author: PRESIDING JUSTICE JIGANTI

text:
    CECILIA CORPUZ, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—92—3098
    Opinion filed August 26, 1993.
    Rehearing denied September 21, 1993.

      Mark S. Simon, of Chicago (Jack Joseph, of counsel), for appellant.

      Anthony E. Dombrow and Jeffrey Polisky, both of Laner, Muchin, Dombrow, Becker, Levin & Tominberg, Ltd., of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Cecilia Corpuz, appeals from an order of the circuit court affirming the decision of the University of Illinois Civil Service Merit Board (Merit Board or Board) to dismiss her as business manager of the obstetrics and gynecology department of the University of Illinois (University). Corpuz alleges that the Merit Board’s findings were against the manifest weight of the evidence; that in any case just cause for discharge did not exist; and that the Board’s procedures violated her right to due process.

The investigation that led to Corpuz’s discharge began in mid-1990 as a result of a communication received from the Vicks Research Center of the pharmaceutical company of Richardson-Vicks, Inc. An attorney for Vicks telephoned Dr. Bruce Bosmann, associate dean of research at the University of Minois College of Medicine. The Vicks attorney informed Bosmann that Dr. Yusoff Dawood, formerly of the University’s obstetrics and gynecology (OB-GYN) department, and Corpuz had been communicating with Vicks in an attempt to have Vicks release to Dr. Dawood funds related to a clinical drug study Dawood performed for Vicks while a member of the University’s College of Medicine. The Vicks attorney asked Bosmann whether a letter received by Vicks dated April 13, 1990, was to be construed as a release to Dr. Dawood of funds owed to the University for the study. The letter to which the attorney referred was addressed to Vicks in care of Donna J. Patch, Manager, Medical/Clinical Studies, and stated specifically and in full:

“Re: ‘Dysmenorrhea’
Dear Ms. Patch:
Our records indicate that the above study (#88-07) has been completed. All financial obligations to the University of Elinois had been met at the time of Dr. Dawood’s departure from the Department of Obstetrics and Gynecology in December, 1989.”

The letter was signed by Corpuz and cosigned by Bosmann as senior associate dean for research. A copy of the letter was forwarded to Dr. Dawood, the head of the OB/GYN department, and the grants and contracts office of the University’s medical department.

In response to the Vicks attorney’s inquiry, Bosmann informed Vicks that the letter was absolutely not intended as a release of funds to Dawood, who had since left the University. Bosmann faxed a copy of the letter to the Vicks attorney with a handwritten note on its face which stated in pertinent part:

“Please do not in any way interpret this as a release of obligations made between Vicks Richardson & the University of Illinois. Please make all checks payable to the University] of Illinois under any contract agreements we have with you.”

Bosmann then met with Dr. Gerald Moss, dean of the College of Medicine, and an investigation of the OB-GYN department was initiated. The investigation conducted by the University office of audits revealed that over $360,000 of money considered to be owed to the University by various pharmaceutical companies for research studies performed by University doctors had been diverted to other recipients, for example, the University of Texas, Dr. Dawood’s new employer. Five pharmaceutical companies were involved and in each case Corpuz issued a letter of completion similar to that noted above.

The auditor examiner also concluded that an OB-GYN staff fund account, a nonuniversity account for which Corpuz acted as treasurer, was being used as a repository for University funds. Out of these commingled funds, Corpuz, with the approval of her supervisor, had issued interest-free loans and salary advances to herself and other department members.

Finally, the investigation revealed that Corpuz had received added compensation at the direction of her supervisor in the amount of $1,500 a year for the years 1984 through 1990. This compensation was drawn from the staff fund account and was for services Corpuz rendered in connection with an evening lecture series sponsored by the OB/GYN department. Corpuz did not report this income to the “State of Illinois on her Statement of Economic Interests” disclosure form.

After the auditor’s investigation, the University filed charges against Corpuz. A hearing was held before hearing officer August A. Grundei over five days in September and October of 1991. At the conclusion of the hearing, Grundei made the following specific findings of fact addressed to the secretary of the University Merit Board:

“CECILIA CORPUZ was a competent, efficient and trusted employee of over 18 years, earning $50,000.00 per year as business manager of the department for ten years. Her fellow employees courageously came forward and supported her. Her employment record with the University is without blemish until this incident. The staff account was being misused when she came into the department. She never received any notice about this staff account concerning her conduct for misfeasance or nonfeasance for the ten year period. No one, other than the prosecutor and the investigators herein (post-factum), understands this staff account and its limits. No one, other than the prosecutor and the investigators herein (post-factum), understands the policy of the University as applied to this staff account. All monies paid in and out of the staff account were under the direction and authorization of the supervising doctor.
Cecelia Corpuz received a relatively small benefit when compared to the major benefit received by others from this staff account. The payment of the $1,500.00 bonus per year for an exempt salary employee was directed by her supervisor and accepted by her. The making of loans and the payment of advances were directed and authorized by her supervisor.
In theory, Cecilia Corpuz should have known the limits of the staff account based upon her job description, but in reality the problem is that no one knows the limits of this staff account. This is the dichotomy of theory and fact.
The written charges for discharge were clear and comprehensible by petitioner’s attorney. The University substantially cooperated with petitioner’s attorney in good faith.
This system of external drug company funding, as related to the staff account, herein, and Cecilia Corpuz’s knowledge therein is as follows:
I That Cecilia Corpuz did not know and could not know the policy concerning the staff account.
II That Cecilia Corpuz did not know and could not know the limits of the staff account.
III That Cecilia Corpuz is not responsible for the ordering and correcting of this system of external drug company funding.”

The University’s Merit Board concluded that the charges against Corpuz were sustained, and on January 14, 1993, the Merit Board discharged Corpuz based on the following causes:

1. Improperly issuing letters of completion to granting agencies which allowed monies owed the University to be diverted to other institutions or persons.
2. Failure to properly account for and monitor research and gift funds.
3. Violating the grants contracts and gifts provisions of the “General Rules Concerning University Organization and Procedure” with reference to your administration of the staff fund.
4. Improperly accepting $1,500 added compensation each year from 1984 to 1990 in violation of “Policy and Rules Nonacademic” and failure to report the added income to the State as required by law.

Corpuz appealed the Board’s decision to the circuit court, where it was affirmed. She now brings this appeal. Corpuz’s first argument on appeal is that the Merit Board’s conclusion that she improperly issued letters of completion to the pharmaceutical companies resulting in the improper diversion of funds to other institutions or persons is against the manifest weight of the evidence. The letters of completion on their face cannot be construed as releasing funds to other institutions that were owed to the University. The letters cannot therefore be considered a “cause in fact” of the improper diversions. Thacker v. U N R Industries, Inc. (1992), 151 Ill. 2d 343, 354, 603 N.E.2d 449.

Corpuz contends that the letters of completion merely state that the grant studies were completed and that any related expenses were covered or accounted for. Corpuz testified before the hearing officer that before issuing the letters of completion she checked under the particular grant contract account number to assure the accuracy of her letter. Under the plaintiff’s argument, the actual diversion of funds occurred because of instructions issued to the pharmaceutical companies by the particular doctors, also known as principal investigators, involved in the grant study. As an example, Corpuz offers a letter to Hoechst-Roussel Pharmaceuticals, Inc., from Dr. Dawood from which the following is excerpted:

“I will be taking up my new appointment *** at the University of Texas Medical School ***. The studies *** conducted by me have been completed. All expenses for the study have been defrayed from my other research accounts and enclosed is a statement attesting to that.
Therefore I am requesting that the balance of the grant due for the studies conducted by me be made out to my new institution ***.”

Corpuz stipulated before the hearing examiner that in one case she knew that, as a result of her letter of release, over $66,000 in funds owed to the University would be diverted to the University of Louisville. Corpuz’s understanding of the destination of the funds came through a letter forwarded to her from Fuller Lyons of the University’s grants and contracts office. The letter was addressed to Lyons from Pfizer Pharmaceutical. In the letter, a Pfizer representative notes that the letter is a confirmation of a previous conversation with Lyons from which the representative understood there would be no problem in obtaining a release of the University of Illinois as payee in order that payment could be made to the University of Louisville in the name of Dr. Gall, formerly of the University of Illinois. The Pfizer letter was forwarded to Corpuz, who directed a letter to Pfizer stating that the study had been completed and all financial obligations to the University of Illinois had been met at the time of Dr. Gall’s departure. The letter was cosigned by Bosmann. Corpuz asserts that she issued the letter of completion only after receiving authorization from Dr. Bosmann, whom, she argues, she fully informed of the circumstances.

In response to Corpuz’s argument, the University argues, based on Bosmann’s testimony, that Bosmann was unaware when he cosigned the letter of release to Pfizer Pharmaceutical that the designated funds were being diverted to the University of Louisville. The University asserts that since the Pfizer letter was similar in language to the other letters, Corpuz knew that the other letters would also result in a diversion of grant funds. According to the University, Corpuz’s issuance of the letters was gross negligence, flagrant incompetence, or grossly inadequate job performance in that she knew or should have known that in issuing the letters substantial amounts of monies would be diverted from the University.

Furthermore, it is the University’s contention that Corpuz had a responsibility to ensure not only that grant monies were not diverted but also to actively collect grant money owed to the University for completed studies. The University relies on the testimony of University officials and reference to Corpuz’s job description in asserting that by virtue of her position in the department, Corpuz’s superiors relied on her to assure that the OB-GYN department’s business and financial procedures comported with University policy.

With specific reference to grant management, Corpuz’s job description charges her with the following:

“Serves as primary financial advisor to Principal Investigators in the development and submission of all new and renewal grant applications to ensure that all non-technical aspects have been correctly and adequately represented.
Prepares detailed financial portions of proposals defining salary and other expenditure requirements in accordance with granting agencies specifications, as well as University guidelines and procedures.
Maintains surveillance over all grant accounts and provides Principal Investigator with monthly and quarterly financial reports. Develops and reports operational statistical data as specifically desired by the Head of the Department or as required by supporting organization.
Makes appropriate recommendations when budget revisions and transfers are required to support grant operations.”

We do not believe that the manifest weight of the evidence supports a finding that the plaintiff, Corpuz, improperly issued letters which allowed monies owed to the University to be diverted to other institutions. The University has not provided competent evidence that the pharmaceutical companies released funds to alternate recipients in reliance on the letters in themselves. To the contrary, the record indicates that it was the request of doctors or principal investigators that, in conjunction with the letters of completion, prompted the drug companies to forward funds to other institutions. Dr. Moss, the dean of the College of Medicine, while laying responsibility for the diversion of the funds on Corpuz, acknowledged in his testimony that the pharmaceutical companies based their decisions on communiques from the responsible doctors.

Further, we believe it is contrary to the manifest weight of the evidence to assume that it was Corpuz’s affirmative duty to collect the grant funds owed to the University under contracts the drug companies entered into with the members of the OB-GYN staff. While Dr. Moss and other officials of the University were of this opinion, it is not an assertion supported by reference to Corpuz’s job description.

Moreover, there was testimony from Fuller Lyons, the associate director of the grants and contracts department of the University, that under most circumstances it was his department’s function to oversee the funding of research grants. Lyons’ assertion is supported by a 1977 University written policy statement that is included in the record. The policy statement states that among other duties, the grants and contracts office is responsible for setting up the contract accounts and submitting billings to sponsors. Lyons also testified that in his view, with respect to individual medical departments, it is the principal investigator of the research study who is the primary department member obligated to ensure that money from grants in which he or she is involved is correctly funneled to the University. James Moran, assistant director of University audits, testified that the grants and contracts office was the primary body charged with collecting grant funds. In his view, Corpuz and the primary investigator were also responsible. Corpuz testified that it was her understanding that the grants and contracts office performed the duty of collecting grant funds.

There is also testimony in the record that in some instances the doctors entered into informal agreements with the pharmaceutical companies to conduct research or extend research projects. These agreements were not formalized through the grants and contracts office and it is unclear who was to be responsible for overseeing these agreements. Furthermore, it appears that until the issue arose with respect to the plaintiff, the University was not particularly concerned with the whereabouts of excess grant monies. Lyons testified that while he believed everyone connected with the University should have its best interests in mind, he was not officially concerned about the grant accounts unless they were in deficit. The auditor testified that he was under the impression that problems in the way the grants and contracts for drug studies were being administered also existed in departments other than OB-GYN. Dr. Bosmann testified that money left over from a grant study should go into the University’s general account. He admitted that in the five years he had been with the University, he was aware of fewer than 10 times in which excess grant money was deposited to the general account. Bosmann testified that at any given time the University is involved in about 400 active grants for a total of $45 million in sponsored research. Finally, Dean Moss admitted that under his authority Dr. Bosmann had authorized $200,000 in equipment purchased in connection with a grant transferred to Dr. Dawood at his new institution, the University of Texas.

We recognize that in one case Corpuz admitted that she knew a diversion of grant funds would occur after she forwarded a letter of completion. We also recognize that our standard of review in this case is a high one in which we must assume that the Merit Board’s findings and conclusions of fact are prima facie correct. (Ill. Rev. Stat. 1991, ch. 110, par. 3—110; Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885.) Nevertheless, after examining the evidence of record as noted in our discussion above, we believe that the Merit Board’s finding that in generating letters of completion Corpuz allowed monies owed the University to be diverted to other institutions or persons is against the manifest weight of the evidence. The letters on their face cannot be construed as directing the pharmaceutical companies to forward grant monies to other institutions. Further, it does not appear from Corpuz’s job description, or the policy of the University as written or practiced, that collecting or ensuring the collection of grant monies was a part of Corpuz’s responsibility.

The second and third Merit Board charges against Corpuz stem from her duties with respect to the administration of the OB-GYN staff fund. As a result of the audit investigation of the OB-GYN department, the University auditors concluded that during the period 1980 through 1989 research-related monies were improperly deposited into the staff fund as opposed to a University grant, contract or gift account. The auditors also concluded that improper loans and salary advances were made to members of the OB-GYN department out of the staff fund. In some instances, the loans were as much as $10,000 at a time to one individual. These loans and advances also included $6,000 directed to the plaintiff, Corpuz.

The staff fund is a fund operating under the umbrella of a larger fund known as the Chicago Organizations Fund (Chicago Fund). The Chicago Organizations Fund has a procedure manual in which it is specified that the Chicago Fund is an entity that functions separately from the University. The Chicago Organizations Fund encompasses all the funds of its member organization, be they University of Illinois fraternities, clubs, or various University of Illinois departments. The accounts are funded with money generated by the particular organization. In the case of the OB-GYN department, the self-generated funds came from a Friday night lecture series that the department sponsored. The Chicago Fund maintains the books and accounts for the particular member organization and issues the checks drawn on the accounts based on vouchers presented by the organization. Deposits to organization accounts are made through the University’s office of business affairs and posted by the Chicago Fund to the appropriate organization’s ledger. The Chicago Fund monitors the individual member accounts to oversee their financial soundness.

The director of the Chicago Fund, Wayne Wolf, testified that he did not see any impropriety in loans to employees coming out of the staff fund; however, he noted that it was inappropriate to deposit funds into a staff account that were directed to the University. Wolf testified that the Chicago Fund does not generally review the individual transactions of its member groups but it makes periodic reviews of the accounts. Wolf testified that a member fund may typically contain $10,000 to $12,000; however, if the balance increases beyond this amount, his concern over the propriety of the account increases proportionately.

Wolf testified that he remembered making several inquiries to Corpuz in 1987 about a $125,000 balance in the OB-GYN staff account as he suspected that a large amount of the balance was attributable to University funds. After Wolf consulted with Corpuz, she cooperated in transferring the money out of the staff fund into University grant accounts. Thereafter, the balance in the staff account again rose to an inappropriate level. Lyons of the contracts and grants department confirmed that grant money was transferred out of the OB-GYN staff account into grant accounts.

Corpuz does not deny that she deposited grant funds into the staff account or that she made salary advances and loans to members of the OB-GYN department from the staff account. Corpuz testified that before depositing grant money into the staff fund she checked to determine whether the University had an account for the particular grant. If it did not, she deposited the funds into the staff account. Corpuz argues that she maintained the staff fund in accordance with the instructions of Dr. Spellacy, the OB-GYN department head under whom she worked from the beginning of her tenure in OB-GYN until he departed in June of 1988. Corpuz admitted that as of 1983, she understood that the staff account was a private fund; however, she did not think to tell Dr. Spellacy.

Dr. Spellacy testified through deposition that Corpuz never exceeded the authority he allowed her with respect to the staff fund. Spellacy admitted that grant funds were deposited into the staff fund. Spellacy assumed the staff account was just another University account and he “presume[d]” that the University auditors would inform the department if it was managing the staff fund incorrectly. Spellacy also testified that he relied on Corpuz and the University’s business office to handle the procedures related to grants and contracts.

Corpuz argues that she had no way of knowing the limitations of the staff account. Although the procedures manual for the Chicago Fund specifies that it is a separate entity from the University, it does not set out restrictions on the source of funding or restrictions on expenditures. The University’s “Business and Financial Policies, Guidelines and Procedures Manual” makes no reference to the Chicago Fund or the staff account.

Further, Corpuz maintains that in making deposits and withdrawals to and from the staff account, she always comported with the proper procedures of documentation. Corpuz argues that the University was aware of the character of the OB-GYN staff fund as withdrawal requisitions were made through the director of accounting and deposits to the staff fund of checks that were made out to “University of Illinois” were funneled through the University business office. Other than the inquiries she received from the director of accounting in 1987, no administrator ever informed Corpuz that she was misusing the staff account.

For these reasons, Corpuz argues that the University waived its adherence to any policies related to the staff account and in effect condoned her practices. In support of her argument, Corpuz cites to Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 519 N.E.2d 991, and Foster v. Springfield Clinic (1980), 88 Ill. App. 3d 459, 410 N.E.2d 604.

Under the circumstances of the present case, we do not believe that the University has condoned the plaintiff’s activities and waived its right to charge her. Further, we believe that the Merit Board’s finding that the plaintiff mismanaged the staff account by improperly depositing into it University funds and making staff loans and salary advances out of those funds is not against the manifest weight of the evidence. Part of Corpuz’s job description charges her with, among other duties, assuming the responsibility for the correct use of resources; assuring that department operations conform with University policies; and advising the department head on the status, allocation, and use of accounts and funds. Additionally, according to the job description, Corpuz’s position is considered to be one requiring independent judgment, a high level of responsibility and a low level of supervision. We do agree with the hearing officer that the staff account was apparently being misused before Corpuz came to work in OB-GYN. It is also apparent that there were not at the time clear guidelines defining the function of the staff fund. That others in the University were apparently aware that the account was being mishandled is further proof that the University was either unconcerned or unclear as to the limitations of the fund.

Nevertheless, the University does have written policies specifically stating that “No department or unit shall receive any monies directly unless authorized by *** Business and Finance. *** All monies shall be accounted for and paid over in such manner as *** Business and Finance shall direct.” Further, the policies provide that new accounts for projects can be opened by submitting a request to the office of grants and contracts. It is undisputed that money generated from grant studies is the property of the University and therefore falls under the general policy guidelines of the University. It follows that grant money was improperly deposited into the OB-GYN staff account and that knowledge of this impropriety could have been ascertained with reference to the University’s written policy manual.

As for the loans and salary advances from the staff fund, it becomes apparent from the total amount of these loans and advances that they were necessarily funded at least in part by the improper deposits from grant monies. The loans were therefore out of University funds, and Corpuz admitted that she informed Spellacy at one time that the OB-GYN department was not authorized to grant such loans. We recognize that in overriding her concerns, Spellacy put Corpuz in an unfortunate position of conflict. Nevertheless, we do not believe it was against the manifest weight of the evidence for the Merit Board to find that it was among Corpuz’s duties to ascertain the proper use of the staff fund and impress upon her department head the improprieties in the department’s practice.

The Merit Board’s final charge was that the plaintiff improperly accepted $1,500 per year in added compensation each year from 1984 to 1990 in violation of University policy and failed to report the added income as required by State law. The University asserts that any additional compensation for Corpuz was required to be routed through the director of personnel services as stipulated in the University policy entitled “Additional Compensation for Special Work Assignments Nonacademic Employees.” Under the policy, when a nonacademic employee performs work of limited duration on special assignment outside of the employee’s home department and outside the employee’s regularly scheduled work hours, requests for additional compensation must be preapproved by the University director of personnel.

Furthermore, the University asserts that Corpuz was required to report this income as required by the niinois Governmental Ethics Act (Ethics Act). (HI. Rev. Stat. 1991, ch. 127, par. 604A — 101 et seq.) Under the Ethics Act, earnings from professional services in which a State employee acts as an officer, director, associate, partner or proprietor or advisor in any capacity must be reported if the income so derived is in excess of $1,200 per year. (111. Rev. Stat. 1991, ch. 127, par. 604A — 102(a)(1).) The Act also requires anyone rendering professional services other than to the unit of government for whom the person is an employee to report income for the professional services if it exceeds $5,000 per year.

Corpuz’s response to the University’s argument is that her added remuneration was for attending and coordinating the first Friday night lecture series of the OB-GYN department. She asserts that this responsibility was not part of her job description and that it required her to work in the evening, resulting in additional personal expense such as cab fare and baby-sitting fees. In response to the circumstances, Corpuz’s department head, Dr. Spellacy, authorized the additional compensation to be drawn from the staff fund for which the Friday night series was a source of income. Additionally, Corpuz asserts that with respect to the Ethics Act, she was subject to the higher threshold requirement of $5,000 for professional services rendered to other than her employer.

We believe there is an inherent flaw in the University asserting on the one hand that any additional compensation Corpuz received for the Friday night series should have been processed through the University’s employee office and on the other hand that Corpuz was required to report the income under the Ethics Act, which essentially monitors an employee’s outside activities as they may relate to her public employment. (See Stein v. Howlett (1972), 52 Ill. 2d 570, 289 N.E.2d 409, appeal dismissed (1973), 412 U.S. 925, 37 L. Ed. 2d 152, 93 S. Ct. 2750.) We do not believe that a finding of one or the other is against the manifest weight of the evidence; however, we also do not believe that the charges may stand together.

We believe that the Merit Board’s first finding that Corpuz’s letters of completion to the pharmaceutical companies resulted in monies being improperly diverted from the University is not supported by substantial evidence in the record and is contrary to the manifest weight of the evidence. Furthermore, we believe that the University’s final charges that Corpuz improperly received additional compensation and failed to report it are in conflict. For these reasons we remand this case for further consideration as to whether there exists just cause for Corpuz’s discharge from the University. The Illinois courts have defined cause “as some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public policy recognize as good cause for his no longer holding the position.” Fox v. Illinois Civil Service Comm’n (1978), 66 Ill. App. 3d 381, 388-89, 383 N.E.2d 1201, 1206.

Corpuz’s final argument on appeal is that because she was not given the opportunity to testify on her own behalf and did not receive reasonable and adequate notice of the charges against her, the Merit Board denied plaintiff’s right to due process. The plaintiff also asserts a violation of her rights in that she was not given the opportunity to depose the University’s senior auditor, James Moran, before he was called to testify before the hearing officer.

The University asserts that Corpuz has waived her due process claim. The University argues that when the Merit Board gave her an opportunity to make objections to the record of the proceeding before the hearing officer, instead of raising objections to the Merit Board, Corpuz objected that the record was deficient in that it failed to include certain rulings and motions. Corpuz particularized these deficiencies in her response to the Merit Board.

We do not believe Corpuz has waived her right to appeal her due process claim. Although an argument raised for the first time on judicial review may serve to waive the argument, we believe that the defendant’s attempt to so categorize the plaintiff’s action in this case is without substance. The plaintiff’s objections were effectively raised prior to judicial review when she asserted and specified deficiencies in the record of the hearing to the Merit Board. See Lebajo v. Department of Public Aid (1991), 210 Ill. App. 3d 263, 569 N.E.2d 70.

However, we also do not believe that Corpuz suffered a deprivation of due process rights. In an administrative proceeding involving the discharge of a public employee, the employee’s due process rights are met if the employee is given notice of the charges against her, an explanation of the employer’s evidence, and an opportunity to be heard. (Phillips v. Civil Service Comm’n (1988), 172 Ill. App. 3d 278, 526 N.E.2d 549.) Some kind of hearing is required; however, the proceedings may be informal. The opportunity to be heard need only be extensive enough to guard against a mistaken decision. Phillips v. Civil Service Comm’n, 172 Ill. App. 3d 278, 526 N.E.2d 549.

In the present case, the plaintiff received formal written notice of the charges against her. The charges were itemized and explained with reference to specific dates and amounts. The University also provided the plaintiff with University documents and records supporting the charges. The hearing officer concluded that “the written charges for discharge were clear and comprehensible by petitioner’s attorney.” Furthermore, although the plaintiff did not testify as part of her direct defense, she was given the opportunity to be heard when she offered extensive testimony as an adverse witness of the University. The plaintiff was also provided ample opportunity at the hearing to cross-examine the University auditor, Moran. The hearing proceeded over five days and included numerous witnesses, including those of the plaintiff. The hearing officer received into evidence numerous exhibits. Under these circumstances, we do not believe further procedural protections were necessary. (See Balmoral Racing Club, Inc. v. Illinois Racing Board (1992), 151 Ill. 2d 367, 603 N.E.2d 489 (due process calls for such procedural protections as a particular situation demands).) The ruling of the trial court with respect to the issue of due process is therefore affirmed.

Affirmed in part; reversed in part and remanded for a determination of whether just cause exists for the discharge of the plaintiff.

JOHNSON and HOFFMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN KNADE, Defendant-Appellant.
    First District (4th Division)
    Nos. 1—90—3394, 1—92—1597 cons.
    Opinion filed August 26, 1993.

      Bradley & Burke, Ltd., of Chicago (Thomas V. Gainer, Jr., of counsel), and Marc M. Barnett & Associates, of Palos Hills (Marian H. Donohue, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Gael O’Brien, Special Assistant State’s Attorney, and Renee Goldfarb, Jeanne Lobelson, and Lawrence Page, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, defendant, Brian Knade, was convicted of first degree murder (111. Rev. Stat. 1987, ch. 38, par. 9 — l(aXl)) and armed robbery (111. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)). He was subsequently sentenced to a 50-year term of imprisonment in the Illinois Department of Corrections for the murder conviction, and a 30-year term for the armed robbery conviction to be served concurrently to the murder sentence.

On appeal, defendant maintains (1) the trial court erroneously admitted hearsay testimony of prosecution witnesses who testified as to statements made by the victim shortly after the attack, as these statements did not fall within the spontaneous declaration or excited utterance exception to the hearsay rule; (2) the trial court erroneously admitted photographs into evidence which were not disclosed to defense counsel prior to trial; (3) the trial court erroneously admitted the victim’s telephone book into evidence which contained alterations not properly documented by police; (4) the prosecutor called defendant a “skinhead” during closing argument which prejudiced him; (5) absent the spontaneous declarations of the victim, he was not proved guilty beyond a reasonable doubt; and (6) the trial court erroneously dismissed his post-conviction relief petition without an evidentiary hearing when the petition alleged a deprivation of due process and ineffective assistance of counsel.

We affirm.

The following pertinent facts were adduced at trial. Victor Trimuel testified that he worked for the victim at El Kat Industries, a picture frame building business, in Posen, Illinois. He stated that on November 15, 1988, another employee, Joe Thomas, told him that the victim was calling his name from his office at the front of the shop. Trimuel went to the front and saw that the door to the victim’s office was closed and locked. He and Thomas used a crowbar to open the door. They discovered the victim lying on the floor, covered with blood.

Trimuel asked the victim whether he knew the person responsible for the attack and the victim named Brian Knade, later identified as defendant. Trimuel stated that the victim’s condition was “real bad” so he called the paramedics. Thomas then helped the victim into a chair and asked the victim who did this to him. The victim stated that defendant hit him and took his wallet. As Thomas wiped the blood off the victim, he observed a hole in the victim’s head. Trimuel approached the victim and he also saw the hole, describing it as “real deep.” Trimuel testified that he twice heard the victim tell Thomas that defendant attacked him. Thomas testified to the same facts.

Officer Timothy Poulus, of the Posen police department, testified that on November 15, 1988, shortly after 2 p.m., he was dispatched to El Kat Industries “for a battery victim with a head injury.” He arrived at the building and saw the victim sitting in a chair in his office covered with blood. Officer Poulus asked the victim what happened and he stated that defendant, a former employee, was inquiring as to his earnings the year he was employed at El Kat. The victim stated that he told defendant everything would be sent to him in the future, and defendant then began to hit him about the head and the face.

Officer Poulus testified that when the fire chief and the paramedics arrived, the fire chief asked the victim what happened. Officer Poulus heard the victim tell the fire chief that a former employee came to ask about his earnings and then started to hit him for an unknown reason. The fire chief then asked the victim if he knew the employee and the victim responded, “I sure do; it was Brian Knade.” The victim then asked the fire chief to hand him his telephone book, which he opened to the page containing defendant’s name and telephone number. He told the fire chief that defendant lived in Midlothian, Illinois. Officer Poulus went to the emergency room and spoke with the victim, who recounted the same circumstances of his attack.

Timothy Sendera, a paramedic in the Village of Posen, testified that he and Brian Krizik, also a Posen paramedic, treated the victim on November 15, 1988. He stated that the victim was conscious and orientated to those around him. Sendera testified that he heard the victim tell police that a former employee took $200 from him and struck him to “total unconsciousness.” The victim further stated that the employee was defendant, a resident of Midlothian, Illinois, whose telephone number was in a book on his desk. Brian Krizik testified to the same facts. Later, at the hospital, the victim died of his injuries.

Jeremy Heidrich, a friend and former roommate of defendant, testified that defendant told him that he beat his former boss in the head with the butt of a gun and took his wallet. Defendant also told him that the wallet contained $200 and that he threw the gun into a canal.

Jeremy’s father, Robert Heidrich, testified that defendant stated he wanted to borrow or buy a gun because he killed his boss and the police were after him. Additional witnesses testified that defendant stated he killed his boss.

After a sentencing hearing and arguments in aggravation and mitigation, defendant was sentenced to a 50-year term in the Illinois Department of Corrections for the murder conviction, and a 30-year term for the armed robbery conviction to be served concurrently to the murder sentence. Defendant appeals.

Initially on appeal, defendant contends that the trial court erred in admitting the testimony of the prosecution witnesses who testified as to the victim’s statements one hour after the attack, because they were not spontaneous, excited or unreflected. We disagree.

The factors used to determine whether a statement falls within the excited utterance exception to the hearsay rule were clearly outlined by our supreme court in People v. House (1990), 141 Ill. 2d 323. The requirements for admissibility are (1) the event must be sufficiently startling to induce a spontaneous or unreflected statement; (2) the absence of time to fabricate; and (3) the statement must relate to the circumstances of the event. (House, 141 Ill. 2d at 381.) The trial court may also consider other factors such as the nature of the event, the mental and physical condition of the declarant, and the presence or absence of self-interest. House, 141 Ill. 2d at 382; see People v. Nevitt (1990), 135 Ill. 2d 423.

In House, a woman’s statement to a police officer at the hospital 21k hours after she witnessed the murders of her sister and another woman and after she had been set on fire was deemed an excited utterance. The court found that “[t]he very nature of her injuries was such that the injuries undoubtedly commanded her full attention.” House, 141 Ill. 2d at 384.

We believe a similar result is appropriate here. First, the victim was severely and repeatedly beaten with the butt of a gun to the extent that he had a hole in his head. Further, he was locked in an office for at least one hour, unable to move. He was completely covered with blood. Undoubtedly, this is a sufficiently startling occurrence to produce a spontaneous statement. Second, we cannot believe that, under these conditions, the victim would have been able to fabricate or attempt to fabricate a story about his attack. Third, the vietim’s statements to his employees after he was discovered related to the circumstances of the occurrence. We believe that these factors provide a sufficient foundation for the admission of the victim’s statements. People v. House (1990), 141 Ill. 2d 323, 386.

Defendant argues that because the victim was alert, conscious, oriented and able to communicate, his statements were not made under the immediate and uncontrolled domination of the senses. House unequivocally dismisses this contention. The fact that the victim was “ ‘alert’ and ‘responsive’ does not require exclusion because those states do not foreclose the possibility of a spontaneous and unreflecting statement.” House, 141 Ill. 2d at 385.

The passage of time, defendant submits, is a significant consideration as it is also an indication that the victim’s statements were not spontaneous or unreflected. The time factor is an elusive and variable element which is dependent upon the facts of the case. (People v. Gaucho (1988), 122 Ill. 2d 221, 241.) We find it inconceivable that the victim, suffering from such serious injuries and associated blood loss, would concoct a fabrication during the span of approximately one hour such that the spontaneity of his statements would be destroyed. Even if the victim had remained in his office undiscovered for a longer period of time, his physical state was so bad that we cannot conceive of his ability to concentrate on anything but his condition.

Defendant further questions the spontaneity of the victim’s statements because the first words he spoke to the employees who discovered him were, “what are you deaf, I’ve been calling you,” as opposed to his immediate identification of his attacker. In assessing this issue prior to trial, the trial court stated: “[The] individual’s first opportunity to speak doesn’t require that the first thing out of his mouth is the name of the offender.” We agree. The simple fact that he made this sarcastic remark is, in itself, indicative of the stress and excitement he was under. The statements were properly admitted into evidence.

Next, defendant opines a discovery violation in the trial court’s erroneous admission of crime scene photographs into evidence, as they were not disclosed to defense counsel prior to trial.

Defendant will only be granted a new trial if the discovery violation is prejudicial and if the trial court failed to eliminate the prejudice. (People v. Cisewski (1987), 118 Ill. 2d 163, 172.) The factors used to establish a prejudicial violation are: “the closeness of the evidence, the strength of the undisclosed evidence, and the likelihood that prior notice could have helped the defense discredit the evidence.” Cisewski, 118 Ill. 2d at 172; see People v. Weaver (1982), 92 Ill. 2d 545.

We do not believe, based on the above standard, that defendant suffered any prejudice. The photographs in question were of the victim’s office where he was beaten. There were pictures of bloodstains on the floor and bloodstains on the victim’s desk and a cabinet near the bathroom. These pictures do not have any bearing whatsoever on defendant’s guilt but, rather, function as a description of the scene as it appeared following the attack.

Moreover, the evidence in this case is not close and we fail to see how prior notice of the photographs could have aided defendant’s discrediting of this evidence. In determining prejudice, it is also appropriate to consider defendant’s full opportunity to cross-examine the police officer who took the photographs. In sum, defendant has not demonstrated to this court how the prior disclosure of the complained-of photographs would have altered the outcome in this case.

Further, it is essential to note defendant’s failure to request a continuance in order to examine the photographs. We believe this declination of additional time for discovery is some indication that defendant did not believe the evidence to be extremely prejudicial.

Next, defendant opines that the trial court erred in admitting the victim’s personal telephone book containing ink in different colors which was not properly inventoried or taken into custody by police.

At the scene, the victim told Chief Krizik to pick up his telephone book and hand it to him. The victim then opened the book and pointed to defendant’s name and telephone number which Krizik copied down. On direct examination, Chief Krizik identified the telephone book the prosecutor showed him as the one the victim told him to pick up at the scene. He then identified the page to which the victim turned containing defendant’s name and telephone number. He testified that the victim pointed to defendant’s name when identifying his attacker.

“A foundation for the admission of *** physical evidence may be made through its identification by witnesses or through a chain of possession. It is unnecessary to require both identification and the establishment of a chain of possession.” (People v. Stewart (1984), 105 Ill. 2d 22, 59.) We find no abuse of discretion in the trial court’s determination that Chief Krizik’s identification of the telephone book was sufficient for its admission into evidence.

Next, defendant asserts that the prosecutor’s use of the word “skinhead” when referring to him during closing argument was prejudicial.

We believe that this reference, innocent or intentional, was intemperate and improper. There is no evidence whatsoever that defendant is a member of any white supremacist organization, although this is the inference that is reasonably drawn from the prosecutor’s remark. Isolated remarks such as these, not based on any evidence, are improper and all too often this court must pass on their effect. This is a problem, however, that can easily be remedied by a prosecutor’s increased attention to the appropriateness of his comments before they are made.

Nevertheless, in this particular case, we cannot say that this remark constituted a material factor in defendant’s conviction or precluded his right to a fair trial such that a reversal is warranted. People v. Johnson (1986), 114 Ill. 2d 170, 199.

Next, defendant argues that, absent the testimony regarding the spontaneous declarations of the victim, the remaining evidence was insufficient to prove him guilty beyond a reasonable doubt.

Assuming this argument valid, we will engage in a brief discussion. Defendant’s friend and former roommate, Jeremy Heidrich, among others, testified that defendant told him he killed his boss. Defendant stated that he beat his boss to death with the butt of a gun and took his wallet containing $200. Defendant also told Heidrich that he took the wallet and went to a crack house in Robbins, Illinois. The wallet was later found in Robbins near crack houses. Heidrich had no way of knowing this information other than from defendant. The medical examiner, Dr. Robert Kirschner, confirmed that the victim’s injuries could have resulted from being hit with the butt of a gun.

“It is well settled that the testimony of even one witness, if positive and credible, is sufficient to convict *** [citation] and the witness need not be the victim of the crime.” (People v. Diaz (1981), 101 Ill. App. 3d 903, 913.) Defendant could therefore have been convicted based on the testimony of Jeremy Heidrich alone.

However, as previously elucidated, the victim’s spontaneous declarations following the beating were properly admitted into evidence and defendant’s conviction, based on all the evidence presented, was not erroneous.

Finally, defendant contends that the trial court improperly dismissed his post-conviction petition without an evidentiary hearing because the petition sufficiently alleged the constitutional deprivations of due process and effective assistance of counsel.

Defendant’s ex-wife, Terry Knade, submitted an affidavit revealing that prior to sentencing, while waiting to speak with the assistant State’s Attorney, she saw Judge Foxgrover, the victim’s son and Officer David Torres having a conversation in the judge’s chambers. She stated that she “observed Officer Torres hand Judge Foxgrover a brown manilla envelope.” She later told defense counsel of her observations.

Daniel Hagensee submitted an affidavit describing his observations made on the same day as those of Terry Knade. He stated that, while waiting to speak with the assistant State’s Attorney, he saw Judge Foxgrover, the victim’s son, the assistant State’s Attorney and Officer Torres talking in the judge’s chambers. He also informed defense counsel of his observations.

Based on these affidavits, defendant asserts judicial bias, effectively denying him a fair and impartial trial.

In People v. Titone (1992), 151 Ill. 2d 19, our supreme court adopted the standards set out by the Superior Court of Pennsylvania in Commonwealth v. Shaw (1990), 398 Pa. Super. 341, 580 A.2d 1379, which established the necessary requirements for a denial of due process claim based on judicial bias. The requisite showing must include (1) the establishment of a connection between the questionable extrajudicial activities and the trial judge’s conduct at trial; and (2) the establishment of actual bias as a result of the trial judge’s questionable extrajudicial conduct. It is defendant’s onus to demonstrate these requirements. Titone, 151 Ill. 2d at 30.

Defendant has failed to make this showing. Simply, he has presented two affiants who claim to have seen the trial judge speaking with individuals associated with the case. His ex-wife stated that she saw an envelope being handed to the trial judge. It is on these facts that defendant premises his denial of due process claim. Mere speculation, however, is insufficient.

There is absolutely no evidence that the trial judge’s acts precluded defendant’s right to due process. Defendant does not point to any judicial conduct at trial in support of his claim of bias. For instance, defendant does not question the propriety of rulings, events or incidents which might cast doubt upon the trial judge’s objectivity. Accordingly, actual bias from the trial judge’s conduct cannot be established.

Determinations by the trial court regarding post-conviction hearing petitions will not be overturned unless manifestly erroneous. (People v. Griffin (1985), 109 Ill. 2d 293, 303; see People v. Titone (1992), 151 Ill. 2d 19, 31.) We do not believe the trial court’s decision not to conduct an evidentiary hearing with respect to this issue was manifestly erroneous.

Relatedly, defendant posits that he was denied his sixth amendment right to effective assistance of counsel as defense counsel failed to “investigate or claim” the allegations of Terry Knade and Daniel Hagensee.

An ineffective assistance of counsel demonstration has two requisite prongs:

“ ‘ “First, the defendant must show that counsel’s performance was deficient [by] showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second; the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” ’ ” People v. Kubat (1986), 114 Ill. 2d 424, 430, quoting People v. Lewis (1984), 105 Ill. 2d 226, 245-46, quoting Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.

Defendant argues that defense counsel’s failure to “initiate appropriate action in the courtroom” after being apprised of the observed conversation in the trial judge’s chambers denied him effective assistance of counsel. We disagree.

“Claims of ineffective assistance of counsel may be disposed of on the ground that the defendant suffered no prejudice from the claimed errors, without deciding the first prong [of the Strickland test], whether the errors were serious enough to constitute less than reasonably effective assistance.” (People v. Johnson (1989), 128 Ill. 2d 253, 271.) Defendant has again failed to establish prejudice resulting from his contended violation. We do not believe that the decision reached was incompetent, and further find more than a reasonable probability that defendant would have been convicted even if defense counsel had investigated or claimed the alleged misconduct. Therefore, the trial court did not err in its failure to conduct an evidentiary hearing.

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

Affirmed.

CAHILL and HOFFMAN, JJ., concur.


author: JUSTICE GIANNIS

text:
    SCOTT RYDIN FOSTER, Plaintiff-Appellant, v. HANNAH MARIE PLAUT et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—91—1974
    Opinion filed August 27, 1993.
    Rehearing denied October 5, 1993.

      Scott Rydin Foster, of Chicago, appellant pro se.

    Sidley & Austin, of Chicago (Frederic J. Artwick, Amy D. Mayber, and Andrew R. Klein, of counsel), for appellees Northwestern University Student Health Service, Peter Barglow, Harold Visotsky, and Rex Hammond.
    Bollinger, Ruberry & Garvey, of Chicago (Barry G. Bollinger, Stuart A. Ringel, and William M. Gantz, of counsel), for appellees Hannah Marie Plaut, Truman Gerald Esau, North Park Clinic, P.C., and Robert W. Boxer, M.D., P.C.
   JUSTICE GIANNIS

delivered the opinion of the court:

Plaintiff instituted this action asserting personal injuries allegedly-sustained as a result of negligent psychiatric and medical treatment rendered by defendants from December 1973 through June 1977. Plaintiff also sought recovery under section 1983 of the United States Code (42 U.S.C. §1983 (Supp. V 1981)), alleging violations of his civil rights. In addition, plaintiff sought damages for the improper release of his psychiatric records and for the failure to correct those records. The trial court dismissed all but one of plaintiff’s claims, finding that they had not been brought within the applicable limitations periods. Pursuant to Illinois Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), the trial court’s order provided that there was no just reason for delay in enforcement or appeal of the dismissal of plaintiff’s claims. On appeal, plaintiff raises 16 issues which assert, in substance, that his actions were timely filed and that the trial court erred in dismissing all but one of the claims raised in his amended complaint.

The record reflects that plaintiff’s initial complaint was filed on April 24, 1989, and alleged medical malpractice claims against defendants Plaut, Esau, North Park Clinic (hereinafter North Park), Boxer, Barglow, Visotsky, Hammond, and Northwestern University Student Health Service (hereinafter the University Health Service). Plaintiff alleged that the defendants’ acts of negligence occurred during the course of psychiatric and medical treatment rendered to him from 1973 to 1977. Plaintiff alleged further that each defendant had fraudulently concealed these causes of action and that he did not discover his claims until April 24,1984.

Defendants moved to dismiss this complaint, asserting that plaintiff’s claims were barred because they were not brought within the four-year limitations period for medical malpractice actions set forth in section 13 — 212 of the Illinois Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 13 — 212). On August 21, 1989, the trial court dismissed the complaint, without prejudice, and allowed plaintiff leave to file an amended complaint.

On January 23, 1990, plaintiff filed an amended complaint which asserted 11 counts in 4,463 paragraphs and consisted of 168 pages. In counts I through V of his amended complaint, plaintiff alleged medical malpractice claims against each of the eight defendants. Specifically, plaintiff asserted that he first sought and received psychiatric care at North Park for depression on February 22, 1973, and he was treated at North Park by Plaut, a registered nurse, and by Esau, a psychiatrist, from February 22, 1973, to May 1974. Plaintiff alleged that Plaut, Esau, and North Park negligently misdiagnosed his physical condition (the healing of a compression fracture of the T-7 and T-8 vertebrae) as schizophrenia and rendered improper psychiatric treatment.

The amended complaint asserted further that, at the recommendation of Plaut, he sought treatment from defendant Boxer, an allergist, and he was treated for food allergies by Boxer from August 3, 1973, to May 16, 1975. Plaintiff alleged that Boxer negligently misdiagnosed his physical symptoms and improperly treated those symptoms as an allergy.

Plaintiff also asserted that during a telephone conversation on November 1, 1976, defendant Barglow told him that a warrant had been issued for his arrest, and Barglow suggested that he seek voluntary hospitalization. Plaintiff alleged that Barglow negligently failed to diagnose or treat plaintiffs condition “which included both physical and psychiatric illnesses.”

The amended complaint asserted further that defendant Visotsky, who was Barglow’s immediate supervisor, failed to return two telephone calls from plaintiff on December 28, 1976, and in January 1977. Plaintiff alleged that by not returning plaintiff’s telephone calls, Visotsky negligently failed to take proper supervisory action after receiving plaintiff’s calls and failed to properly discipline Barglow for his conduct.

Plaintiff also asserted that he sought treatment from the University Health Service and was treated there by defendant Hammond between 1974 and 1977. Plaintiff alleged that Hammond characterized plaintiff’s condition as “delusional” in June 1977 and negligently failed to diagnose or treat plaintiff’s condition, “which included both physical and psychiatric illnesses.”

In counts VI and VII plaintiff claimed that defendants Esau and North Park had improperly released his psychiatric records and failed to modify those records in accordance with a written statement submitted by him.

In counts VIII through XI, plaintiff asserted violations of his civil rights by all of the defendants except the University Health Service and alleged that the defendants had conspired to and threatened to have plaintiff involuntarily hospitalized in a psychiatric treatment center in violation of his fourteenth amendment right to due process.

According to the amended complaint, plaintiff was involved in an automobile accident on March 15, 1984. Plaintiff asserted that during the course of treatment for injuries sustained in this accident, he was diagnosed as having suffered a compression fracture of the T-7 and T-8 vertebrae of the spine. The amended complaint alleged that during an office visit with a doctor on April 25, 1984, plaintiff began to realize that he had suffered a compression fracture long before this accident. Plaintiff asserted that he had suffered a compression fracture as a result of his avoidance of a head-on collision on January 7, 1973, and that the healing of this compression fracture caused physical symptoms which were diagnosed as schizophrenia in February 1973. Plaintiff claimed that the defendants had negligently failed to diagnose his physical symptoms as the healing of a compression fracture.

Plaintiff’s amended complaint also alleged that each of the defendants had fraudulently concealed his claims and that he did not discover these causes of action until April 25, 1984, when his compression fracture of the spine was diagnosed. Plaintiff asserted that although he knew in April 1984 of the numerous causes of action he had against the defendants, he did not file suit at that time because he felt that the limitations period had expired. Plaintiff claimed that he learned of his causes of action while doing legal research in December 1988 when he read section 13 — 215 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 215), which states that the limitations period is tolled where the cause of action has been fraudulently concealed. Plaintiff contended that his claims were timely brought within the five-year limitations period set forth in section 13-215.

Defendants moved to dismiss the amended complaint, asserting that plaintiff’s claims were barred by the applicable statutes of limitations and that he had failed to plead sufficient facts to support his claim of fraudulent concealment.

On November 19, 1990, the trial court dismissed with prejudice all of plaintiff’s claims except the medical malpractice claim directed against defendant Esau. The trial judge’s dismissal order was premised upon his finding that plaintiff had failed to set forth any well-pleaded facts establishing that the defendants intentionally deceived plaintiff or that plaintiff had relied upon the acts of the defendants in failing to discover his causes of action. The order of dismissal provided that it was final and that there was no just cause for delay in enforcement or appeal.

On December 19, 1990, plaintiff filed a motion which requested that the trial court reconsider certain portions of the dismissal order. In this motion, plaintiff sought reinstatement of his medical malpractice claims against Plaut and North Park. Plaintiff also sought reinstatement of his Federal claims against all defendants for violations of his civil rights. Plaintiff further requested reinstatement of his claims against Esau and North Park based upon the improper release of his medical records and the failure to correct those records. The motion for reconsideration did not seek reversal of the dismissal of plaintiff’s medical malpractice claims against Boxer, Barglow, Visotsky, Hammond, or the University Health Service.

On May 13, 1991, the trial court denied plaintiff’s motion for reconsideration, and plaintiff filed the instant appeal on June 11, 1991.

On appeal, plaintiff initially contends that the trial court erred in dismissing all of his medical malpractice claims except that directed against defendant Esau.

Defendants Boxer, Barglow, Visotsky, Hammond, and the University Health Service challenge this court’s jurisdiction to address plaintiff’s appeal of the dismissal of these claims.

Jurisdiction is conferred upon this court only through the timely filing of a notice of appeal. (134 Ill. 2d R. 301; Hassan v. Wakefield (1990), 204 Ill. App. 3d 155, 157, 561 N.E.2d 1160; Kotalik v. Jensen (1990), 201 Ill. App. 3d 838, 842, 559 N.E.2d 251.) Thus, the requirement that the appellant file a notice of appeal within the prescribed time period is both jurisdictional and mandatory. In re Estate of Goodlett (1992), 225 Ill. App. 3d 581, 587, 588 N.E.2d 367; Hassan, 204 Ill. App. 3d at 157; Kotalik, 201 Ill. App. 3d at 842.

Where an appeal is taken from a final judgment disposing of fewer than all of the parties or claims (134 Ill. 2d R. 304(a)), the time for filing the notice of appeal is governed by the provisions of Supreme Court Rule 303 (134 Ill. 2d R. 303). (See Kotalik, 201 Ill. App. 3d at 841.) Rule 303(aXl) provides that a timely post-trial motion, attacking a final judgment, tolls the time for filing a notice of appeal, and the notice of appeal must be filed within 30 days after the entry of the order disposing of the last pending post-trial motion. 134 Ill. 2d R. 303(aXl).

In the instant case, plaintiff’s motion for reconsideration did not seek relief from the dismissal of plaintiff’s medical malpractice claims against defendants Boxer, Barglow, Visotsky, Hammond, or the University Health Service. This motion was not directed against the final judgments entered in favor of these defendants and did not affect the court’s finding that there was no just reason to delay enforcement or appeal. (See Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 462, 563 N.E.2d 459; S J S Investments, Ltd. v. La Salle National Bank (1991), 210 Ill. App. 3d 228, 230, 569 N.E.2d 49.) Thus, the filing of the motion for reconsideration did not extend the time for appeal of the trial court’s final order as to these claims. In order to challenge the dismissal of these claims, plaintiff was required to file a notice of appeal or a motion seeking reconsideration of these dismissals within 30 days of the entry of the final order on November 19, 1990. Plaintiff’s notice of appeal was not filed until June 11, 1991, well beyond 30 days after the entry of the final dismissal order. Accordingly, plaintiff’s appeal of the dismissal of his medical malpractice claims against defendants Boxer, Barglow, Visotsky, Hammond, and the University Health Service must be dismissed for lack of jurisdiction. See In re Estate of Goodlett, 225 Ill. App. 3d at 587; Kotalik, 201 Ill. App. 3d at 842.

We next consider whether the trial court erred in dismissing plaintiff’s medical malpractice claims against defendants Plaut and North Park.

Plaintiff’s medical malpractice claims against defendants Plaut and North Park were predicated upon treatment or conduct which occurred between 1973 and 1977 and were first asserted in the initial complaint, which was filed on April 24, 1989. The trial court dismissed these medical malpractice claims as untimely. Plaintiff contends his claims were timely filed where they had been fraudulently concealed from him and were asserted within five years of the date he discovered them.

The statute of limitations which governs medical malpractice actions is set forth in section 13 — 212 of the Code of Civil Procedure and provides that such claims must be brought within two years of the date on which the plaintiff discovered the existence of the injury and within four years after the treatment or conduct which forms the basis of the claim, regardless of when the cause of action was discovered. Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212.

In the instant case, the plaintiff did not assert his medical malpractice claims until April 24, 1989, at least 12 years after the treatment or conduct of the defendants occurred. Thus, these causes of action were not filed within four years of the occurrence of the defendants’ conduct and were not timely under section 13 — 212. Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212; Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 422, 490 N.E.2d 665.

Plaintiff contends, however, that the statute of limitations governing his medical malpractice claims against defendants Plaut and North Park is section 13 — 215, which provides that a cause of action may be brought within five years of the date the claim is discovered if the person liable for the claim fraudulently concealed the existence of the cause of such action from the plaintiff. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 215.) Plaintiff asserts that his medical malpractice claims against Plaut and North Park were timely where the defendants fraudulently concealed the existence of those claims and where the claims were asserted on April 24, 1989, within five years of April 25, 1984, which was the date plaintiff discovered them.

In general, where a plaintiff alleges that the fraudulent concealment of a cause of action has tolled the statute of limitations, it is necessary to show affirmative acts by the defendant which were designed to prevent, and in fact did prevent, the discovery of the claim. (Hagney v. Lopeman (1992), 147 Ill. 2d 458, 463, 590 N.E.2d 466; Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, 561, 402 N.E.2d 181; Skrodzki v. Sherman State Bank (1932), 348 Ill. 403, 407, 181 N.E. 325; Zagar v. Health & Hospitals Governing Comm’n (1980), 83 Ill. App. 3d 894, 898, 404 N.E.2d 496.) Mere silence of the defendant and the mere failure on the part of the plaintiff to learn of a cause of action do not amount to fraudulent concealment. Kenroy, Inc., 78 Ill. 2d at 561; Jackson v. Anderson (1934), 355 Ill 550, 557, 189 N.E. 924.

It has been held that a plaintiff must plead and demonstrate that the defendant made misrepresentations or performed acts which were known to be false, with the intent to deceive the plaintiff, and upon which the plaintiff detrimentally relied. (Harvey v. Harris Trust & Savings Bank (1979), 73 Ill. App. 3d 280, 287, 391 N.E.2d 461; Wilson v. Lefevour (1974), 22 Ill. App. 3d 608, 609-10, 317 N.E.2d 772.) It is not sufficient to show mere misconduct, but the plaintiff must be able to show that the defendant said or did something to lull or induce the plaintiff to delay the filing of his claim after the limitations period had run. (Smith v. Cook County Hospital (1987), 164 Ill. App. 3d 857, 862, 518 N.E.2d 336.) In addition, fraudulent misrepresentations which form the basis of the cause of action do not constitute fraudulent concealment under section 13 — 215 in the absence of a showing that the misrepresentations tended to conceal the cause of action. Skrodzki, 348 Ill. at 407; Smith, 164 Ill. App. 3d at 862; Zagar, 83 Ill. App. 3d at 898.

Yet, even if the plaintiff can show that the defendant made fraudulent misrepresentations, the statute of limitations will not be tolled where the plaintiff could have discovered the cause of action with the exercise of ordinary diligence. (Smith, 164 Ill. App. 3d at 862.) Thus, if the plaintiff discovers the fraudulent concealment, or should have discovered it through ordinary diligence, and a reasonable time remains within which the plaintiff could file suit, section 13 — 215 will not be applied to toll the running of the limitations period. Anderson v. Wagner (1979), 79 Ill. 2d 295, 322, 402 N.E.2d 560; Smith, 164 Ill. App. 3d at 862.

Initially, we note that the amended complaint does not contain any allegations of fraudulent concealment directed against defendant North Park or against its officers or directors. In addition, our review of the 29 allegations of fraudulent concealment asserted against defendant Plaut amounts to mere reiterations of the assertions which form the basis of plaintiff’s substantive medical negligence claims. These allegations do not establish that defendants Plaut and North Park made any misrepresentations which they knew to be false, with the intent to deceive the plaintiff, and upon which the plaintiff detrimentally relied. In addition, these assertions do not establish that defendants Plaut and North Park engaged in any conduct which lulled or induced the plaintiff to delay the filing of his claims until after the limitations period had run. Thus, plaintiff failed to allege sufficient facts to support his assertion that his medical negligence claims against Plaut and North Park had been fraudulently concealed from him. Accordingly, we hold that the trial court acted properly in dismissing these claims because they were not timely filed under section 13-212.

We next address plaintiff’s contention that his claims of civil rights violations were timely filed.

In his amended complaint, plaintiff sought recovery under section 1983 of the Federal Civil Rights Act (42 U.S.C. §1983 (Supp. V 1981)), asserting that the defendants had violated his civil rights by allegedly attempting or threatening to have plaintiff involuntarily hospitalized for psychiatric treatment without due process of law. These claims were raised by the plaintiff for the first time in his amended complaint which was filed on January 23, 1990. The trial court dismissed plaintiff’s civil rights claims, finding that they had not been timely filed. On appeal, plaintiff contends that these claims were timely filed.

Prior to the April 17, 1985, decision in Wilson v. Garcia (1985), 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938, all section 1983 claims had been governed by the five-year limitations period provided in section 13 — 205, a residual statute of limitations that applies to all civil action not otherwise provided for (Ill. Rev. Stat. 1985, ch. 110, par. 13—205). See Beard v. Robinson (7th Cir. 1977), 563 F.2d 331, cert. denied sub nom. Mitchell v. Beard (1978), 438 U.S. 907, 57 L. Ed. 2d 1149, 98 S. Ct. 3125; Rovenhagen v. Webber (1986), 143 Ill. App. 3d 954, 956, 493 N.E.2d 734.

However, in Wilson, the United States Supreme Court held that because the Civil Rights Act contained no statute of limitations, courts were to apply the State statute of limitations for personal injuries which was most appropriate or analogous to a claim brought under section 1983. In Illinois, the personal injury statute of limitations is set forth in section 13 — 202 and provides a two-year limitations period. Ill. Rev. Stat. 1989, ch. 110, par. 13 — 202.

In Anton v. Lehpamer (7th Cir. 1986), 787 F.2d 1141, the United States Court of Appeals for the Seventh Circuit instituted a “transitional” period of limitations for claims brought under section 1983 of the Civil Rights Act. In Anton, the court held that a plaintiff whose section 1983 cause of action accrued before the Wilson decision on April 17, 1985, must file suit within the shorter period of either five years from the date his action accrued or two years after the date of the decision in Wilson. Anton, 787 F.2d at 1146.

Plaintiff’s amended complaint asserted that his civil rights claims were discovered, and therefore accrued, on April 25, 1984. This accrual date predates the decision in Wilson. Thus, under the statute of limitations set forth in Anton, plaintiff was required to file his civil rights claims by April 17, 1987, two years after the decision in Wilson.

Plaintiff relies upon Doe v. Calumet City (N.D. Ill. 1989), 707 F. Supp. 343, to support the contention that his civil rights claims were timely filed where they were asserted within the five-year limitations period provided in section 13 — 205. Yet, this reliance upon the opinion in Doe is misplaced because the ruling in that case has subsequently been disapproved and retracted. See Kalimara v. Illinois Department of Corrections (7th Cir. 1989), 879 F.2d 276, 277; Kness v. Grimm (N.D. Ill. 1990), 761 F. Supp. 513, 518.

Based upon the plaintiff’s assertion that his civil rights claims accrued on April 25, 1984, we hold that the trial court properly dismissed those claims as untimely where they were not filed until January 23, 1990, well beyond the two-year anniversary of the decision in Wilson.

Plaintiff argues for the first time on appeal that the production of his medical records on July 19, 1989, constituted a “distinct second date of discovery” of his section 1983 claims against Plaut, Esau, and North Park, and that the release of his records on July 19, 1989, constituted a “continuous wrong” which formed the basis of a new section 1983 claim predicated upon the possibility of “future interaction with the legal system, in general.” These arguments were not presented to the trial court and have been waived on appeal. Brown v. Kidd (1991), 217 Ill. App. 3d 860, 869, 578 N.E.2d 224; Cuerton v. American Hospital Supply Corp. (1985), 136 Ill. App. 3d 231, 238, 482 N.E.2d 992.

We next consider the dismissal of plaintiffs claim based upon the improper release of his medical records.

In count VI of his amended complaint, plaintiff requested damages in excess of $15,000 for the improper release of his psychiatric records. This claim was predicated upon an abstract or treatment summary letter composed by Esau on December 26, 1974, and transmitted to Dr. Philip Gradolph, a subsequent treating psychiatrist. Plaintiff asserted that the transmission of the abstract, which he alleged contained incomplete and false information, constituted an improper release of his records in violation of sections 9 and 15 of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1989, ch. 911/2, pars. 809, 815).

Plaintiff contends that he did not discover his claim for the improper release of his records until July 19, 1989. The amended complaint asserts, however, that plaintiff had received a copy of the abstract 15 years before this claim was asserted. Consequently, plaintiff was aware in 1975 that Esau had composed the abstract, that it contained information which plaintiff considered to be incomplete or false, and that a release of plaintiff’s complete evaluation records, including Esau’s handwritten notes, was necessary to cure any omissions from the abstract and to refute any errors or misstatements contained therein. Thus, the period of limitations for this claim commenced in 1975 when plaintiff knew or should have known of his right to recover for any improper release of his psychiatric records. Plaintiff was obligated to assert this claim within two years of the date of discovery as provided in section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212). (See Miller v. Tobin (1989), 186 Ill. App. 3d 175, 177-78, 542 N.E.2d 173.) This claim was first raised by plaintiff in April 1990, when he filed his amended complaint. We hold that because the assertion of this claim was not timely, the trial court acted properly in dismissing plaintiff’s claim for damages for the improper release of his psychiatric records.

Finally, we address plaintiff’s contention that the trial court erred in dismissing his claims against Esau and North Park for correction of his psychiatric records. In considering this argument, we note that plaintiff’s brief on appeal does not contain any argument or citation to authority which indicates that the trial court erred in dismissing this count of the amended complaint. Consequently, plaintiff has waived his right to challenge the trial court’s ruling on appeal. 134 Ill. 2d R. 341(e)(7).

Moreover, section 4(c) of the Mental Health and Developmental Disabilities Confidentiality Act provides that “[a]ny person entitled to access to a record under this [s]ection may submit a written statement concerning any disputed or new information, which statement shall be entered into the record. Whenever any disputed part of a record is disclosed, any submitted statement relating thereto shall accompany the disclosed part. Additionally, any person entitled to access may request modification of any part of the record which he believes is incorrect or misleading. If such request is refused, the person may seek a court order to compel modification.” Ill. Rev. Stat. 1989, ch. 911/2, par. 804(c).

It is undisputed that the plaintiff was entitled to access to his psychiatric records (Ill. Rev. Stat. 1989, ch. 91x/2, par. 804(a)(2)) and had the right to submit a written statement correcting any incorrect or misleading information contained within his record. In count VII of his amended complaint, plaintiff sought damages in excess of $15,000 from defendants Esau and North Park for their failure to correct his psychiatric records. In their motion to dismiss, Esau and North Park acknowledged the plaintiff’s right to correct his records and agreed to allow him to add any information he felt was necessary to correct or to complete his psychiatric records. The inclusion of such a written statement by plaintiff would have corrected any errors, omissions, or discrepancies in his psychiatric records and was the only remedy provided in section 4(c). Thus, the agreement by Esau and North Park to include this statement in plaintiff’s records rendered his claim under count VII moot, and the trial court acted properly in dismissing this claim.

For the foregoing reasons, the orders of the circuit court of Cook County are affirmed.

Affirmed.

EGAN and RAKOWSKI, JJ., concur.