author: JUSTICE LINN

text:
    MARGARET DOLORES O’BRIEN, Adm’x of the Estate of Dennis E. O’Brien, Plaintiff-Appellant, v. JOHN MEYER et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—88—2687
    Opinion filed December 21, 1989.
    Modified on denial of rehearing May 10, 1990.

      Christine E. Smith and John J. O’Connor, both of Chicago, for appellant.
    French, Rogers, Kezelis & Kominiarek, P.C., and Lord, Bissell & Brook, both of Chicago (James M. Hofert, Russell P. Veldenz, William C. Anderson III, Hugh C. Griffin, and Diane I. Jennings, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Margaret Dolores O’Brien, brought a wrongful death and survival action based on the alleged medical malpractice of her deceased husband’s doctors. Defendants are John Meyer, M.D., Meyer Medical Group, S.C., and Thomas R. Araujo, M.D. The jury returned verdicts in favor of all defendants. On appeal, O’Brien contends that numerous trial errors deprived her of a fair trial and that the jury’s verdict is against the manifest weight of the evidence.

For the reasons that follow, we reverse and remand for a new trial.

Background

The decedent, Dennis O’Brien, died of a virulent form of lung cancer that apparently grows very fast and has an extremely low survival rate regardless of when the cancer is discovered. Plaintiff’s suit was based on the alleged failure of Dr. Meyer to diagnose her husband’s condition while treating him. She also alleged that his record keeping fell below the standard of care. Dr. Araujo, she asserted, also deviated from the standard of care by failing to take a lateral X ray of the chest and by failing to obtain a history or receive communication from the treating physician.

Defendants produced testimony indicating that they did not deviate from the standard of care and that the X rays taken in January and May 1977 did not display any abnormalities or anything suggesting cancer. They also produced testimony to the effect that earlier detection of the cancer would not have extended the decedent’s life.

The lengthy trial record need not be summarized in detail because our reversal for new trial concerns procedural errors and not the merits of the malpractice allegations.

The record indicates that the initial trial was aborted the day after the plaintiff’s first witness, Dr. Clarence J. O’Reilly, testified. The trial court apparently believed that plaintiff had attempted to elicit from Dr. O’Reilly information going to the standard of care despite the fact that he had not been called as an expert witness. Defendants had not objected to his testimony, which related Dr. O’Reilly’s treatment of the decedent in April 1978, as well as the decedent’s disclosure of his prior treatment in 1977 at the hands of the two defendants. When the court stated its concerns with the testimony of Dr. O’Reilly, one of the defendants’ attorneys only moved to strike and expressly stated he was not moving for mistrial. However, after extended comments by the court, defendants’ attorneys moved for mistrial, which was granted.

Because of difficulties with witnesses’ schedules, plaintiff’s attorney agreed to proceed immediately with impanelling a new jury. In the course of the second trial, plaintiff elected not to call Dr. O’Reilly as a witness. Defendants, however, moved to read the previous testimony in court, except for the redirect and re-cross portions that the trial court had believed to be objectionable. Over plaintiff’s objection, the court granted the motion.

Before trial, plaintiff made a motion in limine, seeking the preclusion of any references to the fact that her expert witness, a doctor licensed in Florida, had failed to pass the Illinois licensing examination on four occasions. Defendants sought to bar her testimony altogether on qualifications grounds. The court allowed the witness to testify and also allowed defendants to inform the jury of her past failures to pass the Illinois examination.

The jury returned verdicts in favor of all defendants.

Opinion

Plaintiff asserts several trial errors in support of her contention that she did not receive a fair trial.

I

The first three issues in her brief relate to the testimony of Dr. O’Reilly; the court’s grant of mistrial based on that testimony; and defendants’ subsequent use of part of the testimony in their own defense.

We believe that plaintiff raises a legitimate question as to the propriety of the mistrial and subsequent use of Dr. O’Reilly’s trial transcript. Our review of the record does indicate that the trial court virtually invited defendants’ motion for mistrial when they had not objected to the testimony at the time it was given, nor voiced any particular problem with it the following day when the trial court expressed its own misgivings. The court believed that the plaintiff’s attorney had improperly attempted to redirect examination to elicit testimony about record keeping, presumably in anticipation of challenging the sufficiency of Dr. Meyer’s records concerning the decedent’s care. Even then, one of the defense attorneys moved only to bar reference to the matter in closing argument. After an exchange on this issue, the same defense attorney stated that he could move for a mistrial but would not. After further argument during which the court told plaintiff’s attorney that she had used her witness “improperly,” the defense attorney moved for a mistrial and the other defendant’s attorney joined. After additional discussion, the trial court granted the motion for mistrial.

Subsequently, defendants used Dr. O’Reilly’s testimony in their case after plaintiff decided not to use him as a witness. The court allowed one of the defendant’s attorneys to read the doctor’s direct and cross-examination from the transcript of the first trial. Plaintiff objected to this procedure, arguing that she was prejudiced because the witness became one for the defense and she had no opportunity to cross-examine.

We believe that the trial procedure in this instance was improper. The mistrial apparently was occasioned by the trial court’s belief that plaintiff’s redirect examination of her witness elicited questions that might bear on Dr. Meyer’s standard of care in keeping records relating to the decedent’s treatment. Since Dr. O’Reilly was not listed as an expert witness, the court believed that the testimony in issue violated its order barring testimony of an expert witness whose identity was not disclosed before trial, pursuant to Supreme Court Rule 220(b)(1) (107 Ill. 2d R. 220(b)(1)).

Dr. O’Reilly, as a treating physician, need not have been disclosed as an expert unless he had been retained to render an opinion at trial. (Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525.) From our review of the transcript of the testimony, we conclude that he did not give an opinion as an expert going to the standard of care that Dr. Meyer or Dr. Araujo owed to the decedent. To the extent the trial court believed that the plaintiff’s attorney was attempting to “back door” some testimony on the standard of care, it may have been appropriate to strike the offending questions and instruct the jury to disregard them. Declaring a mistrial, however, was unnecessary because defendants’ attorneys did not object to the testimony. Plaintiff did not, in our opinion, actually violate the Rule 220 order.

Moreover, we believe that the prejudice to plaintiff was compounded when defendants were permitted, over objection, to read Dr. O’Reilly’s direct and cross-examination into the record as part of their case. Plaintiff had chosen not to recall the doctor, who apparently was no longer available, and declined to use the partial transcript as part of her case. She was not allowed to present her redirect examination from the transcript. Nor was she given an opportunity to rehabilitate her own witness to the extent the defendants’ use of the prior transcript was unfavorable to her case. We believe that this separation of the redirect and re-cross from the prior trial testimony rendered the transcript incomplete. See McCormick, Evidence §32, at 65 (2d ed. 1972) (referring to a “rule of completeness, which permits proof of the remainder of a transaction, conversation, or writing when a part thereof has been proved by the adversary *** [and] is often revoked by the re-examiner”).

We conclude that the granting of the mistrial in this case, coupled with the defendants’ use of the partial transcript of Dr. O’Reilly’s testimony, was error. We need not determine whether, standing alone, it amounts to reversible error because we base our reversal on another ground.

II

Plaintiff contends that we should reverse the judgment because her expert witness, once determined qualified by the court to testify, should not have been asked questions regarding her failure to pass the Illinois licensing examination. She argues that the prejudicial impact of this revelation outweighs any probative value and that it was clearly immaterial.

We agree.

Before rendering an expert opinion, a witness must be qualified as an expert by the court. (S. Card, 1 Illinois Evidence Manual 7:10, at 274 (1979) (“The trial judge in his discretion determines from the qualifying inquiry whether the subject is a proper one for expert testimony and whether the witness is qualified by special knowledge, skill, or experience to express an opinion”).) The opposing party has ample opportunity to voir dire the witness before he or she is allowed to render an opinion as an expert. The court, not the jury, determines whether the standards for qualification have been fulfilled. See People v. Sawhill (1921), 299 Ill. 393, 132 N.E.2d 477.

In the pending case, plaintiff’s expert testified that she had been a physician since 1948 and practices in Florida. She is of German descent and knew little English when she first came to this country from Germany, where she attended medical school and had practiced until approximately 1955. In Germany she held a residency from 1950 to 1955 and obtained board certification in pulmonary disease. She had many cancer patients. Upon coming to the United States she worked as a resident exchange student at the Oak Forest tuberculosis sanitarium, which required her to read X rays and take medical histories. She had a residency at Cook County Hospital, mostly in lung disease and pulmonary diseases, from 1957 to 1961. She established a pulmonary function laboratory at Northwestern University during her two-year stay there. Over the next few years she also set up pulmonary function laboratories at Bethany Methodist Hospital, Ravenswood Hospital, and Illinois Central Railroad Hospital. She moved to Florida in 1969 and became licensed there as a medical doctor. One-third of her patients have cancer.

On cross-examination, she testified that she failed the Illinois licensing examination four times; that she never had an internship or residency in X rays or radiology; and that, although she reads her own X rays in the office, she defers to the radiologist in the hospital. She has had no formal training in the reading and interpreting of X rays. She stated that she failed the test in Illinois because she was not acquainted with multiple choice questions and because her knowledge of chemistry was limited.

The trial court held that she was qualified as an expert to testify, but denied plaintiff’s motion to bar reference to her failures to pass the Illinois examination.

We believe that once the qualifying threshold has been met, attempts to impeach the expert’s opinion should have a clear link to facts and assumptions underlying the opinion, the methodology or testing used, the knowledge and experience of the expert in the matters to which he testifies, personal bias (such as the fact he or she is paid to testify), and so forth. Matters going to schooling and licensing are in a different category, we believe, because of their attenuated relevance to the medical opinion in issue. Also, there is a practical consideration of where to draw the line. Should juries be allowed to consider the school rank of a witness, or the fact that he or she failed a course? Few would argue that the answer to that question should be no. Similarly, as long as an expert witness has obtained a license to practice medicine in one State, his or her failure to obtain a license in another has limited significance, at best.

Few decisions address this issue. In fact, we are aware of no Illinois opinions that address this particular point, although one has held that a physician or surgeon who is not a licensed podiatrist may not render an opinion as to the standard of care a podiatrist owes to his patient. (Dolan v. Galluzzo (1979), 77 Ill. 2d 279, 396 N.E.2d 13.) In Dolan, the court reasoned that the legislature had recognized podiatry as a “ ‘separate and distinct profession of healers who are severely limited in their practice and whose educational requirements are substantially different’ ” from those of others. (77 Ill. 2d at 281, 396 N.E.2d at 15, quoting Dolan v. Galluzzo (1978), 62 Ill. App. 3d 832, 836.) The court also noted, “Once the fact of such license has been established, it lies within the sound discretion of the trial court to determine if the witness is qualified as an expert regarding the standard of care.” (77 Ill. 2d at 285, 396 N.E.2d at 16.) Hence, we infer that a witness’ license or lack of one may indeed be relevant or even dispositive on the basic qualifying question of whether the witness may give an opinion on the standard of care in a particular case.

On the other hand, one court has stated that a license has no direct relationship to the qualifications of an expert. (Hagen v. Swenson (1975), 306 Minn. 527, 236 N.W.2d 161.) There the witness was a neurologist/psychiatrist who was called to interpret certain psychological tests. He was not a licensed psychologist, and State law made the practice of psychology without such license a misdemeanor. The court noted the witness’ extensive experience in interpreting the tests and without extensive discussion held that he was qualified to testify as an expert.

On the precise issue of whether the jury may be told of a witness’ past failure to pass a licensing exam, we have found almost no authority. In Ward v. Epting (S.C. App. 1986), 351 S.E.2d 867, the South Carolina court noted that it was proper for the cross-examiner to elicit the fact that the witness, a practicing anesthesiologist, had failed to achieve board certification in her speciality area. The court noted that lack of certification was a material issue because it bore on whether she was qualified to meet the standards of the speciality.

In our opinion, Ward v. Epting is distinguishable because if an expert gives an opinion relating to a specialty in which she has not obtained certification, her credibility as a specialist is in issue. Here, the witness is licensed in Florida and we see little value in allowing her impeachment to be based upon a history of failure to pass the licensing exam in Illinois. An analogous situation, in a legal malpractice action, would be allowing the jury to consider the prior failures of a licensed Illinois attorney to pass the Illinois examination in determining his credibility as an expert in a given area in which he had practiced for decades. In such a case, as in the one at bar, the jury might well decide that the witness is not credible based on the past examination failures alone.

We do not pronounce an all-encompassing rule on if or when an expert’s opinion may ever be impeached by the failure to pass a licensing examination. In general, we believe, the existence of a license goes only to the initial qualifying inquiry. If the witness holds a license in one State, her failure to pass the equivalent licensing examination in another State should not preclude her from testifying, absent other considerations that may be pertinent. Here, the expert’s qualifications were based on long experience in particular specialties.

Defendants ably cross-examined the witness. For example, they showed the jury that, although she did read and interpret X rays, she would defer to trained radiologists. This is the type of impeaching examination that aids the jury in deciding the strength of the opinion, not whether the expert failed the Illinois licensing exam four times in the 1950s or 1960s. Accordingly, we find that, on the facts before us, defendants should not have been allowed to inform the jury of her history of failing the Illinois exam. What scant probative value this information had was outweighed by its prejudicial impact. Therefore, we find its admission to be improper and reverse the judgment entered upon the jury’s verdict. On remand, if the parties proceed to a new trial, defendants shall not publish the witness’ failure to pass the Illinois examination to the jury.

III

Plaintiff also contends that the court erred in striking that portion of her issue instruction which concerned defendants’ failure to properly interpret the decedent’s X rays. Defendants had objected to that portion on the grounds that there was no evidence that they had breached any standard of care. We decline to rule on the correctness of the modified instruction that was given because on retrial there may be different or additional evidence produced and we prefer to let the parties and the trial court fashion the issue instructions based on the evidence before it. In general, plaintiff should be allowed to present her theory of the case in the instruction, and as long as some evidence supports it, it should be given. (E.g., Foerster v. Illinois Bell Telephone Co. (1974), 20 Ill. App. 3d 656, 664, 315 N.E.2d 63.

IV

During oral argument, plaintiff resurrected an issue from her post-trial motion that she did not include in her brief on appeal. In the post-trial motion, plaintiff challenged the segregation of the jury into smoking and nonsmoking rooms, or enclosed sections within the larger courtroom. The record shows that plaintiff’s attorney objected to the segregation of the jury during deliberations, although her particular objection appears to be that she was not informed of the arrangement. We need not discuss this alleged impropriety, however, because we believe plaintiff waived the point by failing to include it in her brief on appeal. Batteast v. Argonaut Insurance Co. (1983), 118 Ill. App. 3d 4, 454 N.E.2d 706.

V

Because of our disposition of the case, we will not discuss the sufficiency of the evidence. We reverse on the basis of trial error alone, because we cannot determine how much the jury was influenced by the error discussed in this opinion.

For the foregoing reasons, we reverse the judgment entered in favor of defendants and remand for a new trial.

Reversed and remanded.

JOHNSON and McMORROW, JJ., concur.

      Defendants assert that plaintiff waived her objection to this use of the transcript when she agreed, following the grant of the mistrial, to the possibility that the direct and cross-examination could be used in the new trial. We do not find, however, that she intended to permit her witness’ direct and cross-examination to be read in through the mouth of defense counsel, as part of defendants’ case, where she was not afforded an opportunity to elicit further examination of the witness at that time.

      Courts have held that it is proper to restrict the cross-examination of an expert on the fact of prior personal involvement in malpractice litigation on the ground that the relevancy of such a collateral matter is outweighed by the prejudicial effect of such questioning. See Webb v. Angell (1987), 155 Ill. App. 3d 848, 860, 508 N.E.2d 508, 518; see also Poole v. University of Chicago (1989), 186 Ill. App. 3d 554, 542 N.E.2d 746 (Plaintiff was prejudiced by improper cross-examination of her expert witness, who was asked if he had been subject to medical disciplinary proceedings and whose denial was then impeached by what purported to be a copy of a disciplinary complaint).

      The record is ambiguous in this regard, because the comments of the court and plaintiff’s counsel fail to specify the exact nature of the arrangement for the smokers. The post-trial motion and the transcript from the hearing on that motion reveal that the court made some accommodation for the smokers; however, whether the plaintiff’s attorney understood or agreed to the actual arrangement is not clear. Defendants, in their petition for rehearing, contend that the jurors were allowed to separate only during breaks from trial, as distinct from deliberations. In contrast, during oral argument, plaintiff’s counsel implied that the jurors' segregation was so complete that it was as if they became two separate bodies. This innuendo, unsupported by any facts of record, deserves no further consideration.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
    WILLIAM H. HUNT, Plaintiff-Appellant, v. TED SANDERS, State Superintendent of Education, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—0137
    Opinion filed January 29, 1990.
    Rehearing denied April 30, 1990.

      Cornfield & Feldman, of Chicago (Gail E. Mrozowski and Mark S. Stein, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (David A. Thompson, Special Assistant Attorney General, of Chicago, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The subject of this appeal is an order entered by the circuit court of Cook County affirming the revocation of plaintiff’s teaching certificates by defendant, who is the State Superintendent of Education, and dismissing plaintiff’s amended complaint. Plaintiff appeals, contending that the State Teacher Certification Board (Board) had the final authority to determine whether his teaching certificates should be revoked. Plaintiff further contends that his right to due process was violated when defendant, after prosecuting him before the Board and receiving an adverse decision, overturned that decision. Plaintiff’s final contention is that defendant’s revocation of his certificates was unreasonable.

Plaintiff was a tenured physical education teacher in the Argo-Summit School District 104 in Cook County, where he taught for 17 years. During the 1983-84 school year, the local board of education sought to discharge plaintiff, charging that he had exhibited immoral and unprofessional conduct by pinching the buttocks of several female students. A hearing was conducted to determine whether the local board had cause to discharge plaintiff. The hearing officer concluded that plaintiff had engaged in “questionable conduct,” but there was no other behavior to infer sexual interaction. The hearing officer then found that plaintiff’s conduct was remediable, and he ordered plaintiff reinstated. The local school board filed a complaint for administrative review. After hearing arguments, the circuit court reversed the decision of the hearing officer and entered an order that plaintiff be discharged from his teaching position. On appeal, the order of the circuit court was affirmed. Board of Education v. State Board of Education (1985), 138 Ill. App. 3d 947, 487 N.E.2d 24.

Seven months after plaintiff’s discharge, Richard Martwick, the regional superintendent of schools for Cook County, suspended plaintiff’s teaching certificates for one year. The following month defendant petitioned the Board to determine whether plaintiff’s teaching certificates should be revoked, and he advised plaintiff of the administrative hearing. Defendant then filed a brief advocating the revocation of plaintiff’s teaching certificates. In November 1986, the Board voted eight to four not to accept defendant’s petition and held that plaintiff was entitled to retain his certificates.

In May 1987, defendant issued an “Administrative Decision” revoking plaintiff’s certificates. The following month plaintiff filed a complaint for mandamus, administrative review and common-law writ of certiorari. The circuit court entered an order that defendant rather than the Board had final authority in certificate revocation cases. Several months later the court reconsidered, vacated its order and found that the Board had final authority in revocation cases. The following month, the court again reconsidered its previous finding in light of Trigg v. Sanders (1987), 162 Ill. App. 3d 719, 515 N.E.2d 1367, and concluded that defendant rather than the Board had final authority in revocation cases. The court then dismissed counts I and III from plaintiff’s complaint but allowed count II for administrative review. Thereafter, the court entered an order granting defendant’s motion to dismiss the complaint in its entirety and affirmed the “Administrative Decision” of defendant to revoke plaintiff’s certificates.

Plaintiff contends that the Board rather than defendant has final authority to determine whether a teacher’s certificate should be revoked. Plaintiff further contends that defendant denied plaintiff his right to due process by prosecuting him before the Board and then purportedly reversing the Board’s adverse decision. The statute governing the suspension or revocation of teaching certificates is section 21 — 23 of the Illinois School Code (Ill. Rev. Stat. 1985, ch. 122, par. 21—23), which provides in part:

“Any certificate issued pursuant to this Article may be suspended for a period not to exceed one calendar year by either the regional superintendent or State Superintendent of Education upon evidence of immorality, a condition of health detrimental to the welfare of pupils, incompetency, unprofessional conduct, the neglect of any professional duty, willful failure to report an instance of suspected child abuse or neglect *** or other just cause. *** The regional superintendent or State Superintendent of Education shall upon receipt of evidence of immorality, a condition of health detrimental to the welfare of pupils, incompetency, unprofessional conduct, the neglect of any professional duty or other just cause serve written notice to the individual and afford the individual opportunity for a hearing prior to suspension. If a hearing is requested within 10 days of notice of opportunity for hearing it shall act as a stay of proceedings not to exceed 30 days. No certificate shall be suspended until the teacher has an opportunity for a hearing at the educational service region. When a certificate is suspended, the right of appeal shall lie to the State Teacher Certification Board. When an appeal is taken within 10 days after notice of suspension it shall act as a stay of proceedings not to exceed 60 days. Any certificate may be revoked for the same reasons as for suspension by the State Superintendent of Education. No certificate shall be revoked until the teacher has an opportunity for a hearing before the State Teacher Certification Board, which hearing must be held within 60 days from the date the appeal is taken.”

The Fourth District Appellate Court recently examined this statute and applied the rules of statutory construction to determine whether the State Superintendent of Education could revoke a teacher’s certificate for the same reason that the regional superintendent suspended the certificate. (Trigg, 162 Ill. App. 3d 719, 515 N.E.2d 1367.) Although the issue in the instant case differs from Trigg, its determination also requires an examination of the statute and an application of the rules of statutory construction.

The primary role of statutory interpretation and construction is to ascertain and effectuate the true intent and meaning of the legislature. (Trigg, 162 Ill. App. 3d 719, 515 N.E.2d 1367.) In interpreting a statute which has not previously been interpreted, the legislative language must be given its plain and ordinary meaning. If the language of the statute is clear and unambiguous and the legislative intent can be ascertained therefrom, the language must prevail and will be given effect by the courts without resorting to other aids of construction. (Trigg, 162 Ill. App. 3d 719, 515 N.E.2d 1367.) However, where, as here, the language is ambiguous, the court is guided by the rules of statutory construction. The interpretation of a statute must be based on the nature and object of the statute as well as the consequences which would result from construing it one way or another. Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332; Trigg, 162 Ill. App. 3d 719, 515 N.E.2d 1367.

In the instant case, plaintiff had been discharged from his teaching position, and his discharge was affirmed by this court. The regional superintendent then suspended his teaching certificates for one year. Shortly thereafter, defendant advised plaintiff that a hearing would be held before the Board to determine whether his teaching certificates should be revoked. Defendant filed a brief advocating the revocation of plaintiff’s teaching certificates. Defendant then issued an “Administrative Decision” overruling the Board’s decision and revoking plaintiff’s certificates.

The language of the statute provides that a certificate can be revoked by defendant but “[n]o certificates can be revoked until the teacher has a hearing before the State Teacher Certification Board.” Furthermore, there is no language in the statute which gives defendant authority to override a decision of the Board which results from this hearing.

The nature and object of the statute is to empower defendant with the authority to pursue and impose sanctions against a teacher’s certificate including revocation for various forms of misconduct in order to insure that the teaching profession will be practiced with honesty and integrity, the public will be protected from injury and those who are unworthy or incompetent will be excluded. (Trigg, 162 Ill. App. 3d 719, 515 N.E.2d 1367.) However, defendant is only empowered to exercise this authority after plaintiff has had an opportunity for a hearing. If the statute was interpreted as giving defendant the power to override adverse decisions of the Board, several consequences would result. Initially, defendant would be given rights not suggested by the language of the statute which would improperly enlarge its meaning. (Trigg, 162 Ill. App. 3d 719, 515 N.E.2d 1367; People ex rel. Daley v. Nine Thousand Four Hundred & Three Dollars, $9,403 in U.S.C. (1985), 131 Ill. App. 3d 188, 476 N.E.2d 80.) Another consequence of interpreting the statute as defendant suggests would be to give defendant the power to prosecute the revocation of plaintiff’s teaching certificates as well as the power to make the final determination without allowing plaintiff any recourse to an administrative agency or the court. A procedure of this kind would violate plaintiff’s right to due process because the due process guarantee of an impartial tribunal in judicial proceedings is also applicable to administrative adjudications. Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 498 N.E.2d 1148.

Defendant contends that plaintiff’s right to due process was not violated when defendant overruled the Board’s decision, and he cites Ballin Drugs, Inc. v. Department of Registration & Education (1988), 166 Ill. App. 3d 520, 519 N.E.2d 1151, in support of his argument. However, Ballin Drugs is factually distinguishable because it involved only one member of the hearing board acting as a prosecutor and hearing officer for only part of the hearing. Furthermore, the prosecuting member did not make a determination contrary to the Board and then claim that she had controlling authority, as defendant did in the instant case.

The final authority of the Board’s decision is supported by section 21 —24 of the Illinois School Code (Ill. Rev. Stat. 1985, ch. 122, par. 21—24), which provides:

“The provisions of the Administrative Review Law, and all amendments and modifications thereof and the rules adopted pursuant thereto, shall apply to and govern all proceedings instituted for the judicial review of final administrative decisions of the State Board of Education, the State Teacher Certification Board, and the regional superintendent of schools under this Article. The term ‘administrative decision’ is defined as in Section 3 — 101 of the Code of Civil Procedure. The commencement of any action for review shall operate as a stay of enforcement and no action based on any decision of the State Board of Education, State Teacher Certification Board or the regional superintendent of schools shall be taken pending final disposition of such review.”

The statute specifically states that the decision of the Board is a final decision subject to administrative review. The statute also omits any reference to the decisions of defendant as either final or reviewable. If defendant rather than the Board had final authority to revoke teaching certificates, as he contends, the statute cited above would be meaningless because it would then provide for judicial review of administrative decisions that were not final decisions.

Trigg, cited by defendant in support of his argument, is factually distinguishable because the issue in that case was defendant’s authority to revoke a teacher’s certificate following suspension by the regional superintendent. In addition, defendant’s decision regarding revocation was the same as the Board’s decision, as opposed to the instant case where the two decisions conflict. Therefore, there was no issue in Trigg of whether the Board’s decision could be overruled by defendant.

For these reasons we conclude that, pursuant to section 21 — 23 of the Illinois School Code, the Board has the final authority to determine whether a teacher’s certificate should be revoked. Based on this determination, we need not address plaintiff’s remaining issue pertaining to the reasonableness of defendant’s decision.

Therefore, we reverse the order of the circuit court affirming defendant’s “Administrative Decision,” and we remand for further proceedings consistent with this opinion.

Reversed and remanded.

O’CONNOR and MANNING, JJ., concur.


text:
      In re MARRIAGE OF BECKI L. KLEBS, f/k/a Becki L. Trzoski, Petitioner-Appellant, and JOHN W. TRZOSKI, Respondent-Appellee.
    First District (1st Division)
    No. 1—88—0827
    Opinion filed March 26, 1990.

      John M. King, of Calumet City, for appellant.
    Law Offices of Darryl R. Lem, of Calumet City (Darryl R. Lem and Robert C. Collins, Jr., of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

On January 10, 1986, Becki L. Klebs, formerly known as Becki L. Trzoski (petitioner), filed a motion pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401), requesting that the court vacate portions of the judgment of dissolution of marriage, which was granted to the parties on July 24, 1985, and wherein it established that Kristin Nicole Trzoski was born to the marriage. Petitioner asked that the court determine the paternity of Kristin and, upon a determination adverse to John W. Trzoski (respondent), award petitioner sole care and custody of Kristin so that James A. Klebs, petitioner’s current husband and the alleged natural father of Kristin, might institute adoption proceedings.

After an evidentiary hearing was held, the circuit court determined that respondent was not, and Klebs was, the biological father of Kristin. However, the court refused to vacate the portions of the judgment for dissolution of marriage which granted petitioner and respondent joint custody and awarded physical custody of Kristin to respondent. The circuit court found that the best interests of the child mandated that the status quo be maintained. Petitioner appeals, contending that the trial court’s determination that respondent was not Kristin’s biological father required that the issue of custody be decided de novo. Petitioner also contends that the court should have applied the “compelling reason” standard rather than the “best interest” standard when determining what custody provisions were appropriate.

Respondent, on the other hand, contends that the trial court erred by failing to dismiss the petition and by allowing paternity to be established contrary to the judgment of dissolution of marriage. Alternatively, respondent asks this court to adopt the doctrine of “equitable parent” or “psychological parent” and affirm the judgment of the trial court, finding that the award of joint custody while maintaining Kristin’s physical residence with him was proper and in the best interest of Kristin.

For reasons we shall state below, we reverse the judgment of the trial court and reinstate the order entered upon the dissolution of marriage judgment.

The record shows that Becki L. Klebs (petitioner) and John W. Trzoski (respondent) were married on September 14, 1979. On March 27, 1982, petitioner gave birth to a daughter, Kristin Nicole Trzoski. On August 14, 1983, when Kristin was nearly IV2 years old, petitioner separated from respondent and left Kristin in the care and custody of respondent. Petitioner filed for dissolution of marriage on August 24, 1983, and upon petitioner’s request for temporary relief, an agreed order was entered on October 19, 1983. This order provided that Kristin would remain in the custody of respondent but that petitioner would be granted liberal visitation.

The issue of Kristin’s custody was placed on the court’s contested custody calendar, and in June 1984, the court ordered that both parties be evaluated by the Psychiatric Institute of Cook County and investigated by the Department of Social Services. The reports and findings of these facilities are not part of the record. However, on July 11, 1985, the court entered an agreed order which granted the parties joint custody of Kristin and maintained her physical residence with respondent. On July 24, 1985, a judgment for dissolution' of marriage was issued. It stated that Kristin had been born to the marriage and incorporated the agreed order for her joint custody. Soon after the marital dissolution judgment was entered, petitioner married James Klebs.

It was not until January 10, 1986, that petitioner raised the issue of Kristin’s paternity. In a petition brought pursuant to section 2— 1401 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401), petitioner alleged that respondent was not the biological father of Kristin and asked the court to determine the paternity of Kristin. Petitioner requested that the court vacate the portions of the judgment for dissolution of marriage wherein it stated that respondent was the father of Kristin and awarded him joint legal custody as well as physical custody of Kristin. In support of her request petitioner alleged that she, Kristin and James Klebs had undergone Level III paternity determination blood tests on December 19, 1985, which established that James Klebs had a 99.9855% relative chance of paternity with respect to Kristin.

Respondent answered this petition by filing a motion to dismiss on the ground that it failed to allege sufficient facts upon which relief could be sought. Respondent denied the allegations that he was not the biological father of Kristin and asserted that petitioner should be estopped from attacking the finding of paternity in the judgment for the dissolution of marriage. Respondent argued that the presumption of legitimacy and his paternity were not subject to attack at this date because petitioner failed to exercise due diligence in raising the issue.

On February 19, 1986, upon petitioner’s motion to compel discovery, respondent was ordered to submit to Level III paternity determination blood tests. Accordingly, respondent submitted to the testing, which indicated that he had a 0% relative chance of paternity with respect to Kristin. Despite the results of the court-ordered blood tests, which respondent claimed to be wrongfully obtained, respondent continued to assert his rights as Kristin’s parent. In a memorandum of law to the trial court respondent again argued that petitioner should be estopped from raising the issue of paternity. In the event that the court considered the petition, respondent argued that the trial court should view the petition as a request to modify custody pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 610), and deny relief upon a finding that no change in circumstances had occurred that would justify the relief sought.

Conversely, petitioner argued that the trial court should correct the error regarding Kristin’s paternity upon a finding that there had been a “mutual mistake” of the parties at the time of the dissolution of marriage. Petitioner further argued that, upon a determination that respondent was neither the biological nor the adoptive father of Kristin, respondent should be treated as a third party whose right to seek custody or visitation must be predicated upon a petition pursuant to section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2)). Furthermore, petitioner argued that respondent should be required to show a “compelling reason” why custody should be awarded to him since there exists a legal presumption favoring custody with a natural parent.

At an evidentiary hearing on May 18, 1987, both parties presented testimony to the court. Through their testimony it was established that Kristin, then five years old, had lived with respondent continuously since birth but that there was adherence to a comprehensive schedule which granted petitioner liberal visitation. Respondent testified that when he worked or was unable to be at home, Kristin was cared for by his mother, Shirley Trzoski, and that this arrangement had been established prior to the parties’ separation and divorce.

Perhaps the most significant testimony came from petitioner, who testified that she first began to suspect that respondent was not Kristin’s father when Kristin was about IV2 years old. Petitioner claimed that at that age Kristin began to display some physical resemblance to petitioner’s new husband, James Klebs. Although petitioner admitted that she suspected Kristin’s paternity before she obtained her divorce, in fact, nearly two years before the judgment for dissolution of marriage was entered, she claimed that she allowed Kristin to remain in respondent’s physical custody and agreed to the final order which granted the parties joint custody and maintained Kristin’s physical residence with respondent, because she was unsure about Kristin’s paternity. Petitioner admitted that she never notified respondent of her suspicions- or voiced them to the psychologist or social workers who investigated the case for the purpose of making custody recommendations. Furthermore, petitioner did not act upon her suspicions regarding Kristin’s paternity until December 1985, well after the agreed order regarding Kristin’s custody was entered and the judgment of dissolution was issued. In addition, petitioner admitted to perjuring herself in her February 26, 1985, deposition at which she testified that she had not been sexually intimate with James Klebs prior to her August 1983 separation from respondent.

At a subsequent hearing the trial court granted petitioner’s request to vacate the portion of the judgment for dissolution of marriage regarding Kristin’s paternity. The trial court held that it was in Kristin’s best interest to recognize that she had two fathers. The court held that James Klebs was the biological father of Kristin but that respondent was the “equitable” or “psychological” father of Kristin. However, the court denied petitioner’s request to vacate the original custody order which granted the parties joint custody and maintained Kristin’s physical residence with respondent. An order to this effect was issued on October 6, 1987, and petitioner’s motion for rehearing was denied on March 1, 1988. Petitioner now brings this appeal.

Petitioner, relying heavily on In re Adoption of Weller (1977), 47 Ill. App. 3d 492, 362 N.E.2d 73, contends that because the trial court determined that respondent was not the biological father of Kristin, he had no parental status. This is because a court cannot “create a parent-child relationship out of thin air.” Petitioner also argues that there is a “strong presumption” in favor of awarding custody to a natural parent so that respondent, a third party, would need to show “compelling reason” to overcome this presumption. Concluding that respondent showed no such compelling reason, petitioner argues that the trial court erred by maintaining Kristin’s custody with respondent.

Respondent, on the other hand, continues to maintain that petitioner was legally barred from bringing her motion to redetermine paternity because she failed to show due diligence in bringing her claim. We must agree with respondent.

Our review of the record convinces us that petitioner was not entitled to relief under section 2 — 1401 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401) and that the trial court erred by ordering respondent to submit to blood tests and by failing to dismiss petitioner’s request because (1) petitioner was barred from bringing her cause of action by the doctrines of res judicata and collateral estoppel; (2) petitioner failed to show that she exercised due diligence in bringing the issue of Kristin’s parentage to the court’s attention; and (3) petitioner was barred from bringing her cause of action by the provisions of the Illinois Parentage Act of 1984 and the statute of limitations therein.

When a party files a motion pursuant to section 2 — 1401 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2—1401), that party seeks to vacate a prior final judgment, or portions thereof, based upon representations that he now possesses certain facts or matters which were unknown at the time the judgment was entered, and, if known, would have affected or altered the judgment that was entered. (In re Marriage of Tzoumas (1989), 187 Ill. App. 3d 723, 728-29, 543 N.E.2d 1093, 1096.) The petition, however, is not a continuation of the previous action, but a new action, subject to the rules of civil practice and is to be considered as any other civil complaint. (Tzoumas, 187 Ill. App. 3d at 729, 543 N.E.2d at 1096.) Because a section 2—1401 petition is a new action, it must be determined whether the doctrines of collateral estoppel and res judicata apply.

The doctrine of collateral estoppel provides that “an issue which has been addressed by a court of competent jurisdiction cannot be relitigated in a later action between the same parties or their privies in the same or a different cause of action.” (Simcox v. Simcox (1989), 131 Ill. 2d 491, 496, 546 N.E.2d 609, 611.) The doctrine of res judicata provides that “ ‘a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent actions between the same parties or their privies on the same cause of action.’ ” (Sim cox, 131 Ill. 2d at 497, 546 N.E.2d at 611-12, quoting Kinzer v. City of Chicago (1989), 128 Ill. 2d 437, 446, 539 N.E.2d 1216, 1220.) It has been held that paternity is an issue that is raised by dissolution proceedings (Simcox, 131 Ill. 2d at 496, 546 N.E.2d at 611), so that a finding of paternity in a dissolution decree is a final judgment rendered by a court of competent jurisdiction. (In re Marriage of Emerson (1983), 115 Ill. App. 3d 712, 717, 450 N.E.2d 987, 990; Fohr v. Fohr (1979), 75 Ill. App. 3d 575, 579, 394 N.E.2d 87, 90; Sanders v. Sanders (1977), 55 Ill. App. 3d 248, 251, 371 N.E.2d 121, 124; see also Annot., 78 A.L.R.3d 846 (1977).) Thus, any party or privy to the dissolution proceedings may be barred from attempting to relitigate the issue of parentage.

Certainly, the petitioner in this case was a party to the dissolution proceedings. Therefore, she may be estopped from raising the issue of Kristin’s parentage and the finding of paternity, as set forth in the dissolution decree, may be held res judicata for the purposes of her post-decree petition.

Notwithstanding the bar to an action that may result from application of the doctrines of collateral estoppel and res judicata, a party may still seek relief from a final judgment by appealing to the equitable power of the court. By filing a section 2 — 1401 petition, a party asks that the court exercise its equitable powers to correct a mistake and prevent injustice. (Tzoumas, 187 Ill. App. 3d at 731, 543 N.E.2d at 1097-98.) To prevail, however, the party bringing the petition must show by a preponderance of the evidence that (1) a meritorious claim or defense exists; (2) the petitioner exercised due diligence in discovering the defense or claim in the original action; (3) despite such diligence and through no fault on the part of petitioner, the error of fact or valid claim or defense was not made apparent to the trial court at the time of the original action; and (4) petitioner exercised due diligence in filing the section 2 — 1401 petition. (In re Marriage of Duffey (1988), 168 Ill. App. 3d 1086, 1089, 523 N.E.2d 371, 373.) Employing this standard, we find that petitioner was not entitled to relief and that the trial court abused its discretion by failing to dismiss petitioner’s section 2 — 1401 petition.

Based upon our review of the record, we are convinced that petitioner failed to show by a preponderance of the evidence that she exercised due diligence in discovering the facts that she now believes entitle her to relief. As stated in In re Marriage of Emerson (1983), 115 Ill. App. 3d 712, 716, 450 N.E.2d 987, 991, it is insufficient for a party to come into court and simply assert that the judgment was premised upon false facts. The party must show that such facts could not reasonably have been disclosed at or prior to the entry of judgment. A section 2 — 1401 petition is not intended to relieve a party from the consequences of his own mistake or serve as a remedy for a belated change of mind. Emerson, 115 Ill. App. 3d at 717, 450 N.E.2d at 991.

In the instant case petitioner’s testimony at the hearing revealed that she suspected that respondent was not Kristin’s biological father prior to the court’s final judgment. In fact, petitioner testified that she suspected respondent’s lack of paternity even before she filed her petition for dissolution of marriage in 1983. Still, petitioner never acted upon these suspicions during the nearly two years that passed before the final judgment was entered in 1985. In addition, petitioner never revealed her suspicions to the professionals who evaluated the parties for the court in an effort to make custody recommendations. We find, therefore, that petitioner failed to demonstrate due diligence in raising the issue. Thus, the trial court should not have considered petitioner’s section 2 — 1401 request. See Kaput v. Hoey (1988), 124 Ill. 2d 370, 530 N.E.2d 230.

Petitioner was in the best position to know those facts that would lead one to suspect that Kristin’s paternity was other than what had been represented. Furthermore, petitioner testified at the dissolution proceedings that she had not been sexually intimate with anyone other than respondent prior to her legal separation. This testimony was certainly false and a fraud on the court, calculated to obtain a more favorable judgment. Under such circumstances petitioner should not be allowed to invoke the equitable powers of the court. Fohr, 75 Ill. App. 3d at 579, 394 N.E.2d at 90.

As further support for our decision, we find that the Illinois Parentage Act of 1984 (the Act) (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.) is applicable to the present case and that the provisions of the Act bar petitioner’s cause of action. Section 9(a) of the Act states, in pertinent part, that “[i]n any civil action not brought under this Act, the provisions of this Act shall apply if parentage is at issue.” (Ill. Rev. Stat. 1985, ch. 40, par. 2509(a).) Petitioner’s cause of action clearly raises the issue of Kristin’s parentage. Thus, despite the fact that petitioner brought her action pursuant to section 2 — 1401 of the Code of Civil Procedure, she may not circumvent the public policy and directives set forth in the Act.

The Act confers upon a man the presumption of paternity if he was married to the mother of the child at the time the child was born or conceived, or if he marries the child’s mother after the child’s birth and consents to being named as the child’s father on the birth certificate. This is a legal presumption that can only be rebutted by clear and convincing evidence. (Ill. Rev. Stat. 1985, ch. 40, par. 2505.) Notwithstanding this presumption, the statute affords certain persons the right to bring an action to determine the existence and/or nonexistence of a father and child relationship. If the presumption of paternity, as set forth in section 5 of the Act, is sufficiently rebutted, then paternity of the child by another man may be established if that man has been made a party to the proceedings. (Ill. Rev. Stat. 1985, ch. 40, par. 2507.) The legislature has seen fit to limit the ability of certain persons to bring an action to declare the existence or nonexistence of a parent-child relationship. Specifically, a petition to declare the nonexistence of a parent-child relationship is barred if brought by someone other than the child more than two years after that party “obtains knowledge of relevant facts.” Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(3).

In light of the statutory provisions of the Act, petitioner’s cause of action, although entitled a section 2 — 1401 petition, should be construed as .an action to declare the nonexistence of a parent-child relationship. As such it must conform to the provisions and directives ■ of the Act. We find that it does not.

Petitioner clearly has not brought her action within the limitations - period set forth in section 8(a)(3) of the Act. (See In re Marriage of Ingram (1988), 176 Ill. App. 3d 413, 531 N.E.2d 97.) Surely, petitioner possessed “relevant facts” from which she knew or could have known that respondent was not Kristin’s father. Her failure to act upon these known facts to verify suspicions regarding Kristin’s paternity bars the present action. We refuse to construe the blood tests, which confirmed petitioner’s suspicions as to Kristin’s paternity, as the “knowledge of relevant facts” which started the running of the limitations period.

Furthermore, we note that the trial court erred additionally by establishing the paternity of James Klebs since he was not a party to the proceedings before the court. Ill. Rev. Stat. 1985, ch. 40, par. 2507(b).

Finally, although we acknowledge that the limiting provisions set forth in the Act would not bar an action by or on behalf of the child, we decline to interpret petitioner’s section 2 — 1401 petition as an action brought on Kristin’s behalf. As in Ingram, petitioner’s interests are not synonymous with the child’s interests since petitioner seeks to deprive Kristin of the emotional and financial support of the man she has known, heretofor, as her father. When a child’s interests are potentially in conflict with the parent’s or not properly represented, it is the duty of the trial court to appoint a guardian ad litem to safeguard and protect the interests of the child. In this case no guardian ad litem was appointed to represent Kristin. Therefore, even if we were inclined to construe the petition as one properly before the trial court, we would find that its determination of the best interests of the child was an abuse of discretion since Kristin’s interests were not adequately represented.

For the reasons stated above, we reverse the judgment of the circuit court. We vacate the order establishing the paternity of James Klebs and reinstate the prior dissolution decree and all provisions therein.

Reversed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE CAMPBELL

text:
    CATHERINE M. MERCADO et al., Plaintiffs-Appellants, v. CALUMET FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—0906
    Opinion filed March 26, 1990.

      Law Offices of Darryl R. Lem, of Calumet City (Michael M. Resney, of counsel), for appellants.
    J. Stirling Mortimer, of Dolton, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

The plaintiffs, Catherine Mercado and her son, Michael Kuknyo, brought an action in the circuit court of Cook County against the defendant, Calumet Federal Savings and Loan Association. Plaintiffs sought a release of their mortgage, held by the defendant, and also sought a determination that the defendant’s assessment of.$7,500 in attorney fees was improper. The circuit court denied the plaintiffs’ request for a release of their mortgage and also held that the attorney fees assessed by the defendant were reasonable. The plaintiffs then appealed the circuit court’s order to this court.

On July 30, 1976, Mercado established a land trust, known as Trust 1137, with the River Oaks Bank & Trust Company (River Oaks). River Oaks, as trustee, was named grantee of a single family dwelling located at 521 Ingram Avenue in Calumet City, Illinois. The trust agreement stated that the entire beneficial interest in the trust was to be vested in Mercado. According to the plaintiffs, both Mercado and Kuknyo resided in the home.

Subsequently, on April 29, 1979, Mercado made an application to refinance an existing mortgage with a new loan of $20,500 at 10% interest. It is not clear from the record when the original mortgage was executed or what the amount of that mortgage was. Mercado stated that the purpose of the refinancing was to help her son. The new mortgage was executed on May'29, 1979, with River Oaks as mortgagor and defendant as mortgagee. The mortgage provided, in the provision at issue here:

“That in the event the ownership of said property or any part thereof becomes vested in a person other than the Mortgagor *** the undersigned further agrees that in the event of the sale, assignment or pledge by the mortgagor of the property (or any interest therein) which is the subject of this mortgage, the mortgagee or its assigns may at its option, declare the entire balance of principle and interest remaining due hereunder at that time, immediately due and payable.”

Thereafter, the defendant sent plaintiffs a notice of default on May 20, 1983, stating that Mercado had breached her mortgage agreement. Defendant claimed that Mercado had sold her home to Kuknyo without first obtaining its written consent. According to the defendant, it was put on notice of the sale when it received a copy of a homeowner’s insurance policy on the trust property for 1983-84 which showed Kuknyo as the contract purchaser and beneficiary, and showed that Mercado no longer had the same mailing address as Kuknyo. The defendant notified plaintiffs that it intended to use its option to accelerate the mortgage and warned that foreclosure proceedings would be instituted if plaintiffs failed to tender the entire unpaid principle balance within 30 days.

Plaintiffs then filed suit on November 18, 1983, in the United States District Court for the Northern District of Illinois, in order to stop the acceleration. In their complaint, the plaintiffs alleged the following: (1) in May 1979, Mercado financed a loan through the defendant and as security for the loan, she mortgaged her home; (2) Mercado told the defendant that the loan was for the benefit of her son, Kuknyo, and that Kuknyo would make all payments on the loan; (3) defendant accepted Kuknyo’s payments on the loan for several years; (4) defendant then noticed that the home was insured in Kuknyo’s name and asked Mercado to transfer ownership to him; (5) pursuant to defendant’s request, plaintiffs prepared a sale contract between Mercado and Kuknyo and delivered it to defendant; (6) upon receiving the sale contract, the defendant sent plaintiffs a letter notifying them that it had decided to accelerate payments on the note; (7) defendant also said that in lieu of foreclosure on the note, plaintiffs could execute a new note and mortgage at a higher interest rate. Plaintiffs claimed that the defendant’s acceleration of the mortgage violated the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. §2607(b) (1982)).

On April 27, 1984, the district court entered an order granting the defendant’s motion to dismiss, holding that the plaintiffs had failed to state a cause of action. The plaintiffs then appealed to the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit affirmed the district court’s order without holding oral argument on the issues. Mercado v. Calumet Federal Savings & Loan Association (7th Cir. 1985), 763 F.2d 269.

Following the Federal lawsuits, the defendant sent plaintiffs a letter stating that $7,500 had been added to their mortgage. The defendant explained that the additional $7,500 was for attorney fees it had incurred defending the Federal lawsuits. Defense counsel had billed the defendant for 100 hours of work at $75 an hour. The defendant noted that plaintiffs’ mortgage document contained a provision which allowed it to assess a reasonable amount of attorney fees for litigation concerning the mortgage document. Specifically, that provision provided: Thereafter, on December 17, 1986, plaintiffs tendered the balance owed on their mortgage, except for the amount assessed in attorney fees, and demanded a release of their mortgage.

“That the Mortgagee may employ counsel for advice or other legal service at the Mortgagee’s discretion in connection with any dispute as to the debt hereby secured or the lien of this Instrument, or any litigation to which the Mortgagee may be made a party on account of this lien or which may affect the title to the property securing the indebtedness hereby secured or which may affect said debt or lien and any reasonable attorney’s fees so incurred shall be added to and be a part of the debt hereby secured.”

When the defendant did not release the mortgage, plaintiffs filed suit in the circuit court of Cook County. Plaintiffs asked the court to order the defendant to tender the release and to deny the defendant’s request for attorney fees. The defendant claimed that it was entitled to accelerate the plaintiffs’ mortgage because Mercado had misrepresented on her mortgage application that the premises were to be owner-occupied, and also because Mercado had sold her home to Kuknyo without first consulting it. In addition, the defendant alleged that plaintiffs had failed to respond to defendant’s repeated inquiries concerning the sale between Mercado and Kuknyo. Finally, because the Federal litigation related to the mortgage, defendant argued that it was entitled to attorney fees.

The plaintiffs filed a motion for summary judgment on May 13, 1987, asking the court to remove the assessment of $7,500 against them and to order the release of their mortgage. Defendant then filed its own motion for summary judgment on June 23, 1987. Along with its motion, the defendant filed the affidavit of Lorraine Straka, vice-president of defendant’s loan department. In her affidavit, Straka said that on April 29, 1979, Mercado applied for a mortgage loan from the defendant, stating that she wanted to refinance her property in order to obtain $10,000 for her son. Mercado also told the loan officer that title to her property was held in trust and that she currently resided on the property. Finally, Straka claimed that the defendant learned of the sale between Mercado and Kuknyo in March 1983, when a request for an insurance change revealed the sale contract.

The trial court entered an order on July 21, 1987, denying plaintiffs’ motion for summary judgment. The court also stated that it had made no finding as to the rightfulness or wrongfulness of the acceleration but, regardless of the correctness of the defendant’s action, found that the defendant might be entitled to attorney fees. The court then set the case for bench trial on September 17, 1987, to determine whether the defendant’s assessment of attorney fees was reasonable. At the trial, defense counsel explained that although the defendant had threatened to accelerate the plaintiffs’ mortgage, it had never actually done so. Kuknyo then testified and said that the sale contract between his mother and himself had been drawn up at the defendant’s request. Following submission of the sale contract to the defendant, however, the defendant sent Kuknyo notice of default. Kuknyo claimed that the defendant indicated that it would recognize him as the owner of the property if he agreed to pay a higher interest rate on the mortgage. Kuknyo also said that in reality, ownership of the building had not changed since 1976. On cross-examination, Kuknyo testified that the defendant’s request for a sale contract was made in 1983, but that the parties decided to backdate the contract to 1980. Finally, Kuknyo testified that the defendant had at all times been aware that he had a “private agreement” with his mother concerning the house.

On October 6, 1987, the circuit court entered its order, holding that the defendant’s acceleration of plaintiffs’ mortgage was done with good cause and that defendant’s claim for attorney fees was reasonable. The court did not explain its basis for finding that the defendant’s threatened acceleration was proper. The court then denied plaintiffs’ motion to reconsider or clarify, and this appeal followed.

Plaintiffs’ first contention on appeal is that the defendant wrongfully accelerated their note and mortgage. In support of this argument, plaintiffs claim that the defendant was permitted to accelerate their mortgage only if there was an affirmative act by the mortgagor, such as a sale of the mortgaged property. According to plaintiffs, however, there was no sale here because River Oaks at all times remained the owner of the property as trustee. Further, plaintiffs argue that even if the sale from Mercado to Kuknyo was sufficient to trigger the acceleration clause, the defendant had waived its right to accelerate the mortgage. Plaintiffs contend that both Mercado and Kuknyo had been listed on the home insurance policy since 1976; therefore, the defendant was on notice of their arrangement from the beginning. Finally, plaintiffs contend that the defendant, by accelerating their mortgage, breached its duty of good faith and fair dealing and, therefore, the defendant owes plaintiffs their attorney fees.

In response, defendant argues that under the circumstances, its acceleration of the mortgage was not done in bad faith. Defendant alleges that Mercado was uncooperative and never responded to defendant’s repeated attempts to clarify her ownership and insurance records. In addition, defendant claims that Mercado made a misrepresentation in her loan application when she indicated that the premises were to be owner-occupied. Defendant concludes, then, that it properly accelerated the mortgage.

Plaintiffs rely on a number of cases in support of their argument that the defendant wrongfully accelerated their mortgage. In Wachta v. First Federal Savings & Loan Association (1981), 103 Ill. App. 3d 174, 430 N.E.2d 708, the plaintiffs, land trust beneficiaries, wanted to assign their beneficial interest in a land trust to a third party. The defendant bank informed the plaintiffs that it would accelerate their mortgage if they did so. (Wachta, 103 Ill. App. 3d at 175, 430 N.E.2d at 710.) The trial court entered judgment in favor of the land trust beneficiaries, holding that the proposed assignment was not within the scope of the due-on-conveyance clause in the mortgage for the property held in trust. (Wachta, 103 Ill. App. 3d at 176, 430 N.E.2d at 711.) On appeal, the second district affirmed. The disputed clause provided that “all unpaid indebtedness secured by [the] mortgage shall *** become due and payable immediately upon conveyance by the Mortgagor of title, or execution by the Mortgagor of agreement to convey title, to all or any portion of the premises.” (Wachta, 103 Ill. App. 3d at 175, 430 N.E.2d at 710.) The court held that the beneficiaries’ proposed assignment did not trigger the due-on-conveyance clause because the title to the property would remain with the land trustee even after the beneficial interest had been transferred. Wachta, 103 Ill. App. 3d at 178, 430 N.E.2d at 712-13.

In Fairbury Federal Savings & Loan Association v. Bank of Illinois (1984), 122 Ill. App. 3d 808, 462 N.E.2d 6, a mortgagee brought a foreclosure action alleging that the beneficial owner of a land trust had violated a due-on-sale clause in her mortgage. The trust beneficiary had entered into a contract for deed, which was secured by an agreement exchanging warranty deed for deed in escrow. (Fairbury, 122 Ill. App. 3d at 809, 462 N.E.2d at 7.) The beneficiary then directed her bank, as trustee of the land trust, to draw and sign a trust deed and to hold it in escrow. (Fairbury, 122 Ill. App. 3d at 809-10, 462 N.E.2d at 7.) The fourth district held that the due-on-sale clause in the mortgage was not triggered by this arrangement because the deed was not executed by the bank, but was merely held in escrow. Fairbury, 122 Ill. App. 3d at 811, 462 N.E.2d at 8.

Finally, plaintiffs rely on the second district’s decision in Damen Savings & Loan Association v. Heritage Standard Bank & Trust Co. (1982), 103 Ill. App. 3d 301, 431 N.E.2d 34. The court in Damen concluded that a due-on-transfer clause in a mortgage was triggered when the mortgagors created a land trust and transferred record title to a trustee. (Damen, 103 Ill. App. 3d at 304, 431 N.E.2d at 36.) The mortgagors had argued that the clause.was not triggered because they remained in possession of the property and merely changed their interest in the property into a personal property interest. While holding that transfer of record title violated the due-on-transfer provision, however, the court also noted that “[a] transfer of the beneficial interest in a land trust is not a conveyance of an interest in real property, and thus would not violate the ‘due-on-transfer clause.’ ” Damen, 103 Ill. App. 3d at 304, 431 N.E.2d at 36.

In response, the defendant contends that it had the authority to accelerate plaintiffs’ mortgage based on Oak Trust & Savings Bank v. Chicago Title & Trust Co. (1984), 129 Ill. App. 3d 250, 472 N.E.2d 497. In Oak Trust, the third district concluded that the transfer of all the beneficial interests in a land trust violated the terms of a due-on-sale clause in an installment note and trust deed. (Oak Trust, 129 Ill. App. 3d at 252, 472 N.E.2d at 498.) The court distinguished the Wachta case on the ground that the acceleration clause in Wachta specifically referred to transfers of title, while the acceleration clause in Oak Trust merely provided for acceleration “immediately upon any sale, assignment, transfer or conveyance of the premises.” (Oak Trust, 129 Ill. App. 3d at 251-52, 472 N.E.2d at 498.) The court concluded that a “complete assignment of all the beneficial interests in the land trusts certainly constitutes a transfer of the premises.” Oak Trust, 129 Ill. App. 3d at 252, 472 N.E.2d at 498.

Here, the trial court concluded that based on the mortgage documents, the plaintiffs had a duty to notify the defendant of any change in ownership of the real estate. The court also held that the defendant had good cause for its threatened acceleration because the plaintiffs had failed to respond to defendant’s inquiries concerning the sale of the real estate.

Upon reviewing the record, this court finds that there was insufficient evidence in the record presented for the trial court to conclude that the defendant had good cause for its threatened acceleration. A reviewing court cannot substitute its judgment for that of the trial court unless the trial court’s judgment is against the manifest weight of the evidence. (Central Production Credit Association v. Kruse (1987), 156 Ill. App. 3d 526, 532, 509 N.E.2d 136, 139; Williams v. Estate of Cross (1980), 85 Ill. App. 3d 923, 925, 407 N.E.2d 704, 706.) A trial court’s judgment is against the manifest weight of the evidence when a conclusion opposite that reached by the trial court is clearly evident. (Central Production, 156 Ill. App. 3d at 532, 509 N.E.2d at 140.) Where a trial record is devoid of any evidence supporting the trial court’s decision, the trial court’s judgment cannot stand. Central Production, 156 Ill. App. 3d at 532, 509 N.E.2d at 140; see also Williams, 85 Ill. App. 3d at 925, 407 N.E.2d at 706.

Here, in the trial court’s July 21, 1987, order, the court stated, “The court makes no finding as to the acceleration being rightful or wrongful.” Further, during trial, the court stated:

“I don’t want to go into the issue of the reasonableness of the acceleration or that because I think that under the terms of the note that the bank literally had a right to protect its interest, and having done that, they had a right to collect attorney’s fees. The only way in which this question of acceleration is in anyway at issue here is that it might affect the reasonableness of the fees. And that’s the only part I want to address in that I don’t want to go into a trial here on this [the acceleration issue] because you have already done that somewhere else.”

When the attorneys pointed out to the court that the acceleration issue had not been heard before, the court responded, “I don’t want to hear it because I don’t think it’s an issue here.”

Although the court stated that it did not believe that acceleration was an issue in this case, in the court’s findings following trial, the court held:

“[U]nder the mortgage documents with Defendant, Plaintiffs] had a duty to notify Defendant of a change in occupancy or ownership which might affect Defendant’s security, the subject real estate. *** Mercado, did not reside in the premises, but instead, without adequate notice to the Defendant, permitted her son, Michael B. Kuknyo, to reside thereat [sic]. She was selling that property to her son.
Defendant’s threatened acceleration of the mortgage was with good cause after numerous inquiries as to why another person’s name appeared as insured on Liability Insurance Notices for the property, went unanswered.”

There is an insufficient basis in the record to support the trial court’s conclusion. For example, although the trial court concluded that Mercado did not reside at the subject premises, it is not at all clear from the record whether or not Mercado resided on the premises at the time of the sale. The only evidence supporting the defendant’s claim that Mercado moved was the 1983-84 homeowner’s insurance policy which, defendant claimed, showed a different address for Mercado. However, Mercado herself never testified and neither Kuknyo’s testimony nor Straka’s affidavit clarifies whether Mercado moved out of the home that she shared with Kuknyo. In addition, the evidence suggested that the defendant itself requested the sale of the premises to Kuknyo. Nonetheless, the trial court concluded that the sale took place without the defendant’s knowledge. Even if the defendant was unaware of the sale, however, there is some support in case law indicating that the sale of a beneficial interest in a land trust may not trigger a due-on-sale clause. (See Wachta, 103 Ill. App. 3d 174, 430 N.E.2d 703; Fairbury, 122 Ill. App. 3d 808, 462 N.E.2d 6.) Here, Mercado sold only her beneficial interest; title to the property at all times remained with River Oaks. We also find significant the fact that the defendant never actually foreclosed on the plaintiffs’ property. Defendant’s only explanation for its failure to foreclose was that “the idea of foreclosure was abandoned by the defendant for the reason of impracticality of doing so.”

Finally, the court held that the defendant’s threatened acceleration was with good cause because plaintiffs did not respond to the defendant’s inquiries concerning the ownership of the home. The due-on-sale clause in the mortgage, however, provided for acceleration only “in the event of the sale, assignment or pledge by the mortgagor of the property.” Failure to cooperate with the defendant was not listed as a ground for acceleration. Accordingly, we remand for a sufficient determination as to whether there was sufficient cause to trigger the due-on-sale clause.

The plaintiffs also raise five issues on appeal related to the assessment of attorney fees. The plaintiffs claim that: (1) the trial court improperly awarded attorney fees to the defendant because the defendant was entitled to attorney fees only when the litigation related to the mortgage, and the litigation here did not relate to the mortgage, but instead related only to acceleration; (2) the trial court erred in failing to impose on the defendant the burden of proving that the attorney fees it had assessed were reasonable; (3) since the defendant wrongfully accelerated their mortgage and was not entitled to attorney fees, the trial court erred in denying the plaintiffs’ motion for summary judgment; (4) the trial court improperly admitted into evidence an itemized bill for defense counsel’s services because there was no foundation for the bill and the bill was inaccurate; and (5) the $7,500 assessed against the plaintiffs in attorney fees was unreasonable.

The defendant responds that it was entitled to recover attorney fees for the litigation here because the Federal lawsuits related to the plaintiffs’ mortgage. The defendant also claims that it sustained its burden of showing that the fees it charged were reasonable. Finally, the defendant contends that the trial court properly admitted into evidence the itemized bill for defense counsel’s services and that the trial court properly denied plaintiffs’ motion for summary judgment.

Provisions in contracts for awards of attorney fees are permissible; however, only those fees which are reasonable are allowed, and the determination of reasonableness is left to the trial court’s discretion. (Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 983, 518 N.E.2d 424, 427.) The burden is on the part of the party seeking the fees to present the court with sufficient evidence from which it can determine the reasonableness of the fees. (Kaiser, 164 Ill. App. 3d at 983, 518 N.E.2d at 427.) A party attempting to justify a fee must show more than a compilation of hours multiplied by a fixed hourly rate, or copies of the bills issued to the client, because this data, alone, does not provide sufficient information as to reasonableness. (Kaiser, 164 Ill. App. 3d at 984, 518 N.E.2d at 427.) A determination of reasonableness cannot be made on the basis of conjecture or on the opinion or conclusions of the attorney seeking the fees. (Kaiser, 164 Ill. App. 3d at 984, 518 N.E.2d at 427.) A fee petition must specify “the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor.” (Kaiser, 164 Ill. App. 3d at 984, 518 N.E.2d at 427.) The party seeking fees, then, must present the court with “detailed records maintained during the course of the litigation containing facts and computations upon which the charges are predicated.” Kaiser, 164 Ill. App. 3d at 984, 518 N.E.2d at 427-28.

In addition to a party’s detailed records, in determining an award of attorney fees, the trial court should consider additional factors,

“such as the skill and standing of the attorneys, the nature of the case, the novelty and/or difficulty of the issues and work involved, the importance of the matter, the degree of responsibility required, the unusual and customary charges for comparable services, the benefit to the client [citation], and whether there is a reasonable connection between the fees and the amount involved in the litigation.” (Kaiser, 164 Ill. App. 3d at 984, 518 N.E.2d at 428.)

Finally, a trial court’s determination concerning attorney fees should not be reversed absent an abuse of discretion. Kaiser, 164 Ill. App. 3d at 984, 518 N.E.2d at 428.

In the case at hand, the bill submitted to defendant by defense counsel listed 60 hours of work in the Federal district court “to include pleadings, motions, research and briefs,” and 40 hours of work on the Seventh Circuit appeal “to include research and briefs.” The bill then listed “Attorney’s Fees....$7,500.” At trial, when the court asked defense counsel if he had his original time records, defense counsel said that he no longer had the actual time records, and had not had those records for the last three years. Defense counsel did submit, however, an itemized bill purporting to reflect the work done on the Federal cases. The plaintiffs objected to this bill, arguing that it was not prepared until April 1987, and that certain entries on the bill were either undated or contained clearly erroneous dates. For example, the bill lists lVz hours of work on December 24, 1983, even though defense counsel admitted that his office was closed on that date. Defendant admits that this date was erroneous, but claims that the December 24 date related to the date the pleading was received by his office.

The trial court allowed the itemized bill into evidence and found that $7,500 was a reasonable fee. The record does not contain an adequate basis to support the trial court’s conclusion that the fees were reasonable. The itemized bill submitted by defense counsel did not contain “detailed records maintained during the course of the litigation.” (See Kaiser, 164 Ill. App. 3d at 984, 518 N.E.2d at 427-28.) Further, among the undated items listed on defense counsel’s bill were 10 hours for “research in connection with the brief in support of defendant’s motion to dismiss,” 11 hours for “research for the balance of the case in connection with the trial court,” and 20 hours for “research in connection with the appeal and brief.” These entries are too vague and lacking in sufficient details concerning the nature of the legal tasks performed, the actual time spent on each task, the identity of the person who performed the tasks, the relationship of the legal tasks to the litigation, the necessity of the legal tasks, and the complexity of the Federal matters to sustain the burden of showing the reasonableness of the fees. In addition, since the plaintiffs questioned the accuracy of the itemized bill prepared by defense counsel and defense counsel admitted that he no longer had the original time records for the Federal suits, it appears to this court that the burden of proving the reasonableness of said fees was not established by the evidence presented.

We further note that the record failed to address the problem that the mortgagors in this case had no means to contest the reasonableness of the fees assessed against them. During oral argument on this issue, defendant admitted that the mortgage document did not prove a mortgagor with an opportunity to contest or dispute the amount of attorney fees charged to the defendant and later assessed against them. A trial court must exhibit the utmost concern in a situation where, as here, one party to an agreement has the unrestricted right to claim that a breach of the agreement has occurred, and then adds on an assessment of attorney fees as a result of such breach, without-affording the other party an opportunity to contest or dispute the reasonableness of such fees. Here, the only procedure provided to contest the reasonableness of such fees was by way of litigation, which then serves to tack on even more attorney fees and further litigation, resulting in a multiplicity of lawsuits.

Accordingly, for all of the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand for further proceedings consistent with this opinion.

Judgment reversed and remanded.

BUCKLEY, P.J., and MANNING, J., concur.

      The record does not show what ruling, if any, the trial court made concerning the defendant’s motion for summary judgment. This omission, however, does not affect our disposition of the case.

      For example, in this case, the plaintiffs claimed during oral argument that they had to pay the contested $7,500 in attorney fees, plus an additional $9,000, in order to sell their home. The additional $9,000 fee is currently being contested in another lawsuit which, along with the fees generated in the present case, could serve to tack on fees which may exceed the plaintiffs’ $20,500 mortgage.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS FABING, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—1492
    Opinion filed March 26, 1990.

      Warsawsky, McNeal, Fabing & Associates, of Chicago (Michael D. Fabing and Elizabeth A. Knospe, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and David Butzen, Assistant State’s Attorneys, of counsel), for the People.
    Cassiday, Schade & Gloor, of Chicago (Michael J. Gallagher, Gregory E. Schiller, and Patricia A. Bove, of counsel), for amicus curiae Chicago Herpetological Society.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Thomas Fabing (defendant) was charged by misdemeanor complaint with four counts of possessing ‘ ‘life-threatening’ ’ reptiles in violation of section 1 of the Illinois Dangerous Animals Act (the Act) (Ill. Rev. Stat. 1987, ch. 8, par. 241). Following a bench trial, defendant was found guilty of the charged offenses and fined $100.

Defendant appeals his conviction, contending that (1) the Act is unconstitutional on its face and as applied in this case and (2) the State failed to prove the reptiles ‘ ‘life-threatening’’ beyond a reasonable doubt. We reverse.

The State presented the following evidence at trial. On October 1, 1987, a search warrant was issued authorizing a search of defendant’s residence, located at 9410 South Ewing in Chicago, for the seizure of an alligator and two python snakes. Louis Morgan, an Illinois Department of Agriculture animal welfare inspector, and Chicago police officers executed the warrant and seized two Burmese python snakes, approximately 20 feet in length, one boa constrictor snake, approximately seven feet in length, and an American alligator, approximately four feet in length.

Morgan testified that he examined the enclosure where the pythons were kept and detected holes in the screen large enough for the animals to crawl out. Defendant informed Morgan that on a couple of occasions the snakes escaped his apartment and were subsequently found in the alley behind the apartment building. On cross-examination, Morgan testified that according to a Department of Agriculture ruling, a copy of which was not introduced into evidence, any snake which by nature constricts its prey and is over six feet in length is considered ‘ ‘life-threatening. ’ ’

Charles Hill, senior keeper of the reptile house at the Lincoln Park Zoo in Chicago, testified as an expert witness for the State. He testified that the python and boa constrictor snakes are species of “giant snakes” and that a python in the wild, which is comparable in size to defendant’s pythons, is capable of eating a small antelope. Hill described constricting snakes as wild, dangerous and unpredictable animals. According to Hill, even snakes that have become tame and docile through human handling can become violent and dangerous. In Hill’s opinion, any constrictor snake over 10 feet in length is life-threatening because of its potential power to suffocate a human.

Hill opined that defendant’s snakes were life threatening because the pythons were capable of killing an adult or child and the boa constrictor was capable of killing a child or an infant. Apart from Hill’s awareness of a single case in St. Louis where a person had been killed by an African python snake, he was unaware of any reliable accounts of “giant” constricting snakes killing humans.

Hill testified that defendant also possessed a four-foot American alligator.

The following witnesses testified on behalf of defendant. Dr. Michael Corn, a biology professor at College of Lake County, testified as an expert witness. Dr. Corn stated that a ‘ ‘life-threatening reptile is one that can kill someone or is likely to kill somebody” and that the snake’s attitude, behavior and aggressiveness are more important than its size. In his opinion, defendant’s boa constrictor, which was approximately eight feet in length and weighing 25 pounds, and defendant’s two Burmese pythons, approximately 16 feet in length and weighing 100 pounds each, were not life-threatening within the meaning of the statute because they are docile. Defendant’s boa constrictor snake, like other boas, was too small to be considered life-threatening.

Corn further testified that a 15- or 18-foot Burmese python could potentially kill somebody, but such an occurrence would be unlikely since pythons do not constrict on people and the python would have to suffocate the person. Although wild constricting snakes may be “mean,” they become tame through human handling, and docile snakes often do not attack and are not a threat to humans. Pythons, though, will kill and eat things they can get into their mouth, and a python approximately 19 feet in length could “probably [eat] something the size of a small pig.” A snake which is fed smaller animals would probably not attempt to attack something as large as a 50-pound pig because the snake becomes accustomed to a particular kind and size of food. On cross-examination, Dr. Corn testified that snakes 15 to 18 feet in length are large enough to kill a human by suffocation, including a small child or infant, although it could not swallow and consume the person. He testified that defendant’s boa constrictor snake was incapable of killing an infant, but that it was possible for the snake to mistake a human arm or foot with its prey and begin constricting.

Dr. Corn further testified that he was aware of two newspaper reports where Burmese pythons were found in the same room of individuals who were killed by suffocation. The only other accounts of pythons killing humans that he was aware of were in a publication on reptiles.

As to defendant’s four-foot alligator, Dr. Corn testified that it was not life-threatening because it was less than eight feet in length and because alligators tame “fairly nicely.”

Defendant testified that his reptiles are docile and that they have never bitten anybody. He stated that between 50 and 500 people, including children, have handled the snakes and have never been bitten. Both defendant and his girlfriend, Rosemary Moore, handle the snakes daily during “play time” and have had frequent trips with the snakes to local parks and at swimming pool parties, where the snakes are permitted to swim with children. The snakes have never attempted to strike at any of the other household pets, which include a pit bull, a terrier, two ferrets and a cockatiel.

Defendant also testified that he possessed a caiman and he and his brother, David, petted the caiman regularly. Defendant testified that the caiman was kept in a 200-gallon aquarium in his backyard and that it never threatened anybody.

Rosemary Moore testified in substantially the same manner as defendant.

On appeal, defendant first contends that the Act, on its face, is void for vagueness because its prohibitions are not clearly defined and therefore it violates the due process clause of the United States Constitution (U.S. Const., amend. XIV) and the Illinois Constitution (Ill. Const. 1970, art. I, §2). Section 1 of the Act provides the following, in pertinent part:

“No person shall have a right of property in, keep, harbor, care for, act as custodian of or maintain in his possession any dangerous animal except at a properly maintained zoological park, federally licensed exhibit, circus, scientific or educational institution, research laboratory, veterinary hospital or animal refuge in an escape-proof enclosure.” (Ill. Rev. Stat. 1987, ch. 8, par. 241.)

“Dangerous animal” is defined by the Act as follows:

“ ‘Dangerous animal’ means a lion, tiger, leopard, ocelot, jaguar, cheetah, margay, mountain lion, lynx, bobcat, jaguarundi, bear, hyena, wolf or coyote, or any poisonous or life-threatening reptile.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 8, par. 240.)

Defendant claims that the term ‘ ‘life-threatening’ ’ in the above provision fails to afford a person of ordinary intelligence a reasonable opportunity to know what reptiles the Act prohibits and provides the State unreasonable and arbitrary discretion in enforcing the Act. In response, the State maintains that the term ‘ ‘life-threatening’ ’ is clear and comports with due process requirements. The State acknowledges that the term ‘ ‘life-threatening’ ’ is left undefined by-the legislature, but asserts that the common meaning of the term, as it applies under the Act, denotes nonpoisonous reptiles that are “capable” and have the “potential” danger of taking human life.

Although this is the first case to test the constitutionality of the statute in question, the underlying principles involved are well settled. A statute is presumed to be constitutional and all reasonable doubts are to be resolved in favor of upholding the statute’s validity. (People v. Ortega (1982), 106 Ill. App. 3d 1018, 1023, 436 N.E.2d 606, 610; People v. McPherson (1978), 65 Ill. App. 3d 772, 774-75, 382 N.E.2d 858, 860; see also People v. La Pointe (1981), 88 Ill. 2d 482, 499, 431 N.E.2d 344, 352.) One challenging the statute has the burden of clearly establishing the alleged constitutional violation. (People v. Roos (1987), 118 Ill. 2d 203, 514 N.E.2d 993; People v. Bales (1985), 108 Ill. 2d 182, 483 N.E.2d 517; Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 395 N.E.2d 1376.) A court’s primary consideration in construing a statute is to give effect to the legislature’s intent by examining not only the language used in the statute, but also the reason for the law and the evil intended to be remedied. (La Pointe, 88 Ill. 2d at 499, 431 N.E.2d at 352; People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305, 310, 242 N.E.2d 267, 270; People v. Maya (1985), 105 Ill. 2d 281, 287, 473 N.E.2d 1287, 1290; People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174, 1175; McPherson, 65 Ill. App. 3d at 774-75, 382 N.E.2d at 860.) Whenever possible, each word, clause, or sentence of a statute should be given some reasonable meaning. Roos, 118 Ill. 2d 203, 514 N.E.2d 993; In re Marriage of Freeman (1985), 106 Ill. 2d 290, 478 N.E.2d 326.

Under the due process clause, a statute is void for vagueness if its prohibitions are not clearly defined. (Grayned v. City of Rockford (1972), 408 U.S. 104, 108, 33 L. Ed. 2d 222, 227-28, 92 S. Ct. 2294, 2298-99.) Criminal statutes are held to a higher standard than civil sanctions and must define the crime with “appropriate definiteness.” (Winters v. New York (1948), 333 U.S. 507, 515, 92 L. Ed. 840, 849, 68 S. Ct. 665, 670.) Vagueness challenges to statutes must be made in the factual context of each case. United States v. Mazurie (1975), 419 U.S. 544, 550, 42 L. Ed. 2d 706, 713, 95 S. Ct. 710, 714.

Two requirements must be met to withstand constitutional scrutiny under the vagueness doctrine. First, the penal statute must be clearly defined and give a person of ordinary intelligence a fair warning as to what conduct is proscribed. (Grayned, 408 U.S. at 108, 33 L. Ed. 2d at 227-28, 92 S. Ct. at 2298-99; Bales, 108 Ill. 2d at 188, 483 N.E.2d at 520; see also People v. Schwartz (1976), 64 Ill. 2d 275, 356 N.E.2d 8; People v. Vandiver (1971), 51 Ill. 2d 525, 283 N.E.2d 681; DeGrazio v. Civil Service Comm’n (1964), 31 Ill. 2d 482, 202 N.E.2d 522.) “[I]mpossible standards of specificity” are not required (People v. Dednam (1973), 55 Ill. 2d 565, 567-68, 304 N.E.2d 627, 630), but a criminal statute must convey “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices” (United States v. Petrillo (1947), 332 U.S. 1, 8, 91 L. Ed. 1877, 1883, 67 S. Ct. 1538, 1542; see also City of Decatur v. Kushmer (1969), 43 Ill. 2d 334, 336, 253 N.E.2d 425, 426-27). Second, the statute must provide definite standards and guidance, so as to avoid arbitrary enforcement and application by police officers, judges, and juries. Bales, 108 Ill. 2d at 188, 483 N.E.2d at 520; see also La Pointe, 88 Ill. 2d at 499, 431 N.E.2d at 352.

In considering defendant’s vagueness challenge under these principles, we find that the term “life-threatening” as contained in the Act fails to meet constitutional muster. In so finding, we reject the State’s strained construction of the term “life-threatening” set forth above. The meaning of the term ‘ ‘life-threatening’’ is obscure at best. By failing to define the term ‘ 'life-threatening, ’ ’ the legislature has effectively precluded a person of ordinary intelligence from knowing whether his reptiles are prohibited under the Act. The statutory language under which defendant is charged fails to draw reasonably clear lines between the types of reptiles that may be harbored without criminal repercussion. The statutory language here requires individuals to surmise as to the meaning of the sweeping term “life-threatening” and may trap the innocent by its lack of fair warning.

Moreover, that portion of the statute under which defendant was convicted is also constitutionally deficient because the term “life-threatening” permits arbitrary enforcement and application of the Act. The legislature has accorded law enforcement officials and triers of fact unfettered latitude in enforcing the Act rather than providing them some objective criteria by which to judge their actions. Legislatures may not so abdicate their responsibilities for setting the standard of the criminal law. Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839.

In conclusion, we find the statutory language at issue here is void for vagueness. Defendant’s conviction is reversed.

Based upon our findings above, we need not address defendant’s remaining contentions on appeal.

Reversed and remanded.

CAMPBELL and MANNING, JJ., concur.

      The boa constrictor, the Burmese and Indian python, the reticulated python, the African rock python, and the anaconda comprise the “giant-snake” category.

      The Chicago Herpetological Society was granted leave to file an amicus curiae brief relative to the constitutionality of the statute.