author: JUSTICE McMORROW

text:
      In re F.H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. F.H., a Minor, Respondent-Appellant).
    First District (4th Division)
    No. 1—87—0455
    Opinion filed October 19, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Ellen Fishbein and Hugh Stevens, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Marilyn F. Schlesinger, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a bench trial, respondent was found delinquent of criminal sexual abuse, adjudicated a ward of the court and sentenced to one year probation and 10 consecutive weekends in the Juvenile Detention Center, which was later reduced to five weekends. On appeal, respondent contends that (1) the delay between the filing of the delinquency petition and the adjudicatory hearing violated his constitutional right to due process; (2) the testimony of the minor complainant was so inconsistent and uncorroborated as to be insufficient to prove him guilty beyond a reasonable doubt; and (3) the trial court abused its discretion by restricting his cross-examination of the complainant’s mother regarding a prior false statement and possible bias.

On June 21, 1985, a petition for adjudication of delinquency and wardship was filed charging respondent, then 15 years old, with aggravated sexual assault, based on sexual intercourse, of the nine-year-old complainant (K.D.), on or about March 9, 1985. A probable cause hearing was held on June 27, 1985, at which Chicago police officer Massey testified that in response to his questions on the night of June 20, 1985, K.D. described an act of sexual contact performed upon her by respondent sometime after her birthday which, Massey testified, is April 15. She further recounted that respondent’s sister, Charlene, entered the room during the incident and pulled respondent off of her. In her testimony, Charlene denied that she witnessed or extricated K.D. from any such assault. Following the hearing, the State was granted leave, over respondent’s objection, to amend the petition to allege that the offense occurred “on or about April 17, 1985.” The trial court found probable cause and released respondent to the custody of his mother.

The case was set for July 22, 1985, on which date respondent requested a continuance to substitute private counsel for the public defender and because his mother was hospitalized. The trial court continued the case to August 5 for the appearance of private counsel and to set a trial date. On that date, respondent’s father advised the court that the family had determined it could not afford private counsel and that respondent’s mother would be convalescing from surgery for about 30 more days. The public defender then requested a date for trial, and the matter was continued by agreement to September 4 for a trial on the merits. When K.D. and her mother failed to appear for trial on September 4, the State requested “one final continuance.” Defense counsel stated that he had no strong objection so long as the case was marked “final.”

The case was continued, on the State’s motion, to October 11 and marked “final.” Due to problems with the court’s schedule on October 11, the case was continued to December 19. On that date, the State advised the court that it had not yet received K.D.’s emergency room records and requested that the case be continued to late January. Over defense counsel's objection, the case was continued to January 31, 1986. When the parties appeared on January 31, the State informed the court that it had still not obtained the medical records and asked for another continuance, stating that it would be prepared for trial “without fail” on the next date. The trial court granted the State’s motion but admonished the assistant State’s Attorney that “with or without medical records, we will proceed to trial” on March 13.

On March 13, defense counsel answered ready for trial and requested that the State either go forward with its case or that the matter be dismissed. The State, however, requested another continuance for the reason that K.D.’s mother was unable to accompany her to court because of certain medication she was taking. Defense counsel moved for dismissal, arguing that contrary to the State’s representation, K.D. had not been present on every preceding court date; that respondent and representatives of his family had been in court on at least eight prior occasions; that he (counsel) had been answering ready for trial for several months; and that the numerous and extensive delays in the case had served to deprive respondent of his constitutional rights to due process and equal protection. The trial court noted the numerous continuances notwithstanding that the case had been marked “final” on several preceding occasions, but denied respondent’s motion to dismiss and granted the State’s motion for a continuance to April 29.

On that date, without prior notification to defense counsel, the assistant State’s Attorney stated that because several other cases already in progress involving minors in custody had been scheduled for hearing that afternoon, she had elected, with permission from the court, not to begin the trial on this case and had told K.D. and her mother not to come to court that day. Defense counsel objected, arguing that respondent and his family had been severely hardshipped by the numerous continuances of this case. The trial court apologized to defense counsel and respondent’s family, noting that the case had been pending for “an unusually long time”; that respondent had come to court on each and every scheduled court date; and that there had been other occasions on which defense counsel also was not notified of delays in the proceeding. The court also confirmed, however, that it had informed the State that the other cases in progress were to take precedence over any others scheduled for that day. The court stated that it would accept responsibility for the failure to go to trial on that date and, over defense counsel’s objection, continued the case to June 18.

Prior to trial on June 18, defense counsel renewed his motion to dismiss on the grounds that respondent had been deprived of his constitutional rights to due process and equal protection by the numerous continuances and resulting delays in the trial of this case. The motion was denied, and trial commenced.

K.D. testified that her ninth birthday was March 15, 1985. She and her mother lived with her mother’s family next door to respondent’s family. She played with respondent’s 13-year-old sister, Charlene, almost every day. K.D. testified that she had been inside the home occupied by respondent, Charlene, and other members of respondent’s family on several occasions, and she described the number and location of rooms in the house.

When asked by the assistant State’s Attorney to describe the events of April 17, 1985, K.D. testified that at approximately 2:30 p.m., she and Charlene went to Charlene’s house. She could not recall if she attended school that day but she did remember it being a very hot day. While they were watching television in Charlene’s first-floor bedroom, Charlene’s mother called Charlene to the basement, where she had gone to wash clothes. A few minutes later K.D. looked out of the door and saw a leg going up the stairs. Thinking it was Charlene, she followed the person up the stairs. When she looked into respondent’s bedroom, he grabbed her right arm and threw her on his bed. He stood in front of her as she lay on her back and pulled her jeans and underwear down to her shoes. After pulling down her underwear, he pulled down his underwear and performed an act of sexual intercourse. During the performance of the act Charlene entered the room and pulled her out from under respondent, threatening respondent that she was going to tell their mother. As she pulled up her clothing, respondent told her and Charlene not to tell anybody. She was very frightened and began to cry. Several weeks later, on June 20, she related the incident to her mother, whereupon her mother took her to a hospital where she underwent a pelvic examination. She did not tell her mother what had happened earlier because she was afraid and confused.

On cross-examination, K.D. denied that she had told a police officer the incident occurred on either March 9 or May 27, 1985; and she did not recall telling hospital personnel on June 20 that the incident had occurred a few weeks earlier. The only date she ever mentioned was April 17. She also stated that she did not ever visit the home of respondent and his family after April 17. She did not resist respondent or scream when he threw her on the bed, and she did not try to get up while he was removing his pants. She stated that she did not know the words “penis” and “vagina,” terms used when she testified, at the time of the incident and acknowledged using other words when she described the genital contact to the police; however, she denied that anyone told her the correct words. On redirect examination, K.D. explained that she did not scream or resist respondent because she was afraid and because he was too heavy.

K.D.’s mother testified that on June 20, 1985, she had a conversation with Charlene after which she questioned K.D. as to what if anything had happened between her and respondent. Over a defense objection, K.D.’s mother testified that K.D. then related to her that respondent had had sex with her at his house.

On cross-examination, the mother stated that when she spoke to the police later that night she at first told them that the offense occurred “around April 15.” However, based on information given by K.D. and the use of a calendar as they were “going over it,” she realized that the incident did not occur on April 15, but, rather, on May 27, 1985. K.D. did not remember an exact date but did remember it being around the time of the Memorial Day weekend which K.D. spent with the family of respondent. K.D. continued to go to the respondent’s house every day after Memorial Day until June 20, when she told her mother about the incident. The mother further testified that at the time of the incident, K.D. knew how to tell time but did not know the months of the year very well.

Following the testimony of K.D.’s mother, the trial court continued the case to July 8, 1986, for further testimony. On that date the State advised the court that the doctor who had examined K.D. was unavailable to testify; and the matter was continued by agreement to August 4, 1986. On August 4, however, the assistant State’s Attorney informed the court that she had forgotten about that day’s proceedings and had not notified the doctor to appear. After admonishing the State that trial would proceed on the next court date whether or not the doctor appeared, the trial court granted “one last continuance,” to August 11,1986.

On that date, the parties agreed to jointly submit into evidence the emergency room report prepared by Dr. Ganiyw on June 20, 1985, and to stipulate that if called as a witness, Dr. Ganiyw’s testimony would be exactly the same as the contents of the report. The report stated that K.D. was brought in for examination of sexual molestation, appearing alert but afraid. His examination disclosed no injuries; and her vital signs and organs were normal. The report stated that no hymen was noted and that there was a small yellowish discharge in the vagina. K.D. stated to Dr. Gainyw that the incident occurred over the holiday a few weeks earlier.

The State then advised the court that it had two more potential witnesses, a police officer and respondent’s sister, and asked the court for one more date, on which the State planned to rest its case. On the next scheduled date, August 25, the State advised the court that respondent’s sister had not responded to the State’s subpoena to appear and rested its case. Defense counsel then moved for a directed verdict on the ground that there was a fatal variance between the petition for delinquency and the evidence adduced at trial which prevented him from presenting an effective defense. Counsel pointed out that the petition for delinquency originally charged that the offense occurred on March 9, 1985; that it was subsequently amended to charge that the incident took place “on or about April 17”; but that the evidence at trial related to the Memorial Day weekend of May 27-28, 1985, for which, in contrast to April 17, respondent had an affirmative defense of an alibi. Defense counsel argued that the variance between the petition and the evidence misled respondent and placed him in the untenable position of defending against evidence relating to two different dates and thereby prevented him from preparing and presenting an effective defense, in violation of respondent’s right to due process. The trial court denied the motion for a directed verdict but granted respondent leave to file a memorandum of law in support of his position and stated that it would hear arguments and reconsider the motion at the next court date, which was set for September 29, 1986. On that date, the State requested another continuance, with the acquiescence of defense counsel, for the purpose of researching the issues raised in respondent’s memorandum of law in support of a directed finding.

On October 27, the trial court heard arguments on respondent’s written motion for a directed finding. Defense counsel expounded on his previous arguments concerning the prejudicial effect of the variance between the date charged in the petition and the evidence adduced at trial. Counsel also argued that the trial court had erred in restricting his cross-examination of K.D.’s mother regarding possible bias she might have had against respondent and his family. Following the State’s response that there was neither a variance nor any prejudice to respondent, the trial court denied respondent’s motion for reconsideration, finding that, based on the nature of the charge, the State is not obligated to allege a specific date in the charging instrument.

Officer Samuel Ray testified for the defense that he spoke with K.D. at her home on June 20, 1985, in the presence of her mother regarding the alleged incident. Although there was some confusion, the date given to him by K.D., which he wrote in the report prepared immediately after the interview, was May 27, 1985. On cross-examination, Ray stated that K.D. vaguely knew times, dates and months and that it was on the basis of what K.D. told them that K.D.’s mother, he and his partner came to the conclusion that the incident occurred on May 27, one of the days of the Memorial Day weekend.

When the trial reconvened the following day, the parties stipulated that, if called, Detective Lerays would testify that he interviewed K.D. in the presence of her mother at the police station on June 21, 1985. The stipulation read that "[h]e ascertained from that interview that *** the alleged assault took place approximately one week before K.D.’s birthday, which is March 15”; but that she was not able to give a specific date at all, and did not seem to know months or dates.

Defense counsel then made an offer of proof regarding his intended cross-examination of K.D.’s mother. Counsel stated that he would have questioned her concerning a letter she wrote to respondent’s older brother Derrick, in which she admitted that she lied about having been impregnated by him. Counsel stated that the purpose of this line of questioning was to show that she had lied about respondent’s family in the past and to show possible bias against them.

Respondent then took the stand in his own behalf. He testified that he was 15 years old, a sophomore in high school, had been employed for 21k months and lived at home with his mother, stepfather, sisters and brothers. He did not recall being at home on Memorial Day weekend in 1985. On occasions in 1985, K.D. came to their home to visit with his sister Charlene. He denied ever having any sexual relations or contact with K.D. or having touched her at any time.

On cross-examination, respondent stated that Charlene’s bedroom was on the second floor of the house along with his and his younger brother’s bedroom, but that K.D. and Charlene sometimes watched television in his older sister’s bedroom on the first floor. There were no ill feelings between him and K.D., although K.D. was disrespectful toward his mother, who nevertheless continued to allow her to visit Charlene and sometimes babysat K.D. K.D. generally was not allowed on the second floor because the bedrooms were there; but there had been at least one occasion when K.D. had been in his bedroom watching television with the other children in the family. He did not recall any time in April or May 1985 that K.D. came up to the second floor looking for Charlene.

Although there was no animosity among the children, and his mother continued to babysit K.D. on occasions, he disagreed with a statement by the prosecutor that “nothing horrid was going on between the two families” prior to K.D.’s allegation against him. On redirect examination, he explained that relations between the two families had been strained since K.D.’s mother had accused his brother Derrick of impregnating her. Derrick spoke to his mother, who in turn spoke to K.D.’s mother, following which the mother sent a letter to Derrick admitting that she had lied. Relations between the families thereafter improved but the relationship between K.D.’s mother and Derrick did not.

Following arguments by counsel, the trial court found respondent delinquent of criminal sexual abuse but not delinquent of criminal sexual assault based on intercourse. The matter was then continued pending return of a social investigation. On December 16, 1986, the trial court heard and denied respondent’s motion for a new trial and proceeded to the dispositional hearing. Probation officer Dvorsky advised the court of the results of his social investigation, which, apart from the matter at hand, disclosed a wholly positive social history and steadfast denials by respondent of his guilt in this matter. Dvorsky stated that notwithstanding the seriousness of the charge, on the basis of his investigation, he was not able to make a recommendation for detention, probation or counseling. The court then continued the matter for a clinical evaluation of respondent and sentencing. On February 3, 1987, the trial court placed respondent on probation for one year and sentenced him to serve 10 consecutive weekends in the Juvenile Detention Center, but granted defense counsel leave to file a motion for reconsideration and modification in five weeks. Respondent’s detention period was subsequently modified to five weekends; and this appeal followed.

Opinion

Defendant first contends that the 12-month delay between the filing of the delinquency petition and commencement of his adjudicatory hearing violated his right to due process.

The Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 701 — 1 et seq.) provides that an adjudicatory hearing shall be set within 30 days from the filing of a delinquency petition (Ill. Rev. Stat. 1985, ch. 37, par. 704 — 2). However, the word “shall” in that provision has been held to be directory, rather than jurisdictional or mandatory. (People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, 441 N.E.2d 54; In re Armour (1974), 59 Ill. 2d 102, 319 N.E.2d 496.) Thus, the mere fact that an adjudicatory hearing is not set or conducted within the 30-day period does not automatically warrant a discharge. In re Armour (1974), 59 Ill. 2d 102, 319 N.E.2d 496; In re A.J. (1985), 135 Ill. App. 3d 494, 481 N.E.2d 1060.

At the same time, however, it is firmly established that guarantees of due process apply in juvenile proceedings (In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068; In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428; In re Urbasek (1967), 38 Ill. 2d 535, 232 N.E.2d 716; In re C.T. (1983), 120 Ill. App. 3d 922, 458 N.E.2d 1089); and that the manner in which the delinquency proceeding is conducted must be consistent with those due process guarantees and must comport with the same notions of fundamental fairness as are provided for in adult criminal proceedings (In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068; In re A.J. (1985), 135 Ill. App. 3d 494, 481 N.E.2d 1060).

In People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244, the supreme court held that a trial court may dismiss a criminal complaint or indictment where delays have actually and substantially prejudiced the defendant in violation of due process requirements. The Lawson reasoning was first adopted in the juvenile setting in In re C.T. (1983), 120 Ill. App. 3d 922, 458 N.E.2d 1089. The court in that case stated that independent of any statutorily granted power in the Juvenile Court Act, the trial court in a juvenile proceeding has inherent authority to dismiss a delinquency petition for violations of the respondent’s due process rights. Under the criteria set forth in Lawson, an evaluation of whether delays warrant dismissal of the delinquency petition requires, first, that the respondent come forward with a clear showing of actual and substantial prejudice. Upon a showing of such prejudice, the burden shifts to the State to show the reasonableness of the delays. In re C.T. (1983), 120 Ill. App. 3d 922, 458 N.E.2d 1089.

If the court ascertains both substantial prejudice and reasonableness of the delay, then the court must make its determination based upon a balancing of the interests of the minor respondent and of the community. Factors the court should consider include, among others, the seriousness of the allegations and the length of the delay. Although no absolute standard of time can be applied, substantial prejudice to the respondent may be presumed by the juvenile court where the delay is sufficiently prolonged. People v. A.L. (1988), 169 Ill. App. 3d 581, 523 N.E.2d 970; In re A.J. (1985), 135 Ill. App. 3d 494, 481 N.E.2d 1060.

In the instant case, the delinquency petition was filed on June 21, 1985, and charged that the offense occurred on or about March 9, 1985. It is undisputed that respondent requested the first two continuances. The record is clear, however, that none of the continuances from September 4, 1985, to the commencement of the hearing on June 18, 1986, were attributable to respondent. The trial court itself acknowledged the numerous continuances and the prolonged delay and noted that respondent and at least one member of his family were present on every scheduled court date. Indeed, the court apologized to respondent, his family and defense counsel for the hardship caused by the repeated rescheduling. However, neither the court’s apologies nor the fact that the court took responsibility for two of the continuances alters the fact that the adjudicatory hearing did not commence until more than nine months after respondent answered ready for trial and approximately one year after the delinquency petition was filed. Thus, we believe this is a case in which substantial prejudice can be presumed, thereby shifting the burden to the State to show that the delay was reasonable.

It does not appear that the continuances were a purposeful attempt to gain a tactical advantage over respondent or otherwise prejudice his case. As noted above, the trial court assumed responsibility for two of the continuances caused by conflicts in its trial schedule. However, the remainder of the continuances were attributable to the State and included two occasions on which K.D. and her mother did not appear in court and two continuances, causing a delay of more than three months, because of the State’s failure to obtain K.D.’s emergency room report. In our view, the record before us evinces a certain degree of laxity by the State in the adjudication of this case which tends to support a conclusion that the delay was neither justified nor reasonable. We also note that the adjudicatory hearing, consisting of the testimony of four witnesses and two stipulations, took place on eight separate dates over a period of more than four months, during which the State requested four more continuances for reasons which ranged from the unavailability of the emergency room physician to the assistant State’s Attorney forgetting a continuance date she had requested. The entire adjudication process spanned a period of more than 19 months from the filing of the petition to the conclusion of the dispositional hearing. We conclude that the delay in the adjudication process was unreasonable.

A ruling that the delay was unreasonable, however, is not necessary in this case, since we believe that balancing the interests of all parties involved compels the same resolution. The primary objectives of the Juvenile Court Act are to ensure that the interests of minor respondent, his family and the community are served (Ill. Rev. Stat. 1985, ch. 37, par. 701—2; In re Armour (1973), 15 Ill. App. 3d 529, 305 N.E.2d 47, aff'd (1974), 59 Ill. 2d 102, 319 N.E.2d 496; People v. A.L. (1988), 169 Ill. App. 3d 581, 523 N.E.2d 970; In re A.J. (1985), 135 Ill. App. 3d 494, 481 N.E.2d 1060) and to do so in as expeditious a manner as possible (In re Armour (1973), 15 Ill. App. 3d 529, 305 N.E.2d 47). The intent of the legislature to eliminate lengthy delays in juvenile proceedings is clearly expressed in recent amendments to the Juvenile Court Act. Section 5 — 14 of the Act now provides that an adjudicatory hearing must be held within 120 days of a demand for such hearing. The failure to conduct the post-demand hearing within 120 days shall, upon the minor’s motion, result in a dismissal with prejudice, unless the court finds that the State unsuccessfully exercised due diligence to obtain material evidence, in which situation the court may continue the hearing for not more than 30 additional days to allow the State to obtain such evidence. (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 14(1)(A).) Although the current provision was not in effect when the petition in this case was filed, a similar provision went into effect on July 1, 1985, but was amended the following day to become effective April 1,1986.

The overriding concern of the Juvenile Court Act is the welfare of the minor. (In re Armour (1973), 15 Ill. App. 3d 529, 305 N.E.2d 47, aff'd (1974), 59 Ill. 2d 102, 319 N.E.2d 496.) To that end, the Act is intended to be remedial, not punitive (In re Armour (1974), 59 Ill. 2d 102, 319 N.E.2d 496; In re A.J. (1985), 135 Ill. App. 3d 494, 481 N.E.2d 1060); and it specifically provides for promptness in juvenile proceedings, the administration of its provisions in a spirit of humane concern (Ill. Rev. Stat. 1985, ch. 37, par. 701 — 2(2)) and in a manner consistent with principles of fundamental fairness (People v. A.L. (1988), 169 Ill. App. 3d 581, 523 N.E.2d 970).

In our view the effect of the delay in this case was clearly punitive to respondent. He was compelled to repeatedly absent himself from school and family responsibilities to appear in court on every scheduled court date, and was subjected to an unnecessarily prolonged period of uncertainty and anxiety as to his fate while, according to the social investigation report, attempting to lead a socially constructive life. Indeed, according to respondent’s parents, respondent transferred from a private to a public high school during the course of these proceedings, in part because of the effect of the proceedings on his previously average to above-average academic grades. As the court stated in In re Armour (1973), 15 Ill. App. 3d 529, 536, 305 N.E.2d 47, “[t]he threat of the loss of liberty should not indefinitely hang over a minor’s head.” From the facts before us, including the social investigation report which revealed that throughout these proceedings respondent continued to attend school, assisted his parents with household responsibilities, performed odd jobs in the neighborhood, obtained part-time employment, observed a curfew, and refrained from any type of aberrant conduct, it is difficult to understand how the delay in the case could have promoted his welfare. Indeed, the juvenile probation officer assigned to respondent’s case repeatedly declined to recommend a period of either detention or probation following the adjudication of delinquency, expressing his opinion that in light of respondent’s wholly positive social report, neither disposition would serve a productive purpose.

Additionally, we believe that the delay in the adjudication of this case disserved the interests of respondent’s family, the complainant and society as a whole. The repeated continuances and prolonged delay worked a hardship upon respondent’s parents, at least one of whom accompanied him to court on each occasion, and caused disruptions in their family life and in respondent’s father’s work attendance. We also fail to see how the interests of the complainant were served by the prolonged process and repeatedly continued court dates, most of which were during the school year. A victim's interests are best served when the accused is promptly brought under the authority of the juvenile legal system. Similarly, it is in society’s best interest that juveniles who have been proved to have committed criminal acts are promptly adjudicated delinquent and provided with guidance and rehabilitative services which are designed to deter and to protect the community from future criminal conduct by the minor. See, e.g., In re A.J. (1985), 135 Ill. App. 3d 494, 481 N.E.2d 1060.

We are mindful of the seriousness of the offense of which respondent was found delinquent. However, it appears that the very nature of the offense and the residential proximity of the complainant and the respondent would be factors providing additional incentive for an expeditious disposition of the delinquency petition. Upon the facts before us and with consideration given to the interests of all involved, we conclude that the delay in this case constituted a fundamental deprivation of respondent’s due process rights which warranted granting of his motion for dismissal of the petition against him with prejudice.

Having determined that respondent’s motion to dismiss this case prior to the adjudicatory hearing should have been granted on constitutional grounds, we need not address respondent’s contentions regarding the sufficiency of the evidence or the court’s restriction of his cross-examination of K.D.’s mother. For the reasons stated, the adjudication of delinquency is vacated.

Vacated.

JIGANTI, P.J., and LINN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    JOSEPH R. BOLSMO, Plaintiff-Appellant, v. MARK V ROOFING COMPANY, a/k/a Mark V Roofing and Construction Company, et al., Defendants-Appellees (Mark V Roofing Company, Third-Party Plaintiff; Western Electric Company, Third-Party Defendant).
    First District (4th Division)
    No. 1—88—1720
    Opinion filed October 19, 1989.

      Carr & O’Rourke Associates, of Chicago (Donald A. Carr and James J. Zabel, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Paul B. O’Flaherty, Michael A. Pollard, and John M. Murphy, of counsel), for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Joseph R. Bolsmo, brought a two-count complaint against the defendant, Mark V Roofing, alleging a violation of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.) and negligence. In his complaint, Bolsmo alleges that he sustained personal injuries when, during the course of his employment as an electrician, he slipped and fell on a roof which Mark V was under contract to repair. The trial court granted summary judgment on both counts in favor of Mark V, and Bolsmo appeals from that order.

On February 2, 1981, the plaintiff, Joseph R. Bolsmo, was employed as a maintenance electrician for Western Electric Company at its Hawthorne Works Facility. Among the buildings that Western Electric owned and operated at the facility is a single-story, flat-roofed building referred to as the Thin Film Building. In August of 1980, Western Electric contracted with the defendant, Mark V Roofing, to replace and repair the roof of the Thin Film Building. Mark V began construction on the roof in September of 1980. In mid-December, before the project was completed, the repair work was suspended due to winter weather. Although the parties disagree as to whether Mark V was active on the project at the time of Bolsmo’s injury, it is undisputed that on that date, February 2, 1981, there was approximately one-half inch of snow on that portion of the roof where Bolsmo fell.

In the early morning hours of February 2, 1981, Bolsmo, pursuant to instructions from Western Electric, ascended through a hatchway located on the roof of the Thin Film Building intent on inspecting an exhaust fan which was located on another section of the roof. As Bolsmo stepped from the hatchway, his foot slipped, and he fell to the surface of the roof. Mark V had tarred the surface of the area on which Bolsmo fell, but had not yet laid pea gravel as required under the terms of the contract. Bolsmo, alleging that the absence of pea gravel was the cause of his fall, brought a two-count complaint charging Mark V with liability under the Structural Work Act and common law negligence.

To sustain his Structural Work Act claim, Bolsmo argues that at the time of his injury he was using the roof as a temporary scaffold to elevate himself to a position from which he could perform his work. In making this argument, Bolsmo relies on the case of St. John v. R.R. Donnelley & Sons Co. (1973), 54 Ill. 2d 271, 296 N.E.2d 740, for the proposition that a permanent structure, such as a roof or floor, can function temporarily as a support within the meaning of the Structural Work Act. In response, Mark V, citing the Illinois Supreme Court case of Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 512 N.E.2d 1223, asserts that the mere fact that the roof elevated Bolsmo does not mean that he was using the roof as a working platform to perform the kind of extrahazardous activity contemplated under the Structural Work Act. While we acknowledge that a roof or other permanent structure can sometimes function as a scaffold or support (Crothers v. La Salle Institute (1977), 68 Ill. 2d 399, 370 N.E.2d 213), in this instance we agree with Mark V that Bolsmo does not fall within the protection of the Structural Work Act.

In the Vuletich case, the plaintiff fell off a set of temporary steps leading to a tool storage trailer. The plaintiff argued that because the stairway elevated him to a position where he could secure his tools, the stairs functioned as a support within the meaning of the Structural Work Act. The supreme court, in rejecting this argument, found that stairs by their nature function to elevate those who use them. If this feature were conclusive on the issue, the court reasoned, every device which serves to elevate would be considered a support under the Act. The court refused to adopt such an expansive interpretation of the Act, focusing instead on the plaintiff’s intended use of the stairway. The court concluded that the plaintiff intended to use the stairs as a pathway to the storage trailer, and not as a working platform. The court found that the plaintiff’s activity fell outside the intended purpose of the Act which is to protect workmen engaged in activity of a particularly hazardous nature.

In the present case, Bolsmo intended to use the roof to gain access to the exhaust fan. We believe that Bolsmo’s intended use of the roof is analogous to that of the plaintiff in Vuletick. The fact that the roof incidentally functioned to elevate him does not mean Bolsmo was using the roof as a working platform to perform the kind of extrahazardous activity covered by the Structural Work Act. Accordingly, we uphold the finding of the lower court on this issue.

As the basis of his negligence argument, Bolsmo argues that in addition to the contractual duty Mark V owed to Western Electric, Mark V owed a duty to Bolsmo to exercise ordinary care in completing the roofing and repair work. Without reference to authority, Bolsmo asserts that it is “axiomatic” that a duty arises to those third parties foreseeably expected to employ the roof in the performance of their work. We do not agree that in simply referring to foreseeability the plaintiff has established that Mark V owed a duty to Bolsmo. Even if we were persuaded that Bolsmo’s presence on the roof was foreseeable, foreseeability is only one of many factors that the courts use to determine whether a duty exists. (Ferentchak v. Village of Frankfort (1985), 105 Ill. 2d 474, 475 N.E.2d 822.) Bolsmo has not provided any basis for finding that Mark V had any duty other than that defined by its contract with Western Electric. The Illinois Supreme Court has held that where a plaintiff seeks to impose a tort duty on a defendant based on a contractual obligation, the scope of that duty is dependent on the terms of the contract. Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill. App. 3d 127, 488 N.E.2d 623.

Bolsmo does not contradict Mark V’s assertion that under the terms of its contract with Western Electric, Mark V’s only obligation was to repair and replace the roof of the Thin Film Building. As part of the repair process, the roof’s tarred surface was to be embedded with pea gravel. Mark V’s uncontradicted argument is that, as a component of the roof’s surface material, the primary function of pea gravel is to help maintain the structural integrity of the roofs surface, not to provide traction for persons walking on the roof. Mark V’s contract with Western Electric did not require Mark V to make the roof a safe walkway. As a consequence, there is no basis for finding that Mark V owed a duty to Bolsmo. An action in negligence is unfounded. The judgment of the circuit court is affirmed on both counts.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE HARTMAN

text:
    FRANCISCO BERRIOS, Plaintiff-Appellant, v. RAY J. RYBACKI et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—2918
    Opinion filed October 24, 1989.

      Thomas R. Challos, Jr., and Marshall E. Winokur, both of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler and Michael Brennan, Assistant Attorneys General, of Chicago, of counsel), for appellees. •
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court denying his motion for summary judgment and granting summary judgment for defendants on plaintiffs complaint seeking a declaration that certain directives adopted by the Illinois Industrial Commission (Commission), and its chairman, Ray J. Rybacki (chairman), were void, among other claims for relief. Plaintiff’s theory is that the directives were, in fact and in law, rules adopted contrary to the provisions of the Illinois Administrative Procedure Act (APA) (Ill. Rev. Stat. 1987, ch. 127, par. 1001 et seq.).

The principal issues presented on review include whether: this appeal should be dismissed because plaintiff lacks standing to challenge the directives in view of plaintiff’s settlement of his underlying worker’s compensation claims; the procedures promulgated by the chairman and adopted by the Commission were actually “rules” under the APA, thereby subjecting them to the requirement of notice, comment or hearing and publication; and defendants’ motion for summary judgment should have been denied because the motion was not free from doubt.

In late 1985 and early 1986, plaintiff Francisco Berrios, received injuries while in the scope of his employment at General Mills. In June and September 1986, he filed applications for adjustment of his claims with the Commission pursuant to the Worker’s Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq. (Act)).

The claims, consolidated on October 14, 1986, were scheduled for trial on October 23, 1987, before a Commission arbitrator, who dismissed the claims for want of prosecution when plaintiff and his attorneys failed to appear before her between the hours of 8:45 a.m. and 9:15 a.m. in order to take part in a new procedure denominated the “trial order drawing.” The arbitrator told plaintiff’s counsel that she was acting according to what were labelled by the Commission as the “Chicago Arbitration Rules” (Chicago Rules), made effective on October 1, 1987, and made effective statewide as of January 1, 1988. These rules were not filed with the Secretary of State, nor set for comment or hearing, nor were they published in the Illinois Register pursuant to the APA, according to the chairman.

Plaintiff took no action to refile or reinstate his claims, or to appeal the dismissals to the Commission, although those options were available. Instead, he brought this circuit court action against the chairman and the Commission (sometimes collectively defendants), seeking: (1) a declaration that the Chicago Rules were void because they were not promulgated in accordance with the APA; (2) a declaration that the dismissal for want of prosecution of plaintiff’s claim be declared null and void, and that his claim be reinstated and assigned to another arbitrator; (3) a declaration that all other petitioners’ applications for adjustment of claims that were dismissed on or after October 1, 1987, be reinstated and reassigned; (4) a temporary or permanent injunction restraining defendants from attempting to enforce the invalid rules in the future absent compliance with the APA; (5) a temporary or permanent injunction against the Commission to prevent it from acting under the Chicago Rules until it complies with the APA; and (6) costs and fees.

Although reference is made in the briefs to plaintiff’s lawsuit as a class action, no allegations are set forth in his complaint as to any proposed class, or applicability or statutory prerequisites (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 801 through 2 — 806); however, in his prayer for relief he does ask:

“For a declaratory judgment declaring that all other petitioners’ applications for adjustment of claim, that were dismissed on and after October 1, 1987 be reinstated and randomly reassigned to other Arbitrators for trial, and that said matters be set for trial within 60 days after said reassignment.”

Extensive discovery subsequently was undertaken. During his deposition, the chairman explained that the new procedures were created to effectuate a “degree of uniformity which would allow all the parties, petitioners, respondents and their counsel or pro se petitioners to move expeditiously and keeping with the spirit of the act through the Commission.” The chairman alluded to the fact that there was no established procedure followed by each arbitrator and that few, if any, rules were actually reduced to writing. He stated that none of the other commissioners were consulted with regard to the proposed rules.

The chairman also indicated that the new procedures were made “available” in writing in September 1987 to attorneys at a seminar, and also at the Commission’s office. The chairman was familiar with the Illinois Administrative Code (Code) and its prescribed procedures for prearbitration, and averred that the Chicago Rules do not amend sections 7020 or 7030 of the Code (50 Ill. Adm. Code §§7020, 7030 (1985)), but were meant to “amplify and give direction to the arbitrators” as they applied the rules of arbitration.

Defendants moved for summary judgment, arguing that the Chicago Rules were not “rules” whose adoption required compliance with the APA, and that even if the procedures were “rules” under the APA, they fell within the exemption for rules concerning an agency’s internal management.

Plaintiff filed a cross-motion for summary judgment on the question of liability, contending that there were no questions of material fact that would preclude judgment for plaintiff; the Chicago Rules, as a matter of law, could not be said to fall within the internal management exception; and any subsequent granting of summary judgment for defendants would be in error since the issue regarding the status of the rules was not clear and free from doubt.

On August 31, 1988, the circuit court granted defendants’ motion for summary judgment, finding that the chairman is charged with implementing the purpose and objectives of the Act and possessed the authority to issue directives as to the internal management of the Commission in a manner consistent with existing rules and statutes. Plaintiff’s motion for reconsideration was denied. Plaintiff appeals from both orders.

I

Defendants contend that this appeal should be dismissed for a number of reasons. At the outset, they challenge plaintiff’s standing to question the validity of procedures other than those utilized in his case. The crux of their argument is that since the application only of Chicago Rules 5 and 12 could have caused any injury to plaintiff, only those rules can be the subject of any subsequent litigation. Defendants assert, therefore, that the validity of the remaining rules or procedures cannot be challenged by this plaintiff.

Standing requires “some injury in fact to a legally cognizable interest.” (Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 492, 524 N.E.2d 561.) Specifically, in an action for declaratory relief, there must be “an actual controversy” between adverse parties; and the party requesting the declaration must possess some “personal claim, status, or right which is capable of being affected by the grant of such relief.” (Greer v. Illinois Housing Development Authority, 122 Ill. 2d at 493.) Here, although plaintiff’s claims were dismissed pursuant to Chicago Rules 5 and 12, other rules in question adopted by defendants at the same time impact upon this cause generally, as argued by plaintiff and as will be noted presently. The adoption of these other rules followed the same procedures or lack thereof; they purport to fulfill the same need for uniformity; and they, too, are claimed to fall within the internal procedures exemption.

Defendants next contend that this action has been rendered moot by plaintiff’s subsequent settlement of his claims under the Act. They insist that since plaintiff’s ultimate legal interest was to receive compensation for his injuries, the settlement he received satisfied all the legal rights and interests in a fair adjudication given to him under the Act, thus making the issues moot.

Plaintiff concedes the settlement of his claims, but argues that the only claim for relief mooted by his settlement is his claim for reinstatement of his case. A case is moot, however, where an actual controversy ceases to exist. (Wheatley v. Board of Education (1984), 99 Ill. 2d 481, 484-85, 459 N.E.2d 1364.) Any judgment rendered under this factual scenario ordinarily could have advisory effect only. (See Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 235, 437 N.E.2d 638 (discussion on advisory opinions).) Further, courts generally will not review cases merely to establish a precedent or guide for future litigation. (La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 121 N.E.2d 486; Madison Park Bank v. Zagel, 91 Ill. 2d at 235.) Plaintiff’s sole personal basis for challenging the validity of the rules is grounded in the adjustment of his claims; upon their settlement, his standing to have the rules declared null and void ceased to exist as to his personal claim. Therefore, the issues as to his individual claim are moot.

Plaintiff urges, however, that exceptions to the mootness doctrine be applied, namely, the existence of a substantial public interest in the controversy (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622-23, 104 N.E.2d 769), or issues likely to recur, but unlikely to last long enough to insure appellate review. (Wheatley v. Board of Education, 99 Ill. 2d at 485.) We need consider only the first exception. Whether a sufficient level of public interest exists requires three elements to be analyzed: (1) the public nature of the question presented; (2) the need for an authoritative determination for the future guidance of public officials; and (3) the likelihood of recurrence of the question. People ex rel. Wallace v. Labrenz, 411 Ill. at 622; Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 430 N.E.2d 139; Morrison v. Chicago Board of Education (1989), 188 Ill. App. 3d 588.

The issue of whether the directives are “rules” within the APA is a public question which concerns all employees and employers pursuing or defending claims before the Commission. The circuit court itself found, in its final order, “that the issues raised in Plaintiff’s complaint involve matters of Public Importance and are of First Impression.” The motives of the chairman and of the Commission for issuing the directives may be praiseworthy; however, the legality of their actions must be determined so that, if illegal, they can be corrected. The probability indeed exists that another petitioner may challenge the validity of the Chicago Rules by reason of a dismissal. The need for judicial review of the agency’s actions being clear, this case transcends plaintiff’s personal claim and falls within the public interest exception to the doctrine of mootness. We will consider the remaining issues raised solely from the standpoint of the public interest.

II

Are the Chicago Rules “rules” within the meaning of the APA? The definition of “rule” for purposes of the APA is as follows:

“Rule means each agency statement of general applicability that implements, applies, interprets, or prescribes law or policy, but does not include (a) statements concerning only the internal management of an agency and not affecting private rights or procedures available to persons or entities outside the agency ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 127, par. 1003.09.)

If the Chicago Rules fall within the foregoing definition and outside the prescribed exceptions, they should have been published in the Illinois Register, with notice to the public, comments invited or hearings held, and filed with the Secretary of State. Ill. Rev. Stat. 1987, ch. 127, pars. 1005, 1005.01.

Defendants assert that the Chicago Rules do not meet the APA definition since they did not implement, apply, interpret or prescribe law or policy, but merely govern the internal management of the Commission. We disagree.

Applying the APA definition of “rule” to the case at bar, it is clear that several of the directives impacting upon this case affected private rights and procedures of persons outside the agency. In Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 470 N.E.2d 1029, our supreme court extensively examined the APA definition and found that the Department of Public Aid attempted to amend the rate at which it compensated nursing homes for the care of indigent citizens by issuing an “amended inflation-update procedure,” which “affect[ed] the rights and procedures available to people and entities outside the agency” (Senn Park, 104 Ill. 2d at 178), namely, the right of nursing homes to be compensated for their services. Here, the intended effect upon others outside the agency is illustrated, in part, by the following exchange between counsel and the chairman, which occurred during the chairman’s deposition:

“Q. So that these rules are promulgated by you to aid and assist the employers of this state as well as the employees of this state who have claims against the employers-, is that your goal here?
A. That’s the principal goal and obviously to fit these into the practice of law by individuals who, of course, represent the bulk of people who appear before the Commission.
* * *
Q. Do the [Chicago] rules *** affect all employees as well as all employers in Cook County, Illinois on and after October 1, 1987 who are governed by the Illinois Worker’s Compensation Act?
A. Well, they don’t affect — please, I mean they don’t affect all employees and all employers. They affect all existing cases.
Q. Okay. In other words, people who have claims or defending claims under and pursuant to the Illinois Worker’s Compensation Act?
A. Yes.” (Emphasis added.)

The difficulty with this case is that the chairman’s directives not only dictated an internal method for maintaining consistency among the arbitrators who hear worker’s compensation claims, but also had a substantial effect on the rights and obligations of persons outside the agency.

Rules governing prearbitration and arbitration proceedings before the Commission, prior to the adoption of the Chicago Rules in 1987 and 1988, were to be found in the Illinois Administrative Code, volume IV, title 50, sections 7020 and 7030 (Code). There is no question but that the prior rules had been adopted pursuant to the notice, response or hearing and publication requirements of the APA.

According to the evidence adduced through discovery, the manner in which a case came to trial prior to October 1, 1987, and how it comes to trial under the Chicago Rules is particularly significant. Prior to the Chicago Rules, arbitrators heard motions five days per week, each week of the month. A case less than three years old, but ready for trial, could be placed on the arbitrator’s motion book for a hearing to set a trial date. Notice of motion was sent to opposing counsel by mail 72 hours before the motion for trial was to be heard along with a form called “Request for Hearing.” Upon agreement between counsel at the time the motion was heard that the case should be tried, the arbitrator would pretry the case in accordance with section 7030.20. Parties were given the opportunity to settle their differences at these pretrial hearings. A case not disposed of at the pretrial conference would then be set for trial within 30 to 60 days thereafter. Under the new Chicago Rules, however, there is no provision for pretrial conferences other than for section 19(b — 1) cases (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1) (emergency hearings in certain circumstances)). Chicago Rules 7, 8.

Pretrial disposition by settlement between the parties is a valuable right which litigants are encouraged to pursue as a matter of public policy, not only from the perspective of the litigants, but also from the standpoint of the administration of justice (see, e.g., Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 122, 499 N.E.2d 1373). Although the present proceeding involves administrative proceedings, the policy of promoting settlements is the same (Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, 264, 383 N.E.2d 207; Hartford Accident & Indemnity Co. v. Illinois Industrial Comm’n (1926), 320 Ill. 544, 546, 151 N.E.2d 495). Indeed, all settlements are required to come under the Commission’s scrutiny and to receive its approval. (Ill. Rev. Stat. 1987, ch. 48, par. 138.23.) The fact that the present case was finally settled illustrates the point. Impingements upon opportunities to foster, encourage and approve settlements are not mere internal procedures, but clearly affect private rights. Public notice, input and publication could have aided the Commission and the chairman in considering this effect and perhaps suggested alternatives to this proposed procedure.

Prior to the adoption of the Chicago Rules, the evidence shows, cases could be tried five days per week and every week of each month. Chicago Rule 19 limits trial dates to the two-week period (10 working days) following the monthly status call. Under Chicago Rule 2, arbitrators hear motions but one day per month, after the trial status call. A case not on the preprinted arbitrator’s monthly trial status call, as prepared by the Commission, cannot be subject to a motion to set for trial. The new system requires further that section 19(b — 1) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(b — 1)) cases be heard during the first two trial dates for each arbitrator, and, under Chicago Rule 14, once such a case is started, it must be concluded during the next 10-day hearing cycle. Should claimants in other cases draw trial dates on which a continuing section 19(b — 1) trial is being conducted, the non-section 19(b — 1) cases must be continued, according to the evidence, for 90 days, with whatever concomitant disadvantages such delays may have to bear. Whether such delays are prejudicial or tolerable, or in the best interest of the administration of justice, or not, the potential result is surely not an internal matter alone, but clearly impacts upon the rights of private parties substantially, to say nothing of scheduling difficulties which may be experienced by counsel.

A case set for trial during the new 10-day trial cycle requires the appearance of counsel on the date the case is set. Under Chicago Rules 4 and 5, each case to be tried that day is to be selected between 8:45 a.m. and 9:15 a.m. Failure of counsel to appear during that period of time subjects the case to be dismissed. Before the advent of the Chicago Rules, there was no procedure such as a trial drawing. All cases subject to trial on a particular date were called from the arbitrator’s motion book, and both sides would appear and answer ready for trial or seek a new date. The evidence shows that arbitrators had the discretion to undertake the hearing of a case that day, upon good cause shown by counsel, even when the parties appeared after the call was completed. Although five minutes late, counsel for the petitioner in the present case was denied his hearing and his case was dismissed for having missed the number drawing period prescribed by Chicago Rules 4 and 5. Discretionary language in those rules is regarded as absent, according to the arbitrator, a result transcending internal rulemaking.

As the foregoing analyses of the several directives at issue reveal, they did indeed alter the rights and interests of parties outside the agency. The fact that the Chicago Rules may be beneficial to and could possibly enhance procedures followed in prearbitration and arbitration practice before the Commission cannot be gainsaid, and plaintiff concedes the potential salutary effect some of them may have. Nevertheless, it is the failure to pursue proper notice, comment or hearing and publication requirements of the APA in the adoption of the Chicago Rules that requires their invalidation. The public should have been given an opportunity to participate in the rule-making process, thereby enabling the Commission to apprise itself of potential problems before establishing new rules. See Batterton v. Marshall (D.C. Cir. 1980), 648 F.2d 694, 704. See also new Supreme Court Rule 3 (134 Ill. 2d R. 3).

Defendants’ reliance upon Donnelly v. Edgar (1987), 117 Ill. 2d 59, 509 N.E.2d 1015, and Mobil Oil Corp. v. Johnson (1982), 93 Ill. 2d 126, 442 N.E.2d 846, is misplaced. In Donnelly, the supreme court gave the internal management exception a narrow construction, but found the challenged directive to be an explanation of existing policy, unlike the effect of the Chicago Rules in the present case. The Mobil opinion, which predated the supreme court opinion in Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 470 N.E.2d 1029, found that an interagency memorandum dispelling previously existing confusion on the issue of taxability of refinery fuels was not a rule subject to the APA requirements of notice and hearing. No analogous situation is found in the present case.

Ill

Finally, plaintiff asserts that summary judgment for defendants was improperly granted and that the circuit court erred in denying his motion for summary judgment. The construction of a statute is a question of law. (Oberman v. Byrne (1983), 112 Ill. App. 3d 155, 160, 445 N.E.2d 374.) Because the case turns on the definition of “rule” under the APA, pure questions of law were presented to the circuit court. Summary judgment is proper when an issue is determinable solely as a matter of law. Smith v. Rengel (1981), 97 Ill. App. 3d 204, 422 N.E.2d 1146.

The circuit court erred in granting defendant’s motion for summary judgment. That judgment is reversed with directions to enter summary judgment in plaintiff’s favor, solely as it relates to the public interest. Upon remand, the circuit court should consider the necessity for entering orders restraining the enforcement of the Chicago Rules locally and statewide and for such further relief as may be necessitated under plaintiff’s complaint. Since we have found the issues as to plaintiff’s personal action moot, no further consideration need be given his claim.

Reversed and remanded with directions.

SCARIANO and DiVITO, JJ., concur.

      Plaintiff’s worker’s compensation claims were dismissed for want of prosecution by an Industrial Commission arbitrator because of plaintiff’s failure to follow certain of the newly created procedural directives, which are at issue in this appeal.

      This new requirement (Chicago Rule 4), directed each arbitrator, during his or her trial cycle, to conduct a trial order drawing between 8:45 a.m. and 9:15 a.m. for that day’s trials. If the said number drawn is called for trial and petitioner’s attorney is not present, counsel for respondent may request a continuance, or move for dismissal, subject to the arbitrator’s approval. If respondent’s counsel is absent, petitioner may proceed ex parte or request a continuance.


author: PRESIDING JUSTICE EGAN

text:
    NICK ATHENS, Plaintiff-Appellant, v. PATRICIA PROUSIS et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—88—0555
    Opinion filed October 27, 1989.
    Rehearing denied November 27, 1989.

      Nick Athens, of Evanston, appellant pro se.

    Danae K. Prousis, of Winston & Strawn, of Chicago, for appellees.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Nick Athens, brought an action to recover payment from the defendant, Patricia Prousis, for work performed under a written construction contract and for “extras” allegedly provided in addition to, and separate from, the performance covered by the written contract. The defendant denied that the plaintiff completely performed under the contract and further asserted that full payment had been made. The judge ruled in favor of the defendant at the close of the plaintiffs case. The plaintiff appeared pro se, as he does in this court.

In March 1971 the defendant, Patricia Prousis, who owned and operated a pharmacy at 30 West Washington, Chicago, Illinois, signed a lease for commercial space at 875 North Michigan Avenue, Chicago, Illinois (John Hancock Building). The defendant planned to relocate her business in the newly leased space. In February 1971 the defendant had orally agreed with the plaintiff, an architect and contractor, that he would provide the labor and materials necessary to construct the new pharmacy. He was to complete all the work by June 1, 1971, for $6,000.

The work was not completed by June 1, 1971. At the plaintiff’s suggestion the parties entered into a written construction contract prepared by the defendant’s attorney.

The contract, dated September 11, 1971, provided that the plaintiff agreed to “complete all construction” of a pharmacy at 875 North Michigan Avenue for the “fixed sum of $9,800.” The contract set forth eight specific tasks to be included in the agreement: (1) tiling of floors; (2) shelving; (3) clock on east wall; (4) display at column; (5) chair attached to curved counter; (6) painting, except for removable ceiling panels; (7) labor needed for dismantling of shelves and adapting them to new store; and (8) formica tops for counter. The contract also provided that payments made to suppliers and subcontractors were deductible and that $2,894.27 already had been paid on the contract. Finally, the contract stated that “[additional payments shall be as required to complete work, and at least 75% of [the plaintiff’s] time and expenses shall be paid by completion of the work, and 100% within 90 days of completion.”

Before passing on the merits of the case we must first address the defendant’s motion to strike the reply brief. The reply brief is in clear violation of Supreme Court Rule 341(e)(7). (107 Ill. 2d R. 341(e)(7).) It consists almost entirely of matters outside the record and unjustified slurs against the defendant’s attorney. It does not assist us in any way in resolving the issues. The motion to strike is allowed.

Turning to the merits of the appeal, we are obliged to note that this case presents an involved and confusing record and that unusual procedures were followed. The plaintiff filed his original complaint on September 10, 1981, alleging the performance of construction work of $15,000 in excess of payment. After the defendant filed a motion to dismiss, the plaintiff filed an amended complaint on Apri[ 2, 1982, which included a detailed list of “additional items of construction” and alleged that he had “supplied labor and materials for the changes made by the parties to the agreement [in the amount of] $13,300.” A copy of the contract was attached to that complaint as “Exhibit A.”

On July 22, 1982, the defendant filed an answer to the amended complaint and a counterclaim. A motion to strike and dismiss the defendant’s second affirmative defense and her counterclaim apparently was filed on September 1, 1983, by the plaintiff’s attorney, who had not yet entered his appearance. Apparently this motion, which does not appear in the record, was never ruled upon.

An attorney, Derek Gilna, appeared for the plaintiff on September 8, 1983, and filed another amended complaint. This “Amended Complaint” set forth two counts: Count I sought foreclosure of a lien filed September 7, 1983, and count II sought payment for “goods and services described in Exhibit 'A.’ ” Exhibit A was the September 11, 1981, contract. Again the defendant moved to dismiss, and the plaintiff, by his attorney, filed a “Second Amended Complaint” (actually the fourth complaint filed) on November 18, 1983.

On September 18, 1984, Gilna withdrew as the plaintiff’s attorney at the plaintiff’s request. The plaintiff proceeded thereafter pro se.

In response to the fourth complaint, on December 13, 1983, the defendant filed a motion to dismiss, alleging that the plaintiff’s lien foreclosure claim failed to comply with the requirements of the Illinois Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 1 et seq.) in that the complaint failed to include an affidavit and was not timely filed. On July 23, 1984, Judge Loren C. Lewis dismissed count I, the lien foreclosure claim of the plaintiff’s second amended complaint, as time barred. An order dated August 7, 1986, set a trial date of November 7, 1986, describing the trial date as “final as to both parties and all claims.”

On November 5, 1986, Judge John Laurie entered an order (1) granting the defendant’s motion for leave to file an answer and affirmative defenses instanter; (2) entering the defendant’s motions to dismiss and for summary judgment; (3) granting the plaintiff’s motion for leave to file an amended complaint within seven days; and (4) deferring other matters raised by the plaintiff to a hearing set for December 3, 1986.

On November 5, 1986, the defendant filed her “Answer to Count II of Second Amended Complaint and Affirmative Defenses.” The answer admitted that the plaintiff provided a portion of the construction services for the pharmacy, but otherwise denied the plaintiffs allegations and stood on the provisions of the September 11, 1971, contract. The affirmative defenses alleged full payment and laches.

Also on November 5, 1986, the defendant filed a motion for summary judgment on count II of the second amended complaint. The defendant supported her motion with an affidavit stating that she had paid the plaintiff or suppliers and subcontractors $7,638.66 since the date of the contract, which combined with the amount of $2,894.27 prepaid on the contract, was more than enough to satisfy the $9,800 contract price. The defendant also attached copies of her cancelled checks and check register to support her claims. Although no notice of this motion appears in the record, the motion was entered by Judge Laurie’s order of November 5, 1986, and set for hearing on December 3, 1986. No hearing was held on December 3, because the case was transferred to the law division on the defendant’s motion.

On November 12, 1986, pursuant to Judge Laurie’s order of November 5, 1986, the plaintiff filed a five-count “Amended and Supplemental Complaint.” Count I alleged a breach of contract, setting forth a detailed list of alleged extras provided by the plaintiff; it referred to the September 11, 1971, contract attached as exhibit A, and sought $18,305. Count II alleged fraud and sought damages of $44,500. Count III was a quantum, meruit claim, seeking in excess of $44,500. In count IV, the plaintiff sought to recover $3,600 as an additional architectural fee for detailed drawings and supervision of construction. In count V, the plaintiff alleged that the defendant “maliciously, willfully, and wantonly denied the plaintiff the right to photograph his work” and sought $10,000 plus punitive damages and costs.

On December 4, 1986, the defendant filed in the law division a motion to vacate the portion of Judge Laurie’s November 5, 1986, order that granted the plaintiff leave to file an amended complaint.

On October 13, 1987, Judge P.A. Sorrentino set the case for the final trial call on January 12, 1988. On January 12, 1988, Judge Lester Foreman assigned the cause to Judge John J. Crown for trial. Judge Crown denied the defendant’s motion for a one-week continuance and set the case for trial the following day. When the plaintiff realized that the defendant was not going to appear personally at trial, he orally moved for change of venue for prejudice; Judge Crown denied the motion.

The defendant presented Judge Crown with the motion filed on December 4, 1986, to vacate Judge Laurie’s order of November 5, 1986, which had granted the plaintiff leave to file an amended complaint. The defendant’s attorney indicated that the motion had not been argued in the intervening 13 months “because this case has been sort of in a state of flux.” The motion to vacate Judge Laurie’s order was based on allegations concerning pleadings, some of which do not appear in the record or are not properly authenticated. Suffice it to say that the defendant claimed that Judge Laurie abused his discretion in permitting the plaintiff to amend his pleading since another judge had previously denied the plaintiff leave to amend.

Judge Crown allowed the motion to vacate Judge Laurie’s order and determined that the case should proceed to trial on count II of the plaintiff’s preceding complaint, entitled “Second Amended Complaint,” which was filed on November 3, 1983.

The defendant then raised her motion for summary judgment which was filed November 5, 1986. The court took the motion for summary judgment under advisement.

At the ensuing trial the plaintiff offered the testimony of an expert witness, James Swann, an architect who once visited the defendant’s pharmacy for 20 to 30 minutes in 1981, 1982, or 1983. The plaintiff tried to introduce through this witness evidence of the value of improvements made to the pharmacy in 1971 and 1972 based on the witness’ single visit to the site. The judge sustained the defendant’s objection to the foundation for such testimony. No error is assigned to this ruling.

After the plaintiff was unable to elicit evidence from the witness, the plaintiff moved for a one-day recess, which was denied. The plaintiff then sought to testify himself in a narrative fashion. The judge also denied this request, because the plaintiff had failed to request permission prior to trial to testify in the narrative, and the defendant would not consent to such narrative testimony. This ruling is not assigned as error. After denying another request by the plaintiff for a postponement, the judge instructed the plaintiff to proceed or to rest. The plaintiff responded: “I don’t know what to say, your Honor, that’s all.” The judge then rested for the plaintiff.

The plaintiff first contends that the judge erred in granting the defendant’s motion'to vacate the order allowing the plaintiff to file an amended complaint. Under ordinary circumstances we would hold that the judge erred in allowing the motion to vacate and in striking the amended complaint, but we will not do so here because we do not believe the plaintiff was prejudiced. It is obvious that the defendant did not comply with Rule 2.3 of the Circuit Court of Cook County (Cook Co. Cir. Ct. R. 2.3), which provides as follows:

“The burden of calling for hearing any motion previously filed is on the party making the motion. If any such motion is not called for hearing within 90 days from the date it is filed, the court may enter an order overruling or denying the motion by reason of the delay.”

The excuse given by the defendant’s attorney that the case was in “flux” for 13 months is anything but persuasive. Under all the circumstances, the judge should not have considered the motion or he should have denied it. But the plaintiff was not prevented from proving anything under count II of the revived complaint that he could have proved under the stricken count I. Count II of the complaint upon which trial was heard was in substance the same as count I of the complaint that was stricken. The only difference is that a detailed list of “extras” was attached as an exhibit to the stricken complaint but not attached to the trial complaint. That list constituted a matter of evidence, and the plaintiff could have proved those extras whether or not the exhibit was attached to the complaint.

It is true that the dismissed complaint also included four other counts and the defendant never argued their sufficiency. Those counts alleged, for the first time, fraud and quantum meruit claims, each seeking almost four times the original damages, a claim for punitive damages and a claim for fees for drawings and construction supervision. The plaintiff makes no contention here that the dismissal of those counts was error. He tells us that, instead of dismissing the entire complaint, a “much better move, which would have achieved what the court apparently favored, would have been to retain the complaint but dismiss all the counts except Count I.” (Emphasis added.) We conclude, therefore, that since the plaintiff was given an opportunity to prove everything he could have under the stricken complaint, no prejudice occurred.

The next question is whether the trial judge erred in granting the defendant’s motion for summary judgment at the close of the plaintiff’s case. Again, we note that the defendant ignored Circuit Court Rule 2.3.

The defendant filed her motion for summary judgment on November 5, 1986. At that time, the motion was set for a hearing in the municipal division on December 3, 1986. However, on that date, pursuant to the defendant’s motion, the case was transferred from the municipal division to the law division. Thereafter, the record contains no indication that the defendant attempted to reset the motion for hearing. At trial she offered no explanation why the motion had not been set for a hearing during the 13-month period between the transfer of the case to the law division and the scheduled trial date. Thus, the defendant failed to pursue actively a timely hearing on her motion for summary judgment, and the trial judge should have denied the motion. (See Deaton v. Lloyd’s Jewelry Co. (1972), 7 Ill. App. 3d 926, 289 N.E.2d 123.) But again, we must conclude that the plaintiff did not suffer any prejudice.

The defendant also moved for a finding in her favor at the close of the plaintiff’s case; and in our judgment such a finding would have been appropriate under section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1110).

Section 2 — 1110 requires a two-step analysis: First, the trial court must determine whether the plaintiff has made out a prima facie case, that is, has offered some evidence on every element necessary to establish the cause of action. If the plaintiff has failed to make out a prima facie case, the defendant is entitled to judgment as a matter of law. Second, if the plaintiff has made out a prima facie case, the court must weigh the quality of the evidence as a finder of fact. Heller v. Jonathan Investments, Inc. (1986), 113 Ill. 2d 60, 495 N.E.2d 589.

It must be borne in mind that the plaintiff did not argue in the trial court, nor does he in this court, that he was not paid as required by the written contract. His claim, rather, is for “extras.” This court has set out the required proof in actions for the value of additional goods and services not covered by a written contract in Wingler v. Niblack (1978), 58 Ill. App. 3d 287, 289, 374 N.E.2d 252, 253:

“[A] contractor seeking to recover for extras must establish by clear and convincing evidence: (1) that the extras were outside the scope of his original contractual promises; (2) that the owner requested the extras; (3) that the owner, by words or conduct, agreed to pay extra; (4) that the contractor did not voluntarily proceed with the extra work; and (5) that the extras were not necessitated by reason of some default by the contractor.”

It is apparent that the plaintiff failed to establish by clear and convincing evidence the elements of a prima facie case for extras. For all practical purposes the plaintiff presented no evidence at all. The only witness who testified, James Swann, established nothing more than what he observed in a 20- to 30-minute visit to the defendant’s pharmacy several years after the work had been completed. The rulings limiting the plaintiff’s proof are not questioned here. Therefore, we must take the record as it is and not as it might have been. The plaintiff, as a pro se appellant, is bound by the rules to the same extent as any other litigant represented by counsel, in the trial court as well as in this court. (See Kielminski v. St. Anthony’s Hospital (1979), 68 Ill. App. 3d 407, 386 N.E.2d 326.) We conclude, therefore, that the judge should have allowed the defendant’s motion for judgment at the close of the plaintiff’s case and that granting the same relief under the designation of summary judgment was harmless error.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.


author: JUSTICE LORENZ

text:
    JACQUELINE McSHANE, Special Adm’r of the Estate of Craig McShane, Deceased, Plaintiff, v. CHICAGO INVESTMENT CORPORATION, Defendant and Third-Party Plaintiff-Appellant (The City of Chicago, Third-Party Defendant-Appellee).
    First District (5th Division)
    No. 1—88—0492
    Opinion filed October 27, 1989.
    Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, James K. Horstman, and Lloyd E. Williams, Jr., of counsel), for appellant.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and L. Anita Richardson, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

This appeal follows dismissal of Chicago Investment Corporation’s third-party complaint for contribution against the City of Chicago arising out of consolidated negligence actions brought by or on the behalf of four City of Chicago firemen.

We affirm.

On September 22, 1981, City of Chicago firemen responded to a fire at Willoughby Towers located at 8 South Michigan Avenue in Chicago. In the course of fighting the fire, two firemen, Louis Outlaw and Gerald Cathcart, were injured, and two others, Joseph Hitz and Craig McShane, died.

On September 1, 1983, Outlaw and Cathcart filed a complaint against Chicago Investment Corporation (CIC), owner of Willoughby Towers. As is relevant here, the complaint alleged CIC failed to properly maintain Willoughby Towers and that that negligence proximately caused injuries sustained by Outlaw and Cathcart. Concetta Hitz and Jacqueline McShane filed separate similar complaints against CIC as administrators of the estates of Joseph Hitz and Craig McShane, respectively. All three cases were consolidated in the circuit court.

In turn, CIC filed a third-party complaint for contribution against the City of Chicago (City) pursuant to sections 2 and 3 of the Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1985, ch. 70, pars. 302, 303). Generally, CIC alleged the City was negligent in training and/or directing its firemen.

The City moved to dismiss the third-party complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619), arguing it was immune from liability under operation of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, pars. 1 — 101 through 10 — 101). The circuit court granted the City’s motion and determined no just reason existed to delay appeal from the order of dismissal. This appeal followed.

Opinion

The issue presented is whether a contribution action, arising out of actions for negligence brought by firemen employed by the City, may be maintained against the City notwithstanding that a direct action against the City might be barred by the Tort Immunity Act. That identical issue was addressed by the third division of this court in Martin v. Lion Uniform Co. (1989), 180 Ill. App. 3d 955, 536 N.E.2d 736.

Martin involved an action brought by George H. Martin, a City fireman, for injuries received in fighting a fire in a building owned and managed by Krasny & Company (Krasny). In his complaint, Martin alleged causes of action for negligence against Krasny and strict liability against Lion Uniform Company (Lion), the manufacturer of the protective clothing worn by Martin. Both Krasny and Lion filed third-party complaints for contribution against the City and the Chicago fire department. The City moved to dismiss the third-party complaints, asserting nonliability under relevant provisions of the Tort Immunity Act. The circuit court denied the City’s motion to dismiss, concluding the City’s immunity from direct suit by Martin did not extend to immunity from contribution actions.

The third division reversed, relying on the settled common law rule in Illinois that a municipality owes no duty for negligence in connection with the governmental function of providing fire protection service. (Martin, 180 Ill. App. 3d at 958, 536 N.E.2d at 738.) That rule of nonliability, the court concluded, was born of sound public policy and was designed as a bar to all liability, whether sought through a direct action or a third-party contribution action. (Martin, 180 Ill. App. 3d at 963-64, 536 N.E.2d at 741.) The court observed that the rule of nonliability as it relates to providing fire protection service has remained unaltered by statute, with narrow exception, and is actually codified in the Tort Immunity Act. Martin, 180 Ill. App. 3d at 959-60, 536 N.E.2d at 738.

We adopt the analysis set forth in Martin and likewise conclude that the City in the instant case cannot be liable in tort under the Contribution Act. We recognize, as the court did in Martin, that “[a] contrary holding would subject every fire department in the State to potential liability for each and every action [taken] in relation to fire protection services *** leading] to hesitation on the part of the government to undertake and perform [those] essential duties.” Martin, 180 Ill. App. 3d at 962, 536 N.E.2d at 740.

We therefore affirm the judgment of the circuit court dismissing the third-party complaint of CIC against the City.

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.