source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK CREQUE, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—0793
    Opinion filed May 17, 1991.

      Jenner & Block, of Chicago (Sidney I. Schenkier and Michael T. Brody, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Frank Creque, was convicted by a jury of aggravated arson and three counts of felony murder for a fire at an apartment building in which three residents died. Judgment was entered on the verdicts, and the trial court sentenced defendant to natural life imprisonment on the felony murder counts and a concurrent 30-year term on the aggravated arson count.

The fire occurred in a four-story residential building in Chicago. On the ground level are a lobby, an office and five apartments, one of which defendant occupied. A wooden stairway runs from the lobby to each of the three upper floors with a fire door on each floor between the stairway and the hallway. It is undisputed that the fire began on the ground level in a couch left in the hallway by a former tenant. The three residents who died lived on the fourth floor. Several other residents were injured.

Greg Smith, who had known defendant for several years, testified for the State that on October 5, 1988, at about 1:30 p.m., he and defendant bought some beer, and then went to defendant’s apartment. Evelyn Rigsby, with whom defendant shared the apartment, came home about 4:30 p.m. Soon thereafter, Thomas Viere, the building owner, came to the door and asked Rigsby for rent money. Defendant began to complain to Viere about a neighbor’s barking dogs and items needing repair in the apartment. Viere informed defendant and Rigsby that he wanted them to vacate the apartment in two weeks so that the building manager could move in. After Viere left, defendant said that when he moved out, he was going to take down and destroy the kitchen cabinets. Defendant then went into a back room and returned with a white plastic container with a red lid. Smith followed defendant into the hallway, where he watched defendant spray the front steps and the couch with the liquid from the bottle, then light a match and throw it on the couch, which went up in flames. Smith did not say anything to defendant or try to stop him. Smith further testified that he ran into the apartment and filled a green garbage pail with water from the bathroom. When he opened the door to the hallway, flames were over his head and the smoke was thick. He slammed the door shut and exited through the window with defendant and Rigsby. After Smith helped several people out of the building, he and defendant walked to the liquor store and bought more beer. Defendant warned Smith that if he told anyone about the fire, defendant would involve Smith.

Smith went to the police station at about 2:30 a.m., the following morning, after learning that the police were looking for him. The police spoke with Smith three times. Smith testified that he was afraid during the questioning because he thought that the police considered him a suspect. At first, he told police that he had not seen anything. When the police returned and told him that they had spoken to Rigsby, Smith told the police that he saw defendant go out into the hallway, but that he remained in the apartment. During the third interview with police, Smith said that he followed defendant into the hallway and watched him spray the stairway, hallway and couch and then set fire to the couch.

Rigsby testified for the State that she and defendant had lived together about seven years. Her testimony about the events prior to the fire substantially corroborated that of Smith. When Rigsby arrived home at about 4:30 or 4:45 p.m., defendant and Smith were in the apartment, drinking and listening to music. When Viere came, defendant berated Viere and threatened to report building code violations. When Viere told Rigsby that he wanted them to move out in two weeks, defendant said that they could stay for three months if they wanted. After Viere left, defendant told Rigsby that he was going to break the cabinets. Smith suggested that they spray paint the walls but then said that he was only kidding. Defendant went into the bedroom and returned with a white plastic container, which appeared to be the bottle of charcoal lighter fluid stored in the bedroom closet. Defendant and Smith went out into the hallway, returning two minutes later. They sat on the couch, opened another beer and neither appeared to be acting unusually. When Smith noticed smoke coming into the apartment from the hallway, he opened the door, quickly shut it and said the building was on fire. They all exited through a window to the outside.

Both Rigsby and defendant spoke to police at the scene, then went to the police station, where Rigsby remained for 22 hours without food or sleep. At first, she denied knowing anything because she was upset and scared. She did not think that defendant started the fire and did not want to get him in trouble. The police told her that three people died in the fire and that she could be charged with murder. They later told her that Smith blamed defendant for the fire. Eventually, she told the truth.

Detective William Baldree testified that he interviewed Smith, Rigsby and defendant at the police station. After Baldree told defendant of his conversation with Smith and Rigsby, including their accusations, defendant responded that no one could have seen him start the fire because he was in the hallway alone and that “no one could have seen him start anything.” Defendant denied starting the fire.

Marshall Ronald Robinson of the Chicago fire department, a fire investigation expert, arrived at the fire scene at 6:50 p.m. He concluded from his observations that the fire originated in the couch and was intentionally set, based upon the lack of structural damage to the couch itself. He also stated that “something was poured on the couch to help the couch burn at the rate it did.” His report, however, indicated that he observed no evidence of accelerant, “no low burning” and no other unusual burn patterns.

Detective Allen Falasz of the bomb and arson unit testified that he was assigned to do a follow-up investigation on the morning after the fire and was told an accelerant had been used and that the fire started in the couch. He arrived at the building at 9:20 a.m. and took four debris samples from the couch and one from the front stairwell. Falasz stated that he saw no evidence of tampering or alteration of the couch. Chemical analysis by William Tyrell, the State’s expert, revealed that these samples contained a medium petroleum distillate, an accelerant. Tyrell could not identify the type of accelerant or state how long the chemical had been on the couch.

Viere testified for the State that he went to the apartment at about 5 p.m. to collect rent and to tell defendant and Rigsby that they were being evicted. Defendant became “adamant” and threatened to report Viere for building violations. Viere stayed for a few minutes, then left the building at about 6 p.m. to return to his nearby home. Viere returned to the building about 7:30 or 8 p.m. when he learned of the fire. He told police at the scene about his earlier discussion with Rigsby and defendant. The building was boarded up, and Viere remained on the premises through the night. He allowed two residents, who had no where else to sleep, to remain in the building overnight but no other people “came and went.”

Ann Gentry, the resident manager, testified that she returned to the building for a short time on the morning after the fire to get some clean clothes from her apartment. She could not recall the precise time, but stated that it was sometime after she had a cup of coffee at a restaurant which opens at 5:30 a.m.

Detective Leon De Mars of the bomb and arson unit testified for the defense. De Mars investigated the scene on the evening of the fire. The sample he took from the couch tested negative and the report that he prepared later that evening stated that he observed no indications of an accelerant, pour patterns or low burning, signs of an intentionally set fire. On the next day, De Mars revised his report, deleting the references to the absence of evidence of accelerant and pour patterns. He also deleted his observation that the scene showed slow combustion with no low burning, even charring and extensive smoke, which could be evidence of an accidental fire. De Mars testified that the lack of evidence of a pour pattern does not necessarily indicate that an accelerant was not used. Whether a pour pattern is found depends on the amount of accelerant used, how long the fire burned in the area of the accelerant, the type of surface and the amount of water used to put out the fire.

The jury returned a guilty verdict on one count of aggravated arson and three counts of felony murder. The jury found defendant not guilty of the other three counts charging that he caused the death of the victims with the knowledge that his acts created a strong probability of death or great bodily injury. The judge entered judgment on the verdicts. At the sentencing hearing, the trial court found defendant ineligible for a capital sentence because the State failed to prove that defendant acted with an intent to kill or knew that his acts created a strong probability of death or great bodily harm. The court then found that it had no discretion and was required to sentence defendant to a term of natural life imprisonment on the felony murder convictions under the Uniform Code of Corrections. Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(a)(1)(c).

On appeal defendant contends that the trial court erred in denying his pretrial motion to preclude death penalty proceedings; in admitting evidence of results of tests taken a day after the fire; in allowing the jury to review portions of the trial testimony; and in excluding certain evidence about an alternative cause of the fire. In addition, defendant maintains that he was not proved guilty beyond a reasonable doubt and was improperly sentenced to a term of natural life.

Initially, we reject defendant’s argument that the trial court improperly denied his motion to preclude death penalty proceedings. Defendant asserts that the trial court should have held a preliminary hearing before trial to determine whether death would be appropriate if defendant were found guilty. We disagree. Neither statutory nor case law requires such pretrial procedure and such proceedings would be inefficient and impractical.

The statute which outlines the death penalty proceedings unambiguously contemplates a separate sentencing hearing only after defendant is convicted or pleads guilty. (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(d)(1).) Moreover, defendant’s argument is inconsistent with our supreme court’s decision in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 397 N.E.2d 809, which held that a prosecutor need not decide whether to seek a death penalty until after trial so the State can evaluate the testimony and evidence actually heard. (See also People v. Silagy (1984), 101 Ill. 2d 147, 461 N.E.2d 415.) It would be untimely to conduct a pretrial proceeding to determine the appropriateness of death penalty proceedings, as defendant suggests, because the State may consider evidence presented at trial in deciding whether to impose a death penalty. The court did not err in denying defendant’s motion.

Defendant next argues that the trial court erroneously admitted evidence of the chemical analysis from debris collected on the day after the fire. Defendant does not allege any deficiency in the chain of custody after the samples were collected, but rather contends that there is no evidence that the debris was not tampered with prior to its collection from the couch.

Initially, we note that the propriety of the admission of evidence rests within the trial court’s discretion and will not be reversed absent an abuse of that discretion. (People v. Holman (1987), 157 Ill. App. 3d 764, 510 N.E.2d 1139.) When evidence is subject to alteration or is not readily identifiable, the State must show a chain of custody of sufficient completeness to render it improbable that the evidence was tampered with or contaminated. (People v. Slaughter (1986), 149 Ill. App. 3d 183, 500 N.E.2d 662.) The State, however, is not required to exclude all possibility of tampering. People v. Gholston (1984), 124 Ill. App. 3d 873, 464 N.E.2d 1179.

We believe that the State presented sufficient evidence to prove chain of custody. The fire began sometime after 6 p.m. on October 5, 1988. The fire department received the call at 6:28 p.m., and two crews reported within a “couple of minutes.” Detective De Mars arrived at 7 p.m. to investigate and remained in the building for 3V2 hours. Viere returned between 7:30 p.m. and 8 p.m., and stayed all night in the building, which had been boarded up. Although two residents remained overnight, no evidence suggests that others entered the secured building until morning when Gentry came to get clean clothing. Detective Falasz arrived at 9:20 a.m. the following morning and collected the samples which he submitted to the crime laboratory for analysis. Based upon this testimony, we find it improbable that the debris evidence on the couch was tampered with or altered. We disagree with defendant’s assertion that the couch was open to “public access” for 15 hours. The only persons in the building were members of the Chicago police and fire departments, the building owner and two residents who were allowed to stay. Nor is the State’s failure to identify or call as witnesses the two residents who remained overnight fatal to its proof of chain of custody. See People v. Bradney (1988), 170 Ill. App. 3d 839, 525 N.E.2d 112.

We find People v. Jackson (1980), 89 Ill. App. 3d 461, 411 N.E.2d 893, instructive. In Jackson, this court rejected the same argument raised here about the admissibility of debris samples from an arson fire. In that case, there was a two-hour lapse between the fire and the recovery of the debris samples from the victim’s apartment. The court focused on the “continuous presence of fire, police and investigative personnel,” who extinguished the fire and investigated the scene. The court also noted that “[t]he fact that more stringent protective techniques were not employed goes to the weight or the credibility of the evidence in contrast to its admissibility.” (Jackson, 89 Ill. App. 3d at 473, 411 N.E.2d at 902.) The court accordingly concluded that the evidence was properly admitted.

As in Jackson, the evidence here established the uninterrrupted presence of fire and police personnel from 6:30 p.m. until 10:30 p.m. on the evening of the fire. The only persons who remained after the building was subsequently boarded up were Viere and two residents. According to Viere, no one else entered the building. Although better practice might require that a guard be present to safeguard the scene during an arson investigation, the lack of better measures only affects the weight, not the admissibility, of the evidence.

We also reject defendant’s argument that the presence of contradictory test results from samples taken within a 15-hour period suggests alteration or tampering of the couch. In our view, this alone is insufficient to create a “tangible suggestion” that the couch was tampered with or altered. (People v. Holman, 157 Ill. App. 3d at 776, 510 N.E.2d at 1146.) Investigators took only one sample from the couch on the evening of the fire, whereas they took four samples from different parts of the couch on the following morning. Certainly, four samples taken in the absence of proof of tampering are more reliable than one sample.

Defendant directs our attention to People v. Slaughter (1986), 149 Ill. App. 3d 183, 500 N.E.2d 662, and People v. Brown (1972), 3 Ill. App. 3d 879, 279 N.E.2d 382. In both cases, there was no evidence that access was restricted to the area where the evidence was stored. Moreover, we find these cases distinguishable because both courts relied upon the lack of testimony that the evidence was properly inventoried, labelled or sealed. Such a complete break in the chain of custody is not present in this case. In the absence of any indication of tampering or alteration, we believe that the protective measures taken were sufficient to render admissible the evidence regarding analysis of the debris samples. The testimony of the crime laboratory chemist, therefore, was properly admitted.

Defendant also claims that the trial court erred in excluding certain testimony as irrelevant. After several witnesses testified that former residents had used the chemical toluene as a drug, defendant sought to introduce a neurologist’s testimony on the use and effect of toluene, particularly in the Uptown area, and its tendency to cause accidental fires. The trial court excluded the testimony. On appeal, defendant asserts that this evidence provided an alternative explanation for the fire’s origin.

A trial court in its discretion may reject evidence as irrelevant if it has little probative value because of its remoteness or uncertainty. (People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.) Further, we will not reverse such ruling absent an abuse of discretion. People v. Ward, 101 Ill. 2d 443, 463 N.E.2d 696.

Our supreme court recently considered this issue under analogous circumstances. (People v. Morgan (1991), 142 Ill. 2d 410, 568 N.E.2d 755.) In Morgan, defendant sought to introduce evidence of heavy drug traffic near the apartment where the murder victim’s body was found. Defendant argued that this evidence bolstered his theory that the victim, a drug dealer, was murdered during a drug deal by someone other than defendant. The supreme court found such argument “incredibly speculative” and found that the trial court’s ruling excluding the evidence was not an abuse of discretion. (Morgan, 142 Ill. 2d at 460, 568 N.E.2d at 773.) Other Illinois courts found evidence that another person may have committed the crime too speculative and insufficient to permit its admission. See People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590; People v. Columbo (1983), 118 Ill. App. 3d 882, 455 N.E.2d 733; People v. Bryant (1982), 105 Ill. App. 3d 285, 434 N.E.2d 316.

Under Morgan, we find that the evidence in this case connecting toluene use to the fire was speculative and too unspecific. The evidence suggested that although several residents may have used toluene, these persons moved out one month before the fire. No evidence was adduced at trial to suggest that these toluene users or anyone else inadvertently spilled toluene on the couch or used the chemical anywhere near the couch at any time, let alone immediately prior to the fire. There is simply no evidence connecting the fire to the toluene use. We conclude that the trial court did not abuse its discretion in excluding the neurologist’s testimony.

Defendant next contends that the jury’s review of Detective Baldree’s direct examination during its deliberations placed undue emphasis on his testimony and deprived defendant of a fair trial.

Initially, we note that the decision to grant or refuse a jury’s request for review of testimony rests within the trial judge’s discretion and will not be disturbed on appeal absent an abuse of discretion. (People v. Pierce (1974), 56 Ill. 2d 361, 308 N.E.2d 577.) In its discretion, the trial court first determines whether reviewing testimony would be helpful or harmful to the jury’s deliberations. A “plausible starting point” is the jury’s belief that such testimony would be helpful. (People v. Sanders (1984), 127 Ill. App. 3d 471, 475, 469 N.E.2d 287, 291.) A trial court does not abuse its discretion by permitting review of only prosecution witnesses (People v. Reyes (1982), 108 Ill. App. 3d 911, 439 N.E.2d 1089), or allowing review of direct examination without the related cross-examination (People v. Reynolds (1978), 57 Ill. App. 3d 593, 373 N.E.2d 650). Further, appropriate reasons for denying such request include difficulties in obtaining transcripts, availability of court reporters and concern about trial delay. People v. Frisby (1987), 160 Ill. App. 3d 19, 512 N.E.2d 1337.

The record reveals that the trial court first determined what testimony would be helpful to the jury, then exercised its discretion reasonably under the circumstances. At 11:55 a.m., the jury requested transcripts of all trial testimony. The court informed them that no transcripts were available and instructed them to continue to deliberate. At 4:15 p.m. on the same day, when the jurors again inquired about the trial transcripts, the judge pinpointed the particular testimony requested, “the prosecution’s direct testimony” of Baldree and the entire testimony of Smith and Rigsby. The court reporter who was present on this day indicated that she recorded Baldree’s testimony and that two other reporters recorded Smith and Rigsby. The trial judge attempted to locate the two court reporters or their notes. When the reporters or notes could not be found, the court asked the jury whether they wanted to review only Baldree’s testimony, to which they responded affirmatively.

Defendant maintains that the jury’s review of Baldree’s direct examination without the relevant cross-examination and without the testimony of Smith and Rigsby placed undue influence on Baldree’s testimony. We disagree. The jury did not request Baldree’s cross-examination and presumably did not feel it would be helpful. Moreover, the jury heard Baldree’s cross-examination at trial and witnessed his manner and demeanor. (People v. Reynolds, 57 Ill. App. 3d 593, 373 N.E.2d 650.) The circumstances surrounding the jury’s request indicate that the judge acted within his discretion in proceeding without the review of the testimony of Smith and Rigsby. It is noteworthy that it was late in the day, two different court reporters recorded this testimony, and neither was immediately available. (People v. Frisby, 160 Ill. App. 3d 19, 512 N.E.2d 1337.) Also, the trial judge could have reasonably determined in his discretion that to grant the jury’s request for Smith’s and Rigsby’s testimony would impede the progress of the trial. (People v. Reynolds, 57 Ill. App. 3d 593, 373 N.E.2d 650.) Nor do we believe that the defense was hindered because the jury did not review the testimony of Smith and Rigsby. Under the circumstances, the trial court properly exercised its discretion in granting the jury’s request to review Baldree’s direct examination testimony.

People v. Sanders (1984), 127 Ill. App. 3d 471, 469 N.E.2d 287, and People v. Martin (1980), 84 Ill. App. 3d 822, 406 N.E.2d 49, cited by defendant to support his argument that the failure to review Baldree’s cross-examination testimony resulted in undue emphasis, are factually distinguishable from the present case. In Martin, the trial court allowed the jury to review the testimony of a witness who testified at the first trial but died before second trial. In Sanders, the trial court explained that the lack of complexity in the trial, the issues and the testimony of the witness mitigated against allowing the jury’s request. This court upheld the trial court’s determination. Thus, these cases do not support defendant’s claim that failure to read the entire testimony resulted in undue emphasis, but rather support a trial court’s discretion in assessing whether a review of testimony will help or harm jury deliberations. Here, the trial court properly exercised its discretion.

Defendant next contends that he was not proved guilty beyond a reasonable doubt because the only direct evidence, Smith’s testimony, was inconsistent and incredible.

A reviewing court will not reverse a conviction unless, after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Geneva (1990), 196 Ill. App. 3d 1017, 554 N.E.2d 556.) It is the trier of fact’s function to determine the credibility of the witnesses, the weight to be given to their testimony and the reasonable inferences to be drawn from the evidence. (People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247.) Further, the trier of fact is also charged with resolving conflicts or inconsistencies in the testimony of witnesses (People v. Phillips (1989), 127 Ill. 2d 499, 538 N.E.2d 500), and assessing questions of credibility when a witness’s pretrial statements differ from his trial testimony. People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317.

Applying these principles, we find that the evidence was not so improbable or unsatisfactory as to create reasonable doubt concerning defendant’s guilt. Both Smith and Rigsby saw defendant leave the apartment with a plastic bottle. Smith watched defendant spray a liquid onto the steps, hallway and couch, then throw a lit match onto the couch. Although defendant told police that he was in the hallway alone, Rigsby testified that after defendant came from the bedroom with a plastic bottle, both men left the apartment and returned after two minutes. Rigsby thus corroborated Smith’s testimony that he saw defendant set the couch on fire. The expert opinion of Detective Falasz that the fire was intentionally set also substantially corroborates Smith, as does Investigator Robinson’s testimony that the fire was “intense and fast moving.”

We do not believe that Smith’s inconsistent statements at the police station regarding the events create reasonable doubt. Although Smith initially told police that he was not in the hallway, he later gave police the same account of the events that he testified to at trial. Given Smith’s friendship with defendant and his fear of being considered a suspect, we believe that a rational trier of fact could find Smith credible, even though he initially did not disclose his observations. Moreover, such resolution of conflicting evidence is a function for the jury. (People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277.) The jury similarly heard evidence about De Mar’s revised report. We cannot state that this evidence creates reasonable doubt.

The supreme court has rejected defendant’s argument that the circumstantial evidence must exclude reasonable hypotheses of innocence. (People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344.) And as indicated above, the circumstantial evidence corroborates Smith’s testimony. We find that defendant was proved guilty beyond a reasonable doubt.

Finally, defendant argues that section 5—8—1 of the Unified Code of Corrections (Ill Rev. Stat. 1987, ch. 38, par. 1005—8—1) is ambiguous because defendant’s convictions for multiple murders committed without intent to kill are insufficient to support a discretionary sentence under subsection (a)(1)(b) of the Code, but form the conclusive basis for a mandatory natural life sentence under subsection (a)(1)(c). Because these provisions are in conflict, he maintains that we must consider the statute’s legislative history.

Section 5—8—1(a)(1) requires the court to set a 20- to 40-year sentence of imprisonment for murder, but also provides the following discretionary and mandatory provisions:

“(b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9—1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural life imprisonment, or (c) if the defendant has previously been convicted of first degree murder under any state or federal law or is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1).)

The defendant maintains that these sections read in tandem reveal an ambiguity in the statute and require resort to legislative history.

Defendant relies on People v. Winchel (1987), 159 Ill. App. 3d 892, 512 N.E.2d 1298, to support his contention that the statute is ambiguous. In Winchel, the defendant argued that multiple murder is a factor in imposing both a discretionary natural life sentence under subsection (a)(1)(b) of section 5—8—1 and a mandatory natural life sentence under subsection (a)(1)(c). This court concluded that section 5—8—1 was ambiguous, but resolved the conflict after considering the legislative history and rules of statutory construction. The court found that the legislature “intended to make a mandatory natural life sentence the controlling sentencing provision for those convicted of, inter alia, multiple murder. That is, under subsection (a)(1)(c), multiple murderers are required to be sentenced to a natural life term where a death sentence is not imposed.” (Winchel, 159 Ill. App. 3d at 921, 512 N.E.2d at 1316.) The court also reached the same conclusion by applying statutory construction rules. Thus, although the Winchel court recognized an ambiguity in section 5—8—1, as defendant maintains, the court resolved the conflict.

Indeed, since Winchel, under facts similar to the instant case, our supreme court has held that the statute mandates a natural life imprisonment for the murder of two or more persons. (People ex rel. Daley v. Strayhorn (1988), 119 Ill. 2d 331, 518 N.E.2d 1047.) In Strayhorn, defendant was convicted of murdering three firefighters, who died fighting the arson fire for which defendant was responsible. The trial judge sentenced defendant to two 40-year concurrent sentences and a consecutive 30-year term, after concluding that sufficient mitigating factors existed to preclude imposition of the death penalty. The supreme court found that after refusing to impose the death penalty, the trial judge had no discretion in sentencing defendant because “[t]he statute unequivocally mandates natural life imprisonment for the murder of two or more persons.” Strayhorn, 119 Ill. 2d at 336, 518 N.E.2d at 1050. See also People v. Matthews (1990), 205 Ill. App. 3d 371, 562 N.E.2d 1113, People v. Gant (1990), 202 Ill. App. 3d 218, 559 N.E.2d 923.

We are unpersuaded by defendant’s argument that Strayhorn is distinguishable because it did not concern ambiguity between two sections of the same statute. The issue in Strayhorn was whether a trial judge was compelled to impose a natural life sentence upon a defendant convicted of multiple murders. After setting out the statute, including both the discretionary and the mandatory natural life imprisonment provisions, the court determined that the statute mandated natural life imprisonment for multiple murders. In so deciding, we presume the court considered the entire statute, including subsection (a)(1)(b). Although neither party in Strayhorn asserted an ambiguity within the statute itself, we refuse to decline to follow it on this basis. Nor do we find the factual distinctions between the cases important.

We will not resort to legislative history when the intent can be ascertained from the statutory language. (People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221.) The language of subsection (a)(1)(c) of section 5—8—1 clearly requires life imprisonment of a defendant “found guilty of murdering more than one victim.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1)(c).) For purposes of this statute, the legislature did not distinguish between types of first degree murder and presumably intended that any defendant convicted of multiple murders be sentenced to natural life imprisonment. Moreover, the supreme court in Strayhorn found such interpretation “unequivocal.” (Strayhorn, 119 Ill. 2d at 336, 518 N.E.2d at 1050.) Because we do not find the statute ambiguous, we are neither permitted nor required to consider legislative history.

Here, the jury found defendant guilty of the first degree murders of three people under section 9—1(a)(3). (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(3).) We conclude that the trial judge properly determined that the statute required a term of natural life imprisonment and so imposed one.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN and LaPORTA, JJ., concur.


author: JUSTICE LaPORTA

text:
    IRENE SCHONS, as Ex'r of the Estate of Kenneth Schons, Deceased, Plaintiff-Appellant, v. MONARCH INSURANCE COMPANY OF OHIO et al., Defendants-Appellees (Financial Guardian Insurance Agency, Inc., et al., Defendants).
    First District (6th Division)
    No. 1—90—2423
    Opinion filed May 17, 1991.
    Rehearing denied July 8, 1991.

      Stamos & Trueco and John G. Phillips & Associates, Ltd., both of Chicago (Michael T. Trueco and John F. Kennedy, of counsel), for appellant.
    Bell, Boyd & Lloyd, of Chicago (D. Daniel Barr and Kenneth E. Rechtoris, of counsel), for appellees.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff, Irene Schons, as executor of the estate of Kenneth Schons, brought an action in equity for reformation of an insurance contract issued by defendant, Monarch Insurance Co. of Ohio (Monarch), and procured through defendant Crump Aviation Underwriters, Inc. (Crump Aviation). Plaintiff’s action for reformation of the contract was predicated upon her claim that the contract had been executed under a mutual mistake of fact as to the insured parties. Defendants Monarch and Crump filed a motion to dismiss under sections 2—615 and 2—619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2—615, 2—619), contending, inter alia, that plaintiff’s action was not timely filed. The trial court dismissed plaintiff’s complaint, finding that her cause of action was barred by the doctrine of laches and by her failure to bring suit within the applicable limitations period set forth in section 13—206 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13—206). Plaintiff has appealed, asserting that the trial court erred in finding that her cause of action was not timely filed.

The record indicates that on January 5, 1990, plaintiff, Irene Schons, executor of the estate of Kenneth Schons, filed the instant unverified complaint in chancery seeking equitable reformation of an insurance contract issued by Monarch to Air Chicago Freight Airlines (Air Chicago). In her complaint, plaintiff asserted that she had been appointed executor of the estate of Kenneth Schons on June 30, 1977. Plaintiff asserted further that on July 22, 1976, Ralph Sheffey, president of War Aero, Inc. (War Aero), acting within the scope of his authority on behalf of War Aero, contacted representatives of Financial Guardian Insurance Agency, Inc. (Financial Guardian), to procure liability insurance on an aircraft, N-9446, which was owned by War Aero and leased to Air Chicago. Plaintiff asserted that it was Sheffey’s intent to procure insurance coverage on that aircraft for both War Aero and Air Chicago and that Sheffey’s intent was conveyed to Financial Guardian.

The complaint also alleged that Financial Guardian filed an application for insurance with Crump Aviation. Plaintiff asserted that the application for insurance and the policy issued by Monarch pursuant to the application mistakenly listed Air Chicago as the sole insured. The complaint alleged further that the application for insurance and the policy did not reflect the intent of the parties and that the erroneous terms occurred either by a mutual mistake of fact or were intentionally inserted by defendants. The complaint asserted that this error was disclosed by Ralph Sheffey in December 1987 and requested that the contract be reformed to reflect that both Air Chicago and War Aero were named insureds. The application for insurance, which was signed by Ralph Sheffey, and the insurance policy issued by Monarch were attached as exhibits to the complaint.

Thereafter, Monarch and Crump Aviation filed a combined motion to dismiss under sections 2—615 and 2—619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2—615, 2—619), asserting that plaintiff’s claim was barred by the 10-year limitations period for written contracts specified in section 13—206 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13—206). Defendants’ motion to dismiss also alleged that plaintiff lacked standing to bring the reformation action and that plaintiff’s complaint failed to state a cause of action. The motion to dismiss was not verified and was not supported by affidavit.

In the memorandum filed in support of their motion to dismiss, defendants alleged that Air Chicago leased a B-25 military plane, FAA N-94467, from War Aero, the owner of the plane. Defendants alleged further that the decedent, plaintiff’s husband and an employee of Air Chicago, piloted the B-25 military plane on its initial test flight and was killed when the plane crashed near Midway Airport.

Defendants also asserted in their memorandum that on July 5, 1977, following decedent’s death, plaintiff filed a wrongful death action in the circuit court of Cook County, Illinois, against War Aero, Sheffey, and others. The memorandum alleged that on March 9, 1978, a default judgment was entered against War Aero based upon its failure to comply with outstanding discovery, and on July 17, 1983, judgment was entered against War Aero in the amount of $1 million. Defendants asserted that plaintiff then initiated garnishment and citation proceedings against War Aero and, during the course of those proceedings, deposed Sheffey who, in addition to being affiliated with War Aero, was also the president of Air Chicago. The memorandum asserted further that because she was unable to collect on the judgment from War Aero, plaintiff filed the instant complaint seeking to reform the insurance policy to add War Aero as a named insured.

These factual assertions in the memorandum supporting defendants’ motion to dismiss were not included in the complaint or elsewhere in the record and were not supported by affidavit.

On July 18, 1990, the trial court granted defendants’ motion and dismissed the complaint with prejudice, finding that plaintiff’s action was barred under the doctrine of laches and by her failure to bring suit within the applicable limitations period. Plaintiff has appealed the dismissal of her complaint with prejudice.

Because the trial court made no reference to the section under which plaintiff’s complaint was dismissed, we must determine whether dismissal was proper under either section 2—615 or 2—619.

Under section 2—615, a defendant may seek dismissal of a complaint for failure to state a cause of action and must specify why the pleading is legally insufficient. (Ill. Rev. Stat. 1989, ch. 110, par. 2—615.) A motion brought under section 2—615 admits all well-pleaded facts in the complaint and attacks only the legal sufficiency of the complaint. (Uptown Federal Savings & Loan Association v. Kotsiopoulos (1982), 105 Ill. App. 3d 444, 449, 434 N.E.2d 476, 480.) Factual defenses, supported by affidavit, may not be raised under this section, and the court may consider only the allegations of the complaint. Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 509, 439 N.E.2d 60, 63.

Initially, we note that the cause before us is not an action for damages or for benefits under the policy issued by defendant. Rather, the allegations in the complaint are limited to those which assert a claim for reformation of the contract of insurance based upon a mutual mistake of fact.

An action to reform a written agreement rests upon the theory that parties came to an understanding, but in reducing it to writing, through mutual mistake or through mistake of one party and fraud by the other, some provision agreed upon was omitted. The action is brought to change the instrument as written so it conforms to the contract agreed upon by inserting the omitted provision. Harley v. Magnolia Petroleum Co. (1941), 378 Ill. 19, 28, 37 N.E.2d 760, 765; Briarcliffe Lakeside Townhouse Owners Association v. City of Wheaton (1988), 170 Ill. App. 3d 244, 251, 524 N.E.2d 230, 235.

To state a cause of action for reformation of a contract, the plaintiff must assert (1) the existence and substance of an agreement between the parties and the identity of the parties to the agreement; (2) that the parties agreed to reduce their agreement to writing; (3) the substance of the written agreement; (4) that a variance exists between the parties’ original agreement and the writing; and (5) mutual mistake or some other basis for reformation. Briarcliffe Lakeside Townhouse Owners Association, 170 Ill. App. 3d at 252, 524 N.E.2d at 235; Aetna Screw Products Co. v. Borg (1983), 116 Ill. App. 3d 206, 210-11, 451 N.E.2d 1260, 1264.

Examination of the complaint reveals that plaintiff alleged that on July 22, 1976, Sheffey, acting within the scope of his authority on behalf of War Aero, contacted representatives of Financial Guardian to procure liability insurance on aircraft N-94467, which was owned by War Aero and leased to Air Chicago. Plaintiff asserted that it was Sheffey’s intent to procure insurance coverage on that aircraft for both War Aero and Air Chicago and that Sheffey’s intent was conveyed to Financial Guardian.

The complaint alleged further that Financial Guardian filed with Crump Aviation, Monarch’s agent, an application for insurance, signed by Sheffey, which listed Air Chicago as the sole insured and that the policy issued pursuant to that application also listed Air Chicago as the sole insured. The complaint also alleged that the application for insurance and the policy did not reflect the intent of the parties and that the erroneous terms occurred either by a mutual mistake of fact or were intentionally inserted by defendants. The complaint asserted that this error was not disclosed to plaintiff until December 1987.

Assuming that the well-pled allegations in the complaint are admitted by defendants in their motion to dismiss, it appears that the complaint adequately states a cause of action for reformation of the contract based upon mutual mistake of fact. The complaint alleged that by the application for insurance, Sheffey, through Financial Guardian, and Crump Aviation, agent for Monarch, reached an agreement for a policy of hull and liability insurance benefiting both War Aero and Air Chicago and that, through mutual mistake, the policy ultimately issued offered protection only to Air Chicago, the lessee of the plane. Plaintiff must prove at trial the existence of the mutual mistake. (Briarcliffe Lakeside Townhouse Owners Association, 170 Ill. App. 3d at 251, 524 N.E.2d at 235; Ballard v. Granby (1980), 90 Ill. App. 3d 13, 16, 412 N.E.2d 1067, 1070.) If proved, the allegations in the complaint would support plaintiff’s claim that the insurance contract was executed under a mutual mistake of fact as to the appropriate named insured.

We note that the terms of the policy issued by defendants listed Air Chicago as the only insured, specified aircraft N-9446 as the only aircraft insured, and also included a provision excluding liability coverage for accidents involving an aircraft not owned by the named insured. Because Air Chicago was merely the lessee, and not the owner of the aircraft, the policy appears to provide no liability coverage at all for the aircraft specified in the policy.

A motion to dismiss should not be granted unless it clearly appears that no set of facts could ever be proved that would entitle the petitioner to recover. (Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 113, 395 N.E.2d 549, 551.) Because it does not clearly appear that plaintiff could never have proved any set of facts that would entitle her to relief, we find that the trial court could not properly grant defendants’ motion to dismiss under section 2—615.

Defendants also moved for dismissal under section 2—619, asserting that plaintiff’s claim was barred by the statute of limitations. The court dismissed plaintiff’s complaint with prejudice, finding that her action was barred under both the doctrine of laches and by her failure to bring suit within the applicable limitations period.

It has been held that the applicable statute of limitations is that found in section 13—206 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13—206), which provides that actions on written contracts must be commenced within 10 years after the cause of action has accrued. Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 761, 455 N.E.2d 246, 251.

Our research has revealed only one Illinois case which has addressed the question of when a claim for reformation of a contract accrues. In that case, Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 455 N.E.2d 246, the second district held that a cause of action for reformation of a contract accrues when the party to be barred has a right to invoke the aid of a court to enforce his remedy or when facts exist that authorize one party to maintain an action against another. Beynon Building Corp., 118 Ill. App. 3d at 762, 455 N.E.2d at 251.

The Beynon court noted that the decisions of other States are divided as to when the appropriate statute of limitations begins to run against the right to sue for reformation. (Beynon Building Corp., 118 Ill. App. 3d at 761-62, 455 N.E.2d at 251, citing 66 Am. Jur. 2d Reformation of Instruments §91 (1973).) Relying only on Sabath v. Morris Handler Co. (1968), 102 Ill. App. 2d 218, 243 N.E.2d 723, the Beynon decision stated that “Illinois courts have rejected the ‘know or ought to know’ rule as [defining] the time [when] a limitations period begins to run” in an action for reformation of a contract. (Beynon Building Corp., 118 Ill. App. 3d at 762, 455 N.E.2d at 251.) The court went on to hold that a claim for reformation of a contract accrues on the date of execution or delivery of the instrument. Beynon Building Corp., 118 Ill. App. 3d at 762, 455 N.E.2d at 251.

We note that the Sabath case involved claims for breach of contract, negligence and willful and wanton conduct, and fraud and deceit and did not involve a claim for reformation of a contract. Consequently, we believe the decision in Sabath provides little support for the holding that the “discovery rule” is inapplicable in cases involving claims for reformation of contracts.

The Beynon case involved two signatories to the contract sought to be reformed. We acknowledge that the rule enunciated in Beynon may be appropriate where, as there, the reformation action is brought by one of the parties to the contract against the other party. We do not, however, believe this rule is applicable to the instant case where the reformation action has been brought by a judgment creditor with a potential beneficial interest in the contract. We are mindful of the fact that the agreement at issue here is a contract for insurance and, as such, embodies more than a simple agreement between the two contracting parties. In addition to providing protection to the insured, contracts for insurance reflect the interest of the public and provide protection to others who may suffer injury as a result of the insured activity. (Rivota v. Kaplan (1977), 49 Ill. App. 3d 910, 919, 364 N.E.2d 337, 344-45.) Consequently, we find the Beynon case to be factually distinguishable from the case at bar and not controlling here. Because we have found no Illinois authority which addresses the issue presented here, we consider this case as one of first impression.

The “discovery rule,” which relates to the commencement of a period of limitations, has been applied across a broad spectrum of litigation to alleviate what has been viewed as harsh consequences resulting from the literal application of a statute of limitations. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414, 430 N.E.2d 976, 979.) The “discovery rule” operates to postpone the starting of the period of limitations until the injured party knows or should have known of his injury. Knox College, 88 Ill. 2d at 414, 430 N.E.2d at 979.

We find it a reasonable conclusion that in an action for reformation of a contract based upon mutual mistake, the party seeking relief cannot invoke the aid of a court to enforce his remedy until he has learned of the mistake. Thus, it seems that plaintiff’s cause of action accrued when she learned of facts which authorized her to maintain an action against defendants. According to the complaint, this occurred in 1987 when Sheffey revealed that he had intended to procure insurance benefiting both War Aero and Air Chicago and that his intention was conveyed to Crump and Monarch through Financial Guardian.

Applying the “discovery rule” to the instant case, plaintiff’s cause of action for reformation accrued when, as a judgment creditor of War Aero, she first learned of the existence of the mistake in the insurance policy issued by defendants. Therefore, the period of limitations applicable to her claim commences on that date. Under section 13—206, plaintiff’s claim would not have been barred by the 10-year limitations period until 1997, and the trial court erred in dismissing her complaint on this basis.

The trial court also found that plaintiff’s cause of action was barred by the doctrine of laches.

Like a motion brought under section 2—615, a motion to dismiss under section 2—619 admits all well-pled facts. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 545, 370 N.E.2d 223, 225.) Where a motion to dismiss is made pursuant to section 2 — 619 on grounds not appearing on the face of the pleading attacked, the motion must be supported by affidavit. MBL (USA) Corp. v. Diekman (1985), 137 Ill. App. 3d 238, 241-42, 484 N.E.2d 371, 374; Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 643, 450 N.E.2d 1360, 1363; Davis, 108 Ill. App. 3d at 509, 439 N.E.2d at 63.

Laches is an equitable principle which bars an action where, because of delay in bringing suit, a party has been misled, or prejudiced, or has taken a course of action different from what he otherwise would have taken. (Nancy's Home of the Stuffed Pizza, Inc. v. Cirrincione (1986), 144 Ill. App. 3d 934, 940, 494 N.E.2d 795, 800.) A defendant must show prejudice or hardship rather than mere passage of time and must demonstrate that the delay induced him to adversely change his position. (Nancy's Home of the Stuffed Pizza, Inc., 144 Ill. App. 3d at 941, 494 N.E.2d at 800.) In asserting the defense of laches, it is essential that a defendant plead and prove not only that a considerable period of time has elapsed and that the one charging laches has been prejudiced thereby, but also that the party sought to be charged had prior knowledge of the facts giving rise to the claim. Ballard, 90 Ill. App. 3d at 17, 412 N.E.2d at 1070; Harden v. Desideri (1974), 20 Ill. App. 3d 590, 600, 315 N.E.2d 235, 242.

Aside from the assertions of defendants’ counsel in the memorandum filed with the motion to dismiss, there is no indication in the complaint or elsewhere in the record that plaintiff knew of the alleged mistake in the application for insurance and in the policy prior to 1987 when Sheffey revealed that he had intended to procure insurance benefiting both War Aero and Air Chicago. The record also does not indicate in what manner plaintiff’s delay in bringing suit has prejudiced defendants or caused them to adversely change their position.

The defense of laches was not apparent from the face of the complaint, and the motion to dismiss was not supported by affidavit. The motion was not verified by defendants, and the only support for these defenses appears in the factual assertions made by defendants’ counsel in the memorandum filed with the motion to dismiss. Because these factual assertions were not supported by affidavit, the record contains no sworn allegations by defendants controverting the assertions made by plaintiff in her complaint. Consequently, there was no reliable evidence in the record to establish that plaintiff’s claim was barred under the doctrine of laches, and the trial court erred in dismissing the complaint with prejudice on this basis.

As noted above, the complaint alleges only a claim for reformation of the contract of insurance. Consequently, if the trial court grants reformation of the policy to include War Aero as an insured, plaintiff would still be required to prove her entitlement to benefits before she could recover under the policy.

For the foregoing reasons, the order of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

RAKOWSKI, P.J., and EGAN, J., concur.


author: JUSTICE CAMPBELL

text:
    DONNA BRADTKE, Indiv. and as Special Adm'x of the Estate of Joseph Bradtke, Deceased, Plaintiff-Appellant, v. WILLIAM REOTUTAR et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—0928
    Opinion filed May 20, 1991.

      Donald A. Shapiro, of Chicago, for appellant.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Alfred C. Tisdahl, Jr., Russell P. Veldenz, and Daniel C. Hofert, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Donna Bradtke, as special administratrix for the estate of decedent Joseph Bradtke, appeals an order of the circuit court of Cook County granting defendant Dr. Paulinio Sevilla’s motion to dismiss count IV of plaintiff’s third amended complaint, which was based on the Survival Act (Ill. Rev. Stat. 1987, ch. 110½, par. 27—6), and which alleged medical malpractice. For the reasons which follow, we reverse and remand for further proceedings.

The facts giving rise to this appeal are as follows: In September 1984, decedent retained the services of defendant Dr. William Reotutar in regard to decedent’s complaints of leg pain, chest pain and shortness of breath. Dr. Reotutar ordered X rays. The radiologist noted a right perihilar mass and recommended that more chest X rays be taken. Dr. Reotutar did not order additional X rays at this time and prescribed medication for decedent’s pain instead. On October 16, 1984, decedent returned to Dr. Reotutar with the additional complaint of decreased appetite and weight loss.

In January 1985, Dr. Reotutar ordered additional X rays on two separate occasions. These X rays were read and interpreted by defendant Dr. Paulinio Sevilla. Plaintiff alleges that nothing happened as a result of this second set of X rays.

In May 1985, decedent sought a second opinion. In addition to the pain and weight loss, decedent also complained of a fever at this time. This physician, whose name was not identified by the parties, diagnosed decedent with Hodgkin’s disease. Decedent passed away on July 31, 1986.

According to defendants, plaintiff filed a complaint against Dr. Reotutar on March 17, 1988. This initial complaint is not in the record. On April 14, 1988, plaintiff filed an amended complaint which named Dr. Sevilla as a defendant and which included the affidavits of plaintiff’s attorney and a health professional, along with a written report concerning Dr. Reotutar’s conduct, pursuant to section 2—622 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—622). On November 10, 1988, plaintiff filed a third amended complaint which included the allegation that she was unaware of Dr. Sevilla’s involvement in decedent’s treatment until June 8,1987.

Defendant Dr. Sevilla moved to dismiss the third amended complaint, asserting the two-year statute of limitations for medical malpractice actions (Ill. Rev. Stat. 1987, ch. 110, par. 13—212) as a defense. At a hearing on the motion, Dr. Sevilla withdrew the motion to dismiss as it applied to plaintiff’s wrongful death action, but maintained the motion as it applied to the survival action. The trial court granted the motion to dismiss the survival action, holding that the statute of limitations began to run when decedent was properly diagnosed in May 1985. Therefore, the limitations period would have elapsed in May 1987. The limitations period would be extended to July 31, 1987, pursuant to section 13—209 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13—209), which allows a representative to bring an action which survives a decedent either within that action’s limitations period or within one year of decedent’s death. Plaintiff did not file suit until 1988 and thus the trial court held that the claim was held time barred. This appeal followed.

Plaintiff argues that the trial court erred in dismissing her survival claim by ruling that it was barred by the statute of limitations. This court may affirm the trial court’s dismissal of count IV if it is justified in the law for any reason appearing in the record. Natural Gas Pipeline Co. of America v. Phillips Petroleum Co. (1987), 163 Ill. App. 3d 136, 142, 516 N.E.2d 527, 531.

The statute of limitations applicable to this case is set forth in section 13 — 212 of the Code of Civil Procedure, which provides:

“[N]o action for damages for injury or death against any physician *** arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first ***.” (Ill. Rev. Stat. 1987, ch. 110, par. 13-212(a).)

Our supreme court has stated that the statute of limitations begins to run when a person knows or reasonably should have known of his injury and knows or reasonably should have known that the injury was wrongfully caused. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869, 874.) Under this “discovery rule,” once a party knows or reasonably should have known both that an injury occurred and that it was wrongfully caused, that party has an obligation to inquire further to determine whether an actionable wrong has been committed. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 416, 430 N.E.2d 976, 980-81.) The term “wrongfully caused” does not mean knowledge of negligent conduct or knowledge of the existence of a cause of action. (Knox College, 88 Ill. 2d at 416, 430 N.E.2d at 980; Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 170-71, 421 N.E.2d 864, 868.) The term refers instead to the point in time when the injured person becomes possessed of sufficient information concerning the injury and its cause so that a reasonable person would be put on notice to determine whether actionable conduct was involved. Knox College, 88 Ill. 2d at 416, 430 N.E.2d at 980-81.

In many, if not most, cases, the question of when a party knew or reasonably should have known both of the injury and that it was wrongfully caused is one of fact. (Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 874; Tobias v. Winkler (1987), 156 Ill. App. 3d 886, 893, 509 N.E.2d 1050, 1054.) Only when the facts are undisputed, and it is apparent from those facts that only one conclusion can be drawn, does the question become one of law. (Witherell, 85 Ill. 2d at 156, 421 N.E.2d at 874; Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, 61, 501 N.E.2d 882, 886.) Of course, the record must contain sufficient facts to support such a determination. Flores v. St. Mary of Nazareth Hospital (1986), 149 Ill. App. 3d 371, 378, 502 N.E.2d 1, 5.

In deciding whether the discovery rule has been triggered, our courts look to the specific type of injury at issue. (Saunders, 150 Ill. App. 3d at 60, 501 N.E.2d at 885.) If the injury is traumatic in nature, a plaintiff has an immediate duty to inquire as to whether a physician’s acts or omissions may have caused the injury. (Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 486, 473 N.E.2d 1322, 1342.) By contrast, if the injury is an aggravation of a physical problem which may develop absent negligent causes, a plaintiff is not expected to know immediately of either its existence or its potential wrongful cause. Saunders, 150 Ill. App. 3d at 60, 501 N.E.2d at 885.

For example, Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869, involved claims against a physician and the manufacturer of a birth control pill. Both pled the statute of limitations.

The supreme court upheld the dismissal against the manufacturer and reversed as to the physician. In 1966, defendant Dr. Weimer prescribed a birth control pill manufactured by the other defendant, Ortho-Novum, for plaintiff. Shortly after she began taking the pill, plaintiff suffered severe pain and spasms in her leg. Eventually, the leg became so swollen she could hardly bear weight on it. She consulted with Dr. Weimer the following year. His associate, Dr. Taubert, hospitalized her and told her he thought she had a blood clot in her leg. Dr. Weimer, however, told her she had a muscle condition and would have to learn to live with it. Plaintiff’s pain and spasms progressively worsened for five years. Dr. Weimer continued to treat her.

Plaintiff was hospitalized a second time by Dr. Weimer in 1972. She told him that she had heard from other women that birth control pills could cause blood clots. Dr. Weimer told her not to worry, that the pills were safe and they would not harm her. She discontinued use of the pills for one month in 1973 at the urging of her mother but resumed taking them after Dr. Weimer again reassured her. She continued to see Dr. Weimer until 1976. During that three-year period Dr. Weimer continued to tell her she had a muscle condition and that there was nothing wrong with the veins in her legs.

In upholding the dismissal as to Ortho, the supreme court emphasized that the plaintiff’s mother and others had told her the pill could cause blood clots, that Dr. Taubert told her in 1967 and 1972 that she was having blood clots in her leg and that she knew there was a conflict between the diagnoses of the doctors. The supreme court stated that given these facts, it was inconceivable that a reasonable person should not have known of the injury and wrongful cause by the second hospitalization. Witherell, 85 Ill. 2d at 156-57, 421 N.E.2d at 866-67.

In reaching this conclusion, the Witherell court compared these facts to those in Berry v. G.D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550. The Berry court had stated:

“From plaintiff’s description of the severity of her condition in the complaint and in her reply brief it is inconceivable that her injury was not occasioned by a traumatic event and that she knew of this injury more than two years prior to the filing of her complaint.” (Emphasis added.) 56 Ill. 2d at 559, 309 N.E.2d at 556.

In contrast, outside of Witherell, cases involving the aggravation of an injury that may arise absent negligent causes have typically involved questions of fact. (E.g., Janetis v. Christensen (1990), 200 Ill. App. 3d 581, 558 N.E.2d 304.) In Janetis, decedent sought treatment from the first physician in July 1982, after noticing a bloody discharge from his rectum. Defendant diagnosed decedent as having hemorrhoids. Decedent’s symptoms persisted. In October 1982, decedent sought a second opinion and was diagnosed as having colon cancer in November 1982. After surgery in November, decedent was assured by the second physician that there were no problems. In May 1983, decedent returned to the second physician for the same symptoms. The second physician attributed the bleeding to hemorrhoids. In the fall of 1983, decedent again consulted with the second physician, who then ran tests and concluded that the cancer had recurred. Decedent had a colostomy in November 1983, but was notified that the cancer could not be entirely removed. Decedent passed away on October 11, 1985. Plaintiff executrix initially filed suit, including a survival action, against defendant on August 14, 1985. The trial court granted the physicians’ motion for summary judgment based on the statute of limitations.

This court reversed, stating that the facts did not conclusively establish that decedent knew or should have known of the injury and its wrongful cause before August 1983 because the record showed that the doctors told him that the bleeding was due to hemorrhoids as late as May 1983. The court further stated that even if decedent should have known of the physical problem and the misdiagnosis of his bleeding in November 1982, this awareness did not satisfy the discovery rule as a matter of law. Nor did decedent’s awareness of the correct diagnosis in November 1982 suffice, because the record did not show that decedent was aware of the result of the misdiagnosis at that time, particularly where decedent was told that all the cancer had been removed by the first operation. Janetis, 200 Ill. App. 3d at 587, 558 N.E.2d at 308.

In the present appeal, decedent was correctly diagnosed with Hodgkin’s disease in May 1985. Under Janetis, for a dismissal to be proper, the record must disclose facts indicating that decedent knew or reasonably should have known of the result of the misdiagnosis before the statute of limitations begins to run. Defendant does not point to anything in the record which indicates that the decedent knew that his symptoms as of the date of the first diagnosis were attributable to Hodgkin’s disease. Therefore, we cannot say as a matter of law that decedent even knew he was misdiagnosed at the time of the second diagnosis. Nor does defendant point to anything in the record which shows that decedent should reasonably have been aware of the result of the misdiagnosis at any time prior to and including May 1985. Plaintiff’s claim is not that the misdiagnosis caused decedent to contract Hodgkin’s disease; rather, it is that the misdiagnosis induced decedent to delay treatment. Consequently, under Janetis, there were insufficient facts on the record to support the trial court’s decision regarding the discovery issue as a matter of law. Flores, 149 Ill. App. 3d at 378, 502 N.E.2d at 5.

Defendant argues that Real v. Kim (1983), 112 Ill. App. 3d 427, 445 N.E.2d 783, imposes a duty on a patient to investigate a possible misdiagnosis once the patient has been correctly diagnosed. In Real, plaintiff brought a wrongful death claim against defendant Dr. Kim, alleging medical malpractice caused the death of decedent William Real. In April 1976, decedent suffered from an unidentified neurological malady and sought treatment at defendant Northwestern Memorial Hospital. On April 13, 1976, the results of an EMI test were evaluated and reported as normal by Dr. Kim, an employee of defendant Northwestern Radiological Group. Nevertheless, in June 1979, decedent was diagnosed as having brain cancer. Plaintiff filed suit on June 19, 1981, alleging that the misdiagnosis induced decedent to delay seeking treatment until the cancer was incurable, resulting in decedent’s death on August 9, 1980. The trial court granted defendants’ motion to dismiss based on the statute of limitations defense.

This court initially held that it need not address the issue of when decedent’s cause of action accrued because the statute of limitations set an outside limit of four years from the date on which the alleged negligent act or omission occurred. (Real, 112 Ill. App. 3d at 430, 445 N.E.2d at 786.) Yet the court also held that the defendants were not estopped from asserting the limitations defense because decedent had a duty to investigate whether he had a claim in June 1979, when he was diagnosed as having brain cancer. Real, 112 Ill. App. 3d at 435-36, 445 N.E.2d at 789.

There is nothing in the language of Real which purports to create the sort of per se rule urged by defendant in this case. Real cannot stand for the proposition that a patient’s duty to investigate arises once he or she has been correctly diagnosed because the fact that a second diagnosis is correct is ascertainable only in retrospect. Given two diagnoses, the lay person may not know if either is correct, except to suspect that he or she is misdiagnosed if the first course of treatment fails to restore good health. The second physician can say that the first diagnosis was incorrect, but the lay person may not always have a sufficient basis for believing there has been a misdiagnosis except for the worsening symptoms. (See Gara v. Semerad (1989), 183 Ill. App. 3d 622, 630, 539 N.E.2d 298, 303 (“Although plaintiff had been seeing various doctors continuously from January 1982, until October 5, 1982, she switched from one doctor to another because none of them were able to find anything wrong with her, and so she was referred to other doctors in an attempt to discover the true nature of her problem, which continued to get worse”).) This court has previously refused to hold as matter of law that subjective belief of misdiagnosis, combined with worsening symptoms, triggers the patient’s duty to investigate. (See Lebrecht, 130 Ill. App. 3d at 486-87, 473 N.E.2d at 1342-43.) There is nothing in the facts and circumstances of this case that would cause us to depart from the general rule that a case involving the aggravation of a problem which may arise absent negligent causes generally presents a question of fact, rather than a question of law.

For the aforementioned reasons, the judgment of the circuit court of Cook County is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.

MANNING, P.J., and O’CONNOR, J., concur.


author: PRESIDING JUSTICE MANNING

text:
    ROBERT A. BESNER AND COMPANY, Plaintiff-Appellant, v. LIT AMERICA, INC., Defendant-Appellee.
    First District (1st Division)
    No. 1—89—3485
    Opinion filed May 20, 1991.

      Pope & John, Ltd., and Harvey B. Bass, Chartered, both of Chicago (Ludwig E. Kolman, Jeffrey M. Rubin, Mary K. Rochford, and Harvey B. Bass, of counsel), for appellant.
    Fishman & Merrick, P.C., of Chicago (W. Scott Porterfield and Roxanne R. Joyce, of counsel), for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This matter comes before this court as an interlocutory appeal pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307). The appellant, Robert A. Besner and Company (hereinafter RABCO), asserts that the trial court erred by denying its motion to stay arbitration pursuant to section 2(b) of the Illinois Uniform Arbitration Act (hereinafter Arbitration Act) (Ill. Rev. Stat. 1987, ch. 10, par. 102(b)). The appellee, Lit America, Inc. (hereinafter LIT), raises a question as to the timeliness of RABCO’s appeal before this court. During oral arguments we directed the parties to submit briefs regarding the question of whether we have jurisdiction to consider this appeal. Both parties thereafter submitted briefs in support of and in opposition to this court’s jurisdiction. For the following reasons, we conclude that we are without jurisdiction to hear this appeal and accordingly dismiss the matter. Because of the unusual procedural posture of this case, however, it is necessary to summarily review the factual background.

The complaint asserts that on or before January 1982, Robert Besner (hereinafter Besner), an individual, nonclearing member of the Chicago Mercantile Exchange (hereinafter CME), who acted as a floor broker and solicited financial companies to use his services to execute trades, entered into an oral agreement with Shatkin Trading Company (hereinafter Shatkin), a clearing member of CME. Thereafter, Besner conducted business under the name of Shatkin Financial until February 20, 1986, at which time he formed RABCO. The complaint states that RABCO succeeded to all the rights and assumed all the debts of Shatkin, including Besner’s rights under the 1982 oral agreement with Shatkin. As a result of a merger, LIT acquired Shatkin, became its successor corporation, and continued the business relationship with RABCO that previously had existed between the parties.

The complaint further states that in 1988 RABCO began negotiations with LIT and Gerald Commodities, Inc. (hereinafter Gerald), a competitor of LIT, for the sale of RABCO. The complaint charges that upon learning of the negotiations between RABCO and Gerald, LIT wrongfully interfered with RABCO’s business, employees and clients in violation of fiduciary and legal duties it owed RABCO. RABCO’s salesmen quit and commenced to work with LIT; consequently, LIT’s actions forced RABCO out of business.

In its pleadings, LIT contends that because Besner incurred personal deficits in his trading account that were not satisfied upon demand, LIT notified the CME that it would no longer qualify Besner at which time the CME “posted” him or terminated his access to the trading floor. LIT then filed a claim for arbitration with the CME to resolve the dispute over the monies owed it by Besner. Thereafter, Besner filed an appeal with the CME alleging that the claims against him were not arbitrable, and in May 1989, RABCO filed the chancery action before the circuit court.

On June 28, 1989, LIT filed a motion and supporting memoranda pursuant to section 2(a) of the Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 102(a)), requesting that the trial court stay the chancery court proceedings and compel the matter to arbitration at the CME. In its motion LIT asserted that the CME provided for arbitration of disputes between members of the CME. RABCO filed a memorandum in opposition to the motion. Following oral argument, on July 27, 1989, the circuit court granted LIT’s motion to stay the court action and to compel arbitration, stating: “I am going to rule right now RABCO stands in Besner’s shoes. He is subject to arbitration.” The court referred the matter to the CME to determine whether RAB-CO’s claims were arbitrable, specifically stating “the arbitrator’s got to make a ruling as to whether he has jurisdiction of certain questions or not.” The parties then appeared before a special committee of the board of governors of the CME and presented their respective arguments which resulted in the CME’s issuance of a letter, finding that the matters alleged in the RABCO complaint fell within the ambit of the arbitration agreement.

RABCO then filed a motion to stay arbitration pursuant to section 2(b) of the Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 102(b)), on October 31, 1989, alleging that RABCO was not a member of the CME and had not agreed to arbitrate its claims at the CME. On November 30, 1989, the circuit court first stated that it agreed with LIT’s contention that RABCO’s motion to stay arbitration was an untimely motion to reconsider the court’s July 27, 1989, order. The court further stated that in any event the issues raised by RABCO in its motion to stay arbitration had already been resolved by the court when it ruled on LIT’s motion to compel arbitration.

On July 27, 1989, the trial court granted LIT’s motion to compel arbitration to the CME pursuant to section 2(a) of the Arbitration Act. Section 2(a) provides:

“On application of a party showing an agreement described in Section 1, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.” Ill. Rev. Stat. 1987, ch. 10, par. 102(a).

The law is well established that an order of the circuit court granting or denying a motion to compel arbitration and stay court proceedings or dismiss the lawsuit is an appealable order. (Notaro v. Nor-Evan Corp. (1983), 98 Ill. 2d 268, 456 N.E.2d 93; School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145, 215 N.E.2d 25.) Similarly, on the authority of Supreme Court Rule 307 (107 Ill. 2d R. 307(a)(1)), an order of the circuit court granting a motion to stay arbitration and commence or continue court proceedings is immediately appealable. (Grane v. Grane (1985), 130 Ill. App. 3d 332, 473 N.E.2d 1366.) Orders to compel or stay arbitration are considered as interlocutory orders because they are injunctive in nature. Clark v. Country Mutual Insurance Co. (1985), 131 Ill. App. 3d 633, 476 N.E.2d 4.

However, appeals from interlocutory orders are permitted only as specifically provided in the rules. (Camp v. Chicago Transit Authority (1980), 82 Ill. App. 3d 1107, 403 N.E.2d 704.) Supreme Court Rule 307, which governs interlocutory appeals as of right, provides in pertinent part:

“An appeal may be taken to the Appellate Court from an interlocutory order of court:
(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction;
* * *
The appeal must be perfected within SO days from the entry of the interlocutory order by filing a notice of appeal designated ‘Notice of Interlocutory Appeal’ conforming substantially to the notice of appeal in other cases. The record must be filed in the Appellate Court within the same 30 days unless the time for filing the record is extended by the Appellate Court or any judge thereof.” (Emphasis added.) 107 Ill. 2d R. 307(a)(1).

Upon review of the record here, we find that this appeal must be dismissed because RABCO failed to file its notice of interlocutory appeal within the 30-day period after the entry of the circuit court’s order, compelling the matter to the CME for arbitration and staying the court action. Supreme Court Rule 307 specifically requires that the notice of interlocutory appeal be filed within 30 days after entry of the interlocutory order. The circuit court’s interlocutory order that granted LIT’s motion was entered on July 27, 1989. In accordance with Rule 307, therefore, RABCO had up to and including August 26, 1989, to file a notice of interlocutory appeal to this court. The record, however, shows that RABCO did not file its notice until October 31, 1989, 96 days after the entry of the July 27, 1989, order compelling the matter to arbitration.

RABCO asserts that the circuit court’s order entered on November 30, 1989, that denied its motion to stay arbitration is the interlocutory order from which it properly filed its notice of interlocutory appeal, rather than the July 27 order. We disagree. First, such an argument presupposes that the motion to stay arbitration was proper under the circumstances, a conclusion for which we find no support in the Arbitration Act. Second, RABCO’s contention ignores the circuit court’s finding that the motion to stay arbitration was no more than an untimely and improper motion to reconsider the court’s July 27, 1989, ruling. Finally, we find inapposite to the present factual matrix the cases cited by RABCO in its brief in support of jurisdiction.

We find no support in the Arbitration Act for the conclusion that RABCO was authorized to bring a motion to compel arbitration before the circuit court after LIT had already brought a motion to stay arbitration and the court had ruled on the latter motion. Pursuant to section 2(a), party A, the party asserting the existence of an arbitration agreement, may petition the court to stay the court action and compel arbitration. If B, the opposing party, denies the existence of such an agreement, “the court shall proceed summarily to the determination of the issue so raised.” Pursuant to section 2(b), party B, again the party who disputes the existence of an arbitration agreement between the parties, may petition the court to stay an arbitration proceeding commenced or threatened. The logical conclusion of section 2 is that either party or potential party to a purported arbitration agreement has an available remedy to petition the trial court for a determination as to the existence of an arbitration agreement and to seek a court ruling to compel or stay arbitration, or to stay court action pending arbitration. Our supreme court has determined that the preliminary question regarding the existence of an arbitration agreement between the parties is to be resolved by the court. Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 530 N.E.2d 439.

Furthermore, our review of the Arbitration Act has discovered nothing in section 2 that allows a party, A or B, to make more than one application for relief to the court with respect to the propriety of staying or compelling arbitration. To the contrary, the plain language of the statute provides for the filing of only one application which may be filed by either party seeking court relief to either compel or stay arbitration, respectively. Nothing in the Arbitration Act grants a party the right to a completely new application or hearing on a determination as to the existence of an arbitration agreement that was fully considered or could have been fully considered three months earlier.

Accordingly, we agree with the circuit court’s implicit finding that RABCO’s motion to stay was an improper motion. However, our holding is premised upon the basis that such motion was successive and repetitive and that the requested relief was not procedurally contemplated within the meaning of the Arbitration Act.

Additionally, we agree with the circuit court’s ruling that RAB-CO’s motion to stay was no more than an improper and untimely motion to reconsider the court’s July 27 order. During the November 30 proceedings, the court stated:

“THE COURT: I heard all the arguments on this, and I have read this case very keenly. I find this present motion to stay (RABCO’s motion to stay arbitration) is no more than a motion to reconsider in its true nature. It is untimely filed. It’s three months since I ruled the last time, and I find nothing in these pleadings to change my finding at that time when I said that, and I said I am going to rule.”

The Illinois Supreme Court has held that the character of a pleading is to be determined more from its content than from its label. (Kemner v. Monsanto Co. (1986), 112 Ill. 2d 223, 229, 492 N.E.2d 327.) Here, RABCO’s motion to stay arbitration merely readdressed the issues that either were raised during the July 27 hearing or could have been raised during the pendency of LIT’s motion to compel arbitration. As such, we find that the motion to stay was no more than a motion directed against an interlocutory order. In Trophytime, Inc. v. Graham (1979), 73 Ill. App. 3d 335, 391 N.E.2d 1074, this court held that “[a] motion directed against an interlocutory order will not toll the running of the 30-day deadline for the filing of the notice of appeal.” (Emphasis in original.) Trophytime, 73 Ill. App. 3d at 335.

In Trophytime, the appellant brought an interlocutory appeal pursuant to Rule 307 from the denial of an injunction. A motion to vacate the trial court’s order was filed within 30 days and denied more than 30 days after original entry. The appellant argued that the motion to vacate filed within 30 days of the denial of the original motion extended the time for filing the notice of appeal. The court rejected this argument, stating:

“The grant or denial of the extraordinary relief of an injunction ordinarily has a substantial impact upon one of the parties. Rule 307 is an exception to the final judgment rule and allows a party to take an appeal from such interlocutory orders. We are aware of no authority, however, which would allow a motion (filed subsequent to the entry of an interlocutory order) to postpone the time in which to file a timely notice of appeal.” (Trophytime, 73 Ill. App. 3d at 336-37.)

The Trophytime rule has been followed in numerous cases, including: Barnes v. Southern Ry. Co. (1987), 116 Ill. 2d 236, 507 N.E.2d 494; Baird & Warner, Inc. v. Gary-Wheaton Bank (1984), 122 Ill. App. 3d 136, 460 N.E.2d 840; and Lake Shore Oil Co. v. Sovereign Oil Co. (1981), 98 Ill. App. 3d 553, 424 N.E.2d 856. Here, RABCO’s motion to stay was no more than a dressed-up motion to reconsider, and thus, its notice of interlocutory appeal from the court’s denial of such motion was meaningless. Because the 30-day filing requirement was not tolled by RABCO’s motion to reconsider, the interlocutory appeal was untimely. If an order is entered which is immediately appealable under Rule 307, then an appeal must be taken or the right to challenge the ruling will be lost. (Baird & Warner, 122 Ill. App. 3d 136, 460 N.E.2d 840.) This is true even if the later appeal is an appeal of a subsequent interlocutory order under Rule 307; such an appeal will not bring up the prior order. Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 405 N.E.2d 1316.

Because of our finding regarding the proper interpretation of the Arbitration Act, we need not address RABCO’s contention that its motion to stay arbitration was an independent motion within the meaning of section 2(b). However, we will make brief comments about the cases cited by RABCO. Assuming the propriety of the motion to stay, we nevertheless would find the cases cited by RABCO in support of the proposition that the denial of a motion to dissolve an injunction is itself an appealable order as of right, even if no appeal was taken from the original injunctive order to be inapposite of the situation here. In Stoller v. Village of Northbrook (1987), 162 Ill. App. 3d 1001, 516 N.E.2d 355, and Wise v. City of Chicago (1962), 36 Ill. App. 2d 196, 183 N.E.2d 538, the parties were appealing not from the original interlocutory order of court “granting, modifying, refusing, (or) dissolving *** an injunction,” rather, they were appealing from the interlocutory order of court “refusing to dissolve or modify an injunction.” (107 Ill. 2d R. 307(a)(1).) The law is clear that such an interlocutory appeal is allowed, and furthermore, section 11—108 of the Civil Practice Law permits the filing of a motion to dissolve an injunction at any time before or after an answer is filed. Ill. Rev. Stat. 1987, ch. 110, par. 11—108.

However, the Arbitration Act makes no such allowance to dissolve or extinguish the order of the trial court that compels or stays the arbitration proceedings. To the contrary, section 12 of the Arbitration Act permits a party to apply for the vacation of an award based upon several considerations, specifically, the allegation “[tjhere was no arbitration agreement [where] the issue was not adversely determined in proceedings under Section 2.” (Ill. Rev. Stat. 1987, ch. 10, par. 112(a)(5).) We agree with LIT’s argument that a motion for dissolution of an injunction, as compared to the initial order granting injunctive relief, differs significantly from the interrelationship between a motion to stay or compel arbitration. A motion for dissolution of an injunction requires the court to engage in a specific analysis; particularly, the court reviews new facts or changed conditions to determine whether the injunction should stand. (See Field v. Field (1967), 79 Ill. App. 2d 355, 223 N.E.2d 551.) Accordingly, we conclude that RABCO is precluded from having the order compelling arbitration reviewed as an interlocutory appeal under the guise of an appeal from the denial of its motion to stay arbitration. See Baird & Warner, 122 Ill. App. 3d 136, 460 N.E.2d 840.

For the foregoing reasons, the interlocutory appeal is dismissed for lack of jurisdiction.

Appeal dismissed.

BUCKLEY and O’CONNOR, JJ., concur.