text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES DEAN PATTON, Defendant-Appellant.
    Fifth District
    No. 5—91—0048
    Opinion filed September 14, 1993.

      Daniel M. Kirwan and Lawrence J. O’Neill, both of State Appellate Defender’s Office, ot Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, James Dean Patton, appeals both from his convictions after a jury trial of first-degree murder, aggravated battery to a child, and cruelty to a child and from his sentence of 55 years’ imprisonment imposed by the circuit court of St. Clair County on the first-degree murder conviction. No sentences were imposed on the convietions for aggravated battery to a child and cruelty to a child. We affirm in part and vacate in part.

At approximately midnight on March 7, 1989, the Belleville police department received a call about a burglary/homicide at defendant’s residence. When the officers arrived to investigate, they found defendant standing in front of the apartment building holding a towel around his right hand. The hand was bleeding. Defendant informed the officers someone had broken into his home and murdered his baby while he and the boy’s mother had gone to the store. The officers went inside and found the baby stiff and not breathing. The baby’s mother was seated on a couch in what appeared to be a state of shock. As the officers began their investigation, defendant became increasingly hysterical. He started running around the apartment, kicking and punching various objects and walls, despite repeated requests by the police to remain seated. Because defendant was interfering with the crime scene, the officers decided to transport him and the boy’s mother, codefendant Carla Bowen, to the station. Both were requested to sit on a bench by the watch sergeant’s desk until detectives could get their statements. Neither was booked, searched, fingerprinted, photographed, or handcuffed. Some three hours later, Bowen was taken to another room for questioning. By this time, officers had concluded that the crime scene was inconsistent with a break-in. For example, broken glass from the kitchen door, which had been kicked in, was outside the door, rather than inside. Defendant claimed he and Bowen had only been gone a half hour when the break-in occurred, but neighbors and relatives suggested they had been absent from the residence some five hours. Officers interviewed Bowen at approximately 3:50 a.m. Although not under arrest, Bowen signed a Miranda waiver and then gave a written statement incriminating defendant in the death of their son. Bowen was then placed under arrest, and defendant, at approximately 6 a.m., was confronted with her statement. After signing a waiver of his Miranda rights, defendant stated he had hit his son because he cried too much but had not intended to kill him. Defendant refused to give a written statement at this time. After an autopsy revealed the baby had received a severe traumatic beating, officers decided to reinterview Bowen and defendant. Bowen again implicated defendant. Defendant now claimed Bowen must have killed the baby. The autopsy revealed the cause of death was acute pneumonia, resulting from blunt traumas which collapsed the lungs. The report also showed the baby had been moderately malnourished. At trial, defendant continued to assert Bowen had killed the child. The jury, however, found defendant guilty of first-degree murder.

Defendant initially argues on appeal that the trial court erred in denying his motion to suppress his statements to the police. Defendant believes his detention at the police station was involuntary, as evidenced by being held there for five hours before questioning and without being advised he was free to leave. As the police effectuated an unlawful arrest, according to defendant, his statements elicited thereafter should have been suppressed and his convictions, based primarily on those statements, should be reversed. We conclude the trial court was correct in ruling that defendant was not involuntarily detained, and consequently, his statements should not be suppressed.

The record reveals the police received a call advising them of a burglary and homicide. When they arrived at the scene, they encountered defendant, who informed them someone had broken into his apartment and killed his son. While the police began their investigation, defendant started moving throughout the residence, punching and kicking walls and objects. He went in and out of the back door which appeared to be the point of entry for the burglary. Despite repeated requests to remain seated, defendant continued to run throughout the premises. Defendant was virtually hysterical. The officers believed defendant’s actions were interfering with their attempts to secure and investigate the crime scene. They also needed to get the statements of both defendant and the boy’s mother. Because of the emotional state both parents were in, the police requested that they go to the station and wait for the detectives. Defendant and Bowen were seated on a bench by the watch sergeant’s desk but were not under watch or secured in any manner. They were not handcuffed, searched, or fingerprinted. They were left alone together, and at no time was there any indication they would not have been allowed to leave. Defendant was not arrested until after the boy’s mother implicated him in the death of their child.

A seizure occurs within the meaning of the fourth amendment when a reasonable person, innocent of any crime, would believe he was under arrest or not free to leave in view of all the circumstances surrounding the incident. (United States v. Mendenhall (1980), 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877; People v. Longoria (1983), 117 Ill. App. 3d 241, 249, 452 N.E.2d 1350, 1355; People v. Reed (1982), 104 Ill. App. 3d 331, 336, 432 N.E.2d 979, 983.) Every interrogation held at a police station is not necessarily a custodial interrogation. (Longoria, 117 Ill. App. 3d at 250, 452 N.E.2d at 1356.) Police officers may question citizens during a criminal investigation, and citizens have a duty to cooperate, regardless of where the questioning occurs. (Longoria, 117 Ill. App. 3d at 249, 452 N.E.2d at 1355; Reed, 104 Ill. App. 3d at 336, 432 N.E.2d at 983.) Here it is logical to infer that, as the baby’s parents, defendant and Bowen would wish to cooperate in the investigation. They had discovered the body, but because of their emotional states, his hysteria and her shock, they could not be interviewed at the crime scene. Under such circumstances, a reasonable person would not have believed he was under arrest or he was not free to leave. Moreover, probable cause to arrest defendant existed by the time officers questioned defendant. (See People v. Montgomery (1986), 112 Ill. 2d 517, 525-26, 494 N.E.2d 475, 477-78; People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605, 608.) For these reasons, we believe the trial court properly denied defendant’s motion to suppress his statements. (Cf. People v. Townes (1982), 91 Ill. 2d 32, 37-38, 435 N.E.2d 103, 105.) A trial court’s ruling on a motion to suppress evidence -will not be overturned unless it is manifestly erroneous. (See People v. Collins (1989), 182 Ill. App. 3d 362, 364, 538 N.E.2d 781, 783.) We see no such error here.

Defendant next contends the trial court erred in failing to give an Illinois pattern jury instruction defining “recklessness” after deliberations had begun when the jury requested the court’s assistance as to its legal meaning in the context of involuntary manslaughter. Under the circumstances presented here, we disagree.

The jury was given instructions for both murder and involuntary manslaughter. No definition of reckless conduct was tendered at the instructions conference; consequently, none was given to the jury. When the jury requested a legal definition of “recklessly,” the court refused to give the additional instruction and informed the jurors they had all the instructions they would receive. Defendant claims the court erred in refusing to give the instruction, but in fact, the issue was waived by defense counsel’s failure to tender the proper instruction at the instruction conference. No party may raise on appeal the failure to give an instruction not tendered. (See People v. Underwood (1978), 72 Ill. 2d 124, 129, 378 N.E.2d 513, 515.) Moreover, the initial failure to tender the instruction appears to have been a deliberate tactical decision by defense counsel. At the conference over the jury’s request, defense counsel stated: “I left [the instruction defining reckless] at the office under a decision that I felt that I didn’t want to submit it to the jury at the particular time.” Under such circumstances we cannot say the trial court abused its discretion in refusing to give the additional instruction. Moreover, any error in failing to give the definition (see People v. Sanders (1984), 127 Ill. App. 3d 471, 474, 469 N.E.2d 287, 290) was harmless. The jury, in finding defendant guilty of murder, found that defendant acted with knowledge. Having determined the act was intentional, the jury clearly could not have found defendant guilty of involuntary manslaughter for the required mental states are mutually exclusive. (People v. Lucas (1989), 132 Ill. 2d 399, 442, 548 N.E.2d 1003, 1021.) As the jury did not display confusion concerning the mental state required for murder, we conclude the trial court’s decision not to give the requested instruction in this instance does not require reversal of defendant’s conviction.

Defendant contends, however, the State failed to prove him guilty of murder beyond a reasonable doubt. Again we disagree.

A criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276.) When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry defendant. (Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) Rather, we are to examine the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) Moreover, determination of the credibility of witnesses is a jury function. (Collins, 106 Ill. 2d at 261-62, 478 N.E.2d at 277; People v. Sandy (1989), 188 Ill. App. 3d 833, 840, 544 N.E.2d 1248, 1252.) And, a conflict between experts does not necessitate a finding that the evidence was insufficient to support a conviction; it is for the jury to accept or reject an expert’s conclusion. Sandy, 188 Ill. App. 3d at 840, 544 N.E.2d at 1252.

In order to secure a conviction for first-degree murder, under section 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(2)), the State must prove that the accused, in performing acts which caused the death of the victim, knew such acts created the strong probability of death or great bodily harm. (See People v. Summers (1990), 202 Ill. App. 3d 1, 10, 559 N.E.2d 1133, 1138.) The State, however, need not prove that the defendant’s acts were the sole and immediate cause of death. (People v. Brackett (1987), 117 Ill. 2d 170, 176, 510 N.E.2d 877, 880; People v. Brown (1978), 57 Ill. App. 3d 528, 531, 373 N.E.2d 459, 462.) The State need only prove beyond a reasonable doubt that the defendant’s actions were a contributing cause to a death such that the death did not result from a source unconnected with the defendant’s acts. (Brown, 57 Ill. App. 3d at 531, 373 N.E.2d at 462; see also People v. Kent (1982), 111 Ill. App. 3d 733, 738, 444 N.E.2d 570, 574.) The existence of a time interval between the defendant’s acts and the death of an individual does not preclude such a causal link. (Brown, 57 Ill. App. 3d at 531-32, 373 N.E.2d at 462.) Moreover, the defendant must take his victim as he finds him. (Brackett, 117 Ill. 2d at 178, 510 N.E.2d at 881.) As long as the defendant’s acts contributed to the death of the victim, sufficient proof of causation still exists, despite any preexisting health condition of the victim. 117 Ill. 2d at 178, 510 N.E.2d at 881.

Here, the pathologist who performed the autopsy on the child testified that the compromised condition of the infant brought on by malnutrition and a severe beating had weakened the child to the point he died of bronchopneumonia. Defendant’s expert, who asserted that no injury suffered by the child was fatal, admitted the boy died from a combination of physical abuse and internal sickness. Photographs of the child exhibited extensive bruising of the head, nose, mouth, cheek, and body. In addition to this evidence, defendant also told the police he had hit the child, and Bowen implicated defendant in the death of her son. Finally, defendant staged a break-in, lied to the police, and attempted to place the blame on the mother.

Mental states, such as the intent to kill or cause great bodily harm, are not commonly proved by direct evidence. (Summers, 202 Ill. App. 3d at 10, 559 N.E.2d at 1138.) They, however, may be inferred from the character of a defendant’s acts and the circumstances surrounding the commission of the offense. (Summers, 202 Ill. App. 3d at 10, 559 N.E.2d at 1138; see also People v. Pintos (1989), 133 Ill. 2d 286, 292, 549 N.E.2d 344, 347.) In this instance, defendant was the victim’s father. He was responsible for the health of the child, and therefore any condition of ill-being was his responsibility. Instead of caring for the child, defendant beat and abused the infant. From the extent of the bruising and injuries suffered, the jury reasonably could infer defendant knew, regardless of the child’s condition, especially given the disparity in size and strength, that his acts created the strong probability of death or great bodily harm. (See Summers, 202 Ill. App. 3d at 10, 559 N.E.2d at 1138-39; see also Brackett, 117 Ill. 2d at 180, 510 N.E.2d at 882.) And, defendant’s actions after the death of his son further indicate guilty knowledge. (See Summers, 202 Ill. App. 3d at 11, 559 N.E.2d at 1139.) Under these circumstances, we conclude the evidence presented at trial was not so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt when viewed in the light most favorable to the prosecution.

For his fourth point on appeal, defendant asserts his convictions for aggravated battery and cruelty to a child must be vacated as they are based upon a single act of striking the infant about the head and face. While defendant received no separate sentences on these convictions, we agree they should be vacated in this instance. (See People v. Lilly (1974), 56 Ill. 2d 493, 495-96, 309 N.E.2d 1, 2.) The charges against defendant were based upon a single act of striking the infant shortly before his death. When two offenses arise from the same physical act, there is but a single offense and only one conviction is possible. (See People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844.) We therefore vacate defendant’s convictions for aggravated battery to a child and cruelty to a child.

For his final point on appeal, defendant contends his sentence of 55 years’ imprisonment is excessive, especially in light of the 10-year prison sentence imposed on codefendant Bowen and his lack of a prior criminal record. Defendant also argues the trial court erred in relying on a fact not supported by the record, namely, that defendant killed his son to keep the infant from crying.

The imposition of punishment is one of the most important and sensitive of judicial responsibilities. (People v. Smith (1993), 246 Ill. App. 3d 647, 652.) We, as a reviewing court, must give great weight to the judgment of the trial court. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) We, therefore, will not reduce a sentence unless it clearly appears the punishment is a departure from fundamental law, its spirit and purpose, or that the penalty is not proportionate to the nature of the offense. People v. Grau (1975), 29 Ill. App. 3d 327, 330, 330 N.E.2d 530, 532.

Defendant was convicted of first-degree murder. Defendant complains his sentence is greatly disparate from that received by Bowen. Bowen, however, pleaded guilty to concealing a homicide. The crimes for which defendant and Bowen were convicted are not equivalent; consequently, no rational comparison of their sentences can be made. Only when codefendants convicted of the same crime receive disparate sentences is remandment warranted. (See People v. Bailey (1989), 188 Ill. App. 3d 278, 289, 543 N.E.2d 1338, 1344; People v. Cook (1983), 112 Ill. App. 3d 621, 623, 445 N.E.2d 824, 826.) Additionally, disparate sentences may be supported by the nature and extent of participation in the offense. (People v. Kline (1982), 92 Ill. 2d 490, 508, 442 N.E.2d 154, 162; People v. Martin (1980), 81 Ill. App. 3d 238, 245, 401 N.E.2d 13, 18.) While defendant may have no prior criminal record, clearly defendant’s participation in the offense was greater than that of Bowen. We cannot say under such circumstances that the sentences imposed were unfairly disparate.

As for the reference to defendant killing his son to keep the child from crying, a court, in fashioning a sentence, may consider evidence from sources other than the trial itself. (See People v. Meeks (1980), 81 Ill. 2d 524, 535, 411 N.E.2d 9, 14-15.) The reference complained of came from the suppression hearing and defendant’s statements to the police. We do not believe the court erred in considering such evidence. As the sentence imposed upon defendant falls within the statutory range for first-degree murder, we find no abuse of the trial court’s discretion.

For the aforementioned reasons, we affirm defendant’s conviction and sentence for first-degree murder. We, however, vacate defendant’s convictions for aggravated battery to a child and cruelty to a child.

Affirmed in part; vacated in part.

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


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    AUBREE A. PELC, Plaintiff-Appellee, v. MARK SIMMONS, Defendant-Appellant.
    Fifth District
    No. 5-92-0777
    Opinion filed September 10, 1993.

      Thomas Benedick, of O’Fallon, for appellant.
    Harry J. Sterling, of Harry J. Sterling, P.C., of Fairview Heights, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

The defendant, Mark Simmons, appeals from a judgment of $1,200; the judgment stated that if defendant paid plaintiff $1,400 defendant could take possession of the automobile. The judgment was entered by the circuit court sitting without a jury on plaintiff’s small claims complaint. On appeal, defendant only contends that the judgment is against the manifest weight of the evidence.

The small claims complaint alleged that “on 7-11, 1992 Defendant orally alleged 1978 Sunbird sold to Plaintiff was in above-average condition. However, vehicle fails to run at all, causing Plaintiff to lose employment, money for college and personal and emotional distress.”

Trial was held on October 20, 1992. Defendant’s automobile was placed on Wayne Dressel’s used car lot for exposure. When plaintiff expressed an interest in the car, she was referred to defendant, who sold her the automobile. Donald Henson testified that he is plaintiff’s uncle. Henson went to Dressel’s used car lot, started defendant’s automobile, a 1978 Pontiac Sunbird, listened to it run, checked the oil, and looked at the engine. Henson noticed that the engine had been repainted and asked Dressel what he knew about the car. Dressel replied that defendant or defendant’s father had told him that the engine had been rebuilt; to what extent Dressel did not know. When Henson telephoned defendant, defendant stated that he had rebuilt the engine because the timing chain “went out.” Defendant stated that he wanted $2,200 for the car, and Henson responded they wanted to spend approximately $1,500. Approximately 90 minutes later, defendant telephoned Henson and stated that he would sell it for $1,500. In response to Henson’s statement that the engine had been rebuilt or repainted, defendant responded that he had personally rebuilt the engine. He further stated, “The only thing that’s wrong with it [the automobile] is the air conditioning,” which needed the compressor charged. The next day, plaintiff purchased defendant’s vehicle.

Henson further testified that several days later, in response to plaintiff’s call for assistance, he was able to start the car after the first attempt failed. Because smoke was coming out “real bad,” Henson pulled all four spark plugs and observed that they were caked with oil. Henson ran a compression check, and each cylinder would hold only approximately 60 pounds of pressure rather than the 95 to 98 pounds of pressure that a properly functioning cylinder should hold. Air was blowing out of the tray case, coming through the carburetor, and coming out the intake. Henson could turn the crank by hand. He opined that in its present condition the vehicle is worth $200 for parts. The vehicle is drivable, but it would have to be refilled with four quarts of oil daily. Henson had previously rebuilt an automobile engine. Henson conceded that he checked the oil and drove the automobile on the used car lot. Dressel would not allow him to drive it off the lot because it was not insured. Henson explained that he could not tell if the automobile was smoking, because the used car lot “was chat [sic] and dusty.”

Plaintiff, age 22, testified that she purchased the Sunbird on July 10, 1992. She had previously gone with her uncle to Dressel’s used car lot to look at the vehicle, and Dressel stated that it was a good car. On the Sunbird was a sign: “sold as is.” Her uncle repeated to her the representations concerning the vehicle that defendant made to Henson. On July 14, she heard the engine knocking. She drove five miles home and put oil in the car. Plaintiff had to replace the car’s battery on July 15 and fill the engine with oil. Between July 11 and July 15 she drove 103 miles. On July 19, she had the oil changed and drove from Valley Park, Missouri, to O’Fallon, Illinois, and back to Valley Park, approximately 60 miles round trip. On July 20, there was no oil in the automobile. On July 21, she took the Sunbird to a mechanic, and after conferring with the mechanic, plaintiff telephoned defendant in an effort to get her money back. Defendant stated that the automobile would stop using oil once the rings became seated; in approximately 500 to 2,000 miles. She then asked, “so after I put two thousand miles on this car, the rings will be seated?” Defendant said, “No, that’s not what I said.” Defendant explained that he was talking about a normal car, which confused plaintiff. When she next tried to start the automobile, the starter would not work. She did not have the money to repair the car. She paid $1,600 for the Sunbird and operated it for two weeks during which time she checked the oil daily, because Simmons told Henson the engine had been rebuilt and to check the oil. She did not remember how many times she added oil. Between the time she bought the car and July 15 when she added oil, she had driven the Sunbird 103 miles.

Diane Marie Henson, wife of Donald Henson, testified that when she went to pick up the Sunbird, defendant and Dressel were on the lot. Mrs. Henson asked defendant, “Will this [the Sunbird] make it back and forth to school and get her [plaintiff] to and from her work or whatever?” Defendant responded, “Oh, yes, it was a good little car.” Defendant advised that the oil needed to be checked every couple hundred miles for the first 1,000 miles and then every 2,000 or 3,000 miles.

Defendant, a certified airplane and aircraft power-plant mechanic, testified that he had performed standard maintenance and overhauled the automobile engine. He found no abnormal wear and experienced no problems during the overhaul. Defendant has rebuilt “several” automobile engines. The initial problem was the timing gear. Because he had to remove the engine to repair the timing gear, defendant decided to rebuild the engine. He drove the Sunbird, which had previously belonged to his mother-in-law, for approximately a month before deciding to sell it when he found a much newer automobile for sale. During the month defendant’s family drove the car, his family experienced no problems, and the vehicle used very little oil. Defendant told “them” that the Sunbird would bum oil, because the rings needed to seat in the cylinders. After 20,000 miles cylinders change shape, and it takes time for the rings to mask the shape of the cylinders. He also told plaintiff that the air conditioner needed to be serviced and the front end needed alignment.

Defendant opined that plaintiff may have possibly driven the car while the oil was low, which caused the rings to wear down. Between July 11, when plaintiff picked up the car, and July 14, when she first checked the oil, the oil could have been used up. Defendant further opined, without having examined the engine, that the cost of repair would be $100 to $500. Defendant could not express an opinion of the value of the Sunbird in its present condition; however, a car that old should be taken to a junkyard. A used engine would cost between $300 and $800, and then the Sunbird would be worth $1,500.

Defendant conceded that cracked rings could be the cause of the oil-consumption problem. Someone could have tampered with the oil plug which resulted in loss of oil. A problem with the timing gear may prevent the automobile from running.

In awarding judgment for the plaintiff, the court found:

“The evidence is persuasive that there was a verbal representation made relative to the condition of this vehicle and that in fact — and also that the instructions given relative to what is to be done with making sure the vehicle didn’t burn up because of lack of oil were not sufficient. Mr. Simmons’ testimony is that he told the folks — the buyers to check it often.
The testimony in evidence which is uncontradicted was it was to be checked at least four days and then another days [sic] afterward if it wasn’t checked every day. I just can’t buy the fact that this car has to be checked on a daily basis, that running approximately two hundred fifty miles or three hundred fifty miles is sufficient to burn up that engine.
I believe that the evidence is sufficient to persuade me that the representations were improper, that the warranties were breached, and that the damage that was done to the engine was not caused by any misuse of the vehicle by the plaintiff.
I’m not suggesting, by the way, in this comment that the defendant did — the defendant did anything purposely wrong or negligent. That’s not the issue in this case. The issue in this case is a breach of a contract and a warranty. And therefore, I believe that the — therefore, I find in favor of the plaintiff.”

Defendant initially contends that no warranties were made by defendant to plaintiff. Plaintiff testified that a sign on the Sunbird stated “sold as is.” The term “as is” is generally understood to mean that the buyer is purchasing goods in their present condition with whatever faults they may possess. (Lake Bluff Heating & Air Conditioning Supply, Inc. v. Harris Trust & Savings Bank (1983), 117 Ill. App. 3d 284, 292, 452 N.E.2d 1361, 1367.) The term is similar to terms such as “with all faults” or “in its present condition” and implies that the seller is relieved of any further obligation to reimburse for loss or damage because of the condition of the goods. Lake Bluff Heating & Air Conditioning, 117 Ill. App. 3d at 292, 452 N.E.2d at 1367.

Section 2 — 316(3)(a) of the Uniform Commercial Code (UCC) states:

“(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.” Ill. Rev. Stat. 1991, ch. 26, par. 2 — 316(3)(a).

In the case at bar, the vehicle had a sticker which stated that it was “sold as is.” Defendant’s statement that he had rebuilt the engine did not create an express warranty for the engine. If we were to accept the argument that defendant had made an express warranty of the engine by merely stating that he had rebuilt it, then anyone who stated that he had made a specific repair of a vehicle would be expressly warranting that repair. Further, plaintiff presented no evidence as to what caused the engine to use excessive amounts of oil. With no such evidence before the court, we are unable to determine the cause of the failure.

Words do have meaning. “Sold as is” when posted on a used car means just that; to rule otherwise would make it meaningless and create a new body of law as to what words need be published and what words need to be said or not said in order to sell something without a warranty.

For the foregoing reasons, the judgment of the circuit court is reversed.

Reversed.

RARICK and LEWIS, JJ., concur.


author: JUSTICE STOUDER

text:
    OTTMAR BECKER et al., Plaintiffs-Appellants, v. WALLACE COLD et al., Defendants-Appellees.
    Third District
    No. 3—92—0947
    Opinion filed August 4, 1993.

      Lowe & Steinmetz, Ltd., of Aurora (Ralph E. Lowe, of counsel), for appellants.
    Donald D. Knuckey, of Henry, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Ottmar Becker, Raymond Mason and the Lake Thunderbird Association, brought a class action against the 1,717 owners of property in a subdivision known generally as the “Lake Thunderbird Development.” The plaintiffs sought a judgment declaring certain provisions of the “Declaration of Restrictive Covenants” (the Covenants), imposed on the properties of the development, void and unenforceable. The amended complaint alleged the named defendants, Wallace Cold and Elmo Fowler, would fairly and adequately protect the interests of the class. The circuit court of Putnam County granted the defendants’ motion to dismiss and ordered the litigation terminated pursuant to section 2 — 615(d) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615(d)). The plaintiffs appeal. We affirm.

According to the amended complaint, the Lake Thunderbird Development is located partially in both Bureau and Putnam Counties. Development of the subdivision commenced in the late 1960’s. The lots in the subdivision are encumbered by the Covenants, which, inter alia, provide for the establishment of a property owners association (referred to hereinafter as the Association). Pursuant to the Covenants, the developer, American Central Corporation, at one point transferred to the Association title to various recreational facilities located within the subdivision, including a clubhouse and Lake Thunderbird. The developer also transferred to the Association the title to roads and a public water supply and distribution system.

The Covenants also provided for the assessment of a $26 annual maintenance fee against each lot in the subdivision. This fee was to be used for the upkeep of the common areas. The Covenants provided for adjustments to the annual maintenance fee, as well as other means to raise needed funds. Article V, section 4, of the Covenants provided in pertinent part: “After the establishment of the Association and the conveyance thereto of the Common Properties by the Developer, the Association may change the annual Maintenance Fee on lots in The Properties subject to the approval of the Owners of not less than 2k of the lots affects [sic] by any such change. Any such change must, however, bear a reasonable relationship to changes in costs or the scope of benefits to Owners [sic] to be provided thereby and by [sic] such change shall be for the exclusive benefit of such Owners. After such date the Association may also, with the consent of the Owners of 2/3 of the lots in the Community levy special assessments for capital improvements or other non-recurring expenditures for the maintenance or improvement of the Common Properties payable within one year from the date of such levy.”

In count I of their amended complaint, the plaintiffs alleged in pertinent part: “Since the recording of said covenants there have been material changes in circumstances affecting the properties that plaintiff Association is obliged to maintain, in that, among other things, the annual cost of maintaining said properties, on a per lot basis, exceeds one hundred and fifty dollars, whereas the annual assessment provided for in the covenants remains at twenty six dollars.” Count I alleged the procedure for increasing the annual assessment was- unreasonable and that enforcement would be contrary to public policy. Count I requested the circuit court declare article V, section 4, void and unenforceable, and use its equitable powers to grant any further necessary relief.

In count II, the plaintiffs alleged the transfer of the common areas from the developer to the Association created a trust in which the Association, acting as a trustee, held and maintained the common areas for the benefit of the lot owners. The plaintiffs alleged the method provided for in the Covenants for adjusting the annual assessment was “unworkable on its face.” The plaintiffs further asserted, “[T]he Developer-Settlor could not have anticipated nor have known of the inflationary forces in play since creation of the trust; and continued compliance with the aforesaid lot assessment limitations will defeat or substantially impair the continued accomplishment of the purposes of the trust.” The plaintiffs requested that the circuit court find that a trust existed, and that the “Association-Trustee” was unreasonably impaired in carrying out its duties by the requirements found in article V, section 4, of the Covenants. The plaintiffs asked the court to find the provision no longer binding on the Association. The plaintiffs wanted the court to devise a workable alternative method for raising funds.

Following a hearing, the circuit court granted the defendants’ motion to dismiss finding the plaintiffs’ amended complaint failed to state a cause of action. The court subsequently denied the plaintiffs’ motion for rehearing.

On appeal, the plaintiffs assert a number of arguments to support their contention that the circuit court erred in granting the motion to dismiss. Because we agree the complaint fails to state a cause of action for which relief could be granted, we need not address specifically each one of the plaintiffs’ arguments.

However, we do address one preliminary argument, i.e., that the circuit court erred in granting the defendants’ motion because the defendants failed to designate under which provision of the Code the motion was brought. Meticulous practice dictates that a lawyer specifically designate whether his motion to dismiss is brought pursuant to section 2 — 615 of the Code rather than section 2 — 619. (See Galayda v. Penman (1980), 80 Ill. App. 3d 423, 399 N.E.2d 656.) However, while the failure to make the proper designation should not be countenanced, it is not always fatal to the movant prevailing on the motion. (See Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 582 N.E.2d 108.) Generally, reversal is required in such cases where the movant’s failure to designate results in prejudice to the nonmovant. Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 450 N.E.2d 1360.

In the instant case, the plaintiffs do not allege how they were prejudiced by the defendants’ failure to specifically designate the provision of the Code under which the motion was brought. The record shows that at the time of the hearing on the motion to dismiss, the plaintiffs recognized the defendants’ motion was brought pursuant to section 2 — 615, and so argued accordingly. The circuit court treated the motion as a section 2 — 615 motion and, in granting the motion, terminated the litigation relying on the authority given in section 2— 615(d). Under these circumstances, the plaintiffs have failed to show they suffered any prejudice of a nature sufficient to warrant a reversal in this case.

Looking to the plaintiffs’ substantive arguments, we are mindful of the general rule that a trial court may grant a section 2— 615 motion when a complaint does not contain allegations of fact sufficient to state a cause of action. (Singer v. Brookman (1991), 217 Ill. App. 3d 870, 578 N.E.2d 1.) And without reaching the issue of whether a trust was created in this case, we find, on reviewing the amended complaint, that it does not allege sufficient facts to state a cause of action. While the complaint alleges the procedure for changing the annual maintenance fee is “unreasonable” and “unworkable,” the plaintiffs allege no factual basis for these conclusional allegations. In short, the plaintiffs have failed to allege why the procedure is unreasonable and unworkable. In ruling on a motion to dismiss for failure to state a cause of action, a court must accept as true all well-pleaded facts; however, the court need not accept conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. (Hensler v. Busey Bank (1992), 231 Ill. App. 3d 920, 596 N.E.2d 1269.) We note the plaintiffs did not, and do not, challenge the circuit court’s termination of this litigation. They did not ask leave to amend their complaint.

In sum, we find the circuit court correctly determined that the plaintiffs’ amended complaint failed to state a cause of action and thus granted the defendants’ motion to dismiss.

Therefore, the judgment of the circuit court of Putnam County is affirmed.

Affirmed.

SLATER and BRESLIN, JJ., concur.


author: JUSTICE COLWELL

text:
      In re DAVID STONE, Alleged to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. David Stone, Respondent-Appellant).
    Second District
    No. 2—92—0283
    Opinion filed September 2, 1993.

      William E. Coffin, of Guardianship & Advocacy Commission, of Chicago, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court:

Respondent, David Stone, appeals the order of the circuit court finding him to be a person subject to involuntary admission and ordering him hospitalized with the Department of Mental Health and Developmental Disabilities (405 ILCS 5/3 — 700 (West 1992)). Respondent raises three issues for review: (1) whether the order for involuntary admission must be reversed because the petition was not filed within 24 hours of respondent’s admission; (2) whether the failure of the State to make a complete verbatim record at the hearing was reversible error; and (3) whether the State’s failure to adhere strictly to the procedures set forth in the Mental Health and Developmental Disabilities Code (405 ILCS 5/1 — 100 et seq. (West 1992)) (Mental Health Code) deprived the trial court of subject matter jurisdiction, thereby rendering the order void. We reverse.

Respondent was admitted to Singer Mental Health Center (Singer) on February 9, 1992, after being transferred from the emergency room at St. Anthony Hospital in Rockford. The State filed a petition for respondent’s involuntary admission on February 11, 1992. One of the physician’s certificates stated, that respondent was examined on February 9 at 7:05 p.m. at St. Anthony Hospital. The other certificate stated that respondent was examined by another doctor on February 10 at 12:15 p.m. at Singer. Both certificates stated that respondent was mentally ill, and, because of the illness, respondent was expected to inflict serious physical harm on himself or another.

Social worker Pamela Pickett testified at the hearing that she was working in the emergency room when respondent came in. He was intoxicated and crying. He told Pickett that he had driven from Idaho and was looking for his girlfriend, who had relatives in the area. Respondent told Pickett that if he could see his girlfriend’s father, he would kill him. Respondent showed Pickett a scar on his abdomen and one on his leg. Respondent said he had stabbed and cut himself in November 1991 and that he had been hospitalized as a result. Respondent also told Pickett that he was so devastated by his situation that he might “destroy or mangle himself or stab himself.” Respondent indicated that he did not care what happened to himself and that he might go outside and freeze to death because “[t]hat would be better for everybody.”

Laura Colcord, a registered nurse who was working in the emergency room when respondent came in, testified that respondent was crying inappropriately and would not answer questions. He smelled strongly of alcohol. Colcord overheard respondent tell a doctor that he wanted to kill himself.

Warren Lewis, a psychiatrist, examined respondent on February 14, 1992. Respondent told Dr. Lewis that he came to Rockford from California by way of Boise, Idaho, to try to see his ex-girlfriend. Respondent had been under great emotional stress. He had no job, no place to stay, no local friends, and limited funds. Respondent became exhausted by the trip, and, after drinking, began having suicidal thoughts. Respondent called a cab to take him to the hospital.

Dr. Lewis’ findings were based, in part, on nursing notes from respondent’s hospitalization at Singer. The nurse reported in one note that defendant was treated at a hospital in California for injuries to his abdomen and his ankles, and he was released after three days. Dr. Lewis opined that respondent was mentally ill and that, as a result, he was expected to inflict serious harm upon himself or his ex-girlfriend and her family in the near future. Dr. Lewis diagnosed respondent as suffering from bipolar disorder, mixed type, “with depression showing obsessive, compulsive behavior, unresolved feelings of grief and loss.”

Respondent testified against his counsel’s advice, and in his testimony respondent explained that he came to Rockford to “reach a resolve” in the relationship with his ex-girlfriend, and he had no intention of harming anyone. He did not intend to reestablish the relationship. Respondent had driven 1,700 miles nonstop, a 30-hour trip. Respondent was mentally and physically exhausted by the time he reached Rockford. According to respondent, he resolved the situation, and he and his ex-girlfriend decided to go their separate ways. Respondent indicated that, at the time of the hearing, he was not suicidal. Respondent admitted that he inflicted harm on himself in California, but he denied that it was an attempted suicide.

The testimony from the hearing was recorded on a cassette tape with no court reporter present. During the trial court’s explanations of its findings, the tape ended. In a written order, the court ordered respondent involuntarily committed to Singer. Respondent timely appealed.

Respondent first contends that the order of involuntary admission must be reversed because the State failed to follow the statutory requirements for filing the petition. Section 3 — 611 of the Mental Health and Developmental Disabilities Code states, in relevant part:

“Within 24 hours, excluding Saturdays, Sundays and holidays, after the respondent’s admission under this Article, the facility director of the facility shall file 2 copies of the petition, the first certificate, and proof of service of the petition and statement of rights upon the respondent with the court in the county in which the facility is located. Upon completion of the second certificate, the facility director shall promptly file it with the court.” (405 ILCS 5/3 — 611 (West 1992).)

Respondent argues that since he was admitted on February 9, a Sunday night, and the petition was not filed until February 11, the petition was untimely.

Since respondent was admitted on a Sunday, under section 3— 611, the 24-hour time period began to run at the beginning of Monday, February 10. The State responds that because the 24-hour period ran until the beginning of Tuesday morning, and court is not in session at that time, the State was allowed to file the petition as soon as court opened Tuesday morning. The State cites no authority for its proposed business hours exception to the plain statutory language of “[wjithin 24 hours, excluding Saturdays, Sundays and holidays.” Involuntary commitment procedures infringe on a person’s liberty interest, and, therefore, these statutory sections must be construed strictly in favor of thé respondent. In re Splett (1991), 143 Ill. 2d 225, 236.

Moreover, this court recently rejected the State’s interpretation. (In re La Touche (1993), 247 Ill. App. 3d 615.) In La Touche, we determined that section 3 — 611 allows only one business day in which to comply with the 24-hour requirement. (La Touche, 247 Ill. App. 3d at 618.) Under La Touche, if a person is admitted on a Saturday, Sunday or holiday, the 24-hour period in which the petition must be filed begins at midnight of the next day that is not a Saturday, Sunday or holiday, and it expires at midnight the following day. (La Touche, 247 Ill. App. 3d at 619; see also In re Elkow (1988), 167 Ill. App. 3d 187, 193.) The designation of midnight may cause confusion, as the State here asserts that “midnight on Monday night is actually Tuesday morning.” For clarification, we believe that the 24-hour period should be said to begin at 12:01 a.m. of the next day that is not a Saturday, Sunday or holiday, and expires at 12:01 a.m. the following day.

Timeliness of the petition here required that it be filed before 12:01 a.m. February 11, that is, filed on February 10, which it was not. We therefore agree with respondent that the petition was not filed timely.

The State argues that because respondent failed to object to the late filing, he has waived the issue. The State relies on In re Nau (1992), 153 Ill. 2d 406, and In re Splett (1991), 143 Ill. 2d 225, where the supreme court determined that the failure to object to the State's failure to comply strictly with the Mental Health Code did not require reversal. The error in Nau and Splett concerned the notice to the respondents. (Nau, 153 Ill. 2d at 416; Splett, 143 Ill. 2d at 229.) In both cases, the court found that the error was not reversible because the respondents received actual notice, which satisfied the purpose of the notice requirement. (Nau, 153 Ill. 2d at 419; Splett, 143 Ill. 2d at 232.) The respondent’s failure to object to a procedural defect “ ‘ “that could and should have been objected to immediately, could have been easily cured if timely objected to, and made no difference anyway” ’ ” waives the issue for review. Nau, 153 Ill. 2d at 419, quoting Splett, 143 Ill. 2d at 231, quoting In re J.W. (1981), 87 Ill. 2d 56, 62.

The failure to comply strictly with the notice requirements is different, however, from the failure to file the petition timely. In Nau and Splett, the respondents received actual notice, thereby satisfying the purpose of the statutory section. Here, the purpose of the statutory section requiring immediate action on an emergency admission has not been satisfied.

In addition, the La Touche court found that the Nau and Splett rationale did not apply to the case before it because neither the respondent nor his counsel indicated that the petition was filed timely. (La Touche, 247 Ill. App. 3d at 618.) Here, also, neither respondent nor his counsel admitted or indicated that the petition was filed timely.

The State further argues that under the second part of Nau, respondent waived the issue by failing to object. The court in Nau concluded that the respondent waived the issue of the timeliness of the petition for continued hospitalization because he failed to object at the hearing. (Nau, 153 Ill. 2d at 421.) La Touche determined that Nau did not apply because the error in failing to file an emergency petition timely was not the type of error which could be cured if objected to promptly. (La Touche, 247 Ill. App. 3d at 620.) Furthermore, the late filing of the petition for continued commitment in Nau was harmless error because the petition qualified as a timely petition for initial commitment. (Nau, 153 Ill. 2d at 423; see also In re Houlihan (1992), 231 Ill. App. 3d 677, 682.) The petition here did not qualify as a timely petition under any of the statutory sections. Thus, Nau is distinguishable, and, under La Touche, respondent’s failure to object to the timeliness of the emergency petition did not waive the issue and the error is not harmless.

Because we reverse the court’s order of involuntary commitment, we need not address respondent’s remaining contentions. We note, however, our concern about the failure of the court to make a complete verbatim record of the proceedings. As respondent points out, many portions of the transcript are incomplete because the testimony was inaudible, and the judge’s findings were not set out fully because the tape ended. As we recently stated, “[w]e urge the future use of court reporters during such hearings in order to avoid the consequences of this scenario.” In re Friberg (1993), 249 Ill. App. 3d 86, 92-93.

The judgment of the circuit court is reversed.

Reversed.

BOWMAN and QUETSCH, JJ., concur.


author: JUSTICE QUETSCH

text:
    DOUGLAS VANCE, Plaintiff-Appellant, v. DINATHA WENTLING, Defendant-Appellee.
    Second District
    No. 2—92—0954
    Opinion filed September 7, 1993.
    Louis E. Olivero, of Louis E. Olivero & Associates, of Peru, for appellant.
    Timothy D. McMahon and John F. O’Reilly, both of Wiedner & McAuliffe, of Chicago, for appellee.
   JUSTICE QUETSCH

delivered the opinion of the court:

Plaintiff, Douglas Vance, appeals from an order of the circuit court of Lee County dismissing his action against defendant, Dinatha Wentling, pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(9) (West 1992)). In his two-count complaint, plaintiff alleged that an injury he sustained while working at Raynor Manufacturing Company (Raynor), was aggravated when defendant, a licensed practical nurse employed by Raynor, directed him to return to work. On appeal, plaintiff contends that the exclusive remedy provisions of the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1992)) are inapplicable to his common-law action against defendant based on intentional tort and professional malpractice theories and, accordingly, the trial court erred in dismissing the action pursuant to the Act.

In his complaint, plaintiff alleged that on or about October 14, 1989, while plaintiff was employed in Raynor’s shipping department, he injured his left arm while loading a truck. Plaintiff consulted his personal physician, who advised plaintiff to undergo whirlpool treatments and not to return to work for two weeks. Thereafter, defendant, in her capacity as a plant nurse, instructed plaintiff to submit to a medical examination by a physician in Dixon, Illinois. This physician concurred with the recommendations of plaintiff’s personal physician. Contrary to the recommendations of both physicians, defendant directed plaintiff to return to work in the shipping department, where while performing his assigned duties on October 26, 1989, plaintiff suffered further injury to his left arm. Count I of the plaintiff’s complaint sought recovery under an intentional tort theory, and count II asserted a theory of professional malpractice.

Defendant moved to dismiss the action pursuant to section 2— 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(9) (West 1992)) on the basis of section 5(a) of the Act (820 ILCS 305/5(a) (West 1992)) and defendant’s affirmative allegation that plaintiff had previously entered into a settlement with Raynor of his worker’s compensation claims arising from the injury to his arm. The trial court granted the motion to dismiss, and following the denial of plaintiff’s motion to reconsider, plaintiff timely filed this appeal.

We first address plaintiff’s contention that the trial court erred in dismissing count I of his complaint which, according to plaintiff, asserts an intentional tort theory. Section 5(a) of the Workers’ Compensation Act (Act) (820 ILCS 305/5(a) (West 1992)) provides, in pertinent part:

“No common law or statutory right to recover damages from the employer *** or the agents or employees of *** [the employer] for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.”

Plaintiff argues that this provision does not bar a common-law action against a co-employee seeking recovery for injuries that were intentionally inflicted. While plaintiff devotes a considerable portion of his initial brief to the discussion of decisions in Illinois and other jurisdictions which so hold, we find no controversy as to this proposition. The appellate court addressed the issue of a co-employee’s liability for an intentional tort in Jablonski v. Multack (1978), 63 Ill. App. 3d 908. The Jablonski court observed:

“[T]he socially beneficial purpose of the workmen’s compensation law was not meant to permit a person who commits an intentional tort to use the compensation law as a shield against liability [citation]. Moreover, in view of the fact that benefits under the Act are paid from employers’ premiums as a means of spreading the cost of hazards of the work place [citation], we do not believe the legislature intended that an intentional tortfeasor could shift his liability for his acts to such a fund.
We hold, therefore, that an employee who commits an intentional tort may not raise the Act as a bar to an action for damages by a fellow worker.” 63 Ill. App. 3d at 915.

In Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, our supreme court adopted the reasoning in Jablonski and expressly held that the exclusive remedy provisions of the Act do not bar employees from pursuing a common-law action against co-employees for injuries arising out of intentional torts. According to the court, “[t]he co-employee should not be permitted to assert that the plaintiff’s injuries were accidental and therefore barred under the exclusivity provisions of the Act, when he himself committed the intentional tort.” 139 Ill. 2d at 472.

Defendant acknowledges this principle, but maintains that dismissal of this lawsuit (which was filed on October 3, 1991) was nonetheless proper because plaintiff previously applied for worker’s compensation benefits and thereafter entered into a lump sum settlement contract (which referred to both October 14 and October 26, 1989, as the dates of onset of disability) with his employer which was approved by the Industrial Commission on September 27, 1991. In support of this argument, defendant relies upon our supreme court’s decision in Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229. In Collier, the plaintiff brought a common-law action for intentional infliction of emotional distress based upon treatment he received at his place of employment after being stricken with chest pains. Named as defendants were the plaintiffs employer and a nurse or medical attendant employed by plaintiff’s employer. The plaintiff had previously entered into a settlement agreement, which was approved by the Industrial Commission, releasing his employer from all liabilities under the Workmen’s Compensation Act in exchange for a lump sum payment. After concluding that the employer could not be held liable for the intentional conduct of its employee since the employer did not direct, encourage or commit an intentional tort (81 Ill. 2d at 239), the court turned to the question of whether the action could be maintained against the nurse. The court stated:

“[W]e have never considered whether a suit could be brought against a coemployee for civil damages for an intentional tort arising out of and in the course of employment. It is not necessary that we address that question here, for we deem that where an employee injured by a coemployee has collected compensation on the basis that his injuries were compensable under the Act, the injured employee cannot then allege that those injuries fall outside the Act’s provisions. We base this conclusion not only upon a fear of double recovery [citation], but also upon our desire to prevent the proliferation of litigation. [Citation.] Since this plaintiff has collected compensation pursuant to an agreement executed in lieu of a claim and approved by the Industrial Commission, giving that settlement the status of an award [citations], he is now precluded from suing for civil damages.” 81 Ill. 2d at 241-42.

See also Fregeau v. Gillespie (1983), 96 Ill. 2d 479; Copass v. Illinois Power Co. (1991), 211 Ill. App. 3d 205, 210-11 (observing that “[o]nce the employee takes the express position that the injury is compensable under the Act, he is subsequently barred from taking the mutually exclusive position that the injury was intentional,” but holding that employee’s widow’s acceptance of payments voluntarily tendered by employer, with no action taken before the Industrial Commission, was “not a clear and unequivocal act evidencing an assertion that the death is compensable under the Act,” and did not bar her action against her husband’s employer and co-employee); James v. Caterpillar Inc. (1993), 242 Ill. App. 3d 538 (receipt of worker’s compensation benefits barred common-law action against employer for intentional tort allegedly committed by employer); Mijatov v. Graves (1989), 188 Ill. App. 3d 792 (plaintiff who filed worker’s compensation claim against employer, which was settled, was precluded by the doctrine of judicial estoppel from taking position in common-law action against co-employee that her injury did not occur in the course of her employment, notwithstanding plaintiff’s contention that her employer never admitted that the injury occurred in the course of employment and the matter was never adjudicated by the Industrial Commission).

When our supreme court ultimately decided in Meerbrey that section 5(a) of the Act does not bar common-law actions against co-employees to recover for intentional torts, the court was careful to note that the plaintiff had not obtained compensation under the Act, and thus the rule set forth in Collier did not bar his common-law action. Accordingly, the decision in Meerbrey does not undermine the authority of Collier with regard to the circumstances of the case at bar. Thus, while the Act does not provide the exclusive remedy for an individual injured as a result of a co-employee’s intentional conduct, the injured individual is, in effect, bound to an election of remedies upon receiving compensation under the Act. See Carrillo v. Hamling (1990), 198 Ill. App. 3d 758, 762.

Here, as in Collier, plaintiff has entered into a settlement of all claims under the Act and has secured the Industrial Commission’s approval of the settlement. Accordingly, the trial court correctly found that under Collier plaintiff could not proceed with his common-law action against defendant.

Plaintiff has inexplicably taken the position that Collier only stands for the proposition that a plaintiff who has collected worker’s compensation benefits may not proceed in a common-law action against his or her employer. As defendant points out, and as our discussion above illustrates, Collier clearly involved the plaintiff’s common-law action against his co-employee. Plaintiff’s argument in this respect flies in the face of the clear language of Collier. Plaintiff also argues that the trial court erred in relying on Collier since that decision did not resolve the precise question of whether the Act’s exclusivity provisions bar a common-law action against a co-employee for intentionally inflicted injuries. As previously noted, the court found it unnecessary to address the issue because of its holding that, regardless of whether such an action could otherwise be maintained, the plaintiff was barred from proceeding against his co-employee when the plaintiff had already obtained compensation through a settlement (of his worker’s compensation claims) which was submitted to, and approved by, the Industrial Commission. The case at bar is indistinguishable from Collier in this respect.

Plaintiff also suggests that Collier is distinguishable from the case at bar because the facts recited by the court establish that the plaintiff in Collier had not actually alleged an intentional tort. Plaintiff contends that in Collier the plaintiff’s allegations, as described in the text of the opinion, were couched in terms of simple negligence. This argument is meritless as it is abundantly clear that the court assumed for purposes of its decision that a cause of action for an intentional tort had been stated. Indeed, at the beginning of the opinion the court states, “[a]t issue in this appeal is whether, assuming the plaintiffs allegations are sufficient to constitute a cause of action for the intentional infliction of emotional distress, such a cause of action will lie against the employer and coemployee defendants in view of [the exclusivity provisions of the Workmen’s Compensation Act].” (Emphasis added.) (Collier, 81 Ill. 2d at 232.) In effect, plaintiff is merely suggesting an alternative basis upon which our supreme court might hypothetically have decided Collier. Obviously, we have no power to rewrite the decision in Collier simply to suit plaintiff’s desire to avoid its adverse precedential effect. Accordingly, the trial court committed no error in dismissing count I of plaintiff’s complaint.

Plaintiff next contends that the trial court erred in dismissing count II of his complaint, which asserted a theory of professional malpractice. Relying primarily on cases from other jurisdictions, plaintiff argues that under the “dual capacity” doctrine an injured employee may maintain a professional malpractice action against a co-employee who is a health care professional, or that, alternatively, defendant, as a health care professional, should be viewed as an independent contractor not protected by the Workers’ Compensation Act’s exclusivity provisions. Defendant initially responds that plaintiff failed to raise this argument before the trial court and has therefore waived the argument on appeal. Issues not raised in the trial court are deemed waived and cannot be argued for the first time on appeal. (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 278; In re Estate of Kirk (1993), 242 Ill. App. 3d 68, 72.) Plaintiff protests that he did in fact raise the issue below. In particular, plaintiff notes that during the hearing on defendant’s motion to dismiss his attorney stated that plaintiff pleaded in count II of his complaint that defendant “acted as a medical professional and was negligent in the care that she provided.” Plaintiff also notes that he relied on the decision in Huntoon v. Pritchard (1939), 371 Ill. 36, during the proceedings below.

In Huntoon, our supreme court allowed a common-law action to proceed against an independent physician who allegedly was negligent in treating an injury the plaintiff sustained on the job. The court observed that the exclusivity provisions of the Workmen’s Compensation Act “apply only to the right of the employee against his employer and have no reference to the liability of third persons causing injury to the employee.” (371 Ill. at 43.) Since the defendant in Huntoon was not a co-employee of the injured plaintiff, that case is clearly inapposite to the case at bar and is no authority for the arguments plaintiff advances on appeal. Plaintiff’s argument on appeal based upon the “dual capacity” doctrine and cases from other jurisdictions permitting actions against co-employees acting as health-care professionals bears no resemblance to the arguments advanced during the proceedings below. Accordingly the issue is waived.

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

Affirmed.

BOWMAN and COLWELL, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH W. HAMPTON, Defendant-Appellant.
    Second District
    No. 2—92—0094
    Opinion filed September 2, 1993.

      David E. Camic, of Wilson, Camic & Colton, Ltd., of Aurora, and Marvin Bloom, of Chicago, for appellant.
    Dallas C. Ingemunson, State’s Attorney, of Yorkville (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Joseph Hampton, pleaded guilty in the circuit court of Kendall County to two counts of attempted murder (Ill. Rev. Stat. 1991, ch. 38, pars. 8 — 4(a), 9 — 1(a)(2) (now codified, as amended, at 720 ILCS 5/8 — 4(a), 9 — 1(a)(2) (West 1992))), and one count each of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4 (now codified, as amended, at 720 ILCS 5/12 — 4 (West 1992))), and armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18 — 2(a) (now 720 ILCS 5/18 — 2(a) (West 1992))). The court sentenced defendant to consecutive terms of imprisonment of 60 and 45 years on the attempted murder counts and concurrent terms of 5 and 30 years on the remaining charges. Defendant filed a motion to withdraw his guilty plea, which the court denied. Defendant appeals, contending that the court failed to admonish him properly pursuant to Supreme Court Rule 402(a) (134 Ill. 2d R. 402(a)) and that the consecutive sentences totalling 105 years were excessive.

Defendant, along with codefendant Jayme Sebers, was charged with the attempted murder, aggravated battery and armed robbery of Michael and Lauren Lichter. Defendant pleaded guilty to the charges. Prior to accepting the plea, the trial court admonished defendant pursuant to Rule 402. The court informed him that he was charged with attempted murder, a Class X felony, and of the minimum and maximum nonextended terms for such an offense. The court further stated that the State had requested extended-term sentences and that an extended-term sentence shall be not less than 30 nor more than 60 years. The court also stated that the sentences could be served either consecutively or concurrently and established that defendant understood the difference between consecutive and concurrent sentences. The court stated, “[I]n other words, the most serious offenses to which you have been charged with [sic] are Class X felonies and if under extended term the maximum sentence could be 60 years and if served consecutively, could be a maximum term of 120 years.”

The State then presented the following factual basis for the pleas. Manny Brown would testify that he went to his brother-in-law’s house at the end of Sundown Lane on August 24, 1990. As he was returning home he found an adult male and a female child unconscious and bleeding along the side of the road. He called an ambulance.

Kendall County sheriff’s deputy Chuck Bergeron would testify that he interviewed Jayme Sebers and defendant. When he first asked Sebers what happened to defendant’s car, Sebers stated that they had struck a deer while out driving. Later, Sebers admitted that they had struck a white male on Sundown Lane for the purpose of robbing him. Sebers admitted he took the man’s wallet and removed from it $250, which he split with defendant.

Defendant also initially told Bergeron that they had hit a deer. Later he, too, changed his story and admitted participating in the robbery. Defendant further stated that he took an ax handle from his car and struck Michael and Lauren Lichter about the head and body and left them on the roadway. Medical witnesses would testify concerning the Lichters’ injuries.

The court continued the cause for sentencing. Additional evidence concerning the nature and extent of the victims’ injuries, both physical and psychological, was introduced in aggravation. Bergeron testified about defendant’s continued efforts to kill the victims because they could identify him. Witnesses in mitigation testified concerning defendant’s nonviolent nature and his learning disability.

After hearing this evidence, the court sentenced defendant as noted above. In imposing the sentences, the court stated that it was required to impose consecutive sentences on the attempted murder counts. The court stated:

“The attorneys argued that they should be concurrent, the attorneys for the defendants. The State has argued they should be consecutivejj] however, I think what the attorneys for either side argue is immaterial as I believe the legislature has already answered that question by amending on July 1 of 1988, Section 1005 — 8—4(a), effective July 1, 1988, and removing the discretionary language whereby the court could impose consecutive sentences and requiring that consecutive sentences shall be imposed when one of the convictions is a Class X or a Class 1 Felony, and the Defendant inflicted severe bodily injury. Therefore, the sentences for the two charges of attempted murder shall be served consecutively with the charges of armed robbery and aggravated battery to be served concurrently.”

Defendant filed motions to withdraw his guilty plea and to reconsider his sentence. The court denied both motions, and defendant filed a timely notice of appeal.

Defendant’s first contention on appeal is that the court failed to admonish him concerning the mandatory consecutive sentences. Defendant contends that while the court informed him of the possibility of consecutive sentences, it did not mention that such sentences would likely be mandatory under the circumstances presented. The State responds that the court substantially complied with Rule 402 by informing defendant of the minimum and maximum sentences and that, in any event, the court’s admonishments were proper, since the court did not know that mandatory consecutive sentences would be required until it had heard the factual basis for the plea and the additional evidence in aggravation presented at the sentencing hearing.

Rule 402 requires that, prior to accepting a defendant’s guilty plea, the court admonish him concerning “the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences.” (134 Ill. 2d R. 402(a)(2).) The court must comply with Rule 402 substantially, rather than literally. People v. Walker (1985), 109 Ill. 2d 484, 498-99.

Defendant relies on People v. Brown (1991), 217 Ill. App. 3d 66, to support his contention that the court’s admonishments were insufficient. In Brown, the defendant initially received a five-year sentence for burglary and was released on his own recognizance until his sentence was to begin on November 2, 1988. When defendant failed to appear on that date, he was charged with escape. He pleaded guilty to that offense, and the court sentenced him to four years’ imprisonment, to be served consecutively to the burglary sentence. Brown, 217 Ill. App. 3d at 66-67.

Defendant moved to withdraw his guilty plea on the basis that the court failed to admonish him that his sentence for escape was required to be consecutive to his prior burglary sentence. The trial court denied the motion to withdraw the guilty plea, but the appellate court reversed. The court stated that “an awareness of the possibility of receiving a consecutive sentence does not equate with an understanding that a consecutive sentence is mandatory.” Brown, 217 Ill. App. 3d at 69.

The Brown rationale applies to this case. Although the court admonished defendant of the possibility of consecutive sentences, it failed to inform him that mandatory consecutive sentences would be required if the court found that defendant committed the offenses in a single course of conduct, where one was at least a Class 1 felony and defendant inflicted great bodily harm. (See Ill. Rev. Stat. 1991, ch. 38, par. 1005-8-4(a) (now 730 ILCS 5/5-8-4(a) (West 1992)).) To say that the possibility of consecutive sentences exists is simply not the same thing as saying that consecutive sentences must be imposed. This distinction could well have influenced defendant’s decision to forego his right to a jury trial and plead guilty.

The State’s contention that the court was unaware that mandatory sentences would be required until it heard the details of the offenses at the sentencing hearing is unavailing. The critical factors— that the offenses were part of the same course of conduct, that they were Class X felonies, and that defendant inflicted great bodily harm — must have been obvious from the charging instruments and from the nature of the offenses themselves. The informations charging attempted murder show that the offenses were committed on the same day and allege that defendant struck the victims in the head with a bludgeon. The information presented to establish the factual basis for the pleas and at the sentencing hearing merely added some detail to these charges but did not alter the nature of the offenses.

Moreover, the cases which the State relies on to support its position, People v. Laws (1990), 200 Ill. App. 3d 232, and People v. Crain (1988), 165 Ill. App. 3d 1052, are distinguishable. In each case, the defendant was initially. sentenced to probation and committed another offense while on probation. Each defendant moved to withdraw his original guilty plea because he was not admonished that a sentence for an offense committed on probation would have to be consecutive to the sentence imposed for the original offense. The courts rejected this contention, pointing out that the trial court is not required to anticipate at the time of initial sentencing that a defendant will violate his probation. The assumption that a defendant will comply with the terms of probation is inherent in the decision to grant probation in the first place. In the instant case, by contrast, it was clear from the nature of the offenses, as set forth in the charging instruments, that the mandatory consecutive sentence provision would most likely be implicated.

It is apparent, then, that defendant was not properly admonished pursuant to Rule 402. He should be permitted to withdraw his guilty plea and plead anew to the offenses. Because of our disposition of this issue, we need not consider defendant’s second contention concerning the length of his sentence.

For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

QUETSCH and COLWELL, JJ., concur.


text:
    ANNE JACHIM, Special Adm’r of the Estate of Michelle Jachim, Deceased, Plaintiff-Appellant, v. SUSAN M. TOWNSLEY, Defendant-Appellee (Dian J. Zeemin et al., Defendants).
    Second District
    No. 2—92—0902
    Opinion filed August 30, 1993.

      Terence J. Mahoney, of Walsh, Neville, Pappas & Mahoney, of Chicago, for appellant.
    Steven L. Larson and John W. Barbian, both of Wildman, Harrold, Allen & Dixon, of Waukegan, for appellee.
   JUSTICE QUETSCH

delivered the opinion of the court:

On March 25, 1991, the plaintiff, Anne Jachim, filed this action against the defendant, Susan M. Townsley, and other persons not parties to this appeal to recover damages incurred when Michelle Jachim, the minor daughter of the plaintiff, was killed in an automobile accident. Count III of the plaintiff’s first amended complaint charged defendant Townsley with negligence and with violation of section 6— 16(a) of the Liquor Control Act of 1934 (the Dramshop Act) (235 ILCS 5/6 — 16 (West 1992)). On July 25, 1991, the trial court dismissed the cause of action against the defendant pursuant to section 2 — 615 of the Code of Civil Procedure. (735 ILCS 5/2 — 615 (West 1992).) On March 19, 1992, the plaintiff filed a fourth amended complaint in which count IV again named the defendant as a party to the action. On June 29, 1992, the trial court ruled that count IV was barred by res judicata, and it entered a dismissal order pursuant to section 2— 619(a)(4) of the Code of Civil Procedure. (735 ILCS 5/2 — 619(a)(4) (West 1992).) The court also denied the plaintiff’s section 2 — 1401 petition of the Code of Civil Procedure (735 ILCS 5/2 — 1401 (West 1992)) for relief from the July 25, 1991, dismissal order. The plaintiff appeals the court’s order dismissing count IV of her fourth amended complaint and denying her section 2 — 1401 petition for relief. We affirm.

In count III of her amended complaint, the plaintiff alleged that Michelle Jachim was killed in an automobile accident which occurred while she was a passenger in a motor vehicle driven by David Duff, a minor. The accident happened after Duff left a birthday party held at the defendant’s home. The plaintiff complained that the defendant acted negligently when she served Duff alcohol at the birthday party and allowed Duff to become intoxicated and leave the party in a motor vehicle. The plaintiff also complained that the defendant’s actions violated section 6 — 16(a) of the Dramshop Act (235 ILCS 5/6 — 16 (West 1992)), which prohibits the sale or delivery of alcoholic liquor to persons under the age of 21 years.

The defendant filed a section 2 — 615 motion to dismiss, arguing that Illinois does not recognize a common-law cause of action in negligence for selling alcohol to minors. (Coulter v. Swearingen (1983), 113 Ill. App. 3d 650.) Further, as an uncompensated social host, she was not subject to liability under the Dramshop Act. (Heldt v. Brei (1983), 118 Ill. App. 3d 798, 800.) On July 25, 1991, the trial court dismissed with prejudice the cause of action against the defendant and ruled that there was no just reason to delay enforcement or appeal. The plaintiff did not appeal the court’s dismissal order.

On December 19, 1991, the Appellate Court, First District, filed Cravens v. Inman (1991), 223 Ill. App. 3d 1059, in which it recognized social host negligence liability for automobile accident injuries caused by an intoxicated minor driver. The court limited its holding to the facts alleged in the plaintiff’s pleading, where:

“(1) a social host has knowingly served alcohol, and permits the liquor to be served, to youths under 18 years of age at the social host’s residence, (2) the social host permits the minors’ consumption to continue to the point of intoxication, and (3) the social host allows the inebriated minors to depart from the residence in a motor vehicle.” Cravens, 223 Ill. App. 3d at 1076.

On March 19, 1992, the plaintiff in this case filed her fourth amended complaint. In count IV of that complaint, the plaintiff cited the Cravens holding and again sought to recover damages from the defendant under the theory of social host negligence liability. The defendant filed a motion to dismiss pursuant to section 2 — 619(a)(4), which provides for involuntary dismissal when -a cause of action is barred by a prior judgment. 735 ILCS 5/2 — 619(a)(4) (West 1992).

Prior to the court’s ruling on the defendant’s section 2 — 619(a)(4) motion to dismiss, the plaintiff joined in a section 2 — 1401 petition for relief from the July 25, 1991, dismissal order. The plaintiff argued that the facts of this case and Cravens are identical and that the court should therefore vacate its dismissal order.

On June 29, 1992, the trial court ruled that its July 25, 1991, dismissal order was res judicata and also that Cravens was not controlling in the second district. The court granted the defendant’s section 2 — 619(a)(4) motion to dismiss and denied the plaintiff’s section 2— 1401 petition for relief. The plaintiff appeals.

The plaintiff first contends that the trial court erred in ruling that res judicata bars count IV of her fourth amended complaint. The doctrine of res judicata requires a dismissal with prejudice where an action is barred by a prior judgment. (Singer v. Brookman (1991), 217 Ill. App. 3d 870, 875.) In order for res judicata to apply, there must be an identity of parties or their privies, identity of the cause of action and subject matter, and a final judgment on the merits in the earlier suit. Singer, 217 Ill. App. 3d at 875.

The plaintiffs contention is that res judicata does not apply because the Cravens decision created a new cause of action which did not exist at the time the trial court dismissed with prejudice the original cause of action on July 25, 1991. We disagree. This case is similar to In re Marriage of Allcock (1982), 107 Ill. App. 3d 150. There, the marriage between the petitioner and the respondent was dissolved by judgment on August 30, 1979. On April 14, 1980, the trial court approved a stipulation agreement which provided that the petitioner would receive 45% of the respondent’s monthly military nondisability retirement checks. Allcock, 107 Ill. App. 3d at 151.

On August 26, 1981, the respondent filed a motion to vacate the April 14, 1980, order. The respondent claimed that the order was void for want of jurisdiction. (Allcock, 107 Ill. App. 3d at 151.) The respondent based his argument on a recent Supreme Court decision, McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728, which held that the area of military nondisability retirement pensions had been preempted by the Federal government and that the pensions were not subject to division upon dissolution of marriage pursuant to State community property laws. The trial court denied the respondent’s motion to vacate, and he appealed.

The appellate court affirmed, holding that the res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact that the judgment may have been wrong or rested on legal principles later overruled in another case. (Allcock, 107 Ill. App. 3d at 153, citing Federated Department Stores, Inc. v. Moitie (1981), 452 U.S. 394, 398, 69 L. Ed. 2d 103, 109, 101 S. Ct. 2424, 2428.) Similarly, in this case, the res judicata consequences of the trial court’s final, unappealed judgment dismissing the cause of action against the defendant are not altered by Cravens’ holding that a social host can be held liable for automobile accident injuries caused by an intoxicated minor driver. The trial court did not err in dismissing count IV of the plaintiff’s fourth amended complaint.

The plaintiff next argues that the trial court erred in denying her section 2 — 1401 petition to vacate the July 25, 1991, dismissal order. Section 2 — 1401 provides a procedure by which a judgment may be vacated after 30 days of its entry. (735 ILCS 5/2 — 1401(a) (West 1992).) To be entitled to relief under section 2 — 1401, the plaintiff must affirmatively set forth specific allegations supporting: (1) a meritorious cause of action; and (2) due diligence in presenting both the action and the section 2 — 1401 petition for relief. (Salazar v. Wiley Sanders Trucking Co. (1991), 216 Ill. App. 3d 863, 870.) The plaintiff must prove her right to the relief sought by a preponderance of the evidence. (Salazar, 216 Ill. App. 3d at 870.) The determination of whether to grant the petition will not be disturbed absent an abuse of discretion by the trial court. Salazar, 216 Ill. App. 3d at 870.

The plaintiff contends that since the facts of this case and Cravens are identical, she now has a meritorious cause of action which had not been available when the trial court dismissed her original action for failure to state a claim. However, we have held that res judicata prevents the application of Cravens in this case. Moreover, the purpose of a section 2 — 1401 petition is to bring before the court errors of fact which were not known to the court or the moving party at the time of the judgment. (Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 209-10.) The plaintiff’s petition, however, is addressed to an alleged error of law. See In re Charles S. (1980), 83 Ill. App. 3d 515, 517 (a petition for relief brought under the predecessor to section 2 — 1401 is addressed to errors of fact, not law).

Furthermore, the Appellate Court, First District’s, holding in Cravens was not binding precedent upon the trial judge. Cravens is the only Illinois decision acknowledging common-law negligence liability where a social host has provided liquor to a minor. Although this court has not rendered an opinion on the subject, the Appellate Court for the Third, Fourth and Fifth Districts has issued opinions conflicting with Cravens. See Coulter v. Swearingen (1983), 118 Ill. App. 3d 650 (social host not liable when minor guest became intoxicated, drove car, and injured third party in vehicle collision); Flory v. Weaver (1990), 196 Ill. App. 3d 149 (social host not liable when minor guest became intoxicated and fatally shot another guest and himself); Martin v. Palazzolo Produce Co. (1986), 146 Ill. App. 3d 1084 (“social host” employer not liable to minor employee who became intoxicated and injured himself in automobile accident).

Under the Illinois rule of stare decisis between the various districts of the appellate court, a circuit court should follow the precedent of the appellate court of its district, if such precedent exists. (Sidwell v. Griggsville Community School District 4 (1991), 208 Ill. App. 3d 296, 299.) If not, it must follow the precedent of other districts. (Sidwell, 208 Ill. App. 3d at 299.) If the other districts are in disagreement, the circuit court máy then choose which precedent it considers to be most nearly correct. (Sidwell, 208 Ill. App. 3d at 299-300.) In this case, since no precedent existed in the second district and there was a disagreement among the other districts, the trial court was permitted to choose which precedent it considered to be correct. The trial court did not abuse its discretion in denying the plaintiff’s section 2 — 1401 petition for relief.

For the foregoing reasons, we affirm the trial court.

Affirmed.

BOWMAN and COLWELL, JJ., concur.


author: JUSTICE LYTTON

text:
    CHARLES JONES, Plaintiff-Appellee and Cross-Appellant, v. PEORIA COUNTY SHERIFF’S MERIT COMMISSION et al., Defendants-Appellants and Cross-Appellees.
    Third District
    No. 3—92—0953
    Opinion filed August 26, 1993.
    Rehearing denied October 6, 1993.

      Kevin W. Lyons, State’s Attorney, of Peoria (Chris L. Fredericksen, Assistant State’s Attorney, of counsel), for appellant George P. Shadid.
    Prusak, Winne & Wombacher, Ltd., of Peoria (William C. Wombacher, of counsel), for other appellants.
    Jackson, Mitchell & Collier, of Peoria (Donald R. Jackson, of counsel), for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

This case involves review of the Peoria County circuit court’s order requiring the defendant, the Peoria County Sheriff’s Merit Commission (commission), to impose discipline short of the commission’s original order of discharge of the plaintiff from the sheriff’s department. We reverse the circuit court’s order.

Plaintiff, Charles Jones (Jones), is a lieutenant employed by the Peoria County sheriff’s department. In August 1988, defendant George Shadid (Shadid), sheriff of Peoria County, was informed by the department’s fleet manager that vehicle No. 741, an unmarked squad car, had an unusually high amount of miles on it. Shadid determined that in a 22-day period of time Jones had used the car 15 to 16 times. Shadid ordered an investigation of Jones’ use of vehicle No. 741.

During the investigation, several incidents involving Jones arose that were in violation with a general order and a rule of the department. Specifically, Jones was observed seven times engaged in conduct that violated general order B-86-24. General order B-86-24 required all radio-equipped officers of the Peoria County sheriff’s department to advise the radio dispatcher of their location whenever they exited their vehicle for any reason. Jones was observed in Mister Donut and Hardees on these occasions without having advised the dispatcher of his location.

Jones was also observed engaged in conduct that violated Rule 2.9, which provides that officers are not to use department vehicles without permission, or for any use other than official business. Specifically, Jones was observed four times allowing Nena Blackard (Blackard), a 17-year-old high school student, to enter the department’s vehicle for purposes other than official police business. Jones did not receive permission from the sheriff to allow Blackard or any other female to be present in the department’s vehicle with Jones.

A complaint was filed against Jones with the commission alleging six counts of neglect of duty. A hearing was conducted by the commission, and on September 22, 1989, the commission entered an order finding Jones guilty of aU charges. The commission discharged Jones from employment from the sheriff’s department effective September 22,1989.

Jones filed a complaint in Peoria County circuit court for review of the commission’s decision. The circuit court conducted hearings on the complaint, and on March 26, 1992, entered an order sustaining the findings of the commission. However, the circuit court found insufficient cause for discharge and vacated the commission’s order as to the discharge. The circuit court remanded the matter back to the commission for a disciplinary decision other than discharge.

Pursuant to this remand, on September 14, 1992, the commission entered an order demoting Jones from the rank of lieutenant to the rank of deputy and suspended him without pay for a period of 180 days. The commission specifically indicated that its order was entered under protest and only to comply with the circuit court’s order so that the March 26, 1992, order would become final. This order was subsequently confirmed by the circuit court on December 2, 1992. However, the circuit court, instead of directing the commission to consider the issues of reinstatement, back pay and benefits, directed the commission to immediately reinstate Jones and to provide back pay. The court also determined that March 27, 1989, was the end of Jones’ six-month suspension.

Shadid and the commission appeal the circuit court’s order by right. Jones cross-appeals the commission’s decision by right. We reverse the circuit court and affirm the commission.

It is well established that an administrative agency’s findings of fact are to be considered prima facie true and correct. (Blunier v. Board of Fire & Police Commissioners (1989), 190 Ill. App. 3d 92, 101, 545 N.E.2d 1363, citing Ill. Rev. Stat. 1985, ch. 110, par. 3— 110.) This court reviews an agency’s findings of fact only to determine if they are against the manifest weight of the evidence. (Blunier, 190 Ill. App. 3d at 101.) There are no disputed facts at issue in the commission’s appeal.

The commission argues, however, that the circuit court erred in finding that there was insufficient cause for Jones’ discharge under these facts. This court must review an administrative agency’s application of the law to the facts, that is, the administrative decision itself. The standard of review of the correctness of an administrative decision is whether it “is against the manifest weight of the evidence. “ ‘A decision is contrary to the manifest weight of the evidence only when, after viewing the evidence in a light most favorable to the agency, the court determines that no rational trier of fact could have agreed with the agency’s decision.’ ” Blunier, 190 Ill. App. 3d at 101, quoting Service Employees International Local Union No. 316 v. Illinois Educational Labor Relations Board (1987), 153 Ill. App. 3d 744, 753, 505 N.E.2d 418.

In the instant case, the circuit court found that the commission’s findings “are not against the manifest weight of the evidence, except where contrary to the balance of this Order.” (Emphasis in original.) The court then went on to find that there was insufficient cause for the commission to discharge Jones. In so finding, the court expressly relied on Launius v. Board of Fire & Police Commissioners (1991), 211 Ill. App. 3d 545, 570 N.E.2d 532. The appellate court found that sufficient cause for the discharge of an officer must be based on actions “which reflect dishonesty or a flaw in integrity or character and which carry an implication that the officer is unfit to serve as a police officer.” Launius, 211 Ill. App. 3d at 556-57.

Applying this standard, the circuit court found that the charges against Jones did “not rise to that level,” nor were they “sufficiently detrimental to discipline nor do they sufficiently detract from the efficiency of the service to merit discharge.”

However, after the trial court issued its March 26, 1992, order, the Illinois Supreme Court reversed Launius. (Launius v. Board of Fire & Police Commissioners (1992), 151 Ill. 2d 419, 603 N.E.2d 477.) The supreme court expressly rejected the appellate court’s standard for determining cause upon which the Peoria County circuit court relied in this case. The supreme court defined “cause” as “ ‘ “some substantial shortcoming which renders [the employee’s] continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his [discharge].” ’ ” (Launius, 151 Ill. 2d at 435, quoting Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105, quoting Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360.) The court then stated that a “cause” finding is to be respected by a reviewing court and should be “ ‘overturned only if it is arbitrary and unreasonable or unrelated to the requirements of the service.’ ” (Launius, 151 Ill. 2d at 435, quoting Walsh, 96 Ill. 2d at 105.) Based on the fact that the circuit court relied on a standard for determining cause that was subsequently reversed by the supreme court, the circuit court erred. This, however, does not conclude our analysis.

The most damaging evidence that was introduced at Jones’ hearing involved Jones’ use of the police vehicles and his allowing Blackard to be present in the vehicles without permission. As stated earlier, Blackard was a 17-year-old high school student at the time of the incidents. Other officers observed Jones with Blackard in a police vehicle at various remote parking lots in Peoria. The officers testified that on two occasions, Blackard was seen kissing Jones on the cheek. Jones did not deny these allegations.

As to one of the incidents, Jones testified that he was talking with Blackard to help her with family problems. During this meeting, Blackard supposedly gave Jones some information regarding underage drinking parties. Although Jones said that he then investigated a party, he was seen taking a coffee break at Mister Donut. On the other occasions, Jones admitted that his contact "with Blackard had nothing to do with police business and that he did not have permission for Blackard to enter the vehicle.

As to the remaining evidence introduced regarding Jones’ failure to notify the dispatcher that he was away from the police vehicle in violation of general order B-86-24, the six-count complaint alleging Jones’ neglect of duty was not based on any of these "violations and, therefore, is not totally relevant to our inquiry of whether the commission’s decision was arbitrary or unreasonable.

It is well established that a court reviewing an agency’s decision is limited in its review and cannot substitute its judgment for that of the agency. (Kappel v. Police Board (1991), 220 Ill. App. 3d 580, 590, 580 N.E.2d 1314.) We hold that the commission’s decision to discharge Jones for the admitted conduct was related to the needs of the service of the Peoria County sheriff’s department and, therefore, was not an unreasonable or arbitrary form of discipline. Jones held a position of supervisory authority within the sheriff’s department. His example of allowing unauthorized persons into a police vehicle for furtherance of a personal relationship can be considered detrimental to the discipline and efficiency of the sheriff’s department. The liability considerations that are opened up by such activities are obvious. The circuit court erred in remanding the matter back to the commission to administer a discipline short of discharge, and its decision is reversed.

Based on our conclusion that the commission’s discharge of Jones was related to the needs of the service of the sheriff’s department, and was not arbitrary or unreasonable, we hold that Jones’ cross-appeal alleging that the commission’s decision to discharge was against the manifest weight of the evidence is without merit.

Because of our decision, the other issues raised by the parties need not be addressed.

The commission’s decision to discharge is affirmed. The order of the trial court is reversed.

Reversed.

BRESLIN and STOUDER, JJ., concur.