author: JUSTICE CAMPBELL

text:
    WALTER S. WELCH, as Trustee, et al., Plaintiffs-Appellees, v. THE CITY OF EVANSTON et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—88—0040
    Opinion filed March 20, 1989.
    — Rehearing denied April 26, 1989.

      Ross S. Welch, of Chicago, for appellants.
    Herbert D. Hill, Ellen Szymanski, and Kathleen Brenniman, all of Evan-ston, for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court;

Plaintiffs, Walter S. Welch, as trustee under trust agreement dated June 28, 1976, and Ross S. Welch, who acted as pro se attorney, appeal from three orders entered by the circuit court: (1) contempt order entered November 25, 1986; (2) order imposing contempt sanctions entered September 1, 1987; and (3) order modifying the sanctions entered December 2, 1987, which assessed a fíne of $500 and attorney fees of $3,615 against plaintiffs. These orders arose from plaintiffs’ failure to comply with a prior court order, entered May 11, 1979, which order was affirmed in Welch v. City of Evanston (1980), 87 Ill. App. 3d 1017, 409 N.E.2d 450 (Welch I), directing plaintiffs to cease renting a basement apartment unit located in a building owned by plaintiffs at 2533-2537 Hartrey Avenue, Evanston, Illinois (the Hartrey Building). The subject matter of the instant appeal was brought before the circuit court by defendant, the City of Evanston (the City), on a petition for rule to show cause why plaintiffs should not be held in contempt for failing to comply with the 1979 order. The sole issue on this appeal is whether the trial court abused its discretion in finding plaintiffs in contempt and in assessing attorney fees and a fine against plaintiffs. For the following reasons, the judgment of the circuit court is affirmed.

A chronology of events leading up to this appeal provides a background for the finding of contempt and imposition of sanctions. The record indicates that on December 2, 1925, a building permit was issued for the construction of the Hartrey Building as a three-story, 10-unit apartment building. At that time, the 1921 Evanston zoning ordinance was in effect, which would have permitted the construction of a 16-unit building on the lot in question. Although the building permit applied for and issued was for only a 10-unit building, an eleventh unit was built in the basement and rented.

In 1966, the former owners of the Hartrey Building petitioned the Zoning Board of Appeals of the City of Evanston (ABA) for a variance to allow for rental of the eleventh unit. The petition was denied on the grounds that the zoning ordinance in effect in 1966 required a minimum lot size of 11,600 square feet for an 11-unit building and the Hartrey Building lot did not meet this minimum requirement. As the result of the 1966 ZBA decision, the former owners left the eleventh unit vacant for three years. Then, without any change in the legal status of the eleventh unit, the former owners commenced renting the basement unit once again in 1969.

In 1974, plaintiffs purchased the Hartrey Building and rented all 11 units. In 1976, the City filed a quasi-criminal complaint against plaintiffs seeking elimination of the basement unit. Plaintiffs, in turn, filed an action against the City seeking a declaratory judgment and injunctive relief to prevent the elimination of the basement unit. Predicated on the fact that the original building permit issued in 1925 had been for only a 10-unit building, the trial court held that the basement unit was not a legal nonconforming use. Plaintiffs appealed, and in Welch I, this court held that the 1925 application for a building permit for a 10-unit building and the subsequent issuance of the permit for a 10-unit building legally prevented plaintiffs from operating the Hartrey Building as an 11-unit apartment building. Accordingly, the court concluded that because the eleventh unit was not lawfully established at the outset, it could not be a legal nonconforming use. Subsequently, on March 10, 1981, the Illinois Supreme Court denied plaintiffs’ petition for leave to appeal as well as their motion for leave to file a motion for reconsideration of the denial.

On March 16, 1981, plaintiffs filed an application for a zoning analysis with the ZBA. Several months later, on June 22, 1981, plaintiffs filed a 22-page document with the ZBA requesting a rehearing of the 1966 ZBA decision on the grounds that the 1966 decision was erroneous on its face and changed circumstances warranted a rehearing. Specifically, plaintiffs alleged the following changed circumstances: (1) scarcity of rental apartments in Evanston; (2) an increase in commercial buildings which raised the demand for rental apartments; (3) the current owner is represented by an attorney while the former owner was not; (4) the ZBA had not been properly informed in 1966 that a 16-unit building could legally have been built on the lot in 1925; and (5) in 1966, the City had offered to allow the eleventh unit if the owner could prove that the Hartrey Building had been built prior to February 16, 1927. Evidence not offered in 1966 would not be offered to establish the construction date.

On July 21, 1987, a hearing was held before the ZBA to determine whether plaintiffs’ request for a rehearing should be granted. The ZBA denied plaintiffs’ request on the grounds that plaintiffs’ petition was merely a restatement of the previously litigated issues.

Subsequently, on September 2, 1981, in total disregard of the Welch I ruling, plaintiffs filed a three-count complaint against the City in the circuit court of Cook County, alleging that the “basement apartment was a legal nonconforming use under Illinois law.” In the complaint, plaintiffs admitted that their June 22, 1981, request for a rehearing before the ZBA. was a reiteration of the relief requested in 1966. However, plaintiffs requested a declaration that the ZBA decision was erroneous; that plaintiffs had a “clear, legal right to keep, maintain and use” the basement unit; that the zoning requirement was unreasonable and confiscatory as to plaintiffs; and requested the court to reverse the ZBA’s decision. The trial court granted the City’s motion to strike and dismiss the complaint. Thereafter, the court granted plaintiffs leave to file a second amended complaint, which, on the City’s motion, was dismissed with prejudice on the grounds that, based on Welch I, the complaint was barred by the doctrines of res judicata and collateral estoppel.

Meanwhile, despite the ruling in Welch I, plaintiffs refused to desist from renting the basement apartment unit as originally ordered by the trial court on May 11, 1979. As a result, on September 17, 1986, the City filed a petition for rule to show cause why plaintiffs should not be held in contempt of court. Plaintiffs responded that they had not complied with the court’s order because they felt that it was erroneous, and they had petitioned the ZBA for a rehearing because of the error. On November 25, 1986, the trial court entered its order directing plaintiffs to comply with the May 11, 1979, court order by vacating the basement unit and abandoning its use as a rental unit within 45 days and finding plaintiffs in contempt. The City’s request for sanctions was continued to January 20, 1987, for a hearing. In the interim, plaintiffs filed their notice of appeal which consolidated the appeal from the circuit court’s order dismissing plaintiff’s complaint on the grounds that it was barred by the doctrines of res judicata and collateral estoppel (No. 86 — 3030) and the appeal from the order finding plaintiffs in contempt (No. 86 — 3399).

In a Rule 23 (107 Ill. 2d R. 23) order, dated December 14, 1987 (Welch II), this court affirmed the dismissal of plaintiffs’ complaint (No. 86 — 3030) and dismissed the appeal of the contempt order (No. 86 — 3399) on the ground that because no contempt sanctions had been imposed at the time the notice of appeal had been filed, the contempt order was not final and appealable. Thus, this court had no jurisdiction to hear the appeal. Plaintiffs’ petition for leave to appeal to the supreme court was denied on June 3, 1988. While the consolidated appeal was pending in this court, the circuit court entered an order which assessed attorney fees and a fine against plaintiffs as sanctions for the court’s finding of contempt.

On appeal, plaintiffs contend that the charge of criminal contempt is improper on the ground that they had acted in good faith when they had refused to follow the 1979 order, directing them to cease renting the basement apartment unit. It is axiomatic that a finding of willful contempt is a matter of fact to be determined by the trial court and it will not be disturbed on review absent a showing of abuse of discretion by the trial court. People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1982), 108 Ill. App. 3d 266, 438 N.E.2d 1273.

Initially, plaintiffs argue that plaintiff Ross Welch, pro se attorney, cannot be held in contempt of court for failing to obey a court order when his refusal is based on a good-faith attempt to represent his legal interests by filing a new and different cause of action involving the same parties and subject matter. This argument fails for the fundamental reason that plaintiffs have misinterpreted the basis of the contempt order. Ross Welch, pro se attorney, was not found in contempt for his trial tactics or overzealous representation of his client. Rather, Ross Welch and Walter Welch, as plaintiffs, were found in contempt for failing to obey a court order which was subsequently affirmed on appeal. As a result of plaintiffs’ misinterpretation, the cases relied upon by them to support their argument that an attorney acting in good faith cannot be found in contempt are inapposite and unpersuasive. See People v. Siegel (1983), 94 Ill. 2d 167, 445 N.E.2d 762; People v. Kuelper (1977), 46 Ill. App. 3d 420, 361 N.E.2d 29; People v. Knuppel (1978), 65 Ill. App. 3d 1022, 383 N.E.2d 244; People v. Toomin (1974), 18 Ill. App. 3d 824, 310 N.E.2d 767.

Plaintiffs admit that they purposefully refused to obey the 1979 court order, but argue that they did so in good faith because they believed the court order to be erroneous. Therefore, they should not be found in contempt. We disagree. It is well established that a litigant’s disagreement with the court’s decision does not excuse that party from the obligation to follow that decision. As stated by the supreme court in Allendorf v. Daily (1955), 6 Ill. 2d 577, 589, 129 N.E.2d 673, “Although such decree might be erroneous, nevertheless it is binding as to all matters which might have been decided, [citation] until reversed.” In the present case, the 1979 order was affirmed on appeal and plaintiffs were legally obligated to follow the court’s decision. For this court to rule otherwise would completely undermine the judicial system.

We further find plaintiffs’ reliance on Ellingwood v. El- lingwood (1975), 25 Ill. App. 3d 587, 323 N.E.2d 571, and Storm v. Storm (1973), 9 Ill. App. 3d 1071, 293 N.E.2d 633, unpersuasive of their argument. In Ellingwood, contempt was not even an issue before the reviewing court. In Storm, defendant was found guilty of willful contempt of court for failing to pay child support arrearages. Initially, the Storm court relied on the general rule that failure to pay alimony or child support made out only a -prima facie case of contempt and stated that a defendant should be allowed to demonstrate his inability to pay as a defense to the contempt order. Upon finding that defendant had been given such an opportunity, but had failed to demonstrate any inability, the Storm court affirmed the contempt order. In analogizing Storm to the present case, we find Storm more persuasive of the City’s position than of plaintiffs’ position. Assuming that plaintiffs’ refusal to desist from renting the basement apartment unit pursuant to the 1979 order makes out a prima facie case of contempt, plaintiffs must show an inability to obey the court’s order. There is no such showing in the present case.

Tangential to plaintiffs’ good-faith argument is their contention that their conduct in filing a subsequent lawsuit “to show neighborhood changes and to correct an obvious zoning board error” cannot be found willful. Not only do plaintiffs offer no legal authority for their position, the facts belie their claim that they did not act in a willful manner. As stated, plaintiffs do not claim that they were unable to abide by the 1979 court order. In fact, they admit that they purposefully did not obey it. Thus, by their own admission, their refusal to obey the order was intentional and knowing, which, by definition, constitutes willful conduct. (See Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484, 411 N.E.2d 910.) Based on the foregoing, we conclude that the trial court did not abuse its discretion in finding plaintiffs in contempt.

Plaintiffs next contend that the circuit court lacked jurisdiction to enter its order imposing contempt sanctions after the notice of appeal of the contempt order (No. 86 — 3399) had been filed. Although plaintiffs are correct in stating that, as a general rule, the trial court is divested of jurisdiction upon filing of the notice of appeal, if the order appealed from is not final and appealable, the notice of appeal neither deprives the trial court of jurisdiction to proceed with the case nor vests the appellate court with jurisdiction to review. King City Federal Savings & Loan Association v. Ison (1980), 80 Ill. App. 3d 900, 400 N.E.2d 562.

As stated, Welch II was a consolidated appeal, consisting of an appeal from the circuit court’s judgment that plaintiff's action was barred by the doctrines of res judicata and collateral estoppel (No. 86 — 3030) and an appeal from the order finding plaintiffs in contempt (No. 86 — 3399). In appeal No. 86 — 3030, this court affirmed the circuit court. However, appeal No. 86 — 3399 was dismissed on the ground that because no contempt sanctions had been imposed, the contempt order was not final and appealable and jurisdiction did not vest in the reviewing court. Accordingly, the circuit court retained jurisdiction to enter its order assessing fees and a fine against plaintiffs.

Next, plaintiffs contend that the trial court abused its discretion in assessing attorney fees against plaintiffs on the grounds that: (1) the City’s “carelessness and mistakes” were the cause of the lawsuit; (2) the attorney who represented the City cannot request fees because she was an employee of the City throughout the litigation; and (3) the affidavit submitted by the City’s attorney as evidence of the reasonableness of the fees was insufficient. Under Illinois law, the court’s power to punish for contempt is inherent and courts are not strictly bound by the provisions of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 1 — 101 et seq.) or by the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 100 — 1 et seq.). Instead, they have the discretion to fashion appropriate remedies to a party’s contumacious behavior. (47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 371 N.E.2d 294.) Further, a court may properly assess fees as a sanction in a contempt proceeding provided that the fees have been shown to be reasonable by submitting detailed time records to the court. Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019; Village of Lakemoor v. First Bank (1985), 136 Ill. App. 3d 35, 482 N.E.2d 1014.

First, with respect to plaintiffs’ allegation that the City’s “carelessness and mistakes” were the cause of the lawsuit, plaintiffs contend that if the ZBA had not made two erroneous decisions regarding plaintiffs’ right to rent the basement apartment unit, none of this litigation would have been necessary. We are not persuaded by plaintiffs’ argument. In our view, the record clearly indicates that the protracted litigation in this case is solely the result of plaintiffs’ refusal to accept the circuit court’s and appellate court’s determinations that the ZBA was correct and the plaintiffs were wrong.

Second, in contradiction to plaintiffs’ contention that the City’s attorney cannot request fees, the legislature and courts have recognized the right of municipalities, their agencies and their departments to be awarded attorney fees (Greater Peoria Sanitary & Sewage Disposal District v. Hermann (1987), 153 Ill. App. 3d 398, 505 N.E.2d 769; Greater Peoria Sanitary & Sewage Disposal District v. Kellstedt (1985), 130 Ill. App. 3d 1002, 474 N.E.2d 1267) and to be assessed attorney fees (Savaglio v. Board of Fire & Police Commissioners (1984), 125 Ill. App. 3d 391, 465 N.E.2d 1065). Accordingly, we find no error on these grounds.

Finally, regarding evidence of the reasonableness of the fees, plaintiffs rely on Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, 512 N.E.2d 85, and Board of Managers, Colony West Townhome Owners Association v. Bucalo (1979), 69 Ill. App. 3d 287, 387 N.E.2d 53, to support their contention that the affidavit submitted by the City’s attorney was insufficient evidence of the reasonableness of the fees. We find both of these cases factually distinguishable from the present case and unpersuasive of plaintiffs’ position.

Brandel Realty addressed the question of whether plaintiff’s section 2 — 611 motion (Ill. Rev. Staí- 1985, ch. 110, par. 2 — 611) for attorney fees was insufficient because it had not specifically alleged which of defendant’s pleadings were false and it had not set forth the amount of fees sought. Section 2 — 611 fees are not at issue in the present case. In Board of Managers, plaintiff filed a complaint in small claims court to recover past-due condominium assessments. In addition, counsel for the association filed a petition for legal fees, supported by an affidavit which set forth the provision from the condominium declaration allowing fees in actions for assessments and a contention that the fees totaled $598. No testimony was offered as to how many hours were spent on the matter or any other justification for fees. On appeal, the reviewing court remanded the issue to the trial court to determine the proper amount of fees on the ground that the affidavit contained no specific basis for allowance of fees.

Unlike Board of Managers, the City’s affidavit in support of fees contains a detailed breakdown indicating the date, nature of work and hours spent as a basis for the fees requested. Further, the orders entered by the court indicated that a hearing was held on the fees at which time plaintiffs had sufficient opportunity to contest the reasonableness of the fees. Because the record contains no transcript of those hearings, this court must presume that the evidence omitted from the record would support the trial court’s decision. Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, 512 N.E.2d 85.

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

Affirmed.

MANNING, P.J., and QUINLAN, J., concur.


source: Caselaw Access Project

author: JUSTICE QUINLAN

license: Public Domain

text:
    PAUL O. CRUMP, Plaintiff-Appellant, v. THE ILLINOIS PRISONER REVIEW BOARD et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—0671
    Opinion filed March 20, 1989.
    Elmer Gertz, of Chicago, and Donald S. Rothschild & Associates, Ltd., of Oak Park (Donald S. Rothschild, of counsel), for appellant.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Kenneth A. Fedinets, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE QUINLAN

delivered the opinion of the court:

Plaintiff, an inmate at the Menard Correctional Center, appeals to this court from the circuit court of Cook County’s denial of his petition for a writ of mandamus. In his petition below, plaintiff alleged that defendants, the Illinois Prisoner Review Board (Review Board) and its individual members, had unconstitutionally denied him parole. The circuit court held that a writ of mandamus was not the appropriate remedy in this case and dismissed plaintiff’s petition. We affirm.

Plaintiff, Paul Crump, was charged with murder for the March 1953 shooting of an unarmed security guard during an armed robbery. Plaintiff was convicted and was sentenced to death. The Illinois Supreme Court, however, reversed his conviction and remanded the case for a new trial. (People v. Crump (1955), 5 Ill. 2d 251, 125 N.E.2d 615.) Plaintiff was convicted of murder a second time and was again sentenced to death. The Illinois Supreme Court affirmed the second conviction and death sentence. (People v. Crump (1957), 12 Ill. 2d 402, 147 N.E.2d 76, cert. denied (1958), 357 U.S. 906, 2 L. Ed. 2d 1155, 78 S. Ct. 1148.) Plaintiffs death sentence was commuted in 1962 by Otto Kemer, the Governor of Illinois at that time, to 199 years without parole. Despite the fact that plaintiff’s commuted sentence was for 199 years without parole, he was nonetheless considered for parole in 1965 and again in 1969, although he was denied parole on both occasions. The provision of plaintiff’s sentence that proscribed parole was removed in 1976. Plaintiff has been considered for parole nine times since 1976 and has been denied parole each time.

In November 1982, plaintiff filed an action for damages and declaratory relief and for a writ of habeas corpus in the United States District Court for the Northern District of Illinois, alleging that the Review Board had acted unlawfully and improperly in denying him parole. The district court dismissed both plaintiff’s suit for declaratory judgment and his petition for writ of habeas corpus on the grounds that plaintiff had failed to exhaust his State remedies. Thereafter, plaintiff petitioned the Illinois Supreme Court for a writ of mandamus, but the supreme court denied plaintiff’s petition without stating its reasons for the denial. The plaintiff then asked the district court to reinstate plaintiff’s action, which the court did, ruling that plaintiff had now exhausted his State remedies. However, after a hearing, plaintiff’s request for habeas corpus relief and also his request for relief on his other claims were denied.

Next, plaintiff appealed to the Court of Appeals for the Seventh Circuit. The Seventh Circuit held that plaintiff had not in fact exhausted his State remedies since his petition only asked for leave to file a writ of mandamus and the Illinois Supreme Court’s denial of his petition was not a decision on the merits. Hence, the court said that plaintiff was required to petition the circuit court of Cook County for a writ of mandamus before he could proceed in Federal court with his action. Consequently, as stated above, plaintiff then unsuccessfully petitioned the circuit court of Cook County for a writ of mandamus. This appeal has now followed.

Mandamus relief is an extraordinary remedy used to direct a public official or body to perform a duty which the plaintiff has a clear right to have performed and which is ministerial, i.e., a duty which does not involve the exercise of judgment or discretion. (Daley v. Hett (1986), 113 Ill. 2d 75, 80, 495 N.E.2d 513, 515; People ex rel. Abner v. Kinney (1964), 30 Ill. 2d 201, 207, 195 N.E.2d 651, 654.) Mandamus cannot be used to direct a public official or body to reach a particular decision or to exercise its discretion in a particular manner, even if the judgment or discretion has been erroneously exercised. (Daley, 113 Ill. 2d at 80, 495 N.E.2d at 515-16; Pardo v. Chrans (1988), 174 Ill. App. 3d 549, 554, 528 N.E.2d 1071, 1074.) Further, absent an abuse of discretion, a reviewing court will not overturn the trial court’s grant or denial of a writ of mandamus. Franks v. Tucker (1985), 132 Ill. App. 3d 455, 462, 476 N.E.2d 1315, 1320.

Plaintiff alleges that mandamus is the appropriate remedy in this case, citing the Third District Appellate Court decision in Graham v. Klincar (1987), 163 Ill. App. 3d 1091, 517 N.E.2d 606, along with various Federal decisions. The plaintiff in Graham, a prisoner sentenced to an indeterminate term of 40 to 80 years for felony murder, filed a habeas corpus petition seeking his release from prison. (Graham, 163 Ill. App. 3d at 1092, 517 N.E.2d at 607.) The plaintiff there alleged that a newly enacted requirement that the Review Board conduct an en banc parole hearing before it could grant parole, under which the plaintiff was denied parole, was unconstitutional. (Graham, 163 Ill. App. 3d at 1092, 517 N.E.2d at 607.) The third district did not agree and held that the Review Board had not violated the plaintiff’s constitutional rights when it denied him parole since the plaintiff had not served his maximum sentence and no events warranting his discharge had occurred. Accordingly, the court ruled that the plaintiff had failed to state a claim for either habeas corpus or mandamus relief. (Graham, 163 Ill. App. 3d at 1093, 517 N.E.2d at 607.) However, in distinguishing the two forms of relief, the court observed, “Mandamus *** compels public officials to exercise their vested discretion. [Citation.] Such proceedings may appropriately remedy constitutional violations of parole procedures.” (Graham, 163 Ill. App. 3d at 1092, 517 N.E.2d at 607.) Plaintiff cites the above-quoted statement in support of his request for mandamus relief here.

In this same regard, plaintiff also relies on several Federal decisions to support his petition for mandamus. Among the Federal cases that plaintiff relies on is United States ex rel. Johnson v. McGinnis (7th Cir. 1984), 734 F.2d 1193. In Johnson, the plaintiff had filed a petition for writ of habeas corpus in the Federal district court. (See United States ex rel. Johnson v. McGinnis (N.D. Ill. 1983), 571 F. Supp. 270, rev’d (7th Cir. 1984), 734 F.2d 1193.) The plaintiff was challenging, on constitutional grounds, the Review Board’s reasons for denying him parole. (Johnson, 734 F.2d at 1194.) The district court granted the plaintiff’s petition, but the Seventh Circuit reversed and denied plaintiff’s petition. (Johnson, 734 F.2d 1193.) The Seventh Circuit held that the plaintiff had failed to exhaust his State remedies because he had not petitioned the State courts for a writ of mandamus. (Johnson, 734 F.2d at 1200.) The Johnson court, in reversing the Federal district court, said that “petitions for writs of mandamus *** may be an appropriate remedy for constitutional violations of parole procedures and prison conditions.” (Johnson, 734 F.2d at 1198.) Consequently, the plaintiff asserts that inasmuch as the Federal courts will not review a mandamus petition unless it has been brought before a State court, and in view of the statement of the Hlinois Appellate Court in Graham, he was entitled to a determination on his writ of mandamus and, accordingly, the trial court was in error when it ruled that mandamus was not an appropriate remedy.

On the other hand, defendants assert that the circuit court properly denied plaintiff’s petition for a writ of mandamus. Defendants point out that the Review Board is vested with the exclusive authority to parole inmates (see Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 3—1 et seq.), and that its decision to grant or deny a request for parole is entirely discretionary. Therefore, the decision to deny plaintiff’s parole requests here was an exercise of the Board’s discretion and was not subject to a mandamus action. The defendants further argue that even if the Review Board’s action was subject to mandamus, there was, nonetheless, no constitutional violation since inmates in Hlinois have no protected interest in parole. See People ex rel. Castle v. Spivey (1957), 10 Ill. 2d 586, 141 N.E.2d 321.

We agree with the defendants that their decision to deny parole to plaintiff was a discretionary decision and, thus, not normally a proper subject for mandamus relief. This is particularly true here, since in his petition for a writ of mandamus, plaintiff specifically asked that the Review Board be directed and commanded to grant him parole. Under section 3 — 3—5 of the Unified Code of Corrections, however, the Prisoner Review Board has, as noted, complete discretion to determine whether a prisoner is eligible for parole. (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 3—5.) Hence, since mandamus cannot be used to direct an inferior tribunal to reach a particular decision or to exercise its discretion in a particular manner (Daley, 113 Ill. 2d at 80, 495 N.E.2d at 515), mandamus was not an appropriate form of relief here.

We agree that in certain cases allegations of constitutional violations by an inmate can state a cause of action for mandamus relief. For example, mandamus has been used to compel the Review Board to grant an accused parole violator a reasonably prompt final revocation hearing. (People ex rel. Tucker v. Kotsos (1977), 68 Ill. 2d 88, 368 N.E.2d 903.) It has also been used to compel prison officials to follow their internal rules for disciplinary hearing procedures (Taylor v. Franzen (1981), 93 Ill. App. 3d 758, 417 N.E.2d 242), to determine whether the Review Board has improperly denied an inmate the good-time credits to which he is entitled (Freeman v. Lane (1985), 129 Ill. App. 3d 1061, 473 N.E.2d 584; Cornes v. Groves (1984), 122 Ill. App. 3d 1085, 462 N.E.2d 722), and to compel the Review Board to provide an inmate with a hearing on his application for parole, once the inmate has become eligible for parole (People ex rel. Abner v. Kinney (1964), 30 Ill. 2d 201, 195 N.E.2d 651).

In all of the cases cited above, unlike the present case, the petitioners sought mandamus essentially to compel the Review Board to exercise its discretion. Here, plaintiff concedes that the Review Board has exercised its discretion. The plaintiff in this case is challenging the result of the Review Board’s exercise of discretion and is asking this court to direct the Review Board to exercise its discretion in a certain manner. As noted earlier, mandamus will not lie in such a case.

Additionally, there is no basis for plaintiffs claim that mandamus is the appropriate remedy to redress every alleged unconstitutional denial of parole in Illinois. Plaintiff cites Graham as authority for this contention, but the statement in that case upon which plaintiff relies was merely dicta. (See Graham, 163 Ill. App. 3d at 1092, 517 N.E.2d at 607.) Also, in Graham, the court actually denied the plaintiff’s request for relief. In a case similar to the present case, the Illinois Fourth District Appellate Court has expressly held that a plaintiff was not entitled to a writ of mandamus based on his allegation that the Review Board there had unlawfully and unconstitutionally denied him parole. (See Pardo v. Chrans (1988), 174 Ill. App. 3d 549, 528 N.E.2d 1071.) Therefore, we find that the circuit court properly denied plaintiff’s petition for a writ of mandamus here. We also find that plaintiff’s general contention that he was unconstitutionally denied parole is legally insufficient to state a basis for a writ of mandamus.

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

Judgment affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE O’CONNOR

text:
    ROBERT RATHKE, Plaintiff-Appellant, v. JERRY ALBEKIER et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—1934
    Opinion filed March 20, 1989.

      Law Offices of Frances J. White, of Downers Grove (William F. White, of counsel), for appellant.
    Parrillo, Weiss & Moss, of Chicago (Michael J. O’Halloran and Keely Howe, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from the dismissal of an action to recover damages pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). At issue is whether a release given to a dramshop also releases an allegedly intoxicated motorist with respect to injuries caused by the motorist, pursuant to the common law rule that a release of one joint tortfeasor releases all, where the cause of action arose prior to the effective date of “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.) (Contribution Act). We reverse.

Plaintiff, Robert Rathke, was bom May 24, 1967. The parental rights of his natural parents were terminated under docket No. 67— J — 4767, and he was adopted on September 2, 1981.

On October 6, 1977, during a visit to his natural mother, Marie Albekier, he was a passenger in a car driven by her husband, Jerry Albekier, which collided with a car driven by defendant Carol Fanning.

On December 2, 1977, a lawsuit was filed against Carol Fanning by Jerry Albekier, Marie Albekier and Robert Turza [now Rathke], a minor, by Marie Albekier as his mother and next friend. That suit was terminated by a stipulation to dismiss entered on January 10,1980.

In 1978, a lawsuit was filed on behalf of the plaintiff against the Howard Johnson Company, the Ground Round, Inc., and various employees under “An Act relating to alcoholic liquors” (HI. Rev. Stat. 1977, ch. 43, par. 135) (Dramshop Act). In that action it was alleged that those defendants had sold, served or given alcoholic beverages to Carol Fanning and they were therefore liable for injuries sustained by Rathke in the October 16,1977, accident.

In 1985, after reaching the age of majority, plaintiff settled the dramshop action and signed a release for a money settlement to the Howard Johnson Company and the Ground Round, Inc., of all claims for injuries resulting from the 1977 accident.

On November 14, 1985, Rathke filed the present lawsuit against Jerry Albekier, Marie Albekier and Carol Fanning. The counts against the Albekiers were dismissed after failure to obtain service. Defendant Fanning’s motion to dismiss was granted on the basis of the release given in the dramshop case. Plaintiff now appeals.

The plaintiff contends that the release given to the dramshop cannot release Carol Fanning because a release given to a nontortfeasor does not discharge a tortfeasor. Plaintiff cites Hopkins v. Powers (1986), 113 Ill. 2d 206, 211, 497 N.E.2d 757, in which the Illinois Supreme Court stated that a tavern’s “liability is limited to the exclusive, sui generis nontort liability of the Dramshop Act.” Plaintiff also relies on Clear-Vu Packaging, Inc. v. National Union Fire Insurance Co. (1982), 105 Ill. App. 3d 671, 434 N.E.2d 365, in which the court noted that “a release given a nontortfeasor does not release another who may be a tortfeasor.” Clear-Vu, 105 Ill. App. 3d at 675.

The defendant contends that as this case arose prior to the Contribution Act, which applies only to causes of action arising on or after March 1, 1978 (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.), it is governed by the common law rule of releases under which “a full release of one indivisible injury to any of those concurring in its cause releases both joint and independent concurrent tortfeasors.” (See Porter v. Ford Motor Co. (1981), 103 Ill. App. 3d 848, 850, 431 N.E.2d 1261, aff’d (1983), 96 Ill. 2d 190.) The defendant also relies on Schrempf v. New England Mutual Life Insurance Co. (1982), 103 Ill. App. 3d 408, 412, 431 N.E.2d 402, in which the court noted that the common law rule was applicable to parties “concurrently liable for a single indivisible injury as well as to those who are technically joint tortfeasors.”

The common law rule requiring the release of all tortfeasors upon the release of one was devised to prevent a claimant from filing suit against joint tortfeasors in a piecemeal fashion, thereby collecting an amount greater than one satisfaction. (See, e.g., Manthei v. Heimerdinger (1947), 332 Ill. App. 335, 75 N.E.2d 132.) This rule has been variously described as “unfair,” “harsh” and “without any rational basis,” as it often operated unfairly and failed to take into account the intention of the parties. (J. Calamari & J. Perillo, Contracts §20 — 3 (2d ed. 1970).) In Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 461 N.E.2d 361, the court considered whether a tort-feasor who had settled in good faith with a claimant pursuant to section 2(c) of the Contribution Act was discharged from all liability for any contribution to any other tortfeasor. The court held that a party who did not bargain for a release is not discharged by the release unless expressly named. While this decision arose in the context of the Contribution Act, the court also held this rule applicable to all releases executed after January 20, 1984. Alsup, 101 Ill. 2d at 202-03.

The only question to be decided then is whether in executing a release in favor of the dramshop, plaintiff intended also to release Carol Fanning. In interpreting releases, Illinois courts “restrict the language of a general release to the thing or things intended to be released and refuse to interpret generalities so as to defeat a valid claim not then in the minds of the parties.” (Beauvoir v. Rush-Presbyterian-St. Luke’s Medical Center (1985), 137 Ill. App. 3d 294, 304, 484 N.E.2d 841, quoting Gladinus v. Laughlin (1977), 51 Ill. App. 3d 694, 696, 366 N.E.2d 430.) In determining intent we are required to look both to the language of the agreement and the circumstances surrounding its execution to determine the intent of the parties. (Whitehead v. Fleet Towing Co. (1982), 110 Ill. App. 3d 759, 762-63, 442 N.E.2d 1362.) Where a release makes no mention of a joint tort-feasor nor states that it is in full satisfaction of all of a plaintiffs claims against all potential parties, we will not conclude that the plaintiff intended to release such unnamed parties. (See Clear-Vu Packaging, Inc. v. National Union Fire Insurance Co. (1982), 105 Ill. App. 3d 671, 674, 434 N.E.2d 365.) Reviewing the facts of the instant case in light of Alsup and the above principles, we are persuaded that neither the plaintiff nor the dramshop intended that any claims other than those against the dramshop be released.

Plaintiff filed the instant suit against Carol Fanning on November 14, 1985. On November 19, 1985, only five days later, the dramshop suit was settled. The release stated that it released the dramshop action and named the dramshop defendants individually. The release clearly states that the payors of the -settlement are the persons to be released and the payors named in the release were those who actually bargained for and obtained the release. There is no basis upon which to assume that when Rathke and the Howard Johnson Company executed the release as to the dramshop defendants they intended to release Fanning, who had not bargained for the release and was neither expressly named nor implied in the release. See Alsup, 101 Ill. 2d at 202-03.

For the above stated reasons, the judgment of dismissal is reversed and the cause is remanded to the circuit court of Cook County.

Judgment reversed.

BUCKLEY and QUINLAN, JJ., concur.


author: JUSTICE SCARIANO

text:
    GENE HANNAH, Plaintiff-Appellant, v. MIDWEST CENTER FOR DISABILITY EVALUATION, INC., et al., Defendants (Marshall Matz, Defendant-Appellee).
    First District (2nd Division)
    No. 1—87—3346
    Opinion filed March 21, 1989.

      Drumke & Patterson, Ltd., of Chicago (Robert B. Patterson and Danielle M. Jaeschke, of counsel), for appellant.
    Joseph P. Switzer and Susan J. Flieder, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff brought this action against defendants to recover damages for their allegedly misrepresenting to a claims adjustment firm the medical opinion of plaintiff’s treating physician. The trial court granted defendant Marshall Matz’ motion for summary judgment after determining that there was “not one shred of evidence presented to [him] in the file that indicatefd] that Matz had anything to do with these events.” A motion for summary judgment brought against plaintiff by Cullen and Midwest was denied by the circuit court. On plaintiff’s appeal, the issue is whether the court properly awarded summary judgment to Matz in light of his motion, the materials in support thereof, and the inferences reasonably to be drawn therefrom.

Having suffered a series of three injuries to his lower back, plaintiff sought workers’ compensation benefits from his employer, Nehi Royal Crown Corporation (Nehi). Nehi was self-insured and utilized the services of the Martin Boyer Company to investigate and adjust plaintiff’s claims; Robert Shapin was the Martin Boyer claims agent administering plaintiff’s case.

In the course of his treatment by various physicians, plaintiff was hospitalized repeatedly and underwent surgery on his lower back twice. Shapin, as is permitted by Illinois law, had plaintiff examined twice by Matz, a neurosurgeon of Martin Boyer’s choice, for evaluations as to disability. Matz first saw plaintiff on February 13, 1980, and reported his findings to Martin Boyer on his medical service corporation letterhead: M.I. Matz, M.D., and D.M. Shenker, M.D., S.C. Matz was not plaintiff’s treating physician. Plaintiff was then under the care of Dr. W. Patrick Smyth, but on February 21, 1980, he came under the treatment of Dr. Dale Vachout, who thereafter remained his doctor for the entire period pertinent to this case.

During the year 1980, plaintiff received rehabilitational counseling from a Mr. Pindelski of International Rehabilitation Associates (IRA), who, during the period of such counseling, helped plaintiff obtain a job as an inventory control person and bottle labeler. IRA’s services were provided at the request of plaintiff’s counsel, and Martin Boyer approved payment therefor; but IRA’s efforts proved unsuccessful when plaintiff became incapable of performing the duties required of him in his new position.

In November 1980, plaintiff underwent a laminectomy performed by Dr. Hernando Torres, and after a period of post-operative recovery, plaintiff saw Matz for his second medical evaluation. Immediately following the examination, Matz reported his findings to Martin Boyer in a letter written on his medical service corporation letterhead — the same procedure that he followed after the first examination.

In February of 1981, Shapin referred plaintiff to the Midwest Center for Disability Evaluation, Inc. (Midwest), for rehabilitation services. Andrea Cullen was the specialist at Midwest assigned to handle plaintiff’s rehabilitation program; Matz was the owner and incorporator of Midwest, which was not legally formed until December of 1980 and did not begin to do business until January 1,1981.

On March 19, 1981, plaintiff attempted to return to work at Nehi as a checker, a position that involved counting merchandise contained in trucks before they left Nehi’s premises. However, he was physically unable to perform the tasks required by this job, as it demanded bending, climbing and twisting, so he left work that day and saw or spoke to Dr. Vachout on March 20, 1981.

On March 20 or 21, 1981, Cullen had a telephone conversation with Shapin, during which she reported that she had spoken with Dr. Vachout, who informed her that plaintiff had a psychological motivation not to return to work — essentially “pain for gain,” as she characterized it. She further reported that Dr. Vachout held the opinion that continued vocational rehabilitation was useless, that plaintiff would not return to work until his case was settled, and that plaintiff was not a “permanent total.” She wrote a report, dated March 23, 1981, to Shapin which included the statements allegedly made by Dr. Va-chout. As a result of Cullen’s report, Shapin told her to close the file and cease rehabilitation. Dr. Vachout denied making the statements.

Plaintiff then filed suit against Cullen, Midwest, and Matz, alleging in essence that their false reporting of Dr. Vachout’s statements resulted in the wrongful termination of plaintiff’s workers’ compensation benefits and in his loss of future opportunities for employment. Neither of the two counts of the complaint alleges that Matz is liable as Cullen’s employer under a respondeat superior theory, but that Matz himself had either negligently misrepresented Dr. Vachout’s opinion to Martin Boyer, or had willfully participated in or authorized Cullen’s false report. Matz filed an answer denying all allegations of wrongdoing. The issue on appeal, therefore, is whether there was sufficient evidence to raise a genuine issue of material fact concerning Matz’ personal involvement in the alleged misconduct.

Matz’ motion for summary judgment alleges that he was not a participant or otherwise involved in Cullen’s false reporting of Dr. Va-chout’s opinion. Cullen denied ever speaking with Matz regarding plaintiff. Accompanying his motion was Matz’ affidavit stating that Midwest, a corporation of which he was founder and president, provided rehabilitation services and counseling and employed Cullen as a rehabilitation consultant; that a separate medical service corporation, M.I. Matz, M.D., and D.M. Shenker, M.D., S.C., of which Matz was an officer and employee, provided neurosurgical and neurological treatment; that the physicians at the medical service corporation treated their own patients and evaluated injured persons, such as the plaintiff, at an employer’s or its representatives’ request, while no such services were available at Midwest; that his medical service corporation was located in a separate office than that of Midwest; that he had no keys to Midwest; that he did not refer any patients to Midwest; that Cullen maintained Midwest’s office records and its telephone service; that Cullen made all rehabilitation decisions on her own, and he had never reviewed any of her rehabilitation reports; that he had no right to control the performance of Cullen’s duties as a rehabilitation consultant; that he did not participate in any decisions relating to rehabilitation services provided to the plaintiff and that he had never provided plaintiff with any rehabilitation services; and, finally, that his two examinations of the plaintiff were performed not for rehabilitation purposes but to evaluate the plaintiffs neurological condition pursuant to the provisions of the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.).

It also appears from the other materials filed in the summary judgment proceeding that Matz as sole shareholder was the only person who stood to profit from Midwest’s operations and that he held all of its operating authority, including the right to hire and fire employees; that as treasurer of the corporation, Matz maintained the bank account for Midwest at the North Bank in Chicago, and that he held the checkbook and signed all checks; that Midwest printed a promotional brochure entitled, “Back To Work,” which stated that Midwest’s rehabilitation services were “totally unique among our competition” because “we combine vocational and medical rehabilitation,” and that “we’re staffed to see, evaluate and treat if necessary”; and that the brochure spoke of the “M.C.D.E. medical staff” as well as “consulting doctors.”

In addition, Midwest’s stationery used for Cullen’s report of March 23, 1981, lists Marshall I. Matz, M.D., in the section which identifies employees of the company. The “Consulting Staff” is listed below the employee section, but does not include Matz’ name. Both Matz and Cullen stated in their depositions that Matz occasionally would participate in examining and evaluating Midwest clients that Cullen referred to him, and that although Matz examined plaintiff on February 18, 1981, at Shapin’s request, the examination was not connected in any way with Midwest’s rehabilitation services. Matz asserted that he was not aware of the circumstances under which plaintiff was referred to Midwest; Cullen stated that Shapin referred plaintiff to Midwest through a telephone conversation and, as already noted, that she did not speak with Matz regarding plaintiff. In some referral situations, Martin Boyer would send Cullen or Midwest a referral sheet, in which Martin Boyer “could” request particular services, such as job placement; however, Martin Boyer did not send a referral sheet for plaintiff.

Plaintiff charges that Matz was personally involved in the rehabilitation program administered by his solely owned rehabilitation service company, Midwest, contending that when one considers “the small size of Midwest,” and “Matz’s total control over Cullen,” especially “in the absence of a credible denial by both of them, a jury could well find, based on the factual circumstances, that Matz necessarily had to know and approve of Cullen’s misconduct in falsely reporting Dr. Va-chout’s opinion to Shapin/Martin Boyer.” Plaintiff further maintains that the trial judge “narrowly focused” his granting of Matz’ motion for summary judgment “on whether there was direct evidence showing that Matz participated in the authorship of the false reports of March 20 or 23, 1981,” made by Cullen; thus, he was “deprived of the reasonable inferences which a jury could draw from the totality of the circumstances.”

Only the existence of a genuine issue of material fact will preclude the granting of summary judgment. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) The trial court must construe the motion, pleadings and supporting materials strictly against the moving party and liberally in favor of the opponent. A party moving for a summary judgment must affirmatively show a clear legal right, free from any doubt. If any facts upon which reasonable persons may disagree are identified, or if inferences which may be reasonably drawn from those facts lead to different conclusions, the court must deny the motion and direct that the resolution of those facts and inferences be made at trial. Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 515 N.E.2d 1047.

Plaintiff asserts that there are several questions of fact raised by the “conflicting” testimony of Matz and Cullen and the documentary evidence verified by the affidavit of plaintiff’s attorney, Kenneth S. Lewis. Plaintiff contends that although Matz claimed in his motion for summary judgment that he was in no way involved in the rehabilitation services provided to him by Midwest, the notes taken by Ed Mi-kel, a paralegal employed by Lewis, of a February 19, 1981, telephone conversation he had with Cullen demonstrate that Matz told her that plaintiff needed rehabilitation and that Matz would suggest it in his report. The suggestion does not appear in Matz’ report.

Plaintiff raises these other instances of alleged inconsistencies based upon some of the interactions between Cullen, Matz and Sha-pin: first, plaintiff refers to Cullen’s testimony that she never talked to Matz concerning Hannah, which he brands as plainly false. Plaintiff alleges that Matz did not deny that he discussed plaintiff’s rehabilitation program with Cullen, but claims only that he could not recall one way or the other. Therefore, plaintiff contends that a genuine issue of material fact exists concerning the extent to which Matz did discuss plaintiff’s rehabilitation program with Cullen.

Second, plaintiff insists that a substantial question of fact arises as a result of the method by which his February 18, 1981, examination by Matz was arranged, charging that the absence of a referral sheet from Martin Boyer was out of the ordinary. Plaintiff also suggests that evidence of the absence of a referral sheet in combination with Cullen’s lack of recollection as to why plaintiff was referred to Midwest could cause a jury to conclude that the arrangements of his rehabilitation program occurred in discussions between Matz, Shapin and Cullen at a date prior to Matz’ examination of plaintiff on February 18,1981.

Third, pointing to the Midwest “Back To Work” brochure, plaintiff indicates that it states that the evaluation process begins with a medical evaluation by the “primary physician or by one of our medical staff.” Plaintiff finds it odd that Dr. Vachout, as plaintiff’s primary physician, was not asked to perform an evaluation of the plaintiff. He further contends that it may be inferred from Mikel’s notes of February 19, 1981, that Matz immediately thereafter called Cullen and suggested rehabilitation for plaintiff. Plaintiff adds that Matz was identified on the letterhead of Midwest in a section which identifies employees of the company, as opposed to consultants, arguing therefrom that a jury could find it more probably true than not that Matz was chosen as the evaluating physician at some time before February 6, 1981, that Cullen knew of this, and that Matz’ evaluation on February 18, 1981, was intended to refute his providing rehabilitation to plaintiff.

Fourth, plaintiff alleges that “Matz’s inability to recall pertinent details of plaintiff’s involvement with Midwest appears conveniently motivated by his self-serving desire to divorce himself from any connection with the plaintiff.”

Plaintiff entreats this court to believe that these alleged inconsistencies would allow a jury to draw a reasonable inference that Matz was involved in the making of Cullen’s false report and that such an inference is the only rational explanation of Cullen’s misconduct in fabricating Dr. Vachout’s opinion.

Plaintiff further exhorts us that the determination of the extent of Matz’ involvement in plaintiff’s rehabilitation program, the likelihood of Matz’ participation in wrongdoing from the time the initial program was instituted, and the likelihood that Cullen hardly acted alone are matters for resolution by a jury, stoutly insisting that a jury should be allowed to hear defendant’s testimony and adjudge its credibility.

The parties are in agreement that for an officer or director of a close corporation to be liable for the tortious act of a corporate employee, the officer or director must have actively participated in or personally authorized the specific act of the employee. (Main Bank v. Baker (1981), 86 Ill. 2d 188, 204, 427 N.E.2d 94; Fure v. Sherman Hospital (1977), 55 Ill. App. 3d 572, 371 N.E.2d 143.) Matz emphasizes that the record unequivocally establishes that he neither actively participated in nor personally authorized Cullen’s report; and, noting that status, association, speculation, and assumption do not and cannot make a corporate officer liable for the wrongful acts of a corporate employee, the trial court properly entered summary judgment in his favor. We agree.

Merely to set forth in this opinion, as we have, a compendium of the evidence and a liberal representation of plaintiff’s arguments, all of which the trial court had before it in ruling on Matz’ motion for summary judgment, is to prompt the suggestion that, after making due allowance for all reasonably possible inferences, mere speculation cannot be permitted to perform duty for probative facts. As the court held in Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 468 N.E.2d 422:

“Where from the proven facts the nonexistence of the fact to be inferred appears to be just as probable as its existence (or more probable than its existence), then the conclusion that it exists is a matter of speculation, surmise, and conjecture, and a jury will not be allowed to draw it.” (Consolino, 127 Ill. App. 3d at 34, quoting James, Sufficiency of the Evidence & Jury-Control Devices Available before Verdict, 47 Va. L. Rev. 218, 221-22 (1961).)

Here, the record is barren of any evidence as to why Cullen falsely represented Dr. Vachout’s opinion to Shapin, nor is there anything from which it can reasonably be inferred that Matz participated in or authorized the preparation or transmittal of the disputed report.

The record in this case consists of 686 pages and indicates that extensive, if not plenary, discovery was had byboth sides, including the taking of the depositions of Cullen, Matz, Shapin, Lewis and plaintiff, as well as the filing of voluminous exhibits and sworn answers to extensive interrogatories. From this profusion of materials, plaintiff has managed to submit to this court two briefs steeped in sheer speculation, suffused with gross suspicion and shrouded in a most unedifying host of incriminating accusations, as witness his lacing his arguments with such assertions as: “the absence of a credible denial by Matz and Cullen”; “Cullen’s testimony that she never talked to Dr. Matz about Gene Hannah is plainly false”; “Cullen was caught in her own lie”; “A jury, using its experience in the ordinary affairs of life, could well find that some corrupt scheme was underway”; “Isn’t plaintiff entitled to have defendants explain this strange arrangement to a jury?”; “The circumstances of the two telephone conversations of February 20, 1981, also strongly infer [sic] an early pattern of false representations”; “Dr. Matz’s demonstrated lack of credulity on important factual questions”; “Plaintiff can show material misstatements under oath by Dr. Matz and Cullen”; “A Jury is not bound to accept the obviously untrue denials of Matz’s involvement made by Cullen and Matz”; “[Matz] probably condoned or directed Cullen’s wrongful conduct”; and “defies credulity and ***, appears far fetched.” (Emphasis added.)

Opposition to a motion for summary judgment grounded on such bare assertions, unsupported by any probative facts or by any authority, provides the court with only the dramatis personae and the plot line for a novel of Byzantine intrigue, for it is clear that at most, since he has already deposed defendants as on cross-examination, plaintiff is only asserting his desire for a further opportunity to “shake” the sworn testimony they have already given. But he must point to specific facts, or to reasonable inferences from the facts, or to some particularized ground for the possible impeachment of defendants in order to prevent the entry of summary judgment against himself — mere incantatory invocations of “credibility,” in light of the record in this case, do not suffice. Surely, plaintiff, as the burdened party, should not be permitted to avoid summary judgment and advance to trial under the facts in this case merely by suggesting that defendant’s affidavits and sworn discovery testimony are false. Such a rule would make a mockery of the summary judgment procedure, for it would obviously increase delay and expense in the final disposition of litigation and would thus exacerbate the very problem the procedure was devised to solve.

Nor can Matz be held personally liable for the wrongdoing of one of Midwest’s employees simply because his company is a small one. (See Gallagher v. Reconco Builders, Inc. (1980), 91 Ill. App. 3d 999, 1004, 415 N.E.2d 560.) Plaintiff cites no authority, nor do we find any, which authorizes our courts to impose liability under the facts developed in this case.

We hold that the trial court properly granted defendant Matz’ motion for summary judgment. We find no evidence which even dimly suggests linking Matz with Cullen’s false representation of Dr. Va-chout’s opinion. Status, association, speculation, suspicion, accusations, surmise, conjecture and assumption do not and cannot make a corporate officer or director liable for the wrongful conduct of a corporate employee; much less do they permit our courts to submit allegations of his conduct to a jury accompanied by nothing in the way of proof thereof save the possibility that his denial may be disbelieved. Our courts do not exist for the purpose of affording litigants the opportunity to turn them into gaming dens.

Accordingly, the trial court’s award of summary judgment to defendant Matz is affirmed.

Affirmed.

EGAN, P.J., and BILANDIC, J., concur.


author: JUSTICE HARTMAN

text:
    JAMES W. McINTYRE, Plaintiff-Appellant, v. CHRIST HOSPITAL
      et al., Defendants (Joseph Cannon, Defendant-Appellee).
    First District (2nd Division)
    No. 1—88—1716
    Opinion filed March 21, 1989.
    — Rehearing denied April 29, 1989.

      Randolph C. Greune and Burton S. Odelson, both of Odelson & Sterk, Ltd., of Evergreen Park (John J. Lowrey and Mary Jo Smerz, of counsel), for appellant.
    Kiesler & Berman, of Chicago (Rory Cassidy, of counsel), for appellee.

      Pursuant to an agreed order, plaintiff dismissed defendants Christ Hospital, Dr. Karande and Dr. Chieng, incorrectly sued as Dr. Chen. The estate of Dr. Krolikowski remains as a defendant but is not a party to this appeal, which involves solely Dr. Cannon.

   JUSTICE HARTMAN

delivered the opinion of the court:

This appeal arises from the circuit court’s order granting defendant-appellee Dr. Joseph Cannon’s (defendant’s) motion for summary judgment, based on section 13 — 212 of the medical malpractice statute of limitations (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212).

James McIntyre (plaintiff) was born on September 13, 1963. On July 7, 1970, when plaintiff was six years old, defendant performed surgical repair of a hernia previously diagnosed by Dr. John R. Kroli-kowski, the family physician. Thereafter, plaintiff never again saw defendant.

At all times prior to and following the hernia surgery, plaintiff’s testicles were undescended, according to plaintiff’s affidavit, and at that time he did not know he had testicles, nor did he have any mass in that area or other indications that testicles were in fact present, but undescended.

Plaintiff visited Dr. Krolikowski regularly during grade and high school, at least once each year for physical examinations which included procedures wherein the doctor examined his genital area. Notwithstanding these procedures, Dr. Krolikowski never advised plaintiff or his mother, who accompanied him to the examinations until he reached high school age, that anything was wrong or abnormal with plaintiff’s genitalia. Plaintiff was not concerned about his missing testicles because of reassurances from Dr. Krolikowski that “[everything [was] fine,” and assumed the condition was “a direct part and parcel” of the hernia surgery.

Around the time plaintiff entered his freshman year of high school, he began noticing he had “less in the way of testicles than the other guys.” Throughout high school, he was self-conscious about his lack of testicles, but was never ridiculed by the other boys. He never confided in his parents or friends about his condition, not wishing to draw attention to himself. Because of Dr. Krolikowski’s reassurances, he never thought something was “wrong,” however.

Plaintiff became 18 years of age on September 13, 1981. From 1981 through 1984, when he worked for the Chicago Park District, plaintiff received mandatory preemployment physicals at the beginning of each summer from a Park District doctor. During the 1981-83 examinations, plaintiff could not recall whether the doctor asked him about any genital problems.

In December of 1983, when he was 20 years old, plaintiff developed a kidney stone for which he underwent surgery, performed by Dr. Frederick Wohlberg. Following the surgery, Dr. Wohlberg advised plaintiff he had undescended testicles. This was the first time plaintiff was aware that he even had testicles. He averred he previously had no reason to believe any remedial measures could have been taken regarding his condition and had no knowledge of the medical implications of undescended testicles. The next day, plaintiff underwent a surgical procedure that attempted to lower his testicles.

In an affidavit, Dr. Wohlberg stated that based upon a reasonable degree of medical certainty, defendant deviated from the appropriate standards of care in the earlier treatment of plaintiff’s hernia, which required: detection of plaintiff’s condition of undescended testicles in an examination that should have followed the surgery; informing plaintiff’s parents of the condition; and further surgery to lower the testicles.

Plaintiff filed suit against defendant, claiming medical malpractice, on January 22, 1985, 13 months after Dr. Wohlberg informed him of the undescended testicles. The complaint alleged that defendant negligently failed to properly examine, diagnose, inform, and treat plaintiff for his ongoing condition of undescended testicles. The suit was filed over 14 years after the alleged malpractice (July 1970), and three years, four months after plaintiff reached majority.

Defendant moved for summary judgment in the circuit court, contending plaintiff’s cause of action was time barred under section 13— 212. (Ill. Rev. Stat. 1985, ch. 110, par. 13—212.) He argued that plaintiff, upon reaching age 18 in 1981, knew or through the use of reasonable diligence should have known of his condition at some point during high school, and therefore should have brought this action within two years of his eighteenth birthday. The circuit court granted summary judgment for defendant, concluding that since plaintiff was aware of being considerably different, it was unreasonable as a matter of law for him not to inquire further into the existence of a cause of action arising from his condition.

Plaintiff appeals, arguing the circuit court erred in granting summary judgment because the question of whether he had actual or constructive knowledge of his injury and potential cause of action prior to his attaining majority was one of fact more properly determined by a trier of fact.

As a preliminary matter, section 13 — 212 bars claims related to medical treatment filed more than two years after a plaintiff knew or should have known of an alleged injury, and absolutely bars claims filed more than four years from the date of the act giving rise to the cause of action. (Moore v. A.H. Robins Co. (1988), 167 Ill. App. 3d 19, 23, 520 N.E.2d 1007, appeal denied (1988), 121 Ill. 2d 572, 526 N.E.2d 832.) The statute begins to run when plaintiff knows or reasonably should know of both the physical problem and the possibility that someone is at fault for its existence. (Roper v. Markle (1978), 59 Ill. App. 3d 706, 710, 375 N.E.2d 934; see also Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, 421 N.E.2d 869 (Witherell I), on remand (1986), 148 Ill. App. 3d 32, 499 N.E.2d 46, rev’d (1987), 118 Ill. 2d 321, 515 N.E.2d 68 (Witherell II); Moore v. A.H. Robins Co., 167 Ill. App. 3d at 23.) Prior to January 1, 1988, section 13—212, however, was subject to section 13—211 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13—211) and the statutory period tolled for a surviving malpractice victim under the age of 18 until he attained majority. Dachs v. Louis A. Weiss Memorial Hospital (1987), 156 Ill. App. 3d 465, 468, 509 N.E.2d 489.

A plaintiff must bring an action within two years of the date on which he knew or reasonably should have known of his injury, and also knew or reasonably should have known that it was wrongfully caused. (Ill. Rev. Stat. 1987, ch. 110, par. 13—212; Saunders v. Klungboonkrong (1986), 150 Ill. App. 3d 56, 59, 501 N.E.2d 882.) This two-part inquiry is to be neither narrow nor expansive. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414-15, 430 N.E.2d 976.) Under the statute, “wrongfully caused” does not mean knowledge by plaintiff of a specific defendant’s negligent act or knowledge that an actionable wrong was committed; rather, a person knows or reasonably should know an injury is “wrongfully caused” when he possesses “sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” (Knox College, 88 Ill. 2d at 416; Moore v. A.H. Robins Co., 167 Ill. App. 3d at 23.) The burden then falls on plaintiff to investigate further as to the existence of a cause of action. Witherell, 85 Ill. 2d at 156.

The inquiry of whether a plaintiff knew or reasonably should have known that his injury was caused by a defendant’s wrongful conduct may involve the nature of the injury itself; the more obvious an injury, the more easily a plaintiff should be able to determine its cause. (Saunders, 150 Ill. App. 3d at 60.) If the injury is an aggravation of a physical problem which could develop naturally, absent negligent causes, a plaintiff is not expected to immediately know of its potentially wrongful cause. (Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 486, 473 N.E.2d 1322.) Until a plaintiff knows that his seemingly innocent condition is perhaps the result of another’s negligent acts, he has no opportunity to discover that a cause of action exists. Saunders, 150 Ill. App. 3d at 60.

Ordinarily, whether plaintiff knew or reasonably should have known both of his injury and that it was caused by a wrongful act are genuine issues of fact to be determined by the finder of fact. (Witherell, 85 Ill. 2d at 156.) Summary judgment is appropriate only where the pleadings, depositions, and affidavits, construed most strongly against the movant and most liberally in favor of the opponent, show that judgment should be granted as a matter of law. (Aspegren v. Howmedica, Inc. (1984), 129 Ill. App. 3d 402, 403-04, 472 N.E.2d 822; Saunders, 150 Ill. App. 3d at 61.) If only one conclusion can be drawn from the undisputed facts, the question becomes one for the court. (Witherell, 85 Ill. 2d at 156.) Close questions on this issue, as here, should not be decided as matters of law, but are best left for juries. Peterson v. Loseff (1987), 159 Ill. App. 3d 16, 21, 512 N.E.2d 5.

Defendant points to the following statements and acknowledgments made by plaintiff at his deposition as demonstrating sufficient knowledge of the injury or problem: plaintiff admitted his condition was a physical characteristic one would notice, “like having three fingers”; he articulated “in [his] own mind” that he had less bulk in the testicle area than other boys; and, although he was never ridiculed he was self-conscious of the problem, positioning himself in the high school locker room to conceal his genital area. Defendant further suggests that plaintiff knew things were not right and knew or should have known someone was at fault for his problem, because he thought his condition was attributable to the hernia surgery. This was a clear admission by plaintiff, defendant argues, that someone was at fault for his missing testicles, and provides the necessary concurrence between knowledge of the injury and its wrongful causation to start the statute of limitations running when plaintiff reached majority. (Roper v. Markle, 59 Ill. App. 3d at 710.) At this point, defendant concludes, the burden was upon plaintiff to inquire further into the existence of a cause of action. Witherell, 85 Ill. 2d at 156.

Defendant’s conclusion overlooks an important factor, however, and must be rejected. Although plaintiff admits he had knowledge of the condition, and also thought it was caused by the hernia surgery, it does not necessarily amount to knowledge that the condition could have been wrongfully caused as a matter of law. His deposition testimony reveals he thought the condition was “part and parcel” of the surgery, which he never questioned, and while a result of the surgery, he didn’t think it was wrongfully caused because of repeated reassurances by his family doctor that everything was fíne.

Plaintiff also stated in his deposition and affidavit that he never thought that “something was amiss” or needed remedial procedures that might put him on notice of the wrongful cause of his condition until December 1983. Plaintiff avers that he had no apparent testicles either before or after surgery; he never experienced pain or bulging in the genital or lower abdomen area after the hernia operation; he always assumed he never had any testicles, and was never told of their undescended nature despite yearly physical examinations by Dr. Krolikowski and additional physicals by a Park District doctor; and, after Dr. Krolikowski’s death, he did not see another physician who might have alerted him until the kidney stone problem in December 1983.

In looking at the nature of the injury claimed by plaintiff (failure to diagnose undescended testicles), therefore, it cannot be held as a matter of law that plaintiff knew or necessarily should have known his lack of descended testicles was caused by defendant’s wrongful conduct. Further, defendant’s failure to diagnose the undescended testicles is not the traumatic kind of injury that would immediately alert plaintiff as to its existence. (See Lebrecht v. Tuli, 130 Ill. App. 3d at 486-87; see also Saunders, 150 Ill. App. 3d at 60-61.) Defendant insists that plaintiff reasonably should have known of the wrongful causation by the time he was in high school to at least require him to investigate further, relying on Witherell (85 Ill. 2d at 156). There, the plaintiff experienced leg problems shortly after taking the medication; knew that the pill could cause blood clots; and knew she in fact had blood clots in her leg, upon which the court held that she had sufficient knowledge as a matter of law to put her on inquiry to investigate further. (85 Ill. 2d at 156-57.) Here, plaintiff was never told of his actual condition until December 1983; nor was he ever informed of a possible link between his condition and a potentially wrongful cause.

Closer in factual circumstances is Paske v. Green (1986), 142 Ill. App. 3d 367, 491 N.E.2d 1195. There, the plaintiff was unsatisfied with certain cosmetic aspects of her dental bridgework and had bleeding gums which she attributed to the bridgework. The Paske court, however, refused to equate plaintiff’s dissatisfaction and discomfort from her bleeding gums as establishing knowledge of a wrongfully caused injury as a matter of law, although plaintiff’s deposition revealed she thought her problem “came with the bridgework” and was “something she had to live with”; she did not see another dentist despite the ongoing bleeding condition of her gums because she thought “she just had to live with” the problem; and, she claimed she was not aware she suffered an injury until a later consultation with a second dentist. (142 Ill. App. 3d at 370-71.) Similarly, in the instant case, plaintiff thought that his condition was something that naturally came with the hernia operation but was not aware of a wrongful injury until his later consultation with Dr. Wohlberg. It cannot be said, therefore, as a matter of law, that only one reasonable conclusion may be drawn from the evidence.

Defendant’s alternative argument, that the obvious nature of plaintiff’s condition created “constructive knowledge” of the condition, also must be rejected. Defendant suggests Ikenn v. Northwestern Memorial Hospital (1979), 73 Ill. App. 3d 694, 392 N.E.2d 440, is controlling, a case which involved a plaintiff, blind since birth, who at the age of 22 learned that her blindness might have been caused by medical care rendered during the first four weeks of her life. The Ikenn court held as a matter of law that plaintiff’s blindness was a physical problem which “imparted constructive knowledge that it was the result of a traumatic event occasioned by another's wrongful act” (73 Ill. App. 3d at 699), but there plaintiff made no allegation that she reasonably believed her condition was of innocent causation. (73 Ill. App. 3d at 699.) Ikenn is distinguishable from the instant case. The court in Ikenn specifically limited its holding to problems resulting from traumatic events (see Marciniak v. O’Connor (1981), 102 Ill. App. 3d 381, 385, 430 N.E.2d 536); the problem involved in the case sub judice, as noted above, is not of the traumatic type. Moreover, this case presents an important factor found missing in Ikenn: plaintiff here expressly stated that he always assumed his condition to be a natural, as opposed to a negligently caused, result of the operation. Most significantly, unlike Ikenn, plaintiff claims that he never possessed sufficient information to put him on inquiry to investigate further into a potential cause of action.

Plaintiff’s deposition shows that his family physician regularly gave him a physical which included examination of his genital area. After this procedure, he was always told everything was fine. These reassurances are relevant to whether plaintiff was put on inquiry of a possible wrongful cause. Given the close proximity of Dr. Kroli-kowski’s reassurances with the examination of plaintiff’s genitalia, we cannot say reasonable persons would not differ as to the reasonableness of plaintiff’s failure to inquire further.

In addition, unlike cases such as Witherell I and Moore, nothing thus far has been shown to have happened to plaintiff that might “chill any lulling” resulting from Dr. Krolikowski’s reassurances. (See, e.g., Moore, 167 Ill. App. 3d at 25-26.) Plaintiff’s other sexual development (pubic hair, facial hair, change in voice) was normal; he never had any problems with the sac area; he never experienced pain or discomfort in his groin or abdomen until the kidney stone; and he never had reason to see a doctor other than Dr. Krolikowski for a comprehensive physical examination until 1983. The only indication of any problem was the ongoing existence of plaintiff’s condition, which he thought was a natural result of the surgery. Given these circumstances, and construing them most favorably for plaintiff as we must under the rules, whether he possessed sufficient information to put a reasonable person on inquiry is a genuine issue of fact to be determined by a finder of fact. Entry of summary judgment was error.

For the foregoing reasons, the decision of the circuit court must be reversed, and the cause remanded for further proceedings.

Reversed and remanded.

EGAN, P.J., and SCARIANO, J., concur.

      Sections 13 — 211 and 13 — 212 were amended in 1987 and section 13 — 211 no longer applies to actions brought under section 13 — 212 in cases filed after January 1, 1988. The rights of surviving malpractice victims under the age of 18 are now delineated in section 13 — 212(b). Ill. Rev. Stat. 1987, ch. 110, pars. 13 — 211, 13—212.

      The classification of an injury as traumatic or nontraumatic is not considered a controlling factor. (Bebee v. Fields (1979), 79 Ill. App. 3d 1009, 1013, 398 N.E.2d 1214.) The only advantage derived from such a classification is that it “aids in the determination of the controlling factual issue in each case, namely, when did the plaintiff discover or when should he reasonably have discovered that the injury was caused by the defendant’s wrongful conduct.” Kristina v. St. James Hospital (1978), 63 Ill. App. 3d 810, 813, 380 N.E.2d 816.

      Not to be inferred is that Dr. Krolikowski’s reassurances can be used in an equitable estoppel argument against defendant. (See Smith v. Cook County Hospital (1987), 164 Ill. App. 3d 857, 518 N.E.2d 336.) These reassurances are relevant only to the information plaintiff had concerning his injury and its cause and whether his failure to inquiry further was reasonable.