author: JUSTICE HARRISON

text:
    FLOYD R. McCLINTOCK, Plaintiff-Appellee, v. BI-STATE DEVELOPMENT AGENCY, Defendant-Appellant.
    Fifth District
    No. 5—91—0364
    Opinion filed May 7, 1992.

      John L. McMullin and Beth Kamp Veath, both of Brown & James, P.C., of Belleville and of St. Louis, Missouri, for appellant.
    Roger S. Murphy, of Edwardsville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Bi-State Development Agency (Bi-State), brings this permissive interlocutory appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308) from an order of the circuit court of St. Clair County which set aside a previous ruling that Bi-State was entitled to summary judgment because plaintiff had not complied with section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102). The questions presented for our consideration are: (1) whether plaintiff’s action against Bi-State is subject to the provisions of section 8 — 102 (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102), and (2) if so, whether the notice provided by plaintiff to Bi-State under that statute was so deficient that summary judgment should have been entered in Bi-State’s favor. For the reasons which follow, we affirm.

Section 2 — 1005 of our Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005) provides that summary judgment is proper only “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The materials on file in this case established that plaintiff, Floyd McClintock, was assaulted and injured by a Bi-State bus driver on the afternoon of September 21, 1982, during an altercation over how much bus fare he owed. Plaintiff was taken to a local hospital, police were summoned, and the bus driver was arrested. Thereafter, on September 20, 1984, plaintiff brought an action against Bi-State in the circuit court of St. Clair County to recover damages for his injuries.

Bi-State filed an answer and promptly initiated discovery. In 1987, it sought and obtained a change of judge, and in 1988, it asked for sanctions when plaintiff refused to answer its interrogatories. Discovery was subsequently completed, and the case was called for trial on June 1, 1989. At that time counsel for plaintiff appeared and announced that Bi-State would be obtaining new attorneys to represent it and that the “cause should be settled within 30 days.”

- That settlement never came. Instead, Bi-State’s new lawyers filed a motion for leave to amend Bi-State’s answer to include as an affirmative defense that plaintiff had failed to serve it with the notice required by section 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102). Following various developments not relevant here, Bi-State’s summary judgment motion was heard on October 19, 1989. Through inadvertence, however, plaintiff’s attorney failed to appear at that hearing, and the circuit court granted summary judgment in favor of Bi-State.

When plaintiff’s counsel discovered what had happened, he promptly moved for reconsideration, arguing, inter alia, that plaintiff had, in fact, supplied Bi-State with a notice which substantially complied with the requirements of section 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102). In a supplemental submission to the court, plaintiff also argued, in the alternative, that the notice requirement of section 8 — 102 (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102) was inapplicable to his action against Bi-State.

Following a hearing, the circuit court granted plaintiff’s motion for reconsideration, set aside its previous order granting summary judgment in favor of Bi-State, and scheduled the matter for trial. On Bi-State’s motion, the circuit court subsequently made a written finding that its order setting aside the summary judgment involved questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. The specific questions of law identified by the circuit court were whether the notice furnished by plaintiff to Bi-State complied with the requirements of section 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102) and “whether this [notice] requirement applies to Bi-State Development Agency under the provisions of Ill. Rev. Stats, [sic] Chapter 85, Section 2 — 101.” Bi-State filed an application with our court for leave to appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). We granted that application and now affirm.

Section 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102) provides that where, as here, a plaintiff seeks to bring a “civil action for damages on account of *** injury against a local public entity,” he must serve written notice on the local public entity of his intent to sue within one year of the date that the injury was received or the cause of action accrued. Although that statute has now been repealed, the repeal is of no aid to plaintiff here, for it applies only to causes of action arising after November 25, 1986. (Heise v. Mitten (1991), 207 Ill. App. 3d 941, 944-46, 566 N.E.2d 507, 509-10; McGoughy v. Chicago Housing Authority (1989), 187 Ill. App. 3d 412, 415, 543 N.E.2d 236, 237.) In this case, there is no dispute that plaintiff’s cause of action arose in September of 1982.

Plaintiff contends that the statute is nevertheless inapplicable as a matter of law by virtue of section 2 — 101(b) of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 2 — 101(b)) because his cause of action seeks to impose liability on Bi- State based on its operation as a common carrier. This very argument was considered and rejected by our court in Cooper v. Bi-State Development Agency (1987), 158 Ill. App. 3d 19, 24-26, 510 N.E.2d 1288, 1291-93. Plaintiff now invites us to repudiate Cooper as having been wrongly decided. This invitation we shall decline.

Considerations of stare decisis weigh heavily in the area of statutory construction, especially where the legislature is free to change the court’s interpretations of its legislation. (Williams v. Crickman (1980), 81 Ill. 2d 105, 111, 405 N.E.2d 799, 802.) Where it is clear that the court has made a mistake it will not decline to correct it, even though the court’s holding may have been reasserted and acquiesced in for a long number of years. (Maki v. Frelk (1968), 40 Ill. 2d 193, 196, 239 N.E.2d 445, 447.) On the other hand, when a rule of law has once been settled, such rule ought to be followed unless it can be shown that serious detriment is thereby likely to arise which is prejudicial to the public interest. (O’Connor v. Schwindaman (1971), 131 Ill. App. 2d 869, 872, 268 N.E.2d 455, 458.) With respect to Cooper (158 Ill. App. 3d 19, 510 N.E.2d 1288), plaintiff has made no such showing.

Under Cooper, Bi-State was entitled to the notice required by section 8 — 102 (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102). This leads us to the primary question posed by the circuit court’s order, namely, whether the notice provided by plaintiff satisfied the statute’s requirements. We believe that it did. Section 8 — 102 (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102) provides that an injured person who intends to bring a civil action for damages against a public entity

“must serve, either by personal service or by registered or certified mail, return receipt requested, a written notice on the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, signed by himself, his agent or attorney, giving in substance the following information: the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.”

The primary purpose of this notice requirement is to furnish timely notice of injury so that a public entity can investigate and make prompt settlement of meritorious claims, and also to give notice to a public entity of possible liability so that budgetary provisions may be knowledgeably arranged. (Whitney v. City of Chicago (1987), 155 Ill. App. 3d 714, 718, 508 N.E.2d 293, 296.) As with the Tort Immunity Act itself, the notice requirement is in derogation of common law and must therefore be strictly construed against the local public entity (McGoughy v. Chicago Housing Authority (1989), 187 Ill. App. 3d 412, 416, 543 N.E.2d 236, 238) and liberally in favor of the injured party (Reese v. Village of Arlington Heights (1990), 204 Ill. App. 3d 129, 132-34, 561 N.E.2d 1156, 1158-60). Accordingly, this court has long recognized that rigid compliance with the statute is not required. Substantial compliance will suffice. (Grady v. Bi-State Development Agency (1986), 151 Ill. App. 3d 748, 751, 502 N.E.2d 1087, 1090.) The test is whether the elements of the notice have been set forth with sufficient clarity and accuracy so as to not mislead or prejudice the public entity. (McGoughy v. Chicago Housing Authority (1989), 187 Ill. App. 3d 412, 415, 543 N.E.2d 236, 238; Reese v. Village of Arlington Heights (1990), 204 Ill. App. 3d 129, 134, 561 N.E.2d 1156, 1160.) Where no prejudice has occurred, the notice is sufficient. 204 Ill. App. 3d at 134, 561 N.E.2d at 1160.

In this case, the record showed that plaintiff’s attorney sent a letter to Bi-State within one week of the attack. The letter stated:

“Please be advised that I have been retained to represent Floyd R. McClintock in his claim against you for personal injuries sustained in an accident on Bi-State Bus #8367 at 7400 West Main Street, Belleville, Illinois, at approximately 2:50 p.m., on September 21, 1982, when he was attacked by Kemey Falconer, the driver of the bus.”

The letter further advised Bi-State that plaintiff’s attorney was asserting a statutory attorney’s lien, and it invited Bi-State to forward the letter to its insurance carrier if it was “desirous of an amicable settlement.”

This letter unambiguously notified Bi-State of plaintiff’s injury, and its clear import is that litigation would result if a settlement could not be reached. The notice was obviously in writing. It was signed by plaintiff’s attorney. It gave the name of plaintiff, who was the person who was injured and “the person to whom the cause of action has accrued.” It gave the date, time and place where the injury occurred. It also set forth the “general nature of the accident.” It specifically says that plaintiff was attacked by the bus driver. It even furnished the driver’s name.

The letter does fail to mention plaintiff’s address. Bi-State has not explained, however, how this omission could possibly be prejudicial. The notice plainly states the address of plaintiff’s attorney, and there is no dispute that the attorney could be easily reached to provide any additional details regarding plaintiff or the accident. In fact, the record showed that within 48 hours Bi-State forwarded the attorney’s letter to one of its claims administrators, Fred S. James and Company of Missouri, and in a letter dated September 30, 1982, a claims representative contacted plaintiff’s attorney on behalf of Bi-State to make just such a request. In that letter, the claims representative acknowledged receipt of the letter from plaintiff’s attorney, indicated a desire to meet with plaintiff and the attorney in the attorney’s office to take plaintiff’s statement, and requested a copy of plaintiff’s medical report and a list of “any other damages.” From this letter, it does not appear that plaintiff’s street address was an issue at all.

Other facts which were not included in plaintiff’s notice were the “name and address of the attending physician, if any, and the name and address of the treating hospital, or hospitals, if any.” We note, however, that plaintiff did not obtain any detailed examination, diagnosis, or treatment for his injury until the week after the notice was sent. Obviously, there is no way information regarding this care and treatment could have been included in the notice itself. It was not even yet available when Bi-State’s claim administrator first wrote back in response to the notice. At the time the notice was sent, the only medical facility plaintiff had visited was the emergency room at Belleville Memorial Hospital, where he was taken immediately after he was attacked. The police report of the incident indicated that he refused treatment there. The hospital records disclosed that X rays were taken of plaintiff’s finger, the finger was examined, and ice was applied to it, but nothing else was done. Apparently, plaintiff simply became angered and walked out.

Even if we assume for the sake of argument that this visit to the emergency room was sufficient to make Belleville Memorial a “treating hospital” within the meaning of section 8 — 102 (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102), we fail to see, and Bi-State has not explained, how omission of Belleville Memorial’s name and address from the notice was in any way prejudicial. This information was readily ascertainable through direct inquiry to plaintiff’s attorney, and as we have previously indicated, such inquiry was in fact made less than 10 days after plaintiff sustained his injuries. Moreover, the record is devoid of anything which would suggest in any way that the absence of this data in the initial notice impeded Bi-State’s ability to investigate the incident, to plan its budget in light of prospective liability, to settle claims and avoid costly litigation, or to take corrective action against the bus driver involved so as to avoid similar injuries and liability in the future.' See Grady v. Bi-State Development Agency (1986), 151 Ill. App. 3d 748, 752, 502 N.E.2d 1087, 1090 (Welch, J., dissenting).

Bi-State has thus failed to establish any basis for holding that the letter from plaintiff’s attorney was insufficient to meet the substantive requirements of section 8 — 102 (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102). Bi-State argues that it was still entitled to summary judgment because the letter was not served in the precise manner specified by that statute. We disagree.

Section 8 — 102 (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102) provides that notices are to be served on a public entity’s clerk or secretary by personal service or by registered or certified mail, return receipt requested. Admittedly, that procedure was not followed here. The letter was sent by regular mail and was not directed to Bi-State’s clerk or secretary. It does not necessarily follow, however, that plaintiff’s subsequent lawsuit should have been summarily dismissed.

The notice provision of section 8 — 102 (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102) is not a condition precedent to the right to bring suit against a public entity. Rather, it is a limitation provision. The failure to comply with that provision is regarded as an affirmative defense which the public entity must raise to defeat the injured party’s claim. (Smith v. County of White (1989), 191 Ill. App. 3d 569, 573, 548 N.E.2d 19, 22.) Through its acts or representations, a public entity may be barred from raising the defense by principles of estoppel. West v. Northeastern Illinois R.R. Corp. (1989), 180 Ill. App. 3d 307, 313, 535 N.E.2d 987, 991.

In this case, plaintiff followed his notice by bringing suit. Although he did not file his actual complaint until after the one-year statutory notice period had elapsed, there is no dispute that the action was timely. Upon receipt of plaintiff’s complaint, Bi-State filed its answer and initiated discovery. Over the next five years it filed various motions in the case. Throughout that period, it made no mention of any possible problem with the initial notice. As we indicated at the outset of our disposition, that issue did not surface at all until after the case had already been called for trial, Bi-State had obtained substitute counsel, and plaintiff’s attorney had advised the court that settlement was imminent. By that time, seven years had passed since Bi-State had first received the notice.

We acknowledge that there is authority for the proposition that filing an answer, engaging in discovery and undertaking settlement negotiations are not, by themselves, sufficient to preclude a public entity from raising an objection to the sufficiency of a statutory notice on the basis of either waiver or estoppel where, as here, the complaint itself was not served until after the end of the statutory notice period. (See Shortt v. City of Chicago (1987), 160 Ill. App. 3d 933, 936, 514 N.E.2d 3, 5; West v. Northeastern Illinois R.R. Corp. (1989), 180 Ill. App. 3d 307, 313-14, 535 N.E.2d 987, 992.) This case, however, plainly involves more than that.

Here, Bi-State, through its claims administrator, expressly acknowledged receipt of the notice in the letter it sent to plaintiff’s attorney shortly after plaintiff was attacked. In making that acknowledgement, the claims administrator took no issue whatever with the mode of service. To the contrary, we believe that by proceeding to request additional information from plaintiff’s attorney regarding the substance of plaintiff’s claim after the notice was received, the claims administrator implicitly represented that Bi-State regarded the notice as sufficient and that plaintiff’s claim would be addressed on the merits. No reasonable person could possibly have suspected that Bi-State might continue to harbor any objection to the technical sufficiency of the notice or the manner in which it was served.

To allow Bi-State to insist on strict compliance with the statute’s service requirements at this late date and under these circumstances would not only serve no legitimate purpose, it would be fundamentally unjust. As Justice Welch wrote in his dissenting opinion in Grady v. Bi-State Development Agency (1986), 151 Ill. App. 3d 748, 753, 502 N.E.2d 1087, 1091 (Welch, J., dissenting), it would merely consign “a presumptively valid claim to oblivion for technical reasons which have nothing to do with protecting defendant’s rights or the public. Section 8 — 102 has a valid purpose and should be implemented to effect that purpose, not to trap unwary injured parties.”

For the foregoing reasons, the judgment of the circuit court of St. Clair County granting plaintiff’s motion to reconsider and denying Bi-State’s summary judgment motion is affirmed and this case is remanded for further proceedings.

Affirmed and remanded.

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


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARYL REECE, Defendant-Appellant.
    Fifth District
    No. 5—90—0513
    Opinion filed May 8, 1992.

      Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      Mark C. Hunter, State’s Attorney, of Metropolis (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Daryl Reece, appeals both his sentence and conviction for armed violence, aggravated battery, criminal damage to property (over $300), and criminal damage to property (under $300) in connection with an altercation which occurred during the evening of June 3, 1989. After being tried by jury, the circuit court of Massac County sentenced defendant to four years’ imprisonment for armed violence and ordered restitution to the victim for medical expenses in the amount of $37,355. Defendant was also sentenced to two six-month terms, to be served concurrently with his armed violence sentence, for each of the criminal damage to property convictions and was ordered to pay an additional $1,803.71 in restitution for repairs to property. The conviction for aggravated battery was merged into the conviction for armed violence.

At approximately 9:30 p.m. on June 3, 1989, the victim, Brian Lewis, drove to the Knotty Pine Tavern in Joppa, Illinois. Defendant and some of his friends were already inside and had become quite rowdy. After approximately 15 minutes, however, defendant and his friends left the tavern. Shortly after they left, Lewis heard loud noises outside the tavern. Being concerned about his new pickup truck, Lewis went outside to check on the noises. Lewis found a dent and several footprints on the hood of his truck. Believing defendant to be responsible for the damage, Lewis set out after him. After driving around town and not finding defendant, Lewis returned to the tavern to enlist help. Lewis took off again with two other men. In the meantime, the truck in which defendant was riding had driven into a ditch. As he and his friends attempted to get their vehicle out of the ditch, Lewis and his companions arrived on the scene. Lewis, who was now carrying a baseball bat, began yelling at defendant that he was going to have to pay for the damage to his truck. According to Lewis, defendant responded he would not pay and began acting wild, throwing karate chops and the like. At this point, defendant’s friends fled from the scene. Defendant advanced toward Lewis, yelling at him to drop the bat and fight him hand to hand. Lewis informed defendant that the sheriff was on his way. Defendant then attempted to run away but fell into the ditch. One of Lewis’ friends jumped on defendant and held his hands behind his back. Lewis started pushing defendant with the bat. When defendant agreed to pay, the group let him up and started to walk away. Defendant started following Lewis, renewing his protestations he would not pay for any damage while urging Lewis to fight him one on one. Once Lewis and his friends reached the yard where Lewis had moved his truck, Lewis told one of his friends to get a gun. At this point, one of defendant’s friends handed defendant a metal pipe. Defendant started swinging the pipe over his head, walked up to Lewis and struck him on the head with the pipe. Lewis immediately went down, and defendant struck him again on the back. Defendant then started hitting Lewis’ truck and another car parked nearby with the pipe before fleeing. Others at the altercation testified to basically the same sequence of events with one major exception: Lewis initially hit defendant with the baseball bat at least once and had pushed him with the bat three or four times prior to defendant going after Lewis with the pipe. Lewis suffered a fractured skull and was required to remain in the hospital for over a month. Defendant also was treated at the emergency room that same night for injuries to his head and body. His blood-alcohol level was recorded at .203.

Defendant raises four issues on appeal, the first being the trial court denied him the opportunity to present evidence on his behalf pertaining to his need to use self-defense. Defendant believes the trial court’s refusal denied him a fair trial. The evidence defendant attempted to present consisted of damage to the truck he was in allegedly caused by the victim’s supporters as well as the existence of a “weapon,” a table leg, found by the police near the scene of the altercation. Defendant contends such evidence reveals the extent of the violent and aggressive tendencies of the crowd in general that night thereby substantiating his belief self-defense was necessary. The trial court found such evidence to be irrelevant, not being tied to the immediate altercation between Lewis and defendant when Lewis was hit with the pipe. We agree with the trial court in this instance.

It is true defendant is entitled to all reasonable opportunities to present evidence supporting his theory of defense. (See People v. Manion (1977), 67 Ill. 2d 564, 576, 367 N.E.2d 1313, 1319; People v. Durr (1978), 58 Ill. App. 3d 525, 532, 374 N.E.2d 873, 878.) It is equally true, however, that it is within the trial court’s discretion to exclude such evidence when its relevance is so speculative as to have little probative value. (See People v. Reese (1984), 121 Ill. App. 3d 977, 988, 460 N.E.2d 446, 454. See also People v. Maberry (1990), 193 Ill. App. 3d 250, 263, 549 N.E.2d 974, 982 (defendant has no right to offer incompetent or irrelevant evidence).) The test for relevancy is whether the evidence to be offered tends to prove or disprove a disputed issue. (People v. Molsby (1978), 66 Ill. App. 3d 647, 657-58, 383 N.E.2d 1336, 1344. See also People v. Monroe (1977), 66 Ill. 2d 317, 321-22, 362 N.E.2d 295, 297.) If it does not, there is no error in not allowing in the evidence. We believe the trial court here did not err in not allowing in the proffered evidence. The critical inquiry in assessing self-defense is whether the use of force by a defendant was justified against another use of force. (See People v. Brumbeloe (1968), 97 Ill. App. 2d 370, 377, 240 N.E.2d 150, 154; Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1.) The fact that a group of people may have attacked the truck in which defendant had been riding after defendant hit Lewis with a pipe does not answer the question whether Lewis, the victim, threatened defendant with imminent use of force prior to being struck so as to justify defendant’s theory of self-defense. The actions of others, separate from the victim, cannot justify the use of force against the victim alone, especially when dealing with events which occurred after the altercation between defendant and Lewis. Moreover, defendant presented no evidence of the table leg being used in any manner to threaten himself prior to his hitting Lewis. We also note much of the evidence defendant wished to have entered was introduced or suggested to the jury through various witnesses’ testimony. Under these circumstances, we find no abuse of the trial court’s discretion in refusing to allow the introduction of such evidence to the jury. Reese, 121 Ill. App. 3d at 988-89, 460 N.E.2d at 454; Durr, 58 Ill. App. 3d at 533, 374 N.E.2d at 878-79.

Defendant next argues on appeal the trial court erred in refusing to instruct the jury on the defense of voluntary intoxication. Defendant correctly points out voluntary intoxication is an affirmative defense which excuses the conduct charged if the intoxication is so extreme as to suspend the power of reason and render the defendant incapable of forming the specific intent which is an element of the offense charged. (See People v. Hayes (1988), 173 Ill. App. 3d 1043, 1047, 527 N.E.2d 1342, 1346; People v. Feagans (1983), 118 Ill. App. 3d 991, 996, 455 N.E.2d 871, 875; Ill. Rev. Stat. 1989, ch. 38, par. 6-3.) Defendant is also correct that only slight evidence is necessary to raise such a defense and justify the giving of a jury instruction on the issue even if the facts upon which the defense is based are inconsistent with a defendant’s own testimony, for a defendant is entitled to the benefit of any defense shown by the evidence. (See People v. Robinson (1987), 163 Ill. App. 3d 754, 761, 516 N.E.2d 1292, 1298-99.) The key, however, is shown by the evidence. (See Molsby, 66 Ill. App. 3d at 659, 383 N.E.2d at 1345.) Merely being drunk or intoxicated is insufficient to create a defense of intoxication. (Hayes, 173 Ill. App. 3d at 1048, 527 N.E.2d at 1346; People v. Cheung (1980), 83 Ill. App. 3d 1048, 1052, 404 N.E.2d 558, 561.) The condition of intoxication must be so extreme as to negate the mental state required for the crime. (Cheung, 83 Ill. App. 3d at 1052, 404 N.E.2d at 561.) While evidence was presented at trial of defendant’s drinking and intoxicated behavior, no evidence of his mental processes being so impaired by alcohol as to suspend all reason or render him incapable of forming the requisite intent was ever presented. Rather, evidence was presented defendant was sober enough to tell Lewis he was not going to pay for the damages to his truck, to follow Lewis and challenge him to fight hand to hand, to swing the pipe over his head to ward off any possible attacks, and to hit Lewis twice with the pipe and flee the scene. Under such circumstances, the trial court did not err in refusing to tender defendant’s defense instruction on voluntary intoxication. Hayes, 173 Ill. App. 3d at 1048, 527 N.E.2d at 1346-47.

For his third point on appeal, defendant contends any sentence of more than the minimum term of incarceration is excessive in light of the circumstances of the case and defendant’s potential for rehabilitation, and therefore constitutes an abuse of the court’s discretion. As we have stated repeatedly, we will not substitute our judgment for that of the trial court simply because we may have imposed a different sentence had the sentencing function been delegated to us. We simply will not disturb the sentence imposed by the trial court unless it constitutes a great departure from the spirit and purpose of the law. (See People v. Carlson (1980), 79 Ill. 2d 564, 587, 404 N.E.2d 233, 243; People v. Generally (1988), 170 Ill. App. 3d 668, 677, 525 N.E.2d 106, 111.) Not only must the court provide for the possibility of a defendant’s rehabilitation, it must also fashion a sentence which will protect the interests of society based upon the particular circumstances present in each individual case. (See Reese, 121 Ill. App. 3d at 989-90, 460 N.E.2d at 454. See also People v. Saldivar (1986), 113 Ill. 2d 256, 268-69, 497 N.E.2d 1138, 1143.) While the classification of a crime determines the sentencing range, the severity of the sentence for that crime depends upon the degree of harm caused to the victim. (Saldivar, 113 Ill. 2d at 269, 497 N.E.2d at 1143.) Here, defendant caused serious harm to the victim. Not only was Lewis hospitalized for over a month with head injuries, he has lost most of his hearing in his right ear and still experiences headaches, dizziness, and shakiness in high places. In light of the seriousness of the harm caused, we cannot say defendant’s sentence is so excessive as to require modification. Moreover, even though the sentence imposed is in excess of the statutory minimum of three years, it also is far less than the statutory maximum of seven years’ imprisonment. (See Ill. Rev. Stat. 1989, eh. 38, par. 1005 — 8—1.) Clearly the trial court did take into consideration defendant’s list of factors in mitigation in fashioning his sentence. (See People v. Scott (1989), 180 Ill. App. 3d 418, 425, 535 N.E.2d 1113, 1118.) Again, we find no abuse of the trial court’s discretion in this sentence.

Defendant’s final argument on appeal is that the order of restitution of $39,158.71 imposed on him is unreasonable. This time we agree with defendant’s contention. When restitution is ordered, the amount must be reasonable and just. (See People v. Rupert (1986), 148 Ill. App. 3d 27, 29, 499 N.E.2d 93, 95; People v. Knowles (1980), 92 Ill. App. 3d 537, 540, 414 N.E.2d 1322, 1325.) The purpose of restitution is “frustrated when the restitutionary order imposes an impossible financial burden.” (Knowles, 92 Ill. App. 3d at 540, 414 N.E.2d at 1325.) Here that purpose is frustrated. Defendant is the sole support for his wife and three children, and at his last job earned $7.35 an hour while working 35 hours per week. Even if defendant can return to this job upon being released from prison, he clearly will not be able to manage the hefty payments the trial court’s order of restitution will require. Quite simply, the amount of restitution ordered will impose an impossible financial burden on defendant and his family. We therefore believe the better approach in this instance would be to establish a fixed percent of defendant’s net income as the appropriate method for paying restitution. The percentage approach, being self-adjusting, will reflect future changes in defendant’s income without requiring later motions and hearings to modify the amount of his payments. (See Rupert, 148 Ill. App. 3d at 30, 499 N.E.2d at 96; Knowles, 92 Ill. App. 3d at 540-41, 414 N.E.2d at 1325-26.) Accordingly, we remand the restitutionary portion of defendant’s sentence for redetermination as to a more appropriate amount of or method of paying restitution.

For the aforementioned reasons, we affirm the judgment of the circuit court of Massac County excepting the order of restitution. We remand the order of restitution for redetermination in accordance with the dictates of our opinion.

Affirmed in part and reversed in part and remanded.

GOLDENHERSH, P.J., and HARRISON, J., concur.


author: JUSTICE CHAPMAN

text:
    LACKEY AND LACKEY, P.C., Plaintiff and Counterdefendant-Appellee, v. JOHN PRIOR et al., Defendants and Counterplaintiffs-Appellants.
    Fifth District
    No. 5—91—0478
    Opinion filed May 8, 1992.
    Robert I. Auler, of Auler Law Offices, P.C., of Urbana, for appellants.
    George C. Lackey, of Lackey & Lackey, P.C., of Centralia, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendants appeal from the court’s order granting summary judgment in favor of the plaintiff. We affirm.

The law firm of Lackey & Lackey, P.C. (Lackey & Lackey), filed an action for attorney fees against the defendants John Prior and I.S., Inc. Lackey & Lackey filed a motion for summary judgment, attaching an affidavit containing an itemized account of the services rendered to the defendants and the alleged fees owed. The defendants’ amended answer admits that the defendants engaged the services of plaintiff and that plaintiff provided the services described in the complaint. Defendants filed a four-count counterclaim and an affidavit in opposition to the motion for summary judgment. Count I of defendants’ fifth amended counterclaim asserted that Lackey & Lackey breached the fiduciary duty owed to the defendants in that the plaintiff represented the defendants in dealings wherein the plaintiff had a conflict of interest and did not disclose this fact to the defendants. Counts II, III, and IV allege that Lackey & Lackey were negligent in handling defendants’ legal affairs. The defendants requested monetary damages and asked the court to declare that the defendants do not owe the plaintiff attorney fees because of the plaintiff’s breach of fiduciary duty and attorney malpractice.

Defendants’ affidavit in opposition to plaintiff’s motion for summary judgment set forth allegations relating to the law firm’s alleged conflict of interest in handling defendants’ legal matters. Four paragraphs of defendants’ affidavit concern allegations that the plaintiff had a conflict of interest at the time plaintiff represented the defendants and that the conflict worked to the defendants’ detriment. The fifth paragraph of the affidavit asserts that “on information and belief the fees incurred are unreasonably high and the time spent overstated.” Finally, defendants’ affidavit asserted that precise information regarding attorney fees is not currently available because plaintiff had not yet responded to discovery.

The court granted the plaintiff’s motion for summary judgment and defendants appealed. Count I of defendants’ fifth amended counterclaim was subsequently dismissed with prejudice, and counts II, III, and IV were dismissed with leave to file an amended pleading. The trial court entered a Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) finding that there was no just reason for delaying enforcement or appeal of the trial court’s order dismissing count I of the defendants’ fifth amended counterclaim. No appeal was taken from that order.

Defendants’ focus in this appeal is on their allegations that the plaintiff acted under a conflict of interest. Before reaching the merits of defendants’ argument, plaintiff contends that we must first decide whether it is proper to consider count I of defendants’ counterclaim and defendants’ affidavit as they relate to the plaintiff’s alleged breach of fiduciary duty. Plaintiff argues that because count I of defendants’ counterclaim was dismissed with prejudice and defendants did not appeal from the order of dismissal, this court may not consider the allegations of breach of fiduciary duty in assessing the order granting summary judgment. A motion for summary judgment should be granted only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); see also Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 586-87, 272 N.E.2d 497, 500.) Because the trial court did not dismiss count I of the counterclaim until after it granted summary judgment, we will consider the allegation of plaintiff’s breach of fiduciary duty in determining whether the trial court erred in entering summary judgment.

Defendants argue that their counterclaim and affidavit in opposition to plaintiff’s motion for summary judgment create a material issue of fact: whether plaintiff is entitled to recover legal fees from the defendants where, during the period these fees were incurred, plaintiff was involved in a conflict of interest to defendants’ detriment. In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 397, 402.) Facts contained in an affidavit in support of a motion for summary judgment which are not contradicted by counteraffidavit are admitted and must be taken as true for purposes of the motion. (Purtill v. Hess (1986), 111 Ill. 2d 229, 241, 489 N.E.2d 867, 871-72.) Contrary to defendants’ assertion, neither the defendants’ affidavit in opposition to the motion for summary judgment nor their counterclaim set out any facts denying or contradicting the facts alleged in plaintiff’s complaint and supported by plaintiff’s affidavit which accompanied its motion for summary judgment.

In particular, paragraph five of defendants’ affidavit, which asserts that on “information and belief the fees incurred are unreasonably high,” is insufficient to defeat a motion for summary judgment. Assertions based on an affiant’s information and belief are insufficient to defeat a summary judgment. (134 Ill. 2d R. 191(a); Jaffe v. Fogelson (1985), 137 Ill. App. 3d 961, 485 N.E.2d 531.) Paragraph six of the affidavit, alleging that sufficient information is currently unavailable due to pending discovery, is likewise insufficient to defeat a motion for summary judgment. Allegations amounting to no more than conclusions of fact are insufficient to create an issue of material fact. (LaMonte v. City of Belleville (1976), 41 Ill. App. 3d 697, 703, 355 N.E.2d 70, 76.) Parenthetically, we note that on the same day that defendants filed their affidavit, defendants sought and obtained a continuance of the hearing on plaintiff’s motion for summary judgment. The hearing on the motion for summary judgment originally scheduled for June 27, 1989, was not held until May 24, 1991. Although nearly two years elapsed from the date plaintiff’s motion for summary judgment was filed until the time it was heard, the record does not reflect that defendants filed anything further in opposition to the plaintiff’s motion for summary judgment.

The remaining four paragraphs of the defendants’ affidavit assert that plaintiff proceeded with defendants’ legal affairs while acting under a conflict of interest to the detriment of the defendants. Count I of defendants’ counterclaim also alleges that plaintiff had a conflict of interest when it represented the defendants. Even if there existed a conflict of interest relating to the plaintiff’s legal representation of the defendants, the defendants make no claim that the conflict of interest prevented plaintiff from performing the legal services plaintiff was engaged to perform. Defendants admit in their amended answer to the complaint that they engaged the plaintiff to perform legal services and that the plaintiff performed said services. No claim is made that the plaintiff breached its contract in providing the legal services for which it seeks payment.

After reviewing the record, including the pleadings and affidavits, we cannot find that the trial court in the instant case erred in granting summary judgment notwithstanding the pendency of the defendants’ counterclaim for attorney malpractice.

For the reasons stated above, the judgment of the circuit court is affirmed.

Affirmed.

LEWIS, HENRY, and RARICK, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY ALGEE, Defendant-Appellant.
    Fifth District
    No. 5—90—0280
    Opinion filed May 8, 1992.

      Paul Christenson, of Bailey & Christenson, of Murphysboro, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Stanley Algee, appeals from the order of the circuit court of Jackson County denying his motion to withdraw his plea of guilty as an accomplice to the charge of first degree murder. Defendant further appeals his sentence imposed in an unrelated drug case. The two cases have been consolidated for appeal as they involve a single plea agreement. We affirm in part and reverse in part.

On January 24, 1990, defendant entered a plea of guilty to first degree murder as an accomplice in connection with a fatal shooting during an armed robbery of a restaurant on October 14, 1989. At the time of entering his plea of guilty to murder, defendant had been found guilty of one count of delivery of a controlled substance and was awaiting sentencing. As part of the plea agreement in the murder case, defendant was to be sentenced to four years’ imprisonment on the drug charge to be served consecutively to his sentence of 46 years for the murder charge. All remaining drug charges against defendant were also to be dropped. After entering his plea on the murder charge, defendant retained new counsel and moved both to withdraw his plea and to substitute for cause the judge presiding in the murder case and pending drug case. Both motions were denied. Subsequently at the sentencing hearing on defendant’s drug charge, the trial court, believing defendant’s action of filing a motion to withdraw his guilty plea invalidated the plea agreement, sentenced defendant to 10 years’ imprisonment to be served consecutive to his 46-year sentence for murder. Defendant appeals both cases.

Defendant raises five points on appeal in support of his position that the trial court’s denial of his motion to withdraw his guilty plea should be reversed. Defendant first argues his plea was rendered involuntary because of the unfilled sentencing promise with respect to his drug charges; because of ineffective assistance of counsel; and because of threats and promises used to induce his plea. Defendant also contends the denial of his motions for substitution of trial judge for cause and the improper exclusion of critical testimony at the hearing on his motion to withdraw his plea constitute reversible error. We address the voluntariness of defendant’s plea first.

Defendant initially contends his plea was rendered involuntary because he did not receive the sentence promised in his plea agreement. It is true that when the prosecution breaches its promise with respect to an executed plea agreement, the defendant has pleaded guilty on a false premise thereby rendering his plea involuntary. (See People v. Boyt (1985), 109 Ill. 2d 403, 413-14, 488 N.E.2d 264, 269; People v. Langston (1984), 125 Ill. App. 3d 479, 481, 466 N.E.2d 268, 269.) The problem with this stance is that the State did not breach its promise. At the sentencing hearing on defendant’s drug charge, both the prosecution and defense counsel requested a sentence of four years in accordance with the terms of the plea agreement. It was the trial court which decided it was no longer bound to impose the sentence upon which the parties agreed once defendant filed a motion to withdraw his guilty plea. We agree. By filing a motion to withdraw his plea, defendant reneged on his agreement. (See People v. Prince (1989), 186 Ill. App. 3d 1043, 1056-57, 542 N.E.2d 1205, 1213; People v. Bullis (1980), 85 Ill. App. 3d 693, 695, 407 N.E.2d 1100, 1102. See also People v. McCutcheon (1977), 68 Ill. 2d 101, 107, 368 N.E.2d 886, 888-89.) And, once defendant breached the plea agreement, the trial court’s imposition of a sentence greater than that to which the parties agreed did not vitiate defendant’s guilty plea. What did vitiate defendant’s guilty plea was the ineffective assistance of counsel he received prior to making that plea.

When challenging the quality of representation of defense counsel following a guilty plea, a defendant must show that the level of representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty but would have insisted upon proceeding to trial. (People v. Felton (1989), 191 Ill. App. 3d 599, 600-01, 548 N.E.2d 57, 59; People v. Brown (1989), 179 Ill. App. 3d 1009, 1014, 535 N.E.2d 66, 69. See also People v. Hillenbrand (1988), 121 Ill. 2d 537, 548-49, 521 N.E.2d 900, 904-05.) We believe defendant has met that burden in this instance.

A plea of guilty is deemed voluntary only if it is given with the assistance of competent counsel. (See People v. Brumas (1986), 142 Ill. App. 3d 178, 180, 491 N.E.2d 773, 775. See also United States ex rel. Healey v. Cannon (7th Cir. 1977), 553 F.2d 1052, 1056.) In defendant’s motion to withdraw his guilty plea, defendant claimed defense counsel refused to prepare a defense, refused to give defendant all discovery materials supplied by the State, refused to accept many of defendant’s phone calls, refused to withdraw as counsel when requested, failed to object to inappropriate conduct by the State’s Attorney toward defendant, and coerced defendant’s plea by relating misinformation and/or threats designed to encourage defendant to plead guilty. We initially note defense counsel admitted he did not turn over all discovery material to defendant although he did give defendant copies of statements of the State’s four main witnesses. Defense counsel further admitted he did not accept all of defendant’s calls and on one occasion did hang up on defendant after telling him he was not going to “hold [his] g-damn hand.” Furthermore, defense counsel, believing the State had or would request a continuance, was not prepared for trial on the day defendant’s plea was entered, a fact of which defendant was made aware. More importantly, according to defendant, defense counsel informed defendant the morning of his trial that the judge was going to sentence defendant to 120 years on his drug charges if he did not accept the plea offered by the State that day. While defense counsel denied making such a statement, counsel did agree he believed the judge would “unload” on defendant if given the opportunity. Others who were present at the conversation between defendant and counsel prior to trial testified, or if allowed to testify, would have stated defense counsel did inform defendant he was going to get the maximum sentence on his drug charges if he did not plead guilty. Clearly, defendant was in a no-win situation. In defendant’s eyes, he was faced with counsel who did not appear to be cooperative, a trial judge who appeared “to have it in for him,” and a State’s Attorney who just the day before acted inappropriately toward him. Under such circumstances, we cannot say defendant’s plea was knowing and voluntary. It is true that defense counsel’s “suggestion” of the imposition of a larger sentence if defendant were not to plead guilty does not by itself invalidate a guilty plea. (See People v. Cox (1985), 136 Ill. App. 3d 623, 629, 483 N.E.2d 422, 426. See also People v. Witherspoon (1987), 164 Ill. App. 3d 362, 365, 517 N.E.2d 1169, 1171.) Here, however, defense counsel’s conduct as a whole went far beyond the “suggestion” stage. We therefore conclude defendant received ineffective assistance of counsel which rendered his plea involuntary. Compare Healey, 553 F.2d 1052, with People v. Miller (1986), 141 Ill. App. 3d 423, 490 N.E.2d 228.

Defendant also contends his plea was rendered involuntary by the threatening conduct of the State’s Attorney on the day before he entered his plea. The State’s Attorney, familiar with defendant’s past behavior of accepting and rescinding plea offers, contacted defendant in an interview cell at the jail without the permission or knowledge of defense counsel to learn if defendant had, in fact, accepted or was planning to accept the State’s plea offer. The State’s Attorney admitted that he told defendant during this conference this was defendant’s last chance to take the State’s plea offer and that he had used profanity and raised his voice toward the end of the conversation. While we find such conduct, at best, extremely questionable (see People v. White (1991), 209 Ill. App. 3d 844, 873-75, 567 N.E.2d 1368, 1386-87), we do not believe the State’s Attorney’s visit coerced defendant into pleading guilty. The next morning on the way to court, defendant specifically stated to one of the sheriff’s deputies he did not intend to accept the State’s plea offer. Clearly the meeting between defendant and the State’s Attorney, standing alone, was not what induced defendant’s guilty plea. And, without evidence of the State’s Attorney threatening any illegitimate action, we cannot say the conduct of the State’s Attorney vitiated defendant’s guilty plea. See People v. Bowman (1968), 40 Ill. 2d 116, 125-27, 239 N.E.2d 433, 439-40; People v. Heirens (1954), 4 Ill. 2d 131, 141, 122 N.E.2d 231, 237.

Defendant next contends on appeal the trial court erred in excluding as hearsay critical testimony pertaining to statements made by defense counsel to defendant immediately prior to defendant accepting the State’s plea offer. At the hearing on defendant’s motion to withdraw his guilty plea, defendant attempted to introduce the testimony of both his father and one of the sheriff’s deputies who were present when defense counsel informed defendant that the trial judge would sentence defendant to the maximum or to 120 years for his drug offenses if he did not plead guilty to murder. The trial court sustained the State’s hearsay objection to such testimony. We believe the trial court made an erroneous ruling in this instance.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein and dependent for its value on the credibility of the out-of-court declarant. (People v. Winchel (1987), 159 Ill. App. 3d 892, 902-03, 512 N.E.2d 1298, 1304; People v. Gully (1986), 151 Ill. App. 3d 795, 799, 502 N.E.2d 1091, 1094.) If such statements are offered, however, to prove their effect on a listener’s state of mind, they are nonhearsay and admissible. (See People v. Sanders (1988), 168 Ill. App. 3d 295, 309, 522 N.E.2d 715, 726; People v. Jackson (1986), 145 Ill. App. 3d 626, 636, 495 N.E.2d 1207, 1216.) Accordingly, the trial court erred in excluding such testimony.

Defendant’s final argument on appeal is that the trial court erred in denying his motion for substitution of judge for cause after the appearance of judicial impropriety was raised by the evidence. We disagree. While it is true that a motion for substitution of judge should be given a liberal rather than strict interpretation (see People v. Walker (1988), 119 Ill. 2d 465, 480-81, 519 N.E.2d 890, 891; Hoga v. Clark (1983), 113 Ill. App. 3d 1050, 1060, 448 N.E.2d 196, 202), it is also true that the petition for such a change must be filed at the earliest practical moment before the judge has ruled upon a substantive issue in the case (Hoga, 113 Ill. App. 3d at 1060, 448 N.E.2d at 202; People v. Jones (1971), 2 Ill. App. 3d 575, 578, 277 N.E.2d 144, 146). To hold otherwise would permit a defendant to “shop” for a judge more favorably disposed to the defendant. (See Jones, 2 Ill. App. 3d at 578, 277 N.E.2d at 146-47.) Here defendant filed his motion after pleading guilty and after having been sentenced on the murder charge in accordance with his plea agreement. As such, defendant’s motion was untimely. More importantly, defendant failed to show any prejudice would result if his motion were not granted. In other words, defendant did not show the alleged bias of the judge stemmed from an extrajudicial source resulting in an opinion on the merits on some basis other than what the judge learned from participating in the case. (See People v. Andricopulos (1987), 162 Ill. App. 3d 899, 909-10, 516 N.E.2d 302, 308.) Defense counsel specifically testified that the judge defendant wished to have removed had said nothing to suggest he was angry with or prejudiced against defendant or was treating defendant differently than he treated other criminal defendants. Merely because the trial judge had appointed defense counsel does not mean the same judge could never find ineffective assistance in that counsel’s representation of a defendant. Moreover, any comments made by the judge in appointing counsel for defendant only pertained to the fact that an indigent has no right to choose appointed counsel (see People v. Lewis (1981), 88 Ill. 2d 129, 160, 430 N.E.2d 1346, 1361). Under such circumstances, we find no abuse of discretion in denying defendant’s motions for substitution of judge for cause.

For the aforementioned reasons, we reverse and vacate the judgment entered in the murder case and remand this cause to the circuit court of Jackson County with directions to permit withdrawal of defendant’s plea of guilty on the basis of ineffective assistance of counsel and to reset the matter for trial. We otherwise affirm all other orders, convictions and sentences.

Affirmed in part; reversed and vacated in part and remanded with directions.

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


text:
    ALBERTA LYONS, as Guardian and Conservator of Randy D. Lyons, et al., Petitioners-Appellees, v. KIM LYONS, n/k/a Kim Cansler, Respondent-Appellant.
    Fifth District
    No. 5—91—0315
    Opinion filed May 11, 1992.

      Rosemary D. McGuire, of Brennan, Cates & Constance, of Belleville, for appellant.
    David Ulkus, of O’Fallon, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The petition for modification of visitation and grandparent visitation was brought by Alberta Lyons, guardian and conservator of Randy Lyons, and Alberta Lyons and Willard Lyons, individually. The petition sought a modification and a specific visitation schedule for Randy Lyons, a disabled adult, with his two minor children, Jeremy and Tiffany Lyons, as well as visitation for Alberta and Willard Lyons, paternal grandparents of Jeremy and Tiffany. After a hearing the court granted the modification and established a specific schedule for visitation. We affirm.

Randy Lyons and Kim Lyons, now Kim Cansler, were married April 12, 1975. Two children, Tiffany and Jeremy, were bom of the marriage. On September 3, 1977, Randy Lyons was involved in an automobile accident which caused disabling brain damage, confined him to a wheelchair and required him to receive constant care and medication. On March 6, 1981, after a period of separation, a judgment was entered in Missouri dissolving the marriage and granting custody of the children to Kim with visitation rights to Randy “on all reasonable occasions.”

In the succeeding years Kim Lyons remarried and, with the children, took up residence in Illinois. Since his accident Randy has spent the bulk of his time being cared for in medical institutions, and at the time of this action resided in the V.A. Medical Center in Knoxville, Iowa. Visitation, due to Randy’s condition and the distance involved, was difficult and infrequent. Alberta Lyons had to travel to Illinois with Randy without the aid of her husband, who was unable to free himself from work responsibilities, because the children were not allowed to visit in Iowa by their mother. On February 16, 1987, Alberta Lyons was appointed the guardian and conservator of Randy Lyons. On August 21, 1990, the petitioners filed a petition requesting a modification of visitation, that is, a specific visitation schedule for Randy in conjunction with and concurrent to a specific visitation for the paternal grandparents, Alberta and Willard Lyons.

The trial court issued an order on December 12, 1990, granting petitioners their requested visitation at the Lyons’ Iowa residence for eight consecutive days in the summer of 1991 and increasing it to 15 consecutive days by the summer of 1993 and every summer thereafter. In addition, the court granted visitation in Iowa for six consecutive days during Christmas vacation, every other year. Respondent filed a motion for reconsideration on January 9, 1991, and, in the alternative, orally requested that the matter be reopened to take additional testimony. Both the motion and the oral petition were denied.

Respondent argues that the trial court’s order granting specific visitation was against the manifest weight of the evidence in that the petitioners failed to meet their burden of proof in showing that the modification was in the best interests of the children. When a noncustodial parent seeks to modify visitation rights, that parent has the burden of showing the modification is in the best interest of the child or children. Woods v. Woods (1986), 147 Ill. App. 3d 772, 774, 498 N.E.2d 906, 908.

Section 607(a) of the Illinois Marriage and Dissolution of Marriage Act provides:

“A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health.” Ill. Rev. Stat. 1989, ch. 40, par. 607(a).

Thus, the statute creates something of an “entitlement” to reasonable visitation. (In re Marriage of Neat (1981), 101 Ill. App. 3d 1046, 1048, 428 N.E.2d 1093, 1095.) Petitioner had only to show, by a preponderance of the evidence, that reasonable visitation was not being afforded under the original judgment.

The issues before the trial court then were whether “reasonable visitation” was being afforded and, if not, would such visitation endanger the welfare of the children. Petitioners provided ample evidence showing that “reasonable visitation” under the original judgment of dissolution was not being achieved. The fact that respondent had moved to Hlinois, that she would not allow the children to visit in Iowa, that Randy was confined to a wheelchair, that Alberta Lyons was able to travel to Illinois to visit her grandchildren with Randy only at tremendous inconvenience due to her age and her husband’s inability to accompany her, all tend to establish the inadequacy of visitation under the previous judgment.

Section 607(c) of the Illinois Marriage and Dissolution of Marriage Act provides:

“The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; but the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral or emotional health.” Ill. Rev. Stat. 1989, ch. 40, par. 607(c).

In matters of visitation the primary concern of the court is the welfare of the child. The best interest of the child is normally fostered by having a healthy and close relationship with both parents. (In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1112, 421 N.E.2d 1308, 1311.) As such, we conclude that the trial court’s order granting specific visitation periods with the paternal family in Iowa was reasonable and served the best interests of the children.

For the same reasons we also affirm the visitation schedule as awarded to the grandparents. While the existence of the best interest standard does not guarantee that grandparents have visitation, normally, the loving, caring, and reasonable grandparent should be given visitation, and, normally, the visitation should not be unduly restricted. (In re Marriage of Lindsey (1987), 158 Ill. App. 3d 769, 770, 511 N.E.2d 198, 199.) Due to the nature of this case, visitation for Randy and the grandparents is inextricably intertwined. Even despite this, the record reveals no evidence justifying restricted visitation for Alberta and Willard Lyons. Respondent seems to make much of the fact that the children were hesitant and unwilling to visit their father and family in Iowa. Respondent points out that the children would be uncomfortable in that they would not know anyone. Obviously this is in large part due to respondent’s continual refusal to allow visitation in Iowa, and it is exactly what the trial court in its order was attempting to remedy.

Respondent’s contention that petitioners are primarily concerned with their own convenience is unpersuasive. On the contrary, a review of the record reveals a sincere familial concern and desire on the part of Alberta Lyons for her son and her grandchildren to know, understand, and hopefully learn to love one another. We agree with the trial court that this is certainly in the best interests of the children.

We also point out that, despite respondent’s insistence, the statutory law does not require that the trial court make explicit findings with regard to the “best interest of the children.” Respondent has misapplied In re Custody of Harne (1979), 77 Ill. 2d 414, 396 N.E.2d 499, which was a case dealing with modifying a prior custody judgment. In such an instance specific findings are required; however, no statutory or case law requires similar findings when modifying visitation.

Finally, respondent contends that the trial court erred in failing to allow her to reopen the case to present additional evidence regarding the natural father’s propensity towards violence and his current condition and disability as it applies to the issue of the “best interest of the children” and the modification of the visitation schedule. Most of this argument stems from an incident in 1979 when Randy Lyons allegedly held a knife to young Jeremy. However, testimony at the hearing also suggested that this may have been due, at least in part, to Randy’s medication and that there had been no similar incidents since that time. This incident was addressed in full at the hearing and there is simply no reason to suspect that the court did not take it into full consideration.

As regards any other evidence concerning Randy’s disability and potential for violence, respondent had ample opportunity to present it at the hearing. Not only did respondent fail to present any such additional evidence at the original hearing, but she was unable to identify any possible illustrations in her post-trial motion or subsequent oral argument. The burden to present evidence establishing endangerment of the child is on the custodial parent. Respondent has failed in this duty. Respondent has equally failed to indicate what, if any, proposed evidence would be presented should the case be reopened, nor has she offered any explanation as to why such evidence could not have been presented at trial. The decision to deny a motion to reopen is within the sound discretion of the trial court and will not be disturbed on review absent a clear abuse thereof. (In re Marriage of Weinstein (1984), 128 Ill. App. 3d 234, 249, 470 N.E.2d 551, 562.) We find no such abuse and therefore affirm.

Affirmed.

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


author: JUSTICE McLAREN

text:
    RON BURLEY, a Minor, by Kimberly Burley, his Mother and Next Friend, Plaintiff-Appellant, v. ON THE WATERFRONT, INC., Defendant (Rockford Park District, Defendant-Appellee).
    Second District
    No. 2—91—1179
    Opinion filed May 6, 1992.

      John M. Boreen, of Rockford, for appellant.
    Alfred W. Cowan, Jr., of Brassfield, Cowan & Howard, of Rockford, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The plaintiff, Ron Burley, a minor, by Kimberly Burley, his mother and next friend, filed a two-count amended complaint in the circuit court of Winnebago County naming as defendants On the Waterfront, Inc., and the Rockford Park District (the Park District). The trial court dismissed count II directed against the Park District, and the plaintiff appeals. We affirm.

The plaintiff raises the following issues on appeal: (1) whether the Park District owed the minor/plaintiff a duty to protect him from criminal attack by a third person while on Park District property; (2) whether the Park District voluntarily undertook to provide security such that it owed a duty to the minor plaintiff; (3) whether the Park District waived tort immunity by entering into an agreement to provide security for the area where the minor plaintiff was injured; and (4) whether the Park District owed a duty to provide adequate lighting in the area where the minor plaintiff was injured.

Count II of the first amended complaint alleges in part:

“3. That on and before August 31, 1990, the Defendant, ROCKFORD PARK DISTRICT, owned, managed, and maintained the walkway under the Jefferson Street Bridge located in Rockford, Illinois.
4. That on October 30, 1987, the ROCKFORD PARK DISTRICT entered into an agreement with the City of Rockford to build, maintain, and provide security protection to the walkway under the Jefferson Street Bridge in the City of Rockford, Illinois. A copy of the Agreement is attached hereto as Exhibit A.
5. That on and before August 31, 1990, the Defendant, ROCKFORD PARK DISTRICT, helped and cooperated with ON THE WATERFRONT, INC., a Corporation, to plan, organize, operate, and provide security personnel for a festival known as ‘ON THE WATERFRONT’ festival located in Rockford, Illinois.
6. That on August 31, 1990, the ‘ON THE WATERFRONT’ festival was open to members of the public including RON BURLEY who purchased an admission button entitling RON BURLEY to use the festival grounds which were open to the public from 5 p.m. to about 11:30 p.m.
7. That on August 31, 1990, the Defendant, ROCKFORD PARK DISTRICT, had a duty in accordance with the attached agreement to provide security to members of the public using the walkway under the Jefferson Street Bridge while attending ‘ON THE WATERFRONT’ festival in Rockford, Illinois.
8. That on the evening of August 31, 1990, a carnival consisting of various amusement rides operated by a private firm was conducted on land owned by the Defendant, ROCKFORD PARK DISTRICT, and with the permission of the ROCKFORD PARK DISTRICT, which carnival was located in the parking lot south of the Riverview Ice House and bounded on the east by Madison Street [and] on [the] west by Water Street in Rockford, Illinois.
9. That on the above-described date anyone who did not purchase a festival admission button was permitted by the Defendant to attend the carnival (consisting of various amusement rides) located on the Defendant’s property described above and to use the walkway under the Jefferson Street bridge to attend the festival located on the east and west bank of the Rock River.
10. On August 31, 1990, the Defendant, ROCKFORD PARK DISTRICT, provided supplemental security personnel within the fenced festival grounds located on the west and east side of the Rock River to protect festival attendees including RON BURLEY from rowdy, belligerent and quarrelsome individuals.
11. That the Defendant, ROCKFORD PARK DISTRICT, did not provide security personnel in the carnival area or on the walkway under the Jefferson Street Bridge on the evening of August 31,1990.
12. That before the above-described date there were previous instances where members of the public, who attended the ‘ON THE "WATERFRONT’ festival, were assaulted and beaten by groups of teenage boys near the above-described carnival area in and around the Riverview Ice House at 324 North Madison Street, Rockford, Illinois; which carnival area is owned and maintained by the Defendant, ROCKFORD PARK DISTRICT.
13. That before August 31, 1990, the Defendant knew that at previous ‘ON THE WATERFRONT’ festivals groups of rowdy teenage boys had frequented the carnival area located near the Riverview Ice House described above which is outside the festival grounds and had gotten into fights and injured members of the public attending the Defendant’s carnival and festival.
14. That on the evening of August 31, 1990, within a short time of the attack on RON BURLEY described below, a group of teenage boys, while on the festival grounds behind the Rockford Public Library, attacked and beat up a young boy attending the festival.
15. That on August 31, 1990, Ron Burley, an invitee of the Defendant’s festival, was walking east on the walkway under the Jefferson Street Bridge toward the carnival area when he was, without cause or provocation, assaulted and beaten, sustaining serious and permanent injuries, by a group of teenage boys who did not display festival buttons and who had congregated on the walkway which was dimly lit.
16. That at the above-described time and place the Defendant, ROCKFORD PARK DISTRICT, by its agents and employees, was negligent in one or more of the following ways:
a. Failed to station security personnel on the walkway under the Jefferson Street bridge and in the carnival area when it knew or should have known that there may be attacks and beatings by belligerent teenage boys on members of the public who were attending the festival;
b. Failed to anticipate and foresee that festival attendees in the carnival area and walkway area, including the Plaintiff, RON BURLEY, may be beaten by roving groups of teenage boys when it knew or should have known of previous attacks on festival attendees;
c. Negligently stopped and then released the same teenage boy who had beaten and attacked a youngster behind the Rockford Public Library shortly before attacking the Plaintiff on the walkway under the Jefferson Street Bridge;
d. Negligently approved the plan or design of the walkway which created a condition which the Defendant knew or should have knowfn] was not reasonable [sic] safe, namely failing to provide for a railing in the middle of the 10 feet wide walkway to separate eastbound and westbound pedestrian traffic and avoid the congregation or loitering of groups of teenage boys on the walkway who were likely to harass or attack pedestrians;
e. Failed to protect the Plaintiff from attacks by a group of belligerent boys when the Defendant knew or should have known of previous attacks in the area and where the Defendant had voluntarily undertaken to protect people in the vicinity of the carnival area from such attacks; and
f. Negligently provided poor or dim illumination on the walkway when the Defendant knew or should have known of the unsafe condition before the injury and which condition increased the likelihood of the beating on the Plaintiff who could not clearly see his attackers;
17. That as a direct and proximate result of one or more of the above-described negligent acts, the Plaintiff was injured, incurred and will incur medical and hospital expenses, suffered and will suffer, has been and will be restricted in pursuing his usual activities and affairs.”

Attached to the amended complaint as exhibit A is a written agreement between the City of Rockford and the Park District. The agreement provides, among other things, that the Park District “shall be solely responsible for construction and continued maintenance of the walkway and lighting project, and shall provide sufficient security protection, periodic inspection, clean-up as required, and maintain liability insurance *** as Park District may, from time to time, deem appropriate.”

The Park District filed a motion to dismiss count II of the amended complaint. The bases of the motion to dismiss were sections 2 — 103, 3 — 108, and 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1989, ch. 85, pars. 2 — 103, 3 — 108, 4 — 102). Following a hearing on the Park District’s motion, the court, without stating its reasons, dismissed count II with prejudice. The court further found, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal of its order, and the plaintiff filed this timely appeal.

The plaintiff raises the following contentions on appeal. First, he argues that the Park District owed him a duty to protect him from the criminal attack of a third person because he alleged that he was a business invitee of the festival and that the Park District knew of prior instances where attendees of the festival had been injured in fights. Second, he maintains that the Park District had a duty to protect him from criminal attack by virtue of its allegedly having undertaken to provide security at the festival. Third, the plaintiff asserts, relying on section 9 — 103(c) of the Act (Ill. Rev. Stat. 1989, ch. 85, par. 9 — 103(c)), that the Park District waived tort immunity by agreeing with the City of Rockford to provide security protection for the walkway. Finally, the plaintiff contends that the Park District owed him a duty to provide adequate illumination on the walkway so as to decrease the likelihood of the plaintiff being attacked by persons he could not clearly see.

Because the circuit court dismissed count II of the complaint with prejudice pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), we consider all properly pleaded facts as true. (People ex rel. Daley v. Datacom Systems Corp. (1991), 146 Ill. 2d 1, 11.) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. Datacom Systems Corp., 146 Ill. 2d at 11.

We begin our analysis by noting that the circuit court order does not indicate the specific basis upon which the court dismissed count II. Even if it did, we are not bound to accept the reasons given by the court, and its judgment may be sustained upon any ground warranted, regardless of whether it was relied on by the court and regardless of whether the reason given by the court was correct. (Material Services Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.) On appeal, the plaintiff’s first two contentions focus on the duty of the Park District to protect him while at the festival. In the first instance, he maintains the Park District had a duty arising out of his status as a business invitee at the festival. The plaintiff’s second contention is premised upon a duty created by the Park District’s alleged voluntary undertaking to provide security at the festival.

The plaintiff’s first two contentions are faulty, however, as they both rely on an alleged duty to protect the plaintiff from attack while at the festival. Although alleging that the plaintiff had purchased an admission button entitling him to access the festival, the plaintiff’s complaint does not allege that the attack occurred on the festival grounds. In fact, the only reasonable inference to be drawn from the complaint, even when viewing it in a light most favorable to the plaintiff, is that the walkway was not part of the festival and did not require a button to access or use it. Thus, any attempt by the plaintiff to impose a duty upon the Park District to protect him while on the walkway must necessarily fail to the extent it is premised upon a duty owed to him while at the festival.

Furthermore, there are no allegations in count II which remotely suggest that the Park District was acting in a proprietary rather than governmental capacity in its operation and maintenance of the walkway. Nor are there any allegations that the plaintiff was a business invitee on the walkway such that the immunity of the Act would not apply. (See Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501; Comastro v. Village of Rosemont (1984), 122 Ill. App. 3d 405.) Consequently, tort immunity applies to shield the Park District from liability based on the criminal conduct of a third party directed at the plaintiff absent some allegation in count II that some other exception to tort immunity applies in this case.

We next address the plaintiff’s contention that pursuant to section 9 — 103(c) of the Act the Park District waived tort immunity by agreeing to provide security protection for the walkway. Section 9— 103(c) provides in pertinent part:

“Public entities which are individually or jointly self-insured shall be entitled to assert all of the immunities provided by this Act or by common law or statute on behalf of themselves or their employees unless the local public entities shall elect by action of their corporate authorities or specifically contract to waive in whole or in part such immunities.” Ill. Rev. Stat. 1989, ch. 85, par. 9 — 103(c).

The parties do not cite, nor does our research reveal, any case interpreting or applying the above-quoted language regarding contractual waiver of tort immunity. Nevertheless, we interpret the plain language of section 9 — 103(c) to require a contractual provision specifically waiving all or part of a governmental entity’s tort immunity before such waiver will be found to exist. In this case, the written agreement merely provides that the Park District will supply security protection for the walkway. It does not expressly or impliedly waive any tort immunity or even mention tort immunity. Moreover, the mere agreement to provide security protection cannot be construed as a waiver of tort immunity absent some specific provision to that effect. The agreement to provide security protection does not waive the Park District’s tort immunity pursuant to section 9 — 103(c) of the Act.

We turn then to the plaintiff’s last contention that the Park District owed him a duty to provide adequate lighting to prevent him from being attacked by a third party he could not clearly see. The plaintiff relies on Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, in support of this contention.

In Baran, the supreme court stated the long-recognized proposition that where a municipality undertakes to provide lights it is liable for injuries which result from deficient or inadequate ones. (43 Ill. 2d at 180.) When a city creates a hazardous condition and someone is injured as a consequence, it must respond in damages. (43 Ill. 2d at 181.) We do not believe Baran supports the plaintiff’s position in this case.

First, we can find no case which has found a municipality liable for injuries suffered by a plaintiff at the hands of a criminal which has applied the principle enunciated in Baran. Rather, every case which sets forth or applies the principles in Baran has done so in the context of a vehicular-related injury arising out of the use of a highway, street or appurtenance thereto.

Second, this case is distinguishable from Baran and cases similar to it because here the plaintiff’s injuries resulted from the criminal conduct of a third party. This is significantly different from the Baran situation where the inadequacy or deficiency of the lighting resulted in the injuries. (Cf. Parsons v. Carbondale Township (1991), 217 Ill. App. 3d 637, 646 (common law recognizes that where danger is created by actions of others and not the municipality, the municipality is not liable for negligence); Harding v. Chicago Park District (1975), 34 Ill. App. 3d 425, 429-30 (same proposition).) We choose not to extend Baran to circumstances where the plaintiff’s injuries are caused by the criminal acts of a third party.

Furthermore, were we to extend Baran to this type of case, we would effectively abrogate the tort immunity provided by section 4— 102 of the Act (Ill. Rev. Stat. 1989, ch. 85, par. 4 — 102). Section 4 — 102 immunizes a governmental entity for its “failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals.” (Ill. Rev. Stat. 1989, ch. 85, par. 4 — 102.) To hold a governmental entity liable for the criminal acts of others due to its failure to provide adequate or effective lighting on its streets, sidewalks or walkways would be contrary to the legislative intent contained in the Act. The Park District in this case remains immune under section 4 — 102 of the Act notwithstanding the plaintiff’s allegations that it failed to provide adequate lighting which resulted in his being injured by the criminal conduct of a third party.

For the foregoing reasons, we affirm the order of the circuit court of Winnebago County dismissing count II of the plaintiff’s first amended complaint.

Affirmed.

UNVERZAGT and DOYLE, JJ., concur.


author: JUSTICE SLATER

text:
    ELMER C. JOHNSON III, Plaintiff-Appellant, v. TERRY MACHETTI, Clerk of the Peoria Police Pension Fund, et al., Defendants-Appellees.
    Third District
    No. 3—91—0179
    Opinion filed May 5, 1992.
    Rehearing denied June 10, 1992.

      Nicoara & Steagall and Joseph Napoli, both of Peoria (Richard L. Steagall, of counsel), for appellant.
    Jeffrey Alan Ryva, of Husch & Eppenberger, of Peoria (Stephen D. Gay, of counsel), for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff, Elmer C. Johnson III, appeals from the order of the circuit court dismissing his amended complaint for lack of jurisdiction. We affirm.

Plaintiff, a Peoria police officer, applied to the Peoria Police Pension Fund board of trustees (hereinafter Pension Board) for disability-pension benefits. At a hearing held on October 13, 1988, the Pension Board awarded plaintiff a disability pension of 50% of his annual salary, the applicable rate for disabilities incurred while not on duty, pursuant to section 3 — 114.2 of the Illinois Pension Code (Ill. Rev. Stat. 1989, ch. 1081/2, par. 3 — 114.2). Plaintiff was present at the hearing. The Pension Board notified plaintiff of its decision by letter dated October 27, 1988. In relevant part, the letter stated as follows:

“At the Police Pension Fund of Peoria board meeting held Thursday, October 13, 1988, your application for disability benefits was approved effective August 19, 1988, in the amount of $1,549.10 per month.”

Upon receipt of the letter plaintiff calculated the amount and found it to be equal to 50% of his salary. He did not seek immediate administrative review of the Pension Board’s decision. Rather, he submitted to the Pension Board a doctor’s report stating that his disability was job related. The Pension Board accepted the doctor’s report at its November 1988 meeting.

One year later, on November 16, 1989, the Board responded to plaintiff by sending a letter indicating that its October 13, 1988, decision was final. Within 35 days of receiving the November 16 letter, plaintiff filed his complaint in the circuit court seeking administrative review of the Pension Board’s decision. He alleges that the November 16, 1989, letter was the required written notice of the Pension Board’s decision for commencement of an action for administrative review. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 103.) Plaintiff’s complaint also contained three counts requesting relief under sections 1983 and 1988 of the Civil Rights Act (42 U.S.C. §§1983, 1988 (1982)).

Defendants filed a motion to dismiss pursuant to sections 2 — 619 and 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 619(a)(1), (a)(5), 2 — 615) claiming that the October 27, 1988, letter was adequate notice of the Pension Board’s decision, and, since the plaintiff failed to file for administrative review within 35 days of that letter, the court lacked jurisdiction to review the Pension Board’s decision. The circuit court granted defendants’ motion to dismiss.

Section 3 — 103 of the Code of Civil Procedure provides in relevant part as follows:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision to be reviewed was served upon the party effected thereby.” (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 103.)

The issue raised by this appeal is whether the 1988 letter was adequate notice of the Pension Board’s decision to commence the 35-day period for administrative review.

Plaintiff contends that the letter was inadequate notice because it did not inform him that the Pension Board had awarded a 50% disability pension instead of a 65% disability pension. Officers disabled in the line of duty are entitled to a disability pension in the amount of 65% of their annual salary (Ill. Rev. Stat. 1989, ch. 1081/2, par. 3 — 114.1). The letter did inform plaintiff that he would receive $1,549.10 per month, which was an amount equal to 50% of his salary. Plaintiff, in his amended complaint, admits that the 1988 letter put him on notice that he had received a non-line-of-duty disability pension. On appeal, plaintiff admits that when he received the letter he made the calculation and discovered that he had been awarded a pension at the rate of 50%. The record reflects plaintiff was present at the October 13, 1988, Pension Board meeting where the matter of his disability pension was discussed. Plaintiff presented letters from doctors and other information to the Pension Board. A motion was made, seconded and passed that plaintiff be awarded a 50% non-job-related disability pension based on an annual salary of $37,178.36, resulting in a monthly disability benefit of $1,549.10 per month. This is the same figure that appeared in the October 27, 1988, letter. We find no merit to plaintiff’s contention that the letter failed to inform him that he had not been awarded a line of duty disability pension.

In his brief on appeal, plaintiff also contends that the 1988 letter was inadequate because it did not inform him of the 35-day time limitation to file for administrative review. However, plaintiff has waived this issue because it was not raised in the trial court. Issues not raised in the trial court are deemed waived and may not be presented and argued for the first time on appeal. (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 545 N.E.2d 731.) “[T]he theory upon which a case is tried in the lower court cannot be changed on review, and *** an issue not presented to or considered by the trial court cannot be raised for the first time on review.” Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141,147.

We find the letter of October 27, 1988, to be sufficient notice of the Pension Board’s decision. Therefore, plaintiff’s 35-day period for administrative review commenced upon receipt of the 1988 letter. Because plaintiff failed to file for administrative review within 35 days, his complaint is untimely. The trial court lacked jurisdiction to hear plaintiff’s complaint and properly dismissed it.

Plaintiff also alleges civil rights violations under sections 1983 and 1988 of the Civil Rights Act (42 U.S.C. §§1983, 1988 (1982)). These claims are based on an alleged denial of procedural due process resulting from the claimed insufficiencies of the 1988 letter. Because we have found that the letter sufficiently informed the plaintiff of the Pension Board’s decision, we affirm the decision of the trial court dismissing plaintiff’s civil rights claims for failure to state a cause of action. The order of the circuit court of Peoria County dismissing this action is affirmed.

Affirmed.

HAASE and STOUDER, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    MICHAEL FERNANDES, Plaintiff-Appellee, v. SAM W. NOLEN et al., as Substitute Defendants for Jeremy Margolis, Defendants-Appellants.
    Third District
    No. 3—91—0373
    Opinion filed May 6, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Jerry Serritella, of Peoria, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

This appeal is from a summary judgment entered in the circuit court of Peoria County in favor of plaintiff Michael Fernandes, a probationary Illinois State Police officer, who had been terminated from his employment without a hearing. Defendants Sam W. Nolen and Terry Gainer are Directors of the Illinois State Police and successors to Jeremy Margolis, the original defendant.

According to the pleadings, motions, and affidavits in the record, plaintiff was dismissed during his probationary period as a State Police officer after approximately 11 months’ employment. The first 16 weeks of State Police employment (Phase I) consist of training at the Police Academy and are followed by 14 weeks of field training (Phase II). The remainder of the probationary term (Phase III) involves more advanced field training including solo patrol and biweekly performance evaluation. Phases II and III are governed by the Field Training Manual, which outlines the field training and evaluation program for the Hlinois Department of State Police. The Field Training Manual provides for a formal review and evaluation of each probationary officer during the 15th week of field training and again during the 11th month. If the review board determines that the officer should be terminated from the program, the officer is entitled to further review and a hearing before a special board.

Count II of plaintiff’s complaint alleged that plaintiff was denied his right to be evaluated by a review board and that he was further denied his right to review and hearing before a special board. On appeal from a dismissal of the complaint, this court reversed and held that the Director was bound by the regulations contained in the Field Training Manual granting plaintiff a right to review prior to termination. Fernandes v. Margolis (1990), 201 Ill. App. 3d 47.

Following remand, plaintiff filed a motion for summary judgment which asserted that the Field Training Manual governed all the training and discharge of probationary State troopers, that the Director was required to convene a special board as provided in the manual, and that failure to follow the Department’s rules and regulations invalidated the attempt to discharge plaintiff. Plaintiff sought back pay and employment benefits from the date of the purported discharge, May 27,1987.

The Director filed a reply to the motion for summary judgment accompanied by the affidavit of Captain Robert L. Grites. According to Grites, plaintiff was terminated following investigation of a complaint for “improper conduct,” and his discharge “had nothing to do with the officer’s performance in the Field Training Program *** so no hearing as to Field Training Performance was held.” Grites also stated that plaintiff’s discharge was based “upon his conduct on and off duty and violations of the Illinois State Police Policy and therefore no hearing was requested [by Director Jeremy Margolis] pursuant to the Field Training Operations Manual.”

The Director argued in the trial court that probationary officers are subject to summary discharge as at-will employees for violation of State Police policies and procedures or official misconduct not related to field training. The trial court ruled to the contrary, finding that the Field Training Manual contained all the rules and regulations covering discharge of probationary officers, that the Director failed to give plaintiff a hearing before a special board as required by the field training and evaluation program, and that plaintiff was entitled to reinstatement and to back pay of $52,633 plus restoration of full seniority rights, pension benefits, and other employment rights.

Defendants Nolen and Gainer contend on appeal that the trial court erred in ruling that the Field Training Manual discharge procedures apply to off-duty conduct or official conduct not related to field training. They claim that the review and hearing procedures relate solely to the field performance evaluations as set forth in the manual. Defendants argue that when the dismissal is for any reason not related to field performance, the probationary officer is subject to immediate discharge, as would be any other “at will” employee, with no right to review of the discharge decision by a special board.

This argument has a fatal flaw. According to the Field Training Manual, during the first week of field training, the probationary officer is to be instructed about and evaluated as to the following:

“10. Ethical conduct:
a. Public image
b. Gratuities
c. Personal behavior
d. Non-enforcement of laws
e. Off-duty conduct”

Thus, by the explicit terms of the Field Training Manual, personal behavior and off-duty conduct are elements of the officer’s training and are items subject to evaluation. His personal conduct, both on duty and off duty, is a part of the qualifications for advancement from Phase II to Phase III and from Phase III to permanent employment. During the field training portion of plaintiff’s training, he was entitled to the rights granted him as a part of the field training program.

Dismissals of probationary employees will not be upheld when they are denied the procedures afforded them by agency rules, and the mere fact plaintiff was a probationary employee does not give the Director of the State Police the authority to act outside his own rules. (Farmer v. McClure (1988), 172 Ill. App. 3d 246, 526 N.E.2d 486.) The attempt of Director Margolis to short-circuit the Department’s discharge procedure impermissibly trammeled plaintiff’s right to review and hearing. See Lewis v. Hayes (1987), 152 Ill. App. 3d 1020, 505 N.E.2d 408.

Defendants argue that the Field Training Manual provides that only the training review board can recommend discharge and that this action is the only means of invoking plaintiff’s right to a hearing before a special board. Here termination of employment was initiated by the Director, not the review board. Defendants insist that, under these circumstances, plaintiff has no right to a special board hearing.

The result of this argument would be to allow the Director to circumvent the procedures of the Field Training Manual by discharging a probationary trooper without using the review board. Such an action is a violation of the employee’s rights as set forth in the manual. Construing the Field Training Manual as a whole, we hold that a probationary officer is entitled to a special board hearing prior to discharge while he is in the field training program regardless of the specific reason for the discharge.

Defendants also argue that summary judgment was improperly given because there were controverted factual issues which should have been tried. It is noteworthy that defendants have never revealed the factual basis for the Director’s decision to discharge plaintiff. The affidavit of Captain Grites, which defendants rely upon as contradicting plaintiff’s pleadings, is replete with conclusions and devoid of facts. Contrary to defendants’ argument before this court that plaintiff’s misconduct was “off duty,” Grites states that it was both off duty and on duty. The manual provides that both on-duty and off-duty conduct are part of the officer’s performance in determining his fitness for permanent employment.

Plaintiff has yet to discover what conduct of his was the basis for the misconduct charge. Defendants have not disclosed in the record of this case what plaintiff is supposed to have done that was the reason for his discharge. Silence on that vital element of the defense does not create a question of material fact. Summary judgment was proper in this case.

Finally, defendants claim that the trial court erred in providing reinstatement and back pay for plaintiff without ordering a hearing. (See Sye v. Wood Dale Fire Protection District No. 1 (1976), 43 Ill. App. 3d 48, 356 N.E.2d 398.) Plaintiff claims he was never discharged and is entitled to resume his probationary employment with full pay and benefits. We have held that the Field Training Manual governs plaintiff’s discharge. The manual provides that once a probationary trooper has been recommended for discharge, he or she is to be relieved of duty with pay pending a hearing before the special board. This provision for a suspension from duties is obviously in the interest of the public welfare while the provision for full pay pending a hearing should insure prompt resolution of the case. Here it did not.

We conclude that plaintiff is entitled to back pay and employment benefits but, considering the public interest in being assured of law enforcement officers of integrity and good repute, he should not resume his duties until he has either had the recommendation for discharge rescinded or been given a hearing on the specific reasons for his termination.

In summary, we affirm the ruling of the trial court that the Field Training Manual procedures apply to plaintiff’s termination and that plaintiff is entitled to back pay and employment benefits. We reverse the order directing his reinstatement and remand this cause for the hearing which plaintiff has been seeking for nearly five years.

Affirmed in part; reversed in part and remanded.

STOUDER and GORMAN, JJ., concur.