author: JUSTICE LaPORTA

text:
    ANTONIO PADILLA, Special Adm’r of the Estate of Maria Padilla, Deceased, Plaintiff-Appellant, v. ELADIO E. VAZQUEZ et al. (Juan A. Zabaleta et al., Defendants).
    First District (6th Division)
    No. 1 — 90—1831
    Opinion filed November 8, 1991.
    Rehearing denied January 23, 1992.

      Robert A. Clifford & Associates, of Chicago (Robert A. Clifford, Keith A. Hebeisen, and Robert R Sheridan, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (R. Dennis Rasor, Hugh C. Griffin, Mary Ellen Busch, and Diane I. Jennings, of counsel), for appellees.
   JUSTICE LaPORTA

delivered the opinion of the court:

The subject of this appeal is an order entered by the circuit court of Cook County denying plaintiff’s motion pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401) which sought vacation of a final agreed order of dismissal which had been previously entered in favor of defendants-appellees. The trial judge’s denial of the motion was based upon her finding that plaintiff failed to personally serve the defendants-appellees with a copy of the motion. Plaintiff appeals, asserting that defense counsel’s appearance and objections to the motion constituted a waiver of the service requirement for a section 2 — 1401 petition.

Plaintiff instituted this action on June 27, 1986, against defendants, Eladio E. Vazquez, M.D. and Eladio E. Vazquez, M.D., Ltd., and other medical providers, alleging that the death of his wife on July 2, 1984, was the result of negligent medical care rendered from 1981 to November 1983. On August 11, 1986, defense counsel filed an appearance and motion to dismiss, challenging plaintiff’s capacity to sue and the sufficiency of the complaint. No further activity concerning these defendants appears of record until January 16, 1987, when the trial court entered an agreed order which stated that the motion of defendants was granted; all causes of action against them were dismissed with prejudice; and plaintiff’s causes of action against all remaining defendants continued.

On July 15, 1987, six months after the entry of the dismissal order, plaintiff filed a motion to vacate the dismissal order. In this motion, plaintiff asserted that the dismissal order of January 16, 1987, was predicated upon the defense counsel’s representation that plaintiff’s decedent had last been under the care of defendants on June 3, 1981, which would have been more than four years prior to the filing of plaintiff’s complaint on June 27, 1986. The motion asserted further that subsequent to January 15, 1987, plaintiff’s counsel acquired receipts issued by defendants showing that plaintiff’s decedent had seen defendants for medical care as late as November 1982, within the four-year limitations period. The motion alleged that plaintiff’s counsel immediately brought this information to the attention of defense counsel. The motion also included a conclusory statement that plaintiff’s attorneys had exercised due diligence in seeking to vacate the dismissal order and that the entry of the order was based upon a mutual mistake of fact.

The motion was not verified and was not supported by affidavits, but did include as exhibits copies of correspondence between plaintiff’s attorney and defense counsel regarding the receipts and can-celled checks discovered after the dismissal and referred to in the motion.

Plaintiff’s motion was scheduled for hearing on September 24, 1987, by a notice of motion sent to defense counsel. Notice was not given directly to defendants. The hearing on the motion did not take place on that date and was continued several times by agreement. On August 19, 1988, the court set a briefing schedule and set the matter for a status hearing on November 10,1988.

On September 26, 1988, defendants filed a memorandum in opposition to plaintiff’s motion, arguing that the trial court lacked subject matter jurisdiction over the motion. In support of this argument, defendants’ motion asserted that the motion was untimely brought and that the allegations in the motion did not justify the relief requested. The hearing on the motion was thereafter continued to January 31,1989.

On January 31, 1989, the associate attorney handling the case for plaintiff was out of the country, and attorney Robert Clifford appeared in his stead. At that hearing, the trial court voiced some confusion over the precise nature of the motion, and Clifford indicated that the motion was brought pursuant to section 2 — 1401. Both the trial court and defense counsel expressed some surprise at this comment, stating that the face of the motion did not specifically refer to section 2 — 1401 and that it was not accompanied by any affidavits. Defense counsel argued that the motion was inadequate as a section 2 — 1401 petition based upon the lack of supporting affidavits. Defense counsel argued further that the motion should be denied on its merits because there was no evidence that the receipts and cancelled checks recently obtained by plaintiff’s attorney related to treatment of plaintiff’s decedent after June 1981.

The trial court held that in order to be considered as a section 2— 1401 petition, it was necessary that the motion comply with the requirements of section 2 — 1401. Despite the fact that more than two years had elapsed after the entry of the dismissal order, the trial court granted plaintiff leave to file supporting affidavits.

Thereafter, plaintiff’s counsel filed with the court his own affidavit which attested that in March 1987, he obtained from plaintiff certain receipts issued by defendant and cancelled checks negotiated by defendant after June 1981. Plaintiff’s counsel’s affidavit averred further that no evidence had been produced which would indicate that certain of these receipts and checks related to services rendered to any person other than the plaintiff’s decedent. The plaintiff did not file an affidavit executed by him or attesting to relevant matters of which he had personal knowledge.

On March 31, 1989, the next court appearance, defense counsel stated that she appeared by a “special and limited appearance” to contest the trial court’s in personam jurisdiction based upon lack of personal service of defendant. The trial court set a briefing schedule on the issue of whether defendant had waived the personal service requirement in section 2 — 1401. At each and every subsequent court appearance, defense counsel stated that she was present by virtue of a “special and limited appearance,” but the record does not disclose that a special and limited appearance was ever filed by defendants.

On August 23, 1989, after considering the briefs of the parties on the jurisdiction issue, the trial court found that the plaintiff’s previously filed motion to vacate was “transformed” into a section 2 — 1401 petition on January 31, 1989, by virtue of Mr. Clifford’s statement that the motion was brought pursuant to section 2 — 1401. The court ruled that it was necessary for plaintiff to personally serve defendant with the petition and that service had not been waived. The court then ordered plaintiff to serve defendant with the petition and continued hearing on the merits of the motion to November 1,1989.

On February 6, 1990, plaintiff filed with the court a document entitled “Affidavit of Special Process Server.” The affidavit was executed by Ron Peters, who identified himself as a “special process server” and attested that on November 29, 1989, he personally served defendant with plaintiff’s motion to vacate the dismissal order. The record does not, however, contain any motion to appoint a special process server, nor any order appointing Mr. Peters as a special process server.

After several continuances, the trial court finally heard the merits of plaintiff’s motion on May 21, 1990. At that hearing, the court and defense counsel made reference to an affidavit executed by defendant which averred that he had never been personally served with a copy of plaintiff’s motion to vacate. This affidavit does not, however, appear in the record.

The trial court denied plaintiff’s section 2 — 1401 petition, finding that plaintiff had failed to personally serve defendant with a copy of the petition. Plaintiff has appealed, asserting that defense counsel’s appearance and objections to the motion constituted a waiver of the service requirement for a section 2 — 1401 petition and that the trial court erred in denying his section 2 — 1401 petition to vacate the order of dismissal.

In analyzing a pleading, a court of review will look to the content of the pleading rather than its label. (Schiffman v. Bowman (1980), 88 Ill. App. 3d 766, 769, 411 N.E.2d 71, 74.) Once more than 30 days have elapsed after the entry of a final order or judgment, a party may request relief only under section 2 — 1401. (Schiffman, 88 Ill. App. 3d at 768, 411 N.E.2d at 73.) Where a motion to vacate is filed more than 30 days after the final judgment of the trial court, it must be considered as a motion for relief under section 2 — 1401. Schuman v. Department of Revenue (1967), 38 Ill. 2d 571, 573, 232 N.E.2d 732; Gruss v. Beverley (1990), 201 Ill. App. 3d 502, 511, 559 N.E.2d 135, 141; Halleck v. Trumfio (1980), 85 Ill. App. 3d 1051, 1053, 407 N.E.2d 867; Slade v. Bowman (1977), 49 Ill. App. 3d 242, 245, 364 N.E.2d 922.

In the instant case, the plaintiff’s motion to vacate was filed July 15, 1987, more than 30 days after, but within two years of, the entry of the dismissal order. Clearly, the only manner in which he could seek relief from this final order at the trial level was by virtue of a section 2 — 1401 petition. (Schiffman, 88 Ill. App. 3d at 768, 411 N.E.2d at 73.) It is evident that even if the motion did not satisfy all of the technical requirements contained in section 2 — 1401, it was a timely filed motion for relief under that section and should have been treated as such by the trial court at all times after its filing.

Contrary to the arguments of defense counsel, the motion was not “transformed” into a section 2 — 1401 petition merely by the appearance and comments of Mr. Clifford on January 31, 1989. No new petition was filed at that time, and nothing in the actions of Mr. Clifford could have altered the basic nature or substance of the motion itself. Thus, the July 15, 1987, motion to vacate must be considered as a motion for relief under section 2 — 1401, and its adequacy must be judged against the requirements of that section.

Defendant asserts, and the trial court found, that the motion must be denied because plaintiff failed to personally serve defendant with a copy thereof. Plaintiff appropriately argues, however, that defense counsel’s appearance and objections to the motion constituted a general appearance and a waiver of the service requirement in section 2-1401.

A party seeking relief under section 2 — 1401 must give notice to opposing parties according to Supreme Court Rules 105 and 106. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401.) Under these rules, notice is to be given by (1) personal service, (2) by prepaid registered mail with return receipt requested, or (3) by publication. (134 Ill. 2d Rules 105, 106.) Notice is indispensable to due process, and compliance with the rules is essential to jurisdiction. Public Taxi Service, Inc. v. Ayrton (1973), 15 Ill. App. 3d 706, 710, 304 N.E.2d 733.

Yet, any defects in the service of a section 2 — 1401 petition are waived when the defendant generally appears in court on the petition. Sabatino v. Kozy Kottage Inn, Inc. (1981), 102 Ill. App. 3d 375, 378-79, 430 N.E.2d 73; Schiffman, 88 Ill. App. 3d at 769, 411 N.E.2d at 73; Community Bank & Trust Co. v. Pavlich (1980), 84 Ill. App. 3d 1080,1082-83, 406 N.E.2d 164; Slade, 49 Ill. App. 3d at 246.

In the case at bar, the motion to vacate was filed July 15, 1987, and served upon defense counsel. No objection was made at that time to the designation of the motion or to the fact that there was no affidavit evidencing personal service of the motion upon the defendant doctor. Instead, defense counsel opposed the motion in September 1988, contending that the motion was untimely and should be denied on the merits because there was no evidence that the newly discovered receipts and cancelled checks related to treatment of plaintiff’s decedent. As already noted, the motion was not untimely because it was filed only six months after the entry of the dismissal order and well within the two-year period set forth in section 2 — 1401.

Appellate counsel stated during oral argument before this panel that defense counsel argued during the January 31, 1989, hearing that the trial court did not have jurisdiction to consider the plaintiff’s motion to vacate.

Careful review of the transcript of that hearing indicates that Mr. Clifford advised the court at the outset of the hearing that plaintiff’s motion to vacate was predicated upon section 2 — 1401. At page 7 of the transcript, defense counsel stated that she had been unsure as to the nature of the motion because it was filed well beyond the 30th day after entry of the agreed order and because it did not comply with the technical requirements of section 2 — 1401. Defense counsel then stated that because the agreed order of dismissal contained Rule 304(a) language, the matter had to be taken up on appeal and the trial court was without subject matter jurisdiction to hear the motion. The remainder of the comments made by defense counsel related to the merits of the motion to vacate and to the sufficiency of the evidence upon which the motion to vacate was based.

At no time during the January 31, 1989, hearing did defense counsel enter or mention a “special and limited appearance” on the basis of a lack of personal jurisdiction. Moreover, the memorandum filed by defense counsel in September 1988 in opposition to the motion to vacate raised the question of the court’s subject matter jurisdiction but made no mention of a lack of personal jurisdiction over defendants. The first mention of a “special and limited appearance” occurred in March 1989.

Counsel for defendant appeared before the court on several scheduled court dates between July 1987 and January 1989, but never objected to the lack of personal service upon defendant. The record reflects that on many of these occasions, defense counsel argued that the motion should be denied on its merits. It was not until March 1989 that defense counsel voiced any objection to the fact that the defendant doctor had not been personally served. At each subsequent hearing date, defense counsel advised the trial judge that she appeared by virtue of a “special and limited appearance,” but the record does not reflect that any such document was ever filed with the court.

We hold that defense counsel’s presence before the trial court and arguments on the merits of plaintiff’s motion constituted a general appearance and a waiver of the necessity to personally serve the defendant with a copy of the motion.

Defendant’s general appearance and waiver of the personal service requirement do not, however, alter the fact that the motion filed by plaintiff did not comply with the other requirements of section 2— 1401 and was properly denied.

As a general rule, a court loses the power to review its judgments after the passage of 30 days. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.) Consequently, a request to vacate a prior judgment is properly before the trial court only when presented by petition in accordance with section 2 — 1401. Pape v. Department of Revenue (1968), 40 Ill. 2d 442, 240 N.E.2d 621; Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 215 N.E.2d 271; Garcia v. Lozada (1978), 58 Ill. App. 3d 875, 374 N.E.2d 1078; Spears v. Spears (1977), 52 Ill. App. 3d 695, 367 N.E.2d 1004.

Section 2 — 1401 clearly states that “[rjelief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this [sjection” and that “[t]he petition must be supported by affidavit or other appropriate showing as to matters not of record.” Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 1401(a), (b).

The motion filed by plaintiff in this case clearly fails to comply with the requirements of section 2 — 1401. The motion was not verified and was not supported by affidavit. It is, therefore, insufficient as a matter of law. Stallworth v. Thomas (1980), 83 Ill. App. 3d 747, 404 N.E.2d 554; Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 482, 386 N.E.2d 284, 286; Okumura v. Nisei Bowlium, Inc. (1976), 43 Ill. App. 3d 753, 756, 357 N.E.2d 187.

At the hearing on January 31, 1989, the trial court recognized and informed plaintiff’s attorney that the July 15, 1987, motion was insufficient to comply with the requirements of section 2 — 1401. Rather than deny the relief requested, the court afforded plaintiff the opportunity to file affidavits in support of the motion so as to comply with that requirement of section 2 — 1401. Thereafter, counsel for plaintiff filed only an affidavit of his own which described how he came into possession of the receipts and cancelled checks at issue and which asserted that there was no evidence indicating that these documents related to treatment of any person other than the plaintiff’s decedent. The plaintiff did not file an affidavit executed by him or attesting to relevant matters of which he had personal knowledge.

Although it is true that, in ruling on a motion to dismiss a section 2 — 1401 petition, all well-pleaded facts are to be taken as true, this rule does not extend to conclusions drawn by the pleader. (People v. Jayne (1977), 52 Ill. App. 3d 990, 368 N.E.2d 422.) In order to be legally sufficient, a request for relief under section 2 — 1401, based upon matters outside the trial record, must be supported by the sworn allegations of the party or parties having personal knowledge of the relevant facts, set forth either by verified petition or by attached affidavit. Mitchell, 68 Ill. App. 3d at 482, 386 N.E.2d at 286; Okumura, 43 Ill. App. 3d at 756, 357 N.E.2d at 190.

In the instant case, plaintiff’s motion to vacate was not verified and was not supported by his affidavit attesting to matters outside the record which were within his personal knowledge. Even after the court granted leave to file supporting affidavits 18 months after the motion was filed, the only affidavit presented to the court was that of plaintiff’s attorney, who did not have personal knowledge of many of the facts asserted therein. These circumstances make it evident that the plaintiff’s motion was insufficient when judged against the requirements of section 2 — 1401.

Moreover, in order to be entitled to relief under section 2 — 1401, the petitioner must allege and prove that he has a meritorious defense; that it was through no fault or neglect of his own that the meritorious defense was not presented to the trial court; that he exercised due diligence in defending the original action; and that he exercised due diligence in filing the petition for section 2 — 1401 relief, and the petitioner must set forth specific factual allegations supporting each of the above elements. Mitchell, 68 Ill. App. 3d at 482, 386 N.E.2d at 286.

Plaintiff’s motion failed to set forth factual allegations, but asserted mere conclusions as grounds for the relief requested. The motion offered no explanation for his failure to file a petition seeking to vacate the dismissal within 30 days and alleged no facts demonstrating his exercise of due diligence in presenting his claim or in filing the motion to vacate. The motion to vacate asserted merely the conclusory statement that plaintiff’s attorney exercised due diligence in seeking to vacate the dismissal order. These conclusory allegations were manifestly inadequate to meet the requirements of section 2— 1401, and the plaintiff’s motion was wholly insufficient to warrant relief under that section. (Kaput v. Hoey (1988), 124 Ill. 2d 370, 530 N.E.2d 230; Gruss, 201 Ill. App. 3d at 508, 559 N.E.2d at 138-39.) Consequently, the trial court properly denied plaintiff’s motion to vacate the prior agreed order which dismissed defendants from the action.

It is well established that a court of review may affirm a decision of the trial court upon any grounds appearing in the record despite the fact that the lower court’s determination was predicated upon another basis. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.

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

Affirmed.

RAKOWSKI, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LORENZ

license: Public Domain

text:
    MARTEL ENTERPRISES et al., Plaintiffs-Appellees, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 89—0108
    Opinion filed November 15, 1991.
    Rehearing denied February 6, 1992.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Mardell Nereim, Assistant Corporation Counsel, of counsel), for appellant.
    Michael J. Goggin, of Oak Park, for appellees.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

After a jury trial, the judge entered a directed verdict in favor of plaintiff Martel Enterprises (Martel) on its claim for conversion and the jury returned a verdict in favor of plaintiff Martin Myers on his claim for false imprisonment. Defendant, the City of Chicago (city), now appeals contending that: (1) its statutory immunity defense was applicable to Martel’s conversion claim; and (2) it should have been granted judgment notwithstanding the verdict on Myers’ false imprisonment claim. For the following reasons, we affirm in part, reverse in part, and remand for new trial.

Plaintiffs filed a complaint alleging that the city was liable for conversion and false imprisonment. The following testimony was presented at trial.

On June 20, 1983, several Chicago police officers executed a search warrant at Martel allowing the seizure of “Class ‘C’ Explosives commonly called Fireworksf:] Roman Candles, Sky Rockets, Firecrackers, etc.” After opening some cartons labelled “Class C Explosives,” the officers seized approximately 170 cases of fireworks including smoke balls, jumping jacks, whistling gemini, snakes, and sparklers.

Officer Joseph Carone was assigned to the gang crimes unit of the police department but participated in the search at Martel. He testified that the cartons of Class C explosives seized from Martel did not contain Roman candles, sky rockets, or firecrackers, as listed in the search warrant. Carone believed that Class C expíosives were illegal. He testified that a statute defined Class C explosives as any fireworks that produced an audio or visual effect, which would violate State and city laws. However, after reading the statute in question on the witness stand, he conceded that the statute did not include the term “Class C” explosive. In his opinion, the fireworks seized from Martel were illegal although he was not a specialist in that area.

Lieutenant Frank Radke was also assigned to the gang crimes unit and was present during the search. He testified that Carone examined the cartons of fireworks at Martel and told him that they were all Class C explosives. Radke testified that he believed Class C explosives violated State and city laws based on information from Officer Carone and officers from the bomb and arson unit.

Myers, the owner and president of Martel, was arrested for possession of illegal fireworks. He was taken to the police station and charged under a State law that defined “fireworks” as “any explosive composition, or any substance or combination of substances, or article prepared for the purpose of producing a visible or audible effect of a temporary exhibitional nature by explosion, combustion, deflagration or detonation.” (111. Rev. Stat. 1981, ch. 1271/2, par. 127.) Myers was processed and released within an hour.

The day after the search, the bomb squad of the police department destroyed the fireworks seized from Martel. Officer James Brown, an explosives technician, explained that the fireworks were quickly destroyed under general orders of the police department which provided that if seized contraband was hazardous, it should be destroyed as soon as possible. Brown testified that when the fireworks were ignited, he heard and saw numerous audio and visual effects.

Michael Myers, vice-president of Martel, admitted that the fireworks seized by the police department would create a visual or audio effect if ignited but they would not explode.

On July 7, 1983, an assistant State’s Attorney dismissed the charge against Myers with leave to reinstate and an order was entered, without a hearing, requiring the police department to return the seized fireworks to Myers.

The trial judge barred the city from presenting evidence of an ordinance allowing the police to destroy seized property which was dangerous to store (Chicago Municipal Code §2 — 84—170 (1990)) because Myers was charged with possession of fireworks under State law. The judge also excluded evidence of the police department’s orders to destroy hazardous contraband as soon as possible.

At the close of evidence, the trial judge found that the city’s defense under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.) did not apply to an action for conversion. Based on a finding that the fireworks seized from Martel were legal, the judge entered a directed verdict in Martel’s favor on liability for the conversion claim. The jury considered the issue of damages for the conversion and awarded Martel $16,000.

On the false imprisonment claim, the jury returned a verdict in Myers’ favor, finding that the police willfully and wantonly arrested him without probable cause. The jury awarded Myers $25,000. The city’s motion for judgment notwithstanding the verdict was denied.

The city now appeals.

Opinion

I

The city first argues that the trial court erred when it directed a verdict in Martel’s favor on the conversion claim without applying the Tort Immunity Act. Martel does not directly respond to this argument.

Under sections 2 — 109 and 2 — 202 of the Tort Immunity Act, a municipality is not liable for an injury resulting from the act or omission of its employee committed in the execution or enforcement of any law unless the act or omission was willful and wanton. (Ill. Rev. Stat. 1989, ch. 85, pars. 2 — 109, 2 — 202.) “Willful and wanton conduct” is defined as “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” Ill. Rev. Stat. 1989, ch. 85, par. 1-210.

The city argues that the Act provides immunity because it defines “injury” as “damage to or loss of property” and conversion is a tort action involving such damage. (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 204.) The city recognizes that conversion is an intentional tort but it does not consider how the requirement of intent impacts on the application of the Act.

Although conversion is considered an intentional tort because it requires “an intentional exercise of dominion or control over a chattel” (In re Thebus (1985), 108 Ill. 2d 255, 259, 483 N.E.2d 1258, 1260, quoting Restatement (Second) of Torts §222A (1965)), it does not require proof of malice, culpability, or conscious wrongdoing (Douglass v. Wanes (1983), 120 Ill. App. 3d 36, 458 N.E.2d 514). It is also not necessary to show an intent to interfere with the rights of others; however, an act which is merely negligent is not sufficient to establish conversion. Restatement (Second) of Torts §223, Comment b, at 436-37, §224, Comment b, at 437, Comment c, at 438 (1965).

The intent required to establish conversion does not necessarily fall within the definition of willful and wanton conduct in the Act. The Act defines “willful and wanton” as an intent to harm, conscious wrongdoing, or utter disregard; however, conversion does not require evidence of an intent to interfere with another’s rights, malice, culpability, or conscious wrongdoing. Although evidence of negligent conduct will not support an action for conversion, it may be proven without evidence of willful and wanton conduct as defined in the Act. As a result, the city in this case may be immune from liability if the officers’ conduct was not willful and wanton.

Additionally, under sections 2 — 109 and 2 — 203, a municipality is not liable if its employee “acts in good faith, without malice, and under the apparent authority of an enactment that is unconstitutional, invalid or inapplicable *** except to the extent that he would have been liable had the enactment been constitutional, valid and applicable.” (Ill. Rev. Stat. 1989, ch. 85, pars. 2 — 109, 2 — 203.) In this case, the city contends that the officers relied on a State law and a city ordinance defining illegal fireworks and a city ordinance allowing destruction of seized contraband that was dangerous to store. Under sections 2 — 109 and 2 — 203, the city in this case may be immune from liability if the officers relied on the enactments and acted in good faith without malice.

Therefore, the Tort Immunity Act was applicable to Martel’s claim of conversion and the directed verdict in Martel’s favor must be reversed and remanded for new trial.

Two other issues related to the conversion claim must be considered because they will impact on the new trial. The city contends that the trial judge improperly excluded evidence of the city ordinance which allowed the police to destroy seized property that was dangerous to store (Chicago Municipal Code §2 — 84—170 (1990)). On review, a ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. {Vaughn v. Granite City Steel Division of National Steel Corp. (1991), 217 Ill. App. 3d 46, 576 N.E.2d 874.) The ordinance should have been considered because it was relevant to whether the officers were executing or enforcing a law at the time they destroyed the fireworks and whether they relied on the ordinance in good faith and without malice. The exclusion of this evidence was an abuse of discretion.

The city also contends Martel was required to establish that the fireworks were legal as element of conversion. In an action for conversion, plaintiff must prove: (1) defendant assumed unauthorized and wrongful control or ownership over the personalty of plaintiff; (2) plaintiff’s right in the property; (3) the right to immediate possession of the property; and (4) a demand for possession. (Naiditch v. Shaf Home Builders, Inc. (1987), 160 Ill. App. 3d 245, 512 N.E.2d 1027.) The city relies on People v. Fratto (1961), 32 Ill. App. 2d 354, 177 N.E.2d 864, which stated that the law will not recognize an ownership right to contraband. However, Fratto, a criminal case, did not consider whether a plaintiff in a civil action for conversion must prove that the property involved was legal, as the city argues. The elements of a conversion action, as stated above, do not require such proof.

II

Concerning Myers’ false imprisonment claim, the city argues that it should have been granted judgment notwithstanding the verdict because the evidence showed the officers had probable cause to arrest Myers for possession of illegal fireworks. It relies on evidence that the officers had a valid search warrant and the fireworks seized from Martel violated State and city laws. Myers responds that the evidence did not support a finding of probable cause because, although the officers had a search warrant, they did not have an arrest warrant and the fireworks were legal.

In an action for false imprisonment, a plaintiff must show that the restraint was unreasonable or without probable cause. (Hajawii v. Venture Stores, Inc. (1984), 125 Ill. App. 3d 22, 465 N.E.2d 573.) Probable cause is an absolute bar to a claim of false imprisonment. Fulk v. Roberts (1987), 164 Ill. App. 3d 194, 517 N.E.2d 1098.

Judgment notwithstanding the verdict should only be entered when all of the evidence, viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that a contrary verdict based on that evidence could not stand. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223.) In ruling on the motion, the trial judge may not substitute his judgment for that of the jury as to the credibility of witnesses and he may not determine the preponderance of the evidence. (In re Village of Bridgeview (1985), 139 Ill. App. 3d 744, 487 N.E.2d 1109.) If the evidence demonstrates a substantial factual dispute or if the outcome is dependent on the assessment of the witnesses’ credibility or the resolution of conflicting evidence, judgment notwithstanding the verdict should not be entered. Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 492 N.E.2d 1364.

In this case, the officers had a warrant to search Martel for Class C explosives, listed as Roman candles, sky rockets, and firecrackers. The officers found cartons labelled “Class C Explosives,” which contained various types of fireworks but not the types listed in the warrant. The officers testified that they seized the cartons believing that all Class C explosives violated State and city laws although they did not normally work in that area. Myers was arrested, without a warrant, for possession of illegal fireworks.

This evidence must be viewed in a light most favorable to Myers. Although the fireworks seized from Martel were not the same type of fireworks listed in the search warrant, they were seized and Myers was arrested based on Officer Carone’s and Lieutenant Radke’s belief that they violated State and city laws. However, their testimony showed that their knowledge in the area was limited. Carone’s testimony that Class C explosives were defined as illegal in the statute was inaccurate and Radke relied on Carone’s information. Radke also relied on officers from the bomb and arson unit but those officers did not testify at trial. This evidence did not overwhelmingly favor a finding of probable cause to arrest Myers. The determination of whether the officers had probable cause was dependent on an assessment of Carone’s and Radke’s credibility, which was for the jury to resolve. If the jury believed them, it would have found they had probable cause; however, based on its verdict, it is apparent that the jury discredited their testimony. It would have been improper for the trial judge to assess the credibility of the witnesses in ruling on a motion for judgment notwithstanding the verdict. Although a different conclusion may have been reasonable, neither the trial judge nor this court may substitute its judgment for that of the jury. As a result, the denial of the city’s motion for judgment notwithstanding the verdict was proper.

The city also argues that the the trial judge improperly instructed the jury on false imprisonment.

A judgment will not be reversed on appeal for an error in jury instructions unless the instructions clearly misled the jury and the appellant was prejudiced. (Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 560 N.E.2d 969.) In this case, the city offered an instruction which stated that Myers claimed he was unlawfully arrested “without probable cause and not in good faith” and that the city alleged “there was probable cause to arrest [Myers] and that it acted reasonably and in good faith.” The trial judge deleted the references to good faith and gave the instruction to the jury. The city argues that the references to good faith should not have been deleted, relying on Riley v. Fairfield (1987), 160 Ill. App. 3d 397, 513 N.E.2d 618. In Riley, the court found that police officers with a valid arrest warrant who mistakenly arrested a person were immune from liability for false imprisonment if they acted in good faith. However, Riley did not consider the sufficiency of jury instructions for false imprisonment and does not support the city’s argument that it was reversible error to exclude the reference to good faith in the instruction. The city did not establish that it was substantially prejudiced from the instruction.

The city also argues that the jury’s verdict on the false imprisonment claim should be overturned because it was influenced by the trial judge’s finding, when he entered a directed verdict against the city on the conversion claim, that the fireworks were legal. The city failed to cite authority to support this argument. An appellate court need not address an issue which is not supported with authority and, as a result, the issue is waived. 134 Ill. 2d R. 341(e)(7); Board of Regents for Regency Universities v. Human Rights Comm’n (1990), 196 Ill. App. 3d 187, 552 N.E.2d 1373.

In conclusion, the directed verdict against the city on the conversion claim is reversed and remanded for a new trial, and the jury’s verdict against the city on the false imprisonment claim is affirmed.

Affirmed in part; reversed in part; and remanded for new trial.

MURRAY and GORDON, JJ., concur.


author: JUSTICE JOHNSON

text:
    NORMA MALINOWSKI, Adm’r of the Estate of John Malinowski, Deceased, Plaintiff-Appellant, v. UREDDI MULLANGI, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 90—1966
    Opinion filed November 27, 1991.
    Rehearing denied January 24, 1992.

      Mullen & Minella, of Chicago (John C. Mullen and Michael T. Mullen, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Tyler Jay Lory, and Sonia V. Odarczenko, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Norma Malinowski, plaintiff, administrator of the estate of John Malinowski, deceased, appeals from an order of the circuit court of Cook County dismissing a wrongful death claim against defendant, Dr. Mullangi. The sole issue on review is whether the trial court erred in finding plaintiff’s claim was barred by the statute of limitations pursuant to section 13 — 212(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212(a)).

We affirm.

In November 1983, John Malinowski, decedent, had a physical examination from Lakeside Radiological, Inc. As a part of the examination, a chest X ray was taken and interpreted by defendant as being “normal and clear.” Although defendant interpreted the X ray and drafted the X-ray report, he did not sign or place his name on the report. Instead, defendant had an arrangement with Dr. Harold Katzen, also a radiologist, whereby Dr. Katzen would sign his own name to reports that defendant had generated.

In September 1986, John Malinowski was diagnosed with a cancerous tumor in his lung. The tumor was removed, and he was informed that the cancer had been eradicated. The record reveals that he knew defendant had failed to identify a density in the lung but that he had no intention of filing a lawsuit for medical malpractice. Five months later, in February of 1987, John Malinowski discovered that he had cancerous tumors in his brain which had originated from the cancerous lung tumor. He nevertheless continued to forgo filing a medical malpractice claim against defendant. John Malinowski died in February of 1988, four years and two months after the alleged negligent act occurred.

On November 30, 1989, plaintiff filed a wrongful death action against defendant for failure to diagnose cancer. The action on behalf of decedent’s estate and next of kin was filed within two years of his death and six years after the alleged act of medical negligence occurred. Defendant moved to dismiss the claim, contending that plaintiff’s action was barred by the statute of limitations for medical malpractice. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212(a).) Plaintiff subsequently amended her response to assert that the minor daughter’s wrongful death claim was timely filed pursuant to section 13— 212(b). After a hearing on the motion, the trial court found that plaintiff failed to bring her complaint within the statute of limitations and dismissed the action. Plaintiff appeals the trial court’s finding and requests this court to vacate the order of dismissal.

On appeal, plaintiff contends that the trial court erred in finding the minor child’s claim in a wrongful death action had expired when the action was filed in November of 1989. Plaintiff further contends that the eight-year statute of repose contained in section 13 — 212(b) of the Illinois Code of Civil Procedure applies in this case and that section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, par. 2) tolls the statute of limitations to preserve a minor’s claim for wrongful death for two years after the minor child reaches the age of 18.

Section 13 — 212(b) of the Illinois Code of Civil Procedure provides in pertinent part:

“[N]o action for damages for injury or death against any physician ***, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 8 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 13-212(b).)

The relevant section of the Wrongful Death Act provides, in pertinent part, as follows:

“Every such action shall be commenced within 2 years after the death of such person ***. *** However, if a person entitled to recover benefits under this Act, is, at the time the cause of action accrued, within the age of 18 years, he or she may cause such action to be brought within 2 years after attainment of the age of 18.” Ill. Rev. Stat. 1987, ch. 70, par. 2.

Defendant contends that although plaintiffs negligence claim is based on the Wrongful Death Act, the action falls within the purview of section 13 — 212(a). That section provides in pertinent part:

“[N]o action for damages for injury or death against any physician ***, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than J years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212(a).)

Defendant contends that this section requires that actions for injuries arising out of medical treatment be brought within four years of the alleged negligent act. Defendant further argues that since John Malinowski did not file an action within four years of the alleged misdiagnosis, an action by decedent’s minor child is also barred by the statute of limitations. We agree with defendant.

The law is clear. “[Sjection 13 — 212 bars claims related to medical treatment filed more than two years after plaintiff knew or should have known of an alleged injury, and absolutely bars claims filed more than four years from the date of the act giving rise to the cause of action.” (Emphasis added.) (McIntyre v. Christ Hospital (1989), 181 Ill. App. 3d 76, 80.) The alleged misdiagnosis occurred in November 1983 when defendant interpreted decedent’s chest X ray as normal and clear. In September 1986, John Malinowski was informed of the misdiagnosis and chose not to bring an action against defendant. In February 1987, when he learned that he had cancerous tumors in his brain, he continued to forgo filing a medical malpractice claim. In November 1987, four years had lapsed since the alleged misdiagnosis. Thus decedent, who was alive at the time, was himself barred from bringing an action. Therefore, after decedent’s death in February of 1988, plaintiff was also barred from bringing an action.

Plaintiff argues that the statutory language contained in the Wrongful Death Act preserves the minor child’s claim until two years after the minor reaches the age of 18. Plaintiff further argues that since decedent’s child is a minor, the eight-year statute of repose must apply.

Contrary to plaintiffs contention, section 2 of the Wrongful Death Act does not preserve the minor child’s wrongful death action in this case for two reasons. First, we recognize that all actions for injury or death predicated upon the alleged negligence of a physician are governed by section 13 — 212. (Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 456; Pederson v. West (1990), 205 Ill. App. 3d 200, 204.) Our supreme court stated that “the medical malpractice statute of repose bars any action after the period of repose seeking damages against a physician *** for injury or death arising out of patient care, whether at law or in equity.” (Hayes, 136 Ill. 2d at 456.) In addition, the court interpreted the “or otherwise” language contained in section 13 — 212 as encompassing all actions arising out of alleged negligent acts of physicians in rendering patient care. (Hayes, 136 Ill. 2d at 458-59.) Second, our supreme court has consistently held that there can be no cause of action for wrongful death unless the decedent had a viable cause of action against the wrongdoer at the time of death. (See Mooney v. City of Chicago (1909), 239 Ill. 414; Real v. Kim (1983), 112 Ill. App. 3d 427.) In the case at bar, the decedent had no viable cause of action at the time of his death.

Because plaintiff had no viable cause of action at the time of decedent’s death, we find that the trial court properly dismissed her medical malpractice action pursuant to section 13 — 212(a) of the Illinois Code of Civil Procedure. Neither the tolling provision of the Wrongful Death Act nor the tolling provisions contained in section 13 — 212 are relevant, as decedent allowed his cause of action to lapse prior to his death. See Kim, 112 Ill. App. 3d 427.

Plaintiff also contends that defendant is estopped from raising a statute of limitations defense in this case because he fraudulently concealed his identity. Plaintiff cites Witherell v. Weimer (1981), 85 Ill. 2d 146, for the proposition that a physician who takes certain actions which preclude a plaintiff from filing a timely action against him is prevented from raising the statute of limitations defense. Plaintiff contends that the arrangement defendant had with Dr. Katzen prevented patients from learning of his identity until after the statute of limitations had run.

We do not believe that defendant’s failure to authenticate the radiologist’s report with his signature constitutes fraudulent concealment. In addition, unlike the physicians in Witherell, defendant in the case at bar did not deter plaintiff or decedent from filing suit. Moreover, plaintiff in this case did not bring an action against the named physician on the X-ray report until more than four years after the alleged misdiagnosis.

We therefore hold that the trial court properly rejected plaintiff’s claim that defendant was estopped from raising the statute of limitations defense because he fraudulently concealed his name from the X-ray report.

For the foregoing reasons, we affirm the ruling of the circuit court of Cook County.

Affirmed.

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


author: JUSTICE O’CONNOR

text:
    GERALD WESLEY, Petitioner-Appellee and Cross-Appellant, v. POLICE BOARD OF THE CITY OF CHICAGO, Respondent-Appellee (Leroy Martin, Respondent-Appellant and Cross-Appellee).
    First District (1st Division)
    No. 1 — 90—2938
    Opinion filed December 16, 1991.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellant.
    Smolin, Blum & Brandwein, of Chicago (David M. Smolin, of counsel), for appellee Gerald Wesley.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant, the Chicago Police Board (Board), suspended petitioner, Officer Gerald Wesley, for 18 months after finding that he had illegally used marijuana. On administrative review, the trial court sustained the Board’s finding, set aside the suspension as unduly harsh and remanded the cause for imposition of a reduced penalty. On remand, the Board reduced the suspension by one day. When petitioner again sought administrative review, the trial court reduced his suspension to six months. On appeal, the Board contends that the circuit court exceeded its scope of authority, and the Board says that it was the proper forum to impose punishment.

A summary of the evidence presented before the Board is as follows: on January 27, 1988, petitioner sought treatment for severe mood swings from the medical services section of the police department. During the medical examination, petitioner provided a specimen for a urinalysis. Subsequent laboratory analysis on the specimen revealed the presence of marijuana. Petitioner’s explanation of the occurrence was that he inhaled marijuana smoke during searches of automobiles occupied by criminal suspects and at his residence where his brother and the latter’s companions smoked marijuana. Other testimony indicated that petitioner’s test levels were too high to have resulted from passive inhalation and could have only been achieved by smoking or eating marijuana.

A reviewing court will not interfere with an agency’s decision to impose sanctions unless the agency acted unreasonably or arbitrarily or chose a sanction which is unrelated to the purpose of the statute. (Ballin Drugs, Inc. v. Department of Registration & Education (1988), 166 Ill. App. 3d 520, 531, 519 N.E.2d 1151.) The authority of the reviewing court is limited to reversing and remanding the agency’s decision in whole or in part, and if necessary, identifying issues requiring further hearing and providing proper instructions. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 111(a)(6).) The determination of the appropriate sanction is one to be made by the administrative agency and not the courts. Momney v. Edgar (1990), 207 Ill. App. 3d 26, 29, 565 N.E.2d 246.

In the instant cause, the circuit court sustained the Board’s determination that the evidence was sufficient to find that petitioner had illegally used marijuana. However, it found the 18-month suspension unduly harsh and reduced it to six months. We do not believe that the sanction imposed by the Board was unreasonable, arbitrary or unrelated to the purpose of the statute. Petitioner violated the law and his employment regulations. Further, such conduct undermines the police department and its ability to enforce the law. Where the court finds that a sanction imposed is improper, its authority is limited to reversal and remandment of the cause. By reducing the suspension to six months, the trial court exceeded the scope of its authority. It is the administrative agency and not the court that is authorized to impose sanctions.

We also note that petitioner has challenged the sufficiency of the evidence in a cross-appeal. Our standard for review is to determine whether the findings of the Board were against the manifest weight of the evidence. Only where an opposite conclusion is clearly evident from the record should an agency decision be disturbed on review. Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 371-73, 498 N.E.2d 1148.

The evidence presented herein disclosed that during a voluntary urinalysis, petitioner tested positive for marijuana. Petitioner does not contest the validity of the test results. Based upon his interpretation of statements from the Chicago Council of Scientific Affairs from the American Medical Association, he argues that the marijuana entered his system through passive inhalation. However, the Board, relying on testimony from expert witnesses, determined that the evidence clearly established that petitioner’s high test levels for marijuana could only have been achieved by his eating or smoking marijuana. Our review of the record does not reveal that the Board’s findings were contrary to the manifest weight of the evidence.

For the reasons stated, we affirm the circuit court’s affirmance of the Board’s findings that petitioner illegally used marijuana, but we reverse the trial court’s reversal of the Board’s decision to suspend petitioner for 18 months, and we reinstate the Board’s initial sanction.

Affirmed in part and reversed in part.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT JACKSON, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 86—2297
    Opinion filed December 16, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Richard E. Gade, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Solita L. Pandit, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendants, Robert Jackson, John Brandon and Michael Williams were convicted of the murder of Willie Ray Thompson on November 19, 1984. Brandon and Jackson were each sentenced to 35-year prison terms; Williams was sentenced to a 40-year prison term. John Brandon and Michael Williams are not parties to this appeal. The instant appeal is related to People v. Brandon (1990), 197 Ill. App. 3d 866, 557 N.E.2d 1264, where the issues raised on appeal by Brandon and Williams are addressed. On appeal, defendant contends that: (1) the trial court erred in denying defendant’s motion for a mistrial on the ground that the unexpected testimony of a State’s witness subpoenaed by codefendant would render codefendants’ defenses antagonistic to his own defense; and (2) defendant was deprived of a fair trial when the trial court allowed a police officer to testify that an assistant State’s Attorney approved the filing of murder charges against him. For the following reasons, the judgment of the trial court is affirmed.

The record sets forth the following facts relevant to this appeal. Prior to trial, defendant and codefendant Brandon moved for severance from codefendant Williams based on the State’s expressed intention to introduce evidence of Williams’ attempted murder of John Bates, a key State’s witness, while Williams was out on bail. The trial court granted severance. However, before trial commenced, Jackson and Brandon withdrew their motions for severance and the court vacated the severance orders.

At trial, John Bates testified on behalf of the State that at approximately 11 p.m. on November 19, 1984, he was standing in the lobby of the apartment building located at 1510 W. 13th Street when he heard gunshots and shooting outside. He looked out the front door of the building and saw Jackson and Brandon, both armed with guns, chasing Willie Ray Thompson and shooting at him.

Bates saw Thompson run to a nearby rowhouse at 1222 South Laflin, pound on the door and yell “Mrs. Crenshaw.” Thompson broke one of the windows in Mrs. Crenshaw’s rowhouse, then ran toward Roosevelt Road. Thompson slipped and fell while he was running, Jackson and Brandon caught up with him and the three struggled.

At that point, a car pulled up near the three men and Bates saw Williams get out of the car, walk over to Thompson, who was being held down by Jackson and Brandon, and shoot Thompson in the face. While Brandon and Jackson were still holding Thompson, Williams shook him, then fired additional shots into him at close range. Williams, Brandon and Jackson then entered Williams’ car and drove away. Bates stated that a crowd gathered all around the area and that people were looking out of their windows. The police arrived a few minutes later, but Bates went home without talking to them.

The following day, November 20, Bates called the police to report the shooting and was referred to officers at a different headquarters. He then called Henry Wright, a friend who had also witnessed the shooting. On November 21, Bates called the police again to report that he had witnessed the shooting. The police picked him up and drove him to police headquarters where he identified photos of Jackson, Brandon and Williams, spoke to an assistant State’s Attorney and testified before the grand jury. On November 22, Bates identified Jackson in a lineup and called Henry Wright to urge him to come to the police station.

Dr. Yuksel Konacki, Cook County medical examiner, testified that while performing the autopsy on the victim, he recovered two recent bullets from the head and that the wounds were from close range.

Ella May Crenshaw testified on behalf of the State that at approximately 11 p.m. on November 19, she heard someone pounding on her door and calling out her name. As she got up, she heard her window break and then heard shots. She fell to the floor and eventually crawled to the living room.

Chicago police detective Gerald Dorich testified that he interviewed Bates at Area 4 headquarters on November 21, and that Bates then talked to an assistant State’s Attorney and later testified before a grand jury. Dorich stated that Bates then went before the Honorable Sophia Hall, where warrants for defendants’ arrests were approved. On November 22, Bates identified Jackson in a lineup at Area 4 headquarters.

Herman Mollison testified on behalf of the State that on November 19, approximately 10:30 p.m., he was walking with Jeff Bradford and Thompson when they encountered Jackson. Jackson told them that he wanted to talk and pulled out a gun. The three men scattered and ran in different directions; Mollison and Bradford ran separately in a westerly direction, while Thompson ran in an easterly direction. Jackson ran after Thompson. Mollison then heard several shots. When Mollison and Bradford eventually met up with each other, they returned to the area where Jackson had confronted them and saw Thompson lying on the ground. On cross-examination, Mollison stated that he had been subpoenaed to appear at trial by counsel for defendant Williams.

Chicago police officers Lenti and Thomas testified on behalf of the State that at the time they arrived at the scene of the shooting, they spoke to three security guards who stated that they had seen some men running. Officer Thomas knocked on some doors, but stated that no one would say anything about the incident.

Next, Henry Wright, confined to a wheelchair as the result of having been shot, testified on behalf of the State that on November 19, approximately 11 p.m., he was walking to a liquor store when he saw Brandon standing in the fire lane near 1441 West 13th Street. Wright heard some shots and ducked behind a car. When he looked up, he saw Jackson and Brandon chasing Thompson. While Jackson was shooting at Thompson, Brandon attempted to cut Thompson off by running across the street. Thompson then ran to Mrs. Crenshaw’s house. He saw Thompson pound on Mrs. Crenshaw’s door and break one of her windows. Jackson and Brandon caught up with Thompson and took him to the alley. At that point, a small car came down the street and stopped. Williams got out, walked across the street toward Jackson, Brandon and Thompson, and fired a gun in Thompson’s face at close range. Williams then bent down, shook the victim, and fired twice more. Jackson, Brandon and Williams then walked toward the car, got in and drove away. Wright did not talk to anyone about the incident until he received a call from Bates. On November 22, 1984, Wright identified Jackson at police headquarters. On cross-examination, Wright stated that he believed that he had been shot as the result of his involvement with this case.

Following the State’s case in chief, the defendants' individual motions for directed verdict were denied. Yvonne Moore and Alex Moore, husband and wife, gave alibi testimony on behalf of Brandon, that on November 19, Brandon dropped off his wife and son at their house at approximately 6 p.m. and returned to pick them up at approximately 10 p.m. Angela Brandon, Brandon’s wife, substantiated the Moores’ testimony, adding that they then picked up Brandon’s mother at approximately 10:50 p.m., were home by 11 p.m., and Brandon went to bed and did not leave the house again that night. Lilian Brandon, Brandon’s mother, testified as to the same chronology of events.

Ann Wilson, office manager of the Seville Motel, gave alibi testimony for Williams. Wilson identified a motel registration card in the name of Michael Williams, dated November 19, 1984, and time stamped 11:23 p.m.

Next, Gregory Lewis, Herman Smith and Curly Manon, security guards who had been working together in the area of the murder on the 4 p.m. to 12 a.m. shift on November 19, testified on behalf of defendants. Lewis stated that at approximately 11 p.m., they were checking vacant apartments on the twelfth floor of the building at 1433 W. 13th Street when they looked out of one of the windows and saw one man approach a group of three others on the ground below. Lewis testified that when the man approached the group, the three dispersed in different directions. He then heard a shot, and he and Smith ran down the stairwell and went outside. Once outside, they saw the victim and another person running toward a group of rowhouses. The victim beat on the window of one of the rowhouses, ran a little farther and either slipped or was knocked down. Lewis then heard another shot, saw a person run across the street and get into a car. Lewis and Smith walked over to where the victim was lying. Lewis did not see anyone else in the area while the incident was taking place.

Herman Smith, one of the security guards, testified to the same observation out of the twelfth-floor window. Smith ran down the stairwell with Lewis and saw one man chasing another near the rowhouses. One of the men broke a window. Smith then heard a shot, one man fell, and the other got into a car. There were not many people in the area before the shooting, but there were after it was over.

Following closing arguments and deliberations, the jury found all three defendants guilty of the murder of Thompson. After a hearing in aggravation and mitigation, the trial court sentenced Jackson and Brandon to terms of 35 years each and Williams to a prison term of 40 years. Defendant’s timely appeal followed.

Defendant first contends that the testimony of a State’s witness prejudiced him and thereby denied him a fair trial. Defendant argues that the testimony of Herman Mollison introduced an antagonistic defense to the trial which deprived him of his right to due process, and that Mollison’s testimony exonerated codefendants Williams and Brandon, while inculpating defendant as the one person who shot Thompson. Mollison testified on behalf of the State that he had been walking with the victim when he was approached by defendant, who was armed, and that he ran off in one direction while defendant chased the victim in another direction. Mollison heard shots, but did not see the shooting. When he returned to the scene, the victim was dead.

Defendant also argues that Mollison’s testimony was unexpected and that he was prejudiced by such unexpected testimony. The record discloses the following colloquy between the court and Mr. King, defendant’s defense counsel:

“[MR. KING:] *** The witness that I believe Mr. Groark is going to call is a fellow named Mollison. The State struck him in the answer. *** Mr. Adam subpoenas in a witness whose purpose I believe is to exculpate his client at least and maybe this other fellow while in the meantime putting the blame on my client.
* * *
[THE COURT:] He’s not exculpating anybody else. He’s a witness who had a limited view of something or some other event and he’s going to testify to whatever view he had or saw or witnesses and that’s all. He’s not going to expand it or protract it.
[Mr. KING:] I don’t want the State calling him because they have stricken him, he’s not on their answer ***.
[THE COURT:] The striking is evidently now rescinded.
[MR. KING:] They have so made that motion. I wasn’t aware of that.
[THE COURT:] No, they didn’t but as long as nobody is shocked or surprised by the presence of this witness, there is no prejudice there.
[MR. KING:] I can’t say I’m surprised at this point that’s for sure.”

In response, the State argues that defendant’s defense was not antagonistic to the defenses of his codefendants. First, the State argues that defendant moved to vacate an order of severance from Williams which had been granted by the trial court. The State further argues that Mollison’s name appeared on the State’s witness list and therefore defendant was not surprised by Mollison’s testimony.

Whether to grant a mistrial is within the broad discretion of the trial court (Illinois v. Somerville (1973), 410 U.S. 458, 462, 35 L. Ed. 2d 425, 429, 93 S. Ct. 1066, 1069; People v. Robinson (1984), 121 Ill. App. 3d 1003, 1014-15, 460 N.E.2d 392), and a mistrial should be declared only in cases where there is an occurrence of such character and magnitude as to deprive a party of a fair trial and the moving party demonstrates actual prejudice (People v. Suane (1987), 164 Ill. App. 3d 997, 518 N.E.2d 458).

Both defendant and the State rely on cases that are distinguishable on the facts in that they address whether the trial court erred in denying codefendants’ pretrial motions for severance. Defendant relies on People v. Jackson (1986), 150 Ill. App. 3d 1, 501 N.E.2d 802, People v. Threzzy (1987), 163 Ill. App. 3d 180, 516 N.E.2d 573, People v. Johnson (1989), 187 Ill. App. 3d 756, 544 N.E.2d 392, and People v. Gibons (1986), 149 Ill. App. 3d 37, 500 N.E.2d 517. The State relies on People v. Olinger (1986), 112 Ill. 2d 324, 493 N.E.2d 579, and People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247. Reliance on these cases is misplaced because in each case, the trial court denied codefendants’ severance motions. These cases do not address denial of mistrial.

Defendant’s contention that People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349, supports the granting of a mistrial in this case is unavailing. The Bean court held that where codefendants’ motions for severance have been denied before trial, defendants may renew such motions during trial in the form of a motion for mistrial if defenses become antagonistic. In the present case, as in Brandon, the issue of whether severance was properly denied is not before this court. (Brandon, 197 Ill. App. 3d at 882.) As was previously stated, prior to trial, the trial court had granted defendant’s motion to sever his trial from that of Williams. Subsequently, defendant’s motion to vacate the severance order was granted.

Moreover, defendant’s argument that he was prejudiced by Mollison’s testimony is unpersuasive. Mollison’s testimony did not create antagonistic defenses because it did not inculpate Jackson while at the same time exculpating Williams and Brandon. As stated earlier, Brandon and Williams presented alibi defenses at trial, Brandon maintaining that he was home with his family, and Williams maintaining that he was in a motel at the time of the shooting. Defendant suffered no antagonism from codefendants’ defenses because each codefendant attempted to establish an alibi defense which in no manner incriminated defendant, nor denied him a fair trial. See People v. Blount (1991), 220 Ill. App. 3d 732, 741.

It is true that the State has a duty to disclose all witnesses or potential witnesses to the defense (People v. Hanna (1983), 120 Ill. App. 3d 602, 457 N.E.2d 1352), and where the defendant has been surprised or prejudiced by the State’s violation of discovery, this court has found that the trial court abused its discretion in allowing such testimony. People v. Shiflet (1984), 125 Ill. App. 3d 161, 180, 465 N.E.2d 942.

However, where there has been no surprise but rather the defendant has merely been unable to contact a State’s witness, this court has held that no prejudice resulted. (People v. Trice (1991), 217 Ill. App. 3d 967, 981.) There, defense counsel moved to bar the testimony of a State’s witness listed on its answer because he had not been able to contact the witness prior to trial. The court held that no surprise or prejudice resulted.

In the present case, the record indicates that defendant was not surprised by the proposed testimony of Mollison. Mollison’s name appeared on the State’s witness list. The record discloses that defense counsel had the opportunity to interview the witness prior to his testimony; however, Mollison refused to talk to him. For these reasons, we conclude that the trial court did not err in denying defendant’s motion for mistrial.

Next, defendant argues that he was prejudiced when the trial court sustained objections to comments made by his own counsel in closing argument. During closing argument, defendant’s counsel commented that Mollison was a friend of Williams and stated that Williams’ defense counsel subpoenaed Mollison to distract the jury. The trial court sustained objections to the second statement, as facts not in evidence. Defendant’s counsel subsequently made several references to Williams as the sole shooter. Counsel for Williams objected numerous times, and the trial court sustained these objections. At one point the court admonished defense counsel:

“[THE COURT:] *** please argue the evidence as it relates to your client *** but refrain from comments about other defendants.”

Counsel for Williams moved twice for a mistrial.

At the conclusion of defense counsel’s argument, the court admonished the jury:

“[THE COURT:] The Court wishes to advise the Jury that it is not for one defendant to cast aspersions upon another. And insofar as Mr. King’s argument contained aspersions cast by one Defense position upon another, that part of his argument, the Jury is instructed to disregard.”

The State’s response is that the trial court properly sustained objections to comments made by Jackson’s counsel during closing argument. First, the State argues that the record is clear that the fact that codefendant Williams subpoenaed Mollison was not in evidence before the jury, and that the trial court properly sustained Williams’ objections to defendant’s conclusions. The State further argues that the court correctly admonished defendant’s counsel to refrain from making comments about the other defendants. Finally, the State contends that even if defendant was somehow prejudiced, the instructions to the jury that closing arguments are not to be considered as evidence cured any possible error.

The determination as to the propriety of comments during closing argument is within the discretion of the trial court and will not be reversed on appeal absent a showing of abuse of discretion or substantial prejudice to defendant. (People v. Trask (1988), 167 Ill. App. 3d 694, 521 N.E.2d 1222; People v. Neumann (1986), 148 Ill. App. 3d 362, 499 N.E.2d 487.) Moreover, facts not in evidence cannot be argued in closing argument. People v. Linscott (1991), 142 Ill. 2d 22, 566 N.E.2d 1355; People v. Carlson (1982), 92 Ill. 2d 440, 442 N.E.2d 504.

Defendant complains about comments made by his own counsel during closing argument, which invited objection by counsel for co-defendant Williams. We agree with the State that any error was harmless to defendant. In upholding the convictions of Brandon and Williams, we stated:

“Although the comments made by counsel for Jackson may have been improper, in light of the jury’s verdict against all three defendants, [and] the trial court’s instruction to the jury that it should disregard the comments made by counsel for Jackson during closing argument *** we conclude that any possible error was harmless and does not provide grounds for reversal.” Brandon, 197 Ill. App. 3d at 882, 557 N.E.2d at 1274.

Finally, defendant argues that the testimony of Detective Dorich placed an “imprimatur of guilt” upon Jackson by stating that the assistant State’s Attorney had “approved the charge of murder” and that Judge Sophia Hall had signed the warrants. We addressed this issue in Brandon. The specific testimony to which Jackson objects is the same as that objected to in Brandon:

“[STATE:] What was done after John Bates went to the Grand Jury?
[DORICH:] [Assistant State’s Attorney] Susan Fleming then approved for presentation to the Judge 3 warrants.
[STATE:] What were those warrants for?
[DORICH:] Each warrant was for murder.
[STATE:] Who?
[DORICH:] Michael Williams, John Brandon and Robert Jackson.
[STATE:] After those warrants were prepared, what happened?
[DORICH:] I took John Bates myself down to Judge Sophia A. Hall’s courtroom and we both appeared before Judge Sophia Hall, she interviewed and talked to both of us and she signed or approved the warrant.” Brandon, 197 Ill. App. 3d at 879.

In the present case, as in Brandon, defendant relies on People v. Blissitt (1973), 12 Ill. App. 3d 551, 299 N.E.2d 562, and People v. Turner (1984), 127 Ill. App. 3d 784, 469 N.E.2d 368. Defendant here also relies on People v. Valdery (1978), 65 Ill. App. 3d 375, 381 N.E.2d 1217.

In Blissitt, Turner, and Valdery, a prosecutor testified at trial that he had recommended that charges be placed against the respective defendant. The Blissitt court held that the testimony was improper and constituted prejudicial error on the ground that it was tantamount to a trial prosecutor offering his belief of a defendant’s guilt to a jury. The Turner court found the prejudicial impact of the prosecutor’s testimony in its case to have been even greater than that in Blissitt because the prosecutor testified that he had spoken to the police, to several witnesses and to defendant, plus he had waited for the medical examiner to release the results of an autopsy on the victim prior to recommending charges. In Valdery, the prosecutor made remarks as to his opinions of the integrity of the witnesses and his personal beliefs in their testimony. The Blissitt, Turner and Valdery courts all remanded the cases for new trials.

As in Brandon, the State argues that defendant waived this issue for review by failing to object to specific testimony at trial or to raise the alleged error in the post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; People v. Brandon (1990), 197 Ill. App. 3d 866, 557 N.E.2d 1264.) In Brandon, we agreed with the State, but stated that even if the issue had not been waived, defendant Williams’ argument was unpersuasive, as the authority on which he relied, namely Blissett and Turner, did not support his contention. We find the same to be true in the present case.

In the present case, a prosecutor did not testify, nor offer his own beliefs as to credibility of witnesses. Instead, Detective Dorich set forth the steps he had taken to procure arrest warrants. Further, Dorich never stated that either the assistant State’s Attorney or the judge had recommended the charges. They merely approved the charges, a requisite step to procuring arrest warrants in any case. Therefore, Dorich’s testimony did not prejudice Jackson.

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

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE RIZZI

text:
      In re MARRIAGE OF EDWIN P. MARKEY, SR., Petitioner-Appellant, and MARIANNE MARKEY, n/k/a Marianne Smith, Respondent-Appellee.
    First District (3rd Division)
    No. 1 — 89—0429
    Opinion filed December 18, 1991.

      Burton A. Brown, P.C., of Chicago, for appellant.
    Thomas J. Kelley, of Schaumburg, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Petitioner Edwin P. Markey appeals from an order of the circuit court modifying a joint custody judgment by awarding sole custody of the parties’ minor child to respondent Marianne Markey, n/k/a Marianne Smith. Edwin contends that (1) the trial court abused its discretion when it entered orders barring two clinical psychologists from disclosing records and communications of the child; and (2) the trial court’s order awarding sole custody of the child to Marianne was an abuse of discretion notwithstanding the orders barring the clinical psychologists from disclosing records and communications of the child. We reverse and remand.

On August 14, 1981, Edwin and Marianne were married in Winnetka, Illinois. They had one child, Edwin P. Markey, Jr., who was born on March 4, 1983. A judgment for dissolution of the marriage was entered on October 17, 1985, and the trial court awarded the parties joint legal and physical custody of the child.

On May 16, 1987, Marianne married Bradley Smith in Illinois. Several months later, Mr. Smith was informed by his employer that he was being transferred to San Leandro, California. On September 28, 1987, Marianne filed a petition for removal of the child from Illinois so that the child could reside in California with her and her husband. (See Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 609).) In the fall of 1987, although he did not have Marianne’s consent, Edwin began to have the child treated by Dr. Margo Kennedy, a clinical psychologist.

On January 7, 1988, Edwin filed a petition for modification of the joint custody judgment and requested sole custody of the child pursuant to section 610(b) of the Act. On July 14, 1988, Marianne was granted leave to withdraw her petition for removal of the child and was granted leave to file a petition to modify residential custody arrangements.

At the custody trial, Edwin sought to have Dr. Kennedy testify. Marianne filed a motion to bar Dr. Kennedy from testifying as to records and communications of the child during the course of treatment. (See section 3(a) of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1987, ch. 911/2, par. 803(a)).) Marianne asserted that because she and Edwin had an equal right to make decisions regarding the care of their child pursuant to the joint custody order, she was invoking the section 3(a) confidential records and communications privilege on behalf of the child. Edwin responded that he was giving his written consent for disclosure of records and communications relating to the child and that therefore the requirements for disclosure of such information under section 5(a)(1) of the Act were met (111. Rev. Stat. 1987, ch. 911/2, par. 805(a)(1)).

The trial court concluded that the child had not waived the section 3(a) confidential records and communications privilege on the basis that section 5(a)(1) requires the written consent of both custodial parents for disclosure of records and communications of a child under 12 years old. The trial court therefore entered an order barring Dr. Kennedy from disclosing records and communications of the child. The trial court also barred any testimony from another clinical psychologist, Dr. James N. Watzke, which would be based upon information that he received from Dr. Kennedy relating to records and communications of the child. At the conclusion of the trial, the trial court found that joint custody of the child was not working satisfactorily and ruled that it be terminated. The trial court gave Marianne sole custody of the child.

The critical issue on appeal is whether the trial court abused its discretion in ruling that the testimony of Dr. Kennedy and Dr. Watzke was barred on the basis that section 5(a)(1) requires the written consent of both custodial parents.

In order to address the issue, section 3(a) and section 5(a)(1) must be read together. Section 3(a) provides:

“Records and communications — Personal notes of therapist
§3.(a) All records and communications shall be confidential and shall not be disclosed except as provided in this Act.” (Ill. Rev. Stat. 1987, ch. 911/2, par. 803(a).)

Section 3(a) is applicable here because the word “therapist” in the Act means “a psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services.” Ill. Rev. Stat. 1987, ch. 911/2, par. 802(9).

Section 5(a)(1) provides:
“Written consent for disclosure of records and communications
§5.(a) Except as provided in Sections 6 through 12.2 of this Act, records and communications may be disclosed with the written consent of:
(1) the parent or guardian of a recipient who is under 12 years.” Ill. Rev. Stat. 1987, ch. 911/2, par. 805(a)(1).

In order to determine the meaning of section 5(a)(1), we must look to the plain meaning of the words used in the statute and the intent of the legislature. The word “parent” rather than “parents” is used in section 5(a)(1). The plain meaning of the word “parent” means either mother or father, and not both. Moreover, the plain meaning of the word “parent” in the statute means either mother or father without regard to which one of the parents may have legal custody of the child. Thus, the fact that the parties had joint custody of the child in the present case is not relevant to the issue before us. In addition, we note that section 2 of the Act states: “Definitions *** The terms used in this Act, unless the context requires otherwise, have the meanings ascribed to them in this Section. *** (5) ‘Parent’ means a parent or, in the absence of a parent or guardian, a person in loco parentis.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 9IV2, par. 802(5).

In seeking the intent of the legislature, we start with the premise that the purpose of section 5(a)(1) is to protect the confidentiality of the mental health and developmental disabilities records and communications of children under 12 years old to the extent that disclosure would be detrimental to the best interest of the child. It follows that the focus of determining the intent of the legislature must be on the best interest of the child.

It is plain that the best interest of the child is served if in the process of determining the best interest of a child in a custody proceeding the trial court assays all of the mental health and developmental disabilities records and communications of the child so that the trial court can be fully apprised of the child’s mental health and developmental disabilities. To require the consent of both parents or the custodial parent to waive the privilege of confidentiality frustrates rather than fosters this objective in custody proceedings. It is therefore clearly in the best interest of the child to require only one of the parents to waive the privilege of confidentiality under the statute in custody proceedings.

It follows that the plain meaning of the wording of section 5(a)(1) and the intent of the legislature is to require the written consent of only one of the parents to disclose the records and communications of a child under 12 years old in custody proceedings. Thus, the trial court abused its discretion when it barred the testimony of Dr. Kennedy and Dr. Watzke concerning records and communications of the child. In light of our conclusion, we do not address the other issue raised by the appellant.

Accordingly, the orders of the trial court barring the testimony of Dr. Kennedy and Dr. Watzke concerning records and communications of the child are reversed, and the case is remanded for further proceedings in accordance with what is stated herein.

Reversed and remanded.

CERDA, P.J., and GREIMAN, J., concur.