author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ERIC SPIVEY, Defendant-Appellee.
    First District (1st Division)
    No. 1-89-0302
    Opinion filed February 4, 1991.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Gael M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
    Michael J. Pelletier and James Chadd, both of State Appellate Defender’s Office, of Chicago, for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

The sole issue presented on appeal is whether the trial court’s ruling which granted defendant’s motion to suppress on the ground that the State violated his constitutional rights when the police held him to incommunicado interrogation, even though defendant and his mother had previously requested that he remain silent and the presence of an attorney, is manifestly erroneous. Defendant, Eric Spivey, a 17-year-old boy, was charged, along with Brian Duffy, with the rape and murder of a 14-year-old girl. The relevant facts are adduced from the testimony of witnesses given during the hearings on the motion to quash arrest and motion to suppress.

During the hearing on the motion to quash arrest, Detectives Glynn and Mokry of the Chicago police department testified that they were assigned to investigate the rape and murder of the girl. On June 24, 1986, they took two separate statements from Bryant, a witness who had information about the persons involved in the murder of the girl, and the “vigilante” attack on Duffy, who had been severely beaten the day after the murder and died a month later. Bryant told the detectives that on the night of the murder, at about 10 p.m., he, Duffy and defendant met at a liquor store and later went to a park where they observed the girl walking through the park in an eastbound direction towards her home. The boys followed the girl and attempted to “hit on her” and “ask for sex.” However, she began to run, and Duffy and defendant chased her, dragged her to a bushy area, “crawled on top of her” and “went up and down” on her. When they left, the girl was motionless and quiet. The girl’s body was found the next day in a prairie near bushes and trees on an abandoned railroad property.

On June 25, the detectives proceeded to Little Company of Mary Hospital to interview the defendant, who was being treated for injuries sustained the night before when he jumped from a second-floor window to avoid a threatened vigilante attack. However, after being told by defendant’s mother, Mrs. Thomas, that her son did not wish to be interviewed, the men left the room. Shortly thereafter, defendant was released from the hospital, and as he attempted to get in his car, he was arrested and transported to the police station. Assistant State’s Attorney Zelazo’s testimony corroborated that of the detectives.

Defendant’s stepfather, Mr. Pulliam, testified that he and defendant’s mother arrived at the hospital on the morning of June 25 and saw four white men who identified themselves as Chicago police officers and the assistant State’s Attorney standing outside defendant’s room. The four men later entered the hospital room and approached defendant’s bedside, at which time one of the men attempted to talk with defendant. Even though Mrs. Thomas told the man not to talk to defendant, he continued to question him for approximately 10 to 15 minutes. However, every time the man asked defendant a question, defendant replied that he did not want to talk to him. Next, one of the men requested that Mrs. Thomas come outside the room, which she did. The two remained outside the room with the door closed for a few minutes. When they returned, the men paused for a moment and left.

Subsequently, defendant was released from the hospital, and as he was getting out of the wheelchair at the entrance of the hospital to enter the car, he was met by the detectives, who placed him under arrest and into a squad car. Following defendant’s arrest, Mr. Pulliam and Mrs. Thomas went to the police station. Mrs. Thomas repeatedly asked the desk officer if she could speak with her son; however, she was told that he was not at the station, even after Officer Hutchins, a long-time friend of Pulliam’s, told them the boy was upstairs.

The circuit court ruled that based upon Bryant’s statements, which were corroborated, the police had probable cause to arrest defendant and denied the motion to quash arrest.

When the court reconvened on the motion to suppress, the parties requested that the court take notice of and adopt the testimony received during the motion to quash arrest for purposes of the hearing. Detectives Mokry and Glynn reiterated that they did not question defendant at the hospital, that he neither told them that he wanted an attorney at the hospital, during the ride in the squad car, nor at the police station. The detectives testified that none of the officers had any conversations with the defendant until the assistant State’s Attorney entered the interview room around 1 p.m., at which time defendant was given his Miranda rights, acknowledged that he understood them and waived those rights as he proceeded to talk to the police and assistant State’s Attorney for about an hour about the girl’s murder.

The assistant State’s Attorney’s testimony was essentially the same as the officers’. He stated that while he was speaking with defendant, Detective Glynn was paged, left the room and returned with attorney Bourgeois, Sr., at which time the interview was terminated. Zelazo also stated that defendant did not sign a written waiver of his rights as both arms were in casts, and he had not completed the paperwork prior to the attorney’s arrival.

Officer Hutchins stated that he saw Mr. Pulliam at the station who told him that his son was upstairs and that he wanted to speak to him. Upon inquiry, Hutchins was told by the officers upstairs that they were questioning some “young men” and that “they would let the young man speak with whoever was downstairs when they were finished.” The officers involved in the interrogation, however, denied ever knowing that defendant’s mother was in the station during this time.

Mrs. Thomas testified that, while at the hospital, she and the defendant repeatedly told the police that defendant was not going to answer any questions without the presence of his lawyer. She stated that, during defendant’s arrest, the police denied her permission to accompany him in the squad car but told her to go to the Area Two station. However, before anyone left, both she and the defendant again told the police that he was “not going to answer any questions until he [had] a lawyer.”

The defendant testified in his own behalf that, when the men attempted to question him at the hospital, he and his mother told them that he did not want to be questioned. He also stated that “[t]hey just kept on trying to question me. I just kept quiet. *** She [his mother] told them not to question me either.” Defendant testified that, following the arrest, he was held in an interrogation room for hours where officers kept coming into the room, looking at him and saying: “You know you done it.” They also brought in Bryant, along with three or four other officers, for a few seconds. Then, everyone left the room except for one officer who asked defendant, “Did you ever tell them that you done it[?]” Defendant testified that he responded “No. *** I told him I wanted to see a lawyer, I wanted to go home.” Afterwards, he was threatened by one “short, fat” officer and given “two options,” either to “make a statement and go home” or be taken “in the corner and jumped on.” Defendant then commenced to give a statement to the assistant State’s Attorney. In addition, attorney Bourgeois, Sr., testified that as he was the lawyer representing defendant, he called Area Two twice, identified himself and inquired if defendant was there, and was told on both occasions that defendant was not there.

Following the hearing, the trial court issued a memorandum opinion and order which made detailed findings of fact. In particular, the court found that defendant had invoked his rights to remain silent and to have an attorney present before the arrest, and that the giving of Miranda warnings after the arrest was ineffective to overcome the prior invocation of defendant’s rights or the coercive environment of his incommunicado incarceration. The court suppressed the statements, and the State now appeals pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301).

The State first contends that the trial court’s characterization of defendant’s prearrest statements and those of his mother, as an invocation of Miranda rights to be imputed post-arrest, is manifestly erroneous. The State urges that the prearrest invocation of rights, if in fact there was such an invocation, had no effect once defendant was arrested, given the Miranda warnings, acknowledged that he understood each right, and then waived both his right to remain silent and his right to an attorney. Next, the State maintains that the trial court erred in ruling that because the officers held defendant “incommunicado,” he did not knowingly and voluntarily waive his Miranda rights. The State argues that a review of the “totality of the circumstances,” which is the test to determine the voluntariness of any confession (People v. Prude (1977), 66 Ill. 2d 470, 475, 363 N.E.2d 371), requires the conclusion that defendant knowingly and intelligently waived his Miranda rights where the evidence reveals: (1) that defendant was neither in pain, denied medication nor mistreated; (2) that defendant was of a mature age (17½ years old); (3) nothing to suggest that defendant has less than normal intelligence; (4) that defendant was not questioned prior to making a statement to the assistant State’s Attorney; (5) defendant was only questioned once; and (6) that defendant was not held in custody for long periods of time.

Conversely, defendant, in asserting that the trial court's ruling was proper, focuses on the State’s actions as a constitutional deprivation of his rights to remain silent and to have an attorney present. Specifically, defendant urges that although he was neither under arrest nor in police custody at the hospital when he invoked his constitutional rights, his clear and unambiguous request for an attorney at that time applied to the arrest which immediately followed, and further, should have precluded the police from ignoring his request for an attorney by subjecting him to incommunicado interrogation. He relies on Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, in support of his contention that the “assertion of the right to counsel is a significant event” which triggers procedural safeguards and Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093, as an example of a situation where a defendant’s request for counsel applied to a case for which he had not been arrested. Finally, defendant argues that the use of incommunicado interrogation by the officers was designed to produce an involuntary waiver of defendant’s Miranda rights and an involuntary statement.

We agree with defendant’s argument on appeal that the State’s actions in the case at bar constituted an egregious violation of defendant’s constitutional rights and, therefore, preclude any finding that the trial court’s ruling was manifestly erroneous in granting defendant’s motion to suppress illegally obtained statements. The fifth amendment of the United States Constitution provides, in relevant part, that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., amend. V.) Moreover, Miranda and its progeny provide that an accused, subjected to custodial interrogation, is entitled to admonition of his fifth amendment rights prior to the commencement of any questioning. (See Miranda, v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; see also Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880; Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093.) If a suspect asserts his right to remain silent, but subsequently waives such right, the waiver will be deemed effective if knowing, intelligent, and voluntary. (Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321.) To the contrary, however, where a suspect asserts his right to counsel during interrogation, any subsequent waiver of the right to counsel will be deemed involuntary, as a matter of law. (Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.) Edwards established- the rule that a suspect subjected to custodial interrogation who has requested the presence of counsel before answering any questions is not subject to further interrogation until counsel had been made available to him, unless he initiates further communication, exchanges, or conversations with the police. More recently, in Minnick v. Mississippi (1990), 498 U.S. _, 112 L. Ed. 2d 489, 111 S. Ct. 486, the Court held that when counsel is requested, interrogation must, cease, and officials must not reinitiate interrogation without counsel present, whether or not the suspect has consulted with his attorney. Minnick reemphasizes the Miranda and Edwards purpose that the requirement that counsel “be made available” encompasses the right of the accused to have counsel present during custodial interrogation, as well as the right to consult with counsel outside the interrogation room.

Here, the State urges that there was no invocation of Miranda rights, or alternatively, assuming a finding that there was an invocation, it did not cover the situation after defendant’s arrest. Essentially, the State argues that assuming defendant requested to remain silent and the presence of counsel while in the hospital, but prior to his arrest or any custodial interrogation, such requests were insufficient to trigger Miranda rights. We disagree. As stated by this court in People v. Young (1990), 201 Ill. App. 3d 521, 558 N.E.2d 1287, “[a]n individual’s fifth amendment rights exist exclusive of the right to receive Miranda warnings. Therefore, we do not view custodial interrogation as an indispensable requisite for the invocation of those rights.” (Young, 201 Ill. App. 3d at 525.) Additionally, Edwards and Roberson establish that the right to have counsel present during interrogation is so important and fundamental that the invocation of such a right should not depend on whether or not an arrest had taken place.

Similar to the Christomos decision (People v. Christomos (1988), 172 Ill. App. 3d 585, 527 N.E.2d 41), also discussed in Young, the record below supports the trial court’s finding that defendant here had unequivocally invoked his fifth amendment rights at the time the detectives visited him in the hospital even before he was taken into custody. In Christomos, the defendant and his wife, who were involved in a personal injury accident, were taken to the hospital. The police believed the couple had been victims of a mugging and did not suspect them of any crime; however, because of the defendant’s unruly behavior, he was handcuffed. At that time, defendant requested an attorney. When he was later placed in custody, he again requested counsel. The court found that although the police were aware of defendant’s precustody request for counsel, they failed to honor his fifth amendment right to counsel when they initiated interrogation.

In the case at bar, a portion of the record reflects that the police and the assistant State’s Attorney came to the hospital while defendant lay in a bed with both arms incapacitated as a result of injuries sustained during a threatened vigilante attack. They were not allowed in the hospital room until the arrival of defendant’s mother and stepfather, who were notified by one of the nurses at the hospital that the police were there to question the boy. Once the police entered the room, they were repeatedly informed by Mrs. Thomas and the defendant that he did not want to answer any questions and that he wanted an attorney. Although defendant was not under arrest at this time or in custodial interrogation, within the technical meaning of the term, he nevertheless invoked his fifth amendment constitutional rights to remain silent and to counsel. We agree with Young that a defendant may invoke his fifth amendment rights prior to the initiation of custodial interrogation. Moreover, we conclude that once such invocation is unequivocally made, it is improper and a clear violation of the defendant’s fifth amendment constitutional rights for the police to initiate interrogation. (See generally Minnick v. Mississippi (1990), 498 U.S. _, 112 L. Ed. 2d 489, 111 S. Ct. 486.) Miranda provides that if the defendant “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” Miranda, 384 U.S. at 444-45, 16 L. Ed. 2d at 707, 86 S. Ct. at 1612.

However, here the State denies the unequivocal invocation of defendant’s fifth amendment rights either before or during custodial interrogation. Although the record demonstrates conflicting evidence as to this matter in that the detectives and assistant State’s Attorney testified that defendant never requested an attorney while defense witnesses testified to the contrary, the State’s argument that defendant failed to inform the police that he wanted counsel present before any questioning is flawed. As the trial court stated in its opinion:

“First, in accordance with Miranda it is not necessary for the defendant to expressly request an attorney. *** Thus, the statement by defendant’s mother in his presence and acquiesced to by defendant indicates his intention to consult with an attorney prior to questioning. Second, defendant and Mr. Pulliam both testified that while still at the hospital defendant asserted that he did not wish to speak with the police until his lawyer was present. This assertion is not specifically denied by Mokry, Glynn or Zelazo. Rather, Mokry and Glynn testified that defendant did not tell them he wanted an attorney. This appears from the record to be at the time that he was given Miranda warnings at the station. From the totality of the circumstances the court finds that defendant specifically invoked his right to remain silent.”

Moreover, we believe that the conduct of the law enforcement officers following their departure from the hospital room supports the trial court’s finding that the police created a coercive environment, which would likewise invalidate any statements or confession obtained from defendant therein. The trial court stated that the giving of Miranda warnings and the police contention of waiver do not eliminate the incommunicado status of the accused, and therefore, the State’s burden in showing waiver has not been met. The police inquired when the defendant would be released from the hospital, waited until that time, and as he was attempting to get into the car with his mother, they separated him from his parents, arrested him, denied his mother’s request to accompany him in the squad car and took him into the station. There is no evidence that, once at the station, the detectives inquired as to his parents’ whereabouts or if his attorney had arrived, or, if in fact, he had counsel. As stated in Miranda, here there is no indication that “the officers undertook] to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice.” Miranda, 384 U.S. at 457, 16 L. Ed. 2d at 714, 86 S. Ct. at 1619.

The police testified that defendant was not given any Miranda warnings until the assistant State’s Attorney arrived a few hours after the arrest, at which time he immediately started to talk. Yet defendant testified that he was consistently questioned, harassed and threatened during this time. The testimony of his parents established that they went immediately to the station but were denied an opportunity to speak with defendant and were told that he was not there. His attorney was unable to talk to him on the phone and was also told that he was not at the station. Thus, we find that the trial court’s conclusion is proper that the police created the incommunicado environment because they knew defendant would not submit to interrogation while in the presence of his mother and stepfather, which was a clear violation of Miranda.

Additionally, the record here suggests that defendant was subjected to interrogation and that his will was overcome. He was removed from the protective shield of his mother and stepfather, and contrary to their command, and both his and his mother’s requests, he was again interrogated. The record is clear that defendant answered no questions at the hospital while Mrs. Thomas and Mr. Pulliam were present. It was only when defendant was separated from his parents, threatened and told that he would not be allowed to go home that he gave a statement.

Moreover, the record does not support the State’s argument that the statements made by defendant were given after a knowing, intelligent and voluntary waiver of his rights. As stated in Miranda, “[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self incrimination and his right to retained or appointed counsel. [Citation.]” (Miranda, 384 U.S. at 475, 16 L. Ed. 2d at 724, 86 S. Ct. at 1628.) The State must show by a preponderance of the evidence that the defendant voluntarily and knowingly waived his Miranda rights. (People v. Nau (1988), 167 Ill. App. 3d 338, 349, 521 N.E.2d 177.) Here, the court reasonably found that the defendant’s statements were coerced in that he was separated from his parents, his requests to remain silent and to have counsel present before answering any questions were ignored, and he was told that a statement was a prerequisite to his being released. Defendant testified that he was told he had to give a statement before he could go home and that if he didn’t make a statement he would be “jumped on.” The trier of fact found defendant’s testimony and that of Mrs. Thomas and Mr. Pulliam credible. This credibility determination must be given deference on appeal. Where the evidence is merely conflicting, a court of review will not substitute its judgment for that of the trier of fact. People v. Racanelli (1985), 132 Ill. App. 3d 124, 129, 476 N.E.2d 1179, 1182.

Accordingly, we hold that the trial court’s finding that the defendant’s statements were illegally obtained was not against the manifest weight of the evidence under the totality of circumstances, indicating that defendant’s prearrest invocation of his fifth amendment rights to remain silent and to have an attorney present was ignored immediately following his arrest (see Smith v. Illinois (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490), and that notwithstanding the Miranda warnings, the police created a coercive environment to obtain the statements by subjecting defendant to incommunicado incarceration. Such police action and conduct caused defendant’s statements to be obtained in violation of his constitutional rights.

For the foregoing reasons, the judgment of the circuit court which granted defendant’s motion to suppress is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    REX SINQUEFIELD et al., Plaintiffs-Appellants, v. SEARS ROEBUCK AND COMPANY et al., Defendants (Jerit Supply Company, Inc., Defendant-Appellee).
    First District (1st Division)
    No. 1-89-0898
    Opinion filed February 4, 1991.

      Robert A. Clifford & Associates, of Chicago (Robert A. Clifford, Keith A. Hebeisen, and Robert P. Sheridan, of counsel), for appellants.
    Kralovec, Marquard, Doyle & Gibbons, of Chicago (Nancy Jo Arnold and Michael T. Sprengnether, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Rex Sinquefield and Edward Cook, Jr. (plaintiffs), sued Sears Roebuck and Co., et al. (Sears), and the Jerit Supply Co. (Jerit Co.) for personal injuries which were allegedly caused when a roof which was allegedly sold, fabricated, or installed by Sears and the Jerit Co. collapsed. Plaintiffs appeal from a summary judgment that was granted in favor of Jerit Co.

On February 3, 1979, the aluminum roof collapsed on the building where plaintiffs lived and, consequently, the plaintiffs suffered severe injuries.

Thereafter, on December 11, 1979, plaintiffs filed their cause of action against Sears. Subsequently, on February 3, 1981, plaintiffs amended their complaint, alleging, inter alia, that “Jerit Co. manufactured and/or installed the aluminum roof.” After numerous pleadings, Jerit Co. petitioned the trial court for summary judgment contending that Jerit Co. was a successor corporation because Jerit Co. had been sold on February 27, 1979, so that the present Jerit Co. did not exist at the time the roof was installed, and hence, the present Jerit Co. could not be liable as a matter of law.

In support thereof, Jerit Co. provided: (1) Emil Zimmer’s affidavit which stated that he and William Plucinski had been the shareholders and officers of Jerit Co. since February 27, 1979, and that prior to February 27, 1979, they had no interest in the company; and (2) a purchase agreement between Zimmer, Plucinski and Fran Jerit which stated that Zimmer and Plucinski would purchase all of Fran Jerit’s stock in Jerit Co. for $20,000.

The record clearly reflects that Jerit Co. was incorporated on January 22, 1959, and was authorized to issue 1,000 common shares; that sometime prior to February 27, 1979, Fran Jerit was the sole shareholder of 150 outstanding shares; and that on February 27, 1979, Fran Jerit sold her Jerit Co. shares to Zimmer and Plucinski for $20,000.

Additionally, the Jerit Co. annual reports filed with the Illinois Secretary of State before and after the 1979 stock transaction demonstrate that Jerit Co.’s corporate name did not change; that the business purpose did not change; that the number of issued and outstanding shares did not change; and that the corporate identification number did not change.

Based upon the foregoing and after hearing the arguments regarding Jerit Co’s surqmary judgment motion, the trial court granted judgment in favor of Jerit Co. Plaintiffs appeal.

For the reasons set forth below, we reverse the judgment of the circuit court of Cook County.

Plaintiffs argue that the trial court erred in granting summary judgment for Jerit Co. because Jerit Co. was not a successor corporation by virtue of a stock transaction. We agree. A mere sale or purchase of stock does not eliminate the corporation’s debts and obligations because the legal entity remains the same. (Meridian Amusement Co. v. Home Theater Co. (1919), 215 Ill. App. 479, 487; National Bank v. S.N.H., Inc. (1975), 32 Ill. App. 3d 110, 336 N.E.2d 115.) A corporation is a legal person, entitled to sue or be sued in its own name, and responsible for the payment of liabilities and obligations incurred by it. A change in shareholder ownership which occurs through the sale of stock, whether by one shareholder to another or by sales of stock by the corporation itself, does not affect the corporation’s legal obligations and does not discharge its liabilities. Therefore, the trial court erred in granting summary judgment for Jerit Co. because the stock sale did not in any way relieve Jerit Co. of its obligations which arose prior to such stock sale.

Even though Jerit Co. does not dispute that Zimmer and Plucinski purchased the Jerit Co. stock through a purchase agreement, it mysteriously maintains that it is a successor corporation because it purchased its predecessor’s assets. Generally, when one corporation sells its assets to another corporation, the seller’s liabilities do not become a part of the successor corporation. (Manh Hung Nguyen v. Johnson Machine & Press Corp. (1982), 104 Ill. App. 3d 1141, 1148, 433 N.E.2d 1104.) The contention that Jerit Co. is a successor corporation is contrary to the intent and content of Zimmer’s and Plucinski’s purchase agreement because the agreement is clear that Zimmer and Plucinski purchased stock from and paid consideration to Fran Jerit. There is no mention in the purchase agreement of any transfer of Jerit Co.’s assets to any person.

Alternatively, Jerit Co. essentially asks us to pierce the corporate veil and find that the corporation is equivalent to its shareholders, so that when the shareholders changed, the entity was altered, triggering a successor corporation analysis. The accepted rule is that the corporate entity will only be pierced to protect the interests of third parties; the separate corporate entity will not be disregarded to allow the corporation to escape its obligations. (Esmark, Inc. v. N.L.R.B. (7th Cir. 1989), 887 F.2d 739, 751.) Consequently, there are not grounds to piercé the corporate veil, to delve into a successor corporation analysis, or to relinquish Jerit Co. from its potential liability on summary judgment.

For the reasons set forth above, the summary judgment that was granted for the Jerit Co, is reversed.

Reversed.

CAMPBELL and BUCKLEY, JJ., concur.

      The recognized exceptions to this rule are when: (1) an express or implied agreement of assumption exists; (2) the transaction amounts to a merger of the seller into the buyer or a consolidation of the two; (3) the buyer is a mere continuation of the seller such as when the buyer comes into existence pursuant to the reorganization of the seller; or (4) the transaction is fraudulent in that it was entered into to allow the seller to escape its liabilities. Manh Hung Nguyen v. Johnson Machine & Press Corp. (1982), 104 Ill. App. 3d 1141, 1143, 433 N.E.2d 1104, citing People ex rel. Donahue v. Perkins & Will Architects, Inc. (1980), 90 Ill. App. 3d 349, 413 N.E.2d 29.


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN GLEASH, Defendant-Appellant.
    First District (2nd Division)
    No. 1-88-0797
    Opinion filed February 5, 1991.

      Michael J. Pelletier and Pamela Z. O’Shea, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee G. Goldfarb, Bonnie Meyer Sloan, and Guy L. Miller IV, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Pursuant to a jury trial, defendant Marvin Gleash was found guilty of murder and subsequently sentenced to 40 years in the Illinois Department of Corrections. He appeals both his conviction and his sentence, raising as issues: (1) whether his trial counsel was burdened by a conflict of interest and thus did not provide effective assistance of counsel; (2) whether he was denied a fair trial by the circuit court’s refusal to excuse certain veniremen for cause so that he had to exclude them by the use of his peremptory challenges; (3) whether he was denied a fair trial where the prosecutor implied that defendant had committed other crimes and argued facts not in evidence, and the circuit court denied a mistrial based upon its own investigation; and (4) whether the circuit court improperly sentenced him because it erroneously believed that he was eligible for an extended term.

On October 5, 1986, Tom Briggs was shot, and on October 7, 1986, he died as a result of the gunshot wound. On October 5,1986, defendant was arrested for the shooting, and on October 31, 1986, he was indicted for the offense of murder.

On September 14, 1987, defendant filed a pro se petition asking that a lawyer, other than from the public defender’s office, be appointed to represent him. In his motion, defendant averred that his assistant public defender ha.d told him that the public defender’s office did not have the necessary time and resources to investigate all the circumstances of the case. Defendant also alleged that his public defender had refused to have gunshot residue tests performed on his car and refused to interview any of the State’s witnesses.

In response to defendant’s allegation that his public defender told him that he did not have the necessary resources or time, the assistant public defender stated that defendant was lying. He did, however, admit that he had not had the gunshot residue tests performed on the car, but stated that this was part of his trial strategy. He also acknowledged that he had not interviewed any of the State’s witnesses, but he stated that he would interview the five witnesses sometime before trial. When asked by the court for an explanation, defense counsel stated that he may have avoided defendant because he found him “troublesome” and “quarrelsome” and did not get along with him. The court ordered the public defender to interview the witnesses as soon as possible and report back on October 5, 1987.

On October 5, 1987, the court was advised that the public defender had attempted to locate and speak to four of the witnesses, but three had moved and one had refused to speak with him. The court allowed another continuance in order to get updated addresses.

On January 27, 1988, immediately before jury selection began, defense counsel asked the court if he could be allowed to interview some of the State’s witnesses. He reminded the court of his earlier unsuccessful attempts and the State agreed to give defense counsel access to the witnesses before trial.

During voir dire, the court gave defense counsel the opportunity to ask questions of prospective jurors. In response to one of defense counsel’s questions, Mary Schmack stated that although she would be a fair juror, she would be distracted during the trial because she was in the middle of moving her office. The circuit court refused to excuse her for cause, stating that defense counsel was responsible for answers he received as a result of his open-ended question. Consequently, defense counsel used a peremptory challenge to exclude Schmack.

Another prospective juror, Carla Woodard, stated she would be unable to be a fair juror because she had an aversion to guns. Defense counsel requested a sidebar, but the court refused to grant one. Counsel then attempted to excuse Woodard for cause, but the prosecutor reminded counsel that the challenge was not for cause; consequently, defense counsel used another peremptory challenge to exclude Woodard.

Finally, one of the prospective jurors, Joseph Gajewski, stated that he could not be a fair juror because he was going to close on a mortgage soon. During a sidebar, the court refused to exclude him for cause and defense counsel had to use another peremptory challenge to exclude Gajewski. By the end of jury selection, the defense had used all its peremptory challenges.

On January 28, 1988, trial began. The evidence adduced at trial showed the following. On October 4, 1986, Rachelle Garcia, who had known defendant for approximately three years, asked him if she could hold a birthday party for Desiree Sams and Roxanne Ivy at his home. Defendant agreed and allowed Rachelle to use the small house located near Archer and Lowe in Chicago where defendant was staying with a friend.

At approximately 4 p.m. on October 4, 1986, Rachelle and Desiree arrived at the house. Roxanne arrived approximately two hours later, and Rachelle left at this time to pick up more people. While Desiree and Roxanne were alone with defendant in the house, he pulled out a large, dark gun from under a bed in the front room and showed it to them. They told him to put it away; defendant then took the gun into the back of the house near the kitchen. After putting the gun away, defendant offered Desiree and Roxanne some cocaine and marijuana; both “snorted” several “lines” of cocaine with defendant.

During the evening, between 25 to 30 people arrived at the party, most of them teenagers. Several of those teenagers were drinking beer, smoking marijuana, and using cocaine. During the party, defendant also used cocaine and offered marijuana and cocaine to several teenagers.

Later in the evening, while defendant was in the kitchen with several other people, he accused Mike Fredricson of stealing $40 from him and he pointed his gun at him. Rachelle tried to calm defendant and told him to put the gun away. Less than one hour later, defendant put the gun to Rachelle’s head and pulled the trigger; the gun clicked, but did not fire, and defendant laughed.

The party continued throughout the night, and at about 3 a.m., only seven people remained in the house with defendant: Rachelle, Desiree, Roxanne, Mark Cleveland, Tim Eskra, Laura Baker, and Tom Biggs. At Rachelle’s request, defendant agreed to drive everyone home. Everyone then left the house and got into defendant’s car, except for Tom Biggs, who said he wanted to walk home. Mark Cleveland left the car to join Tom, and they began to walk north towards Archer.

Defendant drove his car towards the two boys and stopped; he yelled at Tom to “get the fuck away” from the house and Tom yelled back, “[F]uck you, I’m leaving.” Defendant then pulled a gun from under the driver’s seat, pointed it at Tom, and fired a shot. The shot did not hit Tom, and defendant repeated his statement to “get the fuck away”; Tom responded to him in the same manner as before and defendant shot at Tom again, missing him. After this second shot, Tom left the curb, walked towards defendant’s car, took off his jacket and threw it on the street, put his hands on his hips, and said “[G]o for it.” Defendant then aimed his gun at Tom and fired from a distance of only a few feet, hitting Tom in the forehead. After Tom fell, defendant put the car in reverse and everyone but Tim and Roxanne was able to jump out of the car before defendant drove away.

After shooting Tom, defendant drove to a steel girder bridge located on Canal Street, where he stopped, got out of the car, and threw the gun into the river below. Defendant then returned to his car and drove back across the bridge; as he was driving, defendant threw baggies of pills and cocaine out of the car.

In the meantime, after defendant drove away from the shooting, the teenagers who had jumped out of his car attempted to help Tom. They tried to stop several cars but were unsuccessful in obtaining help; Desiree, however, was able to stop a CTA bus and urged the driver to call for help. At this time, Sherie Savikas, who had left the party hours earlier, drove by and attempted to help the others.

It was at about this time that defendant, Roxanne, and Tim returned to the house. Roxanne went to join the group of people trying to help Tom, and defendant went inside his house.

Several of the teenagers were able to put Tom in Sherie’s car and they then drove to Mercy Hospital. After taking Tom to the hospital, the group in Sherie’s car drove to find Tom’s mother and sister. They then drove back to defendant’s house, spoke with the police who had arrived at the scene, and went to the police station.

Officer Frances O’Donnell was at the scene when the teenagers in Sherie’s car arrived. After speaking with the teenagers and telling them to go to the police station, she and Roxanne drove to the bridge from which defendant had thrown the gun. O’Donnell was unable to recover the gun, however, because the area by the bridge had very steep banks and a swift current.

After 11 witnesses, the prosecution rested. Defendant then testified in his own behalf.

Defendant stated that on October 4, 1986, he was living with a friend in the friend’s house on Lowe Street. Because defendant had been the victim of a shooting, he kept a gun in the house.

On October 4, 1986, defendant agreed to host a party for his friends Rachelle and Desiree. After Rachelle and Desiree arrived at his house, but before any guests came over, defendant moved his gun from the front room to the back of the house. He did not, however, show the gun to the girls or point it at them. As more guests arrived at the party, people began to smoke pot, drink beer, and snort cocaine; however, defendant neither provided, nor used, any of the alcohol or drugs at the party.

During the party, defendant had two arguments with one of the guests at the party. At around midnight, defendant suspected that Mike Fredricson had stolen $40 and he warned him to stay out of trouble; he did not, however, point his gun at Mike, but did pull his gun out when he saw Mike reach in his pocket for a knife. Defendant then put his gun into his belt and did not pull it out again, although one hour later, he accused Mike of stealing Desiree’s purse. After that accusation, he asked Mike to leave the party.

At around 3:45 a.m., defendant told everyone that the party was over and everyone left except Rachelle, Roxanne, Desiree, Tim, Mark, and Tom. Defendant agreed to drive this group home. As he left his home, defendant threw his gun under the steps. Everyone then got into his car except for Tom, who said the car was too crowded. Mark left the car to walk with Tom, and the two walked to the corner. Defendant drove to the comer and yelled to the boys, “[W]hat are you doing on the comer?” and told them to leave the area. Tom started swearing at defendant and defendant heard four loud bangs which he thought came from the expressway above. When Tom fell, however, defendant realized that someone had shot him. Because defendant thought someone was trying to shoot him, but had hit Tom instead, he drove away.

After leaving the scene of the shooting, defendant drove to a bridge, left the car, and urinated. Defendant then drove back to the house and asked the group of people there whether anyone had called for help. When they answered “no,” he went into his house and attempted to call 911 three times, but he was unable to get through. He then decided to drive to the police station to report the shooting, but was stopped and arrested on his way there.

During cross-examination, the prosecutor asked defendant if his wife had shot him previously because he had been having sex with his child. The defense objected, and the court sustained the objection and admonished the jury to disregard the prosecutor’s question.

After defendant testified, defense counsel motioned for a mistrial based upon the prosecutor’s question because it involved allegations of prior criminal conduct and was highly prejudicial. The court found that the question was inappropriate; however, it did not grant the mistrial, because it felt that its admonishment to the juiy was “strong and heavy.” Moreover, the court was not certain that the jury had even heard the remark because several deputies, when asked by the court during a subsequent break, stated that they had not heard the remark.

The defense rested, and in rebuttal, the State called Assistant State’s Attorney John Muldoon, who had interviewed defendant after his arrest. Muldoon testified that defendant told him that he was driving some girls home after the party when one of the girls needed to go back for something she had forgotten. When defendant returned to the house for the forgotten item, Tom was lying in the street. Defendant also told Muldoon that he had had a toy gun at the party.

During closing argument, several objections by the defense were sustained when the prosecutor stated that the State’s witnesses had told the police the same story that they were telling at trial. The court admonished the jury to disregard those remarks.

After trial, the jury returned a verdict of guilty of murder, judgment was entered on the verdict, and defendant was subsequently sentenced to 40 years in the Illinois Department of Corrections.

I

Defendant initially contends that because his trial counsel was burdened with a conflict of interest, he was denied effective assistance of counsel. Specifically, defendant argues that his trial counsel avoided him, refused to interview witnesses, and found him “quarrelsome” and “troublesome.” Thus, defendant maintains, there was an actual conflict of interest between defense counsel and defendant. United States ex rel. Bradley v. Lane (7th Cir. 1987), 834 F.2d 645, 650.

A claim that an actual conflict of interest prevented trial counsel from rendering effective assistance of counsel must raise issues or circumstances of constitutional dimension. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; United States ex rel. Bradley v. Lane (7th Cir. 1987), 834 F.2d 645, 650.) To obtain a new trial, defendant must show both a deficiency in counsel’s performance and prejudice resulting therefrom. People v. Weir (1986), 111 Ill. 2d 334, 337, 490 N.E.2d 1, citing Strickland v. Washington, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

Defendant’s assertion that his personal relationship with trial counsel led to an unfair result has no support in the record. Defendant relies upon several statements made by the public defender prior to trial which he asserts constitute a conflict of interest. Prior to trial, the public defender stated that he had not interviewed the State’s witnesses, but that he was planning to do so sometime before trial; he did not have gunshot residue tests performed on defendant’s car as a matter of trial strategy; and he may have avoided defendant because he found him “quarrelsome” and “troublesome.” Taken in their totality, these circumstances do not constitute.a conflict of interest on the part of trial counsel. See United States ex rel. Bradley v. Lane (7th Cir. 1987), 834 F.2d 645.

Moreover, even if trial counsel’s performance could somehow be shown to have been deficient (which defendant has failed to do), no prejudice resulted from any alleged conflict of interest. Defense counsel successfully argued motions in limine, successfully challenged prospective jurors, and made numerous objections during trial. Furthermore, the record does not reflect that the result of the trial would have been any different with different representation. (See People v. Schmidt (1988), 168 Ill. App. 3d 873, 522 N.E.2d 1317.) Thus, defendant was not denied effective assistance of counsel.

II

Defendant next argues that he was denied a fair trial because he was forced to exercise all the peremptory challenges to which he was entitled. Specifically, defendant maintains that the circuit court improperly refused to excuse for cause three jurors; consequently, he was forced to use his peremptory challenges to excuse those jurors.

The Supreme Court has held that peremptory challenges are not of constitutional dimension; rather, they are creatures of State law and a State may determine their number, purpose, and manner of exercise. (Ross v. Oklahoma (1988), 487 U.S. 81, 88, 101 L. Ed. 2d 80, 90, 108 S. Ct. 2273, 2278.) In Illinois, the circuit court is afforded broad discretion in voir dire. (People v. Johnson (1987), 162 Ill. App. 3d 952, 953, 516 N.E.2d 343.) Reversal of a conviction will not occur unless there has been an abuse of discretion which denies a defendant an impartial trial. (People v. Johnson, 162 Ill. App. 3d at 953.) Moreover, the circuit court’s determination of whether prospective jurors would be fair and impartial should not be set aside unless that determination was contrary to the manifest weight of the evidence. People v. Pecina (1985), 132 Ill. App. 3d 948, 954, 477 N.E.2d 811.

In the instant case, defendant does not argue that the empaneled jury was not fair or impartial. Moreover, defendant did not challenge for cause any of the veniremen who eventually sat as jurors. Although defendant argues that by being “forced” to use three peremptory challenges he was denied a fair trial, he offers no cases which support this contention. The cases he does cite support a different conclusion: People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705 (where the court held that a jury member, who stated during voir dire that he knew the victim, a witness, and the attorneys, was an impartial juror); People v. Jarosiewicz (1977), 55 Ill. App. 3d 1057, 371 N.E.2d 949 (where the court held that a venireman was properly found impartial even though he did not believe that a police officer could commit an unprovoked act of violence).

Although there are instances where a jury may be tainted by the inclusion of a venireman who states that he cannot be fair or impartial, reversible error results not from the defendant’s exhaustion of his peremptory challenges, but rather from the end result of an unfair jury. (See Ross v. Oklahoma (1988), 487 U.S. 81, 88, 101 L. Ed. 2d 80, 90, 108 S. Ct. 2273, 2278.) Because defendant was not burdened with an unfair and partial jury, he was not denied a fair trial based solely upon his exhaustion of his peremptory challenges.

Ill

Defendant next contends that he was denied a fair trial by the prosecutor’s improper comments during trial. Specifically, defendant complains about (1) the State’s asking a witness if she knew about defendant giving cocaine to all the little kids in the neighborhood, and (2) the State’s asking defendant if he had been previously shot by his wife for having sex with his child. In addition, defendant argues that certain remarks made by the prosecutor during closing argument were not supported by the evidence. Moreover, defendant maintains that the circuit court erred in conducting an improper investigation.

The mere occurrence of what may be improper remarks does not mandate reversal. (People v. Thomas (1990), 137 Ill. 2d 500, 561 N.E.2d 57; People v. Moody (1990), 199 Ill. App. 3d 455, 557 N.E.2d 335.) Even several statements, complained of as error, do not deny a defendant a fair trial where the jury is admonished that the statements are not evidence and that they are to be disregarded. (People v. Thomas, 137 Ill. 2d at 530.) Timely objection by defense counsel and an admonishment by the court will prevent error or render errors harmless, in the event that they occur. People v. Moody, 199 Ill. App. 3d at 466.

We recognize that the prosecutor’s question whether defendant gave cocaine to “all the little kids in the neighborhood” stemmed from the testimony at trial which established that defendant provided cocaine to the teenagers at the party. We also recognize that the prosecutor asked defendant if he was shot by his wife because defendant’s testimony established that he kept a gun in the house because he had been shot prior to the incident at bar. These questions, however, far exceeded any proper inquiry and were not supported by the evidence; moreover, both questions were improperly suggestive of other crimes.

The prosecutor’s questions concerning defendant’s alleged sexual activity with his child and giving cocaine to “kids” were clearly egregious examples of prosecutorial misconduct. Although objections were made and sustained, the impact that these types of comments have upon a trial cannot be overlooked. We have difficulty understanding why a prosecutor would jeopardize an otherwise fair trial with such prejudicial comments. Were it not for the fact that the evidence overwhelmingly favored conviction, we would unhesitatingly reverse and remand this case for a new trial.

However, the court promptly sustained objections to each complained-of question, struck it, and instructed the jury to disregard it. The court also promptly sustained objections to, and instructed the jury to disregard, the prosecutor’s argument that the State’s witnesses had told the police the same story they had told at trial. Moreover, the court gave the jury a written instruction to disregard testimony that the court had stricken and to ignore and disregard arguments not based upon the evidence at trial.

Notwithstanding the impropriety of the prosecutor’s remarks, it cannot be said that they resulted in substantial prejudice to defendant. (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 431 N.E.2d 1154.) To merit reversal, a prosecutor’s improper remarks must be of “substantial magnitude” when viewed in the context of the entire record. People v. Scott (1990), 194 Ill. App. 3d 634, 551 N.E.2d 288.

In light of the overwhelming evidence of defendant’s guilt in this case, the prosecutor’s improper remarks cannot be said to have constituted a material factor in his conviction. The absence of the improper remarks certainly would not have resulted in a different verdict. (See People v. Faysom (1985), 131 Ill. App. 3d 517, 475 N.E.2d 945.) Moreover, any error was harmless, particularly in light of the court’s admonishment and subsequent jury instruction to disregard any remarks stricken from the record. People v. Moody (1990), 199 Ill. App. 3d 455, 557 N.E.2d 335.

Defendant also argues that the court improperly denied his motion for a mistrial because the court based its ruling on its own independent investigation. Defendant relies upon the court’s statement that it queried a number of courtroom deputy sheriffs during the lunch hour and they told the court that they hadn’t heard the remark made by the prosecutor concerning defendant having sex with his child. Consequently, the court wrongfully assumed that the jury had also not heard the remark.

Although a defendant may be denied due process of law when the circuit court makes a decision based upon a private investigation (People v. Harris (1974), 57 Ill. 2d 228, 314 N.E.2d 465), the error, even of constitutional dimension, is rendered harmless if the evidence overwhelmingly favors conviction. People v. Lee (1987), 162 Ill. App. 3d 972, 516 N.E.2d 360.

In the instant case, it does not appear that the court’s “investigation” infringed upon defendant’s constitutional rights. After the prosecutor’s remark about defendant’s sexual abuse of his daughter, the court effectively cured any error by strongly admonishing the jury to disregard those remarks because they were “totally irrelevant and unproven, and unestablished.” The court further stated during the hearing on defendant’s motion for a mistrial: “I really think my response [to the jury] was strong and heavy, two or three or four different admonishments to the jury.” The complained-of “investigation” by the court occurred only after the remarks were stricken and admonishments made. Because those admonishments cured any error, the court’s inquiry did not infringe upon defendant’s constitutional rights. People v. Lee, 162 Ill. App. 3d 972.

IV

Defendant finally contends that the circuit court improperly sentenced him to 40 years in the Hlinois Department of Corrections. Specifically, defendant argues that the court erroneously believed that he was eligible for an extended term and, thus, his sentence must be reversed and remanded.

Defendant bases his contention upon the court’s statement:

“I don’t feel that an extended term should be applied *** because of the health situation of the defendant and because any substantial sentence is *** a death sentence on this defendant.”

Defendant interprets this statement as meaning that the court was under the mistaken impression that an extended sentence could be imposed and was thus improperly influenced by this belief.

Although defendant cites People v. Marquis (1977), 54 Ill. App. 3d 209, 369 N.E.2d 372, and People v. Hargis (1983), 118 Ill. App. 3d 1064, 456 N.E.2d 250, neither of these cases is persuasive. The circuit court in Marquis was under the mistaken belief that the defendant’s crime was a Class A misdemeanor when it was actually a Class B misdemeanor. (People v. Marquis, 54 Ill. App. 3d at 214.) In Hargis, the circuit court thought that a death sentence was within its discretion when, in fact, the maximum sentence was life. (People v. Hargis, 118 Ill. App. 3d at 1081.) Neither of these cases applies in the instant case because here, the sentencing was not pursuant to an incorrect offense classification nor was any error made as to the maximum sentence allowed by law.

A sentencing decision is a matter within the sound discretion of the court and will not be disturbed absent an abuse of discretion. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422; People v. Escobar (1988), 168 Ill. App. 3d 30, 46, 522 N.E.2d 191; see also People v. Kindelan (1986), 150 Ill. App. 3d 818, 502. N.E.2d 422 (where a 40-year sentence was not excessive after the trial court denied the State’s request for an extended term).) Because the circuit court bases its sentence upon the particular facts of each case, it is normally in a better position to determine the appropriate punishment. People v. Escobar, 168 Ill. App. 3d at 46.

In the instant case, the court, after considering evidence in mitigation and aggravation, specifically chose not to sentence defendant to an extended term. The record does not reflect that the circuit court abused its discretion in sentencing defendant to the maximum allowed by statute. Thus, there is no basis upon which to reverse defendant’s sentence.

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

Affirmed.

SCARIANO, P.J., and HARTMAN, J., concur.


author: PRESIDING JUSTICE SCARIANO

text:
    JACK DAVIS, Plaintiff-Appellee, v. GRACE STRAMAGLIO et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1-88-3469
    Opinion filed February 5, 1991.
    Rehearing denied March 6, 1991.

      Irving Slutzky, of Slutzky & Slutzky, of Chicago (Sidney Z. Karasik, of counsel), for appellants.
    David A. Novoselsky & Associates, of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellee.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Defendants appeal from the circuit court’s award of summary judgment to plaintiff Jack Davis (Davis) in his suit to quiet title to certain realty which he purchased at a judicial sale. Defendant Grace Stramaglio, who obtained a deed to the property after Davis had been awarded the sale, and her husband, defendant Richard Stramaglio, contend that the sale at which Davis made his purchase was invalid and that, consequently, she is the owner of the property.

On October 16, 1969, the City of Chicago (City) filed a demolition lien against lots 27 and 28 of Robbins’ subdivision of block 2, Chicago, and listed Daniel Salmen, Jr. (Salmen), among the defendants in its claim. In September of 1972, the City filed a complaint to foreclose on the lien, naming Salmen as the owner of the property. Salmen was personally served, but none of the defendants in the foreclosure case filed an appearance or an answer. On August 14, 1974, the trial court entered an order of default and decreed that the property be sold at a judicial sale. The City was the highest bidder for the property at the sale, and on January 20, 1975, after the sheriff filed his report of sale and distribution, an order was entered confirming the report. On July 16, 1975, the sheriff issued his deed to the City, but the property was erroneously described therein as lots 27 and 26, instead of lots 27 and 28. All other documents in these proceedings contained the correct description of the property.

On March 21, 1986, the City, citing that the sheriffs deed contained an incorrect legal description, filed a section 2 — 1401 petition (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401) and sought to (1) vacate the sheriffs sale and the order confirming the sheriffs report of sale and distribution, (2) void the sheriff’s deed, and (3) order the sheriff to conduct another sale. By order entered that same day, Judge George M. Marovich granted the City’s section 2 — 1401 petition in its entirety. Accordingly, notice of the second sale of lots 27 and 28 was published in the Chicago Daily Law Bulletin on April 1, 8, and 15, 1986. Davis was the successful bidder at the May 1, 1986, sale of the property. On May 15, 1986, the sheriff filed his report of sale and distribution and Judge Marovich confirmed the report. On November 9, 1986, the sheriff issued his deed to Davis.

In an affidavit filed in Davis’ suit to quiet title, defendant Grace Stramaglio alleged that in 1982 she leased from one Harold Fujimoto a portion of a garage building located on the property in dispute here. On December 5, 1986, Davis telephoned Stramaglio and informed her that he had purchased the property. Stramaglio immediately contacted her attorney, and after he conducted a title search on the property, she learned for the first time that Fujimoto had “no fee interest of record” in the property. Stramaglio further alleged that she bought Salmon’s interest, and that Salmen, as the record owner of the property, issued her a quit claim deed, dated February 12, 1987. Finally, she alleged that because she had no notice of the section 2 — 1401 proceedings or those that followed, she could not protect her interest in the property.

On July 15, 1987, Davis filed his complaint to quiet title against defendants alleging that Salmon’s quit claim deed gave Grace Stramaglio no interest in the property because his purchase terminated any interest that Salmen may have had. Defendants denied in their answer that Davis was the owner of the subject property; and on February 22, 1988, Grace Stramaglio filed a “counter-complaint to quiet title” in herself.

Both parties filed motions for summary judgment. Defendants argued that the City’s section 2 — 1401 petition had been filed more than two years after the entry of a final order and that, therefore, the court had no jurisdiction to enter the order to vacate the sale to the City. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401.) Defendants further alleged that inasmuch as the 1986 orders, the sheriffs sale and sheriff’s deed were void, Salmon still had title to convey to Grace Stramaglio.

The trial court granted Davis summary judgment on November 1, 1988, holding that the order approving the sheriff’s report of sale and distribution entered on January 20, 1975, was not final and would therefore not prevent the court from setting it aside and ordering another sale. The court also held that there was no evidence that the second sale failed to conform to the original judgment of foreclosure. Finally, the court held that the second sale cured the defects in the sheriff’s first deed, and that the conveyance of the property in Davis’ name and the recording of the sheriff’s deed prior to the date on which Grace Stramaglio recorded hers established valid title in Davis.

Defendants reassert their claim here that under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2— 1401), the court erroneously vacated the 1975 sale because the order pursuant to which the property was sold was a final one, and relief from final orders on the grounds listed in the statute must be sought within two years.

An order confirming a sheriff’s report of sale and distribution is a final one. (Calumet Federal Savings & Loan Association v. Markman (1964), 50 Ill. App. 2d 430, 438. See also Bank of Ravenswood v. Maiorella (1982), 104 Ill. App. 3d 1072, 1073.) Therefore, because the January 20, 1975, order approving .the sale and distribution was a final one, and relief therefrom was not sought until more than 11 years later, the bringing of a section 2 — 1401 petition was inappropriate.

However, although a section 2 — 1401 proceeding may have been the incorrect method of correcting the sheriff’s first deed, a “judgment may be sustained upon any ground warranted, regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct.” (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387; Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502.) Moreover, that a party seeks relief under an incorrect provision of law does not bar a court’s granting judgment under the appropriate legal principle. Board of Managers of Old Willow Falls Condominium Association v. Glenview State Bank (1989), 193 Ill. App. 3d 1057, 1061; Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 253.

It is a hoary principle of the common law that a court retains inherent power to enforce its orders and decrees. (Watson v. Reissig (1860), 24 Ill. 282; Mason v. Thomas (1860), 24 Ill. 286; Village of Gilberts v. Holiday Park Corp. (1986), 150 Ill. App. 3d 932, 936, citing Adam Martin Construction Co. v. Brandon Partnership (1985), 135 Ill. App. 3d 324, 326, and Cities Service Oil Co. v. Village of Oak Brook (1980), 84 Ill. App. 3d 381, 384.) The error implicated here is that although legally bound to do so, the sheriff did not carry out the court’s 1974 order which clearly and unmistakably decreed that he sell lots 27 and 28; instead, he sold lots “27 and 26,” an act which everyone concedes was an obvious typographical or clerical error. Nor does anyone contend that the sheriff had any authority or the discretion to disregard selling lot 28; much less did he have the legal authority to sell lot 26. Accordingly, we deem it inequitable to reward defendants, at an innocent plaintiff’s expense, sheerly because of the sheriff’s failure to faithfully execute a pure and simple ministerial duty, one which sheriffs have performed as officers of the court virtually since the beginnings of our equity jurisprudence. Here, it is abundantly clear that the March 21, 1986, order merely enforced the court’s prior judgments of August 14, 1974, and January 20, 1975, and that, therefore, the court had jurisdiction to enter the 1986 order. Village of Gilberts, 150 Ill. App. 3d at 936-37.

Moreover, no substantive rights of the defendants were affected by this procedure. (Mason v. Thomas (1860), 24 Ill. 286; Adam Martin Construction Co., 135 Ill. App. 3d at 326.) Defendant Grace Stramaglio claims in her affidavit that the sale should be set aside because as a tenant in possession she was not notified of the petition “to vacate and set aside the Sheriff’s sale of January 7, 1975, and to put the subject premises up for sale, nor did [she] receive[ ] any notice of any subsequent proceedings thereafter.” However, the decree of foreclosure merely required of the sheriff:

“[T]hat previous to sale he give public notice of the time, place and terms of said sale at least once a week in some secular newspaper of general circulation published in the City of Chicago, County of Cook, and State of Illinois, the first publication thereof to be at least twenty days prior to the date of said sale and that the Plaintiff or any of the parties to this cause may become the purchasers at such sale.”

Defendants do not contest the validity of the foreclosure decree, nor do they contend that the sheriff failed to comply with the notification provisions contained therein. Because, as noted earlier, courts have inherent authority to enforce their own valid orders (Village of Gil berts v. Holiday Park Corp. (1986), 150 Ill. App. 3d 932, 936), the foreclosure decree remained a valid and subsisting order after the first sale and the order confirming the report of that sale were vacated, and after the defective deed was voided. Further, because the sheriff had not yet properly complied with the decree to sell lots 27 and 28, its notice provisions remained applicable to the second sale. Illinois law does not require personal notice of a judicial sale. (Ill. Rev. Stat. 1985, ch. 110, par. 12 — 115.) Thus, the defendants’ claim that they were entitled to a different or more notice than that required by the foreclosure decree is without warrant.

Moreover, Grace Stramaglio’s claim to notice is exceedingly tenuous in light of the fact that there is nothing in the record to support her bald assertion that she was a tenant in possession. Although she alleges that she rented from Fujimoto, the record is barren of any indication as to what, if any, interest Fujimoto had in the property. In any event, assuming, arguendo, that Grace Stramaglio was a tenant in possession, “a defective or insufficient notice does not render the sale void, or even voidable, unless the purchaser had notice of the irregularity. [Citations.]” (City of Chicago v. Central National Bank (1985), 134 Ill. App. 3d 22, 28.) The Illinois Code of Civil Procedure is directly on point:

“Penalty for neglect of officer. If any sheriff or other officer sells any real estate by virtue of any judgment, otherwise than in the manner provided by law or without such previous notice, the officer so offending shall, for every- such offense, forfeit and pay the sum of $50, to be recovered with costs of the action by the person whose property is sold.
However, no such offense, nor any irregularity on the part of the sheriff, or other officer having the certified copy of the judgment for enforcement, shall affect the validity of any sale made under it, unless the purchaser had notice thereof.” (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 116.)

Defendants do not contend that Davis had any notice of any alleged defect in the proceedings relating to the second sale; hence, we conclude that the sale was valid under the statute. McGowan v. Goldberg (1917), 281 Ill. 547, 550-51; Palmer v. Riddle (1899), 180 Ill. 461, 464.

Finally, defendants allege that the sale of the property should be invalidated pursuant to First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App. 3d 901. But there, defendant sought to have a foreclosure and deficiency decree vacated, not a judicial sale. Because defendants do not contest the validity of the foreclosure proceeding itself, Brown is inapplicable here.

Accordingly, for all the foregoing reasons we affirm the judgment of the circuit court.

Affirmed.

HARTMAN and DiVITO, JJ., concur.


text:
    GUS TSOURMAS, as Special Adm’r of the Estate of Frances Tsourmas, et al., Plaintiffs-Appellants, v. K & K HEATING AND AIR CONDITIONING, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1-89-1737
    Opinion filed February 5, 1991.

      William R. Coulson and Timothy B. Carlmark, both of Cherry & Flynn, and Beverly, Pause, Duffy & O’Malley, both of Chicago (Robert 0. Duffy, Thomas J. Brophy, and Michael W. Rathsack, of counsel), for appellants.
    Edward M. Rubin and Richard J. Rosenblum, both of Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiffs Ann Yurinich (Yurinich) and Gus Tsourmas, as special administrator of the estate of Frances Tsourmas (Tsourmas), brought this action to recover for injuries which Yurinich and Tsourmas allegedly sustained to their hearts and nervous systems. The complaint alleged that a defective heating system at their workplace produced and distributed carbon monoxide, exposing plaintiffs and causing their injuries. At the close of plaintiffs’ case, the trial court directed a verdict in favor of defendants. The sole question on appeal is whether the trial court erred in granting the directed verdict.

Defendant Jack Yelnick (Yelnick) was the general contractor for the construction work performed on the workplace. The parties dispute the extent of Yelnick’s involvement in the heating aspect of the building. Plaintiffs contend that Yelnick was responsible for the sale and installation of the alleged defective heating system. Yelnick denies that he hired anyone to do heating work and that he did not install or take responsibility for installing a furnace.

Defendant K & K Heating and Air Conditioning, Inc. (K & K), is alleged to have been responsible for servicing and maintaining the heating system. Defendant Northern Illinois Gas Company (NiGas) is alleged to have conducted an inspection of the gas-fired equipment on the premises for leaks, including the furnace and the heating system. The heating system in question was located in the offices of Dr. William Gogan, at 7623 West 63rd Street, Summit, Illinois (the building), where Tsourmas worked for approximately 12 years and Yurinich worked for approximately 17 years.

In order to better understand how Tsourmas and Yurinich were allegedly injured, knowledge of Dr. Gogan’s office and furnace area is necessary. When the building was originally constructed, it was one large room. In late 1964 and early 1965, Yelnick remodeled the building for Dr. Gogan. He divided the one large room into a series of examining rooms in a straight line along the east side of the building with a corridor running along the west side of the building. Yelnick also installed a new dropped ceiling approximately two feet below the original plaster ceiling. This created a two-foot gap between the two ceilings, called a plenum.

As a part of Yelnick’s remodeling, the original furnace was removed and replaced with a gas-forced air furnace. New duct work was also added, including a new flue pipe, which connected the new furnace to the building’s chimney. Yelnick himself testified that it appeared the hole around where the Hue pipe entered the chimney had never been sealed.

In theory, the new heating system was to propel heat through the new supply duct in the plenum into the new examining rooms. In reality, however, the air from the rooms did not pass freely up through the new dropped ceiling into the plenum. In fact, the rooms were so tightly constructed by Yelnick that when the doors of the rooms were closed, the translucent panels under the light fixtures were drawn upwards to release the excess air pressure. Yelnick wired these panels down, which arguably restricted the passage of air even more. According to evidence adduced, without the free flow of air from the examining rooms through the new ceiling into the plenum, the plenum drew air from the next available source: the opening around the new supply duct leading into the furnace room.

As testified to by plaintiffs’ experts, Ted Sohn and Robert E. Davis, there were a number of defects in the construction and installation of the new heating system. Each of these defects was such that it caused carbon monoxide to be created and/or distributed throughout the building. Sohn stated that the release of carbon monoxide into the atmosphere of a building is the most serious danger from a gas heating system. Moreover, these defects were also identified as violative not only of the applicable standards in the heating industry for installation of gas-fired heating systems, but also of the applicable building codes in force at the time of remodeling. Yelnick, by his own admission, was not even aware of the provisions in these codes and made no effort to find out what they were. Furthermore, Yelnick had bricked up the two windows in the furnace room, which could have been potential sources of combustion air.

One of the defects identified in the testimony was the failure to seal the hole around the new flue pipe where it was inserted into the chimney. When Dr. Gogan and his full-time employees complained of symptoms consistent with carbon monoxide poisoning, Robert E. Davis was asked to examine the building and the air within it. This was in December 1980.

Davis entered the furnace room and quickly observed the gap in the flue pipe. He stated that such a hole in the chimney meant that the products of combustion, including carbon monoxide, would be allowed to enter the building instead of going out of the chimney. In order to check his observation, Davis went up on the roof, looked down the chimney, and saw the light from the furnace room shining through the hole. He testified that the hole created a particular problem because it would draw carbon monoxide into the furnace room, instead of releasing it. It was Davis’ expert opinion, as well as Sohn’s, that the lack of combustion air was not only a violation of the applicable codes and standards of the industry, but that it caused the heating system to produce levels of carbon monoxide higher than normal.

As a result of his inspection, Davis did two things. First, he told Dr. Gogan that there was a dangerous amount of carbon monoxide in the air and that the doctor’s office should be shut down until repairs could be made to allow for increased combustion air and to ensure the integrity of the chimney. Second, Davis went to his car to retrieve special instruments to confirm the suspicions he had after viewing the heating system. He used an infrared device to take air samples and took the samples back to his office and analyzed them. Based on his analysis, Davis concluded that there was present in the air between I, 000 and 5,000 parts-per-million of carbon monoxide and carbon dioxide combined. He stated that as of 1975, the Occupational Safety and Health Act standard for carbon monoxide was 50 parts per million. Because of the instrument he used, however, he was unable to determine specifically the specific amount of carbon monoxide alone.

Thereafter, Davis wrote Dr. Gogan a letter outlining the repairs that needed to be done to the office. Although Davis had personally told Gogan about the presence of carbon monoxide and its dangers, he did not specifically mention the words “carbon monoxide” in the letter. He stated that this was because he was concerned about Gogan’s legal liability.

In addition to his knowledge of the scientific principles of a heating system, Davis testified that it is part of training as a chemical forensic analyst to be aware of the symptoms exhibited by individuals when exposed to various chemicals. Davis observed the physical appearance of Dr. Gogan and his full-time employees and noted in them the subdermal rosiness characteristic of individuals who have been exposed to carbon monoxide.

Plaintiffs also produced two medical expert witnesses, Dr. Patrick J. Scanlon, the head of cardiology at Loyola University Medical Center, and Dr. Shirley Conibear, an expert in the field of occupational medicine. Both Dr. Scanlon and Dr. Conibear diagnosed injuries to the hearts of Tsourmas and Yurinich, caused by chronic exposure to carbon monoxide. Both doctors characterized the injuries as serious, painful, debilitating, and in the case of Yurinich, permanent.

Dr. Conibear stated that she based her opinion upon the objective physical findings that she herself made pursuant to numerous examinations of both Tsourmas and Yurinich. As a further basis, she administered a number of physical tests in order to rule out possible alternative causes of plaintiffs’ illnesses. Dr. Conibear also considered the nature and characteristics of the symptoms exhibited by Yurinich and Tsourmas in their medical histories and records. She also explained to the jury the significance to her diagnoses of the facts that these women had only their workplace as a common environment, that their conditions were episodic, and that they developed in a parallel fashion both physically and temporally. In addition, Dr. Conibear stated that she had considered Robert E. Davis’ report.

Dr. Scanlon told the jury that the chances that the heart problems suffered by these women were congenital, as opposed to being caused by an external source, were less than 1 out of 100. Dr. Scanlon was also aware of the expert findings of Mr. Davis with respect to the heating defects in the building.

The jury heard testimony of Tsourmas’ episodes of tachycardia, shortness of breath, chest pain, and general fatigue. Yurinich demonstrated the same symptoms. Further testimony was admitted which evidenced that Helen Paletto, the only other full-time employee of Dr. Gogan, exhibited similar symptoms. Likewise, Dr. Gogan himself experienced the same symptoms characteristic of exposure to carbon monoxide.

K & K was called in by Dr. Gogan to check and service the heating system on various occasions between April 1977 and September 1980. Despite testimony that the K & K serviceman was in the furnace room and examined areas where the defects were obvious, K & K did not report or repair the dangerous condition of the system. Similarly, Ni-Gas was called out to the building in 1978 to check for a reported gas leak. Again, testimony showed that the NiGas serviceman entered the furnace room and inspected it. While he repaired a natural gas leak in the front of the building, the NiGas inspector failed to detect or “red-flag” the dangerous condition of the system.

After five days of evidence, the trial court directed a verdict for defendants, ruling that plaintiffs had failed to introduce evidence of carbon monoxide poisoning sufficient to permit a jury verdict in their favor. The court did so on the ground that Robert E. Davis, prior to directing Dr. Gogan to make the necessary repairs, did not quantify his findings and opinion as to the precise carbon monoxide level in the air. Thus, the court held that there was no sufficient basis for Davis’ opinion. The court then reasoned that Drs. Scanlon and Conibear relied on Davis’ report, and that if none of them could determine whether toxic amounts of carbon monoxide were in the air, a jury should not be allowed to speculate as to that fact. It is from this ruling that plaintiffs appeal.

The standard which governs1 directed verdicts was enunciated in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504. As stated by the Illinois Supreme Court:

“[Vjerdicts ought to be directed *** only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick, 37 Ill. 2d at 510.)

Thus, where there exists a substantial factual dispute, or where the assessment of a witness’ credibility and the election between conflicting evidence may be decisive, a directed verdict is inappropriate. Anderson v. General Grinding Wheel Corp. (1979), 74 Ill. App. 3d 270, 393 N.E.2d 9.

It was pursuant to the Pedrick standard that the trial court directed a verdict for defendants. The basis for the court’s ruling was that plaintiffs’ expert, Robert Davis, failed to place a precise part-per-million measurement on the amount of carbon monoxide present in Dr. Gogan’s office. The absence of this sole piece of evidence, however, did not merit a directed verdict.

It is well established that experts are given more latitude than lay witnesses in expressing opinions. While it is true that an expert opinion must not be based on “mere conjecture,” an expert may draw inferences from facts which jurors are not competent to draw. (Forney v. Calvin (1975), 35 Ill. App. 3d 32, 340 N.E.2d 603.) These principles were brought into focus in Regas v. Linton (1979), 72 Ill. App. 3d 7, 390 N.E.2d 9.

In Regas, this court reversed a jury verdict for the defendants, after considering the issue of whether the trial court had properly excluded testimony of the plaintiff’s expert. This court held that the trial court should have permitted the expert to testify notwithstanding the fact that the expert had no personal knowledge of the existence of a substance at issue and the further fact that no one had testified to personal knowledge of its existence. Citing Forney, the court explained that in light of the expert’s knowledge, he should not be precluded from inferring from facts in evidence, other facts which his expertise assures him exist. Similarly, in the instant case, the jury should have been allowed to consider Davis’ testimony. He was clearly knowledgeable, as evidenced by his professional qualifications. Furthermore, he personally observed the building and staff. Thus, there is even more basis for reversal here than in Regas.

While a precise measurement would have lent more weight to Davis’ opinion, the absence of such quantification did not mean that his opinion was without sufficient basis. Davis’ extensive professional training as well as his careful examination of the premises warranted the admission of his opinions regarding the cause and presence of carbon monoxide. The presence or absence of quantification should not have determined whether the case was to be submitted to the jury.

It is the function of the trier of fact to draw reasonable inferences and conclusions from competent evidence, direct and circumstantial. (Beloit Foundry v. Industrial Comm’n (1976), 62 Ill. 2d 535, 343 N.E.2d 504.) In Beloit, the court held that expert medical testimony as to cause of death based on a probability was properly a matter for the trier of fact’s consideration. This was so even though there was no direct testimony as to cause of death.

In the instant case, the doctors’ opinions were based on more than probabilities. Both testified as to the precise cause of plaintiffs’ injuries, based on their medical expertise, knowledge of the patients’ histories, and physical examinations of them. Evidence was also adduced that the coincidence of both plaintiffs’ conditions being congenital was extremely small. This was not, as defendants suggest, “naked opinion.”

Subsequent to oral argument, Yelnick filed an additional pleading with this court seeking to supplement its argument on two points. First, Yelnick denies involvement in the installation of a furnace. It is undisputed that Yelnick was the general contractor for the construction work performed on the building. Whether or not he sold or installed the furnace personally, there was direct evidence that he wired down the ceiling panels and bricked up the window, contributing to the lack of air. Indeed, this was established by Yelnick’s own testimony. Once a duty has been established, it is the jury’s responsibility to decide whether that duty was breached. Ferentchak v. Village of Frankfort (1985), 105 Ill. 2d 474, 475 N.E.2d 822.

Second, Yelnick argues that the relevant statutes of repose bar the instant suit. This argument is without merit. The 12-year statute of repose for strict liability contained in section 13 — 213 of the Code of Civil Procedure is inapplicable. (Ill. Rev. Stat. 1989, ch. 110, par. 13— 213.) It applies only to causes of action in which the injury occurred on or after January 1, 1979, regardless of when the product entered the stream of commerce. In the instant case, there was evidence that the full-time staff experienced symptoms of carbon monoxide poisoning prior to January 1, 1979, even though the defect was not discovered and repaired until late 1980. Thus, it is reasonable to infer that the injury occurred prior to January 1, 1979. Strict liability counts in which the injury occurred before January 1, 1979, remain governed by the provisions governing negligence actions. The “discovery rule” therefore applies, and suit had to be filed within two years of the date the cause of action was discovered. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.) The cause was discovered in late 1980, this suit was filed on April 12, 1982, and therefore, the 12-year statute of repose does not operate to bar the strict liability count.

Similarly, the 10-year negligence statute of repose contained in section 13 — 214(b) of the Code of Civil Procedure does not apply. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(b).) This section was also enacted in 1979. Again, although we can infer from the evidence that the injury occurred prior to January 1, 1979, the defective nature of the furnace was not discovered until November 1980. Statutes of limitations are generally given prospective effect and not retroactive effect unless a legislative intent to the contrary is clearly manifested. (Costello v. Unarco Industries, Inc. (1986), 111 Ill. 2d 476, 490 N.E.2d 675; Herrerra v. Lester Engineering Co. (1983), 116 Ill. App. 3d 228, 452 N.E.2d 68.) Erdie v. Central Illinois Public Service Co. (1988), 175 Ill. App. 3d 1050, 530 N.E.2d 514, cited by Yelnick, has no bearing on this conclusion. In Erdie, the injuries occurred after the statute was enacted. In the instant case, they occurred before the enactment of the statute.

Viewing all of the evidence in the light most favorable to plaintiffs, it cannot be said that the jury could not have found for them. Even without a precise measurement from Davis, there was sufficient evidence to create a factual dispute. The trial court should not have deprived the jury of the opportunity to perform its rightful function. Since the court erred in directing a verdict for defendants, the cause must be remanded for a new trial.

Reversed and remanded.

SCARIANO, P.J., and HARTMAN, J., concur.


text:
    E & B MARKETING ENTERPRISES, INC., Plaintiff-Appellant, v. JAMES W. RYAN, Defendant-Appellee.
    First District (2nd Division)
    No. 1-90-0078
    Opinion filed February 5, 1991.

      Meyers, Kremin, Bledsoe & Tuohy, of Chicago (Michael N. Bledsoe and Luke T. Ohrn, of counsel), for appellant.
    Dowd- & Dowd, Ltd., of Chicago (Joel Ostrow and Michael E. Dowd, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff E & B Marketing Enterprises, Inc. (E & B), appeals the dismissal of its amended complaint against defendant James E. Ryan, M.D. (Ryan). The appeal presents as issues (1) whether the complaint was barred by res judicata, and (2) whether the circuit court erred in concluding that the contract sued upon was void.

E & B initially filed an action for an accounting in the chancery division of the circuit court of Cook County. That suit was dismissed for want of prosecution on February 4, 1988. On April 6, 1989, E & B filed this action alleging breach of contract in the law division.

The contract underlying this suit was executed on March 1, 1983. Pursuant to its terms, E & B, a marketing firm located in Des Plaines, agreed to promote by various marketing techniques the name and practice of Ryan, a medical doctor engaged in private practice in Des Plaines. In return for its services, E & B was to “receive a consultant’s fee of 10% on all billings collected by [Ryan] in connection with such referrals.” This marketing campaign was targeted primarily at insurance carriers.

The complaint alleged that E & B procured numerous corporate clients who referred their claims to Ryan, who made payments to E & B in accordance with the written agreement from March 1983 through May 1984. In May 1984, Ryan informed E & B that he would make no further payments under the contract. This suit followed.

After Ryan filed a motion to dismiss, the circuit court requested additional arguments on the legality of the contract. E & B thereafter submitted an amended response to the motion to dismiss, to which Ryan replied. Oral arguments were heard on November 29, 1989. At this hearing, E & B’s oral motion to file an amended complaint was granted. After hearing arguments of counsel, the circuit court found that the contract was void in that it constituted illegal fee-splitting which was prohibited by section 16(14) of the Medical Practice Act (Ill. Rev. Stat. 1985, ch. Ill, par. 4433(14)). Accordingly, the court granted Ryan’s motion to dismiss.

I

Ryan maintains that because E & B’s initial suit was dismissed, the complaint at issue in this case is barred on the basis of res judicata. The circuit court rejected the res judicata argument, and so do we. The initial action for an accounting was dismissed for want of prosecution; the subsequent breach of contract action was filed within the remaining statute of limitations period.

The Illinois Code of Civil Procedure states that if an action is dismissed for want of prosecution, a plaintiff may commence a new action within one year or within the remaining period of limitation, whichever is greater and regardless of whether the time limitation for bringing such action expires during the pendency of such claim. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217.) The statute of limitations on actions involving written contracts is 10 years. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 206.) E & B’s filing of the breach of contract complaint was plainly within the statutorily required period.

Furthermore, as E & B correctly notes, dismissal for want of prosecution “is not an adjudication on the merits, does not prejudice the case of the party against whom it is entered, and does not bar a subsequent suit on the same issues.” (Kraus v. Metropolitan Two Illinois Center (1986), 146 Ill. App. 3d 210, 212, 496 N.E.2d 1080.) Thus, because E & B promptly filed this action after the dismissal of the other suit and because there had been no adjudication on the merits, Ryan’s res judicata argument fails.

II

E & B contends that the circuit court erred in voiding the contract upon which its suit was based. It argues that its contract with Ryan did not amount to illegal fee-splitting and is not prohibited by section 16(14) of the Medical Practice Act (the Act) (Ill. Rev. Stat. 1985, ch. 111, par. 4433(14)). Ryan responds that the contract is in direct contravention of the Act and violative of public policy.

The Medical Practice Act is a series of regulations directed at physicians and administered by the Department of Registration and Education. It states, in pertinent part:

“The Department may revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to the license, certificate or state hospital permit of any person issued under this Act or under any other Act in this State to practice medicine, *** upon any of the following grounds:
* * *
14. Directly or indirectly giving to or receiving from any physician, person, firm or corporation any fee, commission, rebate or other form of compensation for any professional services not actually and personally rendered.” (Ill. Rev. Stat. 1985, ch. 111, par. 4433(14).)

Subsection 14 was added as an amendment to the Act on July 31, 1971. Though legislative debates from the Illinois House and Senate were not available for public recording and publication until October 1971, legislative intent can be derived from the plain words of the Act.

E & B contends that the instant contract is valid because it is not expressly prohibited by the Act. In support of its position, E & B draws an analogy between the statute at issue and section 28 — 7 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 28 — 7), which explicitly makes all gambling contracts void. E & B argues that because the legislature expressly set out its intention to invalidate gambling contracts, but did not expressly invalidate the type of contract involved here, there is a clear implication that the latter was not intended to be invalid. We disagree. A statute need not expressly declare a particular contract void to render it illegal under the regulatory scheme of the statute. Leoris v. Dicks (1986), 150 Ill. App. 3d 350, 501 N.E.2d 901; American Buyers Club of Mt. Vernon, Illinois, Inc. v. Grayling (1977), 53 Ill. App. 3d 611, 368 N.E.2d 1057.

E & B argues that the method by which it received payment from Ryan supports its contention that the agreement did not amount to illegal fee-splitting. It asserts that no direct solicitation of patients was involved; rather, its fees were derived from a percentage of the money which Ryan collected from insurance companies. The source of Ryan’s payment, however, is not material. The Act, in its plain terms, prohibits the receipt of any fee or commission, direct or indirect, for professional services not actually rendered. E & B’s receipt of money “indirectly” through insurance companies was in direct violation of the Act.

Public policy considerations also favor invalidating the instant contract. The evils of professional fee-splitting were discussed in Leoris v. Dicks (1986), 150 Ill. App. 3d 350, 501 N.E.2d 901. In that case, the court found that a contract to split fees was void because the best interests of the client were harmed. The same reasoning applies to the' instant case. The contract here required Ryan to pay a percentage of .his fees for surgery, physical therapy, and other services rendered. There is a danger that a doctor, knowing that he had to split his fees with one who did not render medical services, might be hesitant to provide proper services to .a patient. Conversely, unneeded treatment might be rendered just because of the need to split fees. In either case, the interests of the patient would be compromised.

As the court stated in Marvin N. Benn & Associates, Ltd. v. Nelsen Steel & Wire, Inc. (1982), 107 Ill. App. 3d 442, 446, 437 N.E.2d 900:

“An agreement is against public policy if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or is at war with the interests of society or is in conflict with the morals of the time.”

We conclude that the contract at bar violates public policy. Apart from the legality of physician advertising, payment may not represent a portion of each patient’s billing.

Finally, E & B maintains that since it was Ryan who suggested that its fee be based on a percentage of the total revenue which resulted from its marketing services, Ryan would be unjustly enriched by permitting him to avoid payment of the contracted-for fees. We reject this contention because of our conclusion that both the Act and public policy considerations mandate that the contract be declared void. Likewise, E & B’s argument that the instant contract was made only for the purpose of advertising and promoting Ryan’s business does not alter the fact that the result was fee-splitting for services not rendered by E & B, an effect violative of both the Act and public policy.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

SCARIANO, P.J., and HARTMAN, J., concur.

      The 1987 and 1989 volumes of the Illinois Revised Statutes state that the Medical Practice Act has been repealed. However, pursuant to the Regulatory Agency Sunset Act, the repeal is not effective until December 31, 1997. Thus, the statute, though not reported in the later volumes of the Illinois Revised Statutes, remains in effect. See Ill. Rev. Stat. 1989, ch. 127, par. 1904.9.