text:
    KIM MARIE GIORDANO, f/k/a Kim Marie Qualls, Plaintiff-Appellant, v. JULIE MORGAN et al., Defendants-Appellees.
    Second District
    No. 2—89—0947
    Opinion filed May 9, 1990.
    Rehearing denied June 4, 1990.

      Michael D. Canulli, of Oak Brook, for appellant.
    Marilyn D. Woehrel, of Woehrel & Woehrel, of Westmont (Michael J. Smith, of counsel), for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

On December 13, 1985, plaintiff, Kim Giordano, filed a 10-count complaint against the following defendants: Julie Morgan, Gary Morgan, Kenneth G. Olson, Kenneth G. Olson & Associates, General Casualty Company of Illinois, KFS James, Inc., State Security Insurance Company, and the Friedberg Agency. In the complaint, plaintiff alleged that on October 26, 1984, she purchased a new 1985 Honda CRX. She maintained that she contacted Olson & Associates, insurance brokers, to procure a policy of automobile insurance. Through KFS-James, Olson & Associates procured insurance for plaintiff with General Casualty. Plaintiff alleged that, prior to October 31, 1984, she mailed her insurance premium check to General Casualty, but on December 15, 1984, plaintiff received two notices of cancellation from General Casualty. One notice stated that effective December 21, 1984, her policy was being cancelled for “non-payment of premium.” The other notice stated that, effective January 16, 1984, plaintiff’s policy was being cancelled for “Motor Vehicle History Violation.” Plaintiff alleged that upon receiving the notices she spoke with Kenneth Olson, who informed her that the cancellation notice for nonpayment of premium was sent in error and advised her to disregard it.

Plaintiff alleged that on December 15, 1984, the date when plaintiff was notified by General Casualty that her policy would be can-celled, plaintiff requested Kenneth Olson and Olson & Associates to procure replacement insurance with another company to provide the same coverage afforded by the General Casualty policy. Plaintiff alleged that on December 29, 1984, she was informed by Olson and Olson & Associates that Olson had procured the requested insurance with State Security through its agent, Friedberg Agency.

Subsequently, on January 4, 1985, plaintiffs automobile was rear-ended by an automobile driven by Julie Morgan. Julie jointly owned the vehicle with her husband, Gary. Plaintiff maintained that as a result of the rear-end collision, she sustained personal injury, incurred medical expenses, lost her employment and sustained damage to her automobile. Thus, count I of plaintiff’s complaint was titled “Negligence” and was brought against the Morgans seeking recovery for the alleged damages.

General Casualty was named as a defendant in count II of the complaint, which was titled “Declaratory Judgment.” Plaintiff alleged that at the time of the January 4, 1985, accident, defendant Julie Morgan was an uninsured motorist as defined by General Casualty’s policy. However, upon notifying General Casualty of the accident, plaintiff was informed that there was no insurance in effect on the date of the collision. Plaintiff alleged that she had a reasonable expectation of insurance coverage by General Casualty on January 4, 1985, and if there were any acts or omissions by plaintiff relating to nonpayment of her insurance premium they were “caused by and attributable to the negligence, instructions and representations of General Casualty’s agents, Olson and Olson & Associates and or by the negligence of General Casualty.” Plaintiff asked the court to declare the rights and liabilities of the parties under the policy; to enter a finding that General Casualty be required to honor their policy; to find that the policy issued is primary coverage as to any loss arising from the accident; and to award all attorney fees and costs incurred and other relief the court deemed just.

Count III of the complaint was titled “Breach of Contract” and was also brought against General Casualty. Substantially the same allegations were made in count III as were made in count II. Plaintiff claimed that she paid her premium and General Casualty breached their policy by denying coverage to plaintiff.

In count IV of the complaint, which was titled “Declaratory Judgment,” plaintiff named State Security as a defendant. Plaintiff alleged that after the January 4, 1985, accident, she telephoned Olson and Olson & Associates to report the accident. They then, in turn, allegedly notified State Security. Plaintiff alleged that she received a letter dated March 5, 1985, from State Security retroactively reducing her coverage on the date of the accident. Plaintiff asked the court to declare the rights and liabilities of the parties under the State Security policy; to find that State Security be required to provide insurance to plaintiff covering the January 4, 1985, accident in the same amount as provided in the General Casualty policy; to award plaintiff all attorney fees and costs incurred and other relief as the court deems just.

Count V was also brought against State Security and was titled “Breach of Contract.” The same allegation made in count IV was substantially made in count V. Plaintiff alleged that she performed all conditions by her to be performed and State Security breached its contract of insurance by refusing to provide the agreed upon insurance and by refusing to handle her claim promptly and properly.

Kenneth G. Olson and Kenneth G. Olson & Associates were named as defendants in count VI, which was titled “Negligence.” In sum, plaintiff alleged that Olson and Olson & Associates acted negligently in procuring and handling the insurance policies from General Casualty and State Security.

Count VII was also brought against Olson and Olson & Associates and was titled “Fraud.” Plaintiff alleged that various material misrepresentations were made to her by Olson and Olson & Associates regarding her insurance coverage with General Casualty and State Security. Plaintiff sought actual and punitive damages and attorney fees and costs.

Count VIII, titled “Breach of Fiduciary Duty,” was also brought against Olson and Olson & Associates. Plaintiff alleged that she “placed her entire trust, confidence and skill in the advice, instructions, representations and expertise of Kenneth Olson and Olson & Associates thereby creating a fiduciary duty of loyalty, good faith and fair dealings.” Plaintiff claimed that that duty was breached by Olson and Olson & Associates in procuring and handling the insurance policies of General Casualty and State Security.

KFS James Agency, Inc., was named as a defendant in count IX of the complaint, which was titled “Negligence.” Plaintiff alleged that Kenneth Olson and Olson & Associates caused her application for insurance with General Casualty to be “prepared, submitted, accepted, processed or otherwise considered through KFS-James.” Plaintiff claimed that KFS-James acted negligently with respect to the handling of the General Casualty policy, which resulted in the denial of her coverage.

Count X was brought against Friedberg Agency, Inc., and was also titled “Negligence.” Plaintiff alleged that Kenneth Olson and Olson & Associates caused her application for insurance with State Security to be “submitted, accepted, processed or otherwise considered through the Friedberg Agency.” Plaintiff claimed that Friedberg acted negligently with regard to the State Security policy which resulted in plaintiff receiving less coverage than she was allegedly entitled to receive.

An additional count against Olson and Olson & Associates was added to the complaint on May 20, 1986, by way of amendment. Specifically, count XI was added wherein plaintiff alleged that the conduct of Olson and Olson & Associates constituted a deceptive act or practice within section 2 of the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1985, ch. 12V-lz, par. 262). Pursuant to sections 10 and 10a of the Act (Ill. Rev. Stat. 1985, ch. I2IV2, pars. 270, 270a), plaintiff sought to recover actual damages, reasonable attorney fees and costs incurred.

Thereafter, plaintiff entered into pretrial settlements with each of the named defendants except Julie and Gary Morgan. Specifically, plaintiff settled with General Casualty for the sum of $3,000; with KFS-James for $1,500; with Kenneth G. Olson, individually, and Kenneth J. Olson & Associates for $24,000; with Friedberg for $750; and with State Security for $8,500. Thus, the sum total of the pretrial settlements amounted to $37,750.

On May 1, 1989, the Morgans and plaintiff proceeded to trial under count I of plaintiff’s complaint. The jury returned a verdict on May 3, 1989, finding for plaintiff and against the Morgans. Damages were assessed in the amount of $16,392. Thereafter, the court entered judgment on the verdict.

On May 12, 1989, the Morgans filed a post-trial motion to reduce judgment on the verdict. Defendants argued that section 2 of the Contribution Act Among Joint Tortfeasors (Contribution Act) (Ill. Rev. Stat. 1987, ch. 70, par. 302) applied to the case at bar in that the good-faith settlements made in the amount of $37,750 should be set off against the jury verdict of $16,392, resulting in the judgment against defendants being reduced to zero. The trial court granted defendants’ motion on July 25, 1989, finding that plaintiff suffered one indivisible injury as a result of the accident on January 4, 1985, and that the good-faith settlements made by the codefendants relate to this one indivisible injury. Thus, the trial court ordered the requested setoff. Plaintiff’s motion to reconsider was denied, and plaintiff filed this timely appeal.

On appeal, plaintiff raises one issue: whether the trial court erred in applying the Contribution Act to the case at bar. This issue revolves around the language of the Contribution Act itself. Specifically, section 2(c) provides:

“When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 70, par. 302(c).

In applying the language of section 2(c) to the case at bar, we must first consider whether all the codefendants were liable in tort, and second, whether their liability arose out of the same injury. If the parties are not subject to liability in tort for the plaintiff’s injuries at issue in the underlying action, there is no right of contribution between those parties. (People ex rel. Hartigan v. Community Hospital (1989), 189 Ill. App. 3d 206, 212.) Here, the Morgans were clearly liable in tort; however, it is unclear as to whether the remaining defendants were similarly liable. Both counts against General Casualty and State Security appear to have been based upon breach of contract. While that is certainly a nontort theory, it is not determinative as to whether the parties might also be “subject to liability in tort” for purposes of contribution. Joe & Dan International Corp. v. United States Fidelity & Guaranty Co. (1988), 178 Ill. App. 3d 741, 750.

In Joe & Dan International, the plaintiff sued its insurance broker, the insurance company and the agent of the insurance company for failure to provide insurance. Thereafter, the defendant agent sought contribution against the defendant insurance company, which the trial court denied because plaintiff’s causes of action sounded in contract rather than tort. The Appellate Court for the First District reversed, finding that the theory under which the plaintiff sued the defendants was not dispositive as to whether both might be subject to liability in tort to plaintiff for the same injury for purposes of contribution between them. (Joe & Dan International, 178 Ill. App. 3d at 750.) The court explained:

“ ‘[Liability in tort,’ governing the right of contribution among tortfeasors [citation], has been construed to mean ‘potential’ tort liability. As such, it is determined at the time of the injury to the plaintiff seeking to hold liable under some theory, not necessarily a tort theory, less than all parties who were potentially liable therefor. [Citation.] In other words, ‘the Contribution Act focuses *** on the culpability of the parties rather than the precise legal means by which the plaintiff is ultimately able to make each defendant compensate him for his loss.’ [Citation.] Finally, we believe that [the insurance company], as well as [the insurance agent], was clearly ‘potentially’ liable in tort to plaintiff.” Joe & Dan International, 178 Ill. App. 3d at 750.

Therefore, even though plaintiff in the case at bar sued General Casualty and State Security under nontort theories, both were potentially liable to plaintiff in tort for purposes of the “liable in tort” requirement of contribution.

As for KFS-James and Friedberg, both were sued under negligence theories and, thus, were clearly subject to liability in tort. Kenneth Olson and Olson & Associates were also sued under a negligence theory; however, they were additionally sued for fraud and breach of fiduciary duty. While “fraud” is a tort, it is an intentional tort, which our supreme court has recently held is not covered by the Contribution Act. (Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 201-06.) Similarly, one liable for breach of fiduciary duty is not “liable in tort” under the Contribution Act (People ex rel. Hartigan v. Community Hospital (1989), 189 Ill. App. 3d 206, 213) because our supreme court has held that breach of fiduciary duty is not a tort under Illinois precedent; rather, it is controlled by the substantive laws of agency, contract and equity. (Kinzer v. City of Chicago (1989), 128 Ill. 2d 437, 445.) Therefore, given that Kenneth Olson and Olson & Associates are not “potentially liable in tort” for all three counts alleged against them, we must consider the application of the Contribution Act to a party who is only partially liable in tort.

The record reveals that Olson agreed to pay plaintiff $24,000 to settle the claims against him. However, the proceeds of the settlement were not allocated among the three counts against Olson and Olson & Associates. This fact alone does not prevent the Contribution Act from applying. Our supreme court has determined that an allocation of settlement proceeds between alternative theories of recovery asserted by a plaintiff against a defendant is not expressly required by the Contribution Act. (Hall v. Archer-Daniels-Midland Co. (1988), 122 Ill. 2d 448, 459.) Instead, the failure to allocate goes to the question of whether the settlement was made in good faith, that is, whether the tortfeasor, by settling with plaintiff, is unfairly attempting to pass on liability for arguably “uncontributable” claims by not allocating the settlement amount between the counts alleged. (Leaman v. Anderson (1988), 172 Ill. App. 3d 62, 67.) Here, no bad faith has been alleged.

Therefore, all the settlement proceeds obtained, including the $24,000 from Olson, would be subject to setoff provided that all of the codefendants’ liabilities arose out of the “same injury.” The fact that all the defendants are not “joint tortfeasors” does not determine the issue. As this court explained in Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App. 3d 914:

“Although the act is styled ‘An Act in relation to contribution among joint tortfeasors,’ neither section 302(a) nor the published Legislative History requires that the tortfeasors be joint in the strict sense, that their tortious acts be simultaneous, or that they act in concert before contribution will lie. The only apparent requirement for contribution between co-tortfeasors is that recovery over be based on the same injury to person or property. Thus, the act permits contribution where co-tortfeasors are concurrent [citations] or successive [citation] as long as the same injury is involved.” 111 Ill. App. 3d at 918.

The Contribution Act provides little guidance as to what constitutes the “same injury.” However, it appears that, in order for contribution to lie, at least some type of culpable conduct must exist which contributed to plaintiff’s injuries. (Wheeler v. Ellison (1984), 124 Ill. App. 3d 852, 863.) We find that the acts of Kenneth Olson, Olson & Associates, General Casualty, KFS-James, State Security and Friedberg (hereinafter referred to collectively as the insurance defendants) in no way contributed to, or resulted in, the same injury to plaintiff as did the acts of defendant Morgans.

For lack of Illinois precedent on this point, we turn to a Maryland case for guidance. In Huff v. Harbaugh (1981), 49 Md. App. 661, 435 A.2d 108, the plaintiff sued an adjoining property owner for damages sustained as a result of a fire that spread to and damaged plaintiff’s property causing his tenants to vacate. In the same suit, plaintiff sued his insurance agent for failing to procure a fire insurance policy on plaintiff’s building. Before trial, plaintiff settled with the adjoining property owner. The insurance agent then sought to “be credited, pro tanto, for the amount paid” by the settling party. (Huff, 49 Md. App. at 665, 435 A.2d at 111.) The Maryland Court of Special Appeals held that the insurance agent was not entitled to contribution under the Uniform Contribution Among Tort-Feasors Act (Md. Ann. Code art. 50, §§16 — 24 (1976)) because his act did not result in the “same injury” to the plaintiff as did the acts of the adjoining property owner. (Huff, 49 Md. App. at 665, 435 A.2d at 111.) Even though both parties were sued in negligence based upon fire damage to the plaintiff’s building, the court explained:

“A closer look at the cause of action against [the insurance agent] reveals that its premise is not the fire damage to the building, but rather a breach of promise to secure fire insurance. [The insurance agent’s] actions are related to [the adjoining property owner’s] only by the fact that were it not for the negligence of [the adjoining property owner] and the resultant fire, the [insurance agent’s] failure to procure the insurance would not have been brought to issue. Thus, it would be more accurate to categorize the injuries caused by [the insurance agent] and [the adjoining property owner] as ‘related’ rather than the ‘same.’ ” Huff, 49 Md. App. at 666, 435 A.2d at 112.

Similarly, the actions of the insurance defendants in the case at bar are related to the Morgans’ only by the fact that, were it not for the negligence of the Morgans and the resultant injuries suffered, the insurance defendants’ failure to procure the requested insurance would not have been brought to issue. (Huff, 49 Md. App. at 667, 435 A.2d at 112.) Consequently, the injuries caused by the insurance defendants and the Morgans would also be more accurately characterized as “related” rather than the “same.” (Huff 49 Md. App. at 666, 435 A.2d at 112.) Because the injury is not the “same,” we find that the Contribution Act is inapplicable and the trial court erred in granting the Morgans’ post-trial motion to reduce judgment on the verdict.

Defendants’ citation to Nguyen v. Tilwalli (1986), 144 Ill. App. 3d 968, is unpersuasive. In that case, the plaintiff, Nguyen, brought a medical malpractice action against defendant, Dr. Tilwalli, and others for injuries sustained to his nose. A settlement was reached between Nguyen and the other defendants whereby the defendants agreed to pay Nguyen $15,000 in settlement of his claim. Dr. Tilwalli and Nguyen proceeded to trial. The jury found Tilwalli to be negligent and awarded Nguyen $11,000 in damages. In his post-trial motion Tilwalli sought a setoff against the verdict in the amount of the $15,000 paid by the other defendants. The relief was granted by the trial court pursuant to section 2(c) of the Contribution Act, and plaintiff’s damages were reduced to zero. (Nguyen, 144 Ill. App. 3d at 971.) On appeal, we affirmed the trial court; however, in doing so we stated, “there is no question one indivisible injury to plaintiff’s nose resulted from the alleged tortfeasors’ conduct.” (Nguyen, 144 Ill. App. 3d at 972.) To allow Nguyen to recover from Dr. Tilwalli in addition to the settlement he received from the other defendants would have resulted in double recovery. Nguyen, 144 Ill. App. 3d at 973-74.

In contrast, we have already determined that plaintiff in the case at bar did not suffer one indivisible injury as did the plaintiff in Nguyen. Rather, plaintiff suffered at least two injuries: namely, the injury allegedly caused by the insurance defendants in failing to procure the requested insurance and the injury caused by the Morgans on January 4, 1985. Consequently, to allow plaintiff to be compensated for each injury will not result in double recovery.

For the reasons stated above, we reverse the judgment of the trial court.

Reversed.

UNVERZAGT, P.J., and McLAREN, J, concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
      In re JOHN E. BLUME, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. John E. Blume, Respondent-Appellant).
    Second District
    No. 2—89—0729
    Opinion filed May 8, 1990.

      William E. Coffin, of Guardianship & Advocacy Commission, of Elgin, and Elizabeth Sircher, of Guardianship and Advocacy Commission, of Chicago, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Following a hearing on a petition for involuntary commitment held on July 7, 1989, respondent, John E. Blume, was ordered to be involuntarily admitted to a mental health facility of the Department of Mental Health and Developmental Disabilities. The trial court found that respondent was mentally ill due to a schizoaffective disorder and that respondent was unable to provide for his own basic physical needs so as to guard himself from physical harm.

Respondent appeals, arguing that: (1) he was inadequately represented by counsel when counsel was not appointed at the time the matter was set for hearing pursuant to section 3 — 805 of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1987, ch. 91V2, par. 3 — 805); (2) the trial court erred in finding respondent subject to involuntary admission when a predispositional report outlining a treatment plan was not presented pursuant to section 3 — 810 of the Code (Ill. Rev. Stat. 1987, ch. 9IV2, par. 3 — 810); (3) the trial court erred in failing to order a determinative period of hospitalization; and (4) there was not clear and convincing evidence to support a finding that respondent was subject to involuntary admission based on his inability to care for himself. Because the hearing did not comply with statutory procedural requirements, we reverse the judgment of the circuit court.

Respondent, a 34-year-old male, was voluntarily admitted to the Elgin Mental Health Center (EMHC) on June 22, 1989. Apparently in response to respondent’s written request for discharge on June 29, the State filed a petition for involuntary admission on July 5, 1989. The petition stated that respondent was mentally ill; because of his mental illness he was reasonably expected to inflict serious physical harm upon himself or another in the near future and was unable to provide for his basic physical needs so as to guard himself from serious harm; therefore, respondent was in need of immediate admission to prevent such harm.

The petition further stated that respondent was last discharged on June 2, 1989, and went to the Commodore, a halfway house. After a few days there, he left and returned to his father’s home, where he stopped taking his medication. Following a visit to his mother, he began wandering the streets. Upon his return to the hospital, respondent was partially decompensated; he was highly irritable, paranoid, and highly demanding as well as accusatory and verbally abusive. Though initially uncooperative in taking medication, his mental state improved noticeably since his admission. However, he remained unpredictable and not yet stabilized at the time the petition was filed. Two examination certificates were filed in support of the petition on July 6, 1989, alleging that, because of his schizoaffective disorder, defendant could not live independently and was unable to provide for his basic physical needs so as to guard himself against serious harm.

On July 7, 1989, the trial court entered an order nunc pro tunc which appointed the public defender’s office to represent respondent at the involuntary admission hearings scheduled on the same day. The July 7 order filed in open court recited that it was nunc pro tunc to the date of the filing of the petition (July 5). The notices of hearing were filed on July 6, 1989.

At the hearing, William Schweisheimer, a unit psychologist, testified regarding respondent’s readmission to the mental health facility. He stated that this was respondent’s 46th admission. During his 45th admission, respondent had set a fire in the treatment unit where he was a patient. During his current admission, respondent was emotionally labile; he was quick to anger, demanding, hostile and paranoid. While he was able to take care of his personal hygiene, he was not capable of taking care of his medical and psychiatric needs. He lacked sufficient judgment and was still sufficiently impulsive so that, without close supervision, he would soon stop taking medication, quickly decompensate, and become a danger to others and to himself. He cycled rapidly and had not shown any consistent stability outside the hospital in years.

When asked about a treatment plan for respondent, the psychologist stated that it was their intent to further stabilize respondent’s condition until he was ready to be discharged. Schweisheimer opined that respondent could probably be stabilized in two to four months. He did not believe respondent could function in the community without some kind of supervision and that, if a halfway house could not take him, it could take eight months or longer before he could be returned to the community. On cross-examination, the psychologist stated that there was no commitment that a halfway house would take respondent back at this time.

Dr. Peter Gallagher, a board-certified psychiatrist, stated that respondent suffered from a schizoaffective disorder characterized by cyclical mood swings where he frequently became manic. He also became delusional. On June 28, he had an elevated mood, pressured speech, was irritable and very difficult to reason with. He was verbally and motorically agitated and very paranoid. Dr. Gallagher also stated that, once respondent was outside the hospital setting, he would quickly decompensate and not be able to exist in the community, his use of medication was tenuous, and he had nowhere to go. Dr. Gallagher agreed that it was possible that respondent could reasonably be expected to inflict serious injury upon himself or others and that, outside the hospital, respondent would quickly decompensate and would have to return to the hospital within a matter of hours. In Dr. Gallagher’s opinion, respondent needed immediate involuntary hospitalization, and this was the least restrictive environment for respondent at that time. Dr. Gallagher believed that two weeks would be needed for stabilization; a halfway house would then be contacted.

Respondent testified that he left the Commodore house because he did not have control over his money. His money was at his father’s house, where his belongings were. Respondent admitted that he had a drinking problem, and he understood that he could not drink alcohol while on medication. He believed his problem stemmed from the mixing of the two. Respondent believed he could take care of himself outside the hospital. He would seek outpatient care and would live with a friend. He thought that, as long as he stayed away from alcohol, he would stay on his medication.

The trial court found respondent subject to involuntary admission. On July 21, 1989, the Office of Guardianship and Advocacy Commission was appointed to represent respondent, and this timely appeal followed.

Respondent’s first contention of error is that he was effectively denied his statutory right to the assistance of counsel when the trial court apparently appointed counsel on July 7, 1989, the day of the hearing, in an order nunc pro tunc purporting to have the appointment relate back to the date of the petition July 5, 1989. The State concedes that the order was improper as a nunc pro tunc order where there was no earlier order or judicial action in the record to which the nunc pro tunc order could relate back. A nunc pro tunc order is a decree which the court enters in the present to make the record speak for something that was done previously. (In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 915.) Before such a corrective order is entered, it is necessary that there be evidence, without reliance on the judge’s memory alone, that a prior judgment or order was actually rendered. (Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 1056.) An order nunc pro tunc may not be used to correct judicial error or supply omitted judicial action (79 Ill. App. 3d at 1056), or to give a judgment retroactive effect (Furth v. Furth (1972), 5 Ill. App. 3d 73, 76).

Both parties agree that the only evidence of counsel’s appointment is the nunc pro tunc order of July 7, the date of the hearing. However, counsel should have been appointed at a prior time when the matter was set for hearing. (Ill. Rev. Stat. 1987, ch. 91V2, par. 3 — 805.) This would have been either July 5 or July 6. Prior decisions interpreting the provisions for the appointment of counsel have held that counsel for a respondent subject to involuntary admission must be appointed at the time the matter is set for hearing, not at the hearing itself. (In re Johnson (1989), 191 Ill. App. 3d 93, 95; In re Walters (1989), 183 Ill. App. 3d 452, 455; In re Elkow (1988), 167 Ill. App. 3d 187, 195.) The statute is clearly intended to give counsel time to prepare adequately for the defense of his client and to avoid later claims of ineffective assistance of counsel. (Elkow, 167 Ill. App. 3d at 195-96.) The failure to provide counsel in a timely manner consistent with section 3 — 805 of the Code (Ill. Rev. Stat. 1987, 9IV2, par. 3 — 805) is reversible error. Walters, 183 Ill. App. 3d at 455.

In the present case, where there is no evidence of a prior judicial action, the trial court’s attempt to issue an order nunc pro tunc constitutes an implicit recognition that counsel should have been appointed earlier, at the time the matter was set for hearing. As respondent’s liberty interests were at stake, the need for strict compliance with the statutory provisions was compelling. (See Elkow, 167 Ill. App. 3d at 193.) We find that the delay in appointing counsel is reversible error.

Addressing the respondent’s second contention of error, we do not find sufficient evidence in the record that a predispositional report was presented. Such a report is required by section 3 — 810 of the Code (Ill. Rev. Stat. 1987, ch. 911/2, par. 3 — 810). Schweisheimer did testify that he was aware of a plan of treatment to further stabilize respondent and that respondent needed supervision. Dr. Gallagher alluded also to the need for involuntary hospitalization for the stabilization of respondent over a period of time, and he also emphasized the need for respondent to take appropriate levels of medication, presumably Lithium or Haldol. However, we find that, in this particular case, the oral testimony does not satisfy the statutorily mandated preparation of a report by the facility director or such other person as the court may direct. (Ill. Rev. Stat. 1987, ch. 911/2, par. 3 — 810.) The Code requires the court to consider a report which includes “information on the appropriateness and availability of alternative treatment settings, a social investigation of the respondent, a preliminary treatment plan, and any other information which the court may order. The treatment plan shall describe the respondent’s problems and needs, the treatment goals, the proposed treatment methods, and a projected timetable for their attainment.” Ill. Rev. Stat. 1987, ch. 911/2, par. 3 — 810.

Even though no formal report is evident in the record, the State maintains that the witnesses’ testimony indicated that a treatment plan was formulated; thus, there was no prejudice to respondent. Alternatively, the State argues that the issue is waived by respondent’s failure to bring the omission to the trial court’s attention. We disagree on both points. We cannot equate the limited testimony of the witnesses regarding respondent’s diagnosis and need for treatment with the detailed report required by the statute. The testimonial record does not sufficiently delineate the appropriateness and availability of alternative treatment settings. Less restrictive treatment environments, such as monitored outpatient treatment, were not seriously considered, although the remote possibility of a halfway house was mentioned. The testimonial record does not provide any social investigation and does not adequately specify, in behavioral terms, what respondent’s problems, needs, treatment goals, and method of treatment should be. The testimony merely focuses on the diagnosis of respondent’s condition and his need for hospitalization and medication to stabilize him over a period of time. We are persuaded that there was insufficient compliance with the statute. Additionally, there is no evidence that a formal report was prepared by the facility director or by a person directed to do so by the court.

While we surmise that a major contributing factor to the problem here is the level of State funding for mental health services and the resulting inadequate focus on outpatient services, the solution to the problem belongs more appropriately to the legislative and executive branches of government. (See M. Epstein, Expanded Outpatient Services: Slowing the Revolving Door, 78 Ill. B.J. 126-31 (1990).) Our remedy, in the present case, is limited to insistence on compliance with the statutory requirements. In short, the statute does not suggest that substantial compliance would be sufficient, and we cannot condone the failure to prepare and present a formal report which was intended to assist the trial court in making a disposition. (See In re Collins (1981), 102 Ill. App. 3d 138, 144-45.) The rule of strict compliance with the statute applies here, and we find that the error in failing to comply with the statute was neither harmless nor waived. See In re James (1989), 191 Ill. App. 3d 352, 357.

The State suggests that the mootness doctrine applies to this case since the statutory 60-day duration of commitment has already passed. However, the mootness doctrine does not generally apply to involuntary commitment cases, and it should not be applied to effect a waiver of the issues where the application of the doctrine would prevent issues capable of repetition from ever being susceptible to appellate review. (People v. Nunn (1982), 108 Ill. App. 3d 169, 172-73; see also People v. Meece (1987), 162 Ill. App. 3d 658, 660.) We decline to apply the doctrine here.

We also agree with respondent that it is better practice for the trial court to specify in its order the duration of involuntary commitment, subject to any conditions the court might impose. However, in this case, we do not find this omission to constitute reversible error. See, e.g., In re Grimes (1990), 193 Ill. App. 3d 119, 123.

We conclude that both the failure to appoint counsel in a timely manner and the failure to consider a sufficiently detailed, statutorily required, predispositional report constitute reversible error. In view of our disposition of the cause and the passage of time, we need not address respondent’s other arguments.

The judgment of the circuit court of Kane County is reversed.

Reversed.

GEIGER and INGLIS, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    MODERN TRACK MACHINERY, INC., Plaintiff-Appellant, v. BRY-LON, LTD., et al., Defendants-Appellees (The Cincinnati Insurance Company, Defendant).
    Second District
    No. 2—89—0888
    Opinion filed May 8, 1990.

      Joseph P. Condon, of Condon & Zopp, Ltd., of Crystal Lake, for appellant.
    William H. Weir and Daniel E. Compton, both of Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir, Johnson & David, PC., of Elgin, for appellees.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Modern Track Machinery, Inc. (Modern Track), filed a three-count amended complaint against defendants, Cincinnati Insurance Company (Cincinnati), Bry-Lon, Ltd., and Bryant-Longhway Agency, Inc. (hereinafter referred to jointly as Bry-Lon). Counts I and II were directed against Cincinnati; count I sought a declaratory judgment that plaintiff’s insurance policies with Cincinnati covered certain liability, and count II sought reformation of the insurance policies. Count III was directed against Bry-Lon and alleged fraudulent misrepresentation. Counts I and II were dismissed and are not at issue in this appeal. Count III was dismissed pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), and plaintiff appeals the dismissal of that count.

In December 1982, Modern Track purchased insurance policies from Cincinnati through its agent, Bry-Lon. The policies provided workers’ compensation coverage, general comprehensive liability coverage and excess or umbrella coverage. On January 10, 1983, Modern Track entered into a contract with the Atchison, Topeka and Santa Fe Railway Company (Santa Fe) whereby Modern Track would lease certain machinery to Santa Fe.

The lease agreement provided, in relevant part, that Modern Track would indemnify Santa Fe against all claims of loss when the loss was the result of the sole negligence of Modern Track and that Modern Track would procure and maintain certain insurance policies covering all of the equipment provided and services performed by Modern Track pursuant to the agreement. Under the agreement, Modern Track was required to obtain the following insurance: (1) workers’ compensation coverage; (2) comprehensive general liability coverage, including personal injury and property damage; (3) comprehensive automobile liability coverage; (4) products and completed operations (products liability) coverage; and (5) contractual liability coverage covering all liability assumed by Modern Track under the agreement.

On January 12, 1983, apparently at Modern Track’s request, BryLon issued a certificate of insurance informing Santa Fe that Cincinnati had issued certain insurance policies to Modern Track. The certificate states:

“This is to certify to *** [Santa Fe] that the Policies of Insurance *** described herein have been issued to the Named Insured *** with limits of liability as set forth herein covering the type of operations described below, and further to certify that said policies are in full force and effect on the date of this Certificate. ***
* * *
1. Named Insured: MODERN TRACK MACHINERY, INC.
* * *
4. Policies described below cover All Operations of Named Insured except the following:
Products/Completed Operations Coverage.”

The certificate lists the policies that Modern Track had with Cincinnati, that is, workers’ compensation, comprehensive general liability and excess or umbrella coverage, and lists the policy numbers and the limits of liability under each policy. After the list of policies, the following appears:

“Contractual Liability: The policy(ies) hereinabove referred to are extended to cover liability for bodily injury including death, and for damage to property, which liability the named insured has assumed by virtue of the wording contained in Agreements) dated Jan. 10,1983 with Santa Fe.
Comprehensive General Liability Insurance includes coverage for the following: ***
Yes No
1. Products and Completed Operations? X”

Sometime after the certificate was issued, a Santa Fe employee was injured while operating a machine leased to Santa Fe by Modern Track. The employee filed suit against Santa Fe in Federal district court in Texas, and Santa Fe filed a third-party action against Modern Track. When Modern Track presented the complaint to Cincinnati, Cincinnati denied coverage because (1) the Texas claim involved products or completed operations liability and Cincinnati did not cover Modern Track for that type of liability; and (2) the contractual liability coverage provided under the general liability policy was limited to incidental contracts and the contractual liability paragraph in the certificate was not within the definition of an incidental contract.

Thereafter, plaintiff filed its three-count complaint against Cincinnati and Bry-Lon. In count III, the only count at issue, plaintiff claimed that the certificate of insurance which Bry-Lon issued contained a false statement. The allegedly false statement in the certificate was the following:

“Contractual Liability: The policy(ies) hereinabove referred to are extended to cover liability for bodily injury including death, and for damage to property, which liability the named insured has assumed by virtue of the wording contained in Agreement(s) dated Jan. 10, 1983 with Santa Fe.”

Plaintiff contended that the statement was false in that the policies had not, in fact, been extended to cover all of the liability which Modern Track assumed by virtue of its contract with Santa Fe, that in reliance on this misrepresentation Modern Track had made no effort to obtain further coverage, and that Modern Track was damaged in that it was not covered against the Texas claim and would be required to defend itself and to satisfy any judgment rendered against it.

Bry-Lon filed a motion to dismiss pursuant to section 2 — 615. No written response to the motion is found in the record on appeal. The trial court granted the motion to dismiss, and Modern Track appeals.

It is generally recognized that a section 2 — 615 motion to dismiss attacks only the sufficiency of the complaint and should be decided only upon the allegations set forth therein. (Schnidt v. Henehan (1986), 140 Ill. App. 3d 798, 801.) The motion should be granted only if it is clear that plaintiff can prove no set of facts under the pleading which would entitle him to relief. Schnidt, 140 Ill. App. 3d at 801.

Plaintiff’s complaint attempts to state a cause of action for intentional misrepresentation. To state such a cause of action, plaintiff must allege: (1) a statement of material past or present fact; (2) that the statement was false; (3) that the party making the statement knew or believed it to be false; (4) that the party to whom the statement was made believed and relied on the statement and had a right to do so; (5) that the statement was made for the purpose of inducing the other party to act or refrain from acting; and (6) that the reliance of the person to whom the statement was made led to his injury. Schnidt, 140 Ill. App. 3d at 804.

In count III, plaintiff alleged that Bry-Lon issued the certificate that contained the statement concerning the extension of the policies; that the statement was false; that Bry-Lon issued the statement with reckless disregard for the truth of the matter asserted; that Modern Track relied on the statement in that it refrained from obtaining other insurance coverage; that Bry-Lon issued the statement with the intent that Modern Track would rely on it; and that Modern Track was injured in that it had no insurance to cover the Texas claim. It might appear, at first glance, that plaintiff had stated a cause of action for intentional misrepresentation; however, although Modern Track alleged that it relied on the alleged misrepresentation, it did not specifically allege that it had a right to do so, and the exhibits attached to the complaint establish that reliance was not justifiable.

Exhibits attached to complaints become part of the pleadings, and facts stated in such exhibits are considered as having been alleged in the complaint. (Outboard Marine Corp. v. Chisholm & Sons, Inc. (1985), 133 Ill. App. 3d 238, 245.) Although a motion to dismiss admits all well-pleaded facts and all reasonable inferences therefrom in favor of plaintiff, it does not admit allegations of a complaint that are in conflict with facts disclosed by an exhibit. Outboard Marine, 133 Ill. App. 3d at 245.

The letter from Cincinnati informing Modern Track that Cincinnati was denying coverage on the Texas claim was attached to the complaint as exhibit G. The letter indicates that coverage was denied because the general liability policy specifically excluded products and completed operations coverage. Modern Track admits that the Texas claim arises from the products and completed operations hazard. The certificate of insurance, which contains the alleged misrepresentation, was also attached to the complaint as exhibit E. As set out above, the certificate states twice, before and after the alleged misrepresentation, that the policies do not provide products and completed operations coverage. Therefore, even if the general statement concerning extension of the policies to cover liability assumed pursuant to the agreement with Santa Fe is false, the certificate contains two specific and truthful statements concerning the exclusion of coverage for products and completed operations claims.

In light of the two statements specifically excluding coverage for products and completed operations, Modern Track could not reasonably have assumed that it was covered for those types of claims. The document as a whole makes it quite clear that the policies do not cover products and completed operations claims. At the very least, plaintiff was on notice that products and completed operations coverage was questionable. A party cannot close its eyes to obvious facts and then charge that it has been deceived. See Costello v. Liberty Mutual Insurance Co. (1976), 38 Ill. App. 3d 503, 507.

Although, arguably, Modern Track may have been justified in relying on the alleged misrepresentation for some purposes, it could not, given the certificate as a whole, justifiably assume that it was covered for products and completed operations claims. The Texas claim was denied because Cincinnati did not provide products and completed operations coverage. Plaintiff’s alleged injury, lack of coverage for a products and completed operations claim, was not the result of justifiable reliance on the alleged misrepresentation.

Having failed adequately to plead justifiable reliance, plaintiff has not stated a cause of action for intentional misrepresentation, and the trial court acted within its discretion in dismissing count III of the complaint.

The judgment of the circuit court of McHenry County is affirmed.

Affirmed.

REINHARD and McLAREN, JJ., concur.


text:
    SCHUSTER EQUIPMENT COMPANY, INC., Plaintiff-Appellant, v. DESIGN ELECTRIC SERVICES, INC., Defendant-Appellee.
    Second District
    No. 2—89—0720
    Opinion filed May 8, 1990.

      Frank J. Petru, of Leoris & Cohen, P.C., of Highland Park, for appellant.
    Julian Johnson, of Snyder, Clarke, Dalziel & Johnson, of Waukegan, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Schuster Equipment Company, Inc., appeals from an order of the circuit court of Lake County dismissing counts II and III of its amended complaint. Plaintiff presents one issue for review: whether the trial court erred in dismissing those counts on the ground that the damages it sustained were economic losses which are not recoverable in tort actions.

Plaintiff filed a three-count amended complaint against two defendants on June 19, 1986. The first count sought damages from a defendant which successfully moved for summary judgment in its favor. That defendant is not involved in this appeal. Counts II and III of the amended complaint alleged that defendant, Design Electrical Services, Inc., negligently constructed an electric service line to plaintiff’s office. Count II specifically alleged that defendant installed the wrong type of line, one which provided too much voltage to the outlet. Count III alleged that defendant negligently constructed and installed the line. Both counts alleged that defendant’s negligence resulted in a fire inside plaintiff’s personal computer, which was destroyed. Plaintiff sought recovery only for damage to the computer.

Defendant filed a section 2 — 615 motion to dismiss (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). In its motion, defendant argued that the damages plaintiff sustained were economic losses which are not recoverable under the authority of Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69. In its response to the motion to dismiss, plaintiff argued that the destruction of the computer was due to a “sudden and violent occurrence” and that the damage to the computer was property damage, not an economic loss. The court granted the motion to dismiss. The court’s order of June 22, 1989, stated “there is no just reason to delay enforcement of this order or appeal of this cause.” Plaintiff then timely filed this appeal.

On appeal, plaintiff contends that the trial court erred in dismissing counts II and III of the amended complaint because they allege only economic losses. Defendant argues that we should not address this contention because we lack jurisdiction to hear this appeal. According to defendant, the order dismissing the counts was not a final order because it did not state that the counts were dismissed with prejudice, and the use of Supreme Court Rule 304(a) language does not make that order appealable (see 134 Ill. 2d R. 304(a) (eff. Jan. 1, 1989); see also Ill. Rev. Stat., 1988 Supp., ch. 110A, par. 304(a)).

Generally, an appellate court may only review final orders. (In re Estate of Hopkins (1988), 166 Ill. App. 3d 652, 655.) An order is final and appealable if it terminates the litigation between the parties on the merits so that, if affirmed, the trial court need only execute the judgment. (Kellerman v. Crowe (1987), 119 Ill. 2d 111, 115.) A reviewing court will look to the substance of an order, rather than its form, to determine if it is final and appealable. (Estate of Hopkins, 166 Ill. App. 3d at 655.) If a complaint is dismissed because it is legally insufficient to state a cause of action, as opposed to being technically deficient, the order is final and appealable. (166 Ill. App. 3d at 655.) If there has been no right to amend stated in the order, the dismissal order is final and appealable; the dismissal order does not have to include the words “with prejudice” for it to be appealable if it is otherwise final. 166 Ill. App. 3d at 655.

Here, count I had been previously adjudicated, leaving only counts II and III to be litigated. The order dismissed both counts as a matter of law, not because of technical defects. Plaintiff did not request leave to amend, nor did the court grant plaintiff that right. Thus, the order is final and appealable. The inclusion of the Rule 304(a) language was not necessary because no claim remained pending in the trial court.

Turning to the merits of the appeal, when adjudicating a motion to dismiss a complaint for failure to state a cause of action, the trial court must construe the pleadings liberally. (Pfendler v. Anshe Emet Day School (1980), 81 Ill. App. 3d 818, 821-22.) For the purpose of the motion, a motion to dismiss a complaint for failure to state a cause of action admits as true all properly pleaded facts. (Pfendler, 81 Ill. App. 3d at 821-22.) A trial court should not dismiss a cause on the basis of the pleadings unless it is clear that the plaintiff can prove no set of facts which support a recovery. 81 Ill. App. 3d at 821-22.

Defendant based its motion to dismiss on the authority of Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69. In Moorman, the supreme court addressed the question of whether a plaintiff could recover for economic losses in a contract action. The court defined “economic loss” as damages for the cost of repair or replacement of the defective item and for the decrease in value of the product because of its inferior quality and because it “does not work for the general purposes for which it was manufactured and sold.” (Moorman, 91 Ill. 2d at 82.) Stated another way, economic loss is damage caused by defects in the product itself, such as reduced value, return of the purchase price, repair and replacement costs or lost profits. (91 Ill. 2d at 84.) Economic loss is contractual damage because it is a “loss relating to a purchaser’s disappointed expectations due to deterioration, internal breakdown or nonaccidental cause.” 91 Ill. 2d at 86.

The supreme court held that economic damages are not recoverable in tort actions, but also held that when a product is sold in a defective condition that is unreasonably dangerous to the consumer or its property, strict liability in tort is applicable to the physical injury of the plaintiff’s property. (91 Ill. 2d at 81.) The court explained:

“[T]he essence of a product liability tort case is not that the plaintiff failed to receive the quality of product he expected, but that the plaintiff has been exposed, through a hazardous product, to an unreasonable risk of injury to his person or property.” 91 Ill. 2d at 81.

Moorman established the rule that a plaintiff can recover if the defective product damaged “other property,” or if the damage was the result of a sudden and dangerous occurrence. (91 Ill. 2d at 81, 85.) Plaintiff argues that the electrical line damaged “other property,” the computer, and that the damage was the result of a sudden and dangerous occurrence, a fire inside the computer.

Defendant argues that the line did not damage plaintiffs property because the computer was part of the electrical circuit. While creative, this argument fails to persuade us. The computer was merely an appliance connected to the electrical circuit. For example, under defendant’s reasoning, if one of plaintiff’s employees had been electrocuted while plugging in the computer, the employee would be a part of the circuit, since the electricity flowed through the employee. Clearly, in that case, plaintiff could sue for the personal injuries of its employee. Similarly, the computer is no more a part of the electrical line than a person would be.

The fire here occurred immediately upon connecting the computer to the power source and completely destroyed the computer. Since plaintiff alleged in its complaint that the damage was to “other property” and that the damage was the result of a sudden and dangerous occurrence, plaintiff has sufficiently alleged grounds for recovery under Moorman. We therefore conclude that the trial court erred in dismissing counts II and III, and they should be reinstated on remand of the cause.

The order of the circuit court of Lake County is reversed, and the cause is remanded.

Reversed and remanded.

REINHARD and McLAREN, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEO ALEXANDER, Defendant-Appellant.
    Second District
    No. 2—88—0614
    Opinion filed May 3, 1990.
    G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Leo Alexander, appeals from an order of the circuit court of Winnebago County dismissing his petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.). On appeal, defendant contends that the cause must be remanded for an evidentiary hearing because (1) the allegations in defendant’s petition were sufficient to warrant an evidentiary hearing on his claim of ineffective assistance of trial counsel and (2) post-conviction counsel failed to comply with Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)).

Defendant was charged with home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11), rape (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1), and deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 3). Following a jury trial, defendant was found guilty of all three offenses and was sentenced to concurrent terms of 25 years’ imprisonment. This court, in an unpublished order, affirmed defendant’s convictions and sentences. People v. Alexander (1984), 123 Ill. App. 3d 1156 (unpublished order under Supreme Court Rule 23).

Defendant filed a pro se petition for post-conviction relief. The trial court subsequently appointed the public defender to represent defendant in the post-conviction proceedings. In the petition, defendant alleged that he was denied the effective assistance of counsel both at trial and on direct appeal. The State filed a motion to dismiss defendant’s petition, alleging that defendant had not demonstrated a substantial denial of a constitutional right. The trial court granted the State’s motion to dismiss defendant’s petition, and defendant filed a timely notice of appeal.

Defendant contends that the cause must be remanded for further post-conviction proceedings because the record does not establish that post-conviction counsel complied with Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)). Rule 651(c) provides:

“The record *** shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” 107 Ill. 2d R. 651(c).

Defendant’s post-conviction counsel did not file a certificate of compliance with the rule. During the pendency of this appeal, the State sought leave to file a certificate of compliance. This court denied the State’s motion, however, because the certificate it sought to file did not comply with the rule.

Failure to file a certificate pursuant to Rule 651(c) is harmless error if an examination of the record clearly indicates that counsel met the requirements of the rule. (People v. Bone (1987), 154 Ill. App. 3d 412, 417.) The complete common-law record and the transcripts of the trial and the post-conviction proceedings are before us for review. Our review of the record, however, does not establish compliance with Rule 651(c).

Pursuant to the rule, the record must indicate that counsel con-suited with defendant. During a scheduling hearing on defendant’s petition, his counsel stated to the court that he had communicated with defendant, and, in his appellate brief, defendant admits this.

Post-conviction counsel must also make any amendments to the pro se petition that are necessary for an adequate presentation of defendant’s contentions. Here, post-conviction counsel did not amend the pro se petition. Failure to amend a pro se petition, however, does not establish ineffective representation unless there is a showing that the petition could have been amended to state a case upon which relief could be granted. (People v. Lynch (1975), 32 Ill. App. 3d 350, 351-52.) Defendant has not offered any suggestions concerning how post-conviction counsel could have improved the petition. Furthermore, our review of the pro se petition establishes that it is well drafted and not conclusional. The petition contains citations to the portions of the record which support defendant’s allegations, and defendant attached an affidavit'and exhibits in support of the petition. Defendant has not made a showing, and our review does not establish, that amendments were necessary for an adequate presentation of defendant’s contentions.

Finally, Rule 651(c) requires that there be a showing on the record that post-conviction counsel examined the record of the proceedings at trial. There is no such showing in this record. Our review of the transcript establishes that post-conviction counsel was familiar with defendant’s petition, the State’s motion to dismiss, and the Rule 23 order of this court in the direct appeal of the case. However, there is no indication that counsel was familiar with the trial record. At the hearing on the State’s motion to dismiss the petition, the assistant State’s Attorney argued the evidence and the trial proceedings. Defendant’s counsel made no response to these arguments. His presentation at the hearing does not clearly establish familiarity with the trial record. Absent an affirmative showing on the record, we cannot presume that post-conviction counsel fulfilled his obligation to review the trial record. See People v. Bennett (1980), 82 Ill. App. 3d 596, 601.

The purpose underlying Rule 651(c) is not merely formal; it is to insure that all indigents are provided proper representation when presenting claims of constitutional deprivation under the Post-Conviction Hearing Act. (People v. Brown (1972), 52 Ill. 2d 227, 230.) The fulfillment of this design would not be encouraged were we to ignore the rule’s nonobservance. (Brown, 52 Ill. 2d at 230.) Rule 651(c) explicitly requires a showing that counsel has examined the trial record. (Brown, 52 Ill. 2d at 230.) Without a showing that counsel fulfilled the requirements of Rule 651(c), we cannot conclude that petitioner was provided adequate post-conviction representation.

It is error to dismiss a post-conviction petition on the pleadings where, as here, there has been no showing of adequate representation by counsel, even where the petition itself failed to present a substantial constitutional claim. (See People v. Jones (1969), 43 Ill. 2d 160, 162; People v. Wilson (1985), 132 Ill. App. 3d 48, 51.) The cause must, therefore, be remanded for further post-conviction proceedings.

In view of our decision on this issue, we need not address petitioner’s other assignment of error.

The judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT, P.J., and GEIGER, J., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTORIA A. SAMBO et al., Defendants-Appellants.
    Second District
    Nos. 2—89—0192, 2—89—0193 cons.
    Opinion filed May 3, 1990.

      Joseph N. DiNatale, of DiNatale & Montemurro, of River Forest, for appellants.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendants, Victoria and Raymundo Sambo, were charged by complaint with battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 3(a)(1)). Following a jury trial, defendants were found guilty and were sentenced to one year’s probation, counseling, and costs in the amount of $418 each. On appeal, defendants contend that: (1) they were not proved guilty beyond a reasonable doubt; (2) the jury instructions were improper; (3) they were denied a fair trial by the cumulative effect of errors during trial, including improper opening and closing arguments, hearsay evidence and opinion testimony; (4) the trial court improperly appointed counsel to represent their minor daughter’s interests; and (5) public policy, based on the right to privacy, militates against the guilty verdicts. In addition, defendant Victoria Sambo also alleges that she was denied the effective assistance of counsel because her attorney was burdened with a conflict of interest at trial. We affirm.

The following facts were adduced at- trial. The State’s first witness, Leon Schomer, testified that he was a neighbor of defendants and saw defendant Raymundo Sambo on May 14, 1988, at approximately 9 p.m. Schomer stated that Mr. Sambo rang the doorbell and asked him where Ellaine Sambo, defendant’s daughter, and Schemer’s daughter were. Schomer did not know where Ellaine was. Schomer noticed that Mr. Sambo was very nervous, was smoking cigarettes, and had alcohol on his breath. Mr. Sambo told Schomer that he would kill Ellaine’s boyfriend if he touched Ellaine and that he would “take care of Ellaine.”

Mr. Sambo left the Schomer residence and returned approximately 15 to 20 minutes later. Schomer stated that Sambo’s demeanor was the same and that he was concerned about “teen-agers and sex” and that he wanted to straighten out his daughter. Sambo left shortly thereafter and returned again to the Schomer residence at approximately 10 p.m. However, he left after he was told that his daughter was not at the Schomer residence.

The alleged victim, Ellaine Sambo, testified that she was the 16-year-old daughter of defendants. Ellaine stated that she left her house at 8 p.m. on May 14, 1988, without her parents’ permission, to visit a local dance club with her boyfriend. She stated that she returned home at approximately 11 p.m. and told her mother that she had been at Doc Weed’s. Both Ellaine and her mother sat down on the sofa and began to discuss what had occurred that evening. Shortly thereafter, Ellaine heard her father in the garage and tried to run out of the house. Ellaine stated that she fell down on the stairs, got up and then fell into the front door, hitting her head on the doorknob. After a struggle with her parents, Ellaine eventually calmed down. She stated that neither of her parents had struck or kicked her during the incident.

Ellaine further testified that she went to school the following Monday morning (May 16, 1988) and spoke with the school counselor, Kara Egger. Ellaine stated that she told Egger that both of her parents hit her repeatedly on the night in question, finally stopping at approximately 5 a.m. In addition, she also told Egger that her father had dragged her down the stairs.

Ellaine also stated that she told substantially the same story to the school nurse, Judith Bush, as she did to the counselor. She also told Nurse Bush that her parents hit her with a plastic baseball bat that night.

Furthermore, Ellaine testified that she may have told Officer Michael Campo of the Darien police department that her parents repeatedly hit her in the face, back, hip, and buttocks with a plastic baseball bat on the night in question.

Ellaine also testified that she met with Waverle Grinden, a Department of Children and Family Services (DCFS) worker, on May 16, 1988, and recited a similar story concerning the beating. Furthermore, Ellaine told Officer Edward Vaughan of the Darien police department that she was unable to tolerate the verbal abuse and wanted to be taken out of her home and placed with a relative.

On cross-examination, Ellaine stated that she lied to the police and school officials about the alleged beating because she was mad at her parents. Ellaine also stated that she did not receive any medical treatment for her injuries.

Kara Egger, a counselor at Downers Grove South High School, testified that she saw Ellaine at approximately 7:50 a.m. on May 16, 1988. Egger stated that Ellaine was crying and was “upset, very distraught.” Egger testified, over defense counsel’s hearsay objections, that Ellaine told her that both defendants took turns hitting Ellaine with a plastic baseball bat and a belt and that both had kicked her. In, addition, Ellaine stated that her father tried to pull out her teeth, threw liquor in her eyes, and told her that he was going to visit her at school on Monday and, if she was with Jim (her boyfriend), he would “kill the both of them by knocking their heads together and taking out their intestines or stomach.” Egger stated that she took Ellaine to see the school nurse and then waited for the police to arrive.

Egger further testified that she saw Ellaine “almost every single day until the end of school.” Ellaine would continuously ask Egger for assistance in getting her out of her parents’ house. Ellaine also agreed to allow Egger to make an audio tape recording of one of the conversations. The tape was played to the jury. On the tape, Ellaine stated that her parents tried to get her to change her story, but that everything she told the police, social workers, and Egger was true. Ellaine told Egger that her parents beat her with a plastic bat, a belt, and their hands and that they threatened to kill her if she ever spoke to her boyfriend again. Ellaine also stated that she was making the tape of her own free will.

Judith Bush, the nurse at Downers Grove South High School, testified that she examined Ellaine on May 16, 1988, and observed bruises on her neck, face, upper arm, leg, and buttock. In addition, Nurse Bush noted that Ellaine’s left eye was swollen, along with one of her fingers. Ellaine told Nurse Bush that the injuries were the result of being hit with a plastic baseball bat and a belt. It was Nurse Bush’s opinion that the injuries received were consistent with what Ellaine told her had occurred.

Sergeant Brian Pabst of the Downers Grove police department testified that he observed Ellaine at approximately 10 a.m. on May 16, 1988, and noted that she was “extremely emotional” and “very upset.” He also noticed several bruises and swelling on her body. Ellaine told Sergeant Pabst that the injuries were the result of a beating by her parents. Sergeant Pabst stated that he then notified the Darien police department because the alleged crime had occurred in Darien.

Officer Michael Campo of the Darien police department testified that he went to Downers Grove High School on May 16, 1988, to pick up Ellaine and transport her to the Darien police station. Officer Campo stated that he interviewed Ellaine and was told that her parents had struck her with a plastic baseball bat and fists for approximately 5V2 hours on May 14, 1988. Ellaine stated that her parents “weren’t going to talk, they were going to hit.” Ellaine repeated the same story to Officer Campo a total of four times during the interview.

Officer Edward Vaugahn of the Darien police department testified that he received a phone call from Ellaine on May 27, 1988, in which Ellaine told him that “[djuring that time since her father had been arrested, her father and mother, she had been locked in her room, yelled at constantly, was prohibited from seeing or speaking to any of her friends, was kept apart from her sister and basically just locked up any time other than her being at school.”

Detective David Skala of the Darien police department testified that he met with Ellaine on June 19, 1988, and was told that Ellaine was “experiencing harassment at home.” In addition, her father told her to tell everyone that she lied about the events which occurred on May 14,1988.

Following Detective Skala’s testimony, the State rested, and defendants called Ellaine to testify again. Ellaine testified that she was suffering from a rash on her body on May 14, 1988, and was being treated with Benadryl. Ellaine stated that the rash itched and she would scratch it, with the scratch marks being noticeable on May 16, 1988.

After Ellaine testified, defendants rested. Following closing arguments, defendants made an oral motion for a directed verdict, which was denied. The jury returned a verdict of guilty for both defendants on the offense of battery. The court entered judgment on the verdicts, and subsequently sentenced defendants to one year’s probation. Defendants’ motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial, was denied, and this appeal followed.

On appeal, defendants first contend that the evidence presented at trial did not prove them guilty beyond a reasonable doubt. Defendants argue that Ellaine was not struck on May 14, 1988, but instead received her injuries as the result of a fall. Defendants also argue that, assuming arguendo that Ellaine was struck, the striking was justified as being within reasonable limits of parental discipline.

Defendants primarily rely on People v. Perry (1975), 27 Ill. App. 3d 230, and People v. Ball (1974), 58 Ill. 2d 36, to support their argument that they were not proved guilty beyond a reasonable doubt. In Perry, the defendant was convicted of battery for kicking a security guard employed by a private company. The appellate court reversed, holding that the defendant’s conduct was justified in that she was entitled to resist the security guard’s attempt to handcuff her. (Perry, 27 Ill. App. 3d at 239.) The court concluded that the security guard was not a peace officer, as defined by statute, and thus was not empowered to arrest the defendant for violating an ordinance. (27 Ill. App. 3d at 238-39.) The court noted that since the defendant’s conduct was justified, the State had failed to prove that her conduct was without legal justification. 27 Ill. App. 3d at 239.

Furthermore, in Ball, the defendant, a school teacher, was convicted of battery for using corporal punishment on a sixth-grade student. The trial court determined that the teacher’s use of corporal punishment went beyond what was “just and reasonable” and actually amounted to a battery. Our supreme court agreed, holding that the trial court properly used a “reasonableness” standard to determine whether the corporal punishment administered was without legal justification. (Ball, 58 Ill. 2d at 40.) The supreme court noted that teachers stand in loco parentis in matters of school discipline and, as such, should be subject to the same reasonableness standard which is applicable to parents in disciplining their children. 58 Ill. 2d at 40.

We disagree with defendants’ contention that they were not proved guilty beyond a reasonable doubt. The evidence at trial was conflicting as to whether a battery had actually occurred. Ellaine, defendants’ daughter, testified that she was not battered but instead hurt herself during a fall. However, the school nurse and counselor, along with two police officers, testified that they observed Ellaine’s injuries and were told that the injuries were the result of a beating by defendants. Where the evidence is conflicting, this court will not substitute its judgment for that of the trier of fact. (People v. Jaffe (1986), 145 Ill. App. 3d 840, 846-47.) As Jaffe stated: “A conflict in the evidence does not establish a reasonable doubt, and a jury verdict based on substantial and credible evidence is not rendered reversible by the fact that other evidence was introduced which might, if believed, have resulted in a different verdict. [Citation.] Only where the record leaves the reviewing court with a grave and substantial doubt of guilt should the conviction be reversed.” (Jaffe, 145 Ill. App. 3d at 847. See also People v. Dougard (1959), 16 Ill. 2d 603, 607.) We do not believe that there is a “grave and substantial doubt” of defendants’ guilt in this case and decline defendants’ invitation to substitute our judgment for that of the trier of fact.

We also disagree with defendants’ assertion that they were not proved guilty beyond a reasonable doubt because the conduct was legally justified as being within the reasonable limits of parental discipline. The evidence presented allowed the jury to find that defendants hit Ellaine with their hands, a plastic baseball bat, and a belt, kicked her, threw liquor in her face, and pulled her hair. This conduct, when reviewed under the Ball reasonableness standard, supports the conclusion that the beating was not justified as being a reasonable exercise of parental discipline. As such, we believe that defendants were proved guilty beyond a reasonable doubt.

Defendants next contend that the trial court improperly instructed the jury with respect to the essential elements of battery. In particular, defendants argue that the jury was not instructed as to the mental state of “knowingly,” nor was it instructed that the conduct was “without legal justification.”

The State contends that defendants have waived their claim by failing to object at trial to the instructions given and failing to tender alternative instructions. We agree.

In general, a defendant waives any error contained in a jury instruction by failing to object to the alleged erroneous instruction or by not offering an alternative instruction at trial. (People v. Reddick (1988), 123 Ill. 2d 184, 198; People v. Roberts (1979), 75 Ill. 2d 1, 10-11.) However, Illinois Supreme Court Rule 451(c) (107 Ill. 2d R. 451(c)) provides that substantial defects in jury instructions in criminal cases may be considered, even absent an objection at trial, if the interests of justice so require. (See People v. Morrison (1987), 162 Ill. App. 3d 299, 301.) This exception is utilized to correct grave errors or to correct errors in cases in which fundamental fairness requires that the jury be properly instructed. Reddick, 123 Ill. 2d at 198.

We do not believe that the present case involves grave error in the jury instruction. As to defendants’ first contention, we note that the battery statute indicates that the mens rea for the offense is “intentionally or knowingly.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 3(a).) In the case at bar, the jury was instructed that defendants must have “intentionally and by any means” caused bodily harm. As such, defendants’ contention is without merit.

Defendants’ second contention concerns the failure to instruct the jury as to the “lack of legal justification.” The lack of legal justification is not a necessary element of the offense of battery. (People v. Bitner (1980), 89 Ill. App. 3d 1106, 1112; People v. Voda (1979), 70 Ill. App. 3d 430, 437; People v. Worsham (1975), 26 Ill. App. 3d 767, 771.) Instead, the justifiable use of force is considered to be an affirmative defense. See Ill. Rev. Stat. 1987, ch. 38, par. 7 — 14; Worsham, 26 Ill. App. 3d at 771.

At trial, defendants did not contend that their use of force was justifiable but instead asserted that they used no force at all. As such, defendants were not entitled to an instruction concerning the “lack of legal justification,” and it was not error in failing to instruct the jury-on this issue. See People v. Lee (1980), 84 Ill. App. 3d 441, 445 (trial court did not err in failing to instruct the jury sua sponte concerning parental justification with respect to disciplining a child).

Defendants next contend that they were denied a fair trial by the cumulative effects of errors occurring during the trial. In particular, defendants argue that the trial court should have declared a mistrial after one of the State’s witnesses cried during her testimony, the trial court improperly allowed the State to introduce hearsay statements and opinion testimony into evidence, and that the prosecutor made improper opening and closing statements.

Defendants first argue that a mistrial should have been declared after Kara Egger, the school counselor, broke down and cried during her testimony. Defendants contend that Egger’s “emotional outburst” improperly conveyed and strengthened her opinion to the jury that defendants beat Ellaine on May 14,1988.

A review of the record indicates that the trial court ordered a recess immediately after Egger cried. The trial court denied defendants’ motion for a mistrial, indicating that it would instruct the jury that “[njeither sympathy nor prejudice should influence you.” Defense counsel characterized Egger’s conduct as an “outburst,” to which the court replied:

“I mean, look, Harv [defense counsel], that’s the way you characterize it. I didn’t really find this to be an outburst. As we know only too well from time to time certain witnesses cry on the stand and we call time and we let them regain their composure and it’s done and motions for mistrial are made and they’re denied and rightly so.
I mean I don’t believe this jury is going to reach any decision on the basis of some emotion that came out from the counselor, okay.”

Defendants rely on People v. Dukes (1957), 12 Ill. 2d 334, to support their argument that the counselor’s crying prejudiced their defense. In Dukes, the prosecutor, during closing argument, apparently wept and told the jury that he knew the victim of the homicide. The supreme court determined that this conduct was “highly improper and prejudicial” and, coupled with several instances of improper argument, required reversal of the defendant’s conviction. Dukes, 12 Ill. 2d at 341-43.

We believe that Dukes is factually distinguishable from the case at bar in that it was a witness in our case, and not the prosecutor, who wept during the trial. Furthermore, a genuine emotional outburst by a witness does not require a mistrial. (People v. Hudson (1970), 46 Ill. 2d 177, 197; People v. Wright (1975), 32 Ill. App. 3d 736, 745.) Instead, the decision to order a mistrial in such a situation is within the trial court’s discretion. (People v. Bolla (1983), 114 Ill. App. 3d 442, 451.) It has been held that a trial court’s decision not to caution the jury against being influenced by a witness’ weeping did not constitute prejudice to the defendant. (People v. Hairston (1973), 10 Ill. App. 3d 678, 686.) In the present case, the trial court was in a superior position to determine the impact that the witness’ crying may have had on the jury, and we find no abuse of discretion in refusing defendants’ request to declare a mistrial.

We next address defendants’ contention that the trial court improperly allowed the State to introduce hearsay statements into evidence at trial. Defendants argue that the hearsay testimony violated their sixth and fourteenth amendment rights and requires reversal of their convictions.

In order for testimony to constitute hearsay, there must be testimony of an out-of-court statement offered to prove the truth of the matter asserted, with the value of the statement resting on the credibility of the person who made the out-of-court statement. (People v. Rogers (1980), 81 Ill. 2d 571, 577; People v. Miles (1988), 176 Ill. App. 3d 758, 763.) The purpose of the rule barring hearsay testimony is to “test the value of assertions by exposing the source of the assertion to cross-examination by the party against whom it is offered.” People v. Holman (1984), 103 Ill. 2d 133, 148, cert. denied (1985), 469 U.S. 1220, 84 L. Ed. 2d 347, 105 S. Ct. 1204.

The alleged hearsay statements in this case involve statements which Ellaine made to the school nurse, counselor, and the police officers. The State contends that the statements were admissible as either prior inconsistent statements or excited utterances. We agree with the State that the statements were admissible as prior inconsistent statements.

Under common-law principles, a prior inconsistent statement was considered to be hearsay and hence not admissible as substantive evidence. (See People v. Gant (1974), 58 Ill. 2d 178, 183; People v. Collins (1971), 49 Ill. 2d 179, 198.) However, under section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1), a prior inconsistent statement is admissible as substantive evidence if:

“(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement—
(1) was made under oath at a trial, hearing, or other proceeding, or
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and
(A) the statement is proved to have been written or signed by the witness, or
(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding, or
(C) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording.” Ill. Rev. Stat. 1987, ch. 38, par. 115-10.1.

In the present case, Ellaine’s prior statements were inconsistent with her testimony at trial. She was also subject to cross-examination regarding the statements, with the statements describing an event (the alleged battery), of which she had personal knowledge. In addition, Ellaine acknowledged at trial, while under oath, that she made the statements, and an audio tape of a conversation she had with the school counselor was played for the jury. As such, Ellaine’s statements to the police officers, nurse, and counselor met the requirements of section 115 — 10.1 of the Code and were properly admitted at trial.

Our decision on this matter is supported by People v. Winfield, (1987), 160 Ill. App. 3d 983. In Winfield, the complainant, a six-year-old girl, testified at the preliminary hearing that the defendant had sexually attacked her. However, she testified at trial that her testimony at the hearing was “nothing but lies.” The appellate court, after first determining that section 115 — 10.1 of the Code was constitutional, held that it was proper to admit the prior inconsistent statements as substantive evidence at trial. Winfield, 160 Ill. App. 3d at 995.

Defendants also contend that Ellaine’s statements to the school nurse were privileged in that they were given to the nurse in her capacity to render medical care to the students. However, defendants have cited no authority to support their “nurse-patient” privilege argument. This lack of citation to authority fails to satisfy Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)), and we deem this issue waived on appeal. See People v. Trimble (1989), 181 Ill. App. 3d 355, 356-57.

Defendants next contend that the trial court erred in allowing Sergeant Pabst to testify to his opinion that a crime had been committed. In particular, defendants assert that it was improper for Sergeant Pabst to testify that he notified Officer Campo of the Darien police department that Pabst “had knowledge of a crime occurring in his [Officer Campo’s] town.” Defendants failed to object to this testimony at trial and did not address this alleged error in their post-trial motion. The failure to object to an alleged error at trial and in a post-trial motion constitutes a waiver of the issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Crayton (1988), 175 Ill. App. 3d 932, 948.) Consequently, we need not consider this contention on appeal.

Defendants further contend that the prosecutor made several improper comments during opening and closing arguments. In particular, defendants refer to the prosecutor’s alleged misstatement of law, improper remarks concerning defendants’ national origin, and comments regarding the fact that witness Egger cried during her testimony. However, defendants failed to object to any of the alleged improper comments when they were made at trial. This issue also has been waived, as it is necessary to object to the prosecutor’s alleged improper comments at trial and in a post-trial motion to preserve the alleged errors for review. People v. Hurt (1988), 175 Ill. App. 3d 970, 978; People v. Pallardy (1981), 93 Ill. App. 3d 725, 730.

Moreover, we need not review as matters of plain error any of the issues which we have deemed waived. (See 107 Ill. 2d R. 615(a).) In the present case, it is not plainly apparent from the record that an error affecting substantial rights was committed at trial. (See Hurt, 175 Ill. App. 3d at 978-79.) Consequently, we reject defendant’s contention that they were denied a fair trial based on the cumulative effect of errors during their trial.

Defendants’ fourth contention on appeal is that the trial court improperly appointed counsel to represent Ellaine’s interests at trial. Defendants contend that a “long-time family friend,” attorney A. Jun Joaquin, Jr., should have been permitted to advise her during the trial. The trial court appointed William Padish, a public defender, to represent her interests at trial, stating that it wanted “a totally neutral party who is not connected with the family to be an advisor on legal matters in this proceeding for [Ellaine].”

Defendants argue that they were prejudiced by this violation of Ellaine’s right to choice of counsel for two reasons: first, the jury perceived that “all is well” when in fact Ellaine did not wish to testify against her parents; and second, had attorney Joaquin assisted Ellaine, she “might have been able to present herself” as a credible witness at trial.

The State contends that defendants have waived this argument on appeal. The State correctly notes that defendants have failed to cite any authority to support their argument that the court erred in appointing counsel to represent Ellaine’s interests at trial. Thus, we need not address the merits of this argument. (See Trimble, 181 Ill. App. 3d at 356-57.) The waiver argument aside, we find no merit in defendant’s contention that the trial court erred in appointing a neutral party to represent Ellaine’s interests at trial given the conflict of interests between her and defendants. This case is precisely the type of case calling for an independent advisor, and we fail to find any error in not allowing the “close family friend” to represent Ellaine’s interests at trial.

Defendants’ final contention on appeal is that their convictions violate public policy based on their right to privacy in family decisions. Defendants contend that public policy supports reasonable parental discipline with respect to their children. In support thereof, defendants cite several United States Supreme Court cases dealing with the right to privacy, including Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (abortion), Prince v. Massachusetts (1944), 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (family relationships), and Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary (1925), 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (child rearing). Defendants also cite to two advice columns from the Weekly World News to “demonstrate a widely-held public opinion allowing reasonable parental discipline.”

We agree with defendants that they have a general right to privacy in the manner in which they raise their children, including taking reasonable steps to discipline their children when necessary. However, the State also has a legitimate interest in the welfare of juveniles. (People v. R.G. (1989), 131 Ill. 2d 328, 344, citing Ginsberg v. New York (1968), 390 U.S. 629, 638-41, 20 L. Ed. 2d 195, 203-05, 88 S. Ct. 1274, 1279-81.) The State certainly has a legitimate interest in protecting juveniles from “unreasonable” parental discipline. This is precisely the situation we have in the present case. The evidence indicated that defendants repeatedly struck Ellaine with their hands, a belt, and a plastic baseball bat over a five- to six-hour period. Ellaine had liquor thrown in her face, had her hair and teeth pulled at, and was kicked numerous times. We cannot agree with defendants’ assertion that the public policy of this State supports such conduct. Consequently, defendants’ convictions do not violate the public policy of this State, and there was no infringement of their right to privacy with respect to family decisions and child rearing.

Defendant Victoria Sambo also raises one issue on appeal, namely, that she was denied the effective assistance of counsel at trial. She contends that her attorney, who also represented her husband, had an actual conflict of interest such that he was unable effectively to represent her interests at trial.

Initially, we note that joint representation of codefendants is not a per se violation of a defendant’s constitutional right to the effective assistance of counsel. (Burger v. Kemp (1987), 483 U.S. 776, 783, 97 L. Ed. 2d 638, 650, 107 S. Ct. 3114, 3120; People v. Nelson (1980), 82 Ill. 2d 67, 72.) This rule is necessary due to the fact that a possible conflict of interest exists in almost every instance of multiple representation. (People v. Cedillo (1986), 142 Ill. App. 3d 849, 852.) Where, as in the case at bar, the defendant claims ineffective assistance of counsel based upon a conflict of interest, the defendant must show that there was an actual conflict of interest at trial. People v. Pace (1987), 163 Ill. App. 3d 1012, 1016; Cedillo, 142 Ill. App. 3d at 852.

Defendant Victoria Sambo argues that, if she had been represented by her own attorney, she would have been able to argue that any wrongdoing was solely her husband’s responsibility. As such, she asserts that she did not receive an individualized defense at trial. We disagree.

Defendant has failed to demonstrate any actual conflict of interest at trial. Defendants did not present conflicting or antagonistic defenses at trial, and at no time did Ellaine single out either defendant as the one responsible for the beating. (See People v. Lee (1981), 87 Ill. 2d 182, 187-88 (prejudice occurs if the codefendant’s defenses are antagonistic or conflicting).) Instead, both defendants were implicated as being responsible for the battery. Absent any showing that an actual conflict of interest existed, defendant Victoria Sambo’s claim of ineffective assistance of counsel must fail.

For the above-stated reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

REINHARD and DUNN, JJ., concur.