author: JUSTICE JOHNSON JUSTICE McMORROW,

text:
    THE PEOPLE ex rel. PAMELA WEST, Petitioner-Appellee, v. JOSHUA HERRENDORF, Respondent-Appellant.
    First District (4th Division)
    No. 1—87—3808
    Opinion filed August 17, 1989.

      McMORROW, J., dissenting.
    Brian M. Collins, of MaGee, Collins & Lodge, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Caroline Metier Shoenberger and Leonard N. Foster, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County denying the motion of respondent, Joshua Herrendorf, for sanctions against petitioner, Pamela West, and her counsel, the State’s Attorney, pursuant to section 2 — 611 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611). The sole issue presented for review is whether the trial court erred in denying Herrendorf s motion for the imposition of sanctions and costs pursuant to section 2 — 611 of the Code.

We affirm.

On February 1, 1985, West signed a complaint naming Herrendorf as the father of her child, Lauren L. West. Lauren was born July 4, 1983. The complaint was filed by the State’s Attorney on June 10, 1985, Herrendorf was served by alias summons on February 27,1986.

In response to interrogatories filed by Herrendorf on April 28, 1986, West also named Anthony Lazzaroni as a person with whom she had had sexual relations within 60 days of the date of conception. West stated that the date of conception was September 1979. The date was later amended to September 1982 in West’s supplemental interrogatories.

On February 10, 1987, West filed a “Motion to Compel Blood Tests” to which Herrendorf objected. The court ordered that he take the blood tests. On that same day the State’s Attorney was granted leave to file an amended complaint alleging that Anthony Lazzaroni or Glen Udell could be the father of the child. Separate suits, however, had to be filed against these two defendants as the clerk of the court’s record system could not accommodate multiple defendants.

West filed supplemental responses to interrogatories on March 9, 1987, in which she stated that she had had sexual intercourse with Udell on either October 3 or 10, and with Lazzaroni on October 18 and 19, 1982.

At West’s deposition, she testified that the reason she could not name Lazzaroni or Udell in the initial complaint was because personnel from the Illinois Department of Public Aid and someone from the State’s Attorney’s office advised her that she could not name three individuals as potential fathers in a paternity suit. West also testified that she believed Herrendorf was the father of her child because she felt that she had conceived on September 19, 1982.

On March 11, 1987, the suit against Herrendorf was voluntarily dismissed after he was excluded as a potential father by the blood test. Udell was also scientifically excluded as a possible father. The suit against Lazzaroni is still pending as his blood test resulted in a paternity index.

On March 7, 1987, Herrendorf filed a motion for costs, pursuant to section 2 — 611. Herrendorf alleged that West pleaded statements which she and the State’s Attorney knew or reasonably should have known were untrue. West alleged that Herrendorf was the father which she knew or reasonably should have known was untrue. Herrendorf also argued that the amended section 2 — 611 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) should apply retroactively to West’s complaint which would allow the imposition of sanctions against both West and the State’s Attorney. The trial court denied Herrendorf’s motion for sanctions. In so holding, the trial court also refused to apply the amended section retroactively. It is from this decision that Herrendorf appeals.

Section 2 — 611 provided, in pertinent part, as follows:

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

In November 1986, the section was amended, rendering its scope broader than the prior version. (Mucklow v. John Marshall Law School (1988), 176 Ill. App. 3d 886, 897.) The amended section reaches every document filed with the court and requires the motions or pleadings be supported by “reasonable inquiry.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) It also provides for the imposition of sanctions against the attorney whose signature appears on the pleadings or motions as well as the party being represented.

Herrendorf first contends that the amended section should be applied retroactively to the complaint filed on June 10, 1985, naming him as the father of the child. Application of the amendment would permit sanctions against the State’s Attorney as well as West. We do not believe that the amended section should be applied retroactively.

The Illinois Supreme Court in Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, stated the general rule with respect to the retroactive application of statutes:

“When a change of law merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure *** without regard to whether or not the action has been instituted, unless there is a saving clause as to existing litigation. [Citations.] Changes in procedure or existing remedies will not be applied retrospectively, however, where a vested, constitutionally protected right will be deprived by such application.” (Maiter, 82 Ill. 2d at 390-91.)

The amended section 2 — 611 does not merely affect the remedy or existing procedure of law but creates an obligation which did not previously exist. Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 835.

Herrendorf s reliance on People v. Frieder (1980), 90 Ill. App. 3d 116, is misplaced. In Frieder, the court held that an amendment to the predecessor statute (Ill. Rev. Stat. 1975, ch. 110, par. 41) of section 2 — 611 must be given retroactive effect. The court, however, was only concerned with the new burden of proof the amendment imposed. (Frieder, 90 Ill. App. 3d at 120.) The amendment considered in Frieder did not impose new obligations and liabilities but merely changed existing remedies. Board of Education v. Illinois State Board of Education (1984), 122 Ill. App. 3d 471, 475-76.

In the instant case, this amended section imposes new obligations rather than adding a remedy for alleged violations. (Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 835.) We, therefore, find that the amended section should not be given retroactive effect.

Even assuming, arguendo, that the amended section 2 — 611 is applied to the facts in this case, we find that the State and West were still within the purview of the statute. The former section 2 — 611 provided that the pleadings should be based on “reasonable cause.” Similarly, the amended section requires that the filing must be “well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.

Prior to the time West received the results of the paternity test, it was a question of fact as to whether Herrendorf was the child’s natural father. Once the results determined that Herrendorf was not the father of the child, the lawsuit against him was no longer well grounded in fact and was immediately dismissed against him. Under either version of the statute, therefore, we find that West and the State were within its scope. We will, however, address Herrendorf’s various contentions.

Herrendorf maintains that he is entitled to fees. Fees may be assessed against a litigant pleading false statements without reasonable basis under the section prior to the 1986 amendment. (People ex rel. Reliford v. Roberts (1983), 112 Ill. App. 3d 351, 353.) Since the section is of a penal nature, its terms will only be invoked where all of the allegations may be construed as falling strictly within the terms of the provision. (Mucklow, 176 Ill. App. 3d at 897.) The trial court’s decision assessing fees is entitled to great weight and will not be disturbed unless there has been an abuse of discretion. Wollschlager v. Sundstrand Corp. (1986), 143 Ill. App. 3d 347, 352.

Herrendorf asserts that the trial court erred in denying his motion for sanctions because, he alleges, West and two assistant State’s Attorneys knew prior to West’s filing the complaint that he was not the father of her child.

Herrendorf bases this assertion on several factors: (1) according to medical records the “father” of the child was present at the hospital prior to, at the time of, and subsequent to the birth of the child and Herrendorf alleges that he was never at the hospital; (2) West told personnel at the Illinois Department of Public Aid and two assistant State’s Attorneys that there were three potential fathers prior to filing the original complaint; and (3) West stated that she had had intercourse with Herrendorf on September 16 and 19, 1982, and the child was born July 4, 1983, approximately 2 weeks longer than the usual nine-month gestation period.

The first factor raised by Herrendorf, that according to hospital records, the “father” was present at the hospital, cannot be a basis for sanctions against West. Herrendorf neglects to point out that nowhere in the records is this “father” named or identified. Simply because a hospital record states that the “father” was at the hospital does not mean that the party at the hospital was the child’s natural father. Further, at that time, West did not know who was the child’s father. The father’s identity, in fact, is still at issue. We do not find an unsubstantiated notation on a hospital record an adequate basis for sanctions against West.

Herrendorf next argues that West knew of three potential fathers prior to filing her complaint. Two of these parties were not named in the initial complaint. The Paternity Act (now repealed) provided, in pertinent part, that “[t]he complainant, under oath or affirmation, shall accuse a person of being the father of such child.” (Ill. Rev. Stat. 1983, ch. 40, par. 1354.) According to the State’s Attorney, courts and administrative agencies construed this section as prohibiting a complainant from filing against multiple defendants. Further, West testified that she was informed by someone from the Illinois Department of Public Aid, when she went for her initial intake interview, that she could only file against one party. West also testified that she felt she had conceived when she had intercourse with Herrendorf on September 19.

West correctly points out that in order to determine the truth of a paternity claim a blood test must be taken. (People ex rel. Reliford v. Roberts (1983), 112 Ill. App. 3d 351, 354.) However, “[t]he State certainly could not compel defendant to submit to a blood test without invoking the authority of a court, and the State could invoke this authority only by filing suit.” (Reliford, 112 Ill. App. 3d at 354.) West, therefore, appropriately filed a motion to compel the blood tests to determine whether Herrendorf was the father of her child. After results indicated that Herrendorf was not the father, the suit against him was voluntarily dismissed.

Herrendorf further complains that the motion to compel the blood tests was not made until almost two years after the suit was filed. Thus, he contends that he was subject to almost two years of unnecessary legal fees and anguish. This, however, cannot be a basis for sanctions in the instant case. As the trial court noted, Herrendorf could have taken a blood test to show an exclusion as soon as the complaint was filed instead of objecting to West’s motion. Herrendorf’s argument for sanctions based on this contention also fails.

Finally, Herrendorf argues that West knew that he was not the father since she had intercourse with Lazzaroni, without the benefit of contraception, within three or four days of the identified date of conception. The child was born July 4, 1983. West testified that she believed that she conceived when she had intercourse with Herrendorf on September 19, 1982, and that the birth control device that she was wearing may have been ill-fitting. Herrendorf contends that since birth occurred more than nine months after she had intercourse with him, compounded by the fact that her physician advised her that the date of conception was in October, is sufficient to prove that she had knowledge that he could not have been the father. We do not find that this argument serves as a basis for sanctions.

As the trial court correctly pointed out, West actually believed she conceived on September 19. It is not an abuse of discretion to deny attorney fees where, even if the statement is false, the plaintiff, nonetheless, has reason to believe that the statement was true. (In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 638.) Obstetrics is not an exact science. Physicians may not in all cases predict the exact day of conception. It is also not unusual for birth to occur either before or after the nine-month period. We find that the trial court did not abuse its discretion in finding that West and her attorney acted within the purview of the section.

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

Affirmed.

JIGANTI, P.J., concurs.

JUSTICE McMORROW,

dissenting:

I respectfully dissent because the record indicates that the trial court failed to apply the proper standards in ruling on defendant’s motion for sanctions under section 2 — 611. The motion alleged, and the record discloses, several untruthful, incomplete and misleading statements of fact and law made by plaintiff and her attorney and the possible existence of an improper motivation for pursuing, for nearly two years, this paternity action against defendant as the only alleged father. Thus, I believe that it was incumbent upon the trial court to apply the proper standards in determining the merits of defendant’s motion, and that the court’s failure to do so was error warranting reversal and remandment of this cause for a new hearing on the motion.

The amended version of section 2 — 611, which became effective November 25,1986, provides in relevant part:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney ***. The signature of an attorney *** constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law *** and that it is not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation ***. *** If a pleading, motion, or other paper is signed in violation of this Section, the court *** shall impose upon the person who signed it, a represented party, or both, an appropriate sanction ***. ” Ill. Rev. Stat. 1987, ch. 110, par 2 — 611.

I agree with the majority that because section 2 — 611 imposes new obligations and liabilities, it should not be given retroactive effect. (Prevendar v. Thonn (1988), 166 Ill. App. 3d 30, 518 N.E.2d 1374; Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 835.) However, the amendment became effective on November 25, 1986, and the record establishes that the prosecution of this action against defendant continued until April 27, 1987, when the order dismissing him on the State’s motion for voluntary nonsuit was entered. Thus, a review of the State’s Attorney’s (hereinafter plaintiff’s attorney’s or counsel’s) conduct after the effective date of the amendment does not constitute improper retroactive application but, rather, proper prospective application of amended section 2 — 611.

The basis for denying sanctions was, in the trial judge’s words, because he did “not believe that either [plaintiff] or [counsel] acted in bad faith within the purview of the Section 6 — 211 [sic].” In my view, this quotation establishes that the trial court did not apply the standards of either amended or preamended section 2 — 611 to plaintiff or her counsel. Rather, the court disposed of defendant’s entire motion under a more stringent standard which has been inapplicable since 1976 when the legislature deleted the “bad faith” element (Pub. Act 79 — 1434, § 8, eff. Sept. 19, 1976) from what was then section 41 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 41).

The preamended version of section 2 — 611 subjected a party to sanctions where “[allegations or denials [were] made without reasonable cause and found to be untrue.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611.) A party requesting an award of fees and costs under former section 2 — 611 was not required to prove bad faith on the part of the opposing party but rather, merely to show that the opposing party had made untrue pleadings of fact which it knew or reasonably should have known were untrue. Gluth Brothers Construction, Inc. v. Union National Bank (1988), 166 Ill. App. 3d 18, 518 N.E.2d 1345.

As amended, section 2 — 611 extends to every paper filed with the court and subjects an attorney to the same sanctions, to which only the client was previously subject, for violations of its provision. The revised section imposes a duty upon counsel to certify that he has made an objectively reasonable investigation of the underlying facts and law before pleadings or other papers are filed with the court. (In re Mitan (1987), 119 Ill. 2d 229, 518 N.E.2d 1000; People v. King (1988), 170 Ill. App. 3d 409, 524 N.E.2d 723; Ill. Ann. Stat., ch. 110, par. 2 — 611, Historical and Practice Notes (Smith-Hurd Supp. 1989).) Thus, as a general rule, an attorney cannot simply rely on the client’s verbal representations (Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595), but must objectively review the information submitted by the client to determine its accuracy. If such review reveals important discrepancies, inconsistencies or gaps in the information provided, the attorney must investigate further before filing the legal paper with the court. (Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595.) Although amended section 2 — 611 is, in substance, a statutory articulation of the already existing duties enunciated in Supreme Court Rule 7 — 102 (107 Ill. 2d R. 7 — 102) relating to the ethical responsibilities of an attorney in the representation of a client, it imposes additional obligations and new liabilities upon attorneys and therefore may not be applied retroactively to counsel. At least one court has held, however, that since the obligations of a party under amended section 2 — 611 remain unchanged, consideration of the defendant’s motion for sanctions against plaintiff under that section did not constitute improper retroactive application of it. Prevendar v. Thonn (1988), 166 Ill. App. 3d 30, 518 N.E.2d 1374.

Because the contentions in defendant’s motion relate to both counsel and plaintiff and concern matters occurring both before and after the effective date of amended section 2 — 611, I cannot agree with the majority’s affirmance of the trial court’s order summarily denying defendant’s motion for sanctions on the basis of an inapplicable “bad faith” standard. Whether plaintiff’s omissions and misstatements of fact and counsel’s conduct in this case were sanction-able were questions which the trial court could and should have examined under the appropriate standards of section 2 — 611.

The majority alternatively states that even if amended section 2 — 611 is applied to the facts of this case, plaintiff and counsel acted within its purview and that sanctions were not warranted under either version of the statute. The majority reasons that until the blood tests were performed, whether defendant was the child’s father was a question of fact and, thus, the suit against him was well-grounded in fact; and that once he was excluded by those blood tests, the suit against him was no longer well-grounded in fact and was “immediately dismissed.” The majority seems to say that as long as there is some ground for a suit and as long as it is eventually dismissed, nothing that occurs during the course of the litigation is sanction-able. In the instant case, defendant incurred expenses during the approximate two-year period between the time the suit against him was instituted and its dismissal, which may not have been necessary if plaintiff and her counsel had made the reasonable inquiries to determine if the accusation against defendant was well-grounded in fact or warranted by existing law, as mandated by section 2 — 611.

I do not read either preamended or amended section 2 — 611 to authorize sanctions only where it is determined that the action as originally instituted was baseless. The provisions of both versions of the statute are addressed to conduct during the litigation as well as to the institution of the action. Former section 2 — 611 refers to any allegations and denials made without reasonable cause and found to be untrue. The amended section requires certification that there has been a reasonable inquiry into the allegations and denials contained in all papers filed in the case and that they are well-grounded both in fact and existing law.

At the hearing on his motion, defendant argued generally that because plaintiff had sexual relations with at least two other men, viz., Udell and Lazzaroni, during the identified period of conception and admitted knowing when she signed the complaint that it was possible that any of the men was the father, the naming of only him as the father was conclusionary and improper. Defendant also asserted that several untrue, incomplete and misleading allegations and denials, which will be noted hereafter, were made without reasonable cause or objectively reasonable inquiry during the course of this litigation.

Specifically, with respect to plaintiff, defendant argued that she made several misstatements and omissions of fact which she knew or reasonably should have known were not truthful. For example, in her March 1987 deposition, plaintiff under oath admitted having consciously omitted Udell’s name from her answers to defendant’s interrogatories seeking the names of all persons with whom she had had sexual relations during the relevant period. That deposition reveals plaintiff made other untruthful statements when she acknowledged that she knew at the time she signed the original complaint that it was possible that Lazzaroni was the father and that the dates she had intercourse with him coincided with the physician’s estimation of the date of conception, October 15, and with the child’s date of birth. In her interrogatory answers, however, she stated that she did not believe that Lazzaroni was the father because the dates of her sexual relations with him did not coincide with the birth of the child. Plaintiff also admitted at her deposition that one of the reasons she named defendant rather than Lazzaroni as the alleged father was because Lazzaroni’s mother had threatened her, and that when she tried to speak to Lazzaroni about this matter, he told her in a “very stern manner” never to contact him again.

Plaintiff made other untruthful statements. Plaintiff was asked in the interrogatories to state her blood type and the child’s blood type. Her answer to the question was “Don’t know.” At her deposition, however, plaintiff identified both her blood type and the blood type of her child. Counsel for defendant then asked when she had learned them, to which she responded “I’ve known all along.” Her explanation for withholding the information by falsely answering the interrogatory was that someone in her counsel’s office had advised her to state “Don’t know” if she did not have documentary proof of her response at hand.

Defendant argued that plaintiff’s assertions that she “felt” conception occur during sexual relations with him and that she “believed” that the physician’s estimation of October 15 as the date of conception was erroneous were not proper grounds for the paternity action because her conclusions had no scientific or other objectively reasonable basis. The majority disagrees, stating that sanctions are not warranted “where, even if the statement is false, the plaintiff, nonetheless, has reason to believe that the statement was true.” (187 Ill. App. 3d at 784.) Did she “have reason” to believe conception took place when she had sexual relations with defendant because she “felt” conception occur? It is noteworthy that plaintiff’s own counsel stated in the August 1987 memorandum in opposition to sanctions and at the November 1987 hearing thereon, that “her subjective feelings *** however farfetched gave her additional reason to name him” and that “[w]e have never seen any specific justification for such a feeling [of conception], but that is what she said.” Counsel also acknowledges on appeal that “there is no known way that [plaintiff] could be aware of [conception].” In my view, counsel’s various statements amount to an acknowledgment that her “belief” that she “felt” conception during intercourse with defendant was not an objectively reasonable one.

My review of the record discloses other facts, not addressed by the majority, which I believe are relevant to the question whether plaintiff’s allegations and denials were made with “reasonable cause” under former section 2 — 611 or that “to the best of [her] knowledge, information and belief formed after reasonable inquiry [they] were well grounded in fact and warranted by existing law” under amended section 2 — 611. For example, according to plaintiff’s deposition testimony, she was approximately 30 years old, had completed two years of college and had been pregnant three times before. She stated in her interrogatories that she had used a contraceptive device during intercourse with defendant on September 19, and she acknowledged that she had not used any contraceptive device during sexual relations with Lazzaroni on October 18 and 19. Although, as the majority points out, she testified that the contraceptive device was ill-fitting, she made no such assertion in her answer to the interrogatory asking the reasons for her belief that defendant was the father.

Plaintiff also affirmatively stated, both in her answers to interrogatories and at her deposition, that she had a menstrual period approximately two weeks after engaging in sexual relations with defendant, a fact she was able to recall because it was recorded in the medical records prepared when she underwent a pregnancy test in November 1982. Cases have noted that the occurrence of a menstrual period after a plaintiff’s sexual encounter with a defendant is probative evidence tending to contradict plaintiff’s assertion that she was impregnated by the defendant. (See, e.g., In re Estate of Lukas (1987), 155 Ill. App. 3d 12, 508 N.E.2d 385; People ex rel. Reynolds v. Aldridge (1982), 107 Ill. App. 3d 679, 437 N.E.2d 1268.) These facts are contained in the transcript of plaintiff’s deposition and, in my opinion, are relevant to the question whether, considering her age and life experiences, plaintiff’s allegations and denials were made with “reasonable cause” or after “objectively reasonable inquiry” as required by the respective versions of section 2 — 611.

Additionally, the majority characterizes as an “unsubstantiated notation” in the hospital records a reference to a person (not the defendant) who accompanied plaintiff to the hospital and was present in the delivery room as “the father” and “the husband.” However, it should be noted that plaintiff signed the records in which those characterizations were made and that the existence of such a person came to light only when the records were subpoenaed by defendant.

With regard to the allegedly sanctionable conduct of counsel, defendant argued, inter alia, that plaintiff’s counsel knew or should have known that his assertions that the law did not permit the naming of more than one person as a defendant in a paternity action were erroneous. Defendant correctly noted that the Parentage Act of 1984, which became effective less than one month after the filing of plaintiff’s original complaint, provides that “[t]he complaint [in an action to determine the existence of the father and child relationship] shall be verified and shall name the person or persons alleged to be the father.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 40, par. 2507.) Plaintiff testified, and counsel did not deny, that she informed counsel prior to the filing of her complaint that she had had sexual relations with three men during the relevant period. Thus, irrespective of whether or not the Paternity Act permitted the naming of more than one alleged father, or “the administrative agencies involved had a firm policy against naming multiple defendants,” as plaintiff’s counsel maintains, the fact remains that the Parentage Act was amended less than one month after the plaintiff’s original complaint was filed and clearly provides that the complaint shall name the person or persons alleged to be the father. Yet, her counsel took no action to amend the complaint to name the two other possible fathers, Udell and Lazzaroni, until more than 18 months after the effective date of the Parentage Act and approximately three months after the effective date of amended section 2 — 611. Furthermore, according to plaintiff, her counsel expressly informed her that “it was up to [her] whether [she] wanted to put Udell’s name into it.” Defendant also pointed out that according to plaintiff, either her counsel or someone in his office advised her to falsely answer “Don’t know” to the interrogatory asking for her and the child’s blood types.

Defendant argued that plaintiff’s counsel knew of the falsity of plaintiff’s answer to defendant’s interrogatories that defendant and Lazzaroni were the only persons with whom she had sexual relations during the possible period of conception, and the falsity of her answer that the dates of her sexual relations with Lazzaroni did not coincide with the date of the child’s birth. Nevertheless, it was not until plaintiff’s deposition in March 1987, wherein she admitted various untruths and omissions, that counsel filed supplemental answers to correct those misstatements and supply the omitted information.

The sanctions which for a long period of time have been allowed against parties under the preamended section 2 — 611 in cases where there has been a failure to correct an offending allegation or denial in papers filed with the court (Grandys v. Spring Soft Water Conditioning Co. (1968), 101 Ill. App. 2d 225, 242 N.E.2d 454) are now also permissible against counsel under amended section 2 — 611. As we noted in Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595, counsel cannot simply remain silent when faced with incorrect or newly discovered information. Rather, once it appears that a prior allegation or denial is erroneous, this must be brought forthrightly to the attention of the court and opposing counsel. (Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595.) Correction was not made in this case until many months after plaintiff’s counsel had knowledge of false allegations and denials. Indeed, correction came only after defendant’s extensive and time and cost-consuming investigation revealed the false statements made by plaintiff.

Defendant also contended in the trial court and on appeal that statements by plaintiff’s counsel in his August 1987 memorandum in opposition to the motion for sanctions and at the November 1987 hearing thereon substantiate his allegation that the primary reason defendant was the only one of the three men named in the original complaint was because he is a financially secure commodities trader whereas Lazzaroni and Udell were both young students. In the statements to which defendant refers, plaintiff's counsel said, “[t]here is no rule or statute that says we have to name all three. There is no rule or statute that says we cannot proceed one at a time. *** Given that [plaintiff] had to proceed against the three one at a time, prudent common sense, not reckless disregard for the truth, dictated that she start with the defendant best able to pay child support.” Notwithstanding that counsel’s statement of the law was refuted by the Parentage Act of 1984, and that counsel expressly conceded the existence of some financial motivation for plaintiff’s naming of only defendant, the trial court summarily dismissed defendant’s allegation stating, “you [defense counsel] reasoned that *** she decided to go after the commodities broker *** because that’s what they do in a P.I. case, look for deep pockets? I just throw that out.” In my view, this cursory rejection of defendant’s contention that his financial status was a motivation for naming him in her paternity complaint supports my conclusion that the trial court abused its discretion when it did not give adequate or appropriate consideration to defendant’s motion under either version of section 2 — 611.

Parenthetically, it should be noted that in reference to the above-quoted remark of the trial court, counsel asserts in his brief on appeal that “[t]he trial judge noted that the ‘Deep Pocket Theory’ is of longstanding custom [and is] not reprehensible in and of itself.” Not only is counsel’s assertion itself a misstatement of the court’s remark, but the underlying proposition is, in my judgment, legally and ethically questionable, and if true, indicative of a morally impoverished court system.

I also disagree with the majority’s reasoning concerning defendant’s contention that the litigation was unnecessarily protracted by the conduct of plaintiff and her counsel. In response to arguments by defendant at the hearing, the trial court agreed, and counsel conceded, that the statement in plaintiff’s complaint that defendant was the father was improperly conclusionary and that “it would have been better” to name and seek immediate blood tests of all three men. However, the trial court took the position, which the majority adopts, that “defendant could have taken a blood test to show an exclusion as soon as the complaint was filed instead of objecting to plaintiff’s motion to compel [blood tests].” Initially, plaintiff signed the complaint against defendant on February 1, 1985. It was not until two years later, February 1987, that plaintiff filed a motion for blood tests. Defendant objected to the blood tests because the information that had been uncovered by that time indicated no reasonable basis to believe he was the father. I fail to see the relevancy of defendant’s 1987 objection to the blood tests to the question of whether plaintiff’s failure to seek blood tests until two years after she signed the complaint unnecessarily prolonged the litigation.

Moreover, in my view, the position taken by the trial court and the majority constitutes an improper shifting of the burden of proof from plaintiff to defendant. In a paternity action it is the mother who bears the burden of proving paternity by a preponderance of the evidence. (People ex rel. Barbour v. Hatchett (1985), 131 Ill. App. 3d 540, 475 N.E.2d 1113. See also Rivera v. Minnich (1987), 483 U.S. 574, 97 L. Ed. 2d 473, 107 S. Ct. 3001; Ill. Rev. Stat. 1983, ch. 40, par. 1359.) Although a defendant in a paternity action may request blood tests (Ill. Rev. Stat. 1985, ch. 40, par. 2511(a)), he is not obligated to do so. Furthermore, in the event that he does, under the statute it is he who is required to pay the expenses of the tests (Ill. Rev. Stat. 1985, ch. 40, par. 2511(g) (“[t]he expense of the tests shall be paid by the party who requests the test”)).

Defendant’s motion for sanctions argued that by naming and continuing the action against him as the sole defendant, rather than the three men with whom she had sexual relations, plaintiff and counsel placed upon him the burden of investigating her allegations and of seeking court orders compelling disclosure of facts which she and counsel failed to investigate, disclose, or admit. Defendant maintained that he was forced to expend significant amounts of time and money to defend an action which was premised largely on allegations and denials which were untruthful, deceitful, incomplete and/or made without reasonable basis or inquiry, and that he was selected as the sole defendant on the basis of his financial status. Since neither plaintiff nor her counsel offered any explanation as to why they did not seek an order compelling blood tests until nearly two years after the institution of this action, I cannot agree with the majority’s position that defendant’s failure to voluntarily submit to and assume the additional expense of a blood test to disprove his paternity should constitute a waiver of his claim for expenses and fees under section 2-611.

In summary, I submit that it was incumbent upon the trial court to consider defendant’s various contentions under the applicable standards of section 2 — 611. In my view, the trial court’s failure to do so and its reliance on the inappropriate “bad faith” standard, which has been inapplicable for over a decade, was error warranting reversal and remandment for a new and full hearing on defendant’s motion.


source: Caselaw Access Project

author: JUSTICE PINCHAM

license: Public Domain

text:
      In re MARRIAGE OF SUSAN MAURO, Petitioner-Appellant, and GARY MAURO, Respondent-Appellee.
    First District (5th Division)
    No. 1—87—0453
    Opinion filed August 18, 1989.
    David M. Mattenson and William J. Arendt, both of Kanter & Mattenson, Ltd., of Chicago, for appellant.
    Schiller, Du Canto & Fleck, Ltd., of Chicago (Charles J. Fleck and Sarane C. Siewerth, of counsel), for appellee.
   JUSTICE PINCHAM

delivered the opinion of the court:

The subject of this appeal is an order entered by the circuit court of Cook County pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA) (Ill. Rev. Stat. 1987, ch. 40, par. 2102 et seq.) extending full faith and credit to a custody judgment entered by the circuit court of Oakland County, Michigan. The issue presented for review is whether the trial court erroneously extended full faith and credit to the Michigan court judgment.

According to our review of the record, on January 14, 1986, a judgment for dissolution of marriage was granted to the parties by the Michigan court. In relevant part, the judgment awarded joint custody of the two children, six-year-old Vanessa and three-year-old Jacqueline, to the parties. The wife was granted physical custody of the children and the father was given “reasonable and liberal” rights of visitation. In August 1986, an order was entered modifying the judgment to permit the wife to remove the children to Chicago, Illinois, pursuant to her change of domicile. The father was granted visitation on Labor Day weekend of 1986, alternate weekends thereafter, holidays and for six weeks every summer.

The mother permitted the father to visit with the children Labor Day weekend but denied his requests for visitation thereafter. On October 22, 1986, she filed a petition in the Michigan court to terminate his visitation, which was denied without an evidentiary hearing. Thereafter, the father filed a motion to show cause and to modify the custody judgment in the Michigan court. On December 1, 1986, that court entered an order granting the father custody of the children “permanently or until further order of court.” Nine days later, the father specially appeared before the circuit court of Cook County and presented an ex parte motion to enroll and enforce the Michigan custody order pursuant to section 16 of the UCCJA (Ill. Rev. Stat. 1987, ch. 40, par. 2116) and require the mother to turn over the children to him. The court then entered an order granting the father’s motion. On December 11, 1986, the mother filed her petition to terminate the father’s visitation with the minor children. Therein, she alleged that the father had sexually assaulted the minor children when he had visitation with them over the Labor Day weekend. On December 16, 1986, she filed a response to the father’s ex parte motion and alleged, inter alia, that the Michigan court order was erroneously entered because that court had failed to consider the best interests of the children.

On December 19, 1986, after considering pleadings filed by the parties and argument of counsel, the trial court entered an order finding that the Michigan court had failed to consider the best interests of the children when it granted the father custody and that the December 1, 1986, order was erroneous and could not be enforced pursuant to section 16 of the UCCJA. The trial court then vacated its order of December 10, 1986, enforcing the Michigan court order and continued the mother’s petition to terminate the father’s visitation with the minor children.

On January 7, 1987, counsel for both parties appeared before the Michigan court, which then entered an order clarifying its order of December 1, 1986, and finding that it was in the best interests of the children that their custody be awarded to the father. On February 11, 1987, the trial court entered an order extending full faith and credit to the Michigan court order on the ground that it had satisfied the requisite best interests finding. Concomitantly, the trial court declined to hear the mother’s petition to terminate the father’s visitation.

The mother now contends that the trial court erroneously extended full faith and credit to the Michigan court order and improperly declined hearing her petition to terminate the father’s visitation. Initially, we note that the principal purposes of the UCCJA are to avoid conflicts with courts of other States, to protect the best interests of the child, and to discourage forum shopping. (Ill. Rev. Stat. 1987, ch. 40, par. 2102; In re Marriage of Levy (1982), 105 Ill. App. 3d 355, 358, 434 N.E.2d 400.) Illinois courts recognize and enforce initial or modification custody judgments of sister States which are rendered in substantial accord with the UCCJA or satisfy its jurisdictional standards. (Ill. Rev. Stat. 1987, ch. 40, par. 2114.) A certified copy of a custody judgment tendered by a sister State which meets the requirements of section 14 and has been filed with any clerk of an Illinois circuit court has the same effect and is enforceable as a custody judgment rendered by an Illinois court. Ill. Rev. Stat. 1987, ch. 40, par. 2116.

According to the foregoing principles, Michigan had jurisdiction to modify its custody order if it met the requirements of section 4 of the UCCJA, as set forth below:

“1. this State
(i) is the home state of the child at the time of commencement of the proceeding, or
(ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
2. it is in the best interest of the child that a court of this State assume jurisdiction because
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and
(ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships ***.” Ill. Rev. Stat. 1987, ch. 40, par. 2104.

A review of the record discloses that Michigan was the home State of the minor children when the father commenced the custody action. The father then resided in Michigan and the mother and minor children had moved from there no more than three months before the father filed his petition. Further, the mother had filed her petition to terminate the father’s visitation before the Michigan court one month before the father initiated the action for custody. When the Michigan court denied the mother’s petition to terminate the father’s right to visitation, she could have appealed that order to the appellate court of the State of Michigan by filing her petition to terminate the father’s visitation in Michigan. She failed to do so and she thereby implicitly acknowledged that Michigan retained jurisdiction over the cause. We believe that Michigan properly exercised jurisdiction in accordance with the UCCJA purposes to discourage forum shopping and to deter removal of children to obtain custody awards. In re Marriage of Dagher (1986), 145 Ill. App. 3d 379, 382, 495 N.E.2d 1004.

Under the circumstances, we must conclude that the trial court properly extended full faith and credit to the Michigan court order which satisfied the requirements of section 14 of the UCCJA. Ill. Rev. Stat. 1987, ch. 40, par. 2114.

For the reasons stated, the judgment is affirmed.

Affirmed.

LORENZ and COCCIA, JJ., concur.


author: JUSTICE LORENZ

text:
    O.C. SMITH, Plaintiff, v. CHICAGO HOUSING AUTHORITY, Defendant and Third-Party Plaintiff-Appellant (Interstate Service Corporation, Third-Party Defendant-Appellee).
    First District (5th Division)
    No. 1—87—3528
    Opinion filed August 18, 1989.
    Mitchell Ware, Frank M. Grenard, Eileen M. Letts, and David S. Allen, all of Jones, Ware & Grenard, of Chicago, for appellant.
    John J. Walsh III, of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Robert J. Franco, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

This appeal involves the denial of the Chicago Housing Authority’s post-trial motion for indemnification by Interstate Service Corporation for costs incurred in the defense of a personal injury suit.

We reverse and remand the cause with directions.

On October 2, 1979, O.C. Smith, a North Carolina Mutual Insurance Company sales representative, travelled to 4101 South Federal Street in Chicago to collect an insurance premium from Jim Jones. Jones lived in a second-floor apartment in the Robert Taylor Homes housing project located at that address. While in Jones’ apartment, Smith observed a conversation between Jones and John Rice. After Smith collected the premium, he left. As Smith was returning to his automobile via the north stairwell of the building, Rice appeared, shouted at Smith, and shot Smith in the back. Smith eventually recovered from the gunshot wound. Rice was subsequently convicted for the shooting.

On September 12, 1981, Smith filed a personal injury action against the Chicago Housing Authority (CHA) arising out of the shooting. The complaint, as amended, alleged that the CHA was negligent in the following ways: hiring incompetent security personnel, failing to provide sufficient security in areas where and when criminal conduct was likely, carelessly positioning security personnel, providing security personnel at a time and place which actually increased the likelihood of criminal conduct, failing to warn security personnel of the likelihood of criminal conduct, and failing to properly secure an area where criminal conduct was likely.

In turn, the CHA filed a third-party complaint against Interstate Service Corporation (Interstate). The third-party complaint was based on an indemnification agreement in a contract originally executed in February 16,1946. Pursuant to that contract, the CHA engaged Interstate to provide security service for the CHA’s housing projects. Paragraph 5(f) of the contract embodied the indemnification provision. That paragraph provided Interstate would

“hold the CHA harmless from and shall defend the CHA against any and all suits, claims and demands whatsoever brought by any person *** for injuries to *** any person or damage to or loss of property *** alleged or claimed to have been caused or to have arisen out of or in connection with or incidental to any work to be done by [Interstate] hereunder, whether or not such loss, injury or damage shall be caused or contributed to by the joint or concurring negligence of the [CHA], *** and to pay, liquidate and satisfy any and all judgments, awards or expenses which may be rendered against or incurred by [the] CHA in connection therewith, including *** all costs of suits, attorneys fees and reasonable expenses therewith whether or not such judgment, award or expense shall be rendered against or incurred by the CHA in whole or in part because of the joint or concurring negligence of the CHA, its agents or employees; provided, however, that the CHA shall have the right at its option to participate in any such litigation without relieving [Interstate] of any of its obligations under the contract. [Interstate] shall insure all the liability assumed hereunder and shall furnish the CHA with satisfactory evidence (subject to the approval of the CHA) of such insurance coverage. [Interstate] shall hold and save the CHA, its officers, agents, servants, and employees harmless from liability for the use of any invention, article, or appliance used in the performance of the contract.”

Interstate denied the material allegations of the third-party complaint and asserted, as an affirmative defense, that no basis for indemnification could exist because the security personnel provided under the contract were joint servants of the CHA and Interstate.

Prior to the commencement of trial, an order was entered outlining the obligation of Interstate to indemnify the CHA under paragraph 5(f). Specifically, the order provided paragraph 5(f)

“require[d] [Interstate] to hold harmless and defend [the] CHA, pursuant to [the agreement’s] terms, only in the event that a claimed injury was caused by, or arose directly from, the act or failure to act solely by [Interstate] *** or from the joint acts or failures to act by [Interstate] *** and [the] CHA ***. [Interstate] shall not be required to hold harmless and defend [the] CHA under the terms of the indemnity agreement for a claimed injury which was caused by, or arose directly from, the act or failure to act solely by [the] CHA.”

At trial, considerable testimony focused on procedures used by Interstate in patrolling the Robert Taylor Homes and whether those measures were instituted to protect only CHA property or contemplated, as well, protection of persons on CHA premises. The record indicates Interstate patrolled the inside and outside of the Robert Taylor Homes. Inside, Interstate employed a “top-down” or “vertical” patrol method in which security officers walked from the top floor of a particular building to the first floor, checking each floor en route. The officers were instructed to make their presence known at designated apartments during their patrol.

Regarding the scope of Interstate’s duty, testimony established that the function of security personnel was to protect CHA property and buildings and to deter crime from occurring on CHA property through their presence. Interstate personnel were directed to contact their headquarters or the Chicago police department or make a citizen’s arrest if they witnessed a crime in progress. The officers were instructed that the Chicago police department was responsible for tenants’ safety.

At the close of trial, the trial judge directed the jury, pursuant to a special interrogatory, to determine whether the CHA had voluntarily undertaken to provide protection for persons on its premises, including Smith. The trial judge advised the jury that if they determined the CHA had not voluntarily undertaken that duty, they should cease deliberations. However, if they determined the CHA did so undertake to protect persons on its premises, then they should further consider whether to award a verdict for Smith or the CHA. If the jury found in favor of Smith, the trial judge instructed, the jury was to answer another special interrogatory indicating whether Interstate was negligent in its patrol procedures and whether that negligence resulted in Smith’s injuries.

The jury concluded the CHA had undertaken to provide security for persons at the Robert Taylor Homes and answered the first interrogatory affirmatively. However, the jury returned a verdict for the CHA and, therefore, did not answer the special interrogatory relating to Interstate’s negligence.

Subsequently, the CHA filed a post-trial motion seeking reimbursement from Interstate for attorney fees in conjunction with its defense of Smith’s action. The trial judge denied that motion, concluding that the agreement between Interstate and the CHA did not contemplate protection of persons on CHA premises. This appeal followed.

Opinion

As Interstate points out in its brief on appeal, the issue of whether Interstate must indemnify the CHA pursuant to paragraph 5(f) for attorney fees and costs incurred in defense of Smith’s suit necessarily raises an issue as to the scope of Interstate’s security duty, as it is breadth of the ultimate undertaking which defines the duty to indemnify.

Our supreme court has had occasion, in Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596, to previously consider Interstate’s scope of duty under the very contract at issue in this appeal. Pippin involved a wrongful death action by decedent’s mother against the CHA and Interstate following the stabbing death of her son by a tenant in a common area of a CHA building. The circuit court granted summary judgment in favor of defendants. The appellate court reversed.

In affirming the appellate court’s reversal, the supreme court considered, first, the CHA’s duty with respect to security services. The court recognized that although the CHA had no independent duty to protect against criminal acts on its property, it had voluntarily engaged Interstate, an independent contractor, to provide security services. (Pippin, 78 Ill. 2d at 209, 399 N.E.2d at 599.) However, because the CHA, itself, did not undertake to perform security services, it could not be held to have had a duty to protect the plaintiff. (Pippin, 78 Ill. 2d at 209, 399 N.E.2d at 599.) The CHA’s duty was limited by the extent of its undertaking, viz., to use reasonable care in engaging Interstate. Pippin, 78 Ill. 2d at 209, 399 N.E.2d at 599.

The court next considered the scope of Interstate’s obligation under the contract. The court rejected Interstate’s arguments to the contrary and concluded Interstate’s duty under the contract extended to the protection of persons lawfully on CHA premises. Pippin, 78 Ill. 2d at 212, 399 N.E.2d at 534.

Here, Interstate attempts to distinguish Pippin from the instant case by arguing that, in Pippin, the court considered only the “bald” contract language. In the instant case, Interstate contends, the jury heard testimony of how the contract had been modified by the parties’ understanding and conduct over the course of 30 years. In apparent reference to the jury’s answer to the special interrogatory that the CHA voluntarily undertook to protect persons on its property, Interstate contends Pippin cannot control the disposition of the instant appeal because the question of the scope of the agreement was resolved in Interstate’s favor.

We are not persuaded by Interstate’s arguments. Although the jury below considered testimony regarding the scope of the contract’s undertaking, there can be no dispute that, as the supreme court concluded in Pippin, beyond exercising care in engaging Interstate, the CHA could owe no duty to Smith. There is no evidence in the record that CHA guards patrolled the Robert Taylor Homes. The CHA engaged Interstate for that purpose. Interstate’s suggestion here that the jury’s answer to the special interrogatory indicated something more than that, through engagement of Interstate, the CHA voluntarily undertook to protect individuals on its premises is a distortion of the record. In view of the jury’s determination, we therefore reach the same conclusion the court in Pippin reached without the benefit of testimony: that the contract between the CHA and Interstate contemplated the protection of persons lawfully on CHA premises.

We next determine whether the CHA is entitled to reimbursement of attorney fees and costs of suit under paragraph 5(f) of the contract. We note, generally, that construction of indemnification provisions is determined by the same principles which govern interpretation of other contract provisions. (Friedman, Alschuler & Sincere v. Arlington Structural Steel Co. (1985), 140 Ill. App. 3d 556, 489 N.E.2d 308.) Namely, courts must endeavor to ascertain and effectuate the parties’ intent. (United Airlines, Inc. v. City of Chicago (1987), 116 Ill. 2d 311, 507 N.E.2d 858.) In the absence of ambiguity, that intent is to be determined solely from the language employed in the instrument. P.A. Bergner & Co. v. Lloyds Jewelers, Inc. (1986), 112 Ill. 2d 196, 492 N.E.2d 1288.

By express language, paragraph 5(f) obligated Interstate to “pay, liquidate and satisfy any and all *** expenses *** incurred by the CHA” in “connection with or incidental to any work to be done” by Interstate including “all costs of suits, attorneyf ] fees and reasonable expenses therewith.” That language clearly outlines a duty to indemnify the CHA under the facts of the instant case because, as we have indicated above, “work to be done” by Interstate included the protection of persons on CHA premises. We note, however, that, as the trial judge correctly determined in interpreting paragraph 5(f) prior to trial, Interstate’s duty would arise only where the claimed injury was related to Interstate’s own activities or its joint activities with the CHA. Interstate could have no obligation to indemnify the CHA for attorney fees and costs incurred in conjunction with any defense of allegations in Smith’s complaint concerning negligence in the hiring of Interstate. See Pippin, 78 Ill. 2d at 209, 399 N.E.2d at 599.

We therefore reverse the judgment of the circuit court and remand the matter for further proceedings to determine the amount of attorney fees and costs incurred by the CHA in its defense of Smith’s suit. To the extent those fees and costs were incurred solely in defense of allegations for acts or failures to act with respect to the protection of Smith, and not associated with any allegation of negligence in the hiring of Interstate, judgment for the CHA should be entered for that amount.

Reversed and remanded.

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


text:
    BILLY E. JOHNSON, Plaintiff-Appellee, v. THE DEPARTMENT OF CORRECTIONS et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—88—1205
    Opinion filed August 18, 1989.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellant Civil Service Commission.
    Neil F. Hartigan, Attorney General, of Springfield (Matthias A. Lydon, Special Assistant Attorney General, of Chicago, and John A. Dienner III, of counsel), for appellant Department of Corrections.
    Arthur R. Ehrlich and Gerald A. Goldman, both of Goldman & Marcus, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff sought administrative review of the decision of the Civil Service Commission (Commission) discharging him from employment with the Department of Corrections (DOC). The circuit court reversed the Commission’s order of discharge and remanded the matter to the Commission for imposition of a penalty not to exceed suspension for 60 days. On remand, plaintiff was suspended for 60 days.

We affirm.

From March 4, 1984, until July 23, 1985, plaintiff, Billy E. Johnson, was employed by the DOC as a chief of security at the Stateville Correctional Center (Stateville), a certified civil service position under coverage of the Personnel Code (Ill. Rev. Stat. 1985, ch. 127, pars. 63b101 through 63bll9c.l). On July 23, 1985, Johnson, at the request of the DOC, assumed the position of assistant warden at the Pontiac Correctional Center (Pontiac), a position exempt from coverage under the Personnel Code.

Johnson took a leave of absence in order to assume the position at Pontiac. We note, parenthetically, that such leaves to take exempt positions are authorized under section 303.155 of the Illinois Administrative Code (Administrative Code) (80 Ill. Adm. Code §303.155 (1985)), the provisions of which implement, and are authorized by, the Personnel Code.

The Department of Central Management Services approved Johnson’s request for leave on August 27, 1985. The request was applied retroactively to July 23, 1985. Johnson’s leave was approved for one year and expired on July 23,1986.

The record indicates Johnson sought to extend the leave of absence beyond its expiration as permitted under section 303.155 of the Administrative Code. In a hearing before the Commission following discharge, Johnson established that, in the spring of 1986, and prior to July 23, 1986, Kay McDougal, his secretary at Pontiac, prepared, at his instruction, a request for extension of the leave. In other testimony, Joann K. Simms, a personnel officer at Pontiac, corroborated that Johnson had sought an extension of his leave. Simms stated a clerk in the personnel office had asked her about the proper procedure respecting Johnson’s request, and Simms had advised the clerk to forward the form to Stateville for approval by the warden there. Simms testified forwarding such requests was done as a courtesy to employees. Johnson further established that approximately one week following expiration of his leave on July 23, 1986, he spoke to Simms about his requested extension. Simms had indicated that approval would “take time.”

During the period following the expiration of his leave of absence until his eventual discharge, Johnson continued to function as assistant warden at Pontiac.

On September 8, 1986, Johnson received a letter from James R. Berger, chief personnel officer of the DOC, informing Johnson that, because his leave of absence had expired on July 23, 1986, and was not “renewed,” Johnson was subject to discharge pursuant to section 303.153 of the Administrative Code (80 Ill. Adm. Code §303.153 (1985)). Section 303.153 authorizes discharge for the failure of an em-to return from leave within five days after its expiration date. Johnson subsequently received a formal notice of discharge which he appealed to the Commission.

The hearing before the Commission was held on October 15, 1986. The hearing officer determined the following undisputed facts were established by evidence presented: Johnson did not return to his position at Stateville within five days of expiration of his leave on July 23, 1986; Johnson’s leave was never approved for extension; Johnson never checked with Stateville authorities to see if they had received his request for extension of his leave; no request for extension of the leave appeared in Johnson’s personnel file; and, upon Johnson’s termination as assistant warden at Pontiac, Johnson did not apply with the DOC for reinstatement as chief of security at Stateville as required by section 303.155 of the Administrative Code (80 Ill. Adm. Code §303.155 (1985)).

The hearing officer determined, however, that discharge was too severe a penalty under the facts of Johnson’s case and recommended, instead, suspension for 60 days. Specifically, the hearing officer noted that Johnson had followed the same procedures in seeking an extension of the leave as he had in seeking leave initially and had relied on the courtesy of the Pontiac personnel department to properly forward his request for an extension of the leave. The hearing officer reasoned Johnson could not be reasonably held accountable for the request going “astray.”

By order entered on December 17, 1986, the Commission adopted the hearing officer’s findings of fact. However, the Commission rejected the recommended suspension and upheld Johnson’s discharge. The Commission’s decision stated discharge was warranted because Johnson’s failure to diligently act on the extension “caused confusion and ultimately was harmful to the good order of the merit system.”

On January 20, 1987, Johnson filed his complaint for administrative review of the Commission’s decision in the circuit court against the DOC and the Commission.

A hearing on Johnson’s complaint was held on December 23, 1987. In rendering his decision, the trial judge noted the existence of mitigating factors, including the “bureaucratic conduct” of the DOC in not timely processing Johnson’s request for extension of his leave and Johnson’s reasonable belief the extension would be approved. In light of those circumstances, the trial judge ruled, Johnson’s discharge was arbitrary and warranted reversal. An order was entered the same day reversing Johnson’s discharge and remanding the matter to the Commission for imposition of a penalty not to exceed suspension for 60 days.

On February 25, 1988, the Commission rendered its decision, suspending Johnson for 60 days.

On March 17, 1988, defendants filed a motion in the circuit court to have the court review the Commission’s modified sanction so that defendants could appeal Johnson’s reinstatement. Defendants also sought to stay enforcement of the Commission’s decision pending appeal.

On March 21, 1988, the circuit court entered an order making the Commission’s decision of February 25, 1988, final and appealable. The court also granted defendants’ stay request.

On March 31, 1988, pursuant to Johnson’s motion for reconsideration of that portion of the March 21, 1988, order staying effect of the Commission’s decision, the circuit court entered an order vacating the stay.

On April 19, 1988, defendants filed their notice of appeal. The notice recited that appeal was sought from orders entered by the circuit court on December 23, 1987, and March 21, 1988. Attached to the notice was the order entered December 23, 1987, and, apparently by mistake, the order of March 31, 1988.

On May 13, 1988, Johnson filed a motion in this court to dismiss defendants’ appeal for lack of jurisdiction based on deficiencies in the notice of appeal. We decided to take that motion with the case.

Opinion

We address, first, Johnson’s motion to dismiss.

Johnson contends the notice of appeal is deficient because it purportedly appeals from the circuit court’s order of March 21, 1988, but had attached, instead, the order of March 31, 1988. Johnson argues it is therefore unclear which order is actually being appealed.

Although defendants attached the order of March 31, 1988, to the notice of appeal, rather than the order of March 21, 1988, to which the notice actually refers, the notice of itself is not ambiguous as to which order is being appealed. The notice states defendants were appealing from orders of the circuit court entered March 21, 1988, and December 23, 1987, “reversing the decision of the Civil Service Commission.” The attached order of March 31, 1988, merely sought stay of enforcement of the effect of those prior orders and did not concern, directly, reversal of the Commission’s decision. Additionally, we note that under Supreme Court Rule 303 (107 Ill. 2d R. 303),

which specifies the form and content of the notice of appeal, appellants are not required to attach the order or orders from which appeal is sought. The attachment of the order of March 31, 1988, is merely an error of form, not substance, and cannot constitute a basis to dismiss defendants’ appeal. See Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc. (1985), 137 Ill. App. 3d 550, 484 N.E.2d 1178.

Johnson also contends the notice is untimely because appeal is sought from the circuit court’s order of December 23, 1987. Johnson maintains that that order was final and its entry therefore commenced the period for timely filing notice of appeal because, upon remand, the Commission needed only to enter an order conforming to the circuit court’s instruction to impose a lesser sanction than discharge.

An order by the circuit court remanding a cause to an agency to impose a sanction other than that imposed is not final and appealable because it does not terminate the litigation between the parties on the merits. (Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006, 443 N.E.2d 268.) Only after the circuit court reviews the results of the agency’s additional proceedings upon remand, and enters a subsequent order thereon, is the litigation between the parties terminated. (Mitrenga, 110 Ill. App. 3d at 1007, 443 N.E.2d at 269-70.) Jurisdiction remains with the circuit court until after the administrative agency has acted on the court’s order. Mitrenga, 110 Ill. App. 3d at 1007, 443 N.E.2d at 269-70.

The order of December 23, 1987, did not completely dispose of all matters, but, rather, commanded the Commission to determine an appropriate sanction other than discharge, which did not exceed suspension for 60 days. The Commission had discretion in imposing the new sanction on remand. Review of that sanction by the circuit court was a crucial procedural step to insure the entire record of the cause, from charge to sanction, would be properly before the appellate court. (See Mitrenga, 110 Ill. App. 3d at 1008, 443 N.E.2d at 269, citing Robinson v. Cook County Police & Corrections Merit Board (1981), 93 Ill. App. 3d 1051, 418 N.E.2d 170.) That defendants cited the December 23, 1987, order in the notice of appeal, in addition to the final order of March 21, 1988, does not render the notice defective and cannot deprive this court of jurisdiction over defendants’ appeal.

Finding no basis to dismiss the instant appeal, we proceed to consider the merits of defendants’ arguments. We note here that although defendants filed separate appellate briefs, the brief of the DOC adopted, where not inconsistent with its own position, the arguments made by the Commission.

In its brief on appeal, the DOC contends the Commission did not have jurisdiction to conduct a hearing on plaintiff’s discharge because Johnson failed to apply for reinstatement of his position at Stateville at the expiration of his leave of absence from that position as required by section 303.155 of the Administrative Code. Section 303.155 states, in part:

“[A]n agency may approve leaves of absence for certified employees who accept appointment in a position which is exempt from *** [the Administrative Code]. Such leaves of absence may be for a period of one year or less and may be extended for additional one year periods. At the expiration thereof, an employee shall be restored to the same or similar position upon making application of the employing agency with continuous service including the period of such leave ***.” (80 Ill. Adm. Code §303.155 (1985).)

Essentially, the DOC argues that Johnson’s certified employment status was forfeited by operation of section 303.155 when he failed to apply for reinstatement to his certified position at Stateville by the moment his leave expired.

We are not persuaded by that argument. Although the Administrative Code does not address the situation presented here, where a leave has expired and no application has been made by the employee for reinstatement to his former position, it is clear that the Commission does not forfeit, because of the employee’s inaction, jurisdiction over the employee’s subsequent appeal for discharge. Section 303.155, itself, merely mandates reinstatement of the employee to his former, or a similar, position upon the employee’s application following expiration of his leave. It does not automatically terminate employment status where the employee has not made an application for reinstatement.

Moreover, that section cannot be read in isolation but must be considered in conjunction with section 303.153, the section under which Johnson was discharged. Section 303.153 states:

“Failure to return from leave within 5 days after the expiration date [of an authorized leave of absence] may be cause for discharge.” (80 Ill. Adm. Code §303.153 (1985).)

When those sections are considered together, it is clear formal discharge proceedings are necessary to dismiss an employee who, at the expiration of an authorized leave, has failed to return within five days to his former position, which return is effectuated automatically upon the employee’s application.

It cannot be disputed that the Commission has jurisdiction to hear the appeal of an employee so discharged. The Personnel Code, under which the Commission is created (see Ill. Rev. Stat. 1985, ch. 127, pars. 63b103, 63b110), commands, in section 11:

“No [certified] employee *** shall be removed[ ] [or] discharged *** except for cause, upon written charges approved by the Directors of Personnel, and after an opportunity to be heard in his own defense if he makes written request to the Commission within 15 days after the serving of the written charges upon him.” (Ill. Rev. Stat. 1985, ch. 127, par. 63b111.)

(See also 80 Ill. Adm. Code §1.130 (1985) (providing the same opportunity to a certified employee discharged pursuant to charges approved by the Director of Central Management Services.)) We therefore determine the Commission had jurisdiction to conduct a hearing on Johnson’s appeal.

The DOC and the Commission both contend the Commission’s decision to discharge Johnson was not arbitrary and that the circuit court erred in reversing the Commission’s decision. They further argue the circuit court abused its discretion in entering an order mandating the Commission to impose a more lenient sanction than discharge.

Under section 11a of the Personnel Code (Ill. Rev. Stat. 1985, ch. 127, par. 63b111a), and as reflected in section 1.300 of the Administrative Code (80 Ill. Adm. Code §1.300 (1985)), final decisions of the Commission are reviewable by the circuit courts (see Ill. Rev. Stat. 1985, ch. 110, par. 3 — 104) under the Administrative Review Law (Act) (Ill. Rev. Stat. 1985, ch. 110, pars. 3 — 101 through 3 — 112). Section 3 — 111(a) of the Act (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 111(a)) outlines the power of the circuit courts upon review. Upon subsections (5) and (6) of that section, the administrative decision may be affirmed, reversed in whole or in part, or reversed and remanded in whole or in part. Ill. Rev. Stat. 1985, ch. 110, pars. 3 — 111(a)(5), (a)(6).

In cases of discharge, the scope of review is a two-step process. (Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885.) We must first determine whether the agency’s findings of fact are contrary to the manifest weight of the evidence. (Department of Mental Health & Developmental Disabilities, 85 Ill. 2d at 550-51, 426 N.E.2d at 887.) If they are not, we must further determine whether the findings of fact provide sufficient basis for discharge. (Department of Mental Health & Developmental Disabilities, 85 Ill. 2d at 550-51, 426 N.E.2d at 887.) The latter consideration is not measured by the manifest weight of the evidence test, but by whether the decision is arbitrary, unreasonable or unrelated to the requirements of service. Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 407, 438 N.E.2d 147,150-51.

In the instant case, the hearing officer’s findings, adopted by the Commission, are not disputed. Therefore, we must only determine whether or not, in light of those findings, the Commission’s decision to discharge plaintiff was arbitrary, unreasonable or unrelated to the requirements of service.

In arguing Johnson’s discharge was justified, the Commission notes Johnson’s position as a chief of security at Stateville involved administrative duties and concurrent significant responsibilities. The Commission argues Johnson’s failure to obtain approval of the extension of leave prior to its expiration and his failure to monitor the status of his extension request provide the requisite association with performance of administrative duties to warrant his discharge.

The record, however, does not support that argument. As the hearing officer determined, Johnson attempted to extend his leave of absence using the same method by which he had originally, and apparently without incident, applied for his leave of absence. The record indicates that that method was customarily used by others who sought extensions. There is no evidence in the record that Johnson followed an incorrect procedure in requesting extension of his leave.

Further, although the record does not indicate Johnson made any attempt to expedite approval of the extension prior to the expiration of his leave, we cannot understand how Johnson’s inaction “caused confusion and ultimately was harmful to the good order of the merit system,” as the Commission concluded in determining discharge was warranted. While we recognize Johnson ultimately bore responsibility to monitor the progress of his request, we do not view his inaction as related to performance of his administrative duties, particularly in light that he followed customary procedure in seeking the request and had little, if any, control over its timely processing.

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

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


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE RIVERA, Defendant-Appellant.
    First District (6th Division)
    No. 1—85—2885
    Opinion filed August 18, 1989.

      Eliot Samuels, of Chicago (Alan Osheff, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Gael M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Jose Rivera, was convicted of murder and five counts of armed robbery and was sentenced to concurrent prison terms of 75 years for murder and 30 years for each armed robbery conviction. Defendant appeals, contending that he was denied a fair trial by the prosecutor’s references to his alleged gang affiliation and to his other crimes, and that the trial court erred in denying his motion to suppress his confessions.

Dixie Cramer testified for the State that on April 8, 1984, she and James Montesi were at a tavern with some of their friends. At approximately 2 a.m., three men wearing ski masks and carrying guns entered the tavern. One of the men was defendant. He positioned himself in front of the door. The patrons were instructed to put their hands on the bar. Defendant, who was about two feet from Cramer, took her wallet. Defendant was holding a gun. Montesi began to approach defendant. Defendant then fatally shot Montesi and threatened to kill “anybody.” After the shooting, one of the other men had the tavern owner open the register. The patrons and owner were herded to the washroom. They emerged from the washroom when the bar was quiet. Defendant and the other two men were gone. On April 26, Cramer identified defendant in a lineup and again at trial.

Bozena Proscanski, owner of the tavern, testified she was talking on the telephone in the bar when a man in a ski mask took the telephone from her and hung it up. She could see his face through the mask. (She identified the man as Armando Ochoa, a codefendant who was tried simultaneously with defendant, using separate juries.) Ochoa had her open the register at gunpoint and took approximately $300. Thomas Tamkin, Russell Cramer and Carl Schlotfeldt also were in the tavern. Each testified to essentially the same set of facts as did Proscanski and Dixie Cramer. Only Dixie Cramer was able to identify defendant.

Defendant was arrested by Sergeant John Farrell on April 24, 1984. He was taken to the police station and, after questioning, made several statements implicating himself in the events of the evening of April 8,1984.

The statements were introduced into evidence at trial. Defendant indicated that he, Ochoa, and a third individual had decided to make some money. They had guns and ski masks with them. They drove by the tavern and decided to rob it. Defendant stayed in front of the tavern to keep anyone from leaving or entering the tavern. They each had their guns out and had everyone line up so that they could search them one by one for their money. Defendant indicated that the third individual shot the patron who was not cooperating and then placed all the patrons in the washroom. The third individual stated, “[Wje’re bad and we’ll kill anybody.” They split the money and Ochoa burned the ski masks.

We shall first consider defendant’s contention that the trial court erred in denying his motion to suppress the confessions.

At the suppression hearing, Farrell testified that he was assigned to investigate the Montesi homicide. On April 24, 1984, Farrell located defendant in a parked car. Farrell placed defendant under arrest, handcuffed him, and brought him to an interview room at the police station, Area 5 headquarters. Farrell advised defendant of his Miranda rights while in the car and defendant acknowledged that he understood each right. Farrell stated that he did not have a machine gun, that he did not threaten defendant or make promises to him, and that he did not beat defendant.

Officer Wayne Lipsey testified that he was present when Farrell arrested defendant. Lipsey followed Farrell to Area 5 headquarters. Farrell arrived at Area 5 and took defendant to the interrogation room. Farrell uncuffed defendant, and both officers left, locking the door behind them. Neither he nor Farrell struck defendant or showed him a machine gun.

Officer William Wagner testified that he and his partners interviewed defendant at Area 5. Defendant was not handcuffed and had no marks, bruises, or footprints on him. Defendant did not tell Wagner that Farrell or any other officer had threatened him. Wagner heard Officer Lawrence Poli read defendant his rights and heard defendant acknowledge that he understood those rights. Wagner also heard defendant ask Poli to contact Assistant State’s Attorney Chris Cronson. Defendant did not ask to see his own lawyer.

Detective Jose Rodriquez testified that he saw defendant at headquarters that morning. Defendant was not handcuffed. Neither Rodriquez nor his partners threatened or beat defendant, nor did they make any promises to him. Rodriquez heard Poli read defendant his rights and heard defendant acknowledge that he understood them. Rodriquez further testified that when defendant was asked if he wanted to see a lawyer, defendant asked to see Assistant State’s Attorney Cronson.

Poli testified that he saw defendant around 2 a.m. on April 25, 1984, at Area 5. Defendant was not bruised, nor was he handcuffed to the wall. Poli read defendant his rights, and defendant acknowledged that he understood each right. Neither Poli nor anyone in his presence beat defendant. Defendant asked Poli to contact Cronson because defendant previously had testified for Cronson. Defendant did not ask to call his lawyer. Poli called Cronson and then contacted the felony review department of the State’s Attorney’s office.

Poli further testified that Assistant State’s Attorney Thomas Epach arrived at approximately 7 a.m. Epach read defendant his rights and interviewed defendant from 7:30 a.m. to 12:30 p.m. Epach did not threaten defendant nor did he make any promises to him. Epach wrote down what defendant told him and then read the statement, line by line, back to defendant. In this statement, defendant stated that no threats or promises had been made to him, that he had been fed, and that Epach had given him a coat to wear.

Epach testified that he spoke with defendant at Area 5 on April 25, 1984. He informed defendant that he was the prosecutor, and defendant responded that he knew who he was. Defendant previously had met Epach in Cronson’s office. Epach advised defendant of his Miranda rights, and defendant indicated that he understood his rights. Defendant told Epach that he was willing to tell what had happened. Epach did not threaten defendant, nor did he make any promises to him. Defendant was not bruised and did not tell Epach that he had been beaten or threatened with a gun.

Defendant signed four armed robbery statements before noon, one shortly after noon, and also signed a murder statement later in the day. Before defendant signed the murder statement, attorney Ronald Kales arrived at Area 5 and said that defendant’s family had hired him to represent defendant. Epach informed Kales that defendant had signed the four statements and that he would be charged. Kales did not tell Epach to stop questioning defendant.

At approximately 1:40 p.m., defendant asked to speak to Epach. Epach testified that he told defendant he was still the prosecutor, but that defendant responded “I want to tell you the truth. You got me. I want to tell you the truth.” Epach told defendant that his lawyer would tell him not to say another thing. Defendant told Epach that he understood, but that he wanted to tell the truth. Epach again gave defendant Miranda warnings and took his statement.

Assistant State’s Attorney John O’Donnell testified that he was outside the interrogation room when defendant asked for Epach. O’Donnell stated that at that time, there were no bruises, scratches, blood, or footprints on defendant. O’Donnell called Epach to the interrogation room. He heard Epach tell defendant that his lawyer would not want him to talk to them, but that defendant replied that he wanted to tell the truth. Epach then read defendant his rights again. Defendant indicated that he understood his rights and signed a waiver. No one threatened defendant or made promises. Further, no one told defendant that the papers he was asked to sign were release papers.

Kales testified at the suppression hearing that he went to see defendant at Area 5 on April 25, 1984. He was told by Epach that defendant had confessed to armed robbery and that defendant now was under investigation for murder. Kales stated that defendant was handcuffed to the wall and that he looked tired and unshaven. Kales also stated that he told Epach that he was not to question defendant further.

Domina Melendez, defendant’s mother, testified that she saw defendant at approximately 1 p.m. on April 25, 1984. He was not handcuffed when she saw him. She stated that a blond man came into the room with a paper for defendant to sign. Her niece, acting as interpreter, told her that the papers were for defendant’s release.

Carol Hernandez, defendant’s 16-year-old girlfriend, testified that she went with Melendez to see defendant. Defendant was handcuffed, his face was scratched, and he had a footprint on his shirt. She stated that she signed a paper given to her by Epach. She initialed the first two pages and signed the third page. Hernandez did not read the papers, but said that Epach told her the papers were release papers.

Archie Perez, defendant’s cousin, was in the car with defendant when he was arrested by Farrell. Perez next saw defendant at Area 5. He said that defendant was handcuffed to the wall, had scratches on his face and three footprints on his shirt. Epach questioned Perez and took notes during the questioning. He then asked Perez to sign the papers. Perez signed what Epach had written. The statement was captioned as that of Perez, but Perez stated that he signed the paper only because he thought it was a release form.

Defendant testified that after his arrest, he was taken to the police station. On the way, an officer slapped him twice, and when they reached the station, the driver showed him a machine gun and said, “[T]his is for you, punk.” One of the officers kicked him in the groin. Defendant was taken to the interview room, where he was handcuffed. The officers slapped and hit him.

Defendant stated that he asked Poli for his lawyer, but Poli refused. Defendant again requested his lawyer when Rodriquez and Wagner entered the interrogation room. Defendant also asked for Cronson because Cronson would know that defendant did not “do this kind of stuff.” Defendant told Poli that he had done Cronson a favor.

When Epach came to the interrogation room, defendant again asked for his lawyer. Defendant said that he signed several papers, but that he did not read them, nor were they read to him. Epach told him that his lawyer was not going to help him. Epach also told him that if he signed the paper regarding the murder, it would not hurt him as it was intended to hurt Ochoa.

Defendant denied that he was advised of his Miranda rights at any time. He never asked O’Donnell to get Epach. He also denied that Epach informed him that he was a prosecutor or that Epach told him that defendant’s lawyer would not want him to say anything. Defendant admitted that when he saw the doctor prior to his admission to jail, he did not tell the doctor that he had been kicked or beaten.

In arguing that the trial court erred in denying his motion to suppress his custodial statements, defendant maintains that he was not advised of his Miranda rights, that he was improperly interrogated after his request for a lawyer, and that the statements were the result of physical or mental coercion and were therefore, involuntary.

Defendant’s argument that he was not advised of his Miranda rights is untenable. Four police officers and two assistant State’s Attorneys testified .that defendant had been read his rights on several occasions. Only defendant testified that he did not receive his rights. The trial court’s finding was not against the manifest weight of the evidence.

Defendant also argues that he was improperly interrogated after his request for a lawyer. When a suspect requests an attorney, or refuses to waive his right to counsel during interrogation, all questioning must cease. (Smith v. Illinois (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490.) Further, once an accused has invoked his right to counsel, his responses to further questioning may be admitted only on a finding that he initiated further discussions with the police and knowingly and intelligently waived the right he had invoked. Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.

Defendant claims that he requested to see his lawyer on several occasions. The testimony of the officers and assistant State’s Attorneys, however, belies defendant’s assertion. The State witnesses testified that defendant was advised of his right to an attorney, but that he instead asked to see Assistant State’s Attorney Cronson. The trial court stated that the testimony of these witnesses was credible, and the court’s finding was not contrary to the manifest weight of the evidence.

Furthermore, after defendant’s lawyer spoke to him, defendant initiated further contact with the State. At that time he was read-vised of his rights, acknowledged that he understood those rights, and indicated that he wanted to tell the truth. Defendant then freely waived his rights, signed a written waiver, and gave his statement. Defendant was not questioned in violation of his rights. Rather, we find that defendant knowingly and intelligently waived his rights. (See Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880; People v. Torres (1973), 54 Ill. 2d 384, 297 N.E.2d 142.) Accordingly, the trial court did not err in concluding that defendant had not been interrogated improperly after he had invoked his right to counsel.

Defendant also argues that his statements were involuntarily given. Five police officers and two assistant State’s Attorneys testified that defendant was not beaten, threatened or offered any promises to induce his statements. While defendant testified that he was beaten, he did not tell the examining physician at jail that he had been beaten. Defendant’s cousin and girlfriend testified that defendant’s face was scratched and that there was a footprint on his chest, but defendant’s mother testified only that defendant looked tired and dirty. The trial court found that defendant’s testimony on this issue was incredible, and we cannot say that this finding was against the manifest weight of the evidence.

Accordingly, we find that the trial court did not err in denying defendant’s motion to suppress his confessions.

We next address defendant’s contentions that he was denied a fair trial because of numerous references by the prosecutor to defendant’s alleged gang affiliation and to his other crimes.

Initially, we note that prior to trial, the trial court, at defendant’s request, directed the prosecutor to substitute the word “group” for any reference to defendant’s “gang” in defendant’s confession, and to substitute the word “incident” for any reference to unrelated robberies. Nonetheless, defendant contends that the prosecutor used these words in such a manner as to deny him a fair trial. Defendant points to the fact that after the jury commenced deliberations, they requested information as to which gang defendant belonged.

With regard to the prosecutor’s reference to defendant’s group or gang affiliation, evidence of a defendant’s gang membership is inadmissible unless there is a logical connection between gang affiliation and the crime charged. (People v. Rivera (1986), 145 Ill. App. 3d 609, 495 N.E.2d 1088.) Nevertheless, when evidence of a defendant’s membership in a gang is relevant to an issue at trial, the evidence may not be excluded simply because it also may have a tendency to prejudice the defendant. People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840.

Defendant failed to object to those references to gang affiliation made by the prosecutor during closing argument. Both a trial objection and a written post-trial motion raising the issue are required to preserve an issue for appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Failure to object to final argument constitutes waiver by the defendant. (People v. Harper (1981), 94 Ill. App. 3d 298, 418 N.E.2d 894.) Accordingly, we find that defendant has waived review of these statements.

Moreover, we believe that the trial court properly permitted the prosecutor to make limited reference to defendant’s “group” affiliation. The statements properly demonstrate a prior relationship between defendant and codefendant. Moreover, a prosecutor may comment upon the evidence concerning a witness’ credibility. (People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301.) Here, the statements demonstrate the credibility of defendant’s written statement in which he implicated a third party who belonged to a rival group.

Furthermore, our review of the record reveals that defendant mischaracterizes the extent to which the State referred to defendant’s group affiliation. The majority of such references took place outside the presence of the jury and cannot be said to have prejudiced defendant in any manner. Additionally, the trial had specifically authorized the State to use the word “group,” and as we noted above, we do not believe this authorization to have been an abuse of the trial court’s discretion. Moreover, these statements were not made in the context of explicit argument regarding defendant’s gang membership. In our view, the references were merely tangential to the prosecutor’s argument and were not made in the context of an attempt by the State to suggest that the offense was gang motivated. They did not deny defendant’s right to a fair trial.

Defendant additionally contends that he was denied a fair trial by the prosecutor’s references throughout the trial to defendant’s other crimes. Defendant points to the fact that the trial court denied the State’s request to admit evidence of defendant’s other crimes. Defendant maintains that the State’s veiled references to these other crimes were violations of the trial court order.

Our review of the record reveals that defendant has misstated the extent to which the State referred to defendant’s other crimes. Further, the prosecutor never referred to “other crimes.” Rather, in compliance with the trial court’s order, the prosecutor referred to “other incidents” and did so on only a few occasions. We do not believe these few references prejudiced defendant.

The first reference to “other incidents” which defendant cites occurred during the prosecutor’s opening statement. In the course of explaining why defendant was arrested and why he was being detained at the police station, the prosecutor stated:

“[The officers] talked to the Defendant Rivera at the police station concerning certain other things, and when the State’s Attorney came on duty at 6:00 a.m., he was notified and he came and talked to Rivera at the police station and took statements concerning certain other things that again are not a subject before you.”

The second reference to “other incidents” which defendant cites occurred during direct examination of Assistant State’s Attorney Epach. Epach read defendant’s signed statement to the jury. The statement had been redacted to refer only to “other incidents.” The references established the prior association between defendant and codefendant (“My partner on each of those incidents was a fellow group member named Armando Ochoa”), explained why defendant was arrested and was being detained (“I figured that the police had to be catching on to us.” “Today after I spoke with the state’s attorney about the other incident I spoke with my lawyer”), and spoke to the credibility of the statement itself (“After he left I got to thinking that the police already had me on the other incident ***”).

The trial court stated that every effort was made to protect defendant’s rights and that it did not believe that defendant was prejudiced by the references. The court noted that to have taken out the references to any other incident would have given the jury an erroneous impression with regard to defendant’s presence at the police station and the length of his detention. We believe the trial court properly permitted the prosecutor to make limited references to other incidents. Defendant received a fair trial.

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

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.