author: PRESIDING JUSTICE CERDA

text:
      In re CUSTODY OF D.A. (Mark Denofrio, Petitioner-Appellant, v. Ronald Kuc, Respondent-Appellee.
    First District (3rd Division)
    No. 1-87-3827
    Opinion filed August 1, 1990.

      Enrico J. Mirabelli, of Chicago, for appellant.
    Hammond Kubaszewski, of Chicago, for appellee.
    Mark S. Simon, of Chicago, guardian ad litem.

   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Petitioner, Mark Denofrio, appeals from an order of the circuit court of Cook County which dismissed his petition to establish paternity rights with D.A., a minor child. The petition was dismissed on the ground that it was barred by the two-year limitations period set forth in section 8 of the Illinois Parentage Act of 1984 (the Act) (Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)). On appeal petitioner claims that the statute is unconstitutional; that he was entitled to an evidentiary hearing; and that the guardian ad litem (GAL) did not act in the best interests of the minor.

Petitioner’s statement of facts does not comply with Supreme Court Rule 341(e)(6) in that the facts are not set forth “without argument or comment.” (113 Ill. 2d R. 341(e)(6); Wald v. Chicago Shippers Association (1988), 175 Ill. App. 3d 607, 529 N.E.2d 1138.) He also has failed to cite record citations. (113 Ill. 2d R. 341(e)(6).) While we point out these violations, they will not preclude our review of the issues on appeal in this instance.

D.A. was born on June 7, 1981, to Janice A., who died on February 22, 1986, in a CTA train accident. D.A. has been in the custody of Ronald Kuc, respondent and former husband of Janice A., throughout these proceedings. Both petitioner and respondent sought to establish a father-child relationship with D.A. and sought permanent custody of the child. Respondent was declared the child’s father by a judgment on November 20,1987.

Petitioner initially filed a custody petition for D.A. on May 16, 1986. By an agreed order he was allowed to amend, and he filed a parentage petition on his behalf on July 10, 1986. Respondent filed a custody petition and an affirmative defense. He eventually filed a parentage petition on his behalf on June 25, 1987.

Petitioner claimed to be the child’s father because he lived with Janice A. from June 1, 1980, until August 1, 1982, and had sexual intercourse with Janice A. during which time D.A. was conceived. Petitioner also claimed that Janice A. told him that he was the father. D.A. was baptized with his surname. Petitioner also claimed that he had visitation with the child when Janice A. was alive, and he contributed to the child’s support.

Respondent claimed that he was the child’s father because he and Janice A. had sexual intercourse in August and September 1980, during which time D.A. was conceived. They were married at that time and thus respondent said that he was presumed to be D.A.’s father under section 5 of the Parentage Act even though the judgment of dissolution entered on September 22, 1980, stated that Janice A. was not pregnant. (Ill. Rev. Stat. 1985, ch. 40, par. 2505.) He was also named as D.A.’s father on an amended birth certificate. Respondent further claimed to have had visitation with D.A. while Janice A. was alive, and he said that he contributed to the child’s support.

Pursuant to petitioner’s motion, the court ordered paternity blood tests of petitioner, respondent and D.A. After petitioner sought to be named as the child’s guardian, the court, appointed a GAL for the child who was also to act as her attorney. The GAL filed a parentage petition on D.A.’s behalf against both men. Count I alleged that respondent was her father, and count II alleged that petitioner was her father. Both men answered in the affirmative to the allegations pertaining to him. Petitioner also filed an affirmative defense to count I and a counter-parentage petition.

Both respondent and the GAL filed motions to dismiss petitioner’s parentage petition on the ground that the statute of limitations of the Act barred the latter’s claim. (Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(2).) Following a hearing on August 13, 1987, the court granted respondent’s motion to dismiss but also dismissed respondent’s parentage petition on its own motion because it too was barred by the statute of limitations.

Respondent filed a motion for psychological evaluation of petitioner and the child, but later withdrew it. The child was examined by Dr. Vita Krall, a psychologist, in July 1987 apparently after the GAL consented to the evaluation.

The GAL filed motions to dismiss petitioner’s counter-parentage petition and to voluntarily dismiss count II of D.A.’s parentage petition against petitioner. He claimed that it was in D.A.’s best interests to dismiss the petition against petitioner, and in support thereof attached an affidavit by Dr. Vita Krall. Dr. Krall had examined D.A. in July 1987 and found that she identified respondent as her psychological father; that she had no significant relationship with petitioner; and that she would suffer extreme, long-term, adverse psychological consequences if removed from respondent’s custody.

Pursuant to petitioner’s petition to disqualify the GAL, the court held a hearing on September 14, 1987. It found that the GAL had acted properly and in D.A.’s best interests. The court then found that petitioner’s counter-parentage petition was barred by the statute of limitations and dismissed count II of D.A.’s parentage petition against petitioner without prejudice. An order was entered on September 22,1987.

Subsequently, petitioner filed a petition to intervene, a complaint for declaratory judgment and preliminary injunction, and a formal demand upon, the court and the GAL to be named as the putative father. He attached the blood test results and paternity index to his demand. The court denied these pleadings in its order of November 20, 1987.

The record indicates that a hearing was held on November 10, 1987, wherein a prove up on the GAL’s motion for judgment on the pleadings was heard. There is no report of proceedings for this hearing on appeal.

Two judgment orders were entered on November 20, 1987, following a hearing. In one order respondent was declared D.A.’s father and awarded sole care, custody, control and education of her as being-in her best interests. The other order denied petitioner’s petition to intervene and other pleadings and provided that the GAL’s motion for judgment on the pleadings was granted. Fees and costs for the GAL were assessed. Petitioner appealed on December 18,1987.

Prior to addressing the merits on appeal, we must determine whether the appeal has been properly taken in order to invoke this court’s jurisdiction, although none of the parties have raised the issue. (Deerfield Management Co. v. Ohio Farmers Insurance Co. (1988), 174 Ill. App. 3d 837, 529 N.E.2d 243.) We note that petitioner’s brief filed on August 11, 1988, failed to comply with Supreme Court Rule 341(e)(4)(ii), effective August 1, 1988, in that his appellate brief contained no statement of jurisdiction. (134 Ill. 2d R. 341(e)(4)(ii); Voiland v. Warsawsky (1989), 182 Ill. App. 3d 332, 538 N.E.2d 764.) The August 13, 1987, order which dismissed petitioner’s parentage petition contained the language “[tjhis is a final and appealable order, and there is no just reason to delay its enforcement. Denofrio shall be granted additional time in which to file his notice of appeal until 30 days after the court’s ruling on the GAL’s motion for voluntary dismissal.” This language was used while other claims were pending and appears to be a Rule 304(a) finding. (107 Ill. 2d R. 304(a); but see Rauscher v. Albert (1985), 138 Ill. App. 3d 799, 485 N.E.2d 1362.) If a Rule 304(a) finding is made to an order which is in fact final, the affected party loses the right to appeal by waiting until the termination of the remainder of the case. (In re Johnson (1985), 134 Ill. App. 3d 365, 368, 480 N.E.2d 520.) Petitioner herein waited until the determination of all other claims before appealing this order.

Despite the trial court’s language, it apparently did not intend that the order was appealable by petitioner at that time. This fact is evidenced by the trial court’s subsequent statement in the order that petitioner had an additional 30 days to appeal following a determination on another claim between the parties. The additional language nullified any Rule 304(a) finding, and petitioner could not appeal until the other claim was decided. We note also that while the GAL’s motion for voluntary dismissal was granted in the order of September 22, 1987, the order specifically recited that it was not final until fees and costs for the GAL were determined. These were assessed in the November 20, 1987, order which incorporated the August 13, 1987, and September 22, 1987, orders. Therefore, petitioner’s appeal was timely.

In the first issue petitioner contends that the two-year limitations period provided in section 8 of the Act is unconstitutional under the fourteenth amendment of the United States Constitution (Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(2)).

Under section 8(a)(2), an “action brought on behalf of any person other than the child” is barred if brought outside the limitations period. (Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(2).) Petitioner contends that this section bars biological or putative fathers from maintaining an action to establish a relationship with the child if the action is not brought within the two-year statue of limitations while the child or the State is not similarly restricted by a two-year period. (Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(1).) He asserts that this statutory classification of persons other than the illegitimate child for whose benefit a paternity action is instituted is discriminatory. Petitioner claims that the statutory classification set forth in section 8 regarding putative fathers must be reviewed under the intermediate scrutiny standard of review. Clark v. Jeter (1988), 486 U.S. 456, 100 L. Ed. 2d 465, 108 S. Ct. 1910; Mills v. Habluetzel (1982), 456 U.S. 91, 71 L. Ed. 2d 770, 102 S. Ct. 1549.

In considering whether State legislation violates the equal protection clause of the fourteenth amendment, different levels of scrutiny apply to different types of classifications. A statutory classification, at a minimum, must be rationally related to a legitimate governmental purpose, while classifications based on race or national origin or affecting fundamental rights are given exacting or strict scrutiny. (Clark v. Jeter (1988), 486 U.S. 456, 461, 100 L. Ed. 2d 465, 471, 108 S. Ct. 1910, 1914.) Between the rational basis review and strict scrutiny, there is a level of intermediate scrutiny which generally applies to discriminatory classifications based on sex or illegitimacy. (486 U.S. at 461, 100 L. Ed. 2d at 471, 108 S. Ct. at 1914.) Intermediate scrutiny requires that the statutory classification be substantially related to an important governmental objective. (486 U.S. at 461, 100 L. Ed. 2d at 471, 108 S. Ct. at 1914.) Petitioner argues that the classification which bars his claim is not substantially related to an important governmental objective and is against the public policy of the Act.

Initially, the GAL argues in response that petitioner has waived this constitutional issue because he failed to timely raise it before the trial court. Without specifically addressing the arguments made by the GAL and petitioner in his reply brief, we deem that the issue has not been waived.

The GAL also asserts that the constitutional issue should be deemed waived because petitioner did not serve notice upon either the Attorney General or the State’s Attorney of Cook County as provided under Supreme Court Rule 19. (107 Ill. 2d R. 19.) At any rate, the GAL raised Supreme Court Rule 19 in an earlier motion before this court when he sought to compel petitioner to comply with the rule. This court denied the motion. Therefore, we do not find the constitutional issue waived.

A recent decision by another division of this court in Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 541 N.E.2d 1159, is dis-positive of the first issue. The petitioner in Klawitter challenged the two-year statute of limitations under the equal protection clause of the United States Constitution, and article I, section 2, of the Illinois Constitution. In analyzing the nature of the statutory classification of presumed or alleged fathers, the appellate court found that only minimal scrutiny need be accorded and a determination be made as to whether the classification bears some fair relationship to a legitimate governmental purpose and is rationally related to a legitimate State interest. Klawitter, 185 Ill. App. 3d at 782-83; Majidi v. Palmer (1988), 175 Ill. App. 3d 679, 530 N.E.2d 66.

In Klawitter the court reviewed the public policy and purposes of the Parentage Act. While the Act addressed the establishment of a parent-child relationship, its focus and main purpose centered on the interests of the illegitimate child. The court noted that the two-year limitations period did not apply to paternity suits brought by or on behalf of the child, but section 8(a)(2) of the Act applied to actions brought on behalf of persons other than the child. The court reasoned that the statute of limitations served its intended purpose, which was to avoid fraudulent or stale claims and to provide repose for defendants. Therefore, the court concluded that the statutory classification in section 8 of the Act is rationally related to a legitimate governmental purpose and does not violate equal protection. Klawitter, 185 Ill. App. 3d at 784; Majidi, 175 Ill. App. 3d at 683.

Although Klawitter addressed the constitutionality of the statute under the equal protection clause, we adopt its reasoning and conclusions in finding that section 8 does not violate due process. A due process analysis of a statute which does not affect a fundamental constitutional right requires only the rational-basis test as the level of scrutiny accorded the statute. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489 N.E.2d 1374.) The statutory classification herein does not infringe upon a fundamental right. (Klawitter, 185 Ill. App. 3d at 782; accord Majidi v. Palmer, 175 Ill. App. 3d 679, 530 N.E.2d 66.) The rational-basis test applied in Klawitter is the proper test for a due process determination. Klawitter found the classification in section 8 rationally related to a legitimate government interest. (Accord Majidi v. Palmer, 175 Ill. App. 3d 679, 530 N.E.2d 66.) Thus, it does not violate due process. See Bernier v. Burris (1986), 113 Ill. 2d 219, 497 N.E.2d 763.

While petitioner claims in his reply brief that a mother of an illegitimate child has many years to bring an action and a father does not, the contention is without merit. A mother bringing an action on her own behalf is subject to the statute of limitations of section 8 as well. Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(2); Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 541 N.E.2d 1159; In re Marriage of Ingram (1988), 176 Ill. App. 3d 413, 531 N.E.2d 97.

In the second issue, petitioner contends that the trial court should have held an evidentiary hearing to determine whether the limitations period of section 8 of the Act was tolled based upon equitable estoppel. The entire support for his argument is Cessna v. Montgomery (1976), 63 Ill. 2d 71, 344 N.E.2d 447, a case expressly overruled in Dornfeld v. Julian (1984), 104 Ill. 2d 261, 472 N.E.2d 431. The parties have raised various arguments concerning whether Cessna is applicable; however, they have failed to note that it is no longer valid. In essence, petitioner has presented his second issue without citation to pertinent authority and does not satisfy Supreme Court Rule 341(e)(7). (113 Ill. 2d R. 341(e)(7).) Bare contentions without argument or citation of authority do not merit consideration on appeal. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387.) However, since the trial court found that Cessna did not apply because equitable estoppel was not available to petitioner, we will address the equitable estoppel claim.

Petitioner argued during the hearing that, based upon certain actions by Janice A., he was lulled into believing that a paternity action was not necessary. Because of her actions, he claimed the statute of limitations should be tolled based upon equitable estoppel. The trial court found that equitable estoppel did not apply because the person that petitioner claimed acted to prevent his suit was not a party to the action.

Equitable estoppel is a doctrine developed in equity to prevent one party from asserting rights where assertion of the rights would work a fraud or injustice on another party. (Launius v. Najman (1984), 129 Ill. App. 3d 498, 504, 472 N.E.2d 170.) The doctrine has been applied to prevent a litigant, whose conduct has caused a party to delay filing suit until after the limitations period has run, from relying upon the limitations period as a bar to the action. (Neaterour v. Holt (1989), 188 Ill. App. 3d 741, 749, 544 N.E.2d 846.) The party who reasonably relied upon the other party’s conduct or representations in forebearing suit can invoke the doctrine. Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869.

In the instant case petitioner sought to bar the application of the statute of limitations because of the alleged conduct and representations of a nonparty. Janice A., deceased, was not a party claiming that petitioner’s action was barred by the statute of limitations. Equitable estoppel was not available to petitioner. The trial court properly denied an evidentiary hearing despite the GALA lack of objection because the doctrine was not applicable.

In his reply brief petitioner claims that recent case law under the Act does not explicitly discuss the “Cessna” doctrine but rather looks at whether petitioner filed his claim within a reasonable amount of time. He relies upon Sakellariadis v. Spanos (1987), 163 Ill. App. 3d 1084, 517 N.E.2d 324, wherein the trial court held an evidentiary hearing to determine whether the statute of limitations should be applied retroactively to bar the petitioner’s action. The mother was deceased in Sakellariadis, and two men were claiming parentage. Petitioner claims that he should have had an evidentiary hearing to determine whether he filed his action in a reasonable amount of time.

First, petitioner did not raise this issue before the trial court. The trial court did allude to the fact that the limitations period can be applied retroactively during the August 13, 1987, hearing. Petitioner’s argument below was based upon equitable estoppel and not the retroactive application of the limitations period which was the issue in Sakellariadis. An issue not presented to or considered by the trial court is deemed to be waived and need not be considered on review. (Harbor Insurance Co. v. Arthur Andersen & Co. (1986), 149 Ill. App. 3d 235, 500 N.E.2d 707.) Second, petitioner raises this argument for the first time on appeal in his reply brief contrary to Supreme Court Rule 341(e)(7). (113 Ill. 2d R. 341(e)(7).) Thus, the point can be considered waived. In re Estate of Jacobs (1989), 189 Ill. App. 3d 625, 545 N.E.2d 502.

In any event, petitioner’s argument fails based upon the record. The reviewing courts have determined that the statute of limitations of the Act applies retroactively. However, the limitations bar will not be applied if, under the facts of the case, the action was filed within a reasonable amount of time after the effective date of the Act. Klawitter v. Crawford (1989), 185 Ill. App. 3d 778, 541 N.E.2d 1159; Majidi v. Palmer (1988), 175 Ill. App. 3d 679, 530 N.E.2d 66; Sakellariadis v. Spanos (1987), 163 Ill. App. 3d 1084, 517 N.E.2d 324.

The Act was passed on September 12, 1984, and became effective July 1, 1985. D.A. was born on June 7, 1981. Petitioner filed a custody petition on May 16, 1986, but did not file his parentage petition until July 10, 1986. The parentage petition was filed about five years after D.A.’s birth, about 22 months after the Act was passed and over 12 months after it was effective. (Klawitter, 185 Ill. App. 3d at 787.) We do not find the delay of one year and 10 days to file a paternity action a reasonable amount of time under the facts of this case. Sakellariadis, 163 Ill. App. 3d at 1089.

Nor do we find that petitioner’s reason for delaying suit, the actions of Janice A., rendered the delay reasonable. Although the mother may have told him that he was the father and allowed him visitation, petitioner was free to initiate an action whereby he could obtain legal recognition of his rights as D.A.’s father. (Majidi, 175 Ill. App. 3d at 684.) Petitioner relies on the baptismal certificate which showed D.A. with his surname. However, the record shows the use of the mother’s surname for the child on petitioner’s insurance enrollment as early as February 1982. The bank account also bears the mother’s surname for the child at least as early as June 1983. The record also indicates the petitioner was concerned with his relationship with the child and mother in June 1983. These factors should have suggested to petitioner that legal action was necessary to establish his paternity rights. (See Majidi, 175 Ill. App. 3d 679; Sakellariadis, 163 Ill. App. 3d 1084.) He was free to file an action under other statutory provisions for several years prior to the new Act. (Klawitter, 185 Ill. App. 3d at 787.) The circumstances of the delay do not render it reasonable, particularly since petitioner’s reason for the delay could have continued if not for Janice A.’s death beyond the two-year period of limitations which would have conclusively barred the action. (Majidi, 175 Ill. App. 3d at 684; Sakellariadis, 163 Ill. App. 3d at 1090; see Mega v. Holy Cross Hospital (1986), 11 Ill. 2d 416, 490 N.E.2d 665.) Therefore, petitioner’s delay in bringing suit was not reasonable, and the statute of limitations was properly applied.

In his last issue petitioner claims that his petition to disqualify the GAL should have been granted. He claims that the GAL’s duties were limited to the issues of support and custody under section 506 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 506). Since the sole issue before the court was paternity, he argues that no GAL was necessary until that issue was resolved. Citing LeHew v. Mellyn (1985), 131 Ill. App. 3d 314, 475 N.E.2d 913, petitioner asserts that the GAL exceeded his authority and did not act in D.A.’s best interests because his actions denied D.A. a determination of her biological father.

Courts have inherent equitable power to appoint a GAL for minors interested in litigation. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96.) Section 7(c) of the Act provides that “[i]f any part is a minor, he or she may be represented by his or her general guardian or a guardian ad litem appointed by the court.” (Ill. Rev. Stat. 1987, ch. 40, par. 2507(c).) If a child’s interests are potentially in conflict with the parent’s or the child’s interests are not properly represented, it is the duty of the trial court to appoint a GAL to safeguard and protect the child’s interests. (In re Marriage of Klebs (1990), 196 Ill. App. 3d 472.) Other appellate courts have found that the appointment of a GAL was necessary under the circumstances to protect the minor’s interests. Majidi v. Palmer (1988), 175 Ill. App. 3d 679, 530 N.E.2d 66; McDonald v. McGowan (1987), 163 Ill. App. 3d 697, 516 N.E.2d 934.

Therefore, the trial court had the inherent power and statutory authority to appoint a GAL for the child. It exercised that authority properly under the circumstances of this case. The child was the subject of two separate paternity actions by two men claiming to be her father. In addition, both men had asked for permanent custody of the child. The child’s mother was deceased. The appointment of a GAL to represent the child’s interests was a proper exercise of the court’s power.

Next, we address the GAL’s argument that petitioner is deemed to have admitted certain allegations in D.A.’s motion to dismiss by not specifically denying them. The third issued raised by petitioner concerns the denial of his motion to remove the GAL on the basis, among others, that the GAL exceeded his authority. This motion was heard and decided prior to the time petitioner’s counter-petition was dismissed and the voluntary dismissal of count II against him. In view of the nature of the issue presented, we do not find the GAL’s argument regarding petitioner’s admissions dispositive of petitioner’s claim of error.

Turning to the main aspect of the third issue, we must determine whether the GAL exceeded his authority. The GAL has the authority to bring a petition to determine the existence of a father and child relationship on behalf of the minor. (McDonald v. McGowan (1987), 163 Ill. App. 3d 697, 700, 516 N.E.2d 934.) The GAL shall make the determination to file a paternity action if he finds that such action is in the best interests of the child. (Majidi v. Palmer (1988), 175 Ill. App. 3d 679, 685, 530 N.E.2d 66; McDonald, 163 Ill. App. 3d at 700.) However, the trial court must exercise supervision over the GAL to see that no interest of the minor is prejudiced. Majidi, 175 Ill. App. 3d at 685; McDonald, 163 Ill. App. 3d at 700.

In the instant case, the GAL had the authority to file a paternity action on behalf of D.A. if such action was in her best interests. (McDonald, 163 Ill. App. 3d at 700.) His authority was not limited to questions of custody, support and visitation. He also had the authority to not file any paternity action if such action was in D.A.’s best interests based upon our reading of Majidi and McDonald. Therefore, the GAL could file a paternity action on behalf of D.A. against respondent and not file such action against petitioner, if such action was in D.A.’s best interests.

Petitioner argues that it is in D.A.’s best interests to know who her biological father is. (LeHew v. Mellyn (1985), 131 Ill. App. 3d 314, 475 N.E.2d 913.) However, implicit in the Majidi and McDonald opinions, as well as Klawitter, is the fact that a determination of a child’s biological father through a paternity action may not always be in the child’s best interests.

The petitioner in LeHew claimed to be the child’s biological father and sought a paternity determination as well as visitation rights. The court stated that the child’s interests would be furthered by knowledge of her biological father’s identity, citing inheritance disputes as a reason. LeHew was decided prior to the effective date of the Act and concerned a paternity claim which would have been timely under the Act. We do not read LeHew to require that a child’s interests are always served by knowledge of her biological father.

Section 10 of the Act allows the trial court to conduct a pretrial conference. (Ill. Rev. Stat. 1987, ch. 40, par. 2510.) On the basis of information from the conference, the court shall evaluate the probability of determining the existence or nonexistence of the father-and-child relationship at a trial, and whether a judicial determination of the relationship is in the best interest of the child. (Ill. Rev. Stat. 1987, ch. 40, par. 2512.) The court shall then make an appropriate recommendation for settlement.

The Act and case law indicate that a paternity determination turns on the best interests of the child. Based upon the record, the trial court examined the actions of the GAL with respect to the best interests of D.A. A hearing was held on petitioner’s motion to disqualify the GAL. The trial court found that the GAL had the authority to voluntarily dismiss the paternity action against petitioner in D.A.’s best interests.

The evidence indicated that it would not have been synonymous with the child’s interests to deprive her of the emotional support of the man she has known as her father, respondent, by filing a paternity action against petitioner. (See In re Marriage of Klebs (1990), 196 Ill. App. 3d 472.) We also note as further evidence of the trial court’s consideration of D.A.’s interests that a hearing was held on her parentage petition against respondent. Petitioner has failed to provide a record of that hearing on appeal. Therefore, we presume that the trial court’s order was in conformity with established legal principles and had a sufficient factual basis. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) We find that the GAL, under the supervision of the trial court, filed the parentage petition against respondent in the best interests of D.A. and dismissed the parentage petition against petitioner.

The other matters raised by petitioner regarding the removal of the GAL are set forth as statements without argument or citation of authority. We deem these issues waived. Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387.

Based upon the foregoing, the judgment of the circuit court is affirmed.

Affirmed.

WHITE and FREEMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McMORROW

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL KEMBLOWSKI, Defendant-Appellant.
    First District (4th Division)
    No. 1-87-3094
    Opinion filed August 2, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James Fitzgerald, and Jeanne A. Morrow, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant Daniel W. Kemblowski was convicted of four counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(a)) and sentenced to concurrent terms of 10 years’ imprisonment for each offense. On appeal, he argues that his convictions should be reversed because the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt. Defendant also asserts that he should receive a new trial because the State was erroneously permitted to introduce evidence that complainant is a lesbian, her marriage has never been consummated, and her husband is a homosexual, all of which should have been excluded pursuant to the Illinois rape shield statute. (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 7(a).) Defendant also argues that two counts of aggravated criminal sexual assault should be vacated, since the record reveals only two acts of sexual conduct occurred.

We conclude that the Illinois rape shield statute prohibits the State’s introduction of evidence regarding the complainant’s lesbianism and the failure to sexually consummate her marriage, and because we determine that the admission of this evidence prejudiced defendant at trial, we reverse and remand.

Defendant was convicted for having committed aggravated criminal sexual assault upon S.W. on May 30, 1986. Both the complainant and defendant testified at trial, their versions of the events preceding the assault shared many similarities, and the defendant’s defense at trial was that S.W. had consented to engaging in sexual relations with him. Thus, the instant cause presents what is commonly referred to as an accusation of “date rape.” See People v. Sandoval (1990), 135 Ill. 2d 159, 552 N.E.2d 726.

The encounter between S.W. and defendant began at a tavern in East Dundee, Illinois. They had never met before and struck up a conversation. Defendant mentioned to S.W. that he had recently arrived in Illinois from Florida and that he was staying at a particular apartment complex in Keeneyville. After having several drinks together, defendant offered to take S.W. on a ride on his Harley Davidson. S.W. asked a few of the bar patrons, one of whom she had met on a prior occasion and all of whom she had seen in defendant’s company earlier in the evening, if defendant was “cool.” These individuals told her that he was, and S.W. therefore agreed to take a ride on defendant’s motorcycle. S.W. testified at trial that she told defendant she wanted to return to her car, also parked outside the bar, after going on the motorcycle ride.

Defendant and S.W. went on the motorcycle ride, and then stopped at another tavern known to be frequented by motorcycle bikers. At this second bar, defendant and S.W. had several drinks together and both ingested some cocaine bought by defendant. While in the bar, S.W. met another biker who took her on a short ride on his Harley Davidson. She testified at trial that she never told the police, after the incident, that she had ingested cocaine or ridden with the second biker while at the tavern.

Defendant and S.W. left this second bar after approximately an hour, and defendant drove to a nearby forest preserve. S.W. testified at trial that she thought defendant was returning to the tavern, where they met, so that she could return to her car. She also testified that defendant told her the reason for stopping at the forest preserve was because he was having problems with his motorcycle. S.W. stated at trial that she became frightened and repeatedly told defendant she wanted to leave, but that defendant told her not to become concerned. S.W. testified that defendant drove the motorcycle to a pavilion in the forest preserve, where he informed S.W. of his intention to engage in various sexual acts with her.

S.W. stated that she repeatedly told defendant “no, no *** let’s get out of here *** you don’t understand,” when defendant initially informed her of his intentions. She testified, over defendant’s objection, that by these remarks she meant that she was “gay.” She stated that defendant then repeatedly hit her on the head and face, and threatened her with violence at knifepoint to commit the various sexual acts demanded of her by defendant. S.W. testified that after the alleged assaults, defendant apologized for his behavior, told S.W. to get dressed, suggested that she clean herself at a nearby water pump, and drove S.W. back to her parked car. He then immediately drove away.

S.W. testified at trial that she followed defendant in order to obtain his license plate number. She then drove home, telephoned a friend, and told the friend that she had been raped. Police were notified, and S.W. was taken to a nearby hospital. S.W. later identified defendant as her assailant in a photo array and in a police station lineup. The medical physician who examined S.W. after the incident testified inter alia that S.W. had bruises on her right temple, left cheek, left side of the forehead, and abrasions to the pelvis, one knee, and shoulder. He stated that these injuries were consistent with S.W. having been struck more than three times, and that in his experience, the injuries were not common to consensual sexual intercourse. He also stated that the injuries were consistent with a fall, although not a fall from a moving motorcycle.

S.W. testified at trial that she has never “sexually consummated” her marriage. At the conclusion of the State’s case in chief, although the defendant stipulated that S.W.’s husband was a homosexual, he objected to the admission of the stipulated fact into evidence. The court admitted the evidence of S.W.’s husband’s homosexuality over the objection of defendant.

Defendant testified at trial that S.W.’s involvement in sexual relations with him was consensual. He explained that her physical injuries resulted when the motorcycle, which weighed approximately 800 pounds, fell over while both defendant and S.W. were seated thereon and the motorcycle was not moving. Defendant stated that once they had righted the motorcycle and had gotten back on the motorcycle, S.W. again caused the vehicle to fall in the opposite direction. Defendant testified that he blamed S.W. for the falls, and “slapped” her a few times on the face after he had pulled her from the motorcycle. Defendant indicated on photographs taken of the motorcycle the places where the vehicle had been damaged as a result of these falls. He also explained that S.W. had become angry at the forest preserve when she learned that defendant had not bought more cocaine for their use after engaging in sexual intercourse.

Based upon this evidence, the jury found defendant guilty of four counts of aggravated criminal sexual assault, and the court sentenced defendant to four concurrent terms of 10 years’ imprisonment. Defendant’s timely appeal followed.

The defendant argues that the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt of the charges of aggravated criminal sexual assault. We have closely reviewed the evidence and find sufficient evidence to sustain the jury’s findings of guilt. In contrast to People v. Wright (1986), 147 Ill. App. 3d 302, 497 N.E.2d 1261, and People v. Jackson (1989), 178 Ill. App. 3d 785, 533 N.E.2d 996, the testimony of the complaining witness in the case at bar did not verge on the incredible, nor did her testimony contain serious or glaring inconsistencies.

Defendant also asserts that the trial court committed reversible error when it permitted the State, over defendant’s objection, to present evidence that S.W. is a lesbian, that she has never sexually consummated her marriage, and that her husband is a homosexual. At the time of defendant’s trial, the Illinois rape shield statute, in pertinent part, provided:

“a. In prosecutions for aggravated criminal sexual assault, *** the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” Ill. Rev. Stat. 1985, ch. 38, par. 115-7(a).

In People v. Sandoval (1990), 135 Ill. 2d 159, 552 N.E.2d 726, the Illinois Supreme Court stated that the language of the rape shield statute “is clear and unambiguous; it leaves no room for introduction of reputation or specific act evidence from any party in the action” and that “a review of the legislative history supports a construction which prohibits anyone from introducing evidence of the victim’s sexual history unless it relates to the relationship between the victim and the accused.” (Emphasis in original.) (135 Ill. 2d at 171.) In light of Sandoval, the evidence regarding S.W.’s sexual preferences and her failure to consummate her marriage with her homosexual husband should have been excluded in accordance with the Illinois rape shield statute.

The State contends that this evidence was properly admitted because it pertained to S.W.’s “status” rather than to her past sexual activities with men other than defendant. The State refers us to no reported Illinois decision that draws the distinction between sexual “status” and sexual “activities” as suggested by the State herein. We also note that the Illinois Supreme Court in Sandoval made no exception to the rape shield statute by virtue of the complaining witness having a “sexual status” as urged by the State on appeal. We decline to adopt the State’s position that a complaining witness’ admission to being a lesbian should be characterized as a type of sexual “status,” since this admission, by definition, pertains to the witness’ sexual activities with another of the same gender. Consequently, we hold that the rape shield statute in aggravated sexual assault cases precludes admission of evidence that the victim was a lesbian, that a marriage was not sexually consummated, or that a spouse is homosexual.

We also conclude that the erroneous admission of this evidence was prejudicial to defendant and necessitates a new trial of defendant’s guilt. The pivotal issue at trial was whether S.W. consented to sexual relations with defendant during the incident in question. Resolution of the credibility of S.W. and defendant with respect to this issue was the central responsibility of the jury upon its deliberation of defendant’s guilt (see, e.g., People v. Sales (1986), 151 Ill. App. 3d 226, 502 N.E.2d 1221), and S.W’s avowed preference for sexual activities with women necessarily affected the jury’s assessment of whether S.W. agreed to sexual activities with defendant. The testimony of S.W. and defendant was substantially similar in many important respects, except with regard to whether S.W. consented to intimate relations with defendant. Also, the injuries suffered by S.W. did not overwhelmingly prove that S.W. did not consent to the sexual acts. Consequently, we cannot say that the erroneous admission of this evidence did not prejudice defendant’s defense at trial.

In view of this disposition, we need not and do not address defendant’s challenge to the sentences he received.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial.

Reversed and remanded.

JIGANTI and JOHNSON, JJ., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE DIAZ, Defendant-Appellant.
    First District (5th Division)
    No. 1-88-2739
    Opinion filed August 3, 1990.

      Ira A. Moltz, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. McCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

After a bench trial, Jose Diaz (Diaz) was convicted of two counts of criminal sexual assault, two counts of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse. Diaz committed these acts on his own daughter. Diaz was sentenced to 10 years with the Illinois Department of Corrections. On appeal Diaz charges (1) that he was not proved guilty beyond a reasonable doubt, (2) that the trial court erred in finding an eight-year-old child competent to testify, (3) that the trial court erred in allowing testimony of alleged prior sexual conduct between the defendant and his daughter, and (4) that his sentence was excessive.

For the following reasons, we affirm the decision of the trial court.

A brief rendition of the facts is as follows. At trial, the victim testified to the following facts. On the evening of January 3, 1988, the victim, the eight-year-old daughter of the defendant, was sleeping along with her three brothers on the dining room floor of her grandparents’ home. She stated that her father came by and took off her underwear and shorts, leaving her still wearing her dress. Shortly thereafter her father woke her up and told her to follow him into the bathroom. Although the victim’s testimony graphically described the acts that followed, we do not feel it necessary to reiterate the disturbing details here. Subsequently her father told her to go down to the basement and she did. After a while, when no one came to the basement, she went back upstairs to the kitchen to ask her father if she could go to bed. He told her that she could not go to bed. Her father told her to bend over and put his hand between her legs. He stroked her and then put his finger inside her vagina and had her suck his finger. At this point in time, the defendant’s wife, the victim’s mother, entered the kitchen and said, “Jose, I thought that’s what you were doing.” The victim’s mother ran to awaken her parents and called the police. The police subsequently arrived and arrested the defendant. The victim was taken to the hospital where, after being seen by a doctor, she talked to two detectives. At trial the principal witnesses for the State were Diaz’s abused eight-year-old daughter and his ex-wife.

Diaz’s first contention is that he was not proven guilty beyond a reasonable doubt because there was no medical evidence documenting the sex abuse and the testimony of his eight-year-old daughter (the victim) was not consistent "with that of her mother.

The mother of the victim is the ex-wife of Diaz. She and Diaz had four children together. She was also the one who first reported Diaz’s conduct to the police. She testified as an eyewitness to one of the occurrences. Diaz attempted to paint her as a disgruntled ex-wife who sought money from him to drop the charges. She is also described as the one who dominated her daughter, the victim. Diaz argues that this fact, coupled with the absence of medical testimony, does not prove him guilty beyond a reasonable doubt.

The discrepancy between the mother’s and daughter’s testimony relating to the daughter’s reporting the incident, plus the alleged bias, is the key to Diaz’s argument that he was not proved guilty beyond a reasonable doubt. Although medical testimony is of value in cases of sexual abuse, even where there is no such testimony, the testimony of the victim alone will support a conviction unless that testimony is unbelievable as a matter of law. (People v. Patterson (1980), 90 Ill. App. 3d 775, 413 N.E.2d 1371.) In this case we cannot hold that the young victim’s testimony against her natural father was unbelievable as a matter of law. She testified in a great deal of specifics and details to the unnatural acts her father inflicted upon her. Her mother corroborated some of those details.

Allegations of sexual misconduct are easily made, hard to prove, and harder to defend. (People v. Nunes (1964), 30 Ill. 2d 143, 146, 195 N.E.2d 706, 707.) Accordingly, in cases where a defendant convicted of sexual abuse denies the charge, the conviction will be upheld only where the complainant’s testimony is clear and convincing, or where it is substantially corroborated by other evidence. (People v. Server (1986), 148 Ill. App. 3d 888, 895, 499 N.E.2d 1019, 1024; People v. Cregar (1988), 172 Ill. App. 3d 807, 819, 526 N.E.2d 1376, 1385; People v. Douglas (1989), 183 Ill. App. 3d 241, 538 N.E.2d 1335.) “The complainant’s testimony need not be unimpeached, uncontradicted, crystal clear, or perfect to be clear and convincing.” (People v. Findlay (1988), 177 Ill. App. 3d 903, 911, 532 N.E.2d 1035, 1041; People v. Douglas (1989), 183 Ill. App. 3d 241, 251, 538 N.E.2d 1335.) As long as the discrepancies do not detract from the reasonableness of the complainant’s story as a whole, it may be found clear and convincing. People v. Findlay (1988), 177 Ill. App. 3d 903, 911, 532 N.E.2d 1035, 1041.

Defendant alleges that the victim stated he was standing when he had his hand between her legs whereas he also alleges that the ex-wife’s story was that the defendant was sitting in a chair listening to music. The daughter never mentioned the headphones. The defendant asserts that this is not a matter of two witnesses differing over a minor detail, but rather that this is the heart of the State’s case. A review of the record indicates that the testimony of the two witnesses focused on whether defendant was facing his victim, not whether or not he was standing. Both parties testified that the victim was standing with her back to her father. The victim did not testify as to whether her father was standing or sitting. Slight discrepancies also existed in the testimony of the mother and daughter as to when they discussed the incident. However, despite some discrepancies, the mother’s and the daughter’s testimony as to Diaz’s conduct was clear and convincing. (People v. Douglas (1989), 183 Ill. App. 3d 241, 538 N.E.2d 1335.) The young victim’s testimony set forth graphic details of the acts her father performed. The victim’s mother corroborated many details of the second incident as an eyewitness. During their respective testimony, the trial judge was able to assess the demeanor and credibility of the victim and her mother. Accordingly, we must sustain the trial judge, who heard the testimony and had the primary duty to weigh the questions raised by Diaz as to interest, bias and prejudice.

In his second point, Diaz claims that the trial court improperly concluded that the child victim was competent to testify. Diaz’s point on this issue is that the evidence indicates that the daughter’s testimony was influenced by her mother. The appropriate standard of proof in the case of a minor who is called as a witness is whether the trial judge abused his or her discretion. (People v. Brown (1972), 52 Ill. 2d 94, 105, 285 N.E.2d 1, 8.) In determining whether a witness is competent to testify, a trial court is to consider four criteria:

(1) the ability of the witness to receive correct impressions from his senses;
(2) the ability to recollect these impressions;
(3) the ability to understand questions and express answers; and
(4) the ability to appreciate the moral duty to tell the truth.

(People v. Seel (1979), 68 Ill. App. 3d 996, 1004, 386 N.E.2d 370, 376.) Applying these factors to the instant case, we believe the judge properly found the victim competent to testify. The competency of a minor witness is determined not by her chronological age but by the degree of intelligence of the child. (People v. Garcia (1983), 97 Ill. 2d 58, 454 N.E.2d 274, cert. denied (1984), 467 U.S. 1260, 82 L. Ed. 2d 856, 104 S. Ct. 3555.) Once the judge determines that a minor is competent to testify, any confusion or contradiction in later testimony only goes to the minor’s credibility and does not affect his competency to testify. (In re Cruz (1979), 76 Ill. App. 3d 565, 395 N.E.2d 388.) In this case the character of the victim’s subsequent testimony tended to confirm that she was competent. Unless testimony at trial establishes that the witness did not meet the criteria for competency, that testimony cannot establish that a determination of competency constituted an abuse of discretion. People v. Seel (1979), 68 Ill. App. 3d 996, 1004, 386 N.E.2d 370, 377.

Based on the above standard, we must affirm the trial judge’s conclusion permitting the daughter to testify. Prior to permitting the daughter to testify, the trial judge questioned her about telling the truth. The daughter’s responses indicated that she was taught about the truth and knew she would be punished if she did not tell the truth. Diaz’s counsel asked her if her mother had ever told her something that was not the truth. The daughter replied no. The defense counsel then asked:

“Q. If she ever told you something that would be the truth, is that right?
A. Yes.”

Defense counsel attempts to equate the fact that because the daughter believed her mother, truth was determined by the mother. Such an analysis is completely unjustified absent something in the record indicating that the mother lied to the daughter and the daughter believed her despite the lie. There is nothing in the record establishing that either the mother ever lied to the daughter or, in fact, the mother lied about the father’s conduct. At best Diaz creates an inference that is unsupported by the record.

Diaz ties this argument with the fact that at a preliminary hearing there was no finding of “probable cause.” The sole purpose of a preliminary hearing is to establish probable cause. (People v. Horton (1976), 65 Ill. 2d 413, 358 N.E.2d 1121.) Its use to impeach witnesses or show their bias or prejudice would only be relevant if the proceedings or part thereof were made a matter of appellate record. (People v. Morgan (1977), 69 Ill. 2d 200, 370 N.E.2d 1063.) Since the proceeding or parts thereof have not been made a matter of record on this case, we have no right to consider that hearing in connection with the charge that the trial judge improperly permitted the eight-year-old victim to testify.

Diaz also argues that the trial court improperly allowed testimony of prior sexual conduct between his daughter and himself. As a general proposition of law, evidence of other crimes is prohibited in a criminal case. On the other hand, evidence of other offenses has been held to be admissible if it is relevant for any purpose other than to show the propensity to commit crimes and as long as there is a similarity between the other crimes and the offense charged. (People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360.) It is well established that evidence of other crimes is admissible to establish modus operandi. (People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360; People v. McKibbons (1983), 96 Ill. 2d 176, 449 N.E.2d 821, cert. denied (1983), 464 U.S. 844, 78 L. Ed. 2d 136, 104 S. Ct. 145.) In this case the sexual conduct of Diaz and his daughter disclosed a pattern of sexual abuse by a father on his eight-year-old daughter; the evidence was properly considered to disclose that Diaz’s conduct toward his daughter was a “modus operandi.”

Additionally, evidence of prior sexual offenses is admissible to show the relationship and familiarity of the parties, the intent with which the act was done, defendant’s design or course of conduct and to corroborate the complainant’s testimony as to the particular act or acts relied upon for conviction. (People v. Tannahill (1987), 152 Ill. App. 3d 882, 504 N.E.2d 1283.)

“The trier of fact is entitled to view the sexual conduct within the context of the actual relationship between defendant and complainant. A father’s sexual abuse of his daughter invariably involves more than one incident. Limiting complainant’s testimony to one incident would make the incident appear isolated. This limitation would place an unfair strain upon the credibility of complainant’s testimony concerning the charged offenses. Moreover, the probative value of such evidence far outweighs any prejudicial effect on defendant.” (People v. Tannahill (1987), 152 Ill. App. 3d 882, 887, 504 N.E.2d 1283, 1287.)

This law is well settled that in a trial for indecent liberties with a child, evidence of defendant’s prior sexual offense with the same child is admissible whether or not the defendant denies guilt. People v. Bradley (1984), 128 Ill. App. 3d 372, 381, 470 N.E.2d 1121, 1128.

Finally Diaz complains of the imposition of a 10-year sentence for his crime and seeks a reduction thereof to six years. Diaz is a man over 40 who worked at the same job for nine years. His sentence does appear severe, yet his crime is one of the most heinous crimes recognized in a civilized society. Although adultery has apparently risen from a crime to a sport in our society, incest with one’s own child remains an abomination. We find defendant’s contention that the trial court failed to weigh the aggravating and mitigating factors to be without merit. Clearly, the court considered all the aggravating and mitigating factors before it in the sentencing hearing and determined that defendant’s behavior justified the imposition of a 10-year sentence which, while greater than the statutory minimum, is certainly well below the statutory maximum of 30 years.

The trial judge is normally in a better position to determine the punishment to be imposed than the courts of review. (People v. Butler (1976), 64 Ill. 2d 485, 490, 356 N.E.2d 330, 333.) The trial judge, in the course of the trial and the sentencing hearing, has an opportunity to consider factors such as the defendant’s credibility, demeanor, general moral character, mentality, habits and age, whereas this court is merely afforded an opportunity to examine a cold record. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) Although the writer feels that 10 years is a rather severe sentence to be imposed in this case, it is well established that the imposition of a sentence is a matter of judicial discretion and that absent an abuse of that discretion the sentence may not be altered upon review. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

We do not find an abuse of discretion in this case nor do we find any other error. Accordingly, we affirm the conviction and sentence imposed by the trial judge.

For the above reasons, we affirm the trial judge.

Judgment affirmed.

COCCIA, P.J., and GORDON, J., concur.


text:
    RANDOLPH A. KOTALIK, Plaintiff-Appellant, v. ROGER JENSEN et al., Defendants-Appellees.
    First District (5th Division)
    No. 1-89-1838
    Opinion filed August 3, 1990.

      John H. Anderson, of Evergreen Park, for appellant.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, of counsel), for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Randolph A. Kotalik (Kotalik) filed an appeal from an order of the circuit court of Cook County dismissing three counts of his four-count complaint against defendants, Roger Jensen and Septran, Inc. Defendants moved to dismiss the appeal, asserting that this court is without jurisdiction because the notice of appeal was not timely filed. This court ordered that defendants' motion to dismiss be taken with the case. We now conclude that plaintiff did not comply with the rules of procedure for filing his appeal and that, consequently, this court is without jurisdiction to reach the merits of the appeal. Accordingly, we dismiss.

In December 1988 Kotalik filed a four-count complaint stating that he had been an employee of Septran, Inc., from June 1976 until June 1988, at which time his employment with the company was terminated. Kotalik alleged: (count I) that his termination breached his employment contract with Septran, Inc.; (count II) that his termination was retaliatory and, thus, violated Illinois statutory law and pub-lie policy; (count III) that defendants promised him employment for life, that he detrimentally relied upon this promise and that defendants should be estopped from denying that an employment-for-life contract existed; and (count IV) that Jensen intentionally interfered with his contractual relationship with Septran by intentionally and maliciously causing Septran to terminate his employment.

On February 3, 1989, defendants moved to dismiss counts I, III, and IV of Kotalik’s complaint, charging that these claims were legally insufficient (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), and on June 13, 1989, the trial court granted defendants’ motion, dismissing the three counts. In its order the trial court found that there was “no just reason to delay the enforcement or appeal of the order” and, by including this language, made the order final and appealable pursuant to Illinois Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) despite the fact that a cause of action still pended against defendants on count II of plaintiff’s complaint.

On July 11, 1989, Kotalik filed a notice of appeal from the June 13, 1989, order of the trial court and on the same date filed a motion in the trial court, asking that it reconsider its decision dismissing the three counts. Kotalik did not withdraw his notice of appeal. Instead, he filed a motion in this court on September 20, 1989, asking that proceedings be stayed during the pendency of his motion for reconsideration in the circuit court. This motion was allowed on September 27, 1989.

On October 2, 1989, the trial court denied Kotalik’s motion for reconsideration, inserting in the order, once again, the language that there existed no just reason to delay enforcement or appeal of the order. Kotalik filed no new notice of appeal from this order. Instead, on October 23, 1989, he moved to supplement the record and file his appellate brief. This motion was granted on November 2, 1989. On December 1, 1989, defendants moved to dismiss the appeal and, as stated earlier, on December 7, 1989, this court ordered that the motion to dismiss be taken with the appeal.

Defendants argue that this court has no jurisdiction over the appeal because Kotalik failed to file a notice of appeal from the October 2, 1989, order denying the motion to reconsider. Defendants further contend that the July 11, 1989, notice of appeal is of no effect and does not confer jurisdiction upon this court. We agree.

Prior to the case of Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232, there was considerable confusion over when judgments that do not dispose of all parties or all claims become final for purposes of appeal. The Elg court interpreted Supreme Court Rule 304(a) and determined that the “filing of a timely post-trial motion will not toll the running of the 30-day period for filing a timely notice of appeal based upon a Rule 304(a) finding.” (119 Ill. 2d at 351.) Thus, pursuant to Elg, in all cases in which a notice of appeal was filed or due to be filed after November 16, 1987, an appeal from a judgment that did not dispose of all parties or claims but which contained the Rule 304(a) language would have to be taken, if at all, within 30 days of the date of entry, notwithstanding the timely filing of any post-judgment motions.

However, following the Elg opinion, on November 21, 1988, Supreme Court Rule 304(a) was revised to correct the procedural disparity in treatment, created by Elg, between appeals brought under Supreme Court Rules 303 and 304. Pursuant to this revision, which became effective January 1, 1989, Rule 304(a) reads, in pertinent part:

“The time for filing a notice of appeal shall be as provided in Rule 303. In computing the time provided in Rule 303 for filing the notice of appeal, the entry of the required finding shall be treated as the date of the entry of final judgment.” 134 Ill. 2d R. 304(a).

The Committee Comments following this revision state:

“Rule 304(a) was amended in 1988 to cure the defect that compelled the Supreme Court, in Elg v. Whittington (1987), 119 Ill. 2d 344, to hold that the filing of post-trial motions in the trial court do not toll the time for filing a notice of appeal under Rule 304, as it does under Rule 303. This amendment clarifies Rule 304 and makes it clear that the time for filing a notice of appeal under Rule 304 is governed by the provisions of Rule 303 and that the date of which the trial court enters its written finding that there is no just reason for delaying enforcement or appeal shall be treated as the date of the entry of final judgment for purposes of calculating when the notice of appeal must be filed. It should be noted that the filing of post-trial motions in cases appealed under Rule 304 will have the same effect as spelled out in Rule 303.” 134 Ill. 2d R. 304.

In light of this revision we must be guided by Rule 303 in our determination of whether plaintiff’s notice of appeal, filed within 30 days of the July 11, 1989, order, is sufficient to confer jurisdiction on this court to review the merits of this appeal. We find that, when applying Rule 303, the notice of appeal in this case was not timely filed. Rule 303(a)(2) states, in pertinent part:

“When a timely post-trial motion has been filed by any party, whether in a jury case or a nonjury case, a notice of appeal filed before the entry of the order disposing of the last pending post-trial motion shall have no effect and shall be withdrawn by the party who filed it, by moving for dismissal pursuant to Rule 309. This is so whether the timely post-trial motion was filed before or after the date on which the notice of appeal was filed. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the post-trial motion, as provided in subparagraph (a)(1) of this rule.” (Emphasis added.) 134 Ill. 2d R. 303(a)(2).

Plaintiff admits that he did not withdraw his July 11, 1989, notice of appeal and that a new notice of appeal was “inadvertently” not filed upon the disposition of his post-trial motion. He contends, however, that this court should choose to reach the merits of his appeal because defendants were aware of his intention to have the matter reviewed and because defendants are not “prejudiced” by his failure to refile the notice of appeal. But, failure to file a timely notice of appeal is jurisdictional (Dillman & Associates, Inc. v. Capitol Leasing Co. (1982), 110 Ill. App. 3d 335, 442 N.E.2d 311), and it is not within this court’s authority to overlook plaintiff’s failure to comply with the rules of civil procedure. The fact that plaintiff filed a motion to stay his appeal and this court granted the motion is of no consequence since the filing of a timely post-judgment motion automatically stays the time period for filing a notice of appeal (Bradford v. Soto (1987), 159 Ill. App. 3d 668, 512 N.E.2d 765) and, pursuant to the rules of procedure, a new notice of appeal “must be filed” within the 30 days following the final judgment entered on the post-judgment motion. (134 Ill. 2d R. 303(a).) For these reasons we grant defendants’ motion to dismiss plaintiff’s appeal for lack of jurisdiction. Accordingly, we may not consider the merits of plaintiff’s appeal.

Appeal dismissed.

COCCIA, P.J., and GORDON, J., concur.


author: JUSTICE SCARJANO

text:
    Z.R.L. CORPORATION, d/b/a Greenbay Shipping Company, et al., Plaintiffs-Appellees, v. GREAT CENTRAL INSURANCE COMPANY et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1-89-0395
    Opinion filed August 7, 1990.
    Kenneth T. Garvey and Douglas A. Miller, both of Bresnahan & Garvey, of Chicago, for appellants.

      Brydges, Riseborough, Morris, Franke & Miller, of Chicago (George E. Riseborough, Jack H. Krackenberger, and Thomas K. Gerling, of counsel), for appellees.
   JUSTICE SCARJANO

delivered the opinion of the court:

Plaintiffs (collectively, ZRL) were sued in Federal court for violations of the Federal civil rights statutes. During the pendency of the Federal lawsuit, ZRL sought a State court declaratory judgment that defendant insurers (collectively, Great Central) were obligated to defend the Federal action. After prevailing on a motion for summary judgment regarding the coverage issue, ZRL later obtained a nunc pro tunc order requiring that Great Central pay attorney fees incurred in prosecuting the declaratory judgment action. Great Central appeals the order relating to attorney fees. We reverse.

Prior to the commencement of this lawsuit, ZRL was sued in United States District Court under certain Federal civil rights laws for wrongfully ejecting several individuals from a restaurant it owned. Great Central, ZRL’s insurer, refused several requests to defend the lawsuit, causing ZRL to file a declaratory judgment action in circuit court on August 12, 1985. The first count of ZRL’s two-count complaint sought a declaration that the Federal action was within the coverage of the insurance policy and that Great Central was contractually bound to defend the lawsuit. The second count requested a ruling that Great Central’s refusal to defend constituted an improper claims practice within the meaning of sections 154.5 and 154.6 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, pars. 766.5, 766.6). The parties filed cross-motions for summary judgment on the coverage issue, and on July 1, 1986, Judge George M. Marovich ruled in favor of ZRL. An appeal was taken pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), and this court affirmed in an opinion filed on June 16, 1987. See Z.R.L. Corp. v. Great Central Insurance Co. (1987), 156 Ill. App. 3d 856, 510 N.E.2d 102.

While the appeal of the order entered by Judge Marovich was still pending, the parties to the underlying Federal action reached a settlement. On September 8, 1987, after the resolution of the State court appeal, attorneys for ZRL sent two fee statements to Great Central requesting reimbursement for attorney fees expended in defending the Federal action and in prosecuting and appealing the State court declaratory judgment action. On November 11, 1987, Great Central paid the fees requested with respect to the Federal action, but refused to pay those related to the State court action.

On July 26, 1988, ZRL filed a motion for entry of a judgment order nunc pro tunc holding that it was entitled to attorney fees incurred in the declaratory judgment action and the subsequent appeal. After legal memoranda were filed on the issue, oral argument was held before Judge Kenneth Gillis on October 4, 1988. Judge Gillis granted ZRL’s motion, denied Great Central’s subsequent motion for reconsideration, and ultimately awarded attorney fees in the amount of $31,501 after a prove up hearing. This appeal followed.

Great Central raises three issues on appeal. First, it argues that the trial judge erroneously concluded that the requirements necessary for the entry of a nunc pro tunc order had been met in this case. Second, assuming the requirements for such an order were satisfied, Great Central asserts that Judge Marovich’s July 1, 1986, ruling was in error because attorney fees incurred in the prosecution of a declaratory judgment action are not recoverable. Third, the amount of attorney fees awarded is claimed to be unsupported by the evidence and thus an abuse of discretion. Since we agree that a nunc pro tunc order should not have been entered in the first instance, it is not necessary to address Great Central’s alternative arguments, and we reverse.

The purpose of a nunc pro tunc order is “ ‘to supply some omission in the record of an order which was really made but omitted from the record.’ ” (Gill v. Gill (1973), 56 Ill. 2d 139, 142, 306 N.E.2d 281, 282, quoting People v. Rosenwald (1915), 266 Ill. 548, 554, 107 N.E. 854.) It does not alter the actual judgment of the court (Dauderman v. Dauderman (1970), 130 Ill. App. 2d 807, 263 N.E.2d 708); rather, it merely corrects inadvertent omissions from the judgment order and should not be entered if the omission is the result of either a deliberate decision by the judge or relates to an issue that was not presented to the judge (First Bank v. Rezek (1989), 179 Ill. App. 3d 956, 535 N.E.2d 20; Gagliano v. 711 Sheridan Venture (1986), 144 Ill. App. 3d 854, 494 N.E .2d 1182.) A nunc pro tunc order must be based on some note, memorandum or memorial in the record indicating the omission was an inadvertent clerical error. (Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 215 N.E.2d 271; Gagliano, 144 Ill. App. 3d 854, 494 N.E.2d 1182.) Any document in the record may serve as evidence of the inadvertent nature of the omission, including hearing transcripts, but the evidence must be definite and certain. Thiele v. Ortiz (1988), 165 Ill. App. 3d 983, 520 N.E.2d 881; Gagliano, 144 Ill. App. 3d 854, 494 N.E.2d 1182.

It is apparent that the pleadings and hearing transcript in this case do not present anything approaching definite and certain evidence of an inadvertent omission from Judge Marovich’s order. On the contrary, it appears from the record that the issue of attorney fees in connection with the declaratory judgment action was never considered by Judge Marovich. Count I of ZRL’s second amended complaint for declaratory judgment, which was based on ZRL’s breach of contract claim, contained the following prayer for relief:

“WHEREFORE, the Plaintiffs respectfully request this Court to enter an Order declaring that the insurance policy was both in force and effect, and covered the suit being prosecuted in Federal Court by WILLIAM TERRY, TOM BANKS and ALLAN MAY, under Federal District Court Number for the Northern District of Illinois, Eastern Division, 85 C 07351, for attorney fees, and for any other appropriate relief and that there exists a duty on the part of GREAT CENTRAL to defend said lawsuit and to pay any judgment entered in said lawsuit to the extent of the coverage afforded under said contract on behalf of ZRL, its agents and employees.”

We reject ZRL’s unsupported contention that this vague language establishes that the issue of attorney fees connected with the prosecution of the declaratory judgment action was necessarily decided by Judge Marovich when he granted ZRL’s motion for summary judgment.

Count II of the complaint, alleging improper claims practices, specifically requested statutory attorney fees and costs of defense “in the underlying lawsuits in this declaratory action” pursuant to section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 767). The prayer for relief further stated:

“WHEREFORE, the Plaintiff respectfully requests this Court to enter an Order declaring that the Defendant’s continued refusal to provide insurance coverage and defense, constitutes improper claims practices, and award the Plaintiff damages consistent with said statute and any other relief the court deems just, plus reasonable attorney fees and costs.”

However, count II is apparently still pending before the trial court, and both parties moved for summary judgment only with respect to count I; the Rule 304(a) order was also entered only "with respect to that single count. Therefore, count II. of the complaint is wholly irrelevant as an indication of the issues passed on by Judge Marovich.

We also find good reason to reject ZRL’s argument that an award of attorney fees was contemplated by Judge Marovich in that the issue of attorney fees was not mentioned in either party’s summary judgment motion or in any of their replies in opposition filed with the trial court. Similarly, an examination of the hearing transcript fails to reveal any discussion whatsoever of this issue. Thus this case is clearly distinguishable from Gagliano v. 714 Sheridan Venture (1986), 144 Ill. App. 3d 854, 494 N.E.2d 1182, in which a nunc pro tunc order was upheld because the proper meaning of an ambiguity in the trial court’s order was clearly discernible from the pleadings and the hearing transcript.

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

Reversed.

DiVITO, P.J., and HARTMAN, J., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    MORTON D. WILLCUTTS, JR., Plaintiff-Appellant, v. GALESBURG CLINIC ASSOCIATION et al., Defendants-Appellees.
    Third District
    No. 3-89-0548
    Opinion filed July 24, 1990.
    Modified on denial of rehearing September 20, 1990.

      Robert W. Bach, of Peoria, and Larry D. Drury, Ltd., of Chicago (Larry D. Drury, of counsel), for appellant.

      Barash, Stoerzbach & Henson, of Galesburg (Burrel Barash, of counsel), for appellees.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Plaintiff, Morton D. Willcutts, M.D., brought this action in the circuit court of Knox County, alleging failure to provide superior medical care by the Galesburg Clinic Association (Clinic) and its associates, and seeking to dissolve the association based on 41 enumerated illegal, oppressive or fraudulent acts. On July 25, 1989, the trial court dismissed five counts with prejudice, and dismissed the remaining four counts with leave to replead. Plaintiff indicated his desire to stand on the latter counts as pleaded, and on August 10, 1989, an order was entered dismissing all counts with prejudice. A notice of appeal was filed on September 6,1989.

Willcutts is a licensed physician in the State of Illinois. A member of the Galesburg Clinic Association (Clinic) for more than 25 years, Willcutts filed his complaint on May 16, 1988, seeking both money damages and injunctive relief. Simultaneously, he filed an emergency motion for a temporary restraining order (TRO) to enjoin the Clinic from employing two additional physicians. According to his complaint, the Clinic members were attempting to “freeze him out” of Clinic business matters and profit. Willcutts alleges defendants’ failure to refer patients to him, reluctance to consult with him and conspiracy to expel him, among other assertions. Defendants were attempting to make Willcutts’ patients their own and jeopardizing the health care of those patients and the community.

The executive committee of the Clinic notified all associate physicians, including Willcutts, of an informational meeting to discuss Willcutts’ complaint. Following the May 31, 1988, informational meeting, the defendants filed their motion to dismiss Willcutts’ complaint. On June 6, 1988, another meeting of the associates was held, with all 19 associates present. The associates were informed that as a result of the lawsuit filed by Willcutts, his expulsion was being considered. An expulsion vote was taken by written ballot; 18 associates voted affirmatively and Willcutts cast the sole negative vote.

Following the expulsion vote, another vote waived, as to Willcutts, the restrictive covenant prohibiting associates from practice in Knox County after leaving the Clinic. Notice was given to Willcutts to vacate his Clinic office within four days, and he was informed about interim office space, insurance and the repurchase of his two common shares in the Clinic. On June 11, 1988, Willcutts signed an agreement with the Clinic extending the time to vacate and his malpractice insurance until June 30, 1988, and for the purchase of his two common shares for $2,000. Willcutts subsequently filed a motion for a preliminary injunction to restrain expulsion, and an order was entered enjoining defendants from expelling Willcutts until further order of the court, which in no event was to be beyond August 13, 1988. Willcutts left the Clinic prior to that date.

In its written opinion, the trial court dismissed Willcutts’ second amended complaint, filed October 6, 1988, for failure to adequately state a cause of action. Willcutts’ appeal raises numerous issues regarding the merit of the trial court’s decision.

Willcutts asserts that the trial court erroneously determined that he failed to state a cause of action for judicial dissolution of the Clinic. In its opinion, the trial court relied upon the provisions of article IV of the amended articles of association, adopted by the Clinic on August 18, 1981. The terms of article IV state, in conformity with “An Act to authorize professional associations” (Ill. Rev. Stat. 1989, ch. IO6V2, par. 107) (in pertinent part):

“No associate shall have the power to dissolve the association by his independent act of any kind ***.”

Willcutts suggests that the language of article IV does not prohibit judicial dissolution of the association, because such action would not constitute an independent act of an associate. While judicial dissolution may not be directly prohibited by the articles of association, Willcutts has failed to allege actions sufficient to warrant such court action.

We are without direct Illinois authority in this area, but examination of other legal authorities provides guidance. Associations & Clubs, section 59, 6 Am. Jur. 2d 494 (1963) suggests that involuntary dissolution of a voluntary association should occur only upon the cessation of its ability to fulfill its purpose:

“It is a general rule that where the operations of a voluntary association have been discontinued, its objects and purposes being abandoned by common consent, a court of equity has jurisdiction to decree a dissolution and to distribute its funds among the several members or contributors. But an unincorporated association should not be involuntarily dissolved, or dissolved upon the complaint of some of the members, for slight causes. It is only when it is entirely apparent that the organization has ceased to answer the ends of its existence and no other mode of relief is attainable that this should be done.” (6 Am. Jur. 2d Associations & Clubs §59 (1963).)

The instant case does not present an organization whose operations have been discontinued, or whose objects and aims have been abandoned. Indeed, of 19 associate physicians, 18 are, and have been, operating the Clinic and providing medical care to the public. We agree with the Missouri Appellate Court, which stated, “equity *** will not dissolve [a voluntary] association where there remain a sufficient number of members *** who are ready and willing to continue its operations and execute objects and purposes for which it came into existence.” (Farrar v. Messmer (Mo. App. 1963), 368 S.W.2d 933, 933-34.) Willcutts has failed to state a cause of action for judicial dissolution of the Clinic association.

Willcutts next disputes the dismissal of his allegations of tortious interference with prospective economic advantage. Unfortunately, Willcutts’ allegations against defendants do not meet the requirements for such a cause of action under Illinois law. Specifically, Illinois courts have stated:

“[T]he tort of interference with prospective economic advantage requires action by the defendant directed toward a third party ***.” (Galinski v. Kessler (1985), 134 Ill. App. 3d 602.)

(See also Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400.) Willcutts has failed to allege specific actions by defendants directed at third parties, but rather has presented broad, conclusory allegations against defendants. The trial court correctly determined that Willcutts’ pleading failed to conform to Illinois requirements.

Similarly, Willcutts’ allegations regarding defendants’ violation of the Illinois Antitrust Act (Ill. Rev. Stat. 1985, ch. 38, pars. 60 — 1 through 60 — 11) and defendants’ negligence, and seeking recission of the amendment of the restrictive stock transfer agreement (counts III, IV and IX, respectively) are lacking in the factual specificity required in Illinois. The trial court granted Willcutts 28 days in which to correct deficiencies and properly state a valid cause of action. Willcutts declined to take advantage of the court-offered opportunity and chose to stand on the counts as pleaded. Because he made the decision not to amend, the trial court’s decision to dismiss the counts for failure to allege specific instances of unreasonable trade restraint and tortious breach of fiduciary duty was not an abuse of discretion. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407.

Count V requested injunctive relief to prevent the Clinic’s hiring of two new physicians and requested judicial relief for Willcutts’ expulsion from the Clinic. In dismissing this count, the trial court relied on Barrows v. Northwestern Memorial Hospital (1988), 123 Ill. 2d 49, wherein the Illinois Supreme Court recounted longstanding policy that Illinois courts will not review the decisions of private hospitals regarding admission and retention of staff. Furthermore, the Clinic’s articles of association provide procedures for the expulsion of an associate. There is no indication in the record that the Clinic executive board failed to follow association procedures; in fact, notice was given, transcript of the meeting was taken, and all associate physicians, including Willcutts, were present and voted. Count V was appropriately dismissed.

Willcutts next argues that count VI, alleging breach of the articles of association, was erroneously dismissed. Willcutts’ contention is that defendants did not afford him a fair hearing or treatment in voting to expel him for filing his lawsuit. The trial court correctly found that “the procedures utilized in Dr. Willcutts’ dismissal scrupulously complied with those by which he agreed to be bound.” The articles of association provide that a member may be expelled for cause with the affirmative vote of three-fourths of current associates. The Clinic associates considered Willcutts’ allegations of “scandalous, fraudulent, illegal, unethical and unprofessional conduct” sufficient cause and undertook the correct procedures for expulsion. Willcutts’ allegations that a breach of association articles occurred are without merit.

Similarly, Willcutts has no support for his allegation of retaliatory discharge. Illinois recognizes a cause of action for retaliatory discharge “only when the employee’s discharge is in violation of a ‘clearly mandated public policy.’ ” (Price v. Carmack Datsun, Inc. (1985), 109 Ill. 2d 65, 67, quoting Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 525.) A matter of “clearly mandated public policy” strikes at the heart of the social rights, duties and responsibilities of citizens. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134.) Willcutts has not demonstrated that his personal grievance is anything more than a private dispute amongst co-workers.

Finally, count VIII requests rescission of the purported agreement of June 11, 1988, between Willcutts and the Clinic. Willcutts argues that rescission should be granted due to undue pressure, influence and harassment of Willcutts which deprived him of his free will in entering into the agreement. He suggests that his position after expulsion was such that if he did not sign the agreement which extended his time to vacate the Clinic and his malpractice insurance, and set a repurchase price of $2,000 for his common shares, he would have been “out on the street.” However, where consent to an agreement is secured merely because of hard bargaining positions or financial pressures, duress does not exist. (Higgins v. Brunswick Corp. (1979), 76 Ill. App. 3d 273.) A party must demonstrate inducement by a wrongful act or threat of another to execute an agreement under circumstances depriving him of the exercise of free will in order to invalidate an agreement on the basis of duress. (Kaplan v. Kaplan (1962), 25 Ill. 2d 181.) Willcutts did not properly demonstrate fraud or duress, and refused the trial court’s offer to replead. The trial court properly dismissed count VIII.

Dr. Willcutts’ complaint consists of broad, conclusory allegations against the Clinic and his fellow physicians. The trial court provided a well-reasoned opinion dismissing certain of Willcutts’ counts and providing him leave to replead others. Upon Willcutts’ decision not to amend his pleadings, the trial court dismissed all counts with prejudice. Willcutts failed to provide appropriate factual information to support his various obligations, and dismissal of his complaint was appropriate.

For the foregoing reasons, we affirm the decision of the trial court.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    DONALD B. CIONI et al., Plaintiffs-Appellants, v. GARY L. GEARHART, Defendant-Appellee.
    Third District
    No. 3-89-0676
    Opinion filed July 5, 1990.
    Rehearing denied September 20, 1990.

      Law Offices of Henry Sherwood Dixon, of Dixon (Henry Sherwood Dixon, of counsel), for appellants.

      D. Kendall Griffith and Paul Estes, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Gerald Haberkorn, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Donald and Betty Cioni and their daughter, Kelly Cioni (the Cionis), appeal from a judgment of the circuit court of Putnam County granting the defendant’s, Gary Gearhart’s (Gearhart’s), motion to dismiss. According to the complaint, in April 1984, Kelly Cioni obtained contact lenses from Dr. Jeffrey Blanco, an Illinois optometrist. In June 1984, Kelly developed some difficulties with the contact lenses. For this she was treated by Dr. Olds, a Missouri general practitioner. As a result of either the contact lenses themselves or the treatment of Dr. Blanco and/or Dr. Olds, Kelly suffered damage to her right eye. The Cionis allege that they hired Gearhart to represent them in this matter for purposes of filing a medical malpractice complaint.

To date, a medical malpractice claim has yet to be filed on Kelly’s behalf. As a result, on August 31, 1988, the Cionis filed suit against Gearhart alleging that an attomey/client relationship was established between the parties and that Gearhart committed legal malpractice by failing to timely file a medical malpractice claim on behalf of the Cionis. Gearhart, in response, filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). It alleged that: (1) no attomey/client relationship existed; (2) if such a relationship existed, the Cionis discharged him; and (3) the cause of action was prematurely brought.

The Cionis submitted counteraffidavits alleging that: (1) Donald and Kelly Cioni signed an employment contract at Gearhart’s office; (2) Gearhart discussed Kelly’s case with others; (3) Gearhart informed the Cionis that a suit should be filed in Missouri; and (4) Sueann Turner, Donald Cioni’s secretary, stated in her affidavit that when she discussed her personal injury case with Gearhart she was told by Gearhart that her case was not worth as much as the case he was working on for Kelly Cioni.

The trial court, after hearing arguments, granted Gearhart’s motion to dismiss. The court found that “the attorney/client relationship, if ever established, was terminated.” The Cionis appeal.

The record shows that in support of his motion, Gearhart submitted an affidavit in which he stated that he never had possession of a file concerning Kelly Cioni’s case. Gearhart’s affidavit further stated that he never agreed to represent the Cionis and did not enter into a contract to represent them in this matter.

Essentially, Gearhart argues that his affidavit established that no attorney/client relationship existed between himself and the Cionis and that even if such a relationship existed, it was terminated by a letter Donald Cioni sent to Gearhart. Gearhart received this letter five days before the Illinois medical malpractice statute of limitations expired for Kelly’s case. In the letter, Cioni notes that although he originally contacted attorney Dave Haskins regarding Kelly’s potential medical malpractice claim, he understood that Haskins had referred the file to Gearhart and that Gearhart now possessed the file. Cioni next informed Gearhart that Maurice Barry of the law office of Henry S. Dixon had been retained to represent Kelly in the potential claim and, to that extent, requested that Kelly’s file be sent to Barry. Cioni also acknowledged that the statute of limitations would soon expire. (It should be noted that new counsel was unable to file suit within the short period of time before the statute of limitations expired.) Gearhart asserts that the letter unambiguously discharged him, thereby terminating his obligation to further represent the Cionis. The trial court agreed.

Initially, we note that the primary purpose of section 2 — 619 of the Code of Civil Procedure is to obtain at the outset of a legal action a summary disposition of issues of law or of easily proved facts. (Outlaw v. O’Leary (1987), 161 Ill. App. 3d 218, 514 N.E.2d 208.) While a motion to dismiss admits, for purposes of determining the motion, all well-pleaded facts and all reasonable inferences which can be drawn from those facts, it does not admit conclusions of law. Horwath v. Parker (1979), 72 Ill. App. 3d 128, 390 N.E.2d 72.

Under section 2 — 619(a)(9), a defendant may seek dismissal of an action because it is barred by affirmative matter which defeats the claim and may support the motion by facts stated in affidavits if the grounds do not appear on the face of the complaint. (Ill. Rev. Stat. 1987, ch. Í10, par. 2 — 619(a)(9).) Generally, unless refuted by plaintiff’s counteraffidavit, the facts alleged in the defendant’s affidavit must be taken as true. Silverstein v. Schak (1982), 107 Ill. App. 3d 641, 437 N.E.2d 1292.

“Affirmative matter” within the meaning of section 2 — 619(a)(9) is something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. (Longust v. Peabody Coal Co. (1986), 151 Ill. App. 3d 754, 502 N.E.2d 1096.) Affirmative matter must, however, be something more than evidence offered to refute a well-pleaded fact in the complaint because such well-pleaded facts must be taken as true for purposes of a motion to dismiss. (Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 439 N.E.2d 60.) In the instant case, we find that “something more” absent.

Gearhart’s motion merely negates the factual allegation which sets forth the basis upon which he is allegedly liable. In other words, he has simply offered a contrary version of the legal relationship between the parties. More importantly, the Cionis submitted counteraffidavits which substantially contradicted Gearhart’s motion.

The Cionis raise disputed questions of fact material to the resolution of the motion. Essentially, Gearhart denies that he was the attorney during the period of the alleged misconduct. As such, he essentially denies a central element of the complaint. This does not constitute affirmative matter. Moreover, the parties are at opposite poles as to whether or not Gearhart agreed to represent the Cionis in Kelly’s potential medical malpractice claim. Gearhart states, in his affidavit, that the letter sent to him by Donald Cioni discharged him from further representing Kelly and that he doesn’t possess a file concerning her case. The Cionis, on the other hand, allege that Gearhart was not discharged and continued to represent Kelly because Gearhart never turned the file over to them. In addition, Sueann Turner’s affidavit contains other evidence indicating that Gearhart did indeed represent Kelly. Therefore, because we find Gearhart’s motion to merely refute the factual allegations in the complaint, the order of the trial court granting Gearhart’s motion to dismiss must be reversed.

In the instant case, whether the letter constituted a discharge or whether the letter contained conditions that had to be met before Gearhart was discharged is for the trier of fact to determine. If the trier of fact determines that one of the conditions of the alleged discharge letter was for Gearhart to send the file back to the Cionis, then Gearhart was not discharged. Further, it was Gearhart’s failure to file Kelly’s potential medical malpractice claim that precipitated the purported discharge letter. Thus, under these circumstances, we find that the letter does not constitute affirmative matter.

For the foregoing reasons, we conclude that no proper basis for dismissal exists here. Accordingly, the judgment of the circuit court of Putnam County is reversed and the plaintiff’s cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

HEIPLE, P.J., and BARRY, J., concur.