text:
    INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL No. 23, Plaintiff-Appellee, v. THE CITY OF EAST ST. LOUIS, Defendant-Appellant.
    Fifth District
    No. 5—89—0136
    Opinion filed May 15, 1991.

      Vickers, Moore & Wiest, of St. Louis, Missouri (Charles L. Wiest, Jr., of counsel), for appellant.
    Jack Carey, of Belleville, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

This is the second time that plaintiff, International Association of Firefighters Local No. 23 (Union), has had to sue the City of East St. Louis (City) to collect a promised allowance for firefighters’ clothes.

The first time, we held that the City was obligated to pay a clothing allowance for the years 1981 through 1985. We held this despite the City’s contention that the collective bargaining agreement between the parties was ambiguous in that it could be interpreted to mean either that the clothing allowance was to be incorporated into the firefighters’ base salary or that the clothing allowance was to be paid in addition to base salary. The City claimed that this ambiguity allowed parol evidence of the parties’ intent to be admitted, and the City claimed that the circuit court erred in refusing to admit the parol evidence. We disposed of the City’s contention by ruling that the collective bargaining agreement was not ambiguous and that the clothing allowance “applied to years subsequent to 1980.” (International Associates of Firefighters Local No. 23 v. City of East St. Louis (1988), 171 Ill. App. 3d 1166, 543 N.E.2d 625 (unpublished Rule 23 order).) This first case is referred to in this opinion as Firefighters I.

The City, in this case, appeals from the circuit court’s order, granting summary judgment, directing the City to pay plaintiff clothing allowances for the years 1986, 1987, and 1988, and ruling that this court’s decision in Firefighters I disposed of all issues raised by the City.

The City, in this appeal, claims that: (1) our earlier decision did not cover the clothing allowance for 1986, 1987 and 1988; consequently, the earlier decision only has collateral estoppel effect on this case, as opposed to res judicata-, and (2) plaintiff’s claim must be dismissed for failure to arbitrate the dispute, as required by the collective bargaining agreement.

We affirm.

The cornerstone of the City’s argument is that this contract is severable and failure to pay the clothing allowance for any year creates a separate cause of action; therefore, Firefighters I does not have res judicata effect.

Firefighters 7 is a Rule 23 order. Although Rule 23 orders have no precedential value and will not be published, they may be invoked to support claims such as double jeopardy, res judicata, collateral estoppel or when the Rule 23 order has become the law of the case. 134 Ill. 2d R. 23.

A threshold issue, then, in this case is whether our statement, “years subsequent to 1980,” in Firefighters I was dictum, or language central to the holding of the case. If it was dictum,, it has no preclusive effect. If it was central to our holding in Firefighters I, it wül have preclusive effect.

Parties and their privies are precluded from litigating in a later case issues that were determined in a previous case. (Simcox v. Simcox (1989), 131 Ill. 2d 491, 546 N.E.2d 609.) Commonly called “collateral estoppel,” more recently and more accurately called “issue preclusion” (see Restatement (Second) Judgments §27 (1982)) this doctrine is designed: (1) to protect litigants from the burden of retrying identical issues with the same party; (2) to enhance judicial economy by prohibiting repetitive litigation; and (3) to guard against successive inconsistent judgments involving the same issue. Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 447 N.E.2d 834.

Issue preclusion applies when a party or someone in privity with the party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 461 N.E.2d 959.) That is to say that issue preclusion bars the relitigation of issues that were logically necessary in rendering the prior judgment. Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 421 N.E.2d 278.

Firefighters I involved unpaid clothing allowances for 1981 through 1985. This case involves unpaid clothing allowances for 1986 through 1988. Though different years are involved in each action, the central issue involved in both was whether the City was required under the collective bargaining agreement to pay clothing allowances for the years subsequent to 1980. In other words, the years involved (1981-1985 and 1986-1988) in each action are irrelevant; the only relevant issue is whether the clothing allowance provision covers the life of the collective bargaining agreement, i.e., all years subsequent to 1980. Therefore, the critical inquiry in the case at bar is whether it was logically necessary in Firefighters I to determine whether the clothing allowance provision in the collective bargaining agreement covered years subsequent to 1980, and we note here that the legal effect of an instrument raises a question of law. Northern Illinois Medical Center v. Home State Bank (1985), 136 Ill. App. 3d 129, 142, 482 N.E.2d 1085, 1095.

In Firefighters I, the City argued that the agreement was ambiguous and wanted to present parol evidence that the parties intended that the clothing allowance was meant to be incorporated into the firefighters’ base salary, rather than being paid in addition to the base salary. This court in Firefighters I held, as a matter of law, that there was no ambiguity, and that “[i]f the parties intended for the provision governing the clothing allowance to have any effect whatsoever, they must have intended for it to apply to years subsequent to 1980.” (Slip op. at 5.) We so held because the agreement unambiguously provided for the clothing allowance and because the agreement stated that it “would remain in effect until a new agreement [became] effective.”

The issue in Firefighters I was the applicability of the parol evidence rule. In order to decide that question, the court necessarily first had to decide whether there was an ambiguity. This court decided there was none and based that holding upon its determination that the language of the agreement was plain in that the clothing allowance was not meant to be incorporated into the firefighters’ base salary but was separate and meant to cover years subsequent to 1980, the year the agreement was signed. This finding becomes the law of the contract; therefore, the language “years subsequent to 1980” was central to the holding in Firefighters I. It, therefore, has preclusive effect on the case at bar.

Having decided that the “subsequent years” language is central to our holding in Firefighters I, we next address the City’s contention that preclusive effect notwithstanding, this is a new cause of action; res judicata, now called claim preclusion, does not apply; and plaintiff is required by the agreement to arbitrate this dispute, and its failure to do so defeats the Union’s ability to recover. We think this sophistry.

Arbitration, concededly, is a most favored way of settling disputes (Cencula v. Keller (1987), 152 Ill. App. 3d 754, 504 N.E.2d 997), and that favor rests in part on the industrial peace obtained through consistency of arbitration results. In the case at bar, the City’s position raises the possibility of inconsistent results, thereby fostering turmoil rather than peace between the City and the Union. For example, the arbitrator might take the position in this case that the decision in Firefighters I had no preclusive effect in the arbitration; if so, then the arbitrator could rule that the contract does not provide for a clothing allowance, a result that is not only inconsistent with the decision in Firefighters I, but also would be a poor midwife of industrial peace. Securing industrial peace aside, however, one scenario drives home the point that preclusion should apply.

Suppose the arbitrator were to rule that Firefighters I precluded any decision other than the decision that the clothing allowance was not incorporated into the base salary but was to be paid in addition to base salary, i.e., Firefighters I had become the law of the contract; in that instance, the only decision the arbitrator could render would be the award of the clothing allowance to the Union, thereby making the resort to arbitration a useless step; the City’s demand that the Union perform this useless step is one more poor midwife of industrial peace. The only reasons the City would insist on arbitration would be either to delay the inevitable, to frustrate, to stir the caldron of turmoil, or to escape the bonds of its promise in a technical way by calling upon a court to accept its argument that even though the clothing allowance had become the law of the contract, the Union’s failure to arbitrate would defeat their claim. This is a rotten stew the City sets before us, and we refuse to eat. This argument would mean that the City escapes, even though the arbitrator, to secure industrial peace, to avoid inconsistent results, to promote economy in litigation, and to protect the Union from the burden of retrying an issue already decided, would be bound by the decision in Firefighters I. We cannot ingest this. The plain fact is the City is trying to litigate an issue previously decided, and this issue is the only issue of consequence in the case at bar.

Alternatively, the City claims it should be given an opportunity to raise the affirmative defense that the Union did not file a grievance in 10 days as required by the collective bargaining agreement.

We note that the City failed to answer the Union’s complaint. Thus; the City’s arbitration defense was never raised by the City in any pleading. According to the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, 2—613(d)), any affirmative defense not expressly stated in the pleading which would take the opposite party by surprise must be plainly set forth in the the answer or reply. Arbitration is an affirmative defense. (See Federated Equipment & Supply Co. v. Miro Mold & Duplicating Corp. (1988), 166 Ill. App. 3d 670, 520 N.E.2d 80.) A defense not properly pled is deemed waived, even though it may appear to be within the evidence. (Alco Standard Corp. v. F. & B. Manufacturing Co. (1970), 132 Ill. App. 2d 24, 265 N.E.2d 507.) The City, therefore, has waived its affirmative defense.

The City also waived arbitration by submitting Firefighters I to a court, rather than to an arbitrator. The Labor Relations Act (Ill. Rev. Stat. 1989, ch. 48, par. 1608) provides for mandatory “arbitration of disputes concerning the administration [and] interpretation of the agreement.” Under the Uniform Arbitration Act, arbitrators, not courts, determine questions of law, i.e., they determine the law of the collective bargaining agreement. See Mentschikoff, Commercial Arbitration, 61 Colum. L. Rev. 846, 856 (1961); Ill. Ann. Stat., ch. 10, par. 30, Introductory Notes (Smith-Hurd 1975).

In Firefighters I, the City did not object to the circuit court, rather than an arbitrator, interpreting the collective bargaining agreement. Indeed, the City appealed contending that the circuit court had improperly interpreted the agreement by ruling that the City owed the clothing allowance for the years 1981 through 1985. Thus, the City submitted the question of the law of this collective bargaining agreement to a court, rather than to an arbitrator as would be done under the Uniform Arbitration Act. A party waives arbitration when it submits arbitrable issues to a court. (Applicolor, Inc. v. Surface Combustion Corp. (1966), 77 Ill. App. 2d 260, 222 N.E.2d 168; Kostakos v. KSN Joint Venture No. 1 (1986), 142 Ill. App. 3d 533, 491 N.E.2d 1322; Atkins v. Rustic Woods Partners (1988), 171 Ill. App. 3d 373, 525 N.E.2d 551; Yates v. Doctor’s Associates, Inc. (1990), 193 Ill. App. 3d 431, 549 N.E.2d 1010; Gateway Drywall & Decorating, Inc. v. Village Construction Co. (1979), 76 Ill. App. 3d 812, 395 N.E.2d 613.) The City, therefore, has waived arbitration.

The circuit court, therefore, is affirmed.

Affirmed.

GOLDENHERSH and HARRISON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
    ROBERT L. QUICK, by Michael L. Jones, his Guardian and Legal Representative, Plaintiff-Appellant and Cross-Appellee, v. JOANN HAMBURG QUICK, Defendant-Appellee and Cross-Appellant.
    Fifth District
    No. 5—90—0037
    Opinion filed May 15, 1991.

      Eric L. Terlizzi, of Pfaff, Garner & Terlizzi, of Salem, and Harold H. Pennock, Jr., of Hodson, Jones & Pennock, Ltd., of Centraba, for appellant.
    Marvin G. Miller, of Crain, Cooksey & Veltman, Ltd., of Centraba, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Robert L. Quick, by and through his guardian and legal representative, Michael L. Jones, appeals from an order of the circuit court of Marion County dismissing plaintiff’s complaint which sought an order declaring invalid the marriage between Robert L. Quick and defendant, Joann Hamburg Quick. Additionally, defendant has cross-appealed the order of the circuit court substituting the guardian as plaintiff’s special administrator for purposes of pursuing this appeal. We reverse and remand.

When a case is on appeal from dismissal of a complaint, all well-pleaded facts must be taken as true. (Ritzheimer v. Insurance Counselors, Inc. (1988), 173 Ill. App. 3d 953, 955, 527 N.E.2d 1281, 1283; Morris v. Faulkner (1977), 46 Ill. App. 3d 625, 627, 361 N.E.2d 112, 113.) We, therefore, accept as true the facts alleged in plaintiff’s complaint. Sometime before February 20, 1989, plaintiff developed lung cancer with brain metasteses, which resulted in plaintiff being in a coma or semi-coma from September 18, 1989, until his death on October 17, 1989. On September 2, 1989, a marriage ceremony was performed at plaintiff’s residence between plaintiff and defendant. The instant action was initiated by Wilbert Quick, plaintiff’s brother, and Joyce White, plaintiff’s daughter. Both sought to have plaintiff declared a disabled adult and to have his marriage to defendant declared invalid. On September 26, 1989, Michael Jones was appointed temporary guardian of Robert Quick. On that same day, Jones filed a complaint on behalf of plaintiff to have the marriage declared invalid on the grounds that plaintiff lacked capacity to consent to the marriage and/or that he was induced by defendant through fraud or duress to enter the marriage. Defendant was served with a copy of the complaint. Before an evidentiary hearing could be held, plaintiff died. On October 23, 1989, defendant filed her motion to dismiss due to plaintiff’s death. Defendant’s motion was granted on January 16, 1990. The circuit court also granted plaintiff’s motion to substitute Michael L. Jones as special administrator of plaintiff’s estate for the purpose of pursuing this appeal.

The issue plaintiff asks us to address is whether the circuit court erred in dismissing plaintiff’s complaint to invalidate the marriage pursuant to section 302(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 302(b)). While plaintiff agrees that the statute may be interpreted to require automatic dismissal of a pending action upon the death of either party, he, nevertheless, contends that such a narrow construction is contrary to the legislative intent and that the legislative scheme of sections 301 and 302 of the Act (Ill. Rev. Stat. 1989, ch. 40, pars. 301, 302) is unjust and is inequitable. We agree.

Section 301 of the Act requires a court to declare a marriage invalid if:

“(1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage.” (Ill. Rev. Stat. 1989, ch. 40, par. 301(1).)

Section 302 of the Act states that an action to declare a marriage invalid for lack of capacity to consent must be filed no later than 90 days after the petitioner obtained knowledge of the described condition. The action may be brought by either party to the marriage or by the legal representative of the party who lacked capacity to consent. (Ill. Rev. Stat. 1989, ch. 40, par. 302(1).) In the instant case, plaintiff’s guardian brought the action 24 days after the ceremony was performed, which is within the proper time frame dictated by the Act. However, the circuit court granted defendant’s motion to dismiss because plaintiff had died before an evidentiary hearing could be held, and section 302(b) of the Act provides that “[i]n no event may a declaration of invalidity of marriage be sought after the death of either party to the marriage under subsection^ (1).” (Ill. Rev. Stat. 1989, ch. 40, par. 302(b).) In its order, the circuit court determined that whether the case could proceed depended on the meaning of the word “sought.” The circuit court relied on Webster’s definition of the word “sought” and determined that the case could not be pursued after the death of a party. The circuit court stated:

“Sought is the past tense of the word seek which is defined in Webster’s Dictionary as follows: To try to get or acquire; to pursue.
Therefore the statute provides that the case may not be pursued after the death of a party. While in this case, this ruling may result in an injustice, it is not within the Court’s prerogative to rewrite the statutes.
It is therefore ordered that the Motion to Dismiss is granted.”

This is a case of first impression. We can find no cases which have interpreted section 302(b) under circumstances similar to the present case. Like the circuit court, we believe that the question that must be determined is what the General Assembly intended when it used the word “sought.”

In construing statutes, the judicial role is to ascertain and to give effect to the intent of the General Assembly. The entire statute must be examined in order to find the legislative intent, not only in the plain language of the statute, but also in the objectives of the legislation and the evils it sought to remedy. (Baksinski v. Corey (1988), 173 Ill. App. 3d 1016, 1019, 529 N.E.2d 232, 234.) Courts consider the historical and practice notes to the annotated statutes helpful when ascertaining the legislative intent. (Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 212, 443 N.E.2d 563, 565.) The consequences resulting from various constructions of an Act must be taken into consideration in construing the statute, and the court should select the construction which leads to a logical result and avoid the construction which the General Assembly could not have contemplated. In re Marriage of Burke (1989), 185 Ill. App. 3d 253, 258, 541 N.E.2d 245, 248-49.

Section 302 of the Act is derived from section 208 of the Uniform Marriage and Divorce Act. (Ill. Ann. Stat., ch. 40, par. 302, Historical and Practice Notes, at 89 (Smith-Hurd 1980).) A review of the comments to section 208 of the Uniform Marriage and Divorce Act is helpful in determining what the drafters had in mind when writing this section. The comments explain that “[sjubsection (b) states a general policy against declarations of invalidity after the death of either party to the marriage.” (9A U.L.A. §208, Comment, at 171 (1987).) The Comment goes on to explain:

“The provisions of subsection (b), stating that no declaration of invalidity may be ‘sought’ after the death of either party is intended to prohibit such a collateral attack upon the marriage, in lieu of a declaration, in all proceedings, including probate proceedings. Moreover, the use of the word ‘sought’ rather than ‘commenced’ implies that the death of a party to the marriage at any time before the entry of final judgment would terminate a proceeding attacking the marriage. The underlying policy reasons for this principle are clear: the traditional ‘void marriage’ doctrine often imposed unwise and unfair penalties on innocent ‘spouses’ in stable family situations long after the questioned marriage had occurred. The penalties serve no effective deterrent purpose, but cause severe economic dislocations; a spouse may be denied workmen’s compensation and social security benefits, or even a share in a spouse’s estate, after the marriage has been terminated by the death of the other spouse, despite the fact that the surviving spouse had no reason to suspect the invalidity of the marriage.” (9A U.L.A. §208, Comment, at 172 (1987).)

The historical notes to the Smith-Hurd Annotated Statutes adopt the Uniform Marriage and Divorce Act Comments and clearly explain that the rationale for section 302(b) was to abolish the void marriage doctrine and thereby prohibit the invalidation of a long-standing marriage, which, if allowed, can cause a host of economic troubles for the surviving spouse who had long assumed that his or her marriage was valid and that he or she was entitled to the deceased spouse’s death benefits. Apparently, our General Assembly and the drafters of the Uniform Marriage and Divorce Act did not contemplate a situation such as the one before us where the deceased spouse married only weeks before his death and where an action to invalidate the recent marriage was filed by his legal representative before his death, but an evidentiary hearing on the matter could not be held before the incompetent spouse died. In this situation, if defendant is in fact an “innocent spouse,” she would not suffer the hardships noted by the drafters of the language of section 302(b), as she did not enjoy a long-standing marriage with plaintiff. If defendant is not an “innocent spouse,” but is in fact guilty of securing her marriage to plaintiff through fraud or duress, she certainly does not need the protection of section 302(b); instead, plaintiff’s family should be protected.

A reading of the circuit court’s order in this matter shows that the court recognized the injustice which could occur by its dismissal of the complaint. We, too, recognize the injustice that would occur by dismissal of this action if the allegations made in plaintiff’s complaint are true. Because we do not believe that the General Assembly contemplated this situation, and because we believe it is logical under the present circumstances to allow the invalidity action to survive the plaintiff’s death, we construe the word “sought” to mean that if the invalidity action is initiated prior to the decedent’s death, it will survive.

The only other issue we are asked to consider is defendant’s cross-appeal. Defendant contends that the circuit court erred when it substituted plaintiff’s guardian, Michael L. Jones, as special administrator of plaintiff’s estate for the purpose of pursuing this appeal. Defendant is correct that “[i]f letters of administration are issued to another on a petition filed, letters may not be issued to the person who was guardian.” (Ill. Rev. Stat. 1989, ch. 110½, par. 24—19(b).) However, both the record and the briefs are void of any information concerning the previous issuance of letters to one other than Michael L. Jones. It is not the function of a reviewing court to read beyond the record and to engage in speculation. (In re Marriage of Glessner (1983), 119 Ill. App. 3d 306, 313, 456 N.E.2d 311, 316.) The burden rests on the appellant, in this instance the cross-appellant, to provide a sufficient record to support her claim of error, and in the absence of such a record, the reviewing court will presume that the circuit court’s order was in conformity with established legal principles and had an adequate factual basis. (Fischer v. Mann (1987), 161 Ill. App. 3d 424, 425-26, 514 N.E.2d 566, 567.) Because we must concern ourselves only with the record before us, we find that the circuit court did not err by substituting plaintiff’s guardian for purposes of this appeal.

For the foregoing reasons, the order of the circuit court of Marion County is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

RARICK, P.J., and WELCH, J., concur.


author: JUSTICE CHAPMAN

text:
    PAUL R. McDANIEL, Plaintiff-Appellee, v. ST. ELIZABETH’S HOSPITAL et al., Defendants (William Sprich et al., Defendants-Appellants).
    Fifth District
    No. 5—90—0140
    Opinion filed May 15, 1991.
    Freeark, Harvey, Mendillo, Dennis & Wuller, P.C., of Belleville (Ray Freeark and Ransom P. Wuller, of counsel), for appellants William Sprich and Robert E. Schultz.

      Amiel Cueto, of Cueto & Cueto, Ltd., of Belleville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendants, Dr. William Sprich and Dr. Robert Schultz, appeal from an order of the circuit court of St. Clair County allowing plaintiff Paul McDaniel’s motion for voluntary dismissal pursuant to section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1009).

McDaniel originally filed his complaint on September 25, 1989, in the circuit court of St. Clair County. The complaint sought recovery for alleged medical malpractice from St. Elizabeth’s Hospital, Dr. Jose Almeida, Dr. Richard Koesterer, and Dr. William Sprich. Attached to the complaint and made a part thereof was an affidavit of counsel signed by McDaniel’s attorney, which stated:

“Comes now *** attorney for the plaintiff, and hereby states under oath that because of the impending statute of limitations, a consultation could not be obtained and the statute of limitations would impair this action.”

All defendants were served by October 2, 1989. On October 4, 1989, McDaniel filed an amended complaint naming Dr. Robert E. Schultz as an additional defendant. The allegations against the other defendants remained the same. An affidavit of counsel identical to the one previously filed was attached. On October 10, 1989, Dr. Schultz was served with the amended complaint and the attorney’s affidavit. Section 2 — 622 of the Code of Civil Procedure provides:

“Healing art malpractice, (a) In any action *** in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff’s attorney *** shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:
1. That the affiant has consulted and reviewed the facts of the case with a health professional ***; that the reviewing health professional has determined *** that there is a reasonable and meritorious cause for the filing of such action ***.
2. That the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—622.)

McDaniel did not file a certificate and written report as required by the statute, nor did he request additional time in which to file said affidavit. Dr. Schultz and Dr. Sprich did not file an answer to the complaint.

On January 18, 1990, 106 days after the amended complaint was filed against Dr. Schultz and Dr. Sprich, the two doctors filed a special and limited appearance questioning the jurisdiction of the court. They alleged that the statute of limitations against them had run, and that McDaniel’s case could not be salvaged by the affidavit of McDaniel’s counsel which was originally filed with the complaint, particularly in light of the fact that more than 90 days had passed without the filing of a health professional’s certificate and/or affidavit of counsel as required by statute. Motions to dismiss were filed by the codefendants, and each defendant cited McDaniel’s failure to file an affidavit and report as required by section 2 — 622(a)(1).

On January 30, 1990, prior to the court’s ruling on defendants’ motions but after argument, McDaniel orally moved to voluntarily dismiss the complaint against all defendants without prejudice. The plaintiff’s motion was allowed by the court over defendants’ objections. McDaniel subsequently filed a written motion for voluntary dismissal on February 1, 1990. The court entered an order granting McDaniel’s motion on February 1, 1990, and gave him one year within which to file anew. This appeal followed.

This appeal concerns the trial court’s application of the rule set forth in Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858. In that case the supreme court announced that effective February 22, 1989, “the trial court may hear and decide a motion which has been filed prior to a section 2 — 1009 motion when that motion, if favorably ruled on by the court, could result in a final disposition of the case.” (Emphasis in original.) Gibellina, 127 Ill. 2d at 137-38, 535 N.E.2d at 866.

It is uncontroverted that while Dr. Sprich and Dr. Schultz were served with an affidavit which met the requirements of section 2— 622(a)(2), McDaniel did not supplement this affidavit with one required under section 2 — 622(a)(1). Defendants contend that McDaniel did not present the court with evidence of good cause for his failure to file under section 2 — 622(a)(1). Defendants argue that McDaniel’s use of the voluntary dismissal statute undermined the purpose and effect of section 2 — 622, much like the actions of the plaintiff in O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322, who sought to voluntarily dismiss his complaint in the face of a Supreme Court Rule 103(b) motion (134 Ill. 2d R. 103(b) (dismissal for lack of diligence in obtaining service)).

In O’Connell the court held that where a plaintiff relies on sections 2 — 1009 and 13—217 (Ill. Rev. Stat. 1989, ch. 110, pars. 2—1009, 13—217) in response to a pending Rule 103(b) motion, the Rule 103(b) motion must be heard on its merits prior to a ruling on plaintiff’s motion to dismiss under section 2—1009. (O’Connell, 112 Ill. 2d at 283, 492 N.E.2d at 1327.) Defendants contend that, like a Rule 103(b) motion, the section 2—622 motion must be heard prior to any ruling on a plaintiff’s motion to voluntarily dismiss under section 2— 1009.

Preliminarily we note that the supreme court in Gibellina directed that O’Connell should be read and applied narrowly. The court in Gibellina explained that O’Connell presented a situation in which the statutory enactment permitting a voluntary dismissal directly conflicted with a specific rule of the court and served as an infringement upon the court’s supervisory authority. Gibellina, 127 Ill. 2d at 133, 535 N.E.2d at 864.

Secondly, it has already been determined that the legislature did not mandate dismissal with prejudice when a plaintiff fails to attach the attorney’s affidavit and health professional’s report as required by section 2—622 of the Code of Civil Procedure. (McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 192-93, 520 N.E.2d 293, 295.) In McCastle the trial court dismissed with prejudice because the court believed that it had no discretion to do otherwise. The supreme court reversed, holding that in considering section 2—622 motions the trial court did have discretion. Unlike Supreme Court Rule 103(b), the legislative history behind section 2 — 622 does not reveal the primary purpose behind that section as being the need to promptly alert defendants to the pendency of a civil suit. (See O’Connell, 112 Ill. 2d at 282, 492 N.E.2d at 453.) On the contrary, in McCastle, the court held:

“Requiring that section 2 — 622 dismissals be with prejudice would be a triumph of form over substance. It would elevate a pleading requirement designed to reduce frivolous lawsuits into a substantive defense forever barring plaintiffs who initially fail to comply with its terms.” (Emphasis added.) (McCastle, 121 Ill. 2d at 193, 520 N.E.2d at 296.)

The circumstance of abuse of the voluntary dismissal statute which the supreme court sought to eliminate in O’Connell is not evident in the case at bar. Although defendants would have us rule that trial courts must hear a section 2 — 622 motion prior to ruling on a motion for voluntary dismissal, we adhere to the rule that the trial judge has discretion to determine the characterization of plaintiff’s use or abuse of the voluntary dismissal statute. (See McCastle, 121 Ill. 2d 188, 520 N.E.2d 293.) The Gibellina rule does not require a determination of the defendant’s section 2 — 622 motion prior to ruling on a. motion to voluntarily dismiss. Rather, Gibellina empowers the trial court with discretion to hear defendant’s motion prior to ruling on the plaintiff’s motion to dismiss.

In the instant case, the record is devoid of any discovery-related motions or other pretrial proceedings other than those which have been alluded to herein. This was not a case where the record revealed that discovery had been entered into by the parties, where substantial costs had been incurred, or where the defendants demonstrated that they had otherwise been prejudiced. The stage of the proceedings here was not as advanced as that in Gibellina. Furthermore, we do not view this as the type of case contemplated by the Gibellina court. (See Bochantin v. Petroff (1990), 198 Ill. App. 3d 369, 376, 555 N.E.2d 1066, 1070 (Harrison, J., dissenting), appeal allowed (1990), 133 Ill. 2d 552, 561 N.E.2d 686.) We find, therefore, that the trial court did not err in ruling on the plaintiff’s motion without first considering the defendants’ previously filed section 2— 622 motion.

Finally, defendants argue that the plaintiff should not be rewarded for his utter lack of showing of good faith in not filing the required documents under section 2 — 622. Defendants contend that at the very least the trial court should have required McDaniel to present evidence of good cause for failure to comply with the statute.

In the recent case of Premo v. Falcone (1990), 197 Ill. App. 3d 625, 554 N.E.2d 1071, the plaintiffs filed their medical malpractice complaint, along with an affidavit stating that the plaintiffs’ attorney was unable to consult with a health professional and that an arguable statute of limitations problem existed which precluded him from attaching the requisite report under section 2 — 622. Subsequent to the expiration of the 90-day statutory extension, plaintiffs filed a health care professional’s report with the trial court. Plaintiffs did not file the required attorney’s consultation affidavit with the report. Defendants filed a motion to dismiss, alleging that the plaintiffs had failed to comply with the requirements of section 2 — 622. The trial court granted the motion to dismiss and dismissed the case with prejudice, stating that the plaintiffs had failed to show good cause for their late filing. Premo, 197 Ill. App. 3d at 628, 554 N.E.2d at 1073-74.

In affirming the trial court’s decision, the court of review held: “Allowing trial courts to consider whether good cause exists for noncompliance with the deadlines for filing the required documentation in section 2 — 622 is consistent with the objectives of that statute because it encourages compliance with the deadlines set forth therein and encourages filing the required documentation as expeditiously as possible in the event compliance is not possible.” (Premo, 197 Ill. App. 3d at 631, 554 N.E.2d at 1076.)

While Premo sanctioned the trial court’s decision to consider whether good cause exists for noncompliance with section 2 — 622, the Premo court did not require that trial courts consider whether good cause exists. We agree with this premise, particularly because Gibellina did not require that the party requesting a voluntary dismissal demonstrate good faith. In the case at bar, while we do not commend the plaintiff’s failure to furnish reasons for his failure to comply with the requirement of section 2 — 622, the trial judge had discretion to determine the characterization of plaintiff’s use or abuse of the voluntary dismissal statute. (McCastle, 121 Ill. 2d 188, 520 N.E.2d 293.) We do not find that the trial court abused its discretion in failing to require McDaniel to present evidence of good cause for failing to comply with section 2 — 622 or in allowing McDaniel’s motion to dismiss without prejudice.

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

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY HOLDER, Defendant-Appellant.
    Third District
    No. 3—90—0335
    Opinion filed May 9, 1991.

      Larry R. Wells, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

In 1985 Anthony Holder, defendant, was convicted of murder and felony murder following a jury trial in the circuit court of Will County and was sentenced to a term of natural life imprisonment. On direct appeal, we affirmed the judgment of the trial court. (People v. Holder (1987), 153 Ill. App. 3d 884, 506 N.E.2d 407.) In December of 1988 defendant filed a petition for post-conviction relief which was subsequently dismissed. This appeal is from the dismissal of his post-conviction petition.

The evidence at trial established that defendant shot and killed Chris Zouganelis in the victim’s garage, that defendant and his two companions stole money from the victim’s wallet, and that they entered his home in search of more money. Defendant, who is black, was found guilty of both murder and felony murder by an all-white jury. The prosecutors used peremptory challenges to remove five black jurors, and defense counsel noted that fact for the record.

Defendant now contends that he was denied effective assistance of counsel in the trial court because counsel did not object to the exclusion of blacks from the jury but only noted that fact and, further, that he was denied effective assistance of appellate counsel because counsel did not raise the issue of ineffective assistance of trial counsel on direct appeal.

At the time of defendant’s trial, in order to establish a prima facie case of systematic exclusion of blacks from a jury, the defendant had to show that the prosecutor excluded blacks from juries in case after case. (See Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824.) Subsequently, the Supreme Court ruled in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 16 S. Ct. 1712, that a defendant could establish a prima facie case of racial discrimination based solely on the prosecution’s use of peremptory challenges to strike members of the defendant’s race from the jury venire at the defendant’s trial, and that once the defendant had made such a prima facie showing, the burden shifted to the prosecution to come forward with a racially neutral explanation for its challenges.

The question presented here is: Can the Batson standard be applied retroactively on collateral review of defendant’s conviction? The answer is “No.” Trial counsel was not ineffective in failing to object to the systematic exclusion of blacks from the jury by the prosecutor where a pattern of case-by-case exclusion of blacks could not be shown prior to the Batson decision. People v. Dixon (1987), 160 Ill. App. 3d 65, 513 N.E.2d 134, following Allen v. Hardy (1986), 478 U.S. 255, 92 L. Ed. 2d 199, 106 S. Ct. 2878.

Similarly without merit is defendant’s contention that he received ineffective assistance of appellate counsel on direct appeal because appellate counsel failed to claim ineffective assistance of trial counsel. Defendant must establish that substantial prejudice affecting the outcome of the case resulted from the alleged omission of appellate counsel. (People v. Pearson (1989), 188 Ill. App. 3d 518, 544 N.E.2d 1026.) He cannot do that here. Had ineffective assistance of trial counsel been raised on direct appeal, it would have been rejected, as it was in People v. Dixon.

Next, defendant contends that he is entitled to a substantive Bat-son hearing even though this court ruled otherwise when the issue was raised on direct appeal. In our earlier decision in this case, filed on March 31, 1987, we held that defendant Holder had waived any objection to the exclusion of blacks during jury selection in that he did not request a ruling from the trial court either during trial or in his post-trial motion. Defendant argues that this holding was erroneous, citing People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025.

In People v. Andrews, the Illinois Supreme Court ruled that, in cases tried before Batson was decided, the defendant is entitled to a hearing in the trial court to determine whether a prima facie case has been established under Batson. The court noted that it would be unfair for a reviewing court to make a determination from a record. made under prior law, i.e., the guidelines established in Swain v. Alabama, and also observed that the trial judge might have written notes or may recall information from his observations that would be relevant. However, the court did state that a defendant might be held to have waived his right to a Batson hearing if the record were completely devoid of any evidence to support his claim.

Ordinarily, an issue raised on direct appeal and decided adversely to defendant cannot be raised by post-conviction petition since the original ruling is res judicata as to that issue. (People v. Robinson (1989), 188 Ill. App. 3d 826, 544 N.E.2d 816.) Defendant seeks to invoke an exception to that general rule which arises where the right relied on has been recognized for the first time after the direct appeal. (People v. Peeples (1989), 184 Ill. App. 3d 206, 539 N.E.2d 1376.) Such is not the case here. Whatever rights to a hearing defendant may claim under Batson were recognized before the direct appeal was heard. At the time we ruled that defendant had waived his objection to exclusion of blacks from the jury, that ruling was the law of Illinois until modified by the Illinois Supreme Court 2½ years later. That ruling remains the law of this case under the doctrine of res judicata.

In addition, we have reviewed the record of the voir dire in this case and have determined that there were racially neutral reasons plainly apparent for the State’s challenges of each of the five black venirepersons. Jurors Weeks and Jones both indicated that they would have a difficult time giving the death penalty and both had close relatives that had been convicted of a crime. Juror Glass insisted that he could give the death penalty only if he had not a “shadow of a doubt” as to defendant’s guilt. Juror Reed’s brother had been murdered just two years before the trial and the charges were dropped against the person accused of the crime. Juror Quarles had several years’ employment as a youth supervisor with the Department of Corrections, a factor which could influence his judgment. Cf. People v. Walker (1989), 191 Ill. App. 3d 382, 547 N.E.2d 1036.

As this brief summary indicates, each juror stated circumstances or beliefs which constitute obvious reasons for excusing him or her from the jury in this case. These reasons were unrelated to race. Under the circumstances, we cannot say that fundamental fairness requires suspension of the doctrine of res judicata to permit defendant to raise this issue again on appeal.

We also are aware that the judge who tried this case, Honorable Michael Orenic, is now retired and is not available to conduct a Bat-son hearing if a remand were forthcoming. Accordingly, the Batson issues must be determined on the basis of the record, whether in the circuit court of Will County or in a court of review, and we believe the result would be the same in any event, given the paucity of evidence to support defendant’s claim.

Finally, defendant contends that the trial court erred in entering two murder convictions since both the charge of murder and of felony murder arose out of a single act. Defendant further argues that this issue was not waived by his failure to raise it on direct appeal or in his petition for post-conviction relief in the trial court because the second conviction was “void” and thus subject to challenge at any time. This has been the view of the Fifth District of the Appellate Court of Illinois. (See People v. Johnson (1990), 200 Ill. App. 3d 1018, 558 N.E.2d 607; People v. Perruquet (1989), 181 Ill. App. 3d 660, 537 N.E.2d 351.) However, this court has held that a claim that multiple convictions were improper can be waived by failure to raise the issue in the trial court. (People v. Schaefer (1989), 188 Ill. App. 3d 317, 543 N.E.2d 894. Accord People v. Gray (1988), 171 Ill. App. 3d 860, 525 N.E.2d 1033.) We hold that People v. Schaefer controls here and that defendant has waived the issue.

For the reasons stated, we affirm the order of the trial court dismissing defendant’s petition for post-conviction relief.

Affirmed.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE McCUSKEY

text:
      In re ESTATE OF IRVEN RICHARD LEWIS, Deceased (Vivian B. Spencer et al., Petitioners-Appellants, v. Virginia Jurgensen et al., Respondents-Appellees).
    Third District
    No. 3—90—0654
    Opinion filed May 8, 1991.

      George E. Faber, of Faber & Buehler, P.C., of West Dundee, for appellants.
    Eugene J. Korst, of Lockport, for appellees.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The trial court admitted the will of the late Irven R. Lewis to probate. The opponents to admission of the will, Vivian Spencer, decedent’s niece, and Lydia L. Brenneman, decedent’s sister (hereinafter referred to as opponents), appeal, seeking to have, the trial court’s order vacated.

The record shows on December 7, 1989, Lewis died leaving a will dated May 18, 1988. On December 15, 1989, Virginia Jurgensen and Jeffrey Laviolette, co-executors under the will, petitioned to have the will admitted to probate and themselves appointed co-executors. Following a hearing, the trial court granted their requests. Letters of office were issued to them on December 19,1989.

On January 29, 1990, the opponents filed a petition to require the testimony of witnesses (Ill. Rev. Stat. 1989, ch. 110½, par. 6—21). They then filed a complaint to set aside the will on June 13, 1990. A hearing on proof of the will was held in the trial court on June 15, 1990. On July 6, 1990, the court reaffirmed its earlier order admitting the will to probate. On September 11, 1990, the opponents filed their notice of appeal. The June 13, 1990, will contest was still pending as of the filing of this appeal.

The petitioner contends the admission of the will to probate was against the manifest weight of the evidence. However, before we reach the petitioner’s contention, we must address a jurisdictional issue raised by Jurgensen and Laviolette. They contend that an order admitting a will to probate is not a final and appealable order where the opponents have also filed a complaint to set aside the will. We agree based upon the facts of this case.

Illinois Supreme Court Rule 304(b)(1) indicates that an order admitting a will to probate is an appealable order:

“The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:
(1) A judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party.” 134 Ill. 2d R. 304(b)(1).

The committee comments support this interpretation:

“Subparagraph (1) applies to orders that are final in character although entered in comprehensive proceedings that include other matters. Examples are an order admitting or refusing to admit a will to probate, appointing or removing an executor, or allowing or disallowing a claim.” 134 Ill. 2d R. 304(b)(1), Committee Comments, at 245-46.

However, some doubt as to the meaning of Supreme Court Rule 304(b)(1) has occurred as a result of the decision in In re Estate of Martino (1979), 72 Ill. App. 3d 867, 391 N.E.2d 412. In Martino, the court held an order admitting a lost will to probate was not appealable under Supreme Court Rule 304(b)(1). The court noted in that case a will contest had been filed on the same day as the notice of appeal from the admission order. It therefore held the will contest rendered moot the questions raised under the appeal since the same issues were in dispute in the will contest and the appeal.

In In re Estate of Lynch (1982), 103 Ill. App. 3d 506, 431 N.E.2d 734, the court noted the statement in Martino indicating an admission to probate was not appealable was mere dictum. The Lynch court held an order admitting a will to probate was appealable. It further found, however, that Martino was correct that such an appeal could be rendered moot by a concurrent will contest which would necessarily raise the same issues. The court stated “[i]n this sense, the Martino court was entirely correct, and the proper procedure in the event of a contest filed subsequently to a notice of appeal from an admission order would be a motion to dismiss in the reviewing court.” Lynch, 103 Ill. App. 3d at 509, 431 N.E.2d at 737.

The instant case is slightly different, since here the will contest was filed prior to the notice of appeal, whereas in Martino it was filed on the same day as the notice of appeal. However, we find no basis for distinguishing between the two situations. A pending will contest filed prior to the notice of appeal renders the appeal moot for precisely the same reason as one filed after the notice of appeal. The issues being raised on appeal are in essence still being considered by the trial court.

We are not persuaded by the appellants’ arguments relying on In re Estate of Chlebos (1990), 194 Ill. App. 3d 46, 550 N.E.2d 1069. The record in Chlebos did not indicate whether a will contest had even been filed. The court therefore could not properly reach the issue involved in the instant case.

Accordingly, this appeal from the judgment of the circuit court of Will County is dismissed as moot.

Dismissed.

SLATER and BARRY, JJ., concur.


author: JUSTICE HAASE

text:
    JAY BUENTE, Plaintiff-Appellant, v. ROBERT VAN VOORST, Defendant-Appellee.
    Third District
    No. 3—90—0463
    Opinion filed April 30, 1991.

      Edward G. Vogt, of Kankakee, for appellant.
    D. Kendall Griffith and Gary J. Bazydlo, both of Hinshaw & Culbertson, of Chicago, and Brian P. Thielen, of Hinshaw, Culbertson, Moelmann, Ho-ban & Fuller, of Bloomington, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff brought suit against the defendant under the Structural Work Act (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.) and for common law negligence. The plaintiff’s complaint was dismissed and judgment rendered on the pleadings in favor of the defendant pursuant to section 2—615 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2—615). The trial court ruled the plaintiff failed to state a cause of action under applicable Illinois law. The plaintiff-appellant appeals from that order.

Plaintiff was an employee at the Van Voorst Lumber Company when a company supervisor asked him to replace some ceiling tiles that had been damaged by a wind storm. When the plaintiff attempted this repair, one of the wooden planks placed between the rafters of the ceiling gave way. The plaintiff fell some 16 feet to the concrete floor below and suffered severe injuries.

The defendant is the owner of the building and leases the building to the Van Voorst Lumber Company. The defendant owns no part of the Van Voorst Lumber Company, but is a part-time employee. Apparently, one of the defendant’s relatives owns and operates the lumber company.

The purpose of allowing pleadings to be attacked by motions is to give the complainant an opportunity to respond to the objection and cure any defect in the pleadings prior to trial. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.) In reviewing an order of dismissal, a trial court’s decision to grant a motion to dismiss will be sustained only if no set of facts as pleaded by the plaintiff could conceivably state a cause of action. (Giers v. Anten (1978), 68 Ill. App. 3d 535, 386 N.E.2d 82.) When reviewing the facts as pleaded, the court should interpret the facts alleged in the complaint in the light most favorable to the plaintiff. Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 407 N.E.2d 615.

In count I of his complaint, the plaintiff alleges that the defendant violated the Structural Work Act by failing to construct a secure scaffold for the plaintiff to safely complete his assigned duties. To violate the Structural Work Act, however, a person must “have charge” of the work leading to the injury. (Ill. Rev. Stat. 1989, ch. 48, par. 69.) Other than defendant’s status as the owner of the building, the plaintiff has alleged no facts showing the defendant had “charge of” the work which caused his injuries. In Illinois, proof of ownership, without further evidence tending to establish that the owner was “in charge” of the work, is insufficient to establish liability under the scaffold act. Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 488.

In count II of the plaintiff’s complaint, the plaintiff alleged the defendant breached a duty he owed to the plaintiff to provide him with a safe workplace. In Illinois, however, the tenant who is in possession, not the landlord, is liable for injuries sustained by third parties on the premises. (Wright v. Mr. Quick, Inc. (1985), 109 Ill. 2d 236, 238, 486 N.E.2d 908.) The basic rationale for this doctrine of lessor immunity is that a lease is a conveyance of property which ends the lessor’s control over the premises, a prerequisite of tort liability. (Wright, 109 Ill. 2d at 238.) There are several exceptions to the rule of lessor immunity (see Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345), but plaintiff has not pleaded that an exception to this general rule applies. Instead, the plaintiff asks this court to reexamine the “[ojlder concepts and distinctions arising out of the landlord-tenant relationship *** and seek a remedy for every injury.”

The plaintiff-appellant claims that because the defendant is the owner of the building where he was injured, the defendant is liable for injuries he suffered under both the Structural Work Act and at common law. This is simply not the state of the law in Illinois. To violate the Structural Work Act, a person must “have charge” of the work leading to the injury. (Ill. Rev. Stat. 1989, ch. 48, par. 69.) The plaintiff has pleaded no facts that could conceivably support a finding that the defendant had charge of the work that led to his injury. To support a verdict against the defendant in his capacity as landlord, the plaintiff would have to plead an exception to the doctrine of lessor immunity is applicable. The plaintiff has not so pleaded.

In determining the propriety of a dismissal of an action, a reviewing court is to be concerned only with questions of law presented in the pleadings. (Jones v. Eagle II (1981), 99 Ill. App. 3d 64, 424 N.E.2d 1253.) In reviewing the questions of law presented in the pleadings, we find the trial court’s order of dismissal is in accord with applicable case law. The plaintiff failed to plead any set of facts that could conceivably support a verdict in his favor under applicable Illinois law. Therefore, the decision of the circuit court of Kankakee County is hereby affirmed.

Affirmed.

SLATER and STOUDER, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE ROACH, Defendant-Appellant.
    Third District
    No. 3—89—0656
    Opinion filed April 30, 1991.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Jay P. Hoffman and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Willie Roach, appeals his convictions for first degree murder and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, pars. 9—l(a)(2), 12—4(b)(l))- The sole issue on appeal is whether the prosecutor committed reversible error in his closing argument. We reverse.

According to the record, Henry Tyler testified that on May 28, 1987, around 9:45 p.m., he was riding in a car with Leonard Tyler, Greg Harris, and Vorline Moffett. Leonard was driving, and Henry sat in the front passenger seat. As they proceeded down Iowa Street in Joliet, a car attempted to pass them on the right. The car, which Henry described as a cream-colored Oldsmobile 98 with a dark top, struck their car in the right rear and front panels and caused it to stall. Leonard restarted the car and pulled alongside the other car, which had stopped at an intersection. Henry was about four feet from the other car, and the windows of both cars were open.

Henry testified that while the cars were stopped, Leonard asked the driver of the other car, “What the fuck up?” The driver did not respond but simply looked at them three times. He then pulled out a gun and fired several shots at them in rapid succession. Henry ducked down to avoid the shots. When he sat up, he discovered that he had been wounded in the shoulder and Leonard had been shot.

Henry identified the defendant as the man in the other car. Although he did not know the defendant’s name at that time, he had seen him on about six occasions prior to the shooting. In one of those instances, they had briefly spoken while they were in a tavern.

On the evening of the shooting, Henry told the police that he could recognize the shooter. When he was shown a series of photos, he picked out a picture of someone other than the defendant and said it resembled the shooter. A few days later, he examined another photo array. At that time, he identified a photo of the defendant as the shooter.

Vorline Moffett and Greg Harris generally corroborated Tyler’s testimony about the occurrence. However, Moffett testified that although she knew the defendant prior to the shooting, she could not identify him as the shooter. Harris also stated that he could not identify the shooter.

A physician testified that Leonard Tyler died that evening of a gunshot wound in the area of the heart.

Officer Ruben Coronado testified that he spoke to Henry on the night of the shooting. Henry told him that he recognized the gunman as someone he had seen in a tavern and had spoken to a couple of times. Henry described the defendant as being 5 feet 7 inches, but Coronado said the defendant was actually 5 feet 11 inches. Coronado also corroborated Henry’s testimony about his selection of photographs from the photo arrays. Lastly, Coronado said that a check of the Secretary of State’s records revealed that no vehicles matching the witnesses’ description were registered in the defendant’s name.

Timothy Traver, the maintenance man at the defendant’s apartment complex, testified that on May 29, 1987, the defendant asked him if anyone had been looking for him. He told Traver to tell anyone who inquired that he had never owned a car. Traver said that the defendant drove an older, cream-colored Buick or Oldsmobile, but he never saw him drive it after their conversation. Traver acknowledged that he had a previous conviction for rape.

The defendant testified that he did not own a car at the time of the shooting and the last car he owned was a 1982 Granada. On May 28, around 7 or 7:30 p.m., Walter Houston gave him a ride to the Oasis Tavern. The defendant did not leave until sometime between 10:40 and 11:15 p.m. He was driven home by Hank Jenkins, who died of a stroke prior to trial.

The defendant denied taking part in the shooting and said he did not own a gun. He also denied telling Traver to tell anyone that he did not own a car.

Walter Houston testified that around 6:30 or 7 p.m. on the night of the incident, he drove the defendant to the Oasis Tavern. He also stated that in the eight years he had known the defendant, the only car the defendant owned was a white Grenada in 1984.

Paul Dickerson testified that he tended bar at the Oasis on May 28, 1987. The defendant came into the bar between 7 and 8 p.m. and left between 11 and 11:30 p.m. Dickerson admitted that he told the police that he had given the defendant a ride home, although he had not actually done so. He explained that he had been questioned approximately a year after the incident, he had no idea what the police were talking about, and he did not know the defendant was in trouble. He also stated that at the time of the incident, the defendant did not own a car.

Following closing arguments, the jury retired to deliberate around 2:30 p.m. At 10:30 p.m., the jurors informed the court that they could not make a decision. The court responded with a Prim instruction (Peo ple v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601). At 2:30 a.m., the jury found the defendant guilty of the murder of Leonard Tyler and the aggravated battery of Henry Tyler.

Following a sentencing hearing, the court imposed concurrent terms of 20 years for murder and five years for aggravated battery.

On appeal, the defendant first contends that during closing arguments the prosecutor improperly stated his personal opinion regarding the witnesses’ credibility. Specifically, he objects to the following remarks:

“We knew that Willie Roach was presumed innocent the day he walked into this courtroom. We knew it the day that the Grand Jury charged this case. We know it now, and we accept that challenge.
* * *
Again, we accepted that challenge and we think that Willie Roach has been proven guilty beyond any reasonable doubt.
* * *
Henry, when he testified, he told you about how he goes to see his mother every night. Well, to me, whether he sees her every night or not, to me it tells you that Henry is a family man, and I just got a feeling that he was sincere. That’s all. Instead of saying to you, ‘What the fuck up,’ he said, ‘What the F up.’ And to me he just looks sincere. Okay? The same goes for Vorline. The same goes for Greg Harris.
Every one of these police officers, I mean, it is their job to investigate a murder, and what they do is they go out every day and they do their job and they — I think they were sincere.
* * *
I’m sure that Mr. Loughran is going to make a big deal about a Felony conviction that Tim Traver had. Well, sure he had a Felony conviction. Does that mean he is a liar? I didn’t get the feeling when he was on the witness stand that he was a liar. You know, maybe you don’t want your daughter going out with him or something, but I just didn’t get the feeling that he was a liar.
* * *
One of the first things you heard out of Paul Dickerson’s mouth was how he lied to Detective Coronado. Well, as soon as he told us that, I got this feeling in my stomach that I just — I can’t buy anything he says when he tells me he is a — that he lied to Detective Coronado once before.
* * *
I got this feeling in my stomach as soon as he said he lied to Detective Coronado. I couldn’t believe a word he said after that because not only that, but what if he is off by an hour?
* * *
And then we come to the testimony of Willie Roach. I had that feeling in my stomach again when Willie Roach testified because to me what Willie was doing when he got on the witness stand is he did his best to convey that he’s a good old guy from Mississippi. You know what he didn’t strike me as? He didn’t strike me as a guy who’s being wrongfully accused of a murder that he didn’t do. He didn’t strike me as a guy who is standing here saying, ‘I was someplace else, I wasn’t there.’
* * *
Well, like I said, myself and Mr. McCabe have no doubt that Willie Roach was at the Oasis on May 28, 1987. But *** Willie Roach ended up with his Olds 98 that night.”

The defendant did not object to the comments, nor did he raise them in his post-trial motion. Ordinarily, he must do both to preserve an issue for review. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) However, we will still consider the comments to determine whether plain error occurred. 134 Ill. 2d R. 615(a); People v. Mullen (1990), 141 Ill. 2d 394, 566 N.E.2d 222.

We begin our analysis by noting that the prosecutor, as the representative of the State of Illinois, stands in a special relation to the jury. He must therefore choose his words carefully so that he does not place the authority of his office behind the credibility of his witnesses. (People v. Valdery (1978), 65 Ill. App. 3d 375, 381 N.E.2d 1217.) He may express an opinion if it is based on the record. (People v. Johnson (1987), 119 Ill. 2d 119, 518 N.E.2d 100.) He may not, however, state his personal opinion regarding the veracity of a witness or vouch for a witness’ credibility. People v. Wilson (1990), 199 Ill. App. 3d 792, 557 N.E.2d 571.

The State argues that the prosecutor’s opinions were not prejudicial because they were based on the record. It also points out that both the prosecutor and the trial court informed the jury that closing arguments were not evidence. However, we find the State's arguments to be unavailing. Here, the prosecutor clearly and repeatedly stated his personal feelings about the witnesses’ credibility. Most of his opinions were not based on the record. Rather, they were the sort of intuitive judgments that lie within the province of the jury. This form of argument has been repeatedly condemned. (Wilson, 199 Ill. App. 3d at 795-96, 557 N.E.2d at 573-74; Valdery, 65 Ill. App. 3d at 378, 381 N.E.2d at 1219-20.) We therefore find the comments to be error.

The remaining question is whether the comments constituted plain error. Plain error occurs where the error adversely affected the defendant’s right to a fair trial or the evidence was closely balanced. Mullen, 141 Ill. 2d at 401-02, 566 N.E.2d at 226.

Given the large number of comments, we find it unnecessary to assess the prejudicial impact of each one. Rather, we find that their cumulative effect deprived the defendant of a fair trial. (See People v. Johnson (1986), 149 Ill. App. 3d 465, 500 N.E.2d 728.) We also find that the evidence in this case was closely balanced. The State’s case was largely based on the identification by Henry Tyler, who testified that he briefly saw the defendant prior to the shooting. The defendant and two other witnesses testified to an alibi, and there was no physical evidence linking him to the crime. Based on the foregoing, we hold that the comments were plain error.

The defendant also contends that the prosecutor misstated the law regarding the burden of proof. Specifically, he objects to the following statement:

“If you find that Henry Tyler is a liar, he has a reason to lie, then you should find Willie Roach not guilty. But if you find that there is absolutely no reason for Mr. Tyler to lie and that this man lied, that his witnesses lied, don’t be afraid to sign that guilty verdict, and I would ask that you do that.”

The correct standard for a jury’s consideration of the evidence “is not whether one side is more believable, but whether, taking all of the evidence into consideration, guilt as to every essential element of the charge has been proven beyond a reasonable doubt.” (Wilson, 199 Ill. App. 3d at 797, 557 N.E.2d at 574.) Since the prosecutor’s statement implied that the jury could reach a verdict simply by balancing the testimonies of each side’s witnesses, we find that it was error. Taken with the other comments in this case, it strengthens the conclusion that this cause must be reversed on the grounds that the defendant did not receive a fair trial.

The judgment of the circuit court of Will County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

GORMAN and McCUSKEY, JJ., concur.


text:
      In re J.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Janet Slater, Respondent-Appellant).
    Third District
    No. 3—90—0330
    Opinion filed April 30, 1991.
    William C. Davis, Jr., of Lewistown, for appellant.
    Joan Scott, State’s Attorney, of Lewistown (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Janet Slater' appeals from orders entered by the circuit court of Fulton County finding her an unfit person pursuant to sections l(D)(m) and (D)(p) of the Adoption Act (Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D)(m), (D)(p)) and terminating her parental rights to her four natural children. For purposes of this opinion, we will refer to the children as J(son), J.S., T.S. and S.S.

Janet was born in 1963. She has a history of mental illness diagnosed as bipolar disorder and antisocial personality disorder with poly-drug .abuse since the age of 17. Her first child, J(son), was born in 1982. Thereafter, she gave birth to J.S. in 1983, T.S. in 1985 and S.S. in 1986.

Within a few months of the birth of T.S., Janet was taken involuntarily to Zeller Mental .Health Center (ZMHC) when she was found with J(son) near a pool of muddy water and fertilizer and was unwilling or unable to speak to either the child or the police. The child had been playing in the polluted water. The children’s father, Donald (later) Slater, had been drinking. He became intoxicated, threatened to commit suicide and passed out. Subsequently, an aunt provided temporary shelter for the children. However, as a consequence of the incident and the parents’ subsequent refusal to cooperate with the Department of Children and Family Services (DCFS), in August 1985, DCFS brought suit for an adjudication of wardship and temporary custody on the ground of neglect.

The parties stipulated to a finding of neglect, .and the children were placed" in foster care with guardianship in the Guardianship Administrator of DCFS. The children were returned to the Slaters’ custody in February 1986.

Then, within a couple of months after the birth of her fourth child, S.S., Janet was readmitted to ZMHC when she became violent, and a second petition was filed by DCFS seeking custody of the children on grounds of abuse and Janet’s mental health problems. Pursuant to the parties’ stipulation, a second adjudicatory order was entered in November 1986 finding the children dependent and abused. The children were returned to their parents’ custody after Janet’s release from ZMHC. Janet and Tater were divorced in December of that year.

On March 30, 1987, before the matter came back up for a dispositional hearing, Janet was once again admitted to ZMHC for aggressive, hostile behavior. The children were again placed in foster care. Janet was released on May 15, but was returned on May 27 after verbally abusing and physically assaulting her DCFS caseworker during a scheduled supervised visit with the children. This hospitalization lasted until June 16.

On May 21, 1987, the children were placed together in the foster home where they have remained ever since. Within six weeks of their placement, Mrs. Douglas, the foster mother, reported to DCFS that the children appeared to have been sexually abused.

Mrs. Douglas’ report was investigated, abuse was indicated, and the children were given physical and psychological examinations and child sexual abuse therapy. Visitation between Janet and the children was terminated and a second supplemental petition was filed alleging, inter alia, sexual abuse and seeking a termination of the Slaters’ parental rights by reason of depravity (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(i)), failure to protect the children from an injurious environment (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(g)) and failure to make reasonable progress toward the return of the children (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(m)).

The adjudicatory hearing on this petition was continued on the Slaters’ motions for various reasons, including Janet’s readmission to ZMHC on November 20, 1988. Prior to that admission, however, the court heard testimony in camera of J.S. and J(son). The children’s testimony was tape-recorded so that it could be reviewed by Janet and her attorney before the children were cross-examined. J.S.’ testimony, direct, cross and redirect, was completed in this manner on November 1, 1988; however, the cross-examination of J(son) was not pursued before the court recessed for the day. As a result of Janet’s involuntary readmission, the adjudicatory hearing was again continued. Janet was released December 13, but readmitted December 23, 1988, and remained at ZMHC this time until March 3, 1989. During this period, Donald (Tater) voluntarily consented to the termination of his parental rights.

A third supplemental petition was then filed in January 1989, naming only Janet and seeking the termination of her parental rights on grounds of depravity, failure to make reasonable progress and Janet’s inability to discharge parental responsibilities by reason of her “periodic mental disability” (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(p)). After numerous mesne motions and continuances, the adjudicatory hearing on the third supplemental petition was held in Sepember, October and November, 1989 and February 1990.

At the adjudicatory hearing, Mrs. Douglas described the circumstances that led to her report to DCFS of suspected sexual abuse. She testified that initially the baby, S.S., would scream and push away when she tried to hold him. He did not respond positively to touching until about six months after his placement in her home. T.S. during this period used to awaken during the night wet with perspiration and crying. He told her that Janet and Tater hurt him and that he was afraid. J.S. displayed an extreme fear of loud noises, especially fireworks, and was unusually flirtatious with strangers. She tried to fondle Mrs. Douglas’ breasts and said that she wanted to have a “booby party.” After visitation with Janet, Mrs. Douglas stated, J.S. would act out sexually, taking T.S.’ pants down and playing with his penis and poking her finger into his anus “to see if he had any poop.” J.S. also tried to disconnect or break the Douglases’ videocassette recorder, reportedly because she had seen pictures of herself and her brothers being hurt at her mother’s house. J(son) confided that the Slaters had taken pictures of the children in the nude, that during the filming Tater had urinated and defecated on him, and that Janet had put a lighted match up to T.S.’ penis. Mrs. Douglas’ testimony of J(son)’s and J.S.’ descriptions of other acts of depravity, human and animal torture and sexual abuse during their life with Janet appears in the record on appeal, but need not be repeated to any greater extent for purposes of this opinion.

The foster parents indicated their willingness to adopt all four children in the event they become legally available for adoption.

Expert evidence introduced by DCFS in support of the petition established that J(son) and J.S. had been traumatized by their experiences while living in Janet’s home. Based on his physical examination of the children on January 20, 1988, Dr. Richard Miller testified that J.S.’ hymenal membrane was missing and that this finding was consistent with the child’s report to her foster mother that objects had been forced into her vagina. It was his opinion that J.S. had been sexually abused. The doctor’s examination of the other children neither confirmed nor rebutted their reports of abuse.

The children’s counselor, Diane Ramer, conducted nine sexual abuse therapy sessions with J(son) and 12 with J.S. She helped them to talk about their feelings, fears and pain and to alleviate their guilt. Based on what the children said and how they acted as they opened up during their sessions with the counselor, it was her opinion that the children were not lying about the abuse they had suffered in the Slater home and that they had been emotionally traumatized.

J(son) testified about his recollection of the experiences of physical and sexual abuse that he had seen and participated in in the Slater home. He expressed fear and anger toward Janet. J(son)’s 14-year-old foster brother, G.W. Douglas, testified that he had shared his bedroom with J(son) since his placement in 1987 and the two boys had had private conversations about J(son)’s life in the Slaters’ home. Many of the incidents of abuse related by J(son) to the court had been revealed to G.W. during these discussions which began as early as June or July 1987. G.W. also testified that while changing T.S.’ diapers, he had observed that the baby’s penis was scarred. Mrs. Douglas also testified in some detail about J.S.’ private talks with her about abuse in the Slater home. The details in many respects coincided with G.W.’s testimony of reports given by J(son) to G.W. and with J(son)’s testimony as received by the court in camera.

Expert witnesses who had treated Janet at ZMHC and at the Community Mental Health Center for Fulton and McDonough Counties testified to Janet’s mental illness. Although these witnesses had not observed Janet with her children, they generally testified to her long-term unstable, antisocial behavior, periodic bouts with out-of-control aggression apparently related to stress and her substantial history of drug abuse.

In her defense, Janet established that since her most recent hospitalization, she had acknowledged her mental illness, was taking her medication, and had learned to recognize symptoms of periodic relapses (pacing, preoccupation with religion and insomnia) which indicated that increased medication was needed. DCFS homemakers who had supervised visitation prior to November 1987 testified that on most occasions Janet had acted appropriately toward the children and they had not appeared afraid of her. Finally, Janet and her father and stepmother testified to Janet’s love and affection for her children and their show of affection for her.

At the conclusion of all evidence, the court took the matter under advisement and issued a memorandum opinion on February 26, 1990, finding that the evidence clearly and convincingly established that: (1) with respect to Janet’s inability to discharge her parental responsibilities, “a regression is probable and that Janet is not even remotely able to discharge her parental responsibilities”; and (2) with respect to her failure to make reasonable progress toward the return of her children, “there has been virtually no progress *** [and] there seems to be no prospects of the children returning in the foreseeable future.” (Emphasis in original.) With respect to depravity, the court found “that although there was bothersome evidence, it probably did not rise to the level of clear and convincing.” An order adjudicating Janet an unfit person pursuant to sections l(D)(m) and (D)(p) of the Adoption Act was entered on March 1,1990.

The matter then proceeded to a dispositional hearing. After receiving DCFS’ updated report and further testimony from Mrs. and Mr. Douglas, Janet and her father and stepmother, the court found by clear and convincing evidence that “it is in the best interests of [the] minors that the parental rights of Janet Slater be terminated.” Having reviewed the entire record before us in this appeal, we now affirm the circuit court’s adjudicatory and dispositional orders.

Janet first contends that section l(D)(p) of “An Act in relation to the adoption of persons, and to repeal an act therein named” (Adoption Act) (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(p)) is unconstitutional because it deprives her of equal protection and due process of law. Contrary to Janet’s argument, we find that the statute is neither vague nor inherently confusing and incapable of reasonable application. The constitutional challenges advanced here were generally addressed in In re I.D. (1990), 205 Ill. App. 3d 543, 549-50. In our opinion, the court’s rationale in I.D. adequately responds to Janet’s constitutional arguments. In holding that the statute is not constitutionally defective, the court stated:

“The State as parens patriae has a right and duty, as well as the authority, to legislate for the protection and welfare of children within its jurisdiction. (Regenold [v. Baby Fold, Inc. (1977)], 68 Ill. 2d [419,] 437, 369 N.E.2d [858,] 866.) Our legislature has done so by enacting the Juvenile Court Act and the Adoption Act. These have created a comprehensive scheme to ensure children receive the proper care and training. They authorize the removal of the children from the home if necessary. The ultimate goal is to reunite the families. However, the legislature recognizes there are those cases wherein this cannot be readily done. In such situations, it is the intent of the acts to avoid placement of children in long-term or permanent foster care with the accompanying detrimental impacts to the children by encouraging placement in a permanent, stable adoptive home. Section l(D)(p), the section in question, is clearly rationally related to this goal. Not all parents with these disabilities are affected. It is only those who cannot discharge their parental responsibility due to these disabilities and whose inability to do so will extend beyond a reasonable time. In such circumstances, it is necessary to ensure stability and an appropriate family life for the minor in a permanent family relationship. There is no constitutional defect.” (Emphasis in original.) (205 Ill. App. 3d at 549-50.)

We embrace the foregoing analysis and reject accordingly Janet’s constitutional challenges.

Janet next contends that the circuit court’s findings of unfitness are contrary to the manifest weight of the evidence.

As a general rule, the trial court has broad discretion in matters of family relationships and its evaluations of questions of eredibility and weight assignable to the evidence should not be disturbed on appeal unless they are palpably contrary to the manifest weight of the evidence or the court abuses its discretion. (In re Grotti (1980), 86 Ill. App. 3d 522, 408 N.E.2d 728.) Particularly where, as here, it is apparent that the parent is treading a precarious line in dealing with the stresses of her life and it is clear from the record on appeal that the trial court fully grasped the magnitude of its decision, this court should be loath to upset the lower court’s rulings.

Based on the totality of the evidence before it, the trial court concluded that Janet’s mental illness was such that she could not be expected to be able to discharge parental responsibilities within a reasonable period of time. The trial court also concluded that Janet had made “virtually no progress” toward the return of her children.

Janet places heavy reliance on the fact that expert witnesses who testified concerning her mental illness could not conclusively state that respondent could not perform her parental duties if she continued in remission and took her medication.

While it is true that most of the experts who testified had either never seen Janet with her children or had seen her with them only during supervised visitation and had not noticed any mistreatment, it is also true that the expert witnesses observed that Janet’s prognosis was not favorable for maintaining sufficient control to function outside of the hospital for a significant period of time. Expert testimony also established that given Janet’s history it was not likely that she would be able to provide adequate parenting for four young children and that it was highly probable that Janet would resume her abuse of drugs and/or alcohol. Janet’s history in dealing with stress is well documented during the period that this case has languished in the circuit court. From mid-1985 until a few months prior to the completion of the adjudicatory hearing in 1990, Janet’s antisocial conduct required that she be confined on no less than seven occasions. The record bespeaks of only two occasions on which Janet acknowledged the onset of renewed symptoms of her illness and sought psychiatric help in adjusting her medication without having to be recommitted to the hospital. Both occasions occurred within a few months of the 1989-90 adjudicatory proceedings.

Dr. Iwashita, a clinical psychologist who testified for petitioner, provided a report of his 1989 evaluation of Janet in which he stated:

“In terms of Symptomatic Pattern, the client is immature, impulsive and hedonistic, and she frequently rebels against authority. She is hostile, quite aggressive and often frustrated. She seems unable to learn from punishing experiences and repeatedly gets into the same type of problems. Many individuals with this profile develop severely addictive problems and frequently have legal, family and work difficulties. In terms of interpersonal relations, she may appear charming and tends to make a good first impression, but she is superficial, selfish, hedonistic and untrustworthy in interpersonal relations, apparently only interested in people for how they can be used. She seems interested only in fulfilling her own pleasures, and is not interested in or sensitive to the needs of others. She seems unable to experience guilt over causing others trouble. Because she is unable to form stable, warm relationships, her current relationships are likely to be quite strained. In addition, she is likely to be openly hostile and resentful.”

J(son)’s poignant replies during his in camera cross-examination reinforce the expert’s evaluation:

“Q. Would you laugh and have fun with Janet on those visits at the Department office?
A. No.
Q. What would you do when Janet was around in those visits?
A. Usually she, she pretends she is being nice, but I know she ain’t.”

The trial court, in rejecting Janet’s position that she is in remission and now, after more than three years of not having cared for her children, can take responsibility for them, summarized its findings as follows:

“[Janet’s counsel] points out that Janet is recovering from her unfortunate illness and the Court certainly applauds her effort and hopes it is true. However, the Court’s mandate is to determine if there is in fact a likelihood, based upon the testimony (which is in the record and familiar to the parties) that she may resume and discharge her parental responsibilities. Sadly the Court must conclude that by clear and convincing evidence a regression is probable and that Janet is not even remotely able to discharge her parental responsibilities.”

Our review of the record on appeal reveals neither an abuse of the trial court’s discretion nor that the court’s determination of unfitness was contrary to the manifest weight of the evidence. Janet’s acknowledgement in court of her mental illness, as the court aptly noted, represents a great stride in her personal life, but does not translate into progress toward the return of her children. The record before us is replete with evidence of Janet’s neglect, abuse — sexual as well as physical and emotional — and torture of her own children. Even disregarding those uncorroborated aspects of the charges that appear only in the testimony of J(son) and his sister, J.S., the evidence presented to the court clearly and convincingly establishes that Janet abused and neglected all four children. Janet, however, has never admitted any wrongdoing or expressed any guilt, remorse or sorrow for the serious harm done to her children. Whether this factor is a function of Janet’s illness or her personality and upbringing is not revealed and need not be determined, but it does lend support to the court’s finding of parental unfitness. In sum, without reiterating all of the pathetic factual details underlying this cause, suffice it to say we find adequate evidence to support the trial court’s findings of unfitness pursuant to sections l(D)(m) and (D)(p) of the Adoption Act.

The judgment of the circuit court of Fulton County is affirmed.

Affirmed.

STOUDER, P.J., and McCUSKEY, J., concur.