author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLOS RASO, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—3409
    Opinion filed September 17, 1992.
    Michael J. Pelletier and Anne E. Meyer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Randall E. Roberts, and Margaret J. Faustmann, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant was found guilty of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1) and sentenced to 30 years’ imprisonment. On appeal, defendant contends solely that his conviction should be reversed because the record does not reflect that he waived his constitutional right to testify at trial.

The charges in this case stemmed from a gang-related, drive-by shooting which occurred around midnight on September 16, 1988, at the comer of 46th Street and South Honoré in Chicago. Defendant was identified by two witnesses as one of three persons in the front seat of a black car which was driven down 46th Street when the shooting took place. One of these witnesses also identified defendant as the person who fired the shot that killed Ida Garcia as she stood at that location with another person known to be a member of a rival gang.

The defense case consisted of two stipulations. The first concerned the testimony of a bystander who told police that she had seen a white man leaning across a vehicle and firing what appeared to be a rifle in the direction of 1822 West 46th Street. The parties also stipulated that four spent .22 caliber cartridges were recovered from the parkway grass next to that vehicle and metal fragments in the front door area of the building at 1822 West 46th Street. These fragments could not be matched with those which were removed from the body of the victim because the latter were too mutilated, but it was possible that they would weigh out to .22 caliber.

At the close of evidence and the arguments of counsel, the trial court found defendant guilty of first degree murder. Prior to sentencing, defense counsel filed a motion for a new trial focusing his argument on the sufficiency of the evidence to sustain the court’s finding. No mention was made of defendant’s failure to testify at trial, and when defendant exercised his right of allocution at the sentencing hearing, he asked only that the court have mercy on him.

In this appeal, defendant maintains that his conviction should be reversed because the record does not reflect that he waived his constitutional right to testify. In presenting the issue for review, defendant appears to acknowledge the lack of any statute or supreme court rule which requires a specific inquiry into this matter, or a definitive procedure or showing on the record. Nevertheless, defendant urges that this court recognize the necessity of an on-the-record waiver by defendant of this basic right and deem the lack thereof in this case to warrant a new trial. The State initially responds that defendant has waived appellate review of this issue; and, alternatively, maintains that defendant’s argument with regard to it is without merit.

The record clearly shows that at no time during the course of the proceedings of record did defendant indicate a desire to exercise his right to testify in his own behalf. The record also shows that defendant did not raise the matter in his written post-trial motion, nor bring it to the attention of the trial court during the proceedings held in conjunction with that motion, or during the sentencing phase of the same proceeding. By failing to bring the matter to the attention of the trial court in the manner specified by the supreme court in People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, defendant has not properly preserved the issue for appeal. Consequently, our review is limited to certain constitutional issues, the sufficiency of the evidence and plain error. (People v. Turner (1989), 128 Ill. 2d 540, 555, 539 N.E.2d 1196, citing Enoch, 122 Ill. 2d at 190.) In this case defendant has not questioned the sufficiency of the evidence to sustain his conviction, and for the reasons which follow, we find the remaining avenues equally unavailing.

Plain error may be invoked when the evidence is closely balanced or if the error is of such magnitude that the accused is denied a fair and impartial trial. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 457.) Our review of the record indicates that neither of these factors was evident. To the contrary, the record shows that defendant was represented by private counsel throughout the proceedings, and that counsel pursued a trial strategy which relied on the State’s inability to prove defendant guilty of the offense beyond a reasonable doubt. If this strategy did not prove successful, it does not indicate that defendant was denied a fair and impartial trial. (See People v. Berry (1988), 172 Ill. App. 3d 256, 526 N.E.2d 502.) In addition, where defendant expressed no desire to testify during the course of the various circuit court proceedings, and on appeal defendant has not asserted that he wished to do so, we draw the conclusion that defendant agreed to the trial strategy pursued by his attorney, and that his late claim of a deprivation of a basic constitutional right is without merit. See People v. Salazar (1991), 211 Ill. App. 3d 899, 570 N.E.2d 802; see also Berry, 172 Ill. App. 3d 256, 526 N.E.2d 502.

As to the constitutional prong of our inquiry, we note that review is limited to constitutional issues which have been properly raised at trial and which later can be raised in a post-conviction petition. (People v. Enoch (1988), 122 Ill. 2d 176, 190.) In this case defendant did not raise the matter at trial, and he has not contended on appeal that his counsel prevented him from testifying which, in certain cases, has been recognized as a cognizable post-conviction claim. (See People v. Jones (1988), 168 Ill. App. 3d 925, 522 N.E.2d 1325.) Thus, we also find this avenue of no portent to defendant.

Notwithstanding the above, we agree with defendant that a criminal defendant is guaranteed the right to testify in his own behalf under the United States Constitution. (U.S. Const., amends. V, VI, XIV.) This right, however, like all others, may be waived. (People v. Knox (1978), 58 Ill. App. 3d 761, 374 N.E.2d 957; People v. Sanders (1991), 209 Ill. App. 3d 366, 568 N.E.2d 200.) The decision as to whether or not to testify is ultimately made by defendant (People v. Brown (1973), 54 Ill. 2d 21, 294 N.E.2d 285), and it should be made with the advice of counsel. (Knox, 58 Ill. App. 3d 761.) Here, as we have already found, the circumstances indicate that defendant acquiesced in the trial strategy employed by his trial counsel, and we thereby conclude that he waived his right to testify. Sanders, 209 Ill. App. 3d 366.

There is no supreme court rule or statute which requires the trial court to inquire or set of record defendant’s decision on this matter comparable to that required to establish a valid jury waiver (Ill. Rev. Stat. 1989, ch. 38, par. 103—6) or a voluntary guilty plea. (Ill. Rev. Stat. 1989, ch. 38, pars. 113—4(c); 134 Ill. 2d Rules 402, 605.) On the other hand, we observe that since Rule 605 does not require the court to admonish a defendant of the necessity of filing a motion to reconsider his sentence where that is the only claim arising from his plea proceeding, before filing notice of appeal from the judgment, the trial court’s failure to admonish defendant of this procedural matter will not provide a basis for preserving the issue on appeal. (See People v. Gerdes (1990), 196 Ill. App. 3d 133, 553 N.E.2d 108.) In our opinion, this ruling reflects the long-standing recognition that the function of a reviewing court is to interpret the law (see In re Estate of Malone (1991), 198 Ill. App. 3d 960, 556 N.E.2d 678), i.e., to enforce the law as enacted, rather than determine what the law ought to be. (See Trittipo v. O’Brien (1990), 204 Ill. App. 3d 662, 561 N.E.2d 1201.) Thus, in the absence of any legislative enactment or supreme court rule (see People ex rel. Brazen v. Finley (1988), 119 Ill. 2d 485, 519 N.E.2d 898) requiring that defendant’s waiver of his right to testify be explicitly made of record, we find no error in the case at bar warranting the relief requested.

The judgment of the circuit court of Cook County is therefore affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN BAILEY, Defendant-Appellant.
    Fourth District
    No. 4—92—0332
    Opinion filed September 30, 1992.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J, Goetten, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a bench trial in the circuit court of Champaign County, defendant was found guilty of indirect criminal contempt for violating an order of protection by allegedly having contact with his ex-wife, Terri Bailey. Defendant served 32 days of a 90-day sentence imposed by the trial court before posting an appeal bond. Defendant contends-he was not proved guilty beyond a reasonable doubt and, in the alternative, the trial court erred in denying credit for good behavior in the sentence imposed.

On October 9, 1990, a plenary order of protection was filed ordering defendant to, among other things, refrain from physically abusing, intimidating, willfully depriving, threatening, harassing, or interfering with the personal liberty of his ex-wife. Defendant was further ordered to have ’“no contact with Terri Bailey.” The order was set to expire on October 9, 1992. On January 2, 1991, defendant pleaded guilty to violating this order and was sentenced to 12 months’ conditional discharge. Later, on February 27, 1991, he again pleaded guilty to violating the protective order. He was sentenced to 12 months’ conditional discharge and required to attend anger control counseling. On July 11, 1991, he was convicted of violating this same protection order and fined $200.

The present action was filed on December 6, 1991, alleging that defendant violated the protection order when he attempted to talk to his ex-wife while she was in a parking lot on November 22, 1991. The facts are as follows.

Terri Bailey and her boyfriend, Mike Padilla, pulled into the parking lot of a bar in Rantoul just as defendant was about to drive out. According to defendant and his girlfriend, Padilla began flashing his headlights and yelling at defendant as their cars passed each other. Both Padilla and Terri claim that defendant was the one yelling. They drove past defendant and parked their truck. At this point, defendant put his car into reverse and backed into the lot, stopping only when his car was blocking the truck occupied by Padilla and Terri. Padilla’s truck was apparently not trapped, as it was possible for them to back out of their spot if they wished.

Defendant claims he pulled back to Padilla’s truck, rolled down his window, and asked Padilla what his problem was. He claims Padilla came after him, apparently calling him out to fight. Defendant got out of his car and offered to shake hands with Padilla, who responded by shoving him. Soon, they both began to push and shove. Testimony regarding who hit whom or who started the fight is conflicting. Terri stayed in the truck. Defendant allegedly climbed back into his car and tried to run over Padilla. Both men accuse each other of spitting on each other’s vehicles.

At some point, Terri climbed out of the truck and claims defendant said to her, “I’m sorry, Terri, you have a fucked up boyfriend.” Padilla confirmed this testimony, while defendant and his girlfriend deny that he said anything to Terry. The only independent witness, Carrie Sahy, testified that defendant was leaving the lot as Padilla and Terri were driving in. She did not see the altercation begin but, after it started, she went over to assist defendant’s girlfriend, who was trying to get defendant back into his car. Sahy claims she asked Terri to get Padilla back in his truck, but Terri replied, “No.” Terri claims she did not respond to Sahy at all. Sahy does not know if defendant ever spoke with Terri.

Despite the conflicting testimony and the apparent separate interests of the parties, the court isolated a number of decisive factors. When defendant saw Padilla’s truck entering the parking lot, he knew Terri was in that truck. If defendant, who was in the process of leaving the parking lot anyway, had just kept going, the confrontation would never have happened. The same trial judge presided over defendant’s conviction on charges of contempt for violating this protective order just six months earlier. At that time, the trial judge informed him that he was to have no contact with his ex-wife. Even if they met accidentally, the burden would fall upon him to get away from her. The court held, in the instant case, that proof of defendant’s alleged comments made to his ex-wife was unnecessary for a finding that he had willfully and contumaciously violated the order of the court. Driving his car up to the vehicle which Terri occupied, blocking its path, and spitting on its windshield was sufficient evidence of a violation of the court’s order, regardless of the fact that his actions were directed toward her companion.

Whether a party is guilty of criminal contempt is a question of fact for the fact finder and the burden of proof is beyond a reasonable doubt. (In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 58, 558 N.E.2d 404, 425.) A reviewing court will not disturb the finding unless it is against the manifest weight of the evidence. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 286-87, 469 N.E.2d 167, 176.) Whether, and on what grounds, to punish the contemnor rests within the sound discretion of the trial court. (In re Marriage of Wassom (1988), 165 Ill. App. 3d 1076, 1079, 519 N.E.2d 1147, 1149.) Defendant was found to have violated paragraph 10 of the court’s protective order, which mandates that he is to have no contact with Terri. When he pulled his auto in front of the vehicle occupied by Terri and then confronted her companion, he violated the court order. We find the court has not abused its discretion in finding that defendant willfully and contumaciously violated the order of the court.

Next, defendant contends the trial court erred when it refused to allow credit for good behavior on the 90-day sentence of imprisonment. Section 3 of the County Jail Good Behavior Allowance Act (Act) states, in relevant part:

“The good behavior of any person who commences a sentence of confinement in a county jail for a fixed term of imprisonment *** shall entitle such person beginning on the date of sentence to a good behavior allowance ***. The good behavior allowance provided for in this Section shall not apply *** to individuals sentenced under an order of court for civil contempt.” Ill. Rev. Stat. 1991, ch. 75, par. 32.

Defendant was convicted of indirect criminal contempt, not civil contempt. Sanctions for criminal contempt are retrospective in nature; they seek to punish a contemnor for past acts which he cannot now undo. (Betts, 200 Ill. App. 3d at 46, 558 N.E.2d at 417.) The reasons for imposing punishment for criminal contempt are much the same as the rationale for punishing other types of misdemeanor criminal conduct — retribution, deterrence, and vindication of the norms of socially acceptable conduct. Betts, 200 Ill. App. 3d at 44, 558 N.E.2d at 416.

In contrast, sanctions for civil contempt are prospective in nature; they seek to coerce compliance at some point in the future. (Betts, 200 Ill. App. 3d at 46, 558 N.E.2d at 417.) The contemnor holds the power to release himself as soon as he complies with the court’s order. Allowing credit for good behavior toward a sentence imposed for civil contempt would effectively undermine the fundamental purpose of the sanction. Accordingly, we find a distinct legislative purpose in the exclusion of civil contempt actions from the Act. No such legislative purpose exists for the exclusion of criminal sanctions. Defendant is entitled to his good behavior allowance.

The State maintains the issue has been waived by defendant’s failure to object at trial or in his post-trial motion. Our court has held that sentence credit for time served is a right afforded by statute and failure to present the issue to a trial court, either by contemporaneous objection or by post-sentencing motion, does not waive this issue. (People v. Donnelly (1992), 226 Ill. App. 3d 771, 779, 589 N.E.2d 975, 980.) Similarly, we find the good behavior allowance is a right afforded by statute which cannot be waived by a failure to object at trial or in a post-trial motion. The fact that the legislature did not include criminal contemnors among those excluded from the Act indicates that the trial court was without authority to deny that credit.

Affirmed in part; reversed in part.

KNECHT and COOK, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    ROBERT J. ALLEN et al., Plaintiffs, v. KENNETH L. STORER et al., Defendants-Appellees (Rose Allen, Plaintiff-Appellant); MATLACK, INC., Plaintiff, v. J.B. HUNT TRANSPORT SERVICES, INC., et al., Defendants.
    Fourth District
    No. 4—92—0176
    Opinion filed September 30, 1992.

      Paul E. Wieck, of Bennett, Schroeder & Wieck, of Marshall, for appellant.
    Stephen L. Corn and Jonathan L. Kazense, both of Craig & Craig, of Mattoon, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This appeal is taken from a summary judgment entered in the circuit court of Clark County with regard to that portion of a complaint alleging an action for loss of consortium. These consolidated cases (Clark County case Nos. 89 — L—18, 89 — L—28) were initiated to resolve a dispute as to liability and damages allegedly resulting from a collision between two semitrailers and a Chevrolet pickup truck, also pulling a trailer, which occurred on Interstate 70 at or near the City of Martinsville, in the County of Clark, Illinois, at approximately 10:05 a.m. on December 18, 1987. In count III of the complaint filed by plaintiffs Robert J. Allen, Rose Allen, and David M. Morgan against defendants Kenneth L. Storer and J.B. Hunt Transport Company (Clark County case No. 89 — L—28), Rose Allen, hereinafter referred to as plaintiff, sought damages for loss of consortium from defendants due to injuries sustained by her husband, Robert J. Allen. As to count III, defendants filed a motion for summary judgment, contending there was no genuine issue of material fact concerning plaintiffs relationship with Allen and that they were not married on the date of the collision. On November 6, 1991, the trial court entered summary judgment in favor of defendants as to count III. On February 11, 1992, on the motion of plaintiff, the trial court entered an order finding there was no just reason to delay enforcement or appeal of the November 6, 1991, order granting summary judgment on count III. Thereafter, plaintiff filed a timely notice of appeal.

On appeal, the only issue raised is whether the Illinois public policy, as evidenced by statute invalidating common-law marriages contracted in Illinois (see Ill. Rev. Stat. 1991, ch. 40, par. 214), prohibits a non-Illinois resident from obtaining damages for loss of consortium simply because the party is the spouse of an injured person under a valid marriage recognized by the common law of another State. For the purpose of this appeal, the parties assume plaintiffs marriage was valid under the laws of Ohio.

In University of Illinois v. Continental Casualty Co. (1992), 234 Ill. App. 3d 340, 343, this court reiterated the general principles regarding summary judgment as follows:

“Pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005), a party may move for summary judgment and may file supporting affidavits. The opposing party may file counteraffidavits. In addition to the affidavits, the trial court may consider the pleadings, depositions and admissions to determine whether any genuine issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. This procedure allows the trial court to determine if a genuine issue of material fact exists, but not to try the issue. While summary judgment facilitates the prompt disposition of lawsuits, it is a drastic remedy allowed only when the moving party’s right to it is clear and free from doubt. In determining the propriety of granting summary judgment, the trial court should construe pleadings, depositions, admissions, exhibits, and affidavits strictly against the movant and liberally in favor of the respondent. Although inferences may be drawn from undisputed facts, an issue should be decided by the trier of fact and summary judgment denied where reasonable persons could draw divergent inferences from the undisputed facts. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 357-59, 543 N.E.2d 1304, 1307-08.) In reviewing the granting of summary judgment, the role of the reviewing court is to determine if the trial court correctly ruled that no genuine issue of material fact exists, and if none exists, whether judgment was correctly entered for the moving party as a matter of law. (O’Hara v. Holy Cross Hospital (1989), 185 Ill. App. 3d 694, 699, 542 N.E.2d 11, 14, affd (1990), 137 Ill. 2d 332, 561 N.E.2d 18.)
‘The entry of summary judgment is not a matter within the discretion of the trial court. In reviewing a trial court’s ruling on a motion for summary judgment, the appellate court should consider anew the facts and law related to the case and determine whether the trial court was correct.’ (Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167.)”

The parties point to no facts which establish a valid common-law marriage existed under the laws of Ohio. Nor is there definite evidence a valid common-law marriage did not exist. Indeed, the trial court did not determine that a valid common-law marriage existed. The order of the trial court stated as follows:

“Plaintiff claims, however, and for purposes of this motion the Court will accept as true, the assertion that she and Robert Allen were lawfully married, without benefit of a marriage license, under the common law of the State of Ohio, their domiciliary [S]tate.”

Plaintiff’s brief suggests:

“[A]ny issues as to whether the parties were sufficiently married under the common law of the State of Ohio, pursuant to the Affidavits filed on their behalf *** is [sic] not a subject of this Appeal since that is a question of fact, the resolution of which should be made at trial.”

Although there has yet been no factual determination of whether a valid marriage existed between plaintiff and Allen under the law of Ohio, we understand the trial court's ruling to be that, even if there is a valid common-law marriage under Ohio law, plaintiff is not entitled to seek damages for loss of consortium because of the public policy of Illinois as evidenced by the statutory declaration of invalidity of purported common-law marriages contracted in this State after 1905 (see Ill. Rev. Stat. 1991, ch. 40, par. 214).

“As recognized in Shreve v. Faris (1959), 144 W. Vir. 819, 824, 111 S.E.2d 169, 173:
‘Consortium is a right which the law recognized in a husband, arising from the marital union, to have performance by the wife of all those duties and obligations in respect of him which she undertook when she entered into the marriage relation ***.’ (Emphasis added.) See also 4 C.J.S. Husband & Wife §11 (1944).
It is comprised of not only material services but also elements of companionship, felicity and sexual intercourse, all welded into a conceptualistic unity. (Dini v. Naiditch (1960), 20 Ill. 2d 406, 427, 170 N.E.2d 881; Manders v. Pulice (1968), 102 Ill. App. 2d 468, 242 N.E.2d 617, affd (1970), 44 Ill. 2d 511, 256 N.E.2d 330.) The foundation of plaintiffs claim for expenses and damages for loss of consortium is that he was the lawful husband at the time of his wife’s accident. Without such a lawful relationship, there can be no recovery by plaintiff. Domany v. Otis Elevator Co. (6th Cir. 1966), 369 F.2d 604, 609.” (Sostock v. Reiss (1980), 92 Ill. App. 3d 200, 205-06, 415 N.E.2d 1094, 1098.)

The corollary rule is, if there is a lawful marital relationship, an action for loss of consortium will be recognized in favor of the non-injured spouse. Of course, plaintiff must plead and prove the existence of a lawful marital relationship.

“Public policy has been defined as ‘Judicial decisions, legislation and constitutions as well as customs, morals and notions of justice which may prevail in a state.’ (Speidel, ‘Extra-territorial Assertion of the Direct Action Statute: Due process, Full Faith and Credit and the Search for Government Interest,['] 53 Northwestern U. Law Review 179, 200.)” Marchlik v. Coronet Insurance Co. (1968), 40 Ill. 2d 327, 332, 239 N.E.2d 799, 802.

In Illinois, common-law marriages are no longer valid. Section 214 of the Illinois Marriage and Dissolution of Marriage Act (Act) states as follows: “Common law marriages contracted in this State after June 30, 1905 are invalid.” (Ill. Rev. Stat. 1991, ch. 40, par. 214.) In Hewitt v. Hewitt. (1979), 77 Ill. 2d 49, 64-65, 394 N.E.2d 1204, 1211, the Illinois Supreme Court observed:

“ ‘Despite its judicial acceptance in many states, the doctrine of common-law marriage is generally frowned on in this country, even in some of the states that have accepted it.’ (52 Am. Jur. 2d 902 Marriage sec. 46 (1970).) Its origins, early history and problems are detailed in In re Estate of Soeder (1966), 7 Ohio App. 2d 271, 220 N.E.2d 547, where that court noted that some 30 States did not authorize common law marriage. Judicial criticism has been widespread even in States recognizing the relationship. (See, e.g, Baker v. Mitchell (1941), 143 Pa. Super. 50, 54, 17 A.2d 738, 741, ‘a fruitful source of perjury and fraud ***’; Sorensen v. Sorensen (1904), 68 Neb. 500, 100 N.W. 930.) ‘It tends to weaken the public estimate of the sanctity of the marriage relation. It puts in doubt the certainty of the rights of inheritance. It opens the door to false pretenses of marriage and the imposition on estates of suppositious heirs.’ 7 Ohio App. 2d 271, 290, 220 N.E.2d 547, 561.”

Nevertheless, the statute prohibits only common-law marriages contracted in this State, and Illinois cannot direct Ohio or any other State to declare invalid common-law marriages.

The Illinois Supreme Court has already considered the recognition in Illinois of a common law marriage valid under the laws of another State, although the factual context in which the issue was raised differs from that in the case at bar. Peirce v. Peirce (1942), 379 Ill. 185, 191-92, 39 N.E.2d 990, 993, provides the following recitation of the law:

“The cases of Wilson v. Cook, 256 Ill. 460, and Stevens v. Stevens, 304 Ill. 297, are cited for the proposition that a common law marriage is void in Illinois, even if performed in some other jurisdiction. The rule, however, is limited to the situation where the parties whose marriage is sought to be upheld in Illinois were, at the time of the marriage, domiciled in Illinois, although the marriage occurred in another State. The general rule of conflict of laws is that the marital status is governed by the law of the State of domicile. Longhran v. Longhran, 292 U.S. 216, 54 Sup. Ct. 684; People v. Shaw, 259 Ill. 544; 35 Am. Jur. (Marriage) 286, par. 170.
As was said in Stevens v. Stevens, supra, ‘The status of citizens of a State in respect to the marriage relation is fixed and determined by the law of that State, but marriages of citizens of one State celebrated in another State which would be valid there are generally recognized as fixing the status in the State of the domicile with certain exceptions, such as marriages which are incestuous according to the generally recognized belief of Christian nations, polygamous, or which are declared by positive law to have no validity in the State of the domicile. Such marriages contracted between the citizens of a State in other States in disregard of the statutes of the State of their domicile will not be recognized in the courts of the latter State though valid where celebrated.’ Where the parties are domiciled in another State at the time of contracting a common law marriage, valid in such State, such marriage will be considered valid here upon their removal to Illinois. Young v. Young, 213 Ill. App. 402; Acklin v. Employees Benefit Ass’n, 222 id. 369.”

In Peirce, it was necessary to recognize the attainment of marital status under Nevada law “insofar as it operates to make the children legitimate.” (Peirce, 379 Ill. at 191, 39 N.E.2d at 993.) In any event, these legal principles have now been codified by the enactment of section 213 of the Act, which states as follows:

“All marriages contracted within this State, prior to the effective date of this Act, or outside this State, that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties, are valid in this State, except where contrary to the public policy of this State.” (Ill. Rev. Stat. 1991, ch. 40, par. 213.)

This section is a continuation of the prior common law of this State. (Ill. Ann. Stat., ch. 40, par. 213, Historical & Practice Notes, at 62 (Smith-Hurd 1980).) Therefore, if plaintiff proves she had a valid marriage to Allen under Ohio law at the time of the injury-causing incident, she is entitled to pursue an action for loss of consortium.

The summary judgment of the circuit court of Clark County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

GREEN, P.J., and STEIGMANN, J., concur.


author: JUSTICE KNECHT

text:
      In re A.H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. James Holt, Respondent-Appellant).
    Fourth District
    No. 4—92—0012
    Opinion filed September 30, 1992.
    Kristen H. Fischer Law Offices, of Urbana, for appellant.

      Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Diana Lenik, of Urbana, guardian ad litem.

   JUSTICE KNECHT

delivered the opinion of the court:

Respondent, James Holt, appeals from the Champaign County circuit court’s dispositional order entered after a finding his minor child, A.H., born January 31, 1991, neglected. Respondent appeals from the conditions in the order which granted his wife, Dawn Holt, the exclusive use and possession of the marital residence and of a jointly owned vehicle. He contends these requirements are pro-eedurally deficient because the trial judge failed to specify the time period respondent would be denied access to this property. He also contends the order was fundamentally unfair because he was not provided ample notice and opportunity to present evidence before the order was entered. The trial judge’s order did sufficiently specify the time period it would remain in effect, but we reverse and remand nonetheless. Respondent was denied an opportunity to present evidence against the imposition of these conditions because he was not informed these conditions might be imposed.

The Holts were married in August 1990. A.H. was born January 31, 1991. The family became involved with the Department of Children and Family Services (DCFS) in April 1991, when a report was indicated due to a medical diagnosis A.H. was failing to thrive. A second report was indicated May 17, 1991, due to domestic violence against Dawn by respondent. In response to Dawn’s communicated desire to return to Pennsylvania to reside with her family, DCFS obtained plane tickets for Dawn and A.H.

On July 22, 1991, the Portage police department in Pennsylvania responded to a domestic violence report where Dawn and A.H. were residing. Respondent had arrived in Pennsylvania approximately two weeks after Dawn and A.H. relocated there. The Pennsylvania Protective Services notified DCFS when it learned Dawn and A.H. were leaving Pennsylvania to again reside with respondent.

On August 21, 1991, Dawn was leaving to go to work and intended to take A.H. to a baby-sitter. Respondent did not want Dawn to take A.H. to the sitter. He grabbed Dawn and forced her against a wall. Respondent’s brother John entered the room to assist Dawn. He and respondent began fighting. Respondent was arrested and a battery charge was lodged against him for his actions toward Dawn. When this charge was lodged, respondent was already serving a term of probation for an earlier battery offense against Dawn. Dawn asked the State’s Attorney’s office to drop the pending battery charge against respondent.

At the September 24, 1991, shelter-care hearing, Debra Jones, a child protective investigator for DCFS, testified Dawn reported her husband was violent toward her fairly often. Also during this hearing, respondent stated his mental health counselor indicated respondent’s primary problem was his temper. At the conclusion of the hearing, the trial judge granted DCFS temporary custody of A.H.

On October 29, 1991, an adjudicatory hearing was held. Respondent and Dawn admitted and stipulated A.H. was neglected because her environment was injurious to her welfare while she resided with them. An additional count alleging that A.H. was abused was withdrawn. The dispositional hearing was held on December 2, 1991. The background report was prepared by Children’s Home and Aid Society. During her interview, Dawn revealed respondent became aggressive and violent after they married. She had stated her desire to leave respondent many times. She feared leaving respondent because he reportedly had told her he would “get everybody against [her] and then [she would] never get [A.H.] back.” The report also indicated Dawn was making all payments toward their jointly owned vehicle, as well as rent and utilities for the trailer where the parties resided. Respondent was contributing nothing to family expenses.

As part of his dispositional order, the trial judge required respondent to vacate the marital residence by 5 p.m. December 2 and only remove his clothing and items for personal hygiene. Dawn was awarded exclusive use of the residence and jointly owned vehicle. These requirements were to continue until further order of the court. Neither the State, the guardian ad litem, nor Dawn’s counsel had recommended these conditions. The case was continued for a review hearing on June 4, 1992. The trial judge also indicated if the circumstances significantly progressed, he might amend the order before the review date.

The trial judge noted respondent’s violent tendencies created the most significant problem which required removing A.H. from the Holts’ custody. He concluded that because of this violence the Holts could not share a residence and provide an appropriate environment for A.H. While Dawn remained dependent and intimidated by respondent, A.H. would not be returned to their care. The judge stated, “[i]f there is to be any meaningful progress, Mrs. Holt cannot go on parenting Mr. Holt and being subjected to abuse by him and do the things she has to do to work toward the return of her child.”

Respondent objects to the conditions that Dawn receive exclusive occupation of the marital residence and use of the jointly owned vehicle. He contends although the trial judge did not characterize these conditions as a protective order, they could have only arisen from section 2 — 25 of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 25).

Section 2 — 23 of the Act provides an order of disposition may include an order of protection under section 2 — 25. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 23.) Section 2 — 25 states an order of protection may set forth reasonable conditions of behavior to be observed for a specific period. It also outlines certain requirements which may be included in a protective order. These requirements include orders “[t]o stay away from the home,” “[t]o abstain from offensive conduct against the minor, his parent or any person to whom custody of the minor is awarded,” and “[t]o refrain from acts of commission or omission that tend to make the home not a proper place for the minor.” Ill. Rev. Stat. 1989, ch. 37, pars. 802— 25(l)(a), (1)(c), (1)(g).

Section 2 — 25(5) of the Act further provides:

“Any person against whom an order of protection is sought *** has rights to be present at the hearing, to be informed prior to the hearing in writing of the contents of the petition seeking a protective order and of the date, place and time of such hearing, and to cross examine witnesses called by the petitioner and to present witnesses and argument in opposition to the relief sought in the petition.” Ill. Rev. Stat. 1989, ch. 37, par. 802-25(5).

Respondent argues the trial judge abused his discretion by granting exclusive use and possession of the jointly owned vehicle to Dawn. He contends the Act does not contemplate the judge’s action because the action involves marital property rights and not behavior or conduct. In the alternative, he contends even if this action is authorized by the Act, granting the vehicle to Dawn was not reasonably related to the goal of returning A.H. to her parents, because, as the record indicates, when the vehicle was granted to Dawn, she could not legally drive alone because she had only a learner’s permit. Respondent argues this condition can be viewed only as punitive in nature.

Respondent also argues the trial judge’s grant to Dawn of the exclusive occupation of the marital home and use of the vehicle was procedurally deficient for two reasons. He initially contends the order failed to specify a time period as required by the Act. He also contends because he was not notified a protective order might be entered, he was denied an opportunity to present evidence. He directs us to this court’s rulings in In re S.A.C. (1986), 147 Ill. App. 3d 656, 498 N.E.2d 285, and In re T.W. (1988), 166 Ill. App. 3d 1022, 520 N.E.2d 1107, as support for his argument he was denied fundamental fairness by this alleged lack of a reasonable opportunity to present evidence before a protective order is entered.

The State initially contends respondent waived review of the order because he did not object to it at the conclusion of the proceedings. It also argues because the conditions implemented by the trial judge did not constitute a protective order, the statutory conditions for entering such an order do not apply. It further argues the alleged procedural errors were addressed and reconciled by the trial judge.

The State is correct respondent did not formally object to the conditions in the order. Principles of waiver apply to proceedings conducted pursuant to the Act. (In re T.L.B. (1989), 184 Ill. App. 3d 213, 219, 539 N.E.2d 1340, 1344; In re F.L.W. (1979), 73 Ill. App. 3d 355, 358, 391 N.E.2d 1070, 1072.) This case, however, raises significant concerns about respondent’s property rights in a marital home and a jointly owned vehicle. Supreme Court Rule 366(b)(1)(i) provides “[a]ny error of law affecting the judgment or order appealed from may be brought up for review.” (134 Ill. 2d R. 366(b)(1)(i).) We choose to exercise our discretion under this rule to review the alleged impropriety of the trial judge’s order.

Respondent’s first claim, i.e., the trial judge did not specify a time period during which the order would remain in effect, fails. The judge indicated the contested orders were to continue until further order of the court and he continued the matter until June 4, 1992, for a review hearing. He also indicated the order could be modified earlier if conditions warranted such action. These factors sufficiently informed respondent the order would remain effective until June 4 unless conditions warranted revision. However, the procedures applied before the order was entered were deficient and require reversal of the order.

We reject the State’s arguments the order did not have to be entered pursuant to the conditions provided in section 2 — 25 of the Act. The State fails to direct this court to additional provisions which authorize entry of a protective order and do not require respondent receive notice and an opportunity to defend against such an order. The trial judge’s order was procedurally deficient. Respondent was denied the opportunity to respond to the potential denial to him of access to his marital home and jointly owned vehicle.

The trial judge explained to respondent and Dawn that if A.H. was made a ward of the court, particular conditions could be placed on them before they could regain custody of A.H. However, no pleading ever mentioned a protective order, and respondent was never informed the judge could consider entering a protective order against him. Section 2 — 25(4) of the Act specifically requires the party against whom an order is sought receive ample notice and opportunity to respond. Ill. Rev. Stat. 1989, ch. 37, par. 802 — 25(4).

Although factually distinct, the cases to which respondent directs us support our finding the trial judge abused his discretion by entering a protective order without respondent receiving prior notice and opportunity to present evidence against its entry. In T.W. (166 Ill. App. 3d at 1024-25, 520 N.E.2d at 1107-08), this court concluded the protective order against a nonrelative of the children was properly entered because, although the nonrelative was not named in the original petition filed by the State, he was named in a later petition which complied with the additional statutory requirements. He also questioned the State’s witnesses and was given an opportunity to be heard.

In S.A.C. (147 Ill. App. 3d at 659, 498 N.E.2d at 287), this court concluded the trial judge erred by entering the protective order sought by the State. The parent was denied a meaningful opportunity to object to the trial judge’s entry of the order against him because he was not represented by counsel, had not been served with summons, or named as a respondent before the order was entered.

The orders entered in the above cases were sought by the State. The trial judge in this case entered the order sua sponte at the close of the dispositional hearing. Contrary to the facts in S.A.C., respondent had no prior notice an order could be entered against him.

This court also reversed a protective order in In re Rider (1983), 113 Ill. App. 3d 1000, 1004, 447 N.E.2d 1384, 1387 (entered pursuant to section 5 — 4 of the then Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 705 — 4)), because the order was based on evidence adduced in chambers when the noncustodial father was not present. Although respondent in this case was present, he could not have known the evidence would be used to obtain a protective order which had not been sought by any party, but was entered by the trial judge sua sponte.

We reverse the trial judge’s order and remand for further proceedings consistent with the views expressed herein. Our reversal is based on procedural deficiencies before the order was entered. We express no view on the substance of the conditions which the trial judge required of the parties.

Reversed and remanded.

STEIGMANN and COOK, JJ., concur.


author: JUSTICE RARICK

text:
    H.H. “SAM” BARTER, Plaintiff-Appellant and Cross-Appellee, v. THOMAS SLAYBACK et al., Defendants-Appellees (Alan Reyhan et al. Defendants-Appellees and Cross-Appellants).
    Fifth District
    No. 5—89—0176
    Opinion filed September 30, 1992.

      Edward J. Kionka, of Carbondale, Edward G. Maag and Ronald D. Stanley, both of Columbia, and L. Thomas Lakin, of Lakin & Herndon, P.C., of Wood River, for appellant.
    Lord, Bissell & Brook, of Chicago (Hugh C. Griffin and Thomas P. Min-nick, of counsel), for appellee Leslie W. Michael.
    Freeark, Harvey, Mendillo, Dennis, Wuller & Buser, P.C., of Belleville (Ted Harvey, Jr., of counsel), for appellee Lord, Bissell & Brook.

      D. Peter Wise, of Metnick, Barewin & Wise, of Springfield, for appel-lees Alan Reyhan, Max Floyd, and Thomas Slayback.
    Michael F. Dahlen, of Feirich/Schoen/Mager/Green, of Carbondale, for appellees Ernst & Whinney and Anthony M. Schelonka.
    Carl W. Lee and Thomas R. Peters, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellee David Cox.
   JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, H.H. “Sam” Barter, appeals from the entry of summary judgments and dismissal against him in favor of defendants by the circuit court of Saline County. Defendants cross-appeal from the denial of sanctions under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611).

In the spring of 1977, Barter and defendant Reyhan agreed to form a partnership for the purpose of buying heavy construction equipment to lease or rent to contractors for a road-building project in Haiti. Each borrowed money to buy the equipment which was then leased to Sangamo-Barter Construction Co. and J.D. Barter Construction Co. In August of 1977, Barter and Reyhan entered into a written partnership agreement in Haiti formalizing their prior oral agreement. In 1981, as the project neared completion, the equipment of the partnership was sold in Texas. None of the proceeds from the sale were paid to Barter or to the partnership, which was then owed some $3 million from Sangamo-Barter Construction Co. In May of 1986, Barter filed a complaint against Rey-han and his attorneys and accountants and officers of and for J.D. Barter Construction Co. (defendants), alleging conversion of property and assets, conspiracy and fraud. Defendants responded by filing motions to dismiss and/or for summary judgments alleging no valid partnership had been formed under Haitian law. In addition, defendant Lord, Bissell & Brook filed as part of its answer a request for sanctions pursuant to section 2 — 611. On November 18, 1988, the trial court entered its judgment ruling in favor of defendants’ motions for dismissal and summary judgment. The trial court concluded the alleged partnership never existed as a legal entity under Haitian law, and even if the partnership were valid, the arbitration clause of their agreement barred recovery in an Illinois court. The order further granted defendants leave to file motions for sanctions under section 2 — 611 of the Code of Civil Procedure while finding no just reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) with respect to the granting of summary judgment and/or dismissal. On December 16, Barter filed a motion to reconsider and set aside the dismissal and summary judgments. Barter also filed a motion for leave to amend his complaint. On February 27, 1989, the court denied Barter’s motions for reconsideration and leave to amend. The next day the court denied defendants’ motions for sanctions. Barter subsequently filed his appeal on March 22, 1989, alleging the trial court erred in entering summary judgments against him and in denying him leave to amend his complaint. Defendants cross-appealed the denial of sanctions. Specifically, defendant Michael filed his cross-appeal on March 29; defendant Lord, Bissell & Brook filed its cross-appeal on March 30; defendants Ernst & Whinney and Schelonka filed their cross-appeal on March 31; and defendants Reyhan and Floyd filed their cross-appeal on April 4, 1989.

Before we can look to the merits of Barter’s appeal, we first must determine whether we have jurisdiction over his appeal. Defendants assert Barter failed to file his notice of appeal within 30 days from the date of the trial court’s order granting defendants’ motions for summary judgment and/or dismissal thereby waiving his right to appeal. Barter contends his motion for reconsideration filed within 30 days of the entry of the trial court’s order tolled the time for filing a notice of appeal until the trial court disposed of that motion. As the notice of appeal was filed within 30 days of the order entered on Barter’s motion to reconsider, Barter believes we have jurisdiction. Barter further points out we already ruled in his favor on this exact issue once before when defendants previously filed motions to dismiss the appeal on the same grounds they assert now. According to Barter, defendants essentially are asking us to reconsider our previous ruling. While this may be true, it is our duty to inquire into and make certain of our jurisdiction prior to proceeding in a cause of action. (See Hassan v. Wakefield (1990), 204 Ill. App. 3d 155, 157, 561 N.E.2d 1160, 1162; Fair Automotive Repair, Inc. v. Car-X Service Systems, Inc. (1984), 128 Ill. App. 3d 763, 773, 471 N.E.2d 554, 562; City Auto Paint & Supply, Inc. v. Brandis (1979), 73 Ill. App. 3d 863, 865, 392 N.E.2d 703, 705.) We therefore address the issue of jurisdiction.

We begin with the principle that the timely filing of a notice of appeal is mandatory and jurisdictional. (See, e.g., Hassan, 204 Ill. App. 3d at 157, 561 N.E.2d at 1162; City Wide Carpet, Inc. v. John (1980), 83 Ill. App. 3d 538, 541, 404 N.E.2d 465, 467.) Under Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)), a notice of appeal must be filed within 30 days after the entry of a final and appealable order or judgment, unless the court on its own motion undertakes to review the order or a timely post-trial motion is filed. If either of these happen, then the 30-day period is tolled until disposition of the post-trial motion occurs, which then starts the 30-day period over again. (See, e.g., Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 460, 563 N.E.2d 459, 461; City Wide Carpet, 83 Ill. App. 3d at 541, 404 N.E.2d at 467.) The timing of appeals for final orders which do not dispose of all matters presented to the court is governed by Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). (See Marsh, 138 Ill. 2d at 464, 563 N.E.2d at 463.) Under Rule 304(a), if the trial court’s order disposes of fewer than all of the claims in an action, then the court must have made an express written finding that there is no just reason for delaying enforcement or appeal before the order is appealable. Without this finding, the order is not appealable until all of the claims have been resolved. (See Marsh, 138 Ill. 2d at 464, 563 N.E.2d at 463.) Here, the trial court entered an order on November 18, 1988, granting defendants’ motions to dismiss and/or for summary judgment. While Barter’s claims were disposed of, defendants’ claim for sanctions remained pending. Section 2 — 611 claims are considered to be part of the civil action which gave rise to the claims, not separate actions. (Marsh, 138 Ill. 2d at 467-68, 563 N.E.2d at 464; see also Palmisano v. Connell (1989), 179 Ill. App. 3d 1089, 1095, 534 N.E.2d 1243, 1247.) Consequently, no appeal may be taken from an otherwise final judgment entered in an action when a section 2 — 611 claim remains to be resolved, absent a finding that there is no just reason to delay enforcement or appeal. (Marsh, 138 Ill. 2d at 468, 563 N.E.2d at 464-65; see also Hise v. Hull (1983), 116 Ill. App. 3d 681, 683-84, 452 N.E.2d 372, 374-75.) Here we have that finding. The Rule 304(a) finding included in the court’s written order of November 18 made the order immediately appealable thereby giving Barter 30 days in which to file his notice of appeal, regardless of the pending claim for sanctions. See Marsh, 138 Ill. 2d at 468-69, 563 N.E.2d at 464-65.

Instead of filing a notice of appeal within 30 days, Barter filed a motion to reconsider, a motion which he believes tolled the 30-day period. At the time the trial court entered its order, Rule 304(a) provided in part:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding.” (Emphasis added.) (107 Ill. 2d R. 304(a).)

According to the holding of Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232, the filing of a timely post-trial motion does not toll the running of the 30-day period for filing a timely notice of appeal under this language. (119 Ill. 2d at 351, 518 N.E.2d at 1235.) As the court stated, to hold otherwise would undermine the certainty which a Rule 304(a) finding provided. (119 Ill. 2d at 353, 518 N.E.2d at 1236.) Barter contends, however, Rule 304(a) was amended specifically to counter the decision rendered in Elg, and the amendment took effect while his case was still pending before the trial court under a motion to reconsider. The amendment to which Barter refers provided that, effective January 1, 1989, the time for filing a notice of appeal under Rule 304(a) would be provided as in Rule 303(a). (See Hassan, 204 Ill. App. 3d at 158 n.1, 561 N.E.2d at 1162 n.1.) By January 1, 1989, however, Barter’s time in which to file his notice of appeal had already expired. Unfortunately, the amended provision, even though procedural in nature, could not be retroactively applied to revive a claim already barred under the prior law. (See Arnold Engineering, Inc. v. Industrial Comm’n (1978), 72 Ill. 2d 161, 163, 380 N.E.2d 782, 783.) As our supreme court has noted often, a procedural rule will not be applied retroactively when to do so would impair constitutionally protected vested rights. (See, e.g., Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390-91, 415 N.E.2d 1034, 1042; see also Champaign County Bank & Trust Co. v. Jutkins (1963), 29 Ill. 2d 253, 256, 193 N.E.2d 779, 781-82.) While we express no opinion as to the propriety of the trial court’s granting of summary judgments and dismissal in favor of defendants in this instance, under Rule 304(a) as it existed at the time the trial court entered its judgment, Barter’s failure to file a notice of appeal within 30 days of the Rule 304(a) finding precludes appellate review of that order. (Hassan, 204 Ill. App. 3d at 159, 561 N.E.2d at 1163.) We are therefore required to dismiss Barter’s appeal on the basis of lack of jurisdiction.

As for defendants’ cross-appeals pertaining to the denial of sanctions, we first note the cross-appeals of defendants Reyhan, Floyd, Ernst & Whinney and Schelonka were filed more than 30 days from the order from which they appeal. We therefore must also dismiss these cross-appeals. (See Benet Realty Corp. v. Lisle Savings & Loan Association (1988), 175 Ill. App. 3d 227, 235, 529 N.E.2d 718, 723; 107 Ill. 2d R. 303(a)(3).) As for the remaining two timely filed cross-appeals, we find no abuse of the trial court’s discretion under the circumstances. We cannot say that either Barter or his attorneys violated section 2 — 611 in filing this action. The issue raised by Barter’s complaint was the legal effect of a partnership, whether it be a written contract under Haitian law or an oral agreement in Illinois. Experts on both sides differed as to the interpretations and results of the parties’ partnership. Legitimate doubts also exist as to whether the arbitration agreement contained in the written contract even controlled the nature of this dispute between the parties. Sanctions under section 2 — 611 should only be awarded when the moving party has clearly proven that the other party’s allegations were untrue and made without reasonable cause. (In re Estate of Wernick (1989), 127 Ill. 2d 61, 77, 535 N.E.2d 876, 883.) The fact the trial court entered summary judgments and/or a dismissal in favor of defendants does not mean Barter had no reasonable cause to make the allegations he did upon filing suit. (See U.S. Minerals & Mining, Inc. v. Licensed Processors, Ltd. (1990), 194 Ill. App. 3d 428, 436, 551 N.E.2d 661, 666.) We therefore conclude the trial court did not err in denying defendants motions for sanctions under section 2 — 611.

For the aforementioned reasons, we dismiss the appeal of Barter for lack of jurisdiction, dismiss the cross-appeals of Reyhan, Floyd, Ernst & Whinney and Schelonka as being untimely, and affirm the judgment of the circuit court of Saline County dismissing defendants’ motions for sanctions for those cross-appeals timely filed.

Dismissed in part; affirmed in part.

GOLDENHERSH, P.J., and H. LEWIS, J., concur.


author: JUSTICE HENRY LEWIS

text:
    HERMAN L. LOEB, Plaintiff-Appellee, v. ALBERT A. WOLL et al., Defendants-Appellants (Farm Bureau Oil Company et al., Defendants).
    Fifth District
    No. 5-90-0345
    Opinion filed October 13, 1992.
    L. James Hanson and Arnold J. Pirtle, both of Mitchell, Neubauer & Shaw, P.C., of Mt. Vernon, for appellants.
    C. Michael Witters, of Mt. Carmel, for appellee.
   JUSTICE HENRY LEWIS

delivered the opinion of the court:

This appeal results from the granting of a summary judgment in favor of Herman L. Loeb (Loeb) and against Albert L. Woll (Woll) in an amended judgment entered in Wabash County on May 7, 1990. The facts in this case are somewhat complicated, but the issue presented for review is simple and straightforward.

Woll and Loeb were brothers-in-law and had been co-owners of oil and gas leases in the Illinois basin since the late 1940’s. On August 6, 1984, Woll filed suit in Clinton County to foreclose interests of Loeb in various leases for failure to pay operating and supervising expenses on certain leases. In an amended complaint Woll asked for expenses through October 1985. A trial was conducted in Clinton County on September 29, 1986, in which, over Loeb’s objection, the trial court allowed Woll to produce evidence concerning the ongoing expenses through April 1986. After the trial a hearing was held on December 12, 1986, again before Judge Eberspacher. Folio-wing that hearing the court entered an order which stated in pertinent part:

“B. That this cause be, and the same is hereby, set for the taking of further evidence on the following issues only:
a) The identity and number of producing wells from month to month upon the Family leases.
b) The identity and number of producing wells from month to month upon the Payne leases to and including the month of February, 1985.
c) The amount of monthly expenses for each lease exclusive of ‘overhead and supervision’ expenses, however denominated[,] claimed by Woll or the Corporation, from July, 1983[,] to date as to the Family leases and from July, 1983[,] thru February, 1985[,] as to the Payne leases.
d) That in default of the production of such evidence the First Amended Complaint of Woll Enterprises, Inc. is to be dismissed.”

The court set January 9, 1987, as the date to hear the matters set forth in the order of December 12, 1986. Evidence was heard on that date in compliance with the order. However, no evidence was presented concerning the operating expenses for leases after April 1986. These expenses are now in contention in the instant case.

Prior to opening statements on January 9, 1987, the following exchange occurred between Ben Mitchell, counsel for Woll, and Judge Eberspacher:

“BEN MITCHELL: I am co-counsel for the plaintiff. We are prepared to respond pursuant to paragraph D, as to D(a) the identity of producing wells. Also, as to sub-paragraph (b) [sic], we apologize to the Court. In fairness, we misunderstood your ruling when you said as to the family leases from July ’83 to date. Just prior to open court we learned that you mean today or a very recent date. We are not prep- xe d to produce evidence concerning any invoices or expenses s ibfequent to the date of trial that were permitted in the trial.
THE COURT: Are you prepared to present them through the date of trial?
BEN MITCHELL: No, Your Honor, because at the trial we were permitted to go through April and that is the end point at which we are prepared to present evidence.
THE COURT: Are you prepared to go through April?
BEN MITCHELL: Yes. I would also state to the Court that there is other pending litigation between the parties and any resulting indebtedness which would occur subsequent to April of ’86 would and will be fully covered and resolved in other litigation.
THE COURT: All right, sir. Anything further by way of opening?
BEN MITCHELL: No, Your Honor.
THE COURT: Mr. Hanson — I’m sorry. Mr. Witters?
MICHAEL WITTERS: I have no opening statement at this time.”

On January 27, 1987, a judgment was entered in the cause in Clinton County, which incorporated by reference the provisions of the order of December 12, 1986. The court determined the specific amounts owed to Woll for each lease based upon the evidence. No mention was made concerning the period from May through December 1986.

During the pendency of Woll’s complaint filed in 1984, Loeb filed his own complaint, case No. 86 — CH—21, on October 8, 1986, against Woll in Wabash County, Illinois, to foreclose an equitable oil and gas lien on certain leases. Later, Loeb filed a second complaint, case No. 87— CH — 15, on May 29, 1987, against the Freda Loeb Trust for Pearl L. Woll (plaintiff is the trustee) in Wabash County, Illinois, to foreclose an equitable oil and gas lien on certain leases.

In accordance with Ben Mitchell’s representations to Judge Eber-spacher that Woll would recover indebtedness resulting after April of 1986 in the other litigation, Woll filed a second complaint, case No. 88— CH — 3, on January 26, 1988, against Loeb in Wabash County to foreclose an equitable oil and gas lien on certain leases of which the family leases were a part. In this complaint Woll alleged that Loeb owed operating expenses from May of 1986 to August of 1987.

All of the dealings between the parties have been settled by stipulation except those concerning the monies allegedly owed by Loeb to Woll for the period of April 1986 through December 1986. In the Wabash County case presently on appeal, both sides presented motions for summary judgment asking the court to determine the meaning of the order of December 1986 and the judgment of January 27, 1987, entered in the circuit court of Clinton County. The circuit court of Wabash County ruled in favor of Loeb, in effect holding that Judge Eberspacher’s order of December 12, 1986, and judgment of January 26, 1987, included the expenses from May 1986 through December 1986 and that since the matter was already decided, the issue was res judicata. Woll appeals. The sole issue presented for our review is whether Judge Eberspacher’s judgment of January 27, 1987, covered the period from May to December of 1986. The circuit court of Wabash County held that a reading of the order of December 12, 1986, and the judgment of January 27, 1987, precludes Woll from claiming expenses again for the period ending December 31, 1986.

“The doctrine of res judicata provides that ‘a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.’ (People v. Kidd (1947), 398 Ill. 405, 408.) When res judicata is established 1 “as a bar against the prosecution of a second action between the same parties upon the same claim or demand *** it is conclusive not only as to every matter which was offered to sustain or defeat the claim or demand, but as to any other matter which might have been offered for the purpose.” ’ Housing Authority for La Salle County v. YMCA (1984), 101 Ill. 2d 246, 251-52, quoting Barry v. Commonwealth Edison Co. (1940), 374 Ill. 473, 478.
The courts have created the doctrine of res judicata to protect litigants from the onerous burden of retrying an identical cause of action or issue with the same party, and to promote economical use of judicial resources by barring repetitive litigation. (Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 432.) Toward that end, the courts have barred parties from bringing suit on issues that could have been raised, but were not, in an earlier proceeding. Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 375; see also Yaw v. Beeghly (1982), 109 Ill. App. 3d 627, 632-33; Neuberg v. Michael Reese Hospital & Medical Center (1983), 118 Ill. App. 3d 93, 99.” Pacemaker Food Stores, Inc. v. Seventh Mont Corp. (1986), 143 Ill. App. 3d 781, 784, 493 N.E.2d 390, 393.

It should be noted that the pleadings in the Clinton County case asked for expenses only through October of 1985, and that at the trial held in September of 1986 the court allowed Woll to introduce evidence through April of 1986. In the Clinton County case Woll did not raise the issue of expenses for the months in question in its original or amended complaints, nor were expenses for those months a part of the proof at trial. Certainly, then, Woll would not be litigating the issue twice. As a general proposition of law the evidence must correspond to the pleadings. “A party cannot be afforded relief despite the presence of evidence supporting such relief, absent corresponding pleadings.” Tembrina v. Simos (1991), 208 Ill. App. 3d 652, 656, 567 N.E.2d 536, 539, appeal denied (1991), 139 Ill. 2d 605, 575 N.E.2d 924; see also Bartsch v. Gordon N. Plumb, Inc. (1985), 138 Ill. App. 3d 188, 485 N.E.2d 1105.

“ ‘A judgment must represent the ultimate and fixed precise determination of the judicial proceeding in which it is entered, and in substance it must show distinctly, and not inferentially, that the matters in the record have been finally disposed of in favor of one of the litigants or that the rights of the parties in litigation have been finally adjudicated.’ ” (Pertolanitz v. Chicago Transit Authority (1963), 44 Ill. App. 2d 256, 266, 194 N.E.2d 501, 505, quoting 23 Ill. L. & Prac. Judgments §21 (1956).)

As was stated in In re Marriage of Adams (1981), 92 Ill. App. 3d 797, 805-06, 416 N.E.2d 316, 323,

“It is fundamental that a judgment order must be supported by the allegations in the complaint as well as by the evidence. (Larson v. City of Loves Park (1964), 48 Ill. App. 2d 191, 198 N.E.2d 525.) Affirmative relief cannot be properly granted without a pleading requesting it. Tison & Hall Concrete Products Co., Inc. v. A.E. Asher, Inc. (1967), 86 Ill. App. 2d 34, 229 N.E.2d 137.
Because the issue of which of the parties would be allowed to claim the two minor children as tax exemptions was not raised in any of the pleadings, it was error for the trial court to rule on the issue.”

In the instant case the trial judge cited People v. Brown (1982), 92 Ill. 2d 248, 442 N.E.2d 136, in which the court observed that a guiding principle in statutory construction is to ascribe to language its plain and ordinary meaning. Judge Keenan said essentially that the meaning of the trial court in Clinton County was obvious. We disagree.

The purpose of the evidentiary hearing on January 9, 1987, was to complete the evidentiary hearing of September 1986. The order of December 12, 1986, set forth those matters to be heard, including, in section B, subsection c, “[t]he amount of monthly expenses *** claimed by Woll or the Corporation, from July, 1983 to date as to the Family leases.” (Emphasis added.) As we have indicated, immediately prior to the hearing, a discussion was held by counsel and the court concerning the evidence to be heard. The attorney for Woll stated that he had misunderstood the order and was not prepared to offer evidence subsequent to April 1986. When the court asked him if he was prepared to present such evidence through the date of trial in September of 1986, counsel responded that he was not. When the court asked if he was prepared to present such evidence through April, counsel responded in the affirmative and stated that there was further pending litigation covering that later period. The court said, “All right,” and the trial proceeded.

It appears that the trial court’s decision in the instant case is sustained only by the words “to date” in Judge Eberspacher’s order of December 12, 1986. The trial court selected a date, December 31, 1986, and found that it was obvious the trial court intended that date. We do not believe that such an intention is obvious. One might infer that the trial court intended this date, but the judgment must show distinctly and not inferentially that the rights of the parties have been determined as of a particular date.

One can infer equally as readily from the discussion between the court and counsel that the court was willing to permit counsel to produce evidence only through April of 1986. Further, the Clinton County trial court did not deny the claim from April through December. The court in its judgment of January 27, 1987, could have been clear as to the time period, but it was not. A clear wording of the judgment of January 27, 1987, would have given the parties the opportunity to appeal the decision. The mere fact that both sides now have good arguments as to the meaning of the judgment indicates that it was unclear. Because the meaning of this imprecise judgment could be determined only inferentially, res judicata has not been established as a bar against the prosecution of the claim for expenses from April through December of 1986. We know that the court wanted to have evidence presented as close to the date of hearing as possible. Beyond that the court’s intent is unclear. To bar a claim, not even sought in the pleadings, based upon the judgment of January 1987 would be highly unfair. It was stipulated that those bills and the amounts thereof from April through December were not paid. If the trial court had meant that the expenses subsequent to April were disallowed, all it had to do was to say so. To be valid, a judgment must show distinctly, not inferentially, that the matters of record have been disposed of. Korogluyan v. Chicago Title & Trust Co. (1991), 213 Ill. App. 3d 622, 572 N.E.2d 1154.

In this court’s opinion, the trial court’s judgment of January 17, 1987, did not include expenses for the months of April through December 1986. Therefore, the doctrine of res judicata does not apply here.

Res judicata is a judicial doctrine designed to protect litigants from the burden of retrying an identical cause of action or issue with the same party or privy and to enhance judicial economy by prohibiting repetitive litigation; res judicata concludes all matters which were or might have been determined and requires identity of parties, subject matter, and cause of action. (Cranwill v. Donahue (1981), 99 Ill. App. 3d 968, 426 N.E.2d 337.) In the instant case, although the trial court tried to determine expenses to a late date, no pleadings asked for those expenses, no evidence was heard as to those expenses, and no reference to the expenses of April through December is discernible in the judgment, and it appears that the trial court acquiesced in the foregoing of evidence for the months here at issue. The judgment was equivocal and cannot bar a later attempt to obtain those same expenses, sought in a subsequent lawsuit. In the judgment of January 26, 1987, the trial court found in favor of the plaintiff in the exact amount prayed for and shown by the evidence.

The trial court of Wabash County is reversed, and the cause is remanded for entry of judgment by the trial court in favor of Woll on his motion for summary judgment pursuant to the stipulation entered into by and between the parties.

Reversed and remanded.

GOLDENHERSH, P.J., and CHAPMAN, J., concur.


author: JUSTICE CHAPMAN

text:
    SOUTHWESTERN ILLINOIS DEVELOPMENT AUTHORITY, Plaintiff-Appellee, v. CHARLES VOLLMAN, d/b/a Vollman Advertising, Defendant-Appellant.
    Fifth District
    No. 5—91—0598
    Opinion filed October 7, 1992.
    Harry J. Sterling, of Harry J. Sterling, P.C., of Fairview Heights, for appellant.
    Brian J. Gold and Julie Marie Oik, both of Sidley & Austin, of Chicago, and Edwards’ Law Offices, of East St. Louis (Benjamin F. Edwards, of counsel), for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This appeal involves two eminent domain quick-take cases from the circuit court of St. Clair County. It is an interlocutory appeal pursuant to Supreme Court Rule 307(a)(7) (134 Ill. 2d R. 307(a)(7) and section 7 — 104(b) of the Eminent Domain Act (Ill. Rev. Stat. 1991, ch. 110, par. 7 — 104(b)). Defendant Charles Vollman, d/b/a Vollman Advertising (Vollman), appeals from the circuit court’s denial of his motions to set aside and its implicit denial of his traverse and motions to dismiss. These motions attack all the findings in the circuit court’s July 18, 1991, orders vesting title and setting preliminary just compensation. In addition, Vollman contends that quick-take sections 7 — 103 to 7 — 106 of the Eminent Domain Act (Ill. Rev. Stat. 1991, ch. 110, par. 7 — 103 through 7 — 106) are unconstitutional. We affirm in part and dismiss in part.

The two eminent domain proceedings at issue involve separate parcels of real estate, but the records on appeal are identical in all relevant respects. The following description of facts applies to both cases.

On June 20, 1991, the Southwestern Illinois Development Authority (SWIDA) filed complaints for condemnation of the two parcels of Vollman real estate. SWIDA sought the property in conjunction with its role in the development and improvement of the Metro-Link Light Rail System in St. Clair County. The complaints sought to exercise the right of eminent domain over the two parcels of real estate and requested that just compensation be ascertained. The summons was served on June 26, 1991.

On July 9, 1991, SWIDA filed motions for immediate vesting of title. The motions requested a hearing date so that plaintiff could be vested immediately with the fee simple title and a temporary construction easement. The motion was set for a hearing on July 18, 1991. Notice of the motions and the hearing date were sent to Vollman July 11, 1991.

On July 18, 1991, the circuit court entered an order setting a value for temporary just compensation in each case. The orders provided that: the plaintiff had authority to exercise the right of eminent domain; the properties were subject to the exercise of such right; the right was not being improperly exercised; a reasonable necessity for the taking existed; and the temporary just compensation for the taking of the fee simple and the temporary easement was $450 in one case and $2,750 in the other case. Also on July 18, 1991, the circuit court entered orders granting plaintiff’s motions and vesting the fee simple titles and temporary easements in plaintiff.

On July 23, 19.91, Vollman filed, in each case, a motion to set aside and a traverse and motion to dismiss. The traverse and motions to dismiss alleged, inter alia, that the two parcels were not properly the subject of eminent domain proceedings and that the plaintiff lacked the authority to exercise the power of eminent domain. The motions to set aside also alleged constitutional violations based on a claim that the defendant had not been given proper notice or an opportunity for discovery prior to the July 18, 1991, orders.

On August 7, 1991, the circuit court denied defendant’s motions to set aside. On August 16, 1991, defendant filed notices of appeal “from the order setting value for temporary just compensation entered July 18, 1991, and the denial of the motion to set aside entered August 7, 1991.”

Defendant’s main attack is on the constitutionality of the Eminent Domain Act sections 7 — 103 to 7 — 106. First, defendant argues that the notice required by section 7 — 104(a) is not meaningful notice and that it deprives the landowner of the opportunity to adequately challenge the condemning authority in the early stages of the proceeding. Second, defendant contends that sections 7 — 105 and 7 — 106 combine to unconstitutionally limit defendant’s right to challenge, on appeal, the plaintiff’s condemnation authority. Section 7 — 105 allows title to be vested in the condemning authority upon deposit of preliminary just compensation funds with the county treasurer. Section 7 — 106 provides that these funds may be withdrawn only if defendant takes no appeal or after any appeal has been resolved in favor of the plaintiff.

These arguments are improperly raised in this interlocutory appeal. A review of the governing statutes is instructive.

Supreme Court Rule 307(a)(7) (134 Ill. 2d R. 307(a)(7)) provides, in relevant part, as follows:

“(a) *** An appeal may be taken to the Appellate Court from an interlocutory order of court:
(7) determining issues raised in proceedings to exercise the right of eminent domain under section 7 — 104 of the Code of Civil Procedure, but the procedure for appeal and stay shall be as provided in that section.” (Emphasis added.) 134 Ill. 2d R. 307(a)(7).

Supreme Court Rule 307 gives a defendant a right to an interlocutory appeal in an eminent domain proceeding; it specifically refers to section 7 — 104 (Ill. Rev. Stat. 1991, ch. 110, par. 7 — 104) for the procedure governing such an appeal.

Section 7 — 104 of the Eminent Domain Act provides as follows:

“§7 — 104. Preliminary finding of compensation, (a) The court shall fix a date, not less than 5 days after the filing of such motion, for the hearing thereon, and shall require due notice to be given to each party to the proceeding whose interests would be affected by the taking requested, except that any party who has been or is being served by publication and who has not entered his or her appearance in the proceeding need not be given notice unless the court so requires, in its discretion and in the interests of justice.
(b) At the hearing, if the court has not previously, in the same proceeding, determined that the plaintiff has authority to exercise the right of eminent domain, that the property sought to be taken is subject to the exercise of such right, and that such right is not being improperly exercised in the particular proceeding, then the court shall first hear and determine such matters. The court’s order thereon is appeala-ble, and an appeal may be taken therefrom by either party within 30 days after the entry of such order, but not thereafter unless the court, on good cause shown, extends the time for taking such appeal. However, no appeal shall stay the further proceedings herein prescribed unless the appeal is taken by the plaintiff, or unless on [sic] order staying such further proceedings is entered either by the trial court or by the court to which such appeal is taken.
(c) If the foregoing matters are determined in favor of the plaintiff and further proceedings are not stayed, or if further proceedings are stayed and the appeal results in a determination in favor of the plaintiff, then the court shall hear the issues raised by the plaintiff’s motion for taking. If the court finds that reasonable necessity exists for taking the property in the manner requested in the motion, the court then shall hear such evidence as it may consider necessary and proper for a preliminary finding of just compensation; and, in its discretion, the court may appoint 3 competent and disinterested appraisers as agents of the court to evaluate the property to which the motion relates and to report their conclusions to the court; and their fees shall be paid by the plaintiff. The court shall then make a preliminary finding of the amount constituting just compensation.
(d) Such preliminary finding of just compensation, and any deposit made or security provided pursuant thereto, shall not be evidence in the further proceedings to ascertain finally the just compensation to be paid, and shall not be disclosed in any manner to a jury impaneled in such proceedings; and if appraisers have been appointed as herein authorized, their report shall not be evidence in such further proceedings, but the appraisers may be called as witnesses by the parties to the proceedings.” Ill. Rev. Stat. 1991, ch. 110, par. 7 — 104.

Subsection (a) of this section provides for a short hearing date in a quick-take proceeding and notice to the defendant. Subsection (b) provides that three issues should be considered first: (1) whether plaintiff has the authority to exercise the right of eminent domain; (2) whether the property is subject to the exercise of the right; and (3) whether the right is not being improperly exercised. Subsection Ob) then states: “The court’s order thereon is appealable ***.” This language.limits the appeal authorized by section 7 — 104 to the three issues mentioned in subsection (b). Only later, in subsection (c), does the statute describe the procedure for hearing on the motion for taking and the issues of reasonable necessity for the taking and preliminary just compensation. It follows that only the three issues in subsection (b) are appealable on an interlocutory basis under this statutory scheme. All other issues, including the issues of compensation, necessity and constitutionality are appealable at the conclusion of the eminent domain proceeding.

Various decisions support this conclusion. Department of Public Works & Buildings v. Dust (1960), 19 Ill. 2d 217, 166 N.E.2d 36, held that although the circuit court’s order included the issues of necessity and preliminary just compensation, only the issues in subsection (b) were final and appealable interlocutorily. Dust, 19 Ill. 2d at 220, 166 N.E.2d at 39 (interpreting predecessor to section 2.2(b) (Ill. Rev. Stat. 1957, ch. 47, par. 2.2(b)), repealed but recodified as part of Code of Civil Procedure by Pub. Act 82 — 280, art. XlX-b, §19B — 101, eff. July 1, 1982 (now see Ill. Rev. Stat. 1991, ch. 110, par. 7 — 104(b))); accord City of Chicago v. Chicago Title & Trust Co. (1990), 197 Ill. App. 3d 1062, 557 N.E.2d 311 (dicta: section 7-104(b) permits an appeal, in conjunction with a preliminary finding of just compensation, from an order pertaining to the plaintiff’s authority to exercise the right of eminent domain); Department of Public Works & Buildings v. Association of Franciscan Fathers (1972), 3 Ill. App. 3d 503, 278 N.E.2d 111 (appeal pursuant to Supreme Court Rule 307(a)(7) limited to the three issues of subsection (b)); Department of Public Works & Buildings v. Greenlee (1965), 63 Ill. App. 2d 425, 211 N.E.2d 771.

These cases, and the statutes they interpret, make it clear that defendant’s interlocutory appeal is limited to the three issues in section 7 — 104(b). Again, these issues are: (1) whether the plaintiff has the authority to exercise the right of eminent domain; (2) whether the property taken is subject to the exercise of such right; and (3) whether the right is being properly exercised in this proceeding.

The scope of defendant’s appeal is plainly broader than that permitted by Supreme Court Rule 307(a)(7) and section 7 — 104(b). This court, on this appeal, has no jurisdiction to consider defendant’s argument that quick-take sections 7 — 103 and 7 — 106 are unconstitutional. (Department of Public Works & Buildings v. Dust (1960), 19 Ill. 2d 217, 166 N.E.2d 36; Department of Public Works & Buildings v. Association of Franciscan Fathers (1972), 3 Ill. App. 3d 503, 278 N.E.2d 111.) An appeal under Rule 307 does not open the door to a general review of the circuit court proceedings up to the date of the order that is appealed. (Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 405 N.E.2d 1316.) Therefore, defendant’s appeal attacking the constitutionality of quick-take sections 7 — 103 to 7 — 106 must be dismissed. (Steel City Bank v. Village of Orland Hills (1991), 224 Ill. App. 3d 412, 586 N.E.2d 625 (where the court lacks jurisdiction, the appeal must be dismissed); Almon v. American Carloading Corp. (1942), 380 Ill. 524, 44 N.E.2d 592.) This dismissal, however, is a determination only that this court lacks jurisdiction to entertain the appeal of those issues at this time. It is not an adjudication of the substantive issues involved. (Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105, 251 N.E.2d 242.) Defendant may raise these constitutional challenges at the conclusion of the litigation.

Defendant has also, at least technically, perfected his appeal on the issues of: (1) whether the plaintiff has the authority to exercise the right of eminent domain; (2) whether the property taken is subject to the exercise of such right; and (3) whether the right is being properly exercised in this proceeding. This appeal is final as to these three preliminary issues. (Department of Public Works & Buildings v. Greenlee (1965), 63 Ill. App. 2d 425, 430, 211 N.E.2d 771, 774.) However, defendant’s bare assertion that this appeal includes the issues properly appealable under Supreme Court Rule 307(a)(7) and section 7 — 104(b) without the support of authority or argument amounts to a waiver of those issues. (Village of Roxana v. Costanzo (1968), 41 Ill. 2d 423, 243 N.E.2d 242; Stack v. Sears, Roebuck & Co. (1981), 102 Ill. App. 3d 397, 429 N.E.2d 1242.) A reviewing court is entitled to have the issues clearly defined and presented with relevant authority cited. It may deem waived issues which are not sufficiently or properly presented. Jenkins v. Wu (1984), 102 Ill. 2d 468, 468 N.E.2d 1162; Pecora v. Szabo (1982), 109 Ill. App. 3d 824, 441 N.E.2d 360.

The defendant, in response to a show-cause order, contended that the notices of appeal did include the three issues properly appealable under subsection (b). Yet, in his brief, defendant cited no authority and made no argument relating to the section 7 — 104(b) issues. Defendant did not list a subsection (b) issue in his “Points and Authorities” section of his brief. Instead, defendant’s four issues presented for review ask simply whether the provisions of sections 7 — 103 to 7 — 106 are constitutional as applied in this case. Defendant does not clearly define how these constitutional arguments impact the three preliminary issues interlocutorily appealable under subsection (b). Points not argued are waived. (134 Ill. 2d R. 341(e)(7).) Accordingly, defendants have waived the three section 7 — 104(b) issues which were properly before this court on this interlocutory appeal.

We affirm the circuit court’s denial of defendant’s motions to set aside, insofar as the motions challenged the preliminary issues in section 7 — 104(b). This appeal is final as to those three preliminary issues. We dismiss part of defendant’s appeal for want of jurisdiction, insofar as it challenges the constitutionality of sections 7— 103 to 7 — 106 of the Eminent Domain Act. These issues may be raised at the conclusion of the litigation.

Affirmed in part; dismissed in part.

H. LEWIS and W.A. LEWIS, JJ., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. NATHANIEL HAWKINS, Defendant-Appellee.
    Fifth District
    No. 5—91—0842
    Opinion filed October 7, 1992.
    William R. Haine, State’s Attorney, of Edwardsville (Norbert J. Goet-ten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Stanley P. Stasiulis, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

The People of the State of Illinois appeal from an order of the circuit court of Madison County, entered November 18, 1991, imposing a sanction pursuant to Supreme Court Rule 415(g)(i) (134 Ill. 2d R. 415(g)(i)), for the State’s failure to comply earlier with discovery. The sanction ordered the exclusion of certain evidence, including the confession of defendant, Nathaniel Hawkins.

On April 26, 1991, defendant, along with two codefendants, was charged with the offense of robbery in that, on April 17, 1991, he took two pizzas from Eobert Lytle by the use of force. Defendant was arrested on October 1, 1991, and his bail was set at $30,000. On October 4, 1991, defendant filed his motion for discovery before trial requesting, among other things, all written or recorded statements and the substance of any oral statements made by the defendant and a list of witnesses to the making of such statements. Defendant also filed a written demand for speedy trial.

On October 11, 1991, defendant was arraigned. He waived his right to a preliminary hearing and entered a plea of not guilty. The court entered a discovery order granting the State 10 days in which to comply.

The cause came on for pretrial conference on November 18, 1991. The State informed the court that it had that date filed some supplementary discovery that had not earlier been tendered to the defendant. The prosecutor explained that he had not been aware of the materials until recently when he spoke with the investigating police agency. The prosecutor indicated that, other than a statement of the defendant contained in the supplemental discovery materials, the supplemental discovery was cumulative to materials already disclosed to the defendant. The State indicated that it was ready to proceed to trial with this discovery, or in the alternative, if the court deemed it just, the State requested a continuance to allow defendant to review and respond to the supplemental discovery. The State had not sought any previous continuances, and defendant had only been in custody since October 1, 1991. Defendant objected to a continuance and asked that the case proceed to trial with the exclusion from evidence of the supplemental discovery materials, including the confession of defendant.

It is apparent from the transcripts of the hearing held on November 18, 1991, and a subsequent hearing held on November 19, 1991, that the initial discovery disclosed by the State consisted of 28 pages and did not contain any statements of the defendant. The supplemental discovery consisted of 104 pages and included a confession made by the defendant.

The court denied the State’s motion for a continuance and ordered the cause set for trial the next day, November 19, 1991, with all supplemental discovery to be excluded from evidence. On November 19, 1991, the State made an oral motion for reconsideration. The court pointed out that the State had announced ready for trial on October 28, 1991, and the cause had been set for jury trial on November 18, 1991, by agreement of the parties. The court denied the State’s motion for reconsideration. The State informed the court that it was filing a notice of appeal and did so on November 19, 1991. The State’s certificate of substantial impairment was filed in this court on January 17,1992.

Supreme Court Rule 415(g) provides that:

“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.” (134 Ill. 2d R. 415(g)(i)-)

The State does not contend on appeal that the court erred in finding that it had failed to comply with an applicable discovery rule or order, or in imposing a sanction for that failure to comply. The State does argue, however, that the court erred in imposing the harsh sanction of excluding from evidence the discovery materials, including defendant’s confession, when the preferred sanctions of a recess or a continuance would have been effective in protecting the defendant from surprise and prejudice. We agree with the State that exclusion of the evidence was too harsh a sanction and that the State’s motion for a continuance should have been granted.

The goal of discovery is to eliminate surprise and unfairness and afford opportunity to investigate. (People v. Nelson (1980), 92 Ill. App. 3d 35, 44, 415 N.E.2d 688, 696.) Sanctions are designed to accomplish the goal of discovery (People v. Rayford (1976), 43 Ill. App. 3d 283, 286, 356 N.E.2d 1274, 1277), that is to compel compliance rather than to punish. (People v. Stuckey (1979), 78 Ill. App. 3d 1085, 1090, 398 N.E.2d 97, 102.) For this reason, exclusion of evidence is not favored as a sanction as it does not contribute to the goal of truth seeking. (Stuckey, 78 Ill. App. 3d at 1090, 398 N.E.2d at 102.) The preferred sanction is a recess or continuance if the granting thereof would be effective to protect the defendant from surprise or prejudice (People v. Aguilar (1991), 218 Ill. App. 3d 1, 9-10, 578 N.E.2d 109, 115), and exclusion of evidence is a last resort, demanded only where a recess or a continuance would be ineffective. Nelson, 92 Ill. App. 3d at 45, 415 N.E.2d at 696.

The correct sanction to be applied is left to the trial court’s discretion, and the judgment of the trial judge is given great weight. (People v. Morgan (1986), 112 Ill. 2d 111, 135, 492 N.E.2d 1303, 1312.) However, where the trial judge abuses that discretion, it may constitute reversible error. (Stuckey, 78 Ill. App. 3d at 1091, 398 N.E.2d at 102.) Such is the case here.

As the prosecutor pointed out to the trial judge, the defendant had been arrested on October 1, 1991, and had been in custody only 48 days. The State had not sought any continuances of the matter and had been trying to negotiate some plea agreement with the defendant. While not dispositive, we think that whether the State acted in bad faith, or willfully failed to disclose discoverable materials, is a factor to be considered by us. Here, there is no evidence that the State acted in bad faith in failing to earlier disclose the supplemental materials or that it intentionally or knowingly held those materials back. While we acknowledge that it is the duty of the State to see that there is a proper flow of information between the various branches and personnel of its law enforcement agencies and its legal officers (People v. Miles (1980), 82 Ill. App. 3d 922, 928, 403 N.E.2d 587, 592), we think the State’s lack of willfulness in failing to disclose mitigates against the harsh sanction of exclusion.

Furthermore, the evidence excluded included the confession of defendant, evidence often recognized as of convincing character and as the highest kind of evidence known to the law. (People v. Husar (1974), 22 Ill. App. 3d 758, 767, 318 N.E.2d 24, 32; People v. Green (1959), 17 Ill. 2d 35, 41, 160 N.E.2d 814, 818.) Defendant argues that, because the confession itself is not part of the record on appeal, the State has failed to show any prejudice as a result of its exclusion. We think that, given the nature of a confession, prejudice to the prosecution is a reasonable inference from its exclusion.

A continuance in the instant case would have been effective in eliminating any surprise and prejudice to defendant. Defendant had not been in custody an inordinate amount of time. His trial had not yet commenced, and he still would have had the opportunity to fashion his defense with the benefit of the supplemental discovery materials. (Cf. People v. Aguilar (1991), 218 Ill. App. 3d 1, 578 N.E.2d 109.) Defendant would have had time to interview additional witnesses if necessary and engage in additional investigation. If appropriate, defendant would have had the opportunity to file a motion to suppress his confession. We fail to see what prejudice defendant would have suffered as a result of a short continuance.

On the other hand, the exclusion of evidence including defendant’s confession did not promote the fact-finding process or aid in the search for truth, both goals of the discovery process. (People v. Rayford (1976), 43 Ill. App. 3d 283, 286, 356 N.E.2d 1274, 1277; People v. Goodman (1977), 55 Ill. App. 3d 294, 296, 371 N.E.2d 168, 169.) In People v. Endress (1969), 106 Ill. App. 2d 217, 223, 245 N.E.2d 26, 29, while recognizing that suppressing nondisclosed yet discoverable items of evidence may be an effective method of compelling compliance with the discovery, we pointed out that an order suppressing evidence as a sanction has the effect of decreasing the equality necessary for a fair trial. We think in the instant case the granting of a continuance would have been just as effective a method of compelling compliance with discovery without having had the effect of decreasing the equality necessary for a fair trial.

Because we find that the trial court abused its discretion in imposing the harsh sanction of exclusion of evidence for the State’s failure to timely comply with discovery where the preferred sanction of a continuance would have been effective in protecting the defendant from surprise and prejudice, we reverse the order of the trial court of November 18, 1991, which imposed the sanction and remand this cause to the circuit court of Madison County for further proceedings not inconsistent with this opinion.

Reversed and remanded.

CHAPMAN and W.A. LEWIS, JJ., concur.