of Lake County which barred plaintiff from using the testimony of his expert witness at trial and which granted the motion for summary judgment of defendant, Jose Luis Mercado. Plaintiff raises two issues on appeal: (1) whether the trial court erred in granting defendant’s motion to bar the testimony of plaintiff’s expert witness; and (2) whether the trial court erred in granting defendant’s motion for summary judgment when there are genuine issues of material fact. We reverse and remand.

Plaintiff filed his complaint against defendant on November 3, 1989. Plaintiff alleged that defendant requested that plaintiff come to defendant’s home for the purpose of assisting defendant in cutting down the trees on defendant’s premises. He further alleged that, on or about September 29, 1989, defendant gave his Homelite C-51 convertible drive chain saw to plaintiff to use. He alleged that defendant had a duty not to endanger plaintiff’s well-being while plaintiff was on defendant’s property and that defendant breached this duty in that he:

“a. failed to instruct the Plaintiff in the proper manner of operating the chain saw when he knew or should have known the Plaintiff had not previously used a chain saw;
b. failed to advise the Plaintiff that the chain saw would ‘jump’ when cutting knotted pieces of wood;
c. failed to supervise the Plaintiff’s use of the chain saw when he knew or should have known the Plaintiff had not previously used a chain saw;
d. failed to advise the Plaintiff that the chain saw did not have an automatic cut-off switch;
e. provided the Plaintiff with a defective chain saw.”

The complaint alleged that, as a direct and proximate result of one of these acts or omissions of defendant, plaintiff was struck across his face by the chain saw when it “jumped” off a piece of wood he had been cutting, causing plaintiff to suffer temporary and permanent personal injuries. Plaintiff sought damages in excess of $15,000 plus costs of suit.

Defendant filed a jury demand on January 17, 1989. On January 23, 1990, he also filed an answer to the complaint and an affirmative defense, which alleged that plaintiff did not exercise reasonable care for his own safety while operating the chain saw in question.

An order was entered on March 13, 1990, which stated that trial was set for October 29, 1990, and that plaintiff was to disclose experts within 60 days and defendant was to disclose experts within 90 days. On October 15, 1990, plaintiff filed a motion for leave to file an amended complaint and a motion to continue the trial date. In his motion to continue, plaintiff alleged that defendant’s deposition was taken on September 12, 1990. During the deposition, information first became available to plaintiff regarding a new theory of liability against defendant, that defendant “maintained and/or repaired the chainsaw [sic] involved in the accident in a negligent manner.” Plaintiff further alleged that he required additional time to conduct discovery as to the proper standards of maintenance and repair of chain saws.

An order was entered on October 19, 1990, which granted plaintiff leave to file an amended complaint and which set the cause for trial on February 4, 1991. An amended complaint was filed which stated that the accident occurred on or about September 19, 1989, and added an allegation that defendant breached his duty to plaintiff in that he “failed to properly maintain or repair the chain saw.”

On December 5, 1990, defendant filed a motion for summary judgment pursuant to section 2— 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005). Defendant alleged that no genuine issue of material fact existed “as to plaintiff’s inability to demonstrate any negligence on defendant’s part as a proximate cause of plaintiff’s accident.” Attached to the motion were the complete transcripts of the deposition of plaintiff, taken June 22, 1990, and the deposition of defendant, taken September 12, 1990.

Essentially, the depositions established that plaintiff and defendant were acquainted because plaintiff had rented an apartment from defendant for about three months prior to the accident. Approximately two weeks prior to the accident defendant asked plaintiff to do some work for him cutting a tree. Plaintiff told defendant he would ask Martin Rodriguez about it because Martin knew more about it and plaintiff needed help to do it. On September 19, 1989, plaintiff and Rodriguez decided to do the job together and split the money. They arrived at defendant’s house at approximately 4:30 in the afternoon, and defendant agreed to pay them $100. Defendant wanted them to cut some branches on a big tree behind a house that he owned and to cut some branches on an apple tree at his residence.

Defendant gave his chain saw, a ladder, and some rope to plaintiff and Rodriguez. Defendant testified that he gave plaintiff and Rodriguez instructions regarding how to start the chain saw and told them two or three times to be careful. Defendant stated that plaintiff then told him that Rodriguez already knew how to use the saw. Plaintiff testified that defendant had problems starting the chain saw and had to take it apart, clean the filters, and put in freshly mixed gas in order to start it. Defendant stated that the saw started fine.

Rodriguez went up into the tree, pulled the chain saw up with the rope and cut some branches from the tree. Rodriguez did not have any problems with the saw. Rodriguez then came down from the tree, and plaintiff started cutting the branches on the ground. Plaintiff did not know how to start the saw, so defendant showed him. Plaintiff stated that he had never operated a chain saw before. He did not know that chain saws jumped. He had, however, used different types of saws during his employment as a laborer, including a “partner” saw, which plaintiff described as similar to a chain saw. The partner saw used a blade rather than a chain. Plaintiff did not tell anyone that he had never operated a chain saw.

Plaintiff cut up one branch into four or five sections and had no problems with the saw. Defendant and Rodriguez carried the sections to the street. Plaintiff began cutting a second branch, which was lying on the ground, when the chain saw jumped up and hit him in the face, knocking him unconscious. It hit him between the eyebrows and down his nose. Defendant and Rodriguez were by the street and did not see the accident.

Defendant testified that he purchased the chain saw for $50 at Seven Mile Fair, Wisconsin, about two years prior to the accident. He did not receive any instructions with the saw. Defendant had used the saw at least 10 times before the accident and had never had any problems with it. Defendant stated that the chain did not turn, even though the engine was running, unless the trigger in the handle was pressed. Defendant stated that the chain stopped in less than a second after the trigger was released. Plaintiff stated, however, that the chain stopped slowly and took about five seconds to stop completely.

Defendant stated that he replaced the chain on the saw about one month before the accident. He bought the new chain at Ace Hardware. The new chain did not come with instructions regarding how to install it. A friend of his told him to set the tension on the chain by allowing about one-half inch of play in the chain. That is what he did. Defendant used the saw about two times after he replaced the chain and did not have any problems with it.

Based on these depositions, defendant argued in his motion that he was entitled to summary judgment in his favor because he was under no duty to warn plaintiff of open or obvious hazards, because there was no evidence that defendant knew or should have known that plaintiff had not previously used a chain saw, because it was uncontroverted that the chain saw was in good working order, and because plaintiff was unable to identify the reason for his injury.

An order was entered on December 5, 1990, which stated that plaintiff had until December 19, 1990, to respond to defendant’s motion. On December 28, 1990, plaintiff filed a motion to continue the trial date. Plaintiff requested additional time to respond to defendant’s motion for summary judgment and also asked that the trial date be continued. In his motion, plaintiff stated that he had retained the services of an expert witness in order to respond properly to the motion for summary judgment. Plaintiff also stated that his expert witness had requested documents from the manufacturer of the chain saw, but had not obtained the documents due to the product’s age. The affidavit of John G. McAuley, one of plaintiff’s attorneys, was attached to the motion and stated, in pertinent part:

“2. In order to properly respond to the Defendant’s Motion for Summary Judgment, an engineering expert retained on the Plaintiff’s behalf has requested a copy of the owner’s manual for the chain saw which is the subject of this lawsuit.
3. The plaintiff’s attorneys have attempted to obtain the owner’s manual from the manufacturer of the chain saw, but efforts to date have been delayed because production of the chain saw has been discontinued.
4. The plaintiff’s expert is presently attempting to obtain an owner’s manual.”

The trial court denied plaintiff’s motion and ordered plaintiff to respond to defendant’s motion for summary judgment by January 9, 1991. A hearing was set for January 16,1991.

On January 9, 1991, plaintiff mailed his response to the motion. The response was file stamped January 14, 1991. He argued that defendant’s motion should be denied, contending that defendant had a duty to warn plaintiff that the chain saw could kick back because defendant and plaintiff had “unequal knowledge” regarding the operation of a chain saw and defendant knew or should have known that damage might or could occur. Plaintiff attached the affidavit of Richard Rolseth to his response and argued that the affidavit presented evidence that defendant’s chain saw was defective, that the defect was caused by defendant’s actions and that the defect was the cause of plaintiff’s injuries. The affidavit stated:

“6. I am familiar with the Homelite model C-51 chainsaw [sic] and its proper chain tension requirements.
7. I have read the discovery depositions of Jose Luis Mercado and Juan Vallejo taken pursuant to the captioned claim.
8. The replacement chain installation done by Mr. Mercado as described in pages 28-30 of his deposition transcript was improper in that the chain tension was set too loose.
9. As a result of Mr. Mercado’s improper installation described in paragraph 8 above, the probability of chainsaw [sic] ‘kickback’ was increased.
10. Based on my review of Juan Vallejo’s deposition transcript, his injuries were caused by chainsaw [sic] ‘kickback.’ ”

Defendant filed a reply and also filed a motion to bar experts. In this motion, defendant argued that Supreme Court Rule 220 (134 Ill. 2d R. 220) requires the disclosure of experts and their opinions 60 days before trial. Defendant contended that, as trial was set for February 4, 1991, plaintiff’s disclosure of his expert witness was not timely and that “defendant will be unduly prejudiced if plaintiff is allowed to identify his expert and the contents of his opinion at this late date.”

Plaintiff filed a response to the motion and another affidavit of John McAuley. This affidavit stated that defendant’s attorneys requested several continuances prior to the date defendant’s deposition was taken. At the deposition, information first became available to plaintiff regarding the fact that defendant claimed to have maintained and repaired the chain saw, information which supported a new theory of liability. Plaintiff then determined that defendant did not possess a copy of the owner’s manual for the chain saw and conducted a diligent search to obtain a copy of the manual which, it was learned, was unavailable from the manufacturer. McAuley finally stated that he “was unable to provide sufficient information to the plaintiff’s expert witness, for the purpose of forming his opinion, until January 1991” and that he “did not first meet with nor learn the opinions of the expert until January 5,1991.”

A hearing was held regarding both of defendant’s motions on January 16, 1991. An order was entered the same day which stated that defendant’s motion to bar plaintiff’s expert was granted and also stated that “no expert testimony or evidence is relevant to the motion for summary judgment.” Defendant’s motion for summary judgment was also granted. Plaintiff filed a timely notice of appeal.

On appeal, plaintiff first argues that the trial court erred in barring the testimony of his expert witness, Richard Rolseth, pursuant to Rule 220. Plaintiff contends that the underlying policy of the rule, that of good-faith disclosure and the avoidance of surprise at trial, was never violated. We agree.

Rule 220 provides, in relevant part:

“[T]he identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later. In any event, as to all expert witnesses not previously disclosed, the trial court, on its own motion, or on the motion of any party after the first pretrial conference, shall enter an order scheduling the dates upon which all expert witnesses, including rebuttal experts, shall be disclosed. *** All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence.” 134 Ill. 2d R. 220(b)(1).

The purpose of the rule is to facilitate trial preparation by eliminating last-minute disclosure of expert witnesses. (Hatch v. Golden Rule Insurance Co. (1990), 204 Ill. App. 3d 790, 795, citing Mitchell v. Wayne Cory. (1989), 180 Ill. App. 3d 796, 800.) The rule was designed to eliminate this evil by establishing a uniform, but not inflexible, framework regarding the timely revelation of the identity of expert witnesses and the subject matter of their testimony. (134 Ill. 2d R. 220, Committee Comments, at 180; Barth v. Reagan (1990), 139 Ill. 2d 399, 415.) The rule requires that parties act in good faith to ascertain the identity of expert witnesses they reasonably anticipate using. Hatch, 204 Ill. App. 3d at 795; Mitchell, 180 Ill. App. 3d at 801.

The imposition of sanctions for a violation of discovery rules is a matter largely within the sound discretion of the trial court and will not be disturbed on review absent an abuse of discretion. (Beiermann v. Edwards (1990), 193 Ill. App. 3d 968, 974.) “In determining whether noncompliance with discovery orders or rules is unreasonable, the trial court should consider whether the offending party’s conduct is characterized by a deliberate and pronounced disregard for the discovery rules. [Citation.] To determine whether a sanction order is just, this court must look to the conduct that gave rise to it and to the effect of that conduct on the parties.” (Beiermann, 193 Ill. App. 3d at 974-75.) The purpose of a sanction for a violation of Rule 220 is not to punish but to insure fair discovery and a trial on the merits. Caruso v. Pine Manor Nursing Center (1989), 182 Ill. App. 3d 879, 883.

In this cause, the affidavit of McAuley states that the substance of Rolseth’s opinion first became known on January 5, 1991. Plaintiff points out that the identity and opinion of the expert was disclosed four days later and argues that, as the disclosure occurred less than 90 days after learning of the substance of the opinion, the disclosure was timely under Rule 220. However, the plain language of the rule states that discovery regarding expert witnesses must be completed not later than 60 days before the trial date. (134 Ill. 2d R. 220(b)(1); Hatch v. Golden Rule Insurance Co. (1990), 204 Ill. App. 3d 790, 794.) This is true even if a trial court does not set deadlines for the disclosure of expert witnesses. (In re Marriage of Gorsich (1991), 208 Ill. App. 3d 852, 856.) Therefore, as the February 4, 1991, trial date was not continued, plaintiff’s argument that his expert was disclosed in a timely manner pursuant to the rule must fail. We nevertheless conclude that the trial court abused its discretion in barring the testimony of plaintiff’s expert witness under these circumstances.

We recognize that it has been held that the opinion of an expert filed in opposition to a motion for summary judgment can properly be barred because of violations of Ride 220. (See Mitchell v. Wayne Corp. (1989), 180 Ill. App. 3d 796, 799-802; Castro v. South Chicago Community Hospital (1988), 166 Ill. App. 3d 479, 482; James v. Yasunaga (1987), 157 Ill. App. 3d 450, 456-57.) We conclude that this case is distinguishable from those cases, however.

In Mitchell, the plaintiffs did not disclose expert witnesses even though the court had entered two orders which required the disclosure of experts. The defendant filed a motion for sanctions, and the trial court entered an order barring the plaintiff from calling an expert at trial. (Mitchell, 180 Ill. App. 3d at 799.) The defendant subsequently filed a motion for summary judgment, and, in response, the plaintiffs filed the affidavit of an expert witness. The trial court found that the affidavit was barred and granted the defendant’s motion for summary judgment. (Mitchell, 180 Ill. App. 3d at 799.) We affirmed this decision on appeal, noting that there was no abuse of discretion where the order barring experts was entered more than 22 months after the initial complaint was filed and after more than 11 months of requests for disclosure by the defendants. We also noted that the plaintiffs did not provide an explanation for the delay in securing an expert witness until they filed their reply brief on appeal. Mitchell, 180 Ill. App. 3d at 802.

The court in Castro concluded that the trial court did not abuse its discretion in refusing to allow the plaintiffs to disclose the identity of an expert witness in response to a motion for summary judgment where the plaintiffs failed to consult or disclose during the first eight years of litigation any expert who would opine that the defendant was negligent. Castro, 166 Ill. App. 3d at 485.

In Jaynes, the plaintiffs filed an expert opinion report the same day that a hearing regarding the defendant’s motion for summary judgment was held, but after a deadline for the disclosure of expert witnesses set by court order. (James, 157 Ill. App. 3d at 451.) The trial court struck the report, finding that Rule 220 was violated, and the appellate court affirmed, noting that the plaintiffs should have sought leave to amend or revise the court’s schedule if they were having difficulty locating an expert witness. James, 157 Ill. App. 3d at 457.

Here, plaintiff promptly informed the court that he became aware of a new theory of liability at the time of defendant’s deposition. He sought leave to file an amended complaint and also requested a continuance of the trial date to allow him additional time to conduct discovery. McAuley’s uncontradicted affidavit stated that the reason for the delay in taking defendant’s deposition was that defendant’s attorneys requested several continuances. After defendant filed his motion for summary judgment, plaintiff again requested a continuance of the trial date, explaining that additional time was needed to respond to defendant’s motion for summary judgment because of difficulty in obtaining an opinion of an expert witness due to the unavailability of an owner’s manual for the chain saw. Plaintiff did file the affidavit of an expert witness on January 14, 1991. Therefore, unlike the cases previously discussed, plaintiff provided an explanation for the delay in securing an expert witness, plaintiff did request more time to conduct discovery, and plaintiff’s expert was disclosed just over 14 months after the complaint was filed and only approximately 16 months after the date of the accident.

Based on this record, we fail to see any lack of good-faith effort on the part of plaintiff. Plaintiff did not engage in any abusive discovery practices, and it was an abuse of the trial court’s discretion to refuse to continue the trial date and revise the discovery schedule. (See Smock v. Hale (1990), 197 Ill. App. 3d 732, 741; Cometo v. Foster McGaw Hospital (1988), 167 Ill. App. 3d 1023, 1029-31.) We conclude that plaintiff’s motion to continue the trial date, supported by affidavit, which was filed on December 28, 1990, should have been granted. Had the trial date been continued, there would have been no violation of Rule 220. Therefore, the testimony of plaintiff’s expert witness, disclosed approximately 16 months after the date of the accident, should not have been barred.

Plaintiff next contends that defendant’s motion for summary judgment should not have been granted, arguing that questions of material fact exist precluding summary judgment. We agree.

Summary judgment is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt. (Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 165; Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) The purpose of a summary judgment proceeding is to determine whether there are any genuine issues of material fact. (Purtill, 111 Ill. 2d at 240.) In making this determination, the evidence is to be construed strictly against the moving party and liberally in favor of the opponent. Tersavich v. First National Bank & Trust (1991), 143 Ill. 2d 74, 80-81.

Plaintiff contends that, applying these principles, summary judgment should not have been granted. He asserts that the facts established by the depositions show that defendant had superior knowledge regarding the use of chain saws and that defendant knew of plaintiff’s inexperience with chain saws. He further contends that it was the saw’s sudden propensity to “jump” or “kick back” which caused his injuries and asserts that defendant had a duty to warn plaintiff about this characteristic of the chain saw.

Defendant argues, in response, that summary judgment was properly granted because there was no material issue of fact as to the two aspects of defendant’s defense of the cause. First, defendant contends that the facts clearly establish that the danger was open and obvious and, therefore, there was no duty to warn. Second, plaintiff failed to create an issue of fact as to identifying the cause of plaintiff’s injuries.

As to the first contention, defendant argues that he had no duty to warn plaintiff regarding the danger of the chain saw because there is no duty to warn of an open and obvious danger. We agree in part. The purpose of a warning is to apprise persons coming into contact with a product of dangers of which they are unaware so that they may take appropriate precautions to protect themselves. (Smith v. American Motors Sales Corp. (1991), 215 Ill. App. 3d 951, 957.) Therefore, it is true that, where the risk is open and obvious, there is no duty to warn. (Smith, 215 Ill. App. 3d at 957.) However, if a product has dangerous propensities, the general rule is that a duty to warn arises where there is unequal knowledge, either actual or constructive, with respect to the risk of harm and the defendant, possessed of such knowledge, knows or should know that harm might occur absent a warning. (Smith, 215 Ill. App. 3d at 957; Durbin v. St. Louis Slag Products Co. (1990), 206 Ill. App. 3d 340, 354; Pitler v. Michael Reese Hospital (1980), 92 Ill. App. 3d 739, 745; see also Restatement (Second) of Torts §388 (1965).) It is beyond question that a chain saw is dangerous and must be used with caution and care. Defendant testified at his deposition that plaintiff told defendant that he would need help with the job and that plaintiff required help to start the chain saw. Plaintiff stated that he had never used a chain saw before and did not know that a chain saw could “jump.” The affidavit of plaintiff’s expert, which should have been considered by the trial court, stated that the chain installation performed by defendant was improper because the chain’s tension was set too loose, that this improper installation increased the probability of chain saw “kickback,” and that plaintiff’s injuries were caused by chain saw “kickback.” Based on this record, it cannot be said as a matter of law that a chain saw’s propensity to kick back is an open and obvious danger of which plaintiff was aware. A factual question also exists whether defendant was aware, or should have been aware, that the chain saw had a propensity to kick back and thus should have provided a warning to plaintiff. We conclude that defendant had a duty to warn plaintiff of any dangers which were not open and obvious and of which defendant was aware.

Additionally, defendant clearly had a duty to provide plaintiff with a chain saw which was free from defects. Rolseth’s affidavit created a question of material fact regarding whether the saw was in good operating condition. Therefore, there is a question of fact whether any breach of duty by defendant proximately caused plaintiff’s injuries or whether the injuries were caused by plaintiff’s lack of care.

As to defendant’s second contention, defendant’s argument that summary judgment was proper because plaintiff cannot identify the source of his injuries must fail. This case is not similar to Vance v. Lucky Stores, Inc. (1985), 134 Ill. App. 3d 166, relied on by defendant, where the plaintiff could not identify a puddle she saw after she fell as the cause of her fall. (Vance, 134 Ill. App. 3d at 169.) Plaintiff has presented sufficient evidence to create a material issue of fact as to the causation of plaintiff’s injuries. The trier of fact should determine whether plaintiff’s face was injured by the saw when the saw jumped or kicked back. The fact that plaintiff personally might not understand the mechanism by which he was injured does not ipso facto preclude other evidence from raising a material issue of fact as to the cause of plaintiff’s injuries.

For the foregoing reasons, the judgment of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS and WOODWARD, JJ., concur.


author: JUSTICE GREEN JUSTICE McCULLOUGH,

text:
    WILDWOOD INDUSTRIES, Plaintiff-Appellant, v. ILLINOIS HUMAN RIGHTS COMMISSION et al., Defendants-Appellees.—WILDWOOD INDUSTRIES, Plaintiff-Appellant, v. ILLINOIS HUMAN RIGHTS COMMISSION et al., Defendants-Appellees.
    Fourth District
    No. 4—90—0853
    Opinion filed October 4, 1991.

      McCULLOUGH, J., dissenting.
    J. Reed Roesler, of Keck, Mahin & Cate, of Peoria, and Don C. Hammer, of Hayes, Schneider, Hammer, Miles & Cox, of Bloomington, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellee Human Rights Commission.
    George F. Taseff, of Bloomington, for other appellees.

      Carey Cosentino, of Kemp & Capanna, Ltd., of Oak Brook, and Rosalyn C. Lieb and Cynthia Wilson, both of Chicago Lawyers’ Committee for Civil Rights Under Law, Inc., Randall D. Schmidt, of Edwin F. Handel Legal Aid Clinic of the University of Chicago Law School, and Stephen Stern, of Legal Assistance Foundation of Chicago, all of Chicago, as amici curiae.

   JUSTICE GREEN

delivered the opinion of the court:

Defendants Debra Borling and Mary Schoultz filed charges with defendant Illinois Department of Human Rights (Department) on February 6, 1988, and February 29, 1988, respectively, alleging their employer, plaintiff Wildwood Industries (Wildwood), committed acts of sexual harassment and sex discrimination in violation of sections 2 — 102(A) and (D) of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1987, ch. 68, pars. 2—102(A), (D)). On May 18, 1990, and March 22, 1990, respectively, the Department filed corresponding complaints against Wildwood with the Illinois Human Rights Commission (Commission). Thus, more than two years elapsed between the filing of charges by the complainants and the Department’s filing of complaints with the Commission.

In July 1990, Wildwood filed with the Commission motions to dismiss the complaints on the grounds that the complaints were untimely filed. Both of Wildwood’s motions were denied. On September 19, 1990, Wildwood filed two complaints in the circuit court of McLean County challenging the Commission’s exercise of jurisdiction over the complaints filed by the Department. Wildwood subsequently filed a petition for a preliminary injunction and supporting memorandum of law. Wildwood maintained the Commission lacked jurisdiction because the complaints filed by the Department were not filed within 300 days of the filing of the charges with the Department as required by section 7A—102(G)(1) of the Act (Ill. Rev. Stat. 1989, ch. 68, par. 7A—102(G)(1)).

Pursuant to a stipulated order, the two cases were consolidated on November 21, 1990, and on that same date, a motion to dismiss was filed on behalf of Borling and Schoultz. Although the propriety of the circuit court’s proceeding in this matter is not raised by either party, we note that “[wjhere an administrative agency’s power to proceed is attacked on the ground that the agency lacks jurisdiction, the courts will entertain a complaint for injunction.” (Riggins v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 126, 129, 437 N.E.2d 327, 328.) Following a hearing on the motion to dismiss and the petitions for preliminary injunction, the court entered an order granting defendants’ motion to dismiss and denying Wildwood’s petitions. Plaintiff appeals. We affirm.

The Act was enacted, inter alia, to protect individuals from sexual harassment in employment and from unlawful discrimination because of sex. (Ill. Rev. Stat. 1989, ch. 68, pars. 1—102(A), (D).) The Act allows a person who believes he or she has been a victim of prohibited discrimination 180 days after the date that a violation was allegedly committed to file a charge with the Department. (Ill. Rev. Stat. 1989, ch. 68, par. 7A—102(A)(1).) The Department then conducts a full investigation of the allegations set forth in the charge. The Act further provides:

“(G) Time Limit. (1) When a charge of a civil rights violation has been properly filed, the Department, within 300 days thereof or within any extension of that period agreed to in writing by all parties, shall either issue and file a complaint in the manner and form set forth in this Section or shall order that no complaint be issued. Any such order shall be duly served upon both the complainant and the respondent.
(2) Within 30 days of the expiration of the 300-day period or such longer period as shall have been agreed upon pursuant to subparagraph (1), the aggrieved party may file a complaint with the Commission, if the Department has not sooner filed a complaint or ordered that no complaint be issued. The form of the complaint shall be in accordance with the provisions of paragraph (F). The aggrieved party shall notify the Department that a complaint has been filed and shall serve a copy of the complaint on the Department on the same date that the complaint is filed with the Commission. Upon such notice, the Department shall cease processing the charge.
(3) Unless and until the aggrieved party files a complaint with the Human Rights Commission pursuant to paragraph (2) of this subsection, the Department shall continue its investigation and conclude it with the greatest promptness that is administratively feasible.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 68, par. 7A-102(G).

Section 7A—102(B) of the Act (Ill. Rev. Stat. 1989, ch. 68, par. 7A—102(B)) requires that within 10 days of receiving a charge, the Department shall send a notice to the complainant which describes the complainant’s right to file a complaint with the Commission as described above.

Plaintiff maintains on appeal that the 300-day time limit within which the Department is required to prepare a complaint or order that no complaint be issued, together with the 30-day “window” within which the aggrieved party may file a complaint with the Commission, is a mandatory requirement. It contends that the trial court erred in holding, implicit in its dismissal of the complaint, that the jurisdiction of the Commission extended to complaints filed by the Department beyond 300 days of the date the complainant had presented a charge to the Department even where, as here, no extensions of the 300-day limit had been agreed upon.

The Act was enacted as the successor to the Fair Employment Practices Act (FEPA) (Ill. Rev. Stat. 1977, ch. 48, par. 851 et seq.), which provided as follows for a 180-day filing period:

“Whenever such a charge of an unfair employment practice has been properly filed, the [Fair Employment Practices] Commission [(FEPC)], within 180 days thereof or within any extension of that 180 day period agreed to in writing by all parties and approved by a member of the Commission, shall either issue and serve a complaint in the manner and form set forth in this Section or shall order that no complaint be issued.” (Ill. Rev. Stat. 1977, ch. 48, par. 858.01(a).)

The Illinois Supreme Court held this 180-day period requirement, although not jurisdictional in the sense it could not be waived, was a limitation which imposed a mandatory time within which a complaint could issue by the FEPC. (Springfield-Sangamon County Regional Planning Comm’n v. Fair Employment Practices Comm’n (1978), 71 Ill. 2d 61, 68, 373 N.E.2d 1307, 1310.) The court noted that such time periods are considered directory “only where the rights of the parties are not injuriously affected by the failure to act within the time indicated.” Springfield-Sangamon, 71 Ill. 2d at 68, 373 N.E.2d at 1310.

The supreme court determined that the remedial and reconciliatory procedures upon which the FEPA was based would be hampered by periods of inaction by the FEPC, and an extended delay in the complaint-filing process would increase the financial burden on the employer. (Springfield-Sangamon, 71 Ill. 2d at 68, 373 N.E.2d at 1310.) In Board of Governors v. Illinois Fair Employment Practices Comm’n (1979), 78 Ill. 2d 143, 149, 399 N.E.2d 590, 593, the court again stated that the legislative intent in drafting the FEPA was that the complaint be filed within 180 days of the charge, absent an extension of that period agreed to in writing by all parties.

Following the court’s determination in Springfield-Sangamon regarding legislative intent, the legislature removed the 180-day language from section 8.01(a) of the FEPA (procedures — complaint, answer, hearing and order), and amended section 8 (procedures— charge, investigation, conference, settlement, and adjustment) to provide the FEPC a 300-day limitations period, i.e., 120 days for a fact-finding conference in subsection (b), and 180 days thereafter or as otherwise extended as authorized in subsection (d). Pub. Act 80— 1452, eff. Sept. 16, 1978 (1978 Ill. Laws 1731, 1732-34) (amending Ill. Rev. Stat. 1977, ch. 48, pars. 858.01(a), 858); see also Ill. Rev. Stat. 1979, ch. 48, pars. 858.01(a), 858(b), (d).

A week thereafter, the legislature passed section 8.01a of the FEPA (see Ill. Rev. Stat. 1979, ch. 48, par. 858.01a) purporting to create a circuit court cause of action for those claimants who had filed charges with the FEPC prior to March 30, 1978, and whose rights to recover under the FEPA were lost by administrative delay. Pub. Act 80-1455, eff. Sept. 16, 1978 (1978 Ill. Laws 1740, 1747).

In November 1979, the General Assembly enacted the Act, incorporating the 300-day language as the time limit in section 7—102(G). Pub. Act 81-1216, eff. July 1, 1980 (1979 Ill. Laws 4854, 4869, 4893).

In Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 40-41, 428 N.E.2d 489, 494, the Illinois Supreme Court determined that section 8.01a of the FEPA, purporting to create a circuit court cause of action for a certain group of complainants, was unconstitutional because it denied respondent employers both equal protection and due process. The court noted the reason for holding the filing period mandatory rather than directory in earlier cases was that the legislature was seeking to balance the rights of an aggrieved individual, who had allegedly suffered discrimination, against the rights of those charged under the FEPA to have a prompt determination of the validity of the claim lodged against them. The court then noted that under the new Act claims were not barred until 300 days (Ill. Rev. Stat., 1980 Supp., ch. 68, par. 7—102(G)), rather than 180 days, after the charge was filed. Wilson, 87 Ill. 2d at 37-38, 428 N.E.2d at 492-93.

Following Wilson, the United States Supreme Court held that under the Illinois FEPA, a complainant who had timely filed a charge with the State under the FEPA had a property interest in the statutory procedures provided for redressing discrimination violations and could not be deprived of the opportunity to have their charges heard simply because of a State agency’s failure to meet a filing deadline. (Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 431, 71 L. Ed. 2d 265, 275, 102 S. Ct. 1148, 1155.) An Illinois appellate court then determined in Franks v. Tucker (1985), 132 Ill. App. 3d 455, 460-61, 476 N.E.2d 1315, 1319, that the supreme court’s holding in Springfield-Sangamon was overturned by Logan, and applied Logan to cases brought under the Act. The Franks court concluded the 300-day time limit had become directory, not mandatory.

Subsequent to Logan, in 1985 the General Assembly amended the Act to add section 7 — 102(G)(2), designating prior section (G) language as subsection (1) and adding subsection (2), which granted aggrieved parties the opportunity to themselves file complaints with the Commission “[w]ithin 30 days of the expiration of the 300-day period” or a longer period if agreed upon (Ill. Rev. Stat. 1985, ch. 68, par. 7—102(G)(2) (now section 7A—102(G)(2) (Ill. Rev. Stat. 1989, ch. 68, par. 7A—102(G)(2)))); and added the corresponding language in section 7—102(B) of the Act (Ill. Rev. Stat. 1985, ch. 68, par. 7— 102(B)) (now section 7A—102(B)), directing the Department to notify complainant of his option to file a complaint with the Commission, including the dates within which he or she could exercise the option. (Pub. Act 84-445, eff. Sept. 16, 1985 (1985 Ill. Laws 2989, 2991).) (The sections of article 7 of the Act were reenacted under article 7A of the Act by Public Act 86—910, effective September 11, 1989 (1989 Ill. Laws 5185, 5192-96).)

In 1987, the legislature further amended the Act, i.e., sections 7—102(B), (C)(4), and — most significant to the inquiry before us— (G)(3) (Ill. Rev. Stat. 1987, ch. 68, pars. 7—102(B), (C)(4), (G)(3) (now Ill. Rev. Stat. 1989, ch. 68, pars. 7A—102(B), (C)(4), (G)(3))), to add procedures for (1) additional pleadings; (2) a fact-finding conference if certain findings have not been made by 210 days after the charge is filed; and (3) continued investigation by the Department unless an aggrieved party has filed a complaint within the above-described 30-day period of section 7—102(G)(2). (Pub. Act 85—825, §1, eff. Sept. 24, 1987 (1987 Ill. Laws 3436, 3436-39).) Section 7—102(G)(3) is now section 7A—102(G)(3).

In the Logan opinion, the United States Supreme Court had stated it did not intend to indicate that a State agency must “consider the merits of the claim when the claimant fails to comply with a reasonable procedural requirement.” (Emphasis in original.) (Logan, 455 U.S. at 434 n.7, 71 L. Ed. 2d at 277 n.7, 102 S. Ct. at 1157 n.7.) Accordingly, both plaintiff and amicus curiae, On-Line Financial Services, Inc., maintain that the 30-day period of section 7A—102(G)(2) of the Act appears to give an aggrieved party a reasonable opportunity to proceed on whatever claim he or she may have, thus affording that party due process and giving validity to the obvious original legislative intent that the 300-day limitation of 7A—102(G)(1) of the Act is an absolute bar to filing a complaint absent written agreement of the parties.

Plaintiff’s contention is very reasonable on its face. Nevertheless, we conclude that the history of the operation of the Act and its predecessor, the FEPA, together with the combined effect of sections 7A — 102(G)(2) and (G)(3) of the Act, indicates the legislature did not intend that the 300-day limitation of section 7A — 102(G)(1) have the same mandatory effect it had prior to Logan. The legislation struck down in Wilson, purporting to create a court action as a remedy under FEPA, indicated a legislative desire to create a way for complainants whose charges had not been processed to proceed on their own. The Franks court stated that at the time of its opinion, “approximately 600 cases older than 300 days were then pending in the Department.” (Franks, 132 Ill. App. 3d at 460, 476 N.E.2d at 1319.) That opinion was filed in March 1985, near the time of the enactment of section 7—102(G)(2) creating the present right of a complainant to file with the Commission. In the face of that backlog, the legislature had incentive to again attempt to create a procedure for complainants to file with the Commission without necessarily intending for the legislation to correct the condition which, under Logan, required the 300-day period of limitation be treated as merely directory.

Thus, upon the enactment of section 7—102(G)(2) (now section 7A—102(G)(2)) and before the enactment of section 7—102(G)(3) (now section 7A—102(G)(3)), the status of the 300-day limitation was uncertain. Section 7—102(G)(2) and the portions of section 7—102(B) of the Act requiring the Department to give those filing charges notice of their rights under section 7—102(G)(2) were created by Senate Bill 1391, which became Public Act 84—445. The record of official proceedings in regard to that legislation contains the following comments by legislators:

“[T]hat the department, when it ... when a person files a complaint before the department it shall notify them of this option they have that within three hundred days of the expiration ... I mean, within thirty days of the expiration of the three hundred-day period the complainant can opt to file ... refile his complaint with the Human Rights Commission instead of the department.” (84th Ill. Gen. Assem., Senate Proceedings, May 20, 1985, at 134-35 (statements of Senator D’Arco).)
“[W]hen a complainant files a complaint before the Department of Human Rights, at the expiration of the three hundred day period if they haven’t acted on the complaint, he can file that complaint with the Commission of Human Rights as long as he receives a notice when he initially files the complaint from the department.” (84th Ill. Gen. Assem., Senate Proceedings, May 24, 1985, at 146-47 (statements of Senator D’Arco).)
“Senate Bill 1391 essentially cures a problem that’s cropped up in the Department of Human Rights wherein cases are allowed ... cases which find themselves backlogged beyond 300 days, there is no recourse for the aggrieved individual. This Bill will essentially call for a bumping up to the Human Rights Commission of cases that are more than 300 days old.” 84th Ill. Gen. Assem., House Proceedings, June 21, 1985, at 140 (statements of Representative Braun).

Neither legislator indicated that the purpose of the legislation was to restore the 300-day limitation to its former mandatory status. Braun mentioned a backlog of cases which the legislation was designed to alleviate. She also stated that “beyond 300 days, there is no recourse for the aggrieved individual.” This would indicate she understood the 300-day limitation was mandatory absent agreement of the parties. Both legislators indicated the window period of section 7 — 102(G)(3) was to begin with the expiration of the 300-day period. As we later explain, the question as to the beginning of the period when complainants may file is of some significance.

No legislative history exists as to the opinions of the legislators voting on the bill which became section 7—102(G)(3) of the Act (Pub. Act 85—825, §1, eff. Sept. 24, 1987), now section 7A—102(G)(3), and which provides “the Department shall continue its investigation and conclude it with the greatest promptness.” (Ill. Rev. Stat. 1989, ch. 68, par. 7A—102(G)(3).) However, we find the effect of this legislation on the operation of the rest of section 7—102(G) of the Act, now section 7A—102(G), persuasive in respect to the legislature’s latest intent as to the operation of the 300-day limitation period.

Section 7A—102(G)(2) is ambiguous as to whether the phrase “[wjithin 30 days of the expiration of the 300-day period” refers to a time (1) beginning 30 days before the expiration of the 300-day period and ending at the expiration of that period, (2) beginning 30 days before the expiration of the 300-day period and ending 30 days after the expiration of the 300-day period, or (3) beginning at the expiration of the 300-day period and extending 30 days thereafter. Section 7A—102(G)(3) requires that “[u]nless and until” a complaint is filed by a complainant, “the Department shall continue its investigation and conclude it with the greatest promptness.” Regardless of the determination of when the period for the complainant’s filing begins, that subsection is inconsistent with the 300-day limitation being mandatory absent contrary written agreement.

As we have noted, both Senator D’Arco and Representative Braun spoke of the window period of section 7—102(G)(2), now section 7A—102(G)(2), as beginning at the end of the 300-day period. Any construction of that subsection which extends the period for complainant filing beyond the end of the 300-day period requires the Department, absent such a filing, to continue its investigation beyond the end of the 300-day period. If that period creates a mandatory limitation upon the Department filing with the Commission, the investigation required would be useless. Plaintiff concedes the legislature would not have intended such a construction but strongly urges that the period for filing by complainants was intended to exist for a period of 30 days prior to the expiration of the 300-day period.

Even giving plaintiff’s interpretation to section 7A—102(G)(2) as to the “window” period, the relationship between the two subsections is most awkward if the 300-day limitation is mandatory. If no complaint was filed, the Department would be required to investigate up to the end of the 300-day period and then close its investigation “with the greatest promptness” even though the investigation could not be used. If the 300-day limitation were intended to be mandatory, the legislature would have directed the Department to investigate until the end of the 300-day period unless the investigation could be sooner concluded. Regardless of when the “window” period was intended to end, the language of section 7A-— 102(G)(3) indicates the Department is to continue its investigation beyond the end of the 300-day period. This is inconsistent with an intent that the 300-day limitation be mandatory because it envisions a use for the reports of the investigations after the end of the 300-day period even when that period has not been extended by consent.

We hold that the 300-day limitation period of section 7 A— 102(G)(1) of the Act is not mandatory. Plaintiff had no grounds for injunctive relief here. The circuit court of McLean County properly denied injunctive relief. We affirm the order denying such relief.

Affirmed.

STEIGMANN, J., concurs.

JUSTICE McCULLOUGH,

dissenting:

The charges were filed with the Department on February 8, 1988, and February 29, 1988. The Department filed the complaints on May 18, 1990, and March 22, 1990. The complaint as to Borling was filed 831 days after the charge was first filed. As to Schoultz, the complaint was filed 751 days after the charge was filed with the Department.

The procedures set forth in section 7A — 102 of the Act, as applied to the instant case, do not appear complicated. The aggrieved party files a charge with the Department within 180 days (subsection (A)(1)); the Department gives notice of the charge to respondent within 10 days (subsection (B)); the Department, also within 10 days of the date the charge is filed, “send[s] written notice to the complainant informing the complainant of his or her option to file a complaint with the Human Rights Commission under subparagraph (2) of paragraph (G), including in such notice the dates within which the complainant may exercise such option.” Ill. Rev. Stat. 19890, ch. 68, par. 7A-102(B).

The aggrieved party is not only accountable to know the limitations of subsection (G), the Department is also required to send notice of its limitations to him or her. If the aggrieved party files a complaint with the Commission, section 7A—102(G)(2) of the Act also provides the aggrieved party shall notify the Department that a complaint has been filed and “[u]pon such notice, the Department shall cease processing the charge.” (Ill. Rev. Stat. 1989, ch. 68, par. 7A—102(G)(2).) Subsection (G)(3) is merely a follow-up directing the Department to continue its investigation unless and until the aggrieved party has filed his or her complaint pursuant to subsection (G)(2).

Section 7A—102(G) of the Act sets the parameters within which the complaint must be filed. As stated in Springfield-Sangamon (71 Ill. 2d at 68, 373 N.E.2d at 1310), time periods are considered di rectory “only where the rights of the parties are not injuriously affected by the failure to act within the time indicated.”

Subsection (3) does not require a different interpretation of section 7A—102(G) as a whole. The majority’s analysis as to subsection (G)(3) emasculates the balance of section 7A—102(G) of the Act and renders subsection (G)(1) meaningless. The asserted ambiguity in subsection (G)(2) does not require a different result. Twenty-nine days before the expiration of 300 days and 29 days after the expiration of 300 days are “[wjithin 30 days of the expiration of the 300-day period.” Ill. Rev. Stat. 1989, ch. 68, par. 7A—102(G)(2).

Section 7A—102(G)(3) of the Act permits a continued investigation “[ujnless and until the aggrieved party files a complaint with the Human Rights Commission pursuant to paragraph (2).” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 68, par. 7A—102(G)(3).) The word “[ujnless” cannot be read in isolation. “Unless and until” must be read together. As the injured party has 30 days within the expiration of the 300-day period, subsection (G)(3) cannot be an extension of the Department’s prerogative beyond that date. “Until” authorizes and limits the investigation to continue to a maximum of 330 days or the date the aggrieved party files a complaint, whichever is sooner. Section 7A — 102(G)(2) provides when the Department receives notice that a complaint has been filed by the aggrieved party, it “shall cease processing the charge.”

This reasoning is consistent with Logan. The 30-day window period gives the aggrieved party the opportunity to file a complaint when the Department fails to meet the filing deadline. To remove all time limits, as the majority suggests, will impose severe hardships on respondents and aggrieved parties alike.

The circuit court properly exercised jurisdiction. The petitioner’s prayer for injunction should have been granted.


author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FARRELL J. THEIS, Defendant-Appellant.
    Second District
    No. 2—89—0831
    Opinion filed August 22, 1991.
    Rehearing denied November 21, 1991.
    G. Joseph Weller, Manuel S. Serritos, and Ingrid L. Moller, all of State Appellate Defender’s Office, of Elgin, for appellant.
    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.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant, Farrell Theis, was charged by indictment with one count of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, pars. 12—14(b)(1), 12—16). In exchange for a guilty plea on the criminal sexual assault charge, the State agreed to nol-pros the two counts of aggravated criminal sexual abuse, and the court sentenced defendant to 12 years’ imprisonment. On appeal, defendant contends that the sentence is excessive. We conclude, however, that we are without jurisdiction to consider the appeal.

Defendant’s sentencing hearing took place on August 14, 1989. After announcing the 12-year sentence, the trial court admonished defendant as required by Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)) concerning his right to appeal and the necessity of filing a motion to vacate the plea of guilty as a prerequisite to an appeal of that plea. Following the admonishments, defense counsel told the court that defendant might be needing the services of the appellate defender. The court responded that it would appoint the State Appellate Defender to represent defendant. Four days later, the clerk of the circuit court filed a notice of appeal on defendant’s behalf.

A reviewing court has a duty to consider its jurisdiction and to dismiss an appeal if jurisdiction is lacking. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440.) Where a defendant has pleaded guilty and he objects to the sentence imposed, a motion to reconsider the sentence is a prerequisite to an appeal from the sentence. (People v. Wallace (1991), 143 Ill. 2d 59, 60-61.) No such motion was filed in this case.

Defendant argues that the trial court’s appointment of the appellate defender and the clerk’s filing the notice of appeal denied him the opportunity to file a motion to reconsider the sentence, and he urges that these actions should not affect his right to review in this court. He relies on the recent decision of the Appellate Court for the Second District in People v. Radunz (1989), 180 Ill. App. 3d 734, which addressed the defendant’s failure to file a timely motion to vacate the plea of guilty, a distinction which is dispositive.

In Radunz, the defendant also pleaded guilty. At Radunz’ sentencing hearing, the trial court failed to advise Radunz, as required under Rule 605(b), that if he wished to appeal the plea of guilty, he had first to comply with Rule 604(d) and file a motion to vacate the guilty plea within 30 days. One week after sentencing, Radunz’ attorney moved to withdraw as counsel. The trial court granted the motion, directed the clerk to file a notice of appeal on behalf of Radunz and appointed the State Appellate Defender’s office to represent Radunz. Radunz’ appellate defender filed a motion to remand to the trial court prior to expiration of the 30-day period, which this court granted. Radunz then filed a motion to vacate the plea of guilty in the trial court. The trial court eventually denied Radunz’ motion to vacate, and the appeal proceeded.

The State challenged this court’s jurisdiction to hear Radunz’ appeal, arguing that the motion to vacate the guilty plea was not timely and, thus, the appellate court was without jurisdiction to hear the appeal. We concluded that jurisdiction was proper because Radunz’ failure to file a timely Rule 604(d) motion to vacate the plea of guilty was excused by reason of the trial court’s failure to properly admonish Radunz pursuant to Rule 605(b) concerning the necessity to file such a motion. In addition to this error by the trial court, we continued “[assuming arguendo that the court did comply with Rule 605(b), the court eliminated any opportunity for Radunz to comply with Rule 604(d) by immediately having a notice of appeal filed on his behalf.” (Radunz, 180 Ill. App. 3d at 740.) In reliance on this quote from Radunz, defendant here argues that, although he was admonished pursuant to Rule 605(b), he was deprived of the opportunity to file a motion to reconsider the sentence by reason of the court’s error in appointing the State Appellate Defender and the clerk’s filing the notice of appeal. We disagree.

Defendant fails to consider vital distinctions between this instance and that which we considered in Radunz. The defendant in Radunz challenged the propriety of the guilty plea, which required as a prerequisite to appellate jurisdiction a motion to vacate the plea of guilty, which in turn required the court to admonish the defendant of the necessity of such motion. Because the trial court was required to admonish Radunz of the need to file a petition to vacate the plea of guilty, its failure to do so was sufficient to vest this court with jurisdiction upon the proper filing of a notice of appeal. (Radunz, 180 Ill. App. 3d at 739 (court’s failure to admonish defendant pursuant to Rule 605(b) excuses a defendant’s failure to timely file a Rule 604(d) motion).) Moreover, despite the trial court’s omission, the defendant in Radunz petitioned this court for remand to the trial court within 30 days so that he could file a motion to vacate the plea of guilty, which he ultimately did. Thus, the State in Radunz challenged only the timeliness of Radunz’ petition to vacate the plea of guilty. We merely considered the cumulative effect of the trial court’s precipitous conduct in appointing an appellate defender and filing the notice of appeal combined with its error in failing to properly admonish Radunz, and only as such conduct related to Radunz’ delay in filing his petition to vacate the plea of guilty.

However, in the instant case we have no similar failure by the trial court that waives defendant’s failure to file a motion to reconsider the sentence and permits appellate jurisdiction. Unlike a petition to vacate a guilty plea, the court was not required to admonish defendant of the need to file a petition for reconsideration of the sentence. (People v. Lawrence (1991), 211 Ill. App. 3d 135, 139.) Nor do we have timely conduct by the defendant to remedy the failure to file a petition for reconsideration of the sentence within the 30-day period. Defendant made no attempt to correct the failure to file a petition for reconsideration of the sentence, either prior or subsequent to the expiration of the 30-day period. Thus, the trial court’s conduct in appointing an appellate defender and filing a notice of appeal had no effect on the timeliness of defendant’s nonexistent petition for reconsideration of the sentence.

Finally, we note that, although the defendant in Radunz petitioned this court for remand so that he could file the petition to vacate the plea of guilty, the supreme court rules expressly provide a means by which the trial court can be revested with jurisdiction and, thus, hear a motion to either vacate a plea of guilty or reconsider a sentence even after a notice of appeal has been filed. A defendant need only petition the trial court to dismiss his notice of appeal pursuant to Supreme Court Rule 309 (134 Ill. 2d R. 309), and, if granted, such motion revests the trial court with jurisdiction to consider a motion for reconsideration of a sentence or to vacate a plea of guilty and perfects a defendant’s right to appeal. We note that defendant also failed to avail himself of Supreme Court Rule 309.

As we have no jurisdiction to consider this appeal, we dismiss it.

Appeal dismissed.

REINHARD, P.J., and UNVERZAGT, J., concur.