author: PRESIDING JUSTICE RARIGK JUSTICE GOLDENHERSH,

text:
    CHERIE KOTTMEYER, Adm’x of the Estate of Eugene Kottmeyer, Deceased, Plaintiff-Appellee, v. CONSOLIDATED RAIL CORPORATION et al., Defendants (Hung Myung Industrial Company, Ltd., Defendant-Appellant).
    Fifth District
    No. 5—89—0800
    Opinion filed October 1, 1991.
    GOLDENHERSH, J., dissenting.

      Richard E. Boyle and Joseph C. Orlet, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellant.
    Kevin T. Hoerner, of Kassly, Bone, Becker, Dix, Reagan & Young, P.C., of Belleville, for appellee.
   PRESIDING JUSTICE RARIGK

delivered the opinion of the court:

Defendant, Hung Myung Industrial Co., Ltd., appeals from the order of the circuit court of St. Clair County granting the motion of plaintiff, Cherie Kottmeyer, administratrix of the estate of Eugene Kottmeyer, deceased, to strike defendant’s special appearance. We reverse and remand.

In May of 1986, plaintiff filed a complaint against defendant Consolidated Rail Corporation. In October of 1987, plaintiff amended her complaint to include Hung Myung Industrial Co., Ltd. (Hung Myung), as a defendant to the action. Hung Myung, a Korean corporation with its principal place of business in Seoul, Korea, responded by filing a special appearance pursuant to section 2 — 301 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 301) for the sole purpose of objecting to the jurisdiction of the court over its person. This special appearance included a jury demand. Two months later Hung Myung filed a motion to quash service of process based on a lack of in personam jurisdiction. This time Hung Myung did not include a jury demand. The circuit court subsequently entered an order finding Hung Myung before the court on a special and limited appearance. Plaintiff next requested to conduct discovery pursuant to Supreme Court Rule 201(1) (134 Ill. 2d R. 201(1)), which permits discovery on jurisdictional issues raised in a special appearance. The trial court granted this request, and for the next IV2 years, the parties conducted discovery on the issue of whether Hung Myung was amenable to process issued by an Illinois court. On October 26, 1990, however, plaintiff filed a motion to strike Hung Myung’s special appearance on the ground that by requesting additional relief of the court through its jury demand, Hung Myung’s special appearance, in fact, constituted a general appearance. The circuit court agreed and granted plaintiff’s motion. Hung Myung argues on appeal its special appearance was not converted into a general appearance merely by including a jury demand in the pleading. Under the circumstances presented here, we agree with Hung Myung.

Section 2 — 301(a) pertaining to special appearances states:

“Prior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. A special appearance may be made as to an entire proceeding or as to any cause of action involved therein. Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 301(a).)

Consequently, a person who wishes to contest an Illinois court’s jurisdiction necessarily must limit his or her challenge to jurisdictional matters as opposed to substantive issues of the lawsuit. (See Kotlisky v. Kotlisky (1990), 195 Ill. App. 3d 725, 731, 552 N.E.2d 1206, 1209.) This follows logically for if one were to ask the court for affirmative relief, it would be incongruous to protest simultaneously that the same court lacks jurisdiction. (195 Ill. App. 3d at 731, 552 N.E.2d at 1209.) We do not believe that in this instance Hung Myung by including a demand for jury trial intended to submit to the court’s jurisdiction for anything other than to challenge that jurisdiction. Its objection to jurisdiction as well as all other pleadings specifically carried the caption “Special and limited appearance,” and none addressed the substantive issues of plaintiff’s complaint. (Compare Kotlisky, 195 Ill. App. 3d at 731-32, 552 N.E.2d at 1209-10, with Ahart v. Young (1990), 194 Ill. App. 3d 461, 464, 551 N.E.2d 685, 688-89.) More importantly, plaintiff and the court itself all operated for some 18 months as though Hung Myung was before the court solely on a special and limited appearance to contest jurisdiction. Hung Myung certainly had no intention to waive jurisdiction simply by including a jury request with its pleading, and no one else interpreted its request as such for over a year and a half. (See Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581, 585-86, 366 N.E.2d 1015, 1018-19; see also Diaber v. Con/Chem, Inc. (1978), 57 Ill. App. 3d 918, 919-20, 373 N.E.2d 805, 807.) Under such circumstances, we will not sanction form over substance. We therefore decline to follow the holding in Difanis v. Martin-Trigona (1979), 73 Ill. App. 3d 352, 391 N.E.2d 1067, in this instance.

For the aforementioned reasons, we reverse the judgment of the circuit court of St. Clair County striking Hung Myung’s special appearance, and we remand this cause for further proceedings consistent with this opinion.

Reversed and remanded.

WELCH, J., concurs.

JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent.

The law concerning the distinction between special and general appearances is well settled in Illinois. In 1957, the Illinois Supreme Court explained: “[A]ny action taken by the litigant which recognizes the case as in court will amount to a general appearance unless such action was for the sole purpose of objecting to the jurisdiction.” (Lord v. Hubert (1957), 12 Ill. 2d 83, 87, 145 N.E.2d 77, 80.) In fact, the supreme court had previously held that a stipulation for a continuance amounts to a genéral appearance. People v. Estep (1955), 6 Ill. 2d 127, 128, 126 N.E.2d 637, 638.

Both the Second and Fourth District Appellate Courts have held that a jury demand constitutes a general appearance. (Difanis v. Martin-Trigona (1979), 73 Ill. App. 3d 352, 355, 391 N.E.2d 1067, 1069; McGuire v. Outdoor Life Publishing Co. (1941), 311 Ill. App. 267, 279, 35 N.E.2d 816, 822.) In Difanis, the court held that although the mere filing of a removal petition does not convert a special appearance into a general appearance, coupling the removal petition with a jury demand does. In McGuire, the court held that whether service upon the corporation was proper is irrelevant because the corporation’s jury demand and motion to quash service constituted a general appearance. Although not bound by these cases, I find their logic persuasive and, contrary to the majority, urge that we follow Difanis.

As its name implies, a special and limited appearance is limited in nature. The sole purpose of a limited appearance is to object to the jurisdiction of the court over the person of the defendant. Any act which recognizes the cause as being in court will waive that special nature. (Lord v. Hubert, 12 Ill. 2d 83, 145 N.E.2d 77.) It is illogical to ask a court to exercise its jurisdiction and simultaneously deny its existence. (McKnelly v. McKnelly (1976), 38 Ill. App. 3d 637, 639, 348 N.E.2d 500, 502.) That is precisely what defendant seeks to do. By demanding a jury, defendant recognized the action as being in court. Defendant, in essence, invoked the jurisdiction of the circuit court and simultaneously denied its existence. I would therefore hold that in demanding a jury, defendant waived its special appearance.

Defendant argues, and the majority agrees, that characterizing a jury demand as a waiver of a special appearance will trap defendant by a technicality. Defendant, here, attempted to employ a very strict and narrow procedural device, the special and limited appearance, to challenge the court’s jurisdiction. I see no problem with the special and limited appearance mechanism as well as its narrow scope, and I do not believe a result contrary to the majority would trap defendant by a technicality.

Defendant points out that plaintiff did not question the nature of defendant’s filing until over D/2 years after the initial filing. The operative date here, however, was when defendant filed its jury demand. That is the time defendant invoked the jurisdiction of the court. Defendant’s waiver of the jurisdiction issue is no less valid because it was not called to the attention of the circuit court until D/2 years later.

Defendant further argues that because a jury demand did not defeat a special appearance under the prior Code, it should not do so now. A plain reading of the Joint Committee Comments shows a clear intent to change the law.

“Formerly, a party filing a special appearance was also required to file a jury demand in order to preserve his right to a jury. ***
*** [The Code] now permits the defendant to file his jury demand at the time his answer is filed.” (Ill. Ann. Stat., ch. 110, par. 2 — 1105, Joint Committee Comments (1955), at 504 (Smith-Hurd 1983).)

Defendant could have properly delayed its jury demand until it filed an answer.

Finally, defendant argues that recognizing the special appearance with a jury demand as a general appearance will deprive defendant of its constitutional rights under the fifth and fourteenth amendments to the United States Constitution. (U.S. Const., amends. V, XIV.) Plaintiff responds that defendant knowingly and voluntarily submitted itself to the jurisdiction of the circuit court. Only a knowing, intentional, and unequivocal act can waive a party’s due process rights. (D.H. Overmyer Co. v. Frick Co. (1972), 405 U.S. 174, 185-86, 31 L. Ed. 2d 124, 133-34, 92 S. Ct. 775, 782.) A jury demand is such a knowing, intentional, and unequivocal act which recognizes the jurisdiction of the circuit court.

The majority’s strongest argument is that to uphold the order of the circuit court promotes form over substance. I completely agree that form should not be promoted over substance; the demand by a party for a jury trial is not mere form but is substance. It invokes the right of a litigant to be heard by a jury when he has his day in court and, as a practical matter, results in a different course of litigation than that of a nonjury trial. As noted above, a party requests the court to act on its behalf in securing its right of jury trial.

The public policy of Illinois is expansive regarding the exercise of jurisdiction. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209 (the long arm statute); Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155; Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 176 N.E.2d 761.) It is consistent with this policy, and not improper or constitutionally impermissible, to require strict compliance with clear and established procedures in order to contest jurisdiction. In this case defendant did not so comply.

For these reasons, I would affirm the circuit court of St. Clair County and remand this cause for further proceedings.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
      In re MARRIAGE OF PATRICIA EILEEN MORGAN, Petitioner-Appellant, and MARK WILLIAM MORGAN, Respondent-Appellee.
    Fifth District
    No. 5—90—0626
    Opinion filed October 2, 1991.
    Patrick M. McCann, of McCann & Foley, of Murphysboro, for appellant.

      No brief filed for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Petitioner and respondent’s marriage was dissolved in 1978 and respondent was ordered to pay child support. In 1990, petitioner filed a motion to increase child support pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 510).

Section 510 provides that where a child support order was entered before the effective date of the guidelines contained in section 505, as was the case here, the party receiving the support may petition the court for a one-time modification in order to increase child support to an amount specified in section 505. Ill. Rev. Stat. 1989, ch. 40, pars. 505, 510(b).

The guidelines of section 505 provide that for one child, the amount of support should be 20% of the supporting party’s income. In this case, although the amount of support was to increase after respondent finished making his payments in bankruptcy, the amount was still less than 20% of respondent’s income. Section 505 provides further:

“(2) The above guidelines shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines. ***
* * *

If the court orders a lower award, *** it shall make express findings as to its reason for doing so.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).

In the case at bar, the judge failed to give specific reasons for his deviation from the guidelines, stating only that “there are some circumstances here that warrant lower payment.”

Petitioner claims on appeal that: (1) the trial court’s failure to modify child support in accordance with the guidelines set forth in section 505 was an abuse of discretion in the absence of specific factual findings justifying the deviation; and (2) that section 510(b) mandates that the trial court modify child support in the amounts set forth in section 505.

The statute and cases interpreting the statute are clear. The trial court must make express findings when ordering an award lower than that set forth in the guidelines. (In re Marriage of Wright (1991), 212 Ill. App. 3d 392, 571 N.E.2d 197; In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 545 N.E.2d 459.) Merely stating that “there are some circumstances here that warrant a lower payment” is insufficient. We therefore vacate and remand for further proceedings consistent with this opinion.

Vacated and remanded with directions.

LEWIS and CHAPMAN, JJ., concur.


author: JUSTICE HARRISON

text:
    THE ENVIRONMENTAL PROTECTION AGENCY, Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    Fifth District
    No. 5—90—0785
    Opinion filed October 2, 1991.
    Roland W. Burris, Attorney General, of Springfield (Christine Zeman and John J. Kim, Assistant Attorneys General, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Mark P. Miller, Special Assistant Attorney General, of Urbana, of counsel), for respondent Pollution Control Board.
   JUSTICE HARRISON

delivered the opinion of the court:

The Illinois Environmental Protection Agency (the Agency) has petitioned this court under section 41 of the Environmental Protection Act (the Act) (Ill. Rev. Stat. 1989, ch. HV-k, par. 1041) to obtain judicial review of an order of the Illinois Pollution Control Board (the Board) which held that John Vander had not violated the Act’s prohibitions against “causing] or allowing] the open dumping of any waste in a manner which results in *** litter [or] open burning” at the dump site (Ill. Rev. Stat. 1989, ch. 11IV2, pars. 1021(q)(l), (q)(3)). As grounds for its petition, the Agency argues that the Board’s order cannot stand because it is based on an erroneous interpretation of what constitutes “open dumping” within the meaning of the Act. We agree. We therefore reverse and remand.

The facts of this case are not in dispute. John Vander had a contract with Southern Illinois Asphalt Company to remove eight buildings from the right-of-way of a new road which Southern Illinois Asphalt was building for the Illinois Department of Transportation. After demolishing two of the buildings, Vander set fire to the debris on the site where the buildings had stood. The fires were observed by Charles Hayduk, a field inspector for the Agency. Thereafter, the Agency issued an administrative citation against Vander pursuant to section 31.1 of the Act (Ill. Rev. Stat. 1989, ch. llV-lz, par. 1031.1) which charged him with having caused or allowed the open dumping of waste in a manner which resulted in litter and open burning at the dump site in violation of sections 21(q)(l) and 21(q)(3) of the Act (Ill. Rev. Stat. 1989, ch. lll1^, pars. 1021(q)(l), (q)(3)).

Based on these violations, the Agency asked the Board to impose a civil penalty on Vander of $1,000. (See Ill. Rev. Stat. 1989, ch. HV-k, par. 1042(b)(4).) Vander then filed a petition for review before the Board to contest the administrative citation. A hearing on that petition was conducted on May 10, 1990. At the hearing, Vander did not deny setting fire to the debris, nor did he deny knowing that open burning was unlawful. Indeed, he admitted that he had previously been the subject of another administrative citation for open burning and had paid the statutory civil penalty. However, he thought that burning the buildings was acceptable in this case because Terry Mandrell of Southern Illinois Asphalt had told him that the Illinois Department of Transportation had said that burning the buildings would be permissible. Mandrell himself appeared as a witness at the hearing and confirmed Vander’s story.

Following the hearing, the Board ruled that Vander had not violated sections 21(q)(l) and (q)(3) of the Act (Ill. Rev. Stat. 1989, ch. HV-k, pars. 1021(q)(l), (q)(3)). It reached this conclusion not because of the defense advanced by Vander, but because it believed Vander’s conduct did not fall within the Act’s definition of “open dumping” (Ill. Rev. Stat. 1989, ch. HV-k, par. 1003.24). In the Board’s view:

“Vander merely tore down the remains of two buildings and burned the demolition debris on site at the point where the buildings once stood. *** The record indicates that the demolition, scooping up of the remaining debris and burning took place as one continuous sequence of events. Where a person is involved in the continuous process of demolition, the Board is unwilling to construe the Act so that the demolition debris instantaneously results in an open dumping violation.”

Three of the Board’s seven members dissented. The Agency then filed a motion to reconsider, which was denied in an order adopted by a vote of five to two on October 25, 1990. The Agency then commenced this petition for administrative review as authorized by section 41 of the Act (Ill. Rev. Stat. 1989, ch. HV-k, par. 1041).

In this proceeding, the Board’s findings of fact are not in dispute. The sole question before us is whether the Board was correct in concluding that Vander’s conduct did not constitute a violation of section 21(q) of the Act (Ill. Rev. Stat. 1989, ch. llP/a, par. 1021(q)). As we have just indicated, the Board based its conclusion solely on the proposition that Vander’s conduct could not be regarded as “open dumping” within the meaning of the Act. Thus, this case ultimately turns on a question of statutory construction. The principles governing statutory construction in the context of administrative review proceedings were recently discussed by our supreme court in Carson Pirie Scott & Co. v. Department of Employment Security (1989), 131 Ill. 2d 23, 544 N.E.2d 772. The court there held:

“[T]he fundamental principle of statutory construction is to give effect to the intent of the legislature. [Citation.] Courts should first look to the statutory language as the best indication of the intent of the drafters. [Citations.] Although it is generally recognized that courts will give substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute, agency interpretations are not binding on the courts [citation], and agency action that is inconsistent with the statute or regulations must be overturned [citations]. For these reasons, we are not bound by the [administrative agency’s] view of [the statute], and exercise independent review.” 131 Ill. 2d at 34, 544 N.E.2d at 777.

Under these standards, the Board’s decision cannot be sustained. “Open dumping” is defined by the Act as “the consolidation of refuse from one or more sources at a disposal site that does not fulfill the requirements of a sanitary landfill.” (Ill. Rev. Stat. 1989, ch. IllV2, par. 1003.24.) “Refuse” is the same thing as “waste” (Ill. Rev. Stat. 1989, ch. llV-k, par. 1003.31), which is “any garbage *** or other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining and agricultural operations, and from community activities.” (Ill. Rev. Stat. 1989, ch. lll1^, par. 1003.53.) The demolition debris generated by Vander certainly meets this definition. The waste was consolidated by Vander from at least one source, and it was so consolidated at a “waste disposal site,” which the Act defines simply as a “site on which solid waste is disposed.” (Ill. Rev. Stat. 1989, ch. llV-k, par. 1003.54.) Moreover, there is no dispute that this disposal site did not constitute a “sanitary landfill,” which is statutorily defined as “a facility permitted by the Agency for the disposal of waste on land meeting the requirements of the Resource Conservation and Recovery Act.” Ill. Rev. Stat. 1989, ch. llV-k, par. 1003.41.

The Board attempted to avoid the clear effect of this statutory language by arguing that the Act was not meant to apply where “the demolition, scooping up of the remaining debris and burning took place as one continuous sequence of events.” There is no authority for this limitation in the Act or anywhere else. It has been devised by the Board entirely on its own. This was improper. A State agency cannot impose by regulation or practice requirements inconsistent with the statute conferring authority on it (Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 381-82, 481 N.E.2d 1004, 1011), nor may it put into a statute a limitation which the legislature did not prescribe. See Gray Panthers v. Department of Insurance (1982), 110 Ill. App. 3d 971, 973, 443 N.E.2d 615, 617.

In ruling as it did, the Board was evidently concerned that unless some qualification were placed on the statute, every contractor engaged in the business of building demolition would automatically run afoul of the Act as soon as he knocked a building down. This concern is based on an incorrect reading of the Act’s terms. It assumes that “open dumping” occurs every time refuse is consolidated at a demolition site. But that is not what the statute provides. Under the Act, “open dumping” happens not when refuse is consolidated at the point of demolition, but when it is consolidated at a disposal site that does not fulfill sanitary landfill requirements. Ill. Rev. Stat. 1989, ch. lllVa, par. 1003.24. -

Thus, there must be more than demolition. There must also be “disposal,” which is defined as

“the discharge, deposit, injection, dumping, spilling, leaking or placing of any waste *** into or on any land or water *** so that such waste *** may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” (Ill. Rev. Stat. 1989, ch. lllVa, par. 1003.08.)

Accordingly, if buildings are demolished and the resulting waste is cleared away to another location before it is allowed to be dissipated back into the environment or emitted into the air, or discharged into the water, the demolition site cannot be regarded as the “disposal site,” and the prohibition against open dumping will not be triggered. But that was not the case here. Here, the demolition site became the disposal site when Vander decided to incinerate the debris there instead of moving it away. The Board was therefore incorrect in concluding that Vander had not engaged in “open dumping.”

For the foregoing reasons, the decision of the Board is reversed, and this case is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

CHAPMAN and GOLDENHERSH, JJ., concur.


author: JUSTICE HOWERTON JUSTICE GOLDENHERSH,

text:
    STAN KNECHT, Plaintiff-Appellee, v. RADIAC ABRASIVES, INC., Defendant-Appellant.
    Fifth District
    No. 5—90—0468
    Opinion filed October 7, 1991.

      Mary Bassett-Stanford, of Salem, and Robert H. Bernstein, of Grotta, Classman & Hoffman, P.A., of Roseland, New Jersey, for appellant.
    Jack Johnston, of Burnside, Dees, Johnston & Choisser, of Vandalia, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff sued defendant, claiming that defendant discharged him in violation of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.4(h)), which states:

“It shall be unlawful for any employer *** to discharge *** or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to hirfkor her by this Act.”

A Marion County jury found for plaintiff and awarded him $94,050 compensatory damages and $205,950 punitive damages. Defendant appealed. We affirm the judgment awarding compensatory damages but reverse the judgment awarding punitive damages and remand for a new trial.

Defendant contends that the circuit court erred in refusing to enter either a judgment notwithstanding the verdict, a new trial, or remittitur. Defendant argues that: (1) plaintiff had no claim under the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.4(h)), because plaintiff could no longer perform his job; (2) the jury’s verdict was against the manifest weight of the evidence; (3) the circuit court erred in instructing the jury on punitive damages; (4) the circuit court erred by refusing to admit defendant’s list of favorably resolved workers’ compensation claims into evidence; (5) the circuit court erred by refusing to permit one of defendant’s witnesses to testify how defendant’s personnel director handled previous workplace disputes; and (6) the circuit court abused its discretion in imposing sanctions pursuant to Supreme Court Rule 219 (134 Ill. 2d R. 219).

I

We address first the circuit court’s refusal to enter judgment notwithstanding the verdict or to grant a new trial.

A circuit court should enter judgment notwithstanding the verdict when “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513.

A circuit court should grant a new trial when the jury’s verdict is against the manifest weight of the evidence (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 356 N.E.2d 32), i.e., when an opposite conclusion is clearly evident, or the jury’s findings are unreasonable, arbitrary, and not based upon the evidence. (Marin v. American Meat Packing Co. (1990), 204 Ill. App. 3d 302, 562 N.E.2d 282.) We examine the evidence to determine if the circuit court erred.

UNDISPUTED FACTS

Plaintiff was severely shocked when he touched the switch on a mixing machine at defendant’s plant. His supervisor sent him to the hospital where he was treated and released. After his release, however, plaintiff’s hands swelled and ached, and by the following Monday, plaintiff reported to defendant that he was unable to work. Defendant’s personnel director referred plaintiff to the company doctor, who in turn referred him to a hand specialist, who diagnosed carpal tunnel syndrome in both hands and bilateral compression of the medial and ulnar nerves of the wrists. The specialist recommended surgery and later operated on plaintiff’s hands and wrists. Plaintiff began to heal, and the specialist gave him a return-to-work slip which stated:

“(1) No heavy lifting over 10 pounds (2) no heavy pulling and pushing for 2 weeks.”

DISPUTED FACTS

Plaintiff testified that when he gave the personnel director the return-to-work slip, the director accused him of being “in cahoots” with the doctor to get a big settlement from the company, ushered him to the door, and told him not to return.

The director contradicted plaintiff, testifying that when plaintiff gave him the return-to-work slip, he told plaintiff he needed to call the insurance company to find out what to do since the return-to-work slip contained limitations, but when he called, the insurance company told him that it had found plaintiff another job.

A nurse testified, however, that the director also told her that he believed plaintiff suffered no real injury or was exaggerating his injury to get a big settlement. Also, a former co-worker of plaintiff testified that plaintiff could have returned to his old department despite his physical limitations.

This review of the evidence is by no means exhaustive, but it is indicative of the nearly evenly balanced factual disputes found throughout the record.

Defendant claims it is entitled to judgment notwithstanding the verdict because as a matter of law it is not guilty of retaliatory discharge or failure to reinstate under the Act, because plaintiff was physically unable to do his old job. The record, however, does not overwhelmingly support defendant’s position, but merely shows that there was a question for the jury to resolve. On this record, a jury could infer, for example, that since the return-to-work slip placed limitations upon plaintiff for only two weeks, plaintiff could have performed his old job after two weeks, but did not return because he legitimately believed that the personnel director discharged him when he ushered him to the door and told him not to return, accusing him of being “in cahoots” with his doctor. The evidence, together with all reasonable inferences, supports the jury’s verdict.

We, likewise, find that the verdict is supported by the manifest weight of the evidence.

II

We next address defendant’s claim that the circuit court erred in instructing the jury on punitive damages.

The issue presented by this case is whether a jury which finds for plaintiff in a retaliatory discharge case has the discretion to decide whether to award punitive damages. The circuit court ruled that the jury had no discretion and so instructed the jury:

“If you find for the Plaintiff on the question of liability, then you must, in addition to any damages for past and future wages lost to which you find plaintiff entitled, fix an amount which will serve to punish the defendant and to deter it and others from the commission of like offenses.”

We reverse the circuit court and hold that a jury may find for a plaintiff in a retaliatory discharge case, award compensatory damages, but refuse to award punitive damages. Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.

Relying on the court’s language in Kelsay, plaintiff argues that if the trial judge decides that the facts warrant the imposition of punitive damages, then the jury must impose an amount that will punish defendant and deter others from similar offenses. (See Kelsay, 74 Ill. 2d at 186, 384 N.E.2d at 359.) Plaintiff, however, misconstrues the supreme court’s language. Procedurally, a punitive damages case is like a compensatory damages case. A court decides whether the evidence makes a prima facie case for punitive damages; a jury decides whether to award punitive damages, and if so, in what amount. Neither Kelsay nor any case relying on Kelsay says that if a court finds that a prima facie case has been made, then a jury must impose punitive damages.

Plaintiff argues that giving a jury the freedom to refuse to impose punitive damages renders the concept of punitive damages useless. We disagree. Punitive damages are imposed to punish the offender and to deter others from committing like offenses in the future. (Kelsay, 74 Ill. 2d at 186, 384 N.E.2d at 359.) Americans, however, have a longstanding tradition: the power to punish carries with it the power to be lenient. The jury, with its unique ability to articulate community values, should decide whether punitive damages should be imposed.

The instruction, therefore, was erroneous, and we reverse and remand to the circuit court for a new trial on punitive damages.

Ill

Defendant claims that the jury's award of compensatory damages was excessive. We disagree. The amount of damages awarded is generally within the sound discretion of the jury. (Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 485 N.E.2d 4.) Nevertheless, a reviewing court may order a new trial on damages if it finds that the jury’s award bears no reasonable relation to plaintiff’s loss. (Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 537 N.E.2d 1348.) Here, we find sufficient evidence in the record to support the jury’s award. Plaintiff presented evidence showing the loss of wages suffered as a result of the discharge, and the jury was charged to fix an amount that would fairly and adequately compensate plaintiff, taking into account that the amount awarded should be the present cash value of his future loss. We find, therefore, that the amount of the award is proper, and we affirm the judgment awarding compensatory damages.

IV

Next, we address an evidentiary issue. The circuit court refused to allow defendant’s witness to testify how its personnel director had handled previous workplace disputes and also refused to allow into evidence a list of previously filed and favorably resolved workers’ compensation claims. We examine the proffered evidence.

Defendant called defendant’s shop steward and asked him if he had always found the personnel director to have been helpful and fair when dealing with workplace disputes. Plaintiff objected, and the circuit court heard counsel at side bar. Defendant’s counsel argued:

“DEFENDANT’S COUNSEL: Your honor, ***, [tjhis man is a chief shop steward who has held that position for fifteen years and had occasion to deal with [the director] twenty-five times a year in efforts to resolve complaints. I’m now asking him if [the director] has *** ever been unfair ***.
THE COURT: Are you saying that you are going to attempt to prove that he was fair in his dealings with Mr. Knecht by saying that the shop steward knew of no time when he was unfair with anyone else?
DEFENDANT’S COUNSEL: Yes.
THE COURT: I’m not going to allow that.”

During a recess that followed, defendant’s counsel told the court that he intended to introduce a series of documents dealing with other workers’ compensation claims since 1985, the purpose of which was to “show that Radiac does not mistreat or refuse to employ workers’ compensation claimants.” Plaintiff’s counsel objected, and the circuit court refused the offer reasoning that it was no more relevant than the shop steward’s testimony.

The circuit court’s ruling was proper for three reasons.

A

First, the evidence from the shop steward was lay opinion evidence. The thrust of the questioning was to establish that the shop steward had the opinion that the personnel director had been fair in dealing with past workplace disputes. As a general rule, “[t]he closer the subject of the [lay] opinion approaches critical issues, the more likely it is that the court will require more concrete details from the witness, either alone or prior to the offering of an opinion.” (M. Graham, Cleary & Graham's Handbook of Illinois Evidence §701.1, at 483 (5th ed. 1990).) In the case at bar, the issue was whether defendant had retaliated against plaintiff. The opinion called for was one of “fairness,” a matter closely approaching the critical issue. Therefore, although “the distinction between fact and opinion is so frequently impossible to delineate *** [much is left] to the discretion of the trial court.” (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §701.1, at 483 (5th ed. 1990).) On this record, we see no reason to reverse this discretionary ruling. Furthermore, this evidence was proffered, in effect, to prove the character of the defendant, namely that defendant had the character trait of treating its employees “fairly.” Illinois allows character to be proved only by evidence of reputation and never by opinion. See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §405.2 (5th ed. 1990).

B

Second, evidence is relevant when it has a tendency to prove a fact in controversy or render a matter in issue more or less probable. (Marut v. Costello (1965), 34 Ill. 2d 125, 214 N.E.2d 768; Dayan v. McDonald’s Corp. (1984), 125 Ill. App. 3d 972, 466 N.E.2d 958; Mueller v. Yellow Cab Co. (1982), 110 Ill. App. 3d 504, 442 N.E.2d 595.) The shop steward’s opinion that defendant was “fair” in the past has no real tendency to make it more or less probable that defendant was being “fair” in the instance being tried. It, therefore, was irrelevant.

Evidence of conduct of a person on another occasion is not relevant on the question of his conduct on the occasion in issue unless offered to show habit, state of mind, knowledge, or intent. (Dillon v. U.S. Steel Corp. (1987), 159 Ill. App. 3d 186, 511 N.E.2d 1349.) Although Dillon includes in its rubric both state of mind and intent, the validity of that inclusion is viewed with some dubiety, because it is generally noted that while evidence of state of mind and intent is admissible in criminal cases, that rationale does not generally support admission of such evidence in civil cases. (See, e.g., Crawford v. Yellow Cab Co. (N.D. Ill. 1983), 572 F. Supp. 1205.) To further focus on the Dillon formulation, it is likewise clear in this case that the excluded evidence was not offered to prove that defendant had knowledge of some condition, e.g., that its product was defective. The only relevance, therefore, was to establish either defendant’s habit or routine business practice of not mistreating or refusing to employ workers’ compensation claimants. To whatever extent Illinois courts have indicated willingness to follow Federal Rule of Evidence 406 (see Bradfield v. Illinois Central Gulf R.R. Co. (1985), 137 Ill. App. 3d 19, 484 N.E.2d 365, aff’d (1987), 115 Ill. 2d 471, 505 N.E.2d 331; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §406.1 (5th ed. 1990)), the fact is that the evidence refused in the case at bar is not proper evidence of habit or routine practice.

1. HABIT

Insofar as habit is concerned, the evidence must establish conduct that becomes semiautomatic, invariably regular, not merely a tendency to act in a given manner. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §406.1 (5th ed. 1990); Simplex, Inc. v. Diversified Energy Systems, Inc. (7th Cir. 1988), 847 F.2d 1290.) In the case at bar, there is a threefold barrier to the admission of this evidence to establish habit.

a

First, in general, it should be noted that a semiautomatic, invariably regular act is one in which discretion — that is, the studied reflection and choosing between options, however fleeting, present in the decision-making process — has been removed. The conduct that constitutes habit, therefore, takes on characteristics of a ministerial rather than a discretionary act. In the case at bar, neither the proof of “fairness” to employees, nor the admission of documents dealing with other workers’ compensation claims proves a semiautomatic, invariably regular response. Each decision to pay workers’ compensation and to retain those who have received workers’ compensation necessarily is a discretionary act, not semiautomatic and invariably regular. To hold otherwise might or could effectively kill suits brought to end discrimination in the workplace: the employer might escape, proving it did not discriminate by proving it had not in the past. Defendant’s argument, therefore, makes bad policy and is rejected.

b

Secondly, there is another barrier to the reception of this evidence. It is true that some habit testimony has been accepted even though the so-called “habit” contains an element of discretion. Examples are: lending money without taking a note in return (Stolp v. Blair (1873), 68 Ill. 541); promptness in paying debts (Thorp v. Goewey (1877), 85 Ill. 611); party affiliation to show how a person voted (Sorenson v. Sorenson (1901), 189 Ill. 179, 59 N.E. 555); and consulting a banker or lawyer as bearing on execution of a note (Wolf v. People’s Bank (1929), 255 Ill. App. 127). In these cases, however, the admission of habit evidence was justified on grounds that there was a strong necessity for its reception. (See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §406.3 (5th ed. 1990); see also Bradfield v. Illinois Central Gulf R.R. Co. (1987), 115 Ill. 2d 471, 505 N.E.2d 331.) There has been no strong showing of necessity for the admission of this evidence in the case at bar. Furthermore, “given the age of the [Stolp, Thorp, Sorenson and Wolf\ cases and the emphasis upon the hardship aspect as a justification for the use of habit testimony *** it is certainly doubtful whether habit evidence can generally be said to be admissible for the purpose of inviting the inference that the person [or corporation] probably acted consistently with *** habit.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §406.3, at 212 (5th ed. 1990).

c

Thirdly, as to admissibility of this evidence to establish habit, there was an insufficient foundation for its admission. The other instances proffered by defendant were not sufficiently detailed and specific so that, when compared to the case at bar, the court could rule that the situations were so similar that the inference that defendant did no wrong in this case, because it had done no wrong in the others, was reliable and not mere speculation or conjecture. See Bradfield v. Illinois Central Gulf R.R. Co. (1987), 115 Ill. 2d 471, 480, 505 N.E.2d 331, 336 (Ryan, J., dissenting).

2. ROUTINE PRACTICE

The routine practice of an organization differs conceptually from habit. That difference, in at least one small way, finds its way into the liturgy of foundation. Whereas habit, if otherwise admissible, does not depend on corroboration, routine practice does; without some corroborating proof that the routine business practice was followed on the occasion in question, evidence of an existing routine cannot be admitted. (See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §§406.3, 406.4 (5th ed. 1990) (in which it is argued that corroboration should be discarded with as a condition of admissibility).) The evidence proffered in the case at bar is not evidence of a routine practice. The types of conduct qualifying for admission as a routine business practice are ministerial acts: mailing, filing, sending notice, and the like. (See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §406.4 (5th ed. 1990).) In the case at bar, the evidence refused was opinion testimony that defendant treated its employees fairly and does not mistreat or refuse to employ workers’ compensation claimants. These are not ministerial acts; they are not routine business practice; they are discretionary.

The circuit court correctly refused this evidence for all these reasons.

V

Lastly, we address defendant’s claim that the circuit court erred in imposing sanctions pursuant to Supreme Court Rule 219. (134 Ill. 2d R. 219.) Rule 219 permits the circuit court to sanction a party or her attorney for abuse of discovery rules. This court’s review of the imposition of such a sanction is limited to whether the circuit court abused its discretion. (Big Three Food & Liquor, Inc. v. State Farm Fire & Casualty Co. (1979), 79 Ill. App. 3d 63, 398 N.E.2d 264.) Plaintiff served a request to produce financial data of defendant on February 6, 1990. Defendant never complied, and when challenged, defendant’s counsel claimed the request to produce was never received. Plaintiff’s counsel then told defense counsel what was requested, but defense counsel argued it was not discoverable. The circuit court ordered defendant to comply within seven days. On May 4, 1990, plaintiff received an unauthenticated document showing defendant had a negative net worth. The document, which purported to be a response to plaintiff’s request to produce, was a summary of information taken from defendant’s financial statement. Plaintiff asked for a continuance for lack of compliance. The court granted it saying that defendant’s response was “nothing” and ordered defendant’s comptroller to be in court the following Monday to disclose the financial data requested. At the hearing the following Monday, the comptroller testified about the financial data of only the plant where plaintiff worked and not the corporation as a whole. The court ordered data from the corporation’s other plant as well. After much argument and delay, defendant finally disclosed an audited financial report of the corporation on Tuesday, May 8, 1990. Instead of a negative net worth, the corporation showed a net worth of over $7 million. The record clearly shows that defendant dragged its feet in responding to plaintiff’s request to produce, and even when the circuit court ordered the information produced, defendant still did not fully comply, the result of which was a delay in the proceedings. We find no abuse of discretion and affirm the circuit court on Rule 219 sanctions.

The circuit court is affirmed in part and reversed in part, and this matter is remanded for a new trial on punitive damages.

Affirmed in part; reversed in part and remanded.

CHAPMAN, J., concurs.

JUSTICE GOLDENHERSH,

specially concurring:

I concur in the results reached by my colleagues but wish to make further comment in regard to section II dealing with instructing the jury on punitive damages.

Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, does not mandate a punitive damages instruction to the jury in every retaliatory discharge action. The clear import of Kelsay, however, is that without a punitive damages component in the retaliatory discharge cause of action, the action itself could very well become a tiger without teeth. Our supreme court in Kelsay stated the following:

“In the absence of the deterrent effect of punitive damages there would be little to dissuade an employer from engaging in the practice of discharging an employee for filing a workmen’s compensation claim. For example in this case, the plaintiff was entitled to only $749 compensatory damages. We noted above the very real possibility that some employers would risk the threat of criminal sanction in order to escape their responsibilities under the Act. The statute makes such conduct, as is involved in this case, a petty offense (Ill. Rev. Stat. 1975, ch. 48, par. 138.26), which is punishable by a fine not to exceed $500 (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 9—1(4)). The imposition on the employer of the small additional obligation to pay a wrongfully discharged employee compensation would do little to discourage the practice of retaliatory discharge, which mocks the public policy of this State as announced in the Workmen’s Compensation Act [(Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.)]. In the absence of other effective means of deterrence, punitive damages must be permitted to prevent the discharging of employees for filing workmen’s compensation claims.” (74 Ill. 2d at 186-87, 384 N.E.2d at 359.)

I interpret Kelsay, and especially the paragraph quoted above, as evidencing a strong policy statement made by our supreme court in favor of inclusion of punitive damages as part of the standard retaliatory discharge case. While neither Kelsay nor any subsequent authority cited to this court mandates charging the jury with a punitive damages instruction, I interpret the clear implication of Kelsay to be that the circuit and appellate courts and the courts of review should keep in mind that without a punitive damages component a retaliatory discharge cause of action would be an action without practical consequences or deterrence effect in regard to the practice of retaliatory discharge, which “mocks the public policy of this State.”

With these additional comments, I concur with my colleagues in the disposition of the issues noted in section II of the opinion and with the rest of this opinion.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY TORAN, Defendant-Appellant.
    Second District
    No. 2—89—1083
    Opinion filed October 10, 1991.
    G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Gregory Toran, pleaded guilty to the offense of theft (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(1)(A)) pursuant to a negotiated plea agreement and was sentenced to a term of 30 months’ probation. Defendant was also ordered to perform 200 hours of public service work, to undergo treatment through the Treatment Alternative to Street Crimes (TASC) program and through the Veterans Administration, and to serve a term of 18 months of periodic imprisonment. Defendant’s probation was later revoked for failure to complete treatment through the TASC program, and defendant was again sentenced to a term of 30 months’ probation. Subsequently, defendant’s probation was revoked because the trial court found that defendant violated the terms of his probation by using cocaine. Defendant was sentenced to a term of four years in the Department of Corrections.

Defendant raises only one issue on appeal: whether he is entitled to a new hearing regarding the petition to revoke his probation for cocaine use because the trial court relied on defendant’s involuntary admission of drug use. We affirm.

Defendant was charged by information with the offenses of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a)) and possession of burglary tools (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 2(a)). On January 17, 1989, the State amended the information charging defendant with burglary to charge defendant with theft. The State then nol-prossed the charge of possession of burglary tools. Defendant pleaded guilty to the offense of theft, and the State recommended a maximum sentence of three years in the Department of Corrections.

A presentence investigation report was prepared. The report showed that defendant had numerous prior convictions, the majority for theft or retail theft. The report stated that defendant began using heroin at age 21, while he was in the military stationed in Viet Nam. The report stated that defendant had participated several times in substance abuse treatment, but still suffered from chronic heroin addiction and was in need of long-term inpatient treatment. According to the report, defendant also stated that he was suffering from post-traumatic stress syndrome.

A TASC evaluation was also completed which stated that defendant was eligible for treatment through TASC. The evaluation stated that defendant’s primary substance of abuse was heroin and his secondary substance of abuse was cocaine.

On March 22, 1989, defendant was sentenced to a term of 30 months’ probation. Defendant was also ordered to perform 200 hours of public service work, to undergo treatment through the TASC program and through the Veterans Administration, and to serve a term of 18 months of periodic imprisonment.

On June 30, 1989, a petition to revoke defendant’s probation was filed which alleged that defendant failed to complete the TASC program successfully. On July 13, 1989, defendant admitted that he failed to complete the TASC program, and his probation was revoked. Defendant was sentenced to a term of 30 months’ probation. Defendant was again ordered to perform 200 hours of public service work and was also ordered to serve a term of 18 months of periodic imprisonment in the work-release program. The order also stated that a condition of defendant’s probation was that defendant shall not “violate any criminal statute of any jurisdiction.”

A second petition to revoke defendant’s probation was filed on August 9, 1989. This petition stated, in count I, that defendant’s urine sample tested positive for cocaine on July 22, 1989, and, in count II, that defendant’s urine sample tested positive for cocaine on July 31, 1989. A hearing was held regarding the petition on August 16, 1989. The State proceeded only on count I of the petition.

The State presented evidence that a urine sample was collected from defendant on July 22, 1989, after he returned to work release. The sample was tested twice. The sample was first tested with an ADx drug analyzer, and the test showed that the sample was positive for cocaine. A thin layer chromatography test was also performed on the sample using the Toxi-Lab TLC method. This test showed the presence of cocaine metabolite. Testimony was presented that both testing methods were generally accepted as reliable within the chemistry field.

Rich Whitney, chief director of the work-release program, testified that defendant admitted that, on July 22, 1989, he used cocaine. Defendant signed an admission of use form. The form was admitted into evidence and stated (the underlining indicates completed blanks in the preprinted form):

“I admit that I have used the following drugs/alcohol Heroin & possibly cocaine on the following date(s) 7/22/89.”

The form was signed by defendant and dated July 29, 1989. Rich Whitney and Rick Riddle signed as witnesses. The date behind both of those signatures was July 30,1989.

During cross-examination, Whitney stated that defendant first denied that he had used cocaine. When asked if he told the defendant that if the defendant signed the admission form defendant’s probation would not be revoked, Whitney replied, "[absolutely not.”

Defendant testified that he told Whitney that he had not used heroin or cocaine. He stated that Whitney told him that if he did not admit it, Whitney would send in a petition to revoke his probation and would not let him go to work. Whitney told him that if he admitted it, Whitney would cut him some slack and let him go to work. Defendant testified that he told Whitney that he did not use cocaine and that his drug of choice was heroin. He signed the form because he was told he could go to work if he signed it. He was allowed to go to work the next day.

Following this testimony, the trial court noted that there were two tests done by two separate machines indicating the same result and that there was also defendant’s admission. The court therefore found that defendant was in violation of the conditions of his probation.

Prior to sentencing, defendant filed a motion to reconsider this finding, alleging, among other things, that the court erred in admitting defendant’s confession as there was testimony that it was coerced and was not voluntary.

An updated presentence investigation report was prepared, and a sentencing hearing was held on September 13, 1989. The court sentenced defendant to a prison term of four years in the Department of Corrections. Defendant filed a motion to reconsider the sentence on September 21,1989.

A hearing was later held, on October 13, 1989, regarding defendant’s motion to reconsider the finding that he violated the conditions of his probation. At the hearing, Richard Riddle testified that he was employed by the Lake County sheriff’s office as director of program servicing in the jail. On July 29, 1989, he and Whitney talked to defendant in Whitney’s office about defendant’s urine sample, taken July 22, 1989, which tested positive for cocaine. Riddle testified that defendant “more or less” indicated that he was using heroin, but denied that he used cocaine. Riddle stated that the problem was that the test was positive for cocaine but the test did not determine that there were opiates in the urine sample. Whitney told defendant that if defendant was willing to give them the truth, Whitney “might be willing to cut him a little slack at that point, file a petition to revoke.” It was after that that defendant agreed to sign the form stating that he used heroin and possibly cocaine. Riddle testified that a petition to revoke was not filed until a second urine sample was taken July 31, 1989, which also tested positive for cocaine.

The trial court denied defendant’s motion, and this timely appeal followed.

On appeal, defendant argues that the order revoking his probation must be reversed because the admission form should not have been admitted. He contends that his testimony and Riddle’s testimony established that he admitted cocaine usage only after Whitney promised him leniency, rendering the admission involuntary. Defendant additionally contends that the error in admitting the involuntary statement cannot be harmless error “even though there is ample evidence of guilt from other sources,” citing Mincey v. Arizona (1978), 437 U.S. 385, 398, 57 L. Ed. 2d 290, 303-04, 98 S. Ct. 2408, 2416, and Jackson v. Denno (1964), 378 U.S. 368, 376, 12 L. Ed. 2d 908, 915, 84 S. Ct. 1774, 1780.

The State argues that the admission was properly admitted because defendant did not prove that his “will was overborne” so that the statement was involuntary. It also contends that, even if defendant’s statement was involuntary, the admission of the form could be found to be harmless error under the recent decision of the United States Supreme Court in Arizona v. Fulminante (1991), 499 U.S. 279, 113 L. Ed. 2d 302, 111 S. Ct. 1246. The State asserts that there was very reliable evidence of defendant’s drug use so that the admission of defendant’s statement was harmless error.

Defendant is correct that an involuntary statement may not be used at a probation revocation hearing. (People v. Peterson (1978), 74 Ill. 2d 478, 485.) However, even if we accepted defendant’s argument that his statement was involuntary because of the promise of leniency made by Whitney before defendant signed the admission, it is clear that admitting the statement into evidence was harmless error under these circumstances.

Defendant has essentially conceded that there was ample evidence of guilt, but argues that the admission of an involuntary statement cannot be harmless error. The State is correct, however, that it can be harmless error based on Fulminante. In Fulminante, the United States Supreme Court held that the admission of an involuntary confession at trial did not require automatic reversal of a criminal conviction. (Fulminante, 499 U.S. at_, 113 L. Ed. 2d at 329-33, 111 S. Ct. at 1263-66.) Where an involuntary statement was admitted at trial, therefore, a reviewing court may affirm the conviction if the admission of the statement is determined to be harmless error beyond a reasonable doubt. (Fulminate, 499 U.S. at_, 113 L. Ed. 2d at 331-33, 111 S. Ct. at 1265-66.) We conclude that, if the admission of an involuntary statement at trial may be harmless error, the admission of an involuntary statement at a probation revocation hearing certainly may also be harmless error.

We note that defendant has accepted throughout these proceedings that cocaine use was a violation of the conditions of his probation. It was apparently a violation because the probation order prohibited him from violating any criminal statute of any jurisdiction. (See also Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—3(a)(1).) In a probation revocation hearing, the State must establish, by a preponderance of the evidence, that the defendant violated a condition of his probation. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(c); People v. Prusak (1990), 200 Ill. App. 3d 146, 149.

Therefore, in this case, the State had to prove, by a preponderance of the evidence, that defendant used cocaine. The State presented evidence that a urine sample was collected from defendant on July 22, 1989. The sample was tested twice, using two different methods, and tested positive for cocaine on both occasions. We conclude that this evidence was sufficient to prove that defendant used cocaine. (See People v. Walker (1987), 164 Ill. App. 3d 133, 135-36 (defendant proved guilty of violating the terms of his probation by a preponderance of the evidence where the urinalysis test showing the presence of cannabis was performed twice).) Even without defendant’s admission, then, the trial court would have reached the same conclusion and would have found that defendant violated the conditions of his probation. We therefore conclude that the admission of defendant’s statement was harmless error beyond a reasonable doubt.

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

Affirmed.

McLaren and NICKELS, JJ., concur.


author: JUSTICE INGLIS

text:
    JOSEPH M. GAYNOR, Plaintiff-Appellant, v. RICHARD J. WALSH, Defendant-Appellee.
    Second District
    Nos. 2—90—1365, 2—91—0324 cons.
    Opinion filed October 3, 1991.
    Rehearing denied November 1, 1991.

      Deborah G. Haspel, of Artery & Haspel, of Northbrook, for appellant.
    Donald F. Hemmesch, Jr., and Kevin P. Burke, both of Taslitz, Smith & Hemmesch, and George P. Lynch, of George Patrick Lynch, Ltd., both of Chicago, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

In these consolidated cases, we consider two appeals by plaintiff, Joseph M. Gaynor, that originate from the same civil suit. The first (No. 2 — 90—1365) is an appeal from a grant of summary judgment in favor of defendant, Richard J. Walsh. The second (No. 2— 91 — 0324) is an appeal from a later order granting $2,586 in attorney fees and costs to defendant. On June 25, 1991, this court sua sponte consolidated the two appeals for decision only. We now dismiss both appeals for lack of jurisdiction.

In September 1989, plaintiff filed a nine-count complaint against defendant seeking redress for defendant’s alleged wrongful transfer of the assets of two partnerships of which plaintiff held a one-third interest. On September 12, 1990, the trial court granted defendant’s motion for summary judgment. The order did not contain any language pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) that there is no just reason for delaying enforcement or appeal. On September 20, 1990, plaintiff filed a motion to reconsider, which the trial court denied on November 15, 1990. Plaintiff’s first notice of appeal (No. 2 — 90—1365) was filed on December 5, 1990, and sought review of the trial court’s decision granting summary judgment to defendant.

On December 10, 1990, within 30 days of the November 15 order, defendant filed a motion for attorney fees and costs pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). The matter was fully briefed and a hearing held on December 21, 1990. On January 8, 1991, the trial court granted defendant’s motion and awarded defendant $2,500 in attorney fees and $86 in costs. (This court notes a discrepancy in the record between the trial judge’s opinion letter and the order regarding the amount of the award. The opinion letter filed on January 8 recites an award of “$2,500.00 in attorney fees plus $68 in costs” while the order filed on the same day awards “attorney fees and costs *** of $2,586.00.” Since defendant’s motion requested $4,350 in attorney fees and $86 in costs, we assume that the $86 figure in the order was the amount intended by the trial judge and that the $68 figure in the opinion letter was an inadvertent transposition of numbers.)

On February 20, plaintiff filed a motion for leave to amend the first notice of appeal, which this court denied on February 26. We specifically denied plaintiff’s motion for leave to amend the first notice of appeal (No. 2 — 90—1365) “without prejudice to [plaintiff filing a motion for leave to file a Late Notice of Appeal from the order of January 8, 1991 within 7 days.”

On March 7, 1991, plaintiff filed a motion requesting additional time to file a motion for leave to file a late notice of appeal from the January 8 order, which this court granted on March 19, extending the filing period to March 27, 1991. On March 25 plaintiff filed a motion for leave to file a late notice of appeal in case No. 2 — 91— 0324, which this court allowed by written order on April 1.

The path of each appeal to the Appellate Court, Second District, is indeed a twisted one, with numerous motions submitted to and decided upon by either this court or the trial court. We have recited the relevant motions and their filing dates in detail because our jurisdiction to hear each appeal turns on whether each appeal is timely. To provide a better understanding of the issues involved, we have included a procedural time line for each appeal.

CASE NO. 2-90-1365:

APPEAL FROM SUMMARY JUDGMENT ORDER

The issue presented is whether plaintiff’s December 5 notice of appeal, which followed the trial court’s denial of plaintiff’s post-trial motion on November 15, became premature and ineffective when defendant filed his motion for Rule 137 sanctions (134 Ill. 2d R. 137) five days later on December 10.

Procedural Time Line

1990

Sept. 12: Summary judgment granted to defendant.

20: Plaintiff filed timely post-trial motion to reconsider.

Oct.

Nov. 15: Order entered denying plaintiff’s motion to reconsider.

Dec. 5: Plaintiff filed first notice of appeal (No. 2 — 90—1365) contesting summary judgment order.

10: Defendant filed motion for Rule 137 sanctions.

Plaintiff contends that once his notice of appeal was filed on December 5, the trial court lost jurisdiction to hear or rule on defendant’s motion for Rule 137 sanctions. We disagree.

Since both parties invoke Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, as authority, we begin our analysis there. In Marsh, plaintiff filed a notice of appeal, and defendant filed a motion for sanctions on the same day. In determining whether plaintiff’s notice of appeal in Marsh was timely, the court first examined Supreme Court Rule 303. (134 Ill. 2d R. 303.) The court stated:

“Supreme Court Rule 303 governs the timing of appeals from final judgments of the circuit court. [Citation.] Subsection (a)(1) of that rule states that a notice of appeal must be filed within 30 days after entry of the final judgment appealed from, or ‘if a timely post-trial motion directed against the judgment is filed, *** within 30 days after the entry of the order disposing of the last pending post-trial motion.’ [Citation.] Subsection (a)(2) of Rule 303 states that a notice of appeal filed before entry of an order disposing of the last pending post-trial motion has no effect and must be withdrawn by the party who filed it. This is so whether the post-trial motion was filed before or after the notice of appeal. A new notice of appeal must be filed within 30 days after entry of the order disposing of the last pending post-trial motion.” Marsh, 138 Ill. 2d at 460.

The court then determined that defendant’s section 2 — 611 motion for sanctions (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611, repealed by Pub. Act 86 — 1156, eff. Aug. 10, 1990 (section 2 — 611 has been substantially replaced by Supreme Court Rule 137 (134 Ill. 2d R. 137))) was not a post-trial motion within the meaning of Rule 303(a) (134 Ill. 2d R. 303(a)) because it was not directed at the judgment. (Marsh, 138 Ill. 2d at 460-64.) The court then held that no appeal may be taken from an otherwise final judgment entered on a claim when a section 2 — 611 claim remains to be resolved, absent a finding pursuant to Rule 304(a) that there is no just reason to delay enforcement or appeal. (Marsh, 138 Ill. 2d at 468.) Specifically, the court stated:

“Because a section 2 — 611 claim is considered part of the underlying cause of action, it must be brought within 30 days of the underlying judgment or within such further time as the underlying claim remains under the jurisdiction of the trial court while a timely post-trial motion is pending.” (Emphasis added.) Marsh, 138 Ill. 2d at 468.

The court concluded that plaintiff’s notice of appeal was premature since it was filed before the trial court order disposing of the defendant’s claim for sanctions and thus ineffective in vesting jurisdiction in the appellate court. Marsh, 138 Ill. 2d at 469.

We find Marsh instructive in that it provides a general framework for our analysis. However, the sequence of events in Marsh is not identical to the instant case, where a motion for sanctions was filed 25 days after the trial court’s disposition of the last post-trial motion and five days after the other party had filed a notice of appeal. In fact, neither our own research nor the briefs filed provide a prior case with the same sequence of events as presented by the instant case. We therefore review three similar cases to aid our analysis of this novel issue.

In American National Bank & Trust Co. v. Bus (1991), 212 Ill. App. 3d 133, the trial court granted summary judgment to defendant. The order contained a Rule 304(a) (134 Ill. 2d R. 304(a)) finding that there is no just reason for delaying enforcement or appeal. (American National Bank, 212 Ill. App. 3d at 136.) Within a 30-day period following the order, defendant filed a motion for sanctions and plaintiff later filed a notice of appeal. (American National Bank, 212 Ill. App. 3d at 137.) The issue decided on appeal was whether the trial court retained jurisdiction to rule on defendant’s motion for sanctions. The court held that the trial court retained jurisdiction to rule on the motion for sanctions and that the appellate court had jurisdiction to hear the appeal of the summary judgment order since the order contained the requisite Rule 304(a) finding that there is no just cause for delaying enforcement or appeal (134 Ill. 2d R. 304(a)). (American National Bank, 212 Ill. App. 3d at 136-37.) The court reasoned:

“An appellate court only gains jurisdiction over matters raised in the notice of appeal. [Citation.] The filing of a notice of appeal only serves to deprive the circuit court of jurisdiction to modify the judgment appealed from or rule on matters of substance which are the subject of the appeal.” American National Bank, 212 Ill. App. 3d at 136.

Two other cases are instructive. In each case, summary judgment was granted to a party who later filed a motion for section 2 — 611 sanctions, followed by the other party filing a notice of appeal as to the summary judgment order before the motion for sanctions had been ruled on by the trial court. (SJS Investments, Ltd. v. La Salle National Bank (1991), 210 Ill. App. 3d 228, 229; Cashmore v. Builders Square, Inc. (1990), 207 Ill. App. 3d 267, 272-73.) The summary judgment order in each case did not contain a finding pursuant to Rule 304(a) (134 Ill. 2d R. 304(a)) that there is no just reason for delaying enforcement or appeal. We assume that each scenario occurred within a 30-day period; however, the facts in SJS do not provide a date for the summary judgment order. The appellate court in each case invoked Marsh (138 Ill. 2d 458) as authority for holding that each notice of appeal was premature and failed to confer jurisdiction in the appellate court because of the outstanding motion for sanctions. SJS, 210 Ill. App. 3d at 230; Cashmore, 207 Ill. App. 3d at 273-74.

We believe that in the instant case defendant’s motion for Rule 137 sanctions filed on December 10 made plaintiff’s December 5 notice of appeal premature because the trial court’s November 15 order denying plaintiff’s motion to reconsider, from which plaintiff was appealing, did not contain a Rule 304(a) finding (134 Ill. 2d R. 304(a)). Such a result is consistent with the logic and reasoning of Marsh and American National Bank. We disagree with plaintiff’s contention that the December 5 notice of appeal divested the trial court of jurisdiction to consider defendant’s December 10 motion for sanctions. As the court noted in American National Bank, the filing of a notice of appeal only serves to divest the trial court of matters of substance that are being appealed. American National Bank, 212 Ill. App. 3d at 136.

We also disagree with plaintiff’s contention that under the Marsh decision defendant had to file his motion for sanctions within 30 days of the issuance of the summary judgment order or alternatively before the trial court ruled on plaintiff’s motion to reconsider. While section 2 — 611 at one time specified that motions had to be made within 30 days of judgment or dismissal (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611, repealed by Pub. Act 86 — 1156, eff. Aug. 10, 1990), Supreme Court Rule 137 (134 Ill. 2d R. 137) does not specify a time period for filing motions that request sanctions. And the court in Marsh specifically held that a Rule 137 motion is not a post-trial motion and is therefore not governed by section 2 — 1203 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203 (allowing a 30-day filing period after judgment for post-trial motions)).

We hold that a Rule 137 motion may be filed at any time during which the trial court has jurisdiction, which extends 30 days past the date the last order or judgment was issued in the case. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1301(e) (trial court retains jurisdiction to set aside any final order or judgment for 30 days after entry thereof).

We conclude that plaintiff’s notice of appeal became premature and ineffective when defendant filed the later motion for sanctions. This court is therefore without jurisdiction to hear the first appeal, and we must dismiss appeal No. 2 — 90—1365.

CASE NO. 2-91-0324:

APPEAL FROM ATTORNEY FEES ORDER

At issue is whether plaintiff’s notice of appeal which was filed on April 1, contesting the trial court’s January 8 order which awarded attorney fees and costs to defendant, was timely. If plaintiff’s notice of appeal was timely filed pursuant to the requirements of Supreme Court Rule 303 (134 Ill. 2d R. 303), this court has proper jurisdiction to consider the merits of the appeal.

Procedural Time Line

1991

Jan. 8: Trial court order awarded $2,586 in attorney fees and costs to defendant pursuant to Supreme Court Rule 137.

Feb. 7: Expiration of 30-day period for filing notice of appeal of the Jan. 8 order pursuant to Supreme Court Rule 303(a).

20: Plaintiff filed motion for leave to amend the first notice of appeal in case No. 2— 90-1365 (filed Dec. 5, 1990).

26: This court denied plaintiff’s Feb. 20 motion, without prejudice to plaintiff filing a late notice of appeal from the Jan. 8 order within seven days (by March 5).

Mar. 7: Plaintiff filed a motion requesting additional time to file a motion for leave to file a late notice of appeal.

9: Expiration of the additional 30-day period for filing a late notice of appeal of the Jan. 8 order pursuant to Supreme Court Rule 303(e).

19: This court granted plaintiff’s March 7 motion, extending the filing period to March 27.

25: Plaintiff filed a motion for leave to file a late notice of appeal in case No. 2— 91-0324.

Apr. 1: This court granted plaintiff’s March 25 motion for leave to file a late notice of appeal; late notice of appeal filed (No. 2-91-0324).

Plaintiff contends that he substantially complied with the requirements of Rule 303(e) for filing a late notice of appeal and that this court is therefore vested with jurisdiction to decide the appeal. Defendant argues that Rules 303(a) and 303(e) provide a combined filing period for notices of appeal of 60 days after judgment, which in this case expired on March 9, making plaintiff’s April 1 notice of appeal untimely. Defendant argues that this court erred on March 19 when it granted plaintiff’s March 7 motion requesting additional time to file a motion for leave to file a late notice of appeal. Defendant asks this court to dismiss this appeal for lack of jurisdiction.

Both parties agree that the question of whether plaintiff’s notice of appeal was timely filed will turn on application of Supreme Court Rule 303 (134 Ill. 2d R. 303), so we begin our analysis there. Rule 303(a)(1) provides the general rule that notices of appeal must be filed within 30 days after final judgment. (134 Ill. 2d R. 303(a)(1).) Rule 303(e) provides for an additional 30-day extension upon a showing of good cause:

“(e) Extension of Time in Certain Circumstances. On motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time, accompanied by the proposed notice of appeal and the $25 filing fee, filed in the reviewing court within 30 days after expiration of the time for filing a notice of appeal, the reviewing court may grant leave to appeal and order the clerk to transmit the notice of appeal to the trial court for filing.” 134 Ill. 2d R. 303(e).

Courts have found the time period requirements in Rule 303 to be mandatory and jurisdictional. (Local 799, American Federation of State, County & Municipal Employees, AFL-CIO v. Henkhaus (1980), 88 Ill. App. 3d 1034, 1035-36; Schneider v. Vine Street Clinic (1979), 77 Ill. App. 3d 946, 947-48; Norris v. Board of Fire & Police Commissioners (1975), 30 Ill. App. 3d 224, 227.) And the Illinois Supreme Court has stated that “our rules of procedure have purpose and are to be adhered to by courts and counsel. If litigation is to have some finality, acts must be accomplished within the time prescribed by law.” People v. Wilk (1988), 124 Ill. 2d 93, 108.

We now admit error in our prior ruling of March 19 which allowed plaintiff until March 27 to file a motion for leave to file a late notice of appeal. This court had no power to do so. Plaintiff’s window of opportunity to file a late notice of appeal pursuant to Supreme Court Rule 303(e) (134 Ill. 2d R. 303(e)) expired, without such occurring, on March 9. Even if this court did have the power to extend the filing period to March 27, plaintiff’s motion for leave to file a late notice of appeal which was filed March 25 failed to comply with Rule 303(e). The motion was not “accompanied by the proposed notice of appeal.” (Emphasis added.) 134 Ill. 2d R. 303(e).

We emphasize, however, that on February 26, although not requested by plaintiff, we added “without prejudice to [plaintiff] filing a Late Notice of Appeal from the order of January 8, 1991 within 7 days” to our written order which denied plaintiff’s motion to amend the December 5 notice of appeal. Compliance would have cured the problem. We conclude that plaintiff’s appeal was not timely filed pursuant to Rule 303, that this court is without jurisdiction to rule on the merits and that we therefore must dismiss case No. 2 — 91—0324.

In conclusion, we wish to add that it is always with regret that this court dismisses an appeal for lack of jurisdiction. However, jurisdiction is a necessary prerequisite for any appeal (see Supreme Court Rule 301 (134 Ill. 2d R. 301)), and for this court to allow an appeal when jurisdiction is lacking would lessen the integrity of the appellate process as a whole (see Wilk, 124 Ill. 2d at 108). We hope that this opinion will highlight the need for attorneys properly to perfect an appeal, being careful to avoid premature appeals and comply with the filing periods provided by Rule 303 (134 Ill. 2d R. 303).

We hold that we are without jurisdiction to hear either appeal, and they are both hereby dismissed.

Appeals dismissed.

UNVERZAGT and NICKELS, JJ., concur.


text:
      In re DAVID WEIMER (The People of the State of Illinois, Petitioner-Appellee, v. David Weimer, Respondent-Appellant).
    Second District
    No. 2—90—0937
    Opinion filed October 7, 1991.

      William E. Coffin, of Guardianship & Advocacy Commission, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Respondent, David Weimer, appeals from an order of the circuit court of Kane County finding him to be a person subject to involuntary admission to the Department of Mental Health and Developmental Disabilities (Department). Respondent contends that the statutory provisions for involuntary commitment proceedings were not followed and that, therefore, the court’s order is void for want of subject matter jurisdiction and must be reversed. Specifically, respondent asserts that: (1) he was not served with notice pursuant to valid court direction, (2) the record contains no evidence that he made a written request for discharge or that the petition and certificates were filed before the prescribed deadline, and (3) the trial court failed to specify the least restrictive determinate period of involuntary hospitalization. Additionally, respondent argues reversal is required because the State failed to prove by clear and convincing evidence that he was unable to provide for his basic physical needs so as to guard himself from serious harm.

On August 7, 1990, the State filed its petition and two psychiatrists’ certificates, pursuant to requirements of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1989, ch. 91V2, par. 1 — 100 et seq.), seeking respondent’s involuntary admission to a mental health facility. The reason given on the petition for its initiation was: “Voluntary patient submitted written notice of desire to be discharged.” The petition alleged that respondent was a mentally ill person who, because of his mental illness, was reasonably expected to inflict serious physical harm upon himself or another in the near future, was unable to provide for his basic physical needs so as to guard himself from serious harm, and was in need of immediate hospitalization for the prevention of such harm. On the same day as the filing of the petition and certificates, a notice of hearing was prepared and served upon respondent, who was residing at the Elgin Mental Health Center (Center), advising respondent of the time and place of the hearing. The notice was prepared and served by an employee of the medical records department at the Center.

On August 10, 1990, the court held a hearing on the petition to involuntarily admit respondent. Respondent and his counsel appeared at the hearing. Testifying for the State, as its first and only witness, was Dr. Elane Nicola, a psychiatrist. Dr. Nicola testified that she had conducted an examination of respondent, reviewed his current and past Department charts, and had discussions with his caseworkers and people who worked with him on his ward. Based on this information, Dr. Nicola opined that respondent was mentally ill and diagnosed his condition as: “Axis One, chronic schizophrenia undifferentiated, alcohol abuse; Axis Two, dependent personality, Access [sic] Three, obesity and bulimia by history.”

Dr. Nicola testified that respondent’s schizophrenia manifested itself on a chronic basis with negative symptoms such as poor insight into his problems, lack of motivation to change, and poor grooming. Additionally, respondent at times had more acute symptoms such as hallucinations, withdrawals to the point of not speaking, and aggression. Dr. Nicola stated that respondent was not presently suffering from hallucinations but had suffered in the past. Typically, according to the doctor, the hallucinations were associated with respondent’s alcohol abuse. Dr. Nicola stated that respondent’s drinking produced severe mental symptoms and dangerous behavior.

The doctor testified that respondent had previously been released 22 times from a Department hospital and that he had a history of noncompliance with outpatient treatment. Dr. Nicola stated that each time respondent returned to the hospital he was in a similar state as he had been on the prior admission, i.e., “Drunk, aggressive, hallucinating.” Based upon respondent’s past history, his lack of motivation to change, and his lack of insight to see that changes were needed, the doctor opined that respondent was reasonably expected to inflict serious physical harm upon himself or another in the near future.

Dr. Nicola stated that respondent was dependent upon other people to care for his basic needs, either his family or an institution, and that he was incapable of functioning on his own. In the doctor’s opinion respondent could not provide for his basic needs so as to guard himself from serious harm, and the Center was the least restrictive environment for respondent at the present time. According to Dr. Nicola, a treatment plan had been developed for respondent, consisting of medication to maintain his “hallucination-free or psychotic-free state,” thought therapy to help motivate respondent, drug counselling to help him deal with his alcohol problem, and instruction in personal hygiene and grooming.

On cross-examination Dr. Nicola stated that during his present admission respondent had not been a harm to himself or anyone else, but he had twice been put in restraints. The doctor testified that she had noticed no improvement in respondent’s motivational activity or his motivation to participate and that she did not believe he could be released from the Center in the near future. To be released, respondent would have to be taking his medication and showing some ability to care for himself.

Respondent testified on his own behalf. He promised that he would take his medication if he was released from the hospital and that he would stay away from alcohol. If released, respondent planned to attend Lincoln Tech. According to respondent, the school would locate housing for respondent. In the meantime, respondent would reside at the Elmhurst Inn Hotel.

On cross-examination, respondent acknowledged that he had been in the hospital on prior occasions. He also acknowledged that in the past he had agreed to take his medication when released but that he had “never followed through with it.”

The court found respondent to be mentally ill and that, because of his mental illness, he was unable to provide for his own basic needs so as to guard himself from serious harm. After reviewing the written treatment plan for respondent, the court found the Department to be the least restrictive environment for respondent and ordered his involuntary admission to the Center. This appeal ensued.

We address only that issue which we consider determinative here, i.e., respondent’s contention that, contrary to the Code, the record contains no evidence that he made a written request for discharge and that, therefore, the trial court’s order for involuntary admission is void.

It is undisputed that respondent was voluntarily admitted to Elgin Mental Health Center on January 1, 1990. Section 3 — 403 of the Code pertains to the discharge of voluntary patients and provides in pertinent part:

“A voluntary patient shall be allowed to be discharged from the facility at the earliest appropriate time, not to exceed 5 days, excluding Saturdays, Sundays and holidays, after he gives any treatment staff person written notice of his desire to be discharged unless he either withdraws the notice in writing or unless within the 5 day period a petition and 2 certificates conforming to the requirements of paragraph (b) of Section 3 — 601 and Section 3 — 602 are filed with the court.” Ill. Rev. Stat. 1989, ch. 91V2, par. 3-403.

No evidence exists in the record to show that respondent asked to be discharged as a voluntary patient pursuant to section 3— 403. Although, as respondent points out, the executor of the petition for involuntary commitment indicated thereon that respondent had made a written request for discharge, we find that the petition, like the accompanying psychiatrists’ certificates, serves only as a showing of probable cause to initiate the hearing as a basis for temporary emergency hospitalization and is not evidence. (See In re Evans (1980), 86 Ill. App. 3d 263, 266.) Without evidence of respondent’s written request for discharge, the circuit court’s order for involuntary admission was void for want of statutory authority. The fact that respondent did not raise this issue in the trial court did not constitute a waiver of the issue, as no necessity exists to challenge a void order to preserve the point on appeal. In re Hays (1983), 115 Ill. App. 3d 686, 689.

The State has moved to supplement the record on appeal with evidence of respondent’s written request for discharge, and respondent has filed objections thereto. We ordered the motion and objections to be taken with the case. We agree with respondent’s position that permitting the State to provide on appeal evidence which was needed to render the trial court’s commitment order valid would have the effect of eroding the procedural protections afforded mental health respondents. As our supreme court recently stated in In re Splett (1991), 143 Ill. 2d 225, section 3 — 403 of the Code “is designed to protect a voluntarily admitted patient from losing control over his status, and we believe that the legislature intended that the requirements of this statute be adhered to strictly.” (143 Ill. 2d at 236.) That adherence includes, in our view, that evidence of respondent’s written request for discharge be part of the record at the time of the involuntary admission hearing and not added at some later point in time after the court’s commitment order has been entered. We, therefore, deny the State’s motion to supplement the record.

Because of this determination we need not consider the propriety of the State’s Attorneys Appellate Prosecutor’s act of requesting a copy of respondent’s written discharge from the Department.

Accordingly, as the record contains no evidence of respondent’s written request for discharge pursuant to section 3 — 403 of the Code, the trial court’s order for respondent’s involuntary admission to a mental health facility is reversed. We note that reversal of the involuntary admission order will simply restore respondent to his original status as a voluntary patient.

In accord with the reasons set forth above, the order of the circuit court of Kane County is reversed.

Reversed.

DUNN and McLAREN, JJ., concur.