author: JUSTICE DUNN

text:
    RUSSELL VORTANZ, Plaintiff-Appellant, v. ELMHURST MEMORIAL HOSPITAL et al., Defendants-Appellees.
    Second District
    No. 2—88—0148
    Opinion filed February 3, 1989.

      Mary T. Fitzmaurice, of Dombrowski & Sorensen, of Chicago (Robert A. Habib, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Wheaton (Bruce T. Terlep, of counsel), for appellee George Nachich.

      Gerald Haberkorn, Stephen R. Swofford, and Daniel M. Purdom, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee Elmhurst Memorial Hospital.
    Adrianna K. Liber, of O’Reilly, Cunningham, Norton & Mancini, of Wheaton (Larry A. Mancini, of counsel), for appellee Carl Dinello.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Russell Vortanz, appeals from the denial of a motion to vacate an order dismissing his complaint with prejudice as a sanction pursuant to Supreme Court Rule 219(c) (107 111. 2d R. 219(c)) because of his failure to produce an expert witness for deposition on the date the trial judge had directed the deposition to proceed. Plaintiff contends on appeal that the trial court should have vacated the dismissal order for the following reasons: (1) the trial court did not have any authority pursuant to Rule 219(c) to dismiss the case on its own motion; (2) plaintiff had no notice that a motion to dismiss would be presented to the trial court on the date in question; (3) plaintiff’s actions did not exhibit a deliberate, contumacious or unwarranted disregard for the trial court’s authority; and (4) the trial judge’s rulings were influenced by his alleged prejudice against attorneys who practice in Cook County. We reverse and remand.

Plaintiff filed his medical malpractice complaint against defendants, Elmhurst Memorial Hospital, Carl Dinello, and George Nachich, in the circuit court of Cook County on July 10, 1985. After one of the defendants moved for a change of venue, the case was transferred to the circuit court of Du Page County on March 12, 1986. The two individual defendants filed their answers to the complaint shortly after venue was transferred.

At a hearing on November 10, 1986, the trial court ordered that all discovery be completed by April 15, 1987. On April 23, 1987, Dr. Nachich filed a motion to dismiss plaintiff’s complaint pursuant to Supreme Court Rule 219(c), in which he alleged that plaintiff had failed to submit to a deposition, disclose expert witnesses, or comply with outstanding written discovery. The court did not dismiss the complaint at this time, but did direct plaintiff to disclose expert witnesses by June 1 and submit to a deposition by June 9. Defendants were ordered to disclose their expert witnesses by November 1.

Because of plaintiff’s failure to comply with the deadline for disclosure of expert witnesses, defendants filed motions to bar plaintiff from presenting expert testimony. At the June 29, 1987, hearing on these motions, plaintiff disclosed Dr. Bruce Parkas as his expert witness. On August 5, 1987, defendant Elmhurst Memorial sent out a notice of deposition setting Dr. Farkas’ deposition for September 10. The deposition was rescheduled twice by agreement of the parties. On October 26, Elmhurst Memorial presented a motion to the trial court requesting that the November 1 deadline for disclosure of defendants’ expert witnesses be extended because plaintiff’s expert had not yet been deposed, and his deposition was scheduled for November 9. Plaintiff’s attorneys received notice of this motion and hearing but did not attend. The trial judge entered an order directing that the Farkas deposition proceed as scheduled on November 9 and continuing the motion until November 10.

The court held a status hearing on November 2. Plaintiff’s attorneys failed to attend the hearing, which was continued until November 10 along with the pending motion. Plaintiff’s attorneys also failed to attend the November 10 hearing. The attorney for Dr. Dinello informed the court that plaintiff failed to produce his expert witness for the scheduled deposition on November 9. The trial judge later asked what relief had been requested in the pending motion. The following colloquy then occurred:

“MR. MANCINI [Dr. Dinello’s attorney]: At the time we filed our motion we were seeking an extension of time for expert witness [sic]. It’s my position now that pursuant to Rule 219 the Court can, by its own motion, dismiss the case for failure to comply with the order of this Court.
THE COURT: I will do that. There appears to have been more than adequate opportunity for the plaintiff to produce an expert for deposition.”

The trial judge entered a written dismissal order that same day.

On December 10, 1987, within 30 days of the dismissal, plaintiff filed a motion to vacate the November 10 order. The motion stated that plaintiff’s expert could not attend the scheduled November 9 deposition because he could not find another physician to cover his patients. The motion also stated that plaintiff had diligently attempted to produce his expert witness for deposition and that the parties had agreed to continue the deposition until January 25,1988.

Defendants’ attorneys were not present when the motion to vacate was first called on December 21, 1987. The trial judge told plaintiff’s attorney he would vacate the order and set the matter for a status hearing on January 4, 1988. Dr. Dinello’s attorney informed the court later that day that he had not heard the case called and that plaintiff’s motion to vacate was a contested matter. The court then granted defendants leave to file a written response and set a hearing date for the motion.

Dr. Dinello filed a written response to which he attached the affidavits of Larry Mancini, one of his attorneys, and Julie Gregory, the office manager of the law firm which represented him. Mancini’s affidavit stated that he attended the deposition of Dr. James Mígala, one of the plaintiff’s treating physicians, on November 4, 1987. On that date, Mancini had a conversation with Mary Fitzmaurice, one of plaintiff’s attorneys. Mancini advised Fitzmaurice that the court had ordered the deposition of Dr. Farkas to proceed as scheduled on November 9 and had set the case for a further hearing on November 10. The Gregory affidavit stated that sometime prior to November 9, she received a phone call from a representative of Dombrowski and Sorenson, the law office representing plaintiff. Gregory informed the representative of plaintiff’s law firm that her office was prepared to proceed with the deposition on November 9, and that the court had ordered the deposition to go ahead on that date. Gregory did not agree to a continuance during this conversation.

Plaintiff attached the affidavit of Sandra Alwicker, office manager of Dombrowski and Sorensen, to his reply to the response to the motion to vacate. Alwicker’s affidavit stated that she was first advised on November 5, 1987, that the court had ordered the deposition of Dr. Farkas to take place on November 9. She immediately contacted Dr. Farkas’ office and was told that Dr. Farkas could not attend the November 9 deposition. Alwicker then contacted each of the law offices representing defendants, and each agreed to a continued date for the deposition. The affidavit stated further that the two prior continuances of the Farkas deposition were by agreement of the parties.

At the January 4, 1988, hearing on the motion to vacate, the trial judge heard argument from the parties. Plaintiff’s attorney argued that she had no control over Dr. Farkas and that Dr. Farkas was unable to attend the deposition on November 9 because he could not find another physician to cover his patients on that date. Plaintiff’s attorney also stated that she had no notice that defendants would present a motion to dismiss on November 10, 1987. Dr. Dinello’s attorney pointed out that he had told plaintiff’s attorney on November 4 about the November 10 hearing and that plaintiff had failed to comply with other discovery orders of the court. At one point, plaintiff’s attorney stated that she may have misunderstood what Dr. Dinello’s attorney told her on November 4. The trial judge responded as follows:

“Let me tell you something. You know what you misunderstood. You misunderstood that you generally practice in Cook County and you’re in a different zip code out here, okay.
In Cook County if you don’t want to take a dep, hey, continue it to the 12th of never; right. If you don’t want to answer interrogatories, when you get around to it, right, five to seven years; right.”

Shortly thereafter, the trial judge stated that he would thoroughly review the entire case file, and he continued the hearing until January 19. On that date, the trial judge denied the motion to vacate. Plaintiff filed a timely notice of appeal.

Supreme Court Rule 219(c) (107 111. 2d R. 219(c)) states that if a party unreasonably refuses to comply with rules relating to discovery, requests for admission, or pretrial procedure, or fails to comply with an order entered pursuant to those rules, the court may enter sanctions “on motion” including dismissal of the case. Plaintiff asserts that the employment of the phrase “on motion” in the rule means that one of the parties must present a written motion to the trial court before sanctions may be imposed pursuant to Rule 219(c).

Plaintiff implies that a motion must be in writing, but cites no authority in support of this proposition. In Halter v. Schoreck (1966), 69 111. App. 2d 104, 216 N.E.2d 278, the court stated that the primary difference between a petition and a motion is that a petition is always in writing while a motion is usually in writing but is sometimes made orally. (.Halter, 69 111. App. 2d at 111, 216 N.E.2d at 281.) Black’s Law Dictionary defines the word “motion” as a “fwjritten or oral application to court for ruling or order” made before, during, or after a trial. (Emphasis added.) (Black’s Law Dictionary 913 (5th ed. 1979).) The above authorities indicate that motions may be made in writing or orally.

We do not believe it is necessary to decide whether, as plaintiff asserts, a motion by one of the parties is a prerequisite to the imposition of sanctions under Rule 219(c), or whether trial courts may impose such sanctions sua sponte. Dr. Dinello’s attorney clearly requested at the November 10 hearing that the trial court dismiss plaintiff’s complaint, even though he suggested that the court do so on its own motion. Dr. Dinello’s attorney thus made an oral application to the court for a dismissal order, which would constitute a motion under the definition we have previously cited. Since the trial court did not act on its own motion, we will not decide whether it had the authority to do so under Rule 219(c).

We agree, however, with plaintiff’s contention that the dismissal order was void because plaintiff had no notice that a motion to dismiss pursuant to Rule 219(c) would be presented to the trial court. In Maras v. Bertholdt (1984), 126 Ill. App. 3d 876, 467 N.E.2d 599, the trial court orally granted a motion to dismiss one count of plaintiff’s complaint. The written order granting the motion included language rendering the order appealable pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). This court stated that adding the Rule 304(a) language was a substantive change in the trial judge’s oral order which amounted to a new order. (Maras, 126 Ill. App. 3d at 881, 467 N.E.2d at 603.) This court held that before a trial court enters a new order, a party must give notice to other parties that a motion will be presented and that, without such notice, the order is void. 126 Ill. App. 3d at 881, 467 N.E.2d at 603.

Here, as in Maras, plaintiff received no notice that a motion would be presented seeking the relief granted in the trial court’s order. Plaintiff only had notice that defendants would be seeking an extension of time in which to disclose the identities of their expert witnesses at the October 26 and November 10, 1987, hearings. Under our holding in Maras, the trial court’s dismissal order was void (see also Wilson v. Moore (1973), 13 Ill. App. 3d 632, 633, 301 N.E.2d 39, 40 (order entered on motion without notice is void)). Since the November 10, 1987, order dismissing plaintiff’s complaint with prejudice was void, the trial court abused its discretion by denying the motion to vacate that order.

Furthermore, since the striking of pleadings and entry of judgment against a party as a result of the violation of a discovery rule or order is the most severe sanction that a court can impose pursuant to Rule 219(c), it is only appropriate in those instances where the conduct of the offending party shows a deliberate, contumacious, or unwarranted disregard for the court’s authority. (Barnes v. Black & Decker Manufacturing Co. (1984), 135 Ill. App. 3d 700, 708, 481 N.E.2d 1200, 1206.) An order imposing such a sanction should be set aside if the offending party establishes that a legitimate excuse existed for the failure to comply with the discovery rule or order and shows a willingness to comply in the future. Peoples Gas, Light & Coke Co. v. Chicago Black Improvement Association (1986), 148 Ill. App. 3d 1093, 1096, 502 N.E.2d 8, 10; Humboldt-Armitage Corp. v. Illinois Fair Plan Association (1980), 86 Ill. App. 3d 888, 890-91, 408 N.E.2d 307, 309.

At the time the trial judge entered the dismissal order, he knew only that Dr. Farkas had failed to appear for the scheduled November 9 deposition. The judge had no information which could have caused him to conclude that plaintiff or his attorney had deliberately failed to produce Dr. Farkas for the deposition. In connection with the motion to vacate the dismissal order, plaintiff came forth with a legitimate excuse for his failure to comply with the order directing the parties to proceed with the deposition on November 9. Plaintiff’s attorney first learned of this order on November 4, when Larry Mancini mentioned it to Mary Fitzmaurice. The next day, Sandra Alwicker, office manager of the law firm representing plaintiff, telephoned the office of Dr. Farkas. She was advised that it was not possible for Dr. Farkas to attend the deposition on the scheduled date. Alwicker immediately notified the law offices representing each defendant that Dr. Farkas could not attend the scheduled deposition. It further appears from the record that Alwicker sought to set a new date for the deposition by agreement.

Plaintiff established the existence of a legitimate excuse for failing to comply with the order directing the deposition to proceed on November 9 since Dr. Farkas was not under the direct control of plaintiff or his attorneys, and plaintiff’s law firm did attempt to procure the attendance of Dr. Farkas at the deposition. Since the office manager of the law firm representing plaintiff contacted each of the law firms representing defendants on November 5 immediately after discovering that Dr. Farkas would be unable to attend the deposition on November 9 and attempted to reschedule the deposition, plaintiff also established that he was willing to comply with future discovery orders and attempt to produce Dr. Farkas for deposition at a future date. Under these circumstances, the trial court’s denial of the motion to vacate the dismissal order was an abuse of discretion.

Plaintiff’s final contention is that the trial judge’s denial of his motion to vacate the dismissal order resulted from an alleged antipathy toward attorneys who practice in Cook County. The only support for this unwarranted assertion comes from an isolated comment in the record which we have quoted earlier. We would interpret this comment solely as indicating that the trial judge believes that attorneys often get away with discovery abuses in Cook County, but that such abuses will not be tolerated in his courtroom. There is no basis whatsoever in the record for plaintiff’s assertion that the trial judge’s rulings were affected by any prejudice toward Cook County attorneys.

Finally, defendants have attempted in their briefs to resurrect a motion for summary affirmance which was previously denied by this court. The motion asserted that since the only possible issue before the court was whether the trial court abused its discretion in dismissing the case and plaintiff did not explicitly argue or state in his brief that the trial court’s order was an abuse of discretion, this issue has been waived and the dismissal order should be summarily affirmed. Plaintiff has argued, however, that the order was erroneous for several different reasons and has cited authorities in support of those reasons. In effect, plaintiff has merely failed to cite the applicable standard of appellate review. While it would have been better practice for plaintiff to have cited the appropriate standard, we will not summarily affirm the dismissal order because of his failure to do so.

Accordingly, the judgment of the circuit court of Du Page County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

UNVERZAGT, P.J., and INGLIS, J., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    ROBERT LOWE, Plaintiff-Appellant, v. ROCKFORD NEWSPAPER, INC., et al., Defendants-Appellees.
    Second District
    No. 2—88—0201
    Opinion filed February 2, 1989.

      Peter T. Sullivan III, of Sreenan, Cain & Sullivan, P.C., of Rockford, for appellant.
    Thomas D. Luchetti, of Rockford, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Robert Lowe, appeals from the dismissal of his complaint which alleged that he was defamed by defendants, Rockford Newspaper, Inc., and Betsy Burkhard. On appeal, plaintiff contends that the trial court erroneously dismissed his complaint because (1) defendants’ allegedly defamatory statements were not capable of being innocently construed and (2) defendants’ conduct was not privileged under the doctrine of fair report of public proceedings. We reverse.

On October 29, 1986, Rockford Newspaper published the following article written by Betsy Burkhard:

“Would-be repo man
draws blank
***
A Rockford couple’s car was nearly stolen at knifepoint by someone who said he was a local repo man.
Willie St. Junior, 39, and his wife, Joyce, 30, told Rockford police that they were walking to their car in a parking lot at 3485 Brick Drive shortly before 4 p.m. Tuesday when they saw two people who appeared to be trying to steal the car.
When the St. Juniors approached, they told police a man threatened them with a razor. Then, a woman who was with him got into the car.
The man told St. Junior that he was the repossession man for a local auto sales company.
He said he was either going to repossess the car or slash the tires so the car would have to be towed away.
Police arrived and arrested Robert L. Lowe, 19, 1116 16th St., and charged him with aggravated battery.
The woman who was with him was not charged.
Police said they found a razor on the front seat of the car and a wooden club.
The St. Juniors said the weapons belonged to the people who were apparently trying to steal the car.
Lowe told police that he worked for an auto dealership on Broadway and for the Rockford Park District.
He is free on bond.”

Burkhard based her article on a police report which, in the relevant part, stated:

“Willie St. Junior stated that at about the described time, while exiting the above location, he noticed Lowe and Pinkston attempting to take his car. While he approached Lowe, Lowe was said to have drawn a razor knife and threatened him and his wife Joyce.
Willie St. Junior also stated that while he and his wife were being confronted by Lowe, Pinston [sic] was said to have got [sic] into and driven away in St. Junior’s car.
Lowe stated that he was repossessing St. Junior’s car and stated that he was going to slash the tires on St. Junior’s car so it would have to be towed. He also stated that he is employed at Broadway auto sales as a repossessor.
Police then searched the suspect vehicle where a razor knife was found within arms [sic] reach in the center console and a wooden club was located on the rear passenger side floor area with the handle upward and within arms [sic] reach of the drivers [sic] side.”

On October 28, 1987, plaintiff filed a complaint alleging that defendants’ article falsely implied that he was a thief; falsely stated that he nearly stole a car; falsely stated that he was trying to steal a car; falsely stated that he threatened Mr. and Mrs. St. Junior with a razor; and falsely stated that he had been charged with a felony, namely, aggravated battery. Defendants filed a motion to dismiss the complaint which asserted that the article was capable of being innocently construed and, therefore, not actionable as a matter of law. Defendants’ motion further asserted that their article was a fair abridgment of an official record, namely, a police report, and therefore subject to a qualified privilege as a matter of law.

On January 14, 1988, the trial court conducted a hearing on defendants’ motion to dismiss. In granting defendants’ motion, the trial court found that the article was a fair report of information taken from a public record. When asked whether it was granting defendants’ motion solely on the basis of the fair report privilege, the trial court responded that it was granting defendants’ motion on every basis pleaded. On February 3, 1988, a written copy of the trial court’s order was filed, and from that order, plaintiff has filed a timely notice of appeal.

This appeal raises the following two issues: (1) whether defendants’ article, considered in context, may reasonably be interpreted as imputing that plaintiff committed or attempted to commit a theft; and (2) whether defendants’ article was privileged because it was a fair and accurate abridgement of the contents of a police report.

For language to be actionable per se, it must be so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary. (Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, 414; Owen v. Carr (1986), 113 Ill. 2d 273, 277.) Under the common law of this State, four categories of words constitute libel per se: (1) those which impute the commission of a criminal offense; (2) those which impute infection with a loathsome communicable disease that would tend to cause a person to be excluded from society; (3) those which impute the inability to perform or want of integrity in the discharge of duties of office or employment; and (4) those which prejudice a particular party in his profession or trade. (Costello, 125 Ill. 2d at 414; Owen, 113 Ill. 2d at 277.) Words imputing the commission of a crime are libelous per se when the offense is indictable, involves moral turpitude, and is punishable by death or imprisonment rather than by fine. (Owens v. CBS, Inc. (1988), 173 Ill. App. 3d 977, 990.) Generally, words charging the commission of a crime need not meet the same technical requirements which are necessary for an indictment, and words fairly imputing a crime are sufficient. Brown v. Farkas (1986), 158 Ill. App. 3d 772, 778.

Before a statement is judged defamatory as a matter of law, it must first be decided whether the words are susceptible to an innocent construction. (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352.) In Chapski, our supreme court stated:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff.” Chapski, 92 Ill. 2d at 352.

Plaintiff contends that defendants’ article was not capable of a reasonably innocent interpretation because it stated or, at least, implied that he was stealing a car. Specifically, plaintiff draws our attention to the phrases “would-be repo man,” “nearly stolen,” “two people who appeared to be trying to steal the car,” “someone who said he was a local repo man,” and “people who were apparently trying to steal the car.” According to plaintiff, those phrases clearly imply he was attempting to steal a car or was a car thief. Defendants contend that by using the words “nearly,” “appeared,” and “apparently,” a reader of ordinary intelligence and understanding would not conclude that plaintiff was either a thief or charged with theft of a car. Defendants further assert that the use of the phrase “would-be repo man” is an accurate description of plaintiff’s status.

From our review of the article, we find that plaintiff is depicted as a car thief using the guise of an automobile repossessor to accomplish his deeds. In our opinion, the article is not susceptible to a reasonably innocent construction. Instead of using the verbs “to take” or “to repossess,” defendants chose the verb “to steal.” It takes no great leap of logic to conclude that one who steals is a thief. Defendants also failed to qualify the statements in the article by using the word “allegedly” as opposed to the words “apparently,” “nearly,” and “appeared.” Use of the term “allegedly” would have tempered defendants’ article such that a reader would be alerted that the author’s statements were unproved assertions and not proved facts.

Furthermore, by using the phrases “would-be repo man” and “someone who said he was a local repo man,” defendants cast doubt on whether plaintiff’s occupation as an automobile repossessor was legitimate. These statements, taken within the context of the entire article, clearly implied that plaintiff was something other than a legitimate automobile repossessor, namely, a car thief. Therefore, considering the statements in context and giving the words their natural and obvious meanings and implications therefrom, we conclude that defendants’ article is not reasonably capable of being innocently construed.

Having decided that defendants’ article was not capable of a reasonably innocent interpretation, we now address whether the article was privileged under the doctrine of fair report of public proceedings. Plaintiff asserts that defendants’ article failed to fall under the fair report privilege for three reasons: first, the fair report privilege does not extend to police reports; second, the fair report privilege does not extend to the details of his arrest; and third, defendants’ article was not a fair and accurate summary of the police report.

Under the Illinois common law privilege of fair and accurate report of public records, a news entity can restate defamatory statements made about the plaintiff by another person in the context of public records or proceedings. (Berkos v. National Broadcasting Co. (1987), 161 Ill. App. 3d 476, 491; see also Catalano v. Pechous (1980), 83 Ill. 2d 146, 167-68.) For the privilege to apply, the news entity must summarize the defamatory matter in a manner which is fair and accurate. (Berkos, 161 Ill. App. 3d at 491-92.) Hence, to properly invoke the privilege, “it is a necessary predicate that the media’s defamatory statement about the plaintiff be found in the public record or proceeding to which the privilege is sought to be attached; if the defamatory matter does not appear in those public records or proceedings, the privilege of fair and accurate report of public records does not apply to the media’s defamatory statements about the plaintiff.” Berkos, 161 Ill. App. 3d at 492.

In the case at bar, defendants have failed to properly invoke the fair report privilege. A careful reading of the police report describing the events which led to plaintiff’s arrest shows that defendants’ article was not a fair and accurate abridgement of that report. The police report made no references to the word “steal” in detailing plaintiff’s arrest. More importantly, defendants’ article stated that the St. Juniors told police that “they saw two people who appeared to be trying to steal the car,” and “the weapons belong to the people who were apparently trying to steal the car.” It is clear that these statements were not contained in the police report. Because most of the statements which plaintiff claimed were defamatory did not appear in the police report of plaintiff’s arrest, we conclude that the fair report privilege does not apply to defendants’ allegedly defamatory statements about plaintiff. In determining that defendants have improperly invoked the fair report privilege, we need not address the other appellate issues raised by plaintiff. Accordingly, the trial court’s decision which dismissed plaintiff’s complaint is reversed, and the cause is remanded for further proceedings.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

UNVERZAGT, P.J., and DUNN, J. concur.


author: JUSTICE McLAREN

text:
    BROWNING-FERRIS INDUSTRIES OF ILLINOIS, INC., Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    Second District
    No. 2—88—0548
    Opinion filed February 3, 1989.

      Lisa A. Manion, of Mohan, Alewelt & Prillaman, of Springfield (Fred C. Prillaman, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, and Wayne Wiemerslage and E. William Hutton, both of Illinois Environmental Protection Agency, both of Springfield, and Peter Thomas Smith, of Sycamore (Robert Ruiz, Solicitor General, and Michelle D. Jordan, Matthew J. Dunn, and Joseph J. Annunzio, Assistant Attorneys General, of Chicago, of counsel), for respondents.
   JUSTICE McLAREN

delivered the opinion of the court:

Petitioner, Browning-Ferris Industries of Illinois, Inc. (BFI), appeals from an order of respondent, the Pollution Control Board (Board), which affirmed the imposition of modifications by the Environmental Protection Agency (Agency) on BFI’s closure/post-closure plan for a section of a landfill it owns and operates. The appeal is brought pursuant to section 41 of the Environmental Protection Act (the Act) (Ill. Rev. Stat. 1987, ch. 111½, par. 1041), which provides that review of Board decisions shall be afforded directly in the appellate court. BFI claims that the Board erred in its review of the Agency action by failing to require the Agency to carry a proper burden of proof and that the affirmance of the modifications by the Board was contrary to the manifest weight of the evidence. We disagree and affirm.

BFI, which is in the business of solid waste management and disposal, received a permit from the Agency in February 1975 to develop a solid waste disposal site in Davis Junction, Ogle County, to handle general solid wastes. Groundwater existed beneath the site in various sand layers. According to BFI’s application, in order to prevent both infiltration of the fill area by this groundwater and the escape from the fill area of the liquid, known as leachate, which forms and collects at the base of the fill, an impervious cutoff wall was to be constructed to separate the fill from the sand layers. Leachate was to be collected and hauled away for proper treatment.

In October 1976 BFI applied for an amended development permit for the Davis Junction site. The application indicated that the cutoff wall details had been modified to provide a greater degree of protection against movement of liquid into or out of the fill site and proposed that the leachate, rather than being removed, should be managed through containment and natural soil attenuation (leachate renovation as the liquid passes through soil). Containment time, or the time required for leachate to move from the fill to the groundwater below, was calculated by BFI to be in the range of 164 years. The Agency’s calculations, in sharp contrast to those of BFI, showed containment time to be only 55 years. BFI’s estimate of containment time was dependent upon establishment of a specific gradient and maintenance of the liquid at an elevation no higher than 726 feet. If the leachate level went higher the gradient would increase and containment time would decrease. Maintaining the liquid at a 726-foot elevation meant that the leachate could be allowed to accumulate to a depth of no more than 14 feet measured from the floor of the landfill. Finally, BFI proposed modifications of the final cover of the fill in order to reduce the potential for percolation of surface water into the completed site. Provision was made for monitoring the leachate level and removal of the liquid if it rose to a critical level. A supplemental permit was issued on October 28, 1976.

The following December BFI began operating the Davis Junction site, and the principal waste máterials accepted were general municipal refuse. However, pursuant to supplemental permits, BFI also accepted small amounts of hazardous wastes and liquid organic solvent wastes.

In September 1982 BFI was granted another supplemental permit which allowed the removal of 5,000 gallons of leachate per week for disposal on the dry fill at the site. BFI’s application for this permit reaffirmed that the leachate was to be maintained at the mandated elevation of 726 feet, or 14-foot depth, and that any excess would be removed.

Because hazardous wastes were accepted, the Davis Junction site was registered as an “interim status” facility pursuant to the Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C. §6901 et seq. (1976)), and the appropriate Board regulations (35 Ill. Adm. Code 725.101 et seq. (effective May 17, 1982)). In August 1983 BFI was asked to submit an application to allow it to continue Davis Junction as a hazardous waste disposal facility and thus terminate its “interim status.” However, the landfill had stopped accepting hazardous wastes in January 1983, and in January 1984 BFI filed with the Agency a closure/post-closure plan for the site.

In July the Agency approved BFI’s plan but modified it by adding several mandatory requirements. BFI objected to certain of the modifications and appealed to the Board. Following a hearing on February 3, 1988, at which both BFI and the Agency presented evidence, the Board issued an opinion and order affirming the Agency’s modifications to BFI’s closure/post-closure plan. BFI timely filed this appeal.

BFI asserts initially that the Board erred in concluding that the burden of proof at Board hearings is solely on the petitioner. In its opinion the Board discussed, as a preliminary issue, the burden of proof element of permit appeal proceedings and emphatically, and correctly, found that the burden was on BFI. (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1040(a); Environmental Protection Agency v. Pollution Control Board (1983), 118 Ill. App. 3d 772, 780, 455 N.E.2d 188.) The Board observed that in its post-hearing brief BFI initially acknowledged that it bore the burden of proof but subsequently attempted to shift that burden by asserting that the Agency had done nothing to determine whether BFI’s plan was feasible. The Board then noted that the Agency had no obligation to perform tests at the BFI facility and stressed that “BFI is entitled to a favorable decision if, and only if, it has successfully proven that the record before the Agency indicated that BFI’s Closure/Post-Closure Plan, as originally submitted and supplemented *** was sufficient to establish that the Davis Junction landfill would not cause a violation of the Act or Board regulations governing hazardous waste disposal facilities.” The Board did not state, as BFI claims, that “the Agency is not required to justify its actions with regard to the plan.” This language was used by the Board to paraphrase statements made by BFI in its post-hearing brief. Nevertheless, BFI insists that the Board erred in holding that the Agency “need not attempt to meet the applicant’s case.” Our reading of the Board’s opinion, however, nowhere reveals any such holding.

The Board did not even reach the question of the burden upon the Agency at Board hearings, much less state that the Agency need do nothing in order to prevail against a petitioner’s showing. If such were the case, the Agency could never lose! BFI agrees with the Board that BFI had the initial burden of establishing a prima facie case. A close reading of its opinion reveals that the Board concluded, not that the Agency was relieved of all burden, as BFI insists, but that BFI had made neither the requisite prima facie showing nor established the ultimate proof of its claims and that the Agency was not obligated to carry the burden for BFI. Consequently, the Board stopped short of any discussion of what the Agency’s burden might have been if BFI had successfully made its initial case. We note also in this regard that, as will be shown, the evidence produced by BFI did not go completely unchallenged, as BFI implies. The Board did not err in its application of the law controlling the burden of proof at Board hearings.

BFI next challenges the Board’s findings regarding the modifications imposed by the Agency. Upon review of Board actions it is the task of the appellate court to evaluate the evidence in order to determine whether the findings and conclusions of the Board were against the manifest weight of the evidence. (Environmental Protection Agency v. Pollution Control Board (1986), 115 111. 2d 65, 70, 503 N.E.2d 343.) The record of the instant case reflects ample support for the Board’s findings.

Permits are granted by the Agency pursuant to section 39(a) of the Act, which sets forth the requirements for securing a permit as follows:

“When the Board has by regulation required a permit for [a facility such as Davis Junction] it shall be the duty of the Agency to issue such a permit upon proof by the applicant that the facility *** will not cause a violation of this Act or of regulations hereunder.” (Ill. Rev. Stat. 1987, ch. IIIV2, par. 1039(a).)

Section 39(a) also provides for modifications to permits:

“In granting permits the Agency may impose such conditions as may be necessary to accomplish the purposes of this Act, and as are not inconsistent with the regulations promulgated
by the Board hereunder.” (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1039(a).)

Accordingly, keeping in mind the burden of proof discussed above, in order to prevail on its claim BFI needed to show that the modifications imposed by the Agency were not necessary to accomplish the purposes of the Act, or, stated alternatively, BFI had to establish that its plan would not result in any future violation of the Act and the modifications, therefore, were arbitrary and unnecessary. (Alton Packaging Corp. v. Pollution Control Board (1987), 162 Ill. App. 3d 731, 736-37, 516 N.E.2d 275; Environmental Protection Agency, 118 Ill. App. 3d at 780.) The Board found that BFI did not produce sufficient evidence to make the necessary showings in regard to any of the three modifications which constitute the subject matter of this appeal.

BFI first attacks modification paragraph 4, which required BFI to maintain a maximum leachate depth of one foot (elevation 713 feet), rather than the 14-foot depth (elevation 726 feet) originally proposed in its plan. In order to comply with paragraph 4, BFI would have to pump down the leachate already in the fill, an admittedly costly procedure.

BFI agrees with what the Board calls a “narrative standard” for review of the evidence and determination of whether BFI sufficiently showed that the 14-foot leachate depth would not result in violation of the Act. This standard was arrived at after the Board examined and summarized the relevant statutory and regulatory provisions. According to BFI, the standard requires its closure/post-closure plan to “minimize the risk to human health and the environment from the escape of hazardous waste and leachate into the ground or surface waters, and prevent excess accumulation of leachate which would foster the migration of hazardous waste constituents into groundwater in such quantities or concentration that would cause water pollution.” BFI claims that the evidence it presented showed that its plan would meet the standard. We disagree.

BFI focuses on its 1976 and 1982 supplemental development permits along with the calculations and drawings submitted in support of the 1976 permit. Petitioner argues that the Agency’s grant of those permits, which allowed the 14-foot leachate head, was evidence that 14 feet of leachate is environmentally safe. We note initially that BFI asserts that the Board erroneously characterized its reliance on the past permits as an estoppel argument. We need not address this matter, however, because even when the permits are considered evidence on the leachate level issue, they are not persuasive.

Both of the supplemental permits specify that they merely modify the permit initially granted to BFI in 1975. The emphasis of BFI’s leachate management system shifted from removal to containment, which necessitated increased depths of the liquid, when the 1976 permit was granted. The application for the 1976 permit reflects that the soil under the fill was studied to determine its permeability and its ability to renovate the leachate. Containment time was calculated on the basis of these studies. The 1982 permit dealt only with implementation of a leachate collection system, and leachate levels were mentioned in the application only in relation to the proposed collection procedure. No further soil tests, studies, or analyses were presented. Consequently, the basic technological evidence of the ability of the landfill to contain and attenuate the leachate consists of data developed a minimum of approximately eight years before the 1984 closure/post-closure plan was submitted and more than 11 years prior to the Board hearing.

During the span of time between 1975-76, when the fill was being developed, and 1984, when BFI sought to close the subject section of the fill, significant changes were occurring in the understanding of the dangers inherent in hazardous wastes. In 1981 the Illinois General Assembly responded to this understanding by including the following language in an amendment to the legislative declaration regarding the land pollution and refuse disposal provisions of the Act:

“The General Assembly finds:
* * *
(4) that hazardous waste presents, in addition to the problems associated with non-hazardous waste, special dangers to health and requires a greater degree of regulation than does non-hazardous waste ***.” Ill. Rev. Stat. 1987, ch. 1111/2, par. 1020(a)(4).

The awareness of hazardous waste disposal problems, however, was not reflected in the regulations which authorized the permits granted to BFI in 1975, 1976 and 1982. While the pertinent regulations were not made part of the record on appeal, we may properly take judicial notice of them. (Hofmeister v. Department of Registration & Education ex rel. Galvin (1978), 62 Ill. App. 3d 777, 780, 379 N.E.2d 383; Sye v. Wood Dale Fire Protection District No. 1 (1976), 43 Ill. App. 3d 48, 50, 356 N.E.2d 938.) BFI’s permits were based on the Board’s solid waste regulations which were adopted in 1973 (filed with the Secretary of State July 27, 1973, codified at 7 Ill. Reg. 13636, recodified at 35 Ill. Adm. Code 807.101 et seq. (1985)) and which did not distinguish between landfills accepting municipal refuse and those accepting hazardous waste. By the time BFI sought a permit to close Davis Junction, this situation had changed. The Board stated in its opinion, and BFI does not dispute, that “BFI’s first permit which contained conditions implementing the RCRA [Federal] hazardous waste regulatory scheme is the permit now at issue.”

Viewed in the context just described, it is evident that the permits and documentation on which BFI relies show only that, under the state of scientific and technological knowledge prevailing in 1976, a 14-foot depth of leachate at the Davis Junction site was not, in the Agency’s view, likely to result in a violation of the Act. Considering what had been learned in eight years about hazardous wastes and their effect on the environment, the permits do little to show that, as of 1984, 14 feet of leachate in a site which had accepted such wastes and was sought to be closed, thus making access to the liquid significantly more difficult and costly, would not result in a violation of the Act. BFI’s previous permits are of little persuasive value on the leachate level issue.

BFI’s reliance on Central Illinois Public Service Co. v. Pollution Control Board (1988), 165 Ill. App. 3d 354, 518 N.E.2d 1354, for the proposition that its past permits are evidence of the reasonableness of its closure/post-closure plan is misplaced. In Central Illinois the Agency issued a permit with a condition that had not been imposed on several prior permits. The court held that the Agency was bound by its prior policy, as reflected in the past permits, to issue a new permit without the added condition. This holding, however, was reached “in view of the lack of any changed circumstances which would support the Agency’s” decision to change its policy. Here, in contrast to Central Illinois, since BFI’s earlier permits were issued the dangers of hazardous wastes have been more fully recognized, and specific waste disposal regulations have been established. In our view these facts constitute a change from the circumstances which prevailed when BFI received the prior permits. Central Illinois indicates that under these circumstances the Agency is not bound by its prior actions.

BFI also cites as evidence a 1982 groundwater monitoring report which, as admitted by the Agency, shows no adverse impact on the groundwater underlying the site. This evidence is of no more help than the permits and documentation discussed above. While the estimates of the time involved varied from 55 years to 164 years, the parties do not dispute that at some time the leachate will seep through the bottom of the fill and reach the groundwater. The question is whether maintenance of a 14-foot depth of leachate will have a deleterious effect on the groundwater in the future and, if so, whether the effect will constitute a violation of the Act. The 1982 groundwater monitoring report provides no answers to these questions.

Descriptions of the landfill construction and soil characteristics, and the specifications for the final cover of the fill, were offered by BFI as evidence of the site’s potential for containment and low permeability. This evidence suffers from the same weakness as the groundwater monitoring report in that it tells nothing about what the leachate will do or where it will be when it eventually escapes the fill and enters the broader environment. Moreover, inconsistent and/or conflicting testimony was given regarding the current movement of liquid through the landfill. As the Board correctly noted, water entering the fill must either exit the fill or increase the leachate head, and BFI indicated that the leachate head had not exceeded the originally permitted 14-foot depth. BFI’s calculations of the amount infiltrating the fill through the cover varied from time to time and did not always account for all the water entering the cover. The Agency evidence regarding infiltration conflicted significantly with one BFI estimate but paralleled another. The Board’s calculations show that, even when the figures most favorable to BFI were used, a significant amount of leachate migration out of the fill was occurring. However, no evidence was produced to show the composition of the leachate, how it was escaping, where it was going, or what impact it was having. On this record the Board was properly “unwilling to conclude as a matter of law that over 900,000 gallons of leachate per year from a hazardous waste landfill cannot cause pollution.” BFI’s evidence regarding the soundness of its landfill did little to alleviate the Board’s concerns regarding potential pollution or, more specifically, to show that a 14-foot leachate level would not contribute to any future pollution and thus would not at some time result in a violation of the Act.

BFI finally claims to have presented undisputed testimony and evidence to support its position regarding the post-closure leachate level in the landfill. Petitioner cites to the groundwater monitoring report mentioned above and the testimony of an expert, based on that report, that a 14-foot leachate head would not violate the regulations regarding post-closure escape of leachate to the groundwater. As we discussed earlier, in light of the evidence from both parties that at some point in the distant future the leachate will naturally seep into the groundwater, we find little value in a groundwater report prepared in 1982 on a landfill which began operating only in late 1976. We are also unimpressed by the groundwater report since evidence indicated, as shown above, that leachate may presently be leaking out of the fill.

BFI’s argument that its evidence regarding compliance with the closure standards is undisputed misapprehends the nature of that evidence. While it is true that the Agency previously allowed the higher leachate level and that no contamination showed up in the groundwater report, this information, as we have already discussed, was not relevant and did not show that a 14-foot depth of the liquid would not have any adverse effects on the environment or human welfare. Consequently, it is of little significance that the evidence was not disputed.

BFI raises questions concerning the ground for the Agency decision to require it to pump down the landfill. In this regard we find the record somewhat sketchy and emphatically stress the need for caution on the part of the Agency to ensure a sound basis for the imposition of conditions or modifications on permits. However, when an Agency permit modification is appealed to the Board, the Act places the burden of proof at the Board hearing squarely on the petitioner. (Ill. Rev. Stat. 1987, ch. HV-k, par. 1040(a).) That burden is to show that the plan, as proposed by the applicant, will not result in the violation of the Act or that the modification is not necessary. Here, BFI pointed out the historical sufficiency of its landfill but failed to deal with the fact that Davis Junction has accepted hazardous waste and thus calls for a greater degree of caution and assurance of its future safety. BFI’s focus on the containment capability of the fill and the current absence of groundwater contamination was undercut by its failure to resolve questions raised by the ongoing escape of leachate from the fill, as revealed by its own evidence. In our view BFI did not show that the leachate level aspect of its post-closure plan would not result in a violation of the Act or that the modification imposed by the Agency was not necessary. In light of BFI’s failure to establish a ;prima facie case, the Board’s affirmance of the modification imposed by the Agency was not contrary to the manifest weight of the evidence.

The next modification challenged by BFI is contained in paragraph 5(j), which requires quarterly testing of groundwater under the fill for the presence of three organic solvent wastes: methylene chloride; 1,1,1 trichloroethane; and trichloroethylene. Specific testing for these solvents had not been required under a previously approved groundwater monitoring program. BFI asserts that the record does not indicate that these compounds were ever disposed of in the pertinent section of the Davis Junction landfill. However, BFI presents nothing to affirmatively show that they were not accepted at the fill despite evidence, cited by the Agency, that all three were repeatedly permitted for disposal at the site in various quantities and concentrations. BFI submitted no evidence to show either the exact chemical composition of the leachate or the makeup of the wastes placed in the fill which might allow a determination that the solvents were not present. On these facts the Board accurately stated that the record indicates that the solvents “are likely resident in the landfill.”

BFI also claims, and the Agency does not dispute, that there is no direct or explicit basis in the regulations for adding the new testing requirements to BFI’s groundwater monitoring program. Rather, the Agency relies on its authority pursuant to section 39(a) of the Act to impose conditions necessary to accomplish the purposes of the Act. (Ill. Rev. Stat. 1987, eh. 111/21, par. 1039(a).) As noted above in relation to the purposes of the Act, BFI acknowledges an obligation on its part to minimize the risk to human health and the environment from the escape of hazardous waste and leachate into the groundwater. In light of this standard we do not perceive any abuse of statutory authority by the Agency.

The record reveals in an exhibit labeled “IEPA Solvent Waste Disposal Inventory,” dated June 1, 1982, that landfilling of organic solvent wastes had only recently come under scrutiny because of evidence of widespread contamination of groundwater by such wastes. Although BFI plays down the significance of the information, this same inventory, as well as a letter from BFI to the Agency, acknowledged recent evidence that organic solvent wastes might increase the permeability of the soils in which they were contained. The record also shows that BFI was already required to conduct certain tests which would detect the presence of the solvents but, according to one of BFI’s experts, these tests were more general in nature than the specific tests sought by the Agency and probably could not detect the solvents at levels as low as those that could be detected by the specific testing procedures.

From this record we conclude that the solvents (1) probably are in the landfill, (2) pose at the very least a recognizable risk of groundwater contamination, and (3) might not be detectable by the tests currently used by BFI. BFI’s argument that the amount of methylene chloride; 1,1,1 trichloroethane; and trichloroethylene, if any, that was accepted at the landfill is too minute to be a threat to people or their environment is not persuasive. While evidence was presented to show that the total amount of all solvent waste was small compared to the total volume of all wastes disposed of at Davis Junction, as we noted above, no evidence was given to show that the three questionable compounds were not dumped at all or that they made up only a negligible portion of the total solvent waste. Furthermore, in the absence of evidence from BFI to the contrary, it cannot be concluded that the presence of the solvents in the groundwater would pose no threat to the environment or human health merely because they are present in only small amounts. We do not believe BFI made an adequate showing that the more specific testing imposed by modification paragraph 5(j) is not necessary to minimize the risk to human health and the environment from the escape of leachate into the groundwater. Hence, the Board’s order affirming the modification was not contrary to the manifest weight of the evidence.

The final issue raised by BFI is prompted by an unnumbered paragraph which appears after all the numbered modifications in the Agency’s modification letter and evidently applies to the entire closure/post-closure plan. The paragraph states:

“If the Agency determines that implementation of the Closure and Post Closure Plan fails to satisfy requirements of 35 LAC 725.211, the Agéncy reserves the right to amend this Closure and Post Closure Plan.”

BFI argues that the Agency lacks authority to amend a closure/post-closure plan once it has been approved and insists that the Agency’s reservation of a unilateral right to amend violates its due process rights.

The Board approved the provision attacked by BFI on the basis of a regulation which permits the Agency to modify a post-closure plan during or at the end of the post-closure care period, subject to a panoply of due process safeguards. (35 111. Adm. Code 725.218(f)(2) (1985).) With reference to this regulation, we have determined the Board properly found that the Agency was not asserting any extrastatutory authority which did not meet the requirements of due process.

The challenged paragraph of the Agency’s modification letter requires BFI to implement its plan so as to satisfy the closure performance standard for hazardous waste management facilities. This standard must be met by a closure plan as initially submitted to the Agency and is set forth in the Code as follows:

“The [landfill] owner or operator must close his facility in a manner that:
***
(b) Controls, minimizes or eliminates, to the extent necessary to protect human health and the environment, post-closure escape of hazardous waste, hazardous waste constituents, leachate, contaminated rainfall or waste decomposition products to the ground or surface waters or to the atmosphere.” (35 Ill. Adm. Code 725.211 (1985).)

The regulation relied on by the Board provides that a post-closure plan “may be modified during the post-closure care period or at the end of the post-closure care period.” (35 HI. Adm. Code 725.218(f) (1985).) Hence, the regulation becomes applicable after the plan has received initial approval and implementation has begun. Modification at this point can be accomplished as follows:

“The Director may tentatively decide to modify the post-closure plan if he deems it necessary to prevent threats to human health and the environment. He may propose to extend or reduce the post-closure care period based on cause or alter the requirements of the post-closure care period based on cause.” (35 Ill. Adm. Code 725.218(f)(2) (1985).)

As can be seen from its language, the latter regulation allows modification in order to achieve and maintain essentially the same standard as that required by section 725.211 prior to approval.

Since it merely sets forth a standard, section 725.211 does not contain within itself any due process safeguards for the plan review process. However, those protections are provided prior to approval of a plan by other sections of the Code. (35 Ill. Adm. Code 725.212(d) (1985).) When the Agency seeks modification after the period of post-closure care has begun, section 725.218(f)(2) requires that full notice and opportunity to be heard be extended to an owner/operator of a hazardous waste landfill prior to a final decision regarding such modification. Section 725.218(g) provides a right to appeal a post-approval Agency modification. 35 Ill. Adm. Code 725.218(g) (1985).

It is obvious from the regulatory scheme as a whole that the Agency may modify an applicant’s plan, either before or after approval, in order to secure and maintain the Board’s established performance standard. It is also apparent that an applicant must be afforded due process when modifications are imposed, and it does not matter whether modification occurs during the initial approval process or after implementation of the post-closure plan has begun. The Agency proviso challenged here must be viewed in light of this scheme.

While the Agency’s reservation of rights clause, on its face, contains no due process guarantees, it does refer to section 725.211 which, as described, is a standard to be enforced, but only in an atmosphere which protects the petitioner’s due process rights. This reference is persuasive that the Agency did not intend that reservation of its own rights should in any way infringe on BFI’s right to due process. Our observation is reinforced by the clear intent of section 725.218(f)(2) to ensure a petitioner’s due process rights during a post-closure modification procedure by the Agency. We conclude that the Agency has not sought a method of taking unilateral action against BFI and that the reservation of rights clause sent by the Agency to BFI includes, by implication, the same procedural safeguards as are provided to an owner or operator during the post-closure care period by section 725.218(f)(2).

For the foregoing reasons, we affirm the order of the PCB.

Affirmed.

REINHARD and WOODWARD, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
      In re MARRIAGE OF ROBIN SANTA CRUZ, n/k/a Robin Croson, Petitioner-Appellee, and NOEL SANTA CRUZ, Respondent (Judith Rea, n/k/a Judith Wolff, Intervenor-Appellant).
    Second District
    No. 2—88—0169
    Opinion filed February 7, 1989.

      Robinson & Skelnik, of Elgin (Mary Robinson, of counsel), for appellant.
    Bonnie M. Wheaton, of William J. Wylie & Associates, P.C., of Wheaton, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Intervenor, Judith Rea, n/k/a Judith Wolff, appeals from the judgments of the circuit court of Du Page County of February 4, 1988, setting a schedule of unsupervised visitation between intervenor’s daughter and granddaughter and of February 18, 1988, finding her guilty of wilful contempt of court for failing to comply with the visitation order. Intervenor was fined $500 and sentenced to 60 days in jail. The court’s judgment was stayed pending appeal upon intervenor’s posting of a $1,500 cash bond. The issues presented are: (1) whether the contempt judgment must be reversed where the February 4 order allegedly violated had been stayed by intervenor’s timely motion to vacate or reconsider which was filed pursuant to section 2 — 1203 of the Civil Practice Law (111. Rev. Stat. 1985, ch. 110, par. 2 — 1203); (2) whether the contempt judgment must be reversed where the court erred in entering a visitation order after allowing the intervenor’s counsel to withdraw but before intervenor could secure other representation; (3) whether the contempt judgment was criminal in nature and must be reversed because: (a) intervenor was denied her privilege against self-incrimination; (b) the evidence failed to prove wilful violation of the court’s order beyond a reasonable doubt; (c) intervenor was not provided adequate notice; and (d) it was inappropriate to allow the opposing party’s attorney to prosecute the criminal contempt case; and (4) whether intervenor’s motion for change of venue should have been granted. We reverse and remand.

Previously, in In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, intervenor appealed from the circuit court’s judgment finding that she did not have standing under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)) to petition for custody of her granddaughter, Christianne Rea. Christianne is the daughter of plaintiff, Robin Santa Cruz, formerly known as Robin Rea and now known as Robin Croson, and defendant, Noel Santa Cruz, who is not involved in this appeal. We affirmed the judgment of the circuit court finding that intervenor did not have standing to petition for custody of Christianne. Santa Cruz, 172 Ill. App. 3d at 782-88.

While that appeal was pending, however, and concurrent with numerous motions filed in this court, plaintiff petitioned the circuit court for visitation with her then 23-month-old daughter, who had been placed by the circuit court in the temporary custody of intervenor during the pendency of the suit to determine standing. When the circuit court there found intervenor did not have standing, it directed that Christianne be turned over to plaintiff, and Christianne was in plaintiff’s custody between November 6 and November 21, 1987. This court then entered its order staying the circuit court’s order, and Christianne was returned to intervenor’s custody.

The circumstances leading to the instant appeal began when plaintiff filed her petition for visitation in the circuit court on December 22, 1987. At this same time,- plaintiff also had pending in this court a motion seeking, inter alia, visitation with Christianne or remand for a visitation hearing. In light of that fact, the circuit court declined to proceed to a hearing pursuant to section 607 of the Act, which provides for visitation between the child and the noncustodial parent unless such visitation would be an endangerment to the child’s physical, mental, moral or emotional health. (Ill. Rev. Stat. 1987, ch. 40, par. 607(a).) Despite intervenor’s argument that this court’s stay of the circuit court’s order entered in No. 2 — 87—1050 left, intact a July 2, 1987, visitation order which provided for supervised visitation, the court — cognizant of the upcoming Christmas holidays — ruled that plaintiff would have visitation with Christianne for a full week commencing on Christmas day.

On January 4, 1988, this court denied plaintiff’s pending motion which, inter alia, sought visitation or remand for visitation hearing. On January 21, 1988, plaintiff again filed her petition for visitation in the circuit court. The same day, after considering whether it had jurisdiction to proceed in view of this court’s denial of plaintiff’s motion, the court ruled the cause was properly before it. It also ruled that this was not a new proceeding, and it denied intervenor’s oral motion for change of venue. A hearing was set for February 4,1988.

In the interim, on January 29, 1988, intervenor’s counsel served her by certified mail with a notice of motion and motion for leave to withdraw which was also to be heard on February 4. Intervenor received this notice on February 2. The notice advised intervenor:

“TO: JUDITH REA n/k/a WOLFF: Be advised that to insure your proper notification on all matters pertaining to this cause, you should retain other counsel immediately or file with the Clerk of the Court in this cause within fourteen (14) days hereof, your own supplementary appearance, stating therein an address wherein service of notice of this cause may be had upon you. Your failure to secure other counsel or to file your own appearance will result in judgment by default or dismissal of your case.”

Counsel’s motion asked for leave to withdraw, that intervenor be granted time to prepare and file a response to the petition for visitation, that the court continue the hearing on the petition, and that the court allow intervenor a reasonable time to secure substitute counsel.

On February 4, 1988, intervenor did not appear. Counsel advised the court that intervenor indicated that she would not appear at the hearing despite counsel’s advice to her that she do so. Over plaintiff’s objection that the motion was not timely and not in compliance with local rules, the court allowed intervenor’s counsel leave to withdraw. It then entered a visitation order which it stated would be “without prejudice to [intervenor] to retain other counsel and come in and strike a challenge to it if she wishes to do so and set it down for a hearing.” The written order allowing withdrawal provided: “That any order entered regarding visitation is without prejudice to the Intervenor and is by separate order reflecting the Court’s decision after allowing the above stated withdrawl [sic].” The court ordered that plaintiff was to have visitation with Christianne from 9 a.m. to 6:30 p.m. every Tuesday, Thursday, and Saturday, commencing February 9, 1988, with transfer of possession of Christianne to take place at the Wheaton police department.

On February 5, 1988, intervenor filed pro se a “Motion to Reconsider or Vacate Order for Visitation of February 4, 1988,” pursuant to section 2 — 1203 of the Civil Practice Law. She alleged the visitation order was improperly entered because she was not properly notified and was without counsel at the time; that the court erred in entering an order of unsupervised visitation without hearing testimony that would justify lifting the prior supervision requirement; and that the court did not have jurisdiction to enter the visitation order. Intervenor’s notice of motion recited that she did not yet have an attorney and, further, that “It is my understanding according to Section 2— 1203 that by filing of this Motion, the Order for visitation entered on February 4, 1988 by the Honorable Francis W. Faris is AUTOMATICALLY STAYED.”

On February 9, 1988, plaintiff appeared at 1:30 p.m. and presented an emergency petition for rule to show cause alleging that intervenor had failed to produce the child for visitation that morning. Intervenor, who was personally served by plaintiff’s counsel earlier that morning, appeared with an attorney, David Keay. Keay indicated he had been notified while driving home from lunch that day that he had been contacted by intervenor concerning a rule to show cause which had been served on her at noon. He agreed to at least come to court and attempt to “translate” the petition and try to familiarize himself somewhat with the file. Keay asked for a continuance so that he could become familiar with the underlying facts. He suggested that there were arguments the court should entertain before issuing a rule due to the fact the visitation order was entered after intervenor’s attorney had withdrawn.

The court issued a rule returnable in 10 days and asked Keay to impress upon intervenor that the visitation order of February 4 was valid and, notwithstanding intervenor’s section 2 — 1203 motion, “has not been stayed.” Addressing intervenor directly, the court admonished her that if she again chose to ignore its February 4 visitation order, it had the power to put her in jail for up to six months or to fine her up to $1,000.

On the return date, February 18, 1988, intervenor appeared with other counsel, Robert A. McNees. Plaintiff had also served intervenor with a petition for rule to show cause, alleging a second violation of the visitation order on February 11, 1988, and an amended petition for rule to show cause alleging the February 11 violation and a third violation on February 13, 1988. Plaintiff also noted that she had served a notice of motion indicating that intervenor’s motion to reconsider would be presented for ruling at the February 18 hearing.

Intervenor tendered a written motion for continuance of everything called up that day. Intervenor’s counsel, who had been retained just two days earlier, felt he needed time to become familiar with the underlying circumstances. The court denied the motion for continuance.

Following a recess, intervenor moved to vacate the rule to show cause issued on February 9, 1988, on the basis there was a pending motion to reconsider which stayed the visitation order. She argued she could not be found in contempt of court for failing to abide by the visitation order thusly stayed. Plaintiff argued intervenor’s motion did not conform to local rules and it did not note a date upon which the motion would be presented. Plaintiff further argued the motion was “very clearly an effort to circumvent the order of the Court.” Counsel responded that in compliance with local rules, intervenor had scheduled the motion for February 23, 1988, but that she had not yet sent notice of the date to plaintiff due to “all the confusion.”

Addressing the allegations of intervenor’s motion to reconsider, the court stated that intervenor properly had received notice of the February 4 hearing; that it had presided at the previous proceeding in No. 2 — 87—1050 which resulted in the order for supervised visitation and that supervision was not the issue in that proceeding; and finally, that it did have the authority to order visitation. Accordingly, the court found intervenor’s motion to reconsider had no merit.

After denying intervenor’s oral motion to file an amended motion to reconsider, the court also found intervenor’s motion to reconsider was filed in bad faith and only for the purpose of delay. The court summarily dismissed intervenor’s motion to reconsider, and intervenor made an offer of proof. She argued it was reasonable for her to assume that she had at least 14 days’ time to get other counsel as set forth in the notice of motion for leave to withdraw, noting the provisions of Supreme Court Rule 13 allow a party up to 21 days to file a supplementary appearance (107 Ill. 2d R. 13(cX2)).

With respect to the return of the rule issued on February 9, alleging violation of the visitation order on that date, intervenor elected to stand on her oral motion to vacate the rule on the ground she then had pending her motion to reconsider or vacate the visitation order. The court denied the motion. The court also denied intervenor’s oral motion to strike and dismiss plaintiff’s emergency petition for rule to show cause which led to the issuance of the February 9 rule on the ground it alleged no facts which indicate there was an emergency.

The court then proceeded on plaintiff’s amended petition for rule to show cause alleging violations of the February 4 visitation order which occurred on February 11 and February 13. Intervenor asked for and received leave to file a written response to the amended petition within 21 days; however, the hearing on plaintiff’s amended petition for rule to show cause commenced instanter.

Intervenor was called as an adverse witness. She testified she was in court on February 9, 1988, with David Keay acting as her attorney. She was aware of the terms of the February 4 visitation order, and she recalled the judge advising her that there were to be no more violations of the visitation order or he had the power to impose a jail term. She acknowledged that she failed to bring Christianne for visitation on February 11 and February 16,1988.

The court then issued a rule to show cause returnable instanter, and intervenor’s motion to continue the hearing on the rule was denied. Intervenor moved for change of venue based on the court’s refusal to afford intervenor what she felt was any fair opportunity to defend by allowing her to argue her previously filed motion to reconsider and to file her written answer to plaintiffs amended petition for rule to show cause before forcing her to orally argue the matter. The court denied the motion.

Intervenor then stated her position that the February 4 visitation order was erroneous in that there was a supervised visitation order in effect when the appellate court ordered a stay in the case. Further, that the circuit court had jurisdiction to modify that order only if there were changed circumstances, and plaintiff’s petition for visitation alleged no such changed circumstances.

The cause then proceeded to a hearing on the rules issued February 9 and that morning, February 18. Intervenor testified she received notice of her prior attorney’s motion to withdraw on February 2. It was her understanding that on February 4, the motion to withdraw would be presented and her attorney would ask for time for her to secure other counsel and to file an answer to the visitation petition. She assumed that time would be allowed, since there was such short notice on the motion and since there had been no preparation on her side for a hearing on visitation. Intervenor stated she diligently sought to retain other counsel between February 4 and February 6, and that she actually had retained attorney McNees two days prior to the February 18 hearing.

Intervenor testified she prepared and filed the motion to vacate the court’s visitation order of February 4. She personally called Judge Faris’ secretary to schedule a hearing on the motion, and it was set for February 23. She testified she did send notice of that hearing to plaintiff’s counsel. During the interval before she was able to retain substitute counsel, intervenor found and read the case Harris v. Spencer (1967), 86 Ill. App. 2d 41. She did not produce Christianne for visitation as required by the court’s February 4 visitation order because she believed that under the Harris case and section 2 — 1203 of the Civil Practice Law her motion to reconsider or vacate the visitation order would automatically give her the chance to come to court and be heard while properly represented before the visitation order would be effective.

On cross-examination, intervenor testified she did not discuss the notice she received of her attorney’s motion to withdraw with any attorney prior to the February 4 hearing. She also testified she was aware of the Harris v. Spencer case on February 9 when the court admonished her directly that there were to be no further violations of the February 4 visitation order.

The court found intervenor in deliberate, wilful contempt of court and ordered her to pay a fine of $500 and to serve 60 days in the county jail. In response to intervenor’s counsel’s inquiry concerning an opportunity to purge, the court asked how intervenor would propose to purge herself of the contempt. Counsel for intervenor responded, “Whatever conditions your Honor cares to set.” The court stated:

“I have already imposed the terms of visitation and she has chosen and seen fit not to observe them, so I conclude only that she is going to continue to violate them. Until I am convinced that she is not going to violate them, my order is going to stand. Mr. Bailiff, take Mrs. Wolff into custody.”

Intervenor then tendered her notice of appeal, and the court denied her motion for stay without bond pending appeal. The court set a $1,500 cash appeal bond, which intervenor posted.

Intervenor has moved to supplement the record with a copy of plaintiff’s notice of motion and emergency petition for rule to show cause which was presented to the circuit court on February 9, and we ordered this motion to be taken with the case. Inasmuch as plaintiff has not filed any objections to the motion, and it is clear that the parties appeared in court on February 9 in response to said emergency motion, the motion is granted. 107 111. 2d R. 329.

Plaintiff has not filed an appellee’s brief in this cause. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, provides guidelines applicable in such instances, which we elect to follow in reaching the merits.

In support of her contention that the contempt judgment must be reversed because the underlying order was stayed by her section 2— 1203 motion, intervenor cites Harris v. Spencer (1967), 86 Ill. App. 2d 41. She also cites In re Marriage of Humphrey (1984), 121 Ill. App. 3d 701, in support of her contention that her motion to reconsider was facially meritorious in that the court’s visitation order was entered without sufficient notice to her to secure substitute counsel.

In Harris v. Spencer, the trial court modified the parties’ divorce decree changing custody of the parties’ children from the wife to the husband. The wife obtained new counsel and filed a motion for rehearing pursuant to former section 68.3 of the Civil Practice Act, now section 2 — 1203 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203). After the rehearing motion was filed, but before the court acted upon it, the wife was found to be in contempt of court for refusing to comply with the court’s order that the husband have custody of the children.

On appeal, the court determined that the modified decree was not a consent decree, and, as such, it was subject to review and could be set aside or amended. The court also determined that the wife’s motion for rehearing should have been granted since the trial court had improperly based its decision on a probation officer’s report. In light of these determinations, it found the wife’s motion for a rehearing was proper and had the effect of staying execution of the modified decree until the trial court ruled upon the motion.

Harris was recently relied on in In re Marriage of Maroon (1988), 165 Ill. App. 3d 529, appeal denied (1988), 121 Ill. 2d 571. In Maroon, the trial court entered a judgment dissolving the parties’ marriage, awarding custody of the son to the husband and giving the wife certain specific visitation privileges, including one week at Christmas. The wife timely filed a post-trial motion pursuant to section 2 — 1203 of the Civil Practice Law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203.) After having the boy visit her for one week at Christmas in Texas where she then resided, the wife decided to keep him with her. The husband filed a petition for rule to show cause why she should not be held in contempt. The wife was found to be in contempt following a hearing which was held on the rule to show cause, the wife’s motion to quash the rule, and the wife’s post-trial motion.

On appeal, the wife argued she should not have been held in contempt. Relying on Harris, the court agreed and found that because her post-trial motion was pending at the time she allegedly violated the terms of the judgment, the judgment was stayed and could not serve as the predicate for contempt. 165 Ill. App. 3d at 531.

Based on Harris and Maroon, we believe intervener has presented a prima facie case of reversible error. A court has the inherent power to enforce its orders by way of contempt (In re G.B. (1981), 88 Ill. 2d 36, 41), and a contempt finding will not be disturbed unless it is against the manifest weight of the evidence or there is an abuse of discretion. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 287; In re Marriage of Page (1987), 162 Ill. App. 3d 515, 518.) A contempt judgment based on a void order cannot be sustained, however. (In re R.R. (1982), 92 Ill. 2d 423, 430; Jenner v. Wissore (1988), 164 Ill. App. 3d 259; People v. Buckley (1987), 164 Ill. App. 3d 407, 412.) A void order is one entered where the court (1) did not have jurisdiction over the parties or (2) the subject matter or (3) was otherwise without the power to enter the order. Wissore, 164 Ill. App. 3d at 266; People v. Huntley (1986), 144 Ill. App. 3d 64, 68.

Under Harris and Maroon, the court’s February 4 visitation order was stayed by intervener’s motion to reconsider and was, therefore, unenforceable. Consequently, intervenor’s violation of it could not serve as the predicate for a contempt judgment against her. In effeet, the court was “otherwise without the power” to admonish intervenor that she had to comply with an order that was stayed by operation of law. Accordingly, the court’s February 18 judgment finding intervenor in contempt is reversed.

Intervener’s motion to the trial court to reconsider its February 4 visitation order was meritorious. As intervenor notes, the validity of the underlying order upon which the court’s contempt judgment was based is properly before this court. (People v. Buckley (1987), 164 Ill. App. 3d 407; People v. Verdone (1985), 136 Ill. App. 3d 75.) Intervenor argues that under Supreme Court Rule 13, the judge did not have authority to allow counsel leave to withdraw and then immediately enter an altered visitation order before she was notified of the withdrawal and was able to secure other representation. In support, she cites In re Marriage of Humphrey (1984), 121 Ill. App. 3d 701.

Supreme Court Rule 13 requires an attorney to notify a client of his intention to seek leave to withdraw and to advise the client to secure other counsel or file his own supplementary appearance within 21 days after entry of the order of withdrawal in order to insure notice of any action in the cause. (107 Ill. 2d R. 13.) In Humphrey, in the absence of any indication that Rule 13 was even minimally complied with, the court reversed an order of the circuit court which imposed sanctions against the husband for discovery violations. In that case, the circuit court had granted the husband’s counsel leave to withdraw and held a hearing on the wife’s motion for sanctions on the same day. Neither the husband nor any attorney representing him was present at the hearing.

Here, although intervenor was notified of her counsel’s intention to seek leave to withdraw, the record shows no notification to her that he had, in fact, been allowed to withdraw as required by the rule. (107 Ill. 2d R. 13(c)(4).) Although advised she should secure other counsel or file her own appearance within 14 days in order to insure notification on all matters pertaining to the cause and to avoid judgment by default or dismissal, the court here entered its visitation order only two days after intervenor received the notice of her attorney’s intention to withdraw. The time limit for notice specified in Supreme Court Rule 13 is 21 days. More important than the number of days allowed, however, is the fact that, as in Humphrey, neither intervenor nor any attorney representing her was present at the proceeding which resulted in the order challenged on appeal.

In the only other case we have found concerning Supreme Court Rule 13, First National Leasing Corp. v. E.T.P. of Chicago, Inc. (1987), 158 Ill. App. 3d 882, this court determined that noncompliance with the notice provisions of the rule is not a ground for vacating a judgment pursuant to a motion filed under section 2 — 1401 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401) inasmuch as such motions are directed to errors of fact, not errors of law. This court noted that the provisions of Supreme Court Rule 13 “are ‘purely procedural provisions designed to facilitate the forward progress of the action when withdrawal has been permitted.’ [Citation.]” (First National Leasing, 158 Ill. App. 3d at 886.) Intervenor’s motion here, however, was brought pursuant to section 2 — 1203 of the Civil Practice Law, which is addressed to the sound discretion of the trial court. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203; In re Marriage of Hopkins (1982), 106 Ill. App. 3d 135.

After considering the record of proceedings below and intervenor’s citation to the Humphrey case, we conclude under Talandis that she has presented a prima facie case of reversible error in the court’s entry of the visitation order. Accordingly, the court’s February 4 judgment must also be reversed, and the cause remanded for further proceedings. In light of the preceding, it is unnecessary to address intervenor’s contentions concerning the criminal nature of the court’s contempt judgment.

Intervenor next argues that her motion for change of venue should have been granted. Based on comments made by the judge to the effect that he believed intervenor was engaging in “self-help” and had “engaged every artifice, every possibility” to avoid its visitation order, intervenor asserts he had prejudged her guilt and, therefore, her oral motion for change of venue should have been granted. We disagree.

Notwithstanding the fact intervenor’s motion was oral and not supported by affidavit as required for a substitution of judge for cause under either the Civil Practice Law or the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1001(a)(2), (c); Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5(d)), it has been held that the burden rests not upon the court to justify retention of a case before it, but upon the one seeking substitution of judge to show that prejudice will result if his motion is not granted. (Hoga v. Clark (1983), 113 Ill. App. 3d 1050.) “Moreover, the alleged bias or prejudice of a trial judge to be disqualifying must be shown to have stemmed from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. [Citation.] *** [Alleged erroneous rulings and findings made by the trial judge in the course of the trial *** are not in themselves sufficient reasons to believe that the judge had a personal bias or prejudice for or against him [citations] ***.” People v. Massarella (1979), 80 Ill. App. 3d 552, 565.

At the hearing here, intervenor explicitly stated her motion for change of venue was based on “the events that have transpired in court today,” pointing to the court’s unfairness toward her, i.e., her lack of opportunity to prepare, its denial of “each and every motion,” and the fact she had to argue orally the matter of the plaintiff’s amended rule to show cause the same day the rule was issued.

In response to intervenor’s argument, the judge acknowledged that although his rulings might appear prejudicial, he assured her he would keep an open mind and would listen to any appropriate arguments, but would not tolerate self-help to avoid valid orders and it was his opinion that “that is what is going on here.”

The instant cause is readily distinguished from the cases cited by intervenor in support of her position for reversal. In People ex rel. Przyblinski v. Scott (1959), 23 Ill. App. 2d 167, affd (1960), 19 Ill. 2d 500, at their first appearance before the judge and before he had heard any evidence in the cause, the judge commented to the respondents charged with election fraud, “ ‘You cause criticism of our ability to run an honest election. You make me bow my head in shame,’ ” and “ ‘You have committed a serious offense.’ ” (Przyblinski, 23 Ill. App. 2d at 169.) In Johnson v. Johnson (1975), 34 Ill. App. 3d 356, the judge personally participated in effecting a pretrial agreement concerning the custody and visitation rights of the parties as to their two boys. When the wife reneged on several of the conditions upon which the agreement was premised and sought to have custody of the boys in her new home in North Carolina, the court, before hearing any evidence, announced it intended to take the boys away from her. Johnson, 34 111. App. 3d at 360.

The judge here had extensive knowledge not only of the instant cause, but he also had presided over the cause to determine intervenor’s standing to petition for custody of Christianne. Although, as intervenor asserts, no finding of contempt was entered in that cause, the record shows a rule to show cause was issued there on plaintiff’s emergency petition for rule to show cause. The petition alleged violation by the intervenor of the court’s July 2, 1987, order for supervised visitation between plaintiff and Christianne in the presence of Pastor Schmidgall. Plaintiff’s counsel’s affidavit filed in support of that emergency petition for rule to show cause alleged, based on information from the pastor’s office, that intervenor represented to the pastor’s office that there had been “dramatic changes” in the custody suit and that she unilaterally determined there would be no further visitation. The hearing to be held on that rule was set for October 23, but all matters other than the issue of intervenor’s standing were deferred on that date. This court then stayed further proceedings in the trial court upon intervenor’s appeal of the trial court’s finding that she did not have standing to petition for custody of Christianne.

Based on the record here, it is apparent the judge had not yet made any decision on the merits of the cause as of that point in the proceedings. Although he had personal knowledge of the proceedings from their inception, he stated he would keep an open mind and would listen to any appropriate arguments. A trial judge is in the best position to determine whether it has become prejudiced against a party, and, in light of the judge's assurances of impartiality, we conclude intervenor failed to meet her burden of establishing cause to substitute a new judge. See People v. Hall (1986), 114 Ill. 2d 376, 405-06.

The February 4 and 18 judgments of the circuit court of Du Page County are reversed, and the cause is remanded for further proceedings consistent with this opinion. As we previously noted, intervenor’s motion to supplement the record on appeal is granted.

Reversed and remanded.

LINDBERG and INGLIS, JJ., concur.