author: PRESIDING JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK C. ELWORTHY, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—2133
    Opinion filed May 31, 1991.

      Terry Sullivan, Ltd., of Rolling Meadows (Nancy J. Nicol, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Defendant, Mark C. Elworthy, appeals from his convictions for possession of cannabis and possession of cocaine with intent to deliver. (Ill. Rev. Stat. 1987, ch. 56½, pars. 704(d), 1402(a)(2).) We consider: (1) whether the denial of defendant’s jury waiver was unconstitutional; (2) whether the denial of defendant’s motion to quash the search warrant was against the manifest weight of the evidence; (3) whether the denial of defendant’s motion to suppress statements and evidence was against the manifest weight of the evidence; and (4) whether the exclusion of evidence as a discovery sanction was an abuse of discretion. For the following reasons, we reverse and remand for new trial.

Officer Julius Jones prepared a complaint for a search warrant of defendant’s house based on information given to him by a confidential informant he had known for five years. In the affidavit supporting the complaint, Jones stated that in the previous two months, the informant had given him information on two occasions which resulted in the seizure of illegal drugs and the arrest of suspects. Jones stated that on November 23, 1985, the informant told him he had just purchased a quarter of an ounce of cocaine for $500 from defendant in defendant’s house. The informant also said defendant still had a large amount of cocaine left in the house.

A judge issued a warrant to search defendant’s house for cocaine which was executed on November 25, 1985. The police recovered cocaine, cannabis, and $54,200 in cash. He was arrested and charged with possession of cannabis and possession of cocaine with intent to deliver.

Defendant moved to quash the search warrant, arguing the affidavit supporting the warrant contained false statements and requesting an evidentiary hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674. Defendant’s motion was supported with his affidavit and that of his wife, Denise Elworthy, and his friend, Wally Naumenko. They each stated that defendant was in Ontario on November 23, 1985, the date the informant claimed he purchased cocaine from defendant.

The trial judge found defendant presented a sufficient basis to grant an evidentiary hearing. At the hearing, Officer Jones testified that when he met with the informant, the informant had used some of the cocaine he purchased from defendant. The informant was “feeling kind of good” but responded intelligently during their conversation. Jones also testified he had received information from the informant approximately 40 times in five years and he had never given false information. On 25 to 30 of those occasions, the information led to the recovery of contraband, for which the informant was paid. On 10 to 13 other occasions, the information did not result in the recovery of contraband but Jones explained the failures were not due to the inaccuracy of the information from the informant. Generally, the failures resulted when the suspects either disposed of the drugs or sold them before the police could recover them.

Denise Elworthy, defendant’s wife, testified that on November 22, 1985, defendant drove to Ontario with Naumenko and did not return until November 24, after 1 a.m. She denied that anyone came to the house to purchase cocaine on November 23.

Naumenko testified he was with defendant on the trip to Ontario and after dinner on November 23, defendant drove back home by himself.

Based on Jones’ testimony, defendant subpoenaed approximately 43 affidavits for search warrants, spanning a five-year period, prepared by Jones in which he relied on information from the informant involved in this case. When the State resisted the subpoena, the trial judge ordered it to produce only the affidavits relating to the two previous encounters that Jones referred to in his affidavit. The judge inspected the affidavits in camera and excised portions which could have led to the identity of the informant. They were then produced to defendant for the hearing and Jones was recalled as a witness.

Jones further testified that in 1985 he prepared approximately 15 affidavits for search warrants relying on information from the informant using a similar format. Jones explained that in the affidavit for defendant’s case he cited only the past two months’ contact with the informant to show recent reliability.

Defendant also subpoenaed the Chicago police department’s file on the confidential informant. From the trial judge’s in camera review of the file, he stated that the informant began providing information to the department in 1981 and, since that time, had provided information 88 times for which he was often paid. He received a total of $3,400 for previous cases and $1,500 for defendant’s case. Based on the file, the judge was satisfied that there was a confidential informant. Although defendant also moved for the disclosure of the informant’s identity and production of the informant for the hearing, the judge denied the motion after reviewing the file.

In ruling on defendant’s motion to quash, the judge found that although defendant’s witnesses were credible and testified that defendant was out of town when the alleged drug sale took place, Jones had no reason to doubt the informant. Based on the testimony at the hearing and the review of the informant’s file, the judge denied defendant’s motion to quash the search warrant.

Defendant also moved to suppress statements he made while the police were searching the house and the evidence seized as a result of those statements.

At the hearing on the motion to suppress, Sergeant Joseph D’Antonio testified that he and several other police officers executed the search warrant for defendant’s house. After defendant was given the search warrant and read his Miranda rights, D’Antonio began searching the kitchen while Officer Jones and Lieutenant William Callaghan were searching the family room in the basement. Within five minutes of when they arrived, defendant made a statement to Jones. D’Antonio, Jones, and Callaghan were present in the family room when defendant made another statement. Jones opened the drawer of a desk and found drugs and money.

Jones testified that when they searched the house, defendant, his sister-in-law, and two children were present. Jones admitted he may have told defendant that his wife and sister-in-law would be arrested and the children would be sent to the Department of Children and Family Services (DCFS) if defendant did not tell them where the drugs were. After Jones had been searching the family room for approximately 30 minutes, defendant made a statement. Jones testified he could not recall whether the desk drawer, where he found the drugs and money, was locked. However, at his deposition, Jones testified that the desk drawer was unlocked, and at the preliminary hearing, he testified that the drawer was locked and defendant gave him the key to open it.

Lieutenant Callaghan testified that after he had been searching the family room for approximately six minutes, defendant entered the room with Jones and D’Antonio. Jones said defendant would show them where the drugs were. When they recovered the drugs, Callaghan continued to search the family room.

Donna Bernhardt, defendant’s sister-in-law, testified that when the police executed the search warrant, she was in the house with her child and was baby-sitting defendant’s child. After the police had been searching for an hour and 45 minutes, Callaghan told defendant that if he did not tell them where the drugs were, Bernhardt and his wife would be arrested and the children would be taken to the “Audie” home.

Defendant testified that he was working at the desk in the family room when the police arrived. Approximately a half hour after they entered, Callaghan and Jones told defendant that if he did not tell them where the drugs were, Bernhardt and his wife would be arrested and the children would be taken to the “Audie” home. A half hour later, Callaghan and Jones repeated the threat. Defendant then made statements to Jones because he was afraid for his wife and children.

In ruling on the motion to suppress, the judge found that Jones coerced defendant to make the statements by threatening to arrest his wife and sister-in-law and take the children to DCFS. As a result, the judge suppressed defendant’s statements pertaining to where the drugs were located. However, the judge found that the drugs were admissible because the police would have found them without defendant’s statements. Therefore, the statements were suppressed but the drugs were admissible at trial.

Prior to trial, defendant signed a jury waiver form; however, the judge granted the State’s request for a jury trial under section 115—1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115-1).

At trial, Officer Jones testified that pursuant to a search warrant for defendant’s house, he recovered three bags containing a crushed green plant, one bag containing a white rock-like substance, and $54,000 in cash from a desk in the family room. Sergeant D’Antonio and Lieutenant Callaghan testified they were present when Jones found the items.

Arlene Koszyk, a criminalist from the Chicago police department crime laboratory, testified that the bags removed from defendant’s house contained 942 grams of cocaine and 31.14 grams of cannabis. The State rested its case against defendant.

Defendant’s wife, Denise Elworthy, testified that the desk in the family room where the drugs were found was owned by their landlord, Arthur Canpos. Canpos had keys to the house and, on occasion, he entered the house. She also testified that at the time of trial, Canpos was in prison for selling cocaine but the judge sustained the State’s objection to that testimony and instructed the jury to disregard it.

Defendant moved to admit a document purporting to establish Canpos’ conviction but the court excluded the document because defendant did not tender it to the State prior to trial, in violation of discovery rules. Defendant rested his case.

The jury found defendant guilty of possession of cannabis and possession of cocaine with intent to deliver. He was sentenced to concurrent terms of nine and two years’ imprisonment, fined $50,000, and he now appeals.

Opinion

I

The most significant argument defendant raises on appeal is that his constitutional rights were violated when the trial judge denied his jury waiver and granted the State’s request for a jury trial. The State concedes error on this issue.

Section 115—1, in effect at the time of defendant’s trial, provided that for certain offenses, including those involved in this case, a defendant would be tried by a jury unless both the State and the defendant waived a jury trial. (Ill. Rev. Stat. 1987, ch. 38, par. 115— 1.) Relying on this authority, the judge granted the State’s request for a jury trial despite defendant’s waiver.

While defendant’s case was pending on appeal, the Blinois Supreme Court held that section 115—1 violated the Blinois Constitution because it limited defendant’s right to waive a jury trial. (People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, 533 N.E.2d 873.) Subsequently, the supreme court held that its decision in Joyce should be applied retroactively. (People v. Gersch (1990), 135 Ill. 2d 384, 553 N.E.2d 281.) The remedy for the denial of the right to waive a jury trial is to reverse the conviction and remand for a new trial. (Gersch, 135 Ill. 2d 384, 553 N.E.2d 281.) As a result, defendant’s convictions are reversed and remanded for a new trial.

Although defendant must be retried, both parties request this court to consider the remaining issues defendant raises on appeal.

II

One of the remaining issues is defendant’s challenge to the denial of his motion to quash the search warrant brought under Franks (438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674). On appeal, he argues that the Franks hearing was unfair because the trial judge did not enforce his subpoena for documents and denied his motion to produce the confidential informant. Additionally, he contends the denial of the motion to quash was against the manifest weight of the evidence.

In Franks, the United States Supreme Court recognized that although an affidavit supporting a search warrant is presumed valid, a defendant has a limited right to challenge the veracity of the affidavit. (Franks, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674; accord People v. Lucente (1987), 116 Ill. 2d 133, 506 N.E.2d 1269.) The search warrant should be quashed if, after a hearing, a defendant proves that the affiant made false statements in the affidavit, either intentionally or with reckless disregard for the truth, and the false statements were necessary to establish probable cause. Franks, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.

Initially, defendant argues that he was denied a fair Franks hearing because the trial judge did not enforce his subpoena for documents to its full extent. Based on Officer Jones’ testimony, defendant subpoenaed 43 affidavits for search warrants prepared by Jones, spanning a five-year period, in which he relied on the informant involved in this case.

Courts have recognized that without some discovery it may be difficult for a defendant to prove his challenge to the existence or reliability of a confidential informant under Franks. (People v. Torres (1990), 200 Ill. App. 3d 253, 558 N.E.2d 645; People v. Rodriguez (1983), 119 Ill. App. 3d 575, 456 N.E.2d 989.) However, one of the requirements for a subpoena for documents is that the documents are evidentiary and relevant. (People v. Shukovsky (1988), 128 Ill. 2d 210, 538 N.E.2d 444.) The decision of the trial judge on whether to grant discovery for a Franks hearing will not be disturbed absent an abuse of discretion. People v. Zymantas (1989), 191 Ill. App. 3d 55, 547 N.E.2d 536.

Defendant claims that enforcing the subpoena to its full extent would have proved that the additional affidavits did not exist and, therefore, would have proved Jones lied in his affidavit. However, in his affidavit Jones referred to two previous successful encounters with the informant and those previous affidavits for search warrants were produced to defendant for the hearing. Defendant’s subpoena for the additional affidavits sought to challenge Jones’ testimony that he had used the informant approximately 43 times; however, the trial judge found Jones’ testimony was credible. Defendant also claims that Jones’ affidavit in this case contained “boiler plate” language and if the additional search warrants also had such language, they would have proved that Jones lied. Jones admitted in his testimony that he followed a certain format when he prepared affidavits for search warrants. However, even if the previous affidavits contained “boiler plate” language, they would not establish the untruthfulness of the affidavit in the present case. (People v. Hodges (1987), 159 Ill. App. 3d 38, 512 N.E.2d 19.) As a result, the additional affidavits were not relevant to the hearing, and the trial judge’s denial of defendant’s request for discovery was not an abuse of discretion.

Defendant also argues the Franks hearing was unfair because his motion for disclosure of the informant’s identity and production of the informant was denied.

Generally, the State is not required to disclose the identity of a confidential informant unless the failure to do so would infringe defendant’s constitutional rights. (134 Ill. 2d R. 412(j)(ii).) Neither Franks nor Lucente considered whether or under what circumstances an informant should be produced to testify for a Franks hearing. However, the appellate court has stated that disclosure of an informant’s identity for such a hearing may be required if the trial judge doubts the credibility of the affiant (People v. Friend (1988), 177 Ill. App. 3d 1002, 533 N.E.2d 409) or if the informant participated in the crime for which defendant was charged (Zymantas, 191 Ill. App. 3d 55, 547 N.E.2d 536). The decision to require disclosure of the informant is within the trial judge’s discretion. Friend, 177 Ill. App. 3d 1002, 533 N.E.2d 409.

In this case, the trial judge found Jones’ testimony at the hearing was credible. Jones testified that he believed the informant was reliable and he had never given false information in the past. After a review of the informant’s file, the judge was convinced that there was an informant. Additionally, the informant did not participate in the crimes defendant was charged with committing, which were possession and possession with intent to deliver. Although the informant purchased cocaine from defendant, defendant was not charged with that offense. Accordingly, disclosure or production of the informant was not required for the Franks hearing and the denial of defendant’s motion was not an abuse of discretion.

Defendant’s last argument in connection with the Franks hearing is that the denial of his motion to quash the search warrant was against the manifest weight of the evidence.

As stated previously, an affidavit supporting a search warrant is presumed valid. (Franks, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.) To overcome the presumption, a defendant must prove by a preponderance of the evidence that the affiant included false statements in the affidavit, either intentionally or with reckless disregard for the truth, and that without the false statements, there was no probable cause. (Franks, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.) The decision of a trial judge in ruling on a motion to quash a search warrant will not be disturbed unless it was against the manifest weight of the evidence. Lucente, 116 Ill. 2d 133, 506 N.E.2d 1269.

Jones testified that he prepared the affidavit based on the informant’s statements that he purchased cocaine from defendant on November 23, 1985. The affidavit stated that in the previous two months, the informant provided information which led to the recovery of contraband. Jones had known the informant for five years and the informant provided information to Jones approximately 40 times which led to the recovery of contraband 25 to 30 times. Jones also testified that the informant never provided false information. On the other hand, defendant’s wife testified that defendant was in Canada on the day the informant claimed he purchased cocaine from defendant. Defendant’s friend testified he accompanied defendant on the trip. In addition to hearing testimony, the judge reviewed the police department’s file on the informant which disclosed that he had provided information to the department approximately 88 times over a five-year period.

Defendant contends the evidence established Jones recklessly disregarded the truth in his affidavit because he omitted the 10 to 13 occasions when searches based on the informant’s information were not successful. Omissions may invalidate an affidavit for search warrant if the omitted information was material to the determination of probable cause and it was omitted with the intention to mislead the judge issuing the search warrant. (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.) In this case, however, Jones explained that the unsuccessful searches were not due to false information from the informant and he omitted those occasions from the affidavit to show recent examples of the informant’s reliability. As a result, the omitted information was not material to the determination of probable cause because it did not diminish the informant’s reliability and there was no evidence that Jones omitted the information with the intent to mislead the judge.

Defendant also contends that the “boiler plate” language in the affidavit indicates that Jones recklessly disregarded the truth. As stated previously, whether or not the affidavit contained such language does not address its veracity (Hodges, 159 Ill. App. 3d 38, 512 N.E.2d 19) and, therefore, defendant’s allegation does not exhibit a reckless disregard for the truth.

Additionally, defendant contends that Jones’ failure to corroborate the informant’s information established he recklessly disregarded the truth. Defendant relies on Lucente, where the court indicated that the failure of an affiant to corroborate information from an informant may tip the balance in favor of granting a Franks hearing if defendant showed the informant “blatantly lied” or his information was “substantially false.” (Lucente, 116 Ill. 2d at 152, 506 N.E.2d at 1277.) Although defendant was granted a Franks hearing in this case, he apparently argues Jones’ failure to corroborate indicated he recklessly disregarded the truth and should be considered in determining whether the denial of defendant’s motion was against the manifest weight of the evidence.

Even accepting defendant’s witnesses’ testimony as true, the evidence presented at the hearing showed that Jones had no basis to doubt the informant’s information. The informant had provided information on numerous occasions which generally resulted in successful searches. Although on occasion the searches were unsuccessful, they were not the result of false information. Jones’ failure to corroborate the information on this occasion was outweighed by the strong evidence of the informant’s reliability over a significant period of time. As a result, the judge’s decision that Jones did not recklessly disregard the truth was not against the manifest weight of the evidence.

Ill

Concerning his motion to suppress evidence, defendant argues the motion should have been granted because the drugs were found as a result of coerced statements he made during the search. The judge denied the motion because the evidence would have been inevitably discovered without the coerced statements.

In Nix v. Williams (1984), 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501, the United States Supreme Court adopted an inevitable discovery exception to the exclusionary rule which allows the admission of evidence obtained in violation of the constitution if it would have been inevitably discovered lawfully. The rationale supporting the rule is that the prosecution should not be put in a worse position than it would have been in had the violation not taken place. (Nix, 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501.) The Illinois Supreme Court also recognized the inevitable discovery rule in People v. Hoskins (1984), 101 Ill. 2d 209, 461 N.E.2d 941, although it did not base its decision on the rule. When faced with a motion to suppress, the State must prove by a preponderance of the evidence that the evidence in question would have been discovered by lawful means. (People v. Buffo (1990), 202 Ill. App. 3d 240, 559 N.E.2d 908.) The trial judge’s decision on a motion to suppress will not be disturbed unless it was manifestly erroneous. Hoskins, 101 Ill. 2d 209, 461 N.E.2d 941.

In Nix, the police obtained statements from defendant in violation of the sixth amendment which led them to the body of a child in a ditch. At the time, a large-scale search for the child was being conducted which was suspended when defendant cooperated with the police. The organizer of the search testified that, without defendant’s cooperation, the search would have continued into the area where the body was found. Under those circumstances, the court found that the body would have inevitably been found and the evidence was admissible.

In the present case, the police were searching defendant’s house for cocaine when he made statements which led to the discovery of the drugs in a desk located in the family room. At the time he made the statements, Lieutenant Callaghan was searching the family room and he continued his search after the drugs were discovered.

Defendant contends the length of the search indicates that the police would not have recovered the drugs without his statements. However, even if the police were searching the house for as long as an hour and 45 minutes as Bernhardt testified, it was not a significant amount of time. Defendant also contends there was no evidence of a police procedure supporting the conclusion that the drugs would have been found without his statements. However, it is significant that when defendant made the statements, Callaghan was searching the room where the drugs were found and continued to search afterward. Also, the drugs were found in a place where it was reasonably expected such items would be found. Under the circumstances presented in this case, the trial judge’s finding that the drugs would have been inevitably discovered was not manifestly erroneous.

IV

Lastly, defendant argues the trial judge improperly refused to admit evidence that Canpos, his landlord, was in prison for selling cocaine. The trial judge excluded the evidence because defendant did not disclose the evidence to the State, which violated discovery rules.

A trial judge may exclude evidence as a discovery sanction when a party failed to disclose the evidence to the other side. (134 Ill. 2d R. 415(g)(i).) Exclusion of evidence is proper when the party wilfully violated discovery “to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence.” (Taylor v. Illinois (1988), 484 U.S. 400, 415, 98 L. Ed. 2d 798, 814, 108 S. Ct. 646, 655.) The trial judge’s imposition of a discovery sanction should not be reversed on appeal unless it was an abuse of discretion. People v. Tinoco (1989), 185 Ill. App. 3d 816, 541 N.E.2d 1198.

Defendant did not disclose the evidence until after the State rested its case and defendant’s wife was testifying in his case in chief. He subsequently moved to admit a document purporting to establish the conviction. On appeal, defendant does not address the exclusion of the evidence as a discovery sanction but only argues the evidence was admissible to prove another person committed the crime, citing People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696. Defendant’s actions of waiting until the witness was on the stand testifying in front of the jury before disclosing the evidence could properly be viewed as a wilful violation of discovery to obtain a tactical advantage. As a result, the judge did not abuse his discretion in excluding the evidence.

V

In conclusion, we find defendant’s convictions must be reversed and remanded for new trial because he was denied the right to waive a jury trial. However, the denials of his motions to quash and suppress evidence were not against the manifest weight of the evidence and will not be disturbed on appeal. Also, the judge did not abuse his discretion when he refused to admit evidence which defendant did not disclose to the State.

Reversed and remanded for new trial.

GORDON and McNULTY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COCCIA

license: Public Domain

text:
    DAVID A. O'KEEFE, Plaintiff-Appellant, v. MICHAEL S. GREENWALD et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—89—1255
    Opinion filed May 21, 1991.

      Susan E. Loggans & Associates, of Chicago (David A. Novoselsky, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Robert B. Austin, Hugh C. Griffin, and Diane L. Jennings, of counsel), for appellee Robert C. Hamilton.
    French, Kezelis & Kominiarek, of Chicago (Richard G. French and Russell P. Veldenz, of counsel), for appellees Michael S. Greenwald and Orthopedic Surgeons, Ltd.
   JUSTICE COCCIA

delivered the opinion of the court:

After plaintiff David A. O’Keefe was injured in a car accident, he brought a negligence action against the driver of the other car, and later executed a release pursuant to a settlement. Plaintiff then filed this action for subsequent medical malpractice against defendants Dr. Robert C. Hamilton, Dr. Michael Greenwald and Orthopedic Surgeons, Ltd., for failure to diagnose an injured hip. Additionally, he alleged that Dr. Hamilton unnecessarily performed surgery on his knee. Defendants raised the affirmative defense that the action was barred by plaintiff’s release of the original tortfeasor.

The trial court directed a verdict at the close of plaintiff’s case in favor of defendants as to the hip injury based on plaintiff’s failure to show that defendants’ negligence resulted in a separate and distinct injury. At the close of all the evidence, the jury returned a verdict in favor of Dr. Hamilton as to the knee injury. Other defendants were dismissed on the basis that claims against them were time barred, and those defendants are not involved in this appeal.

On appeal, plaintiff contends that the court improperly shifted the burden of proof on the affirmative defense to plaintiff; that he presented sufficient evidence to permit the jury to decide the question of whether defendants’ negligence caused a separate and distinct injury; and that the court erred in not permitting him to make an offer of proof.

On February 28, 1978, plaintiff was injured in an automobile accident in Streator, Illinois. Plaintiff was treated at a hospital for lacerations and a concussion. In May 1978, he was treated by defendant Dr. Greenwald. In November 1979, he was treated by defendant Dr. Hamilton.

On January 9, 1980, plaintiff filed a complaint against the driver of the other car, Jack Carpenter.

On February 27, 1982, Dr. Alvin M. Kanter, an orthopedic surgeon, examined plaintiff at the request of plaintiff’s counsel. On that day, he examined plaintiff and took X rays. On the same day, he showed plaintiff the X rays and explained to him that his hip was fractured.

On February 27, 1982, Dr. Kanter wrote to plaintiff’s counsel that X rays showed severe degeneration of the hip joint and “healed posterior fracture-dislocation of the left hip with subsequent reduction, avascular necrosis of the femoral head and destruction of the entire hip joint.” Dr. Kanter concluded: “I feel there is no question that this problem as it exists at present is related to the trauma that he described. The laceration of the left knee resulted in a fracture-dislocation of the left hip, which has gone on to the problem that he demonstrates at present.” This letter was stamped “received” by plaintiff’s counsel on March 2,1982.

On March 4, 1982, plaintiff executed a release to Carpenter for $50,000. The release stated:

“I, David O’Keefe *** do hereby release, acquit and discharge said party [Carpenter] or parties and all other persons or corporations of and from all claims and demands, actions and causes of action, damages, cost, loss of service, expenses and compensation on account of, or in any way growing out of personal injuries, whether known or unknown to me at the present time, and property damage, resulting or to result from an occurrence that took place on or about the 28th day of February, 1978 *** if

Two months later, on May 4, 1982, plaintiff filed this malpractice action against defendants. The complaint alleged that defendants failed to diagnose and treat the hip fracture. It alleged that plaintiff first discovered defendants’ negligence on February 22, 1982.

Plaintiff’s second amended complaint alleged that plaintiff first discovered the negligence on May 3, 1982.

Plaintiff’s third amended complaint added the allegation that Dr. Hamilton unnecessarily performed knee surgery on plaintiff.

On January 20, 1983, Dr. Greenwald filed a motion to dismiss which maintained that plaintiff’s claim was time barred by the statute of limitations, and that plaintiff was barred from bringing this suit as a result of the general release executed in March 1982 to Carpenter, the original tortfeasor. On January 28, 1983, the court denied the motion to dismiss. Defendants’ August 1984 motion for reconsideration of that order was also denied.

In September 1984, defendants renewed the motions to dismiss based on the statute of limitations and the release. On January 22, 1985, the motions were again denied.

In February and March 1989, defendants filed answers and affirmative defenses to the third amended complaint. The affirmative defenses again raised the issue of the release to the original tortfeasor barring an action against defendants as subsequent tortfeasors.

Just prior to trial, defendants moved for summary judgment based on the general release. The court reserved judgment in order to afford plaintiff an evidentiary hearing on the issue of whether defendants caused a separate and distinct injury rather than merely aggravating the original hip injury. The court stated that plaintiff’s burden was to show a separate and distinct injury caused by defendants’ alleged negligence.

Following plaintiff’s opening statement at trial, defendants moved for a directed verdict on the basis of admissions that the injury was an aggravation, not a separate and distinct injury. The court denied the motion.

Plaintiff introduced the following evidence at trial.

On February 23, 1978, the day of the accident, plaintiff was treated for facial, head and knee lacerations, and a concussion, by Dr. Robert Jarrett at the hospital emergency room. Plaintiff testified that he complained of pain radiating from the knee up the leg to the hip. No hip X rays were taken. Dr. Jarrett, a general surgeon, testified for plaintiff at trial that he treated plaintiff following the accident. No physical examination for, or diagnosis of, a hip dislocation or fracture was ever made.

In March 1978, plaintiff saw his personal physician, Dr. Samuel J. Goldhaber, a family practitioner. Plaintiff complained of knee, thigh and hip pain to Dr. Goldhaber. Dr. Goldhaber testified in an evidence deposition which was read at trial that he referred plaintiff to a physical therapist and later to defendant Dr. Greenwald.

Elsy McLemore, a physical therapist, testified for plaintiff that she treated him from March 17, 1978, through May 1978, at the request of Dr. Goldhaber. Plaintiff complained repeatedly of pain in the left leg, radiating into the hip. On March 17, 1978, McLemore wrote in her notes: “Patient sustained bruises to the left lower extremity in an accident recently, yesterday or day before. He reports he finds it difficult to bear weight on left lower extremity.”

Plaintiff testified that he did not recall telling McLemore on March 17, 1978, about any “accident.” He did recall, however, that one day he stood at home, felt severe leg pain in the leg and hip, which “popped or whatever, air crunch or something like that.” He stumbled against an end table and “hit my leg a little bit.” He was not sure, but he thought that might be what McLemore was referring to in her testimony.

In April 1978, plaintiff began seeing defendant Dr. Greenwald, an orthopedic surgeon. Plaintiff testified that he complained of continued pain in his leg up into his hip. Dr. Greenwald testified for plaintiff at trial that he ordered knee X rays and an arthrogram of the left knee, which showed a small tear in the medial meniscus. Dr. Greenwald recommended conservative treatment for the knee. He did not diagnose a hip fracture. He believes the fracture occurred at the time of the original accident.

In November 1979, plaintiff began seeing defendant Dr. Hamilton. Plaintiff testified that he complained of leg and hip pain. Dr. Hamilton testified for plaintiff at trial as an adverse witness. He testified that in December 1979, he performed knee surgery on plaintiff. Dr. Hamilton believed the hip injury occurred at the time of the car accident. Plaintiff testified that after surgery, he continued to complain of pain in the upper thigh and knee joints.

Dr. Kanter testified for plaintiff at trial that he performed a total hip replacement on plaintiff. Furthermore, in his medical opinion the fracture occurred in the February 1978 automobile accident. Plaintiff had reported to him that his pain began at that time.

Dr. Martin Silverstein, an orthopedic surgeon, testified as an expert witness for plaintiff. Dr. Silverstein opined that defendants were negligent in not diagnosing the hip fracture, which he believed occurred at the time of the accident. Dr. Silverstein also explained that the condition called “avascular necrosis” occurred where the blood supply to the hip is interrupted “as a result of massive, major trauma to the hip joint.” Unless measures are taken to correct it, the head of the femur dies. Plaintiff’s “joint was left with one or multiple fragments within it which contributed to the overall degeneration of his hip.”

Dr. Winfred Yaslow, an orthopedic surgeon, also testified as an expert witness for plaintiff. Dr. Yaslow opined that defendants were negligent in not diagnosing the hip fracture, which he believed occurred at the time of the accident.

Dr. Howard Bates Noble, an orthopedic surgeon, also testified for plaintiff. He opined that defendants were negligent in not diagnosing the hip fracture, which he believed occurred at the time of the accident.

Dr. Mitchell Sheinkop, retained as an expert witness on behalf of defendant Dr. Greenwald, was called to testify by plaintiff as part of his case in chief. Dr. Sheinkop opined that the hip injury occurred at the time of the accident. Plaintiff moved to declare him as an adverse witness.

At the close of plaintiff’s evidence, the defendants moved for a directed verdict. Extensive arguments were heard by the court. The court then granted Dr. Greenwald’s motion for a directed verdict in its entirety. The court granted Dr. Hamilton’s motion as to plaintiff’s hip injury but denied the motion as to the knee injury. The trial proceeded as to Dr. Hamilton’s liability for the alleged negligence in treating the knee. The jury returned a verdict for defendant Dr. Hamilton and against plaintiff.

Plaintiff contends that the trial court erred in directing verdicts for defendants at the close of plaintiff’s case, and that the wrong burden of proof was imposed by the trial court.

A verdict may be directed when all the evidence viewed in its aspect most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

A defendant’s claim that a release bars plaintiff’s cause of action against subsequent tortfeasors is an affirmative defense. (Tidwell v. Smith (1960), 27 Ill. App. 2d 63, 169 N.E.2d 157.) In Illinois, the original tortfeasor is liable for both the original injury and for any aggravation of that injury caused by the subsequent negligence of a treating physician. Gertz v. Campbell (1973), 55 Ill. 2d 84, 302 N.E.2d 40.

In Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, 461 N.E.2d 361, the court held prospectively from January 20, 1984, that under section 2(c) of the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, par. 302(c)), only those persons specifically identified in the release are discharged under the release. Because that rule is prospective, it is not applicable here, where the release was signed on March 4, 1982. For releases executed before January 20, 1984, the release of the original tortfeasor acts as a release of the subsequently negligent physician. Tidwell v. Smith, 27 Ill. App. 2d 63, 169 N.E.2d 157.

In Kolar v. Ray (1986), 142 Ill. App. 3d 912, 492 N.E.2d 899, we held that where defendants merely aggravated the original injury, the original tortfeasor was liable for that aggravated injury. A release of the original tortfeasor acted as a release from liability for the subsequent alleged medical negligence by defendants. Accord Trexler v. Hubbard (1983), 118 Ill. App. 3d 697, 455 N.E.2d 274, rev’d on other grounds (1984), 104 Ill. 2d 26, 470 N.E.2d 300; Guth v. Vaughan (1923), 231 Ill. App. 143.

This court follows the first district holding in Kolar v. Ray. We recognize that a different district of this court has held to the contrary. In Cram v. Showalter (2d Dist. 1986), 140 Ill. App. 3d 1068, 489 N.E.2d 892 (as modified upon denial of rehearing), the court held that a release of the original tortfeasor did not release the subsequent negligence of the defendant physicians. We decline to follow that holding. See generally Annot., 39 A.L.R.3d 260 (1971) (discussing split in jurisdictions on this question).

In Cram, the court relied on the holding in Gertz v. Campbell, which provided for equitable apportionment between the original tortfeasor and the negligent physician. Here, Carpenter never sought equitable apportionment from defendants. The court in Cram also relied on Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 328 N.E.2d 301, which held that the tortfeasor’s payment in exchange for a covenant not to sue could not be deducted from a verdict against the subsequent treating physicians. The present case does not involve a covenant not to sue.

The recognition in Gertz and Borowski that the negligence of a subsequent treating physician violates a different duty towards plaintiff than the duty violated by the original tortfeasor does not alter our holding here. The issue here is not whether defendants and Carpenter were joint tortfeasors. Unlike the present case, Gertz and Borowski did not involve the effect of a general release on the liability of subsequent treating physicians. To the extent that Gertz and Borowski recognize that separate and distinct injuries are possible, the trial court here provided plaintiff with more than ample opportunity to prove the existence of separate and distinct injuries, which he was unable to do.

Plaintiff also urges that Cram should be followed, instead of Rolar v. Ray, because Cram is more factually similar to the present case since no suit was pending against the doctors when the release at issue in Cram was signed. We do not find this reasoning persuasive. Here, as discussed below, plaintiff was aware of the defendants’ negligence when the release was signed.

Having determined the general rule, we go on to analyze the means a party may use to avoid the harshness of the rule concerning the effect of the release of the original tortfeasor. A party may avoid a release if the physician’s negligence did not merely aggravate the original injury, but, instead, created a separate and distinct injury. Kolar v. Ray, 142 Ill. App. 3d 912, 492 N.E.2d 899; Anderson v. Martzke (1970), 131 Ill. App. 2d 61, 266 N.E.2d 137.

Because they raised the release as an affirmative defense, defendants here carried the initial burden of production on the existence of a release which is legal and binding on its face. (Davis v. Hoeffken Brothers, Inc. (1965), 60 Ill. App. 2d 139, 208 N.E.2d 370; Judd v. Illinois Central R.R. (1965), 58 Ill. App. 2d 47, 206 N.E.2d 525 (abstract of opinion).) A presumption of the release’s validity is created because the release was under seal and recited it was in exchange for good and valuable consideration. Artoe v. Navajo Freight Lines, Inc. (1978), 65 Ill. App. 3d 119, 382 N.E.2d 492; Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 356 N.E.2d 639.

Without more, this would be sufficient to meet defendants’ ultimate burden of proof on the affirmative defense. Plaintiff erroneously maintains that the burden was improperly shifted at this point.

Once defendants established the existence of a valid release, the burden of production shifted to plaintiff to prove the release was invalid by clear and convincing evidence. (Aqua-Aerobic Systems, Inc. v. Ravitts (1988), 166 Ill. App. 3d 168, 520 N.E.2d 67; Scherer v. Ravenswood Hospital Medical Center (1979), 70 Ill. App. 3d 939, 388 N.E.2d 1268; Meyer v. Murray (1979), 70 Ill. App. 3d 106, 387 N.E.2d 878.) Thus, once defendant has established the release as a prima facie defense, or after admission by the opposing party, if the opposing party wishes to avoid the release as a defense, the burden is on that opposing party to prove facts rendering it invalid or any matter which will avoid it. Judd v. Illinois Central R.R., 58 Ill. App. 2d 47, 206 N.E.2d 525; see generally 76 C.J.S. Release §65, at 706 (1952).

Significantly, defendants do not have the burden of establishing the absence of any element which plaintiff relies on to avoid the release. Scherer v. Ravenswood Hospital Medical Center, 70 Ill. App. 3d 939, 388 N.E.2d 1268; Meyer v. Murray, 70 Ill. App. 3d 106, 387 N.E.2d 878.

Plaintiff here attempted to avoid the release, arguing before the trial court that the injuries sustained as a result of defendants’ negligence were separate and distinct from the injuries sustained in the car accident.

Plaintiff asserted enough facts to convince the trial court to permit plaintiff to produce evidence at trial before a jury on this issue, thus withstanding defendants’ two motions to dismiss, motion for summary judgment, and motion for a directed verdict after plaintiff’s opening statement before the jury at trial.

Plaintiff then failed, however, to carry his burden of production at trial. He failed to introduce evidence tending to show that the injuries were separate and distinct. There was no evidence, if believed by the jury, which would have authorized a finding in favor of plaintiff on the issue of separate and distinct injury.

Seven physicians testified in plaintiff’s case in chief on this issue. The expert witnesses, Drs. Yaslow, Silverstein and Noble, testified that the hip injury occurred at the time of the February 1978 car accident. The treating physician, Dr. Kanter, testified similarly. Defendants’ expert, who was called by plaintiff, Dr. Sheinkop, agreed with this medical opinion. The two defendant physicians also testified as adverse witnesses for plaintiff that the hip was injured in the car accident.

The expert witnesses testified further for plaintiff that the hip injury was the result of a “classic” dashboard injury where the knee struck the dashboard or steering wheel with such force that the femur moved upwards into the hip joint, resulting in a fracture dislocation. Similarly, the avascular necrosis or deterioration resulted from the original injury.

Plaintiff maintains that a new injury was created in March 1987 when he stood up at home, felt sharp pain and fell against an end table. No expert evidence was presented on this. Dr. Sheinkop, testifying as an adverse witness for plaintiff, testified that it was not medically possible. Plaintiff himself could not even remember telling the physical therapist about the minor incident. Moreover, all medical opinions offered by plaintiff at trial established that the hip injury occurred at the time of the accident, not the next month when plaintiff stood up at home.

The jury could not reasonably come to a conclusion different than that of the seven doctors whom plaintiff called to testify on this medical causation issue, as the issue required expert testimony since it was beyond the understanding of laypersons. (See Piano v. Davison (1987), 157 Ill. App. 3d 649, 675, 510 N.E.2d 1066.) All of the evidence presented by plaintiff, and any reasonable inference drawn therefrom, established that the defendants’ alleged negligence merely aggravated the original injury. Plaintiff produced no evidence to suggest defendants created a separate and distinct injury. A verdict may properly be directed where plaintiff neglects to introduce any evidence to support his contentions. Sherrod v. Brannock (1978), 67 Ill. App. 3d 972, 385 N.E.2d 735; Bailey v. City of Decatur (1977), 49 Ill. App. 3d 751, 364 N.E.2d 613. See generally 76 C.J.S. Release §72(h), at 723-24 (1952).

Thus, defendants carried the burden of production and persuasion on the affirmative defense, and a directed verdict in their favor was proper.

Plaintiff next points out that the intent of the parties to the release controls the scope of the release. (Kolar v. Ray, 142 Ill. App. 3d 912, 492 N.E.2d 899.) We look to the release itself, and if it is clear and explicit, we must enforce it as written. (Rakowski v. Lucente (1984), 104 Ill. 2d 317, 472 N.E.2d 791.) The release here clearly states that plaintiff releases Carpenter and “all other persons *** from all claims, demands, actions and causes of action, damages ***, injuries, whether known or unknown *** resulting or to result from the occurrence” on February 28, 1978. In Rakowski v. Lucente, and in Kolar v. Ray, we found similar language to be precise and unambiguous.

Plaintiff contends that at the time he executed the release, he did not know that defendants had been negligent. This argument is not supported by the record which plaintiff has presented to this court.

Plaintiff executed the release on March 4, 1982. The next day, plaintiff’s counsel notified the court that the case was settled.

Five days earlier, on February 27, 1982, Dr. Kanter wrote to plaintiff’s counsel that X rays showed severe degeneration of the hip joint and “healed posterior fracture-dislocation of the left hip with subsequent reduction, avascular necrosis of the femoral head and destruction of the entire hip joint.” Dr. Kanter concluded: “I feel there is no question that this problem as it exists at present is related to the trauma that he described. The laceration of the left knee resulted in a fracture-dislocation of the left hip, which has gone on to the problem that he demonstrates at present.”

Notably, this letter was stamped “received” by plaintiff’s counsel on March 2, 1982, two days before the release was signed.

Plaintiff’s original and first amended complaints allege he discovered defendants’ negligence on February 22, 1982, almost two weeks before signing the release. His sworn answers to interrogatories state that he discovered defendants’ allegedly negligent failure to diagnose the hip injury on February 27, 1982, five days before he signed the release. Plaintiff admitted in his own testimony at trial that Dr. Kanter informed him of the hip injury on February 27, 1982.

It was not until plaintiff’s second amended complaint was filed that he belatedly changed the date of discovery to May 3, 1982, the day before filing suit against defendants here.

In light of these facts, plaintiff’s assertion that he did not know about the hip injury when he executed the release is completely without merit.

Plaintiff finally contends that the trial court erred in not letting him make an offer of proof. The purpose of an offer of proof is to inform the trial court, counsel and the reviewing court of the nature and substance of evidence sought to be introduced. (Volvo of America Corp. v. Gibson (1980), 83 Ill. App. 3d 487, 404 N.E.2d 406.) Plaintiff did not know what Dr. Sheinkop might answer. His brief admits he was “simply attempting to ascertain whether Dr. Sheinkop would once again change his opinion.” This is not a permissible use of an offer of proof. See First National Bank v. Porter (1983), 114 Ill. App. 3d 1, 448 N.E.2d 256; Schmitt v. Chicago Transit Authority (1962), 34 Ill. App. 2d 67, 179 N.E.2d 838.

On redirect examination, Dr. Sheinkop testified that falling against a table could not produce the hip injury. “[T]he nature of the injury was such [that] it would have to have taken a more violent trauma than is described in the physical therapy notes of March 17, 1978.” The substance of Dr. Sheinkop’s testimony was before the court. (Tolefree v. March (1981), 99 Ill. App. 3d 1011, 425 N.E.2d 1247; Lindley v. St. Mary's Hospital (1980), 85 Ill. App. 3d 559, 406 N.E.2d 952.) The question which plaintiffs counsel sought to have answered by Dr. Sheinkop had already been answered, and the answer was not in plaintiff's favor. Moreover, plaintiff had the opportunity to question Dr. Sheinkop about the physical therapy notes when he deposed him prior to trial. Plaintiff could not wait until trial to depose Dr. Sheinkop in chambers under the guise of making an offer of proof to find out if he could weaken Dr. Sheinkop’s opinion that the fall against the table was medically insignificant. We find no error in the court’s ruling.

Finally, plaintiff’s notice of appeal states he is appealing from the jury verdict in favor of defendant Dr. Hamilton on the issue of the negligence in treating the knee injury. That issue is not addressed by plaintiff in his brief, and thus, we will not address the issue.

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

Judgment affirmed.

SCARIANO, P.J., and HARTMAN, J., concur.


author: JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL MOORE, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—1418
    Opinion filed May 10, 1991.
    Modified on denial of rehearing June 28, 1991.

      Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and Kathleen A. Panozzo, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Defendant appeals from the denial of his motion to withdraw pleas of guilty to five counts of armed robbery. He contends that his pleas were not entered voluntarily both because he was under the influence of drugs at the time such pleas were entered, and also because he was not fully informed of the mandatory supervised release provisions which accompanied his sentence. Defendant also contends that he was improperly convicted of five counts of armed robbery when the State’s factual basis establishes only three such offenses.

On August 25, 1987, defendant Michael Moore agreed to a plea conference between his attorney, the State, and the trial judge concerning three armed robbery indictments. In proceedings held on October 8, the court announced that an agreement had been reached which would result in two concurrent sentences of 18 years’ imprisonment for two of the offenses, with a consecutive sentence of 10 years for the third offense which was allegedly committed while defendant was out on bond. The court also stated that another judge before whom a fourth case against Moore was pending had agreed to accept a plea of guilty and would impose a sentence concurrent to the one resulting from the present plea agreement. After Moore acknowledged understanding this agreement, the court admonished him on the rights waived by a guilty plea, accepted his pleas, solicited statements in aggravation and mitigation, as well as a statement from defendant concerning his drug addiction, and then imposed the sentences previously agreed upon.

On October 27, 1987, a motion to withdraw plea of guilty was filed on behalf of defendant, alleging that defendant had been under the influence of drugs and did not understand the true nature of the proceedings at the time he pled guilty. An amended motion to vacate the plea of guilty was tendered to the court on March 31, 1988, which in addition to addressing the involuntariness of defendant’s plea, also contested the constitutionality of the consecutive sentencing provision involved in a portion of defendant’s sentence. The trial judge denied the motion to vacate the plea of guilty, finding both that there was no evidence to support Moore’s claims of drug influence, and that the sentencing statute was constitutional. Defendant now appeals the denial of his motion to vacate, alleging that such plea was not made knowingly as he was under the influence of drugs at the time and was not fully informed of sentencing provisions. The constitutional issue is not raised on appeal.

Defendant argues that his motion to vacate was incorrectly denied, as such plea was not made knowingly and intelligently as required by law. (Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709.) Defendant alleges not only that he was under the influence of drugs at the time the plea was entered, but also that he was not fully advised of the complete sentence (including the supervised release) which was imposed.

In support of his argument that he was under the influence of drugs at the time of the guilty plea, Moore maintains that while waiting to be brought to court, he found a package of drugs in a holding cell and ingested a portion of these. Moore further states that his impression of the hearing was that he would be given a sentence of 10 years for the three cases. He alleges that after the plea he learned from the court’s bailiff that he had been sentenced to 28 years instead of the 10. That night defendant put himself on sick call, and three days after the plea he was hospitalized for a drug overdose.

At the hearing on defendant’s motion to withdraw guilty plea, the trial court dismissed these arguments as unbelievable. The judge stated that he remembered the circumstances of the plea, and that at the time it was obvious that Moore understood what was going on, and that he was able to address the court cogently. Furthermore, the judge recalled that at the hearing Moore did not slur his words, his eyes appeared bright, and there was no indication of any drug-induced state. In fact, Moore had participated in an intelligent colloquy with the court regarding his eligibility for the TASC (Treatment Alternatives to Street Crime) and Gateway programs. Hospital records do not establish that defendant was under the influence of drugs at the time of the guilty plea. Rather, these records establish the fact that defendant was treated at the hospital on October 9, 1987, and October 12, 1987. On October 9 (the day after the hearing), he was diagnosed as having a headache, and Tylenol was prescribed. On October 12, four days after the plea of guilty, defendant was brought to the hospital because of an alleged drug overdose.

Thus, the only evidence of defendant’s alleged intoxication at the time of the guilty plea is his own testimony to that effect. This testimony is unsupported by the medical evidence and is contrary to both the record and the recollections of the trial judge. We therefore find that the trial court was correct in determining that defendant was not under the influence of drugs at the time of the entry of the guilty plea and that therefore his plea was made knowingly and should not be vacated for these reasons.

Defendant further contends that his plea was not made knowingly and should be vacated because he was not fully admonished as to the supervised release term and thus did not understand all the terms of the sentence he would receive. Assuming, arguendo, that this issue has been preserved for appeal, a review of the record supports a finding that the trial judge substantially complied with Supreme Court Rule 402 (134 Ill. 2d R. 402) requirements in admonishing defendant before accepting his plea. This rule requires that before accepting a plea of guilty a trial judge must admonish a defendant as to the nature of the charges against him, his right to plead guilty or not, the minimum and maximum sentences prescribed by law, and the fact that by pleading guilty a defendant waives the right to trial by jury and the right to confront witnesses against him.

Case law has held that there need be only substantial, not literal, compliance with these provisions. (People v. Krantz (1974), 58 Ill. 2d 187, 192, 317 N.E.2d 559, 562.) Every deviation therefrom does not require reversal. People v. McCoy (1979), 74 Ill. 2d 398, 385 N.E.2d 696.

In the case at bar, the trial judge informed defendant of the nature of the charges against him, of the consequences of pleading guilty, and of the maximum number of years to which he could be sentenced on the charges before the court. On both August 25, 1987 (the day of the plea conference) and October 8 (the day of the hearing), defendant was told that he was being charged with three Class X felonies, each carrying a term of imprisonment in the State penitentiary from 6 to 30 years, or a maximum of 90 years. Additionally, defendant was advised that since one of the felonies was allegedly committed while he was on bond, even if there was a package deal on the first two offenses, sentencing on the third would have to be consecutive. Defendant informed the court that he understood the meaning of consecutive sentencing. He also informed the court that he understood that as a result of the plea negotiations, in exchange for pleading guilty on the three felonies, he would be sentenced to 18 years in the Illinois penitentiary on the first two to run concurrently, and to 10 consecutive years on the third.

It is not disputed that the trial judge failed to advise defendant of the mandatory supervised release term (three years for a Class X felony) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(d)), although he clearly advised Moore of the maximum amount of time to which he could be sentenced on the felonies involved.

Our supreme court has held that the fact that a defendant had not been informed of mandatory parole requirements (now mandatory supervised release) is a factor to be considered in determining whether a plea of guilty was voluntarily and intelligently made by defendant. (People v. Wills (1975), 61 Ill. 2d 105, 330 N.E.2d 505, cert. denied (1975), 423 U.S. 999, 46 L. Ed. 2d 374, 96 S. Ct. 430.) In Wills, this factor was not enough to render a plea of guilty involuntary or unintelligent. (Wills, 61 Ill. 2d 105, 330 N.E.2d 505.) In this case, defendant’s plea of guilty was found to be voluntary even though he was not advised of parole terms for all charges against him. The Wills court found substantial compliance with the requirements of Rule 402, as Wills had been admonished about the mandatory parole provision on the charge in which he received the greatest sentence. Thus, Wills was aware of the maximum sentence which he could receive.

In People v. McCoy (1979), 74 Ill. 2d 398, 385 N.E.2d 696, the Illinois Supreme Court also determined that a defendant’s plea was entered knowingly even though he had not been advised of the mandatory parole period. In McCoy, the defendant entered a plea of guilty to burglary in exchange for the State’s recommendation of a sentence for the revocation of defendant’s parole. On appeal, the Illinois Supreme Court found that the record clearly showed that defendant understood that the quid pro quo for the plea of guilty was the recommendation that there be concurrent sentences of one to three years, and that the defendant knew the court was not bound to accept the recommendation and could sentence the defendant to a term of not less than one nor more than 20 years. The court further determined that since the indeterminate sentence imposed, together with the mandatory parole period, was substantially less than the maximum of 20 years to which defendant knew he could be sentenced, defendant’s plea was voluntarily and intelligently made.

Unlike the defendant in either Wills or McCoy, Moore entered a negotiated plea of guilty. Thus he agreed to accept a predetermined sentence regardless of the statutory minimum or maximum term of years. A similar factual situation is found in the case of People v. Miller (1982), 107 Ill. App. 3d 1078, 438 N.E.2d 643. In Miller, after defendant entered a negotiated plea the trial judge informed him of the charges and possible sentences against him, neglecting to include the term of mandatory parole. On appeal, the court determined that since the sentence imposed, together with the mandatory parole period, was substantially less than the maximum to which the defendant knew he could be sentenced, the plea was intelligently and voluntarily made. The Illinois Supreme Court denied defendant’s request for review. Miller then requested habeas corpus relief from the Federal district court. This court found that since Miller had not been informed of the mandatory supervised release term, this portion of his sentence should be stricken. The Seventh Circuit Court of Appeals further determined that because the trial judge committed errors beyond failing to advise Mr. Miller of the mandatory supervised release (including the failure to also advise him of the privilege against self-incrimination, and the right to confront witnesses against him), the striking of the mandatory supervised release term from Miller’s sentence was not an adequate remedy. (United States ex rel. Miller v. McGinnis (7th Cir. 1985), 774 F.2d 819.) Because of the numerous defects in Miller’s plea, the court of appeals remanded the case to the district court to issue a writ of habeas corpus, unless within 120 days the State of Illinois vacated Miller’s plea of guilty and allowed him to plea anew.

Although we rely on Illinois case law in holding that Mr. Moore’s plea was intelligently and voluntarily made, we do find the order of the district court in Miller persuasive, and thus order that the three-year term of mandatory supervised release be stricken from Moore’s sentence. Because Moore’s plea proceeding involved only this one defect, we find it unwarranted to vacate the entire plea.

Moore also alleges that he was incorrectly convicted of five counts of armed robbery when the factual basis offered by the State establishes that only three armed robberies actually occurred. Assuming, arguendo, that this issue has been preserved for appeal, case law dictates that two of defendant’s five armed robbery convictions are improper. In two of the armed robbery charges, defendant pleaded guilty to two counts of armed robbery. Both of these charges involved robberies of business establishments, a currency exchange and a Kentucky Fried Chicken. In both instances, there were two complaining witnesses, but only one actual robbery. In People v. Mack (1984), 105 Ill. 2d 103, 473 N.E.2d 880, vacated on other grounds (1987), 479 U.S. 1074, 94 L. Ed. 2d 127, 107 S. Ct. 1266, the Illinois Supreme Court held that only one conviction for armed robbery could be sustained in the robbery of a bank, even though the taking had occurred in the presence of two named complainants. The charges in the instant action are factually similar to those in Mack. Since they involve only one taking in each instance, convictions should have been for one count of armed robbery in each of the aforementioned charges. Therefore, it is appropriate that two convictions of armed robbery be vacated as requested by the defendant.

For the reasons stated above, we affirm the trial court’s denial of defendant’s motion to withdraw his guilty pleas, and vacate two of defendant’s armed robbery convictions, and modify the defendant’s sentence to a term of 28 years inclusive of any mandatory supervised release.

Affirmed in part; vacated in part and modified in part.

MURRAY and GORDON, JJ., concur.


author: JUSTICE McMORROW

text:
    BOARD OF EDUCATION SCHOOL DISTRICT NO. 67, Plaintiff-Appellee, v. MARGARET SIKORSKI, as a Representative of all Taxpayer Residents of School District No. 67, Defendant-Appellee (Niles Township Trustees of Schools, Defendant-Appellee; Bernard Katz and Company, Inc., Defendant-Appellant).
    First District (4th Division)
    No. 1—90—1353
    Opinion filed May 31, 1991.

      Robert Marks, of Marks, Marks & Kaplan, Ltd., of Chicago, for appellant.
    David Schachman, Michael K. Fridkin, and Julia A. Fenton, of Sachnoff & Weaver, Ltd., of Chicago, for appellee Board of Education School District No. 67.
   JUSTICE McMORROW

delivered the opinion of the court:

The instant appeal questions whether the Board of Education of School District No. 67 (the Board) violated certain provisions of the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 41 et seq.) and the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 1—1 et seq.) in the public sale of certain Board property to defendant Bernard Katz & Co., Inc. (Katz), and whether these violations were grounds to render the sales contract between the Board and Katz unenforceable as void ab initio. We conclude that the Board’s holding of an executive session to decide that the sale of school property should be postponed by three days violated the Open Meetings Act. (Ill. Rev. Stat. 1989, ch. 102, par. 42(c).) However, we also determine that the Board cured and ratified its violation of the Open Meetings Act when the Board held subsequent public meetings regarding sale of the property. In addition, we find that the Board’s failure to provide additional publication of the rescheduled date of sale did not violate the School Code. (Ill. Rev. Stat. 1989, ch. 122, par. 5—22.) We also conclude that, assuming arguendo the Board had violated the School Code, the Board is nevertheless estopped from raising its violation as ground to render void its contract with Katz. We find the Board’s argument regarding the trustees’ delegation to the Board of the authority to enter into a contract with Katz insufficient basis, on this record, to affirm the trial court’s judgment. Accordingly, we reverse the trial court’s ruling and remand the matter for further proceedings consistent herewith.

The following facts are undisputed in the record and derive from the parties’ cross-motions for summary judgment. On September 21, 1989, the Board adopted a resolution directing the Niles Township Trustees of Schools to sell property comprising the Hynes Elementary School (hereinafter the Hynes School property) upon terms specified in the resolution and in a trustees’ notice of sale attached thereto. The notice of sale provided that sealed bids would be received on October 19, 1989, and that the Board, at its October 26, 1989, meeting, would accept one bid and execute a sales contract for not less than $2 million net. The notice of sale also required an earnest money deposit of 20% of the bid, and stated, inter alia, that the Hynes School property would revert to the Board if the property were not rezoned for multifamily residential use by the Village of Morton Grove.

The Board received several requests for information concerning the sale and on October 2, 1989, sent bid packages in response thereto. Defendant Katz was among those who requested and received a bid package. The trustees’ notice of sale was timely published as required by the School Code, i.e., publication was given in a local newspaper for three consecutive weeks regarding the terms, conditions, and date of public sale of the property. See Ill. Rev. Stat. 1989, ch. 122, par. 5—22.

Three days before the anticipated public sale, on October 16, 1989, a neighbor to the Hynes School property filed suit to enjoin the sale, arguing that the sale should be postponed pending the election of new school board members. (Spatz v. Board of Education, No. 89—CH—9249 (hereinafter Spatz).) On October 18, 1989, the trial court entered a temporary restraining order that precluded the Board from accepting bids on the scheduled date of public sale, which was set for the following day, i.e., October 19. The Board informed those who had requested bid packages, including defendant Katz, that the public sale would not be held on the set date because of the temporary restraining order. The Board also posted public notice that it would hold an executive meeting at 1 p.m. on October 20 to determine whether the date of public sale of the Hynes School property should be rescheduled to a particular date and time.

On the morning of October 20, 1989, the trial court dissolved the temporary restraining order in the Spatz case that had prohibited the Board’s holding of a public sale of the Hynes School property. In the afternoon, the Board met in executive session to determine whether the public sale of the Hynes School property should be rescheduled. At the end of its executive session, the Board voted to receive bids at 1 p.m. on October 23, 1989. The Board also voted to accept a bid and execute a contract of sale on October 26, 1989, the date originally set in the published notice of sale. The Board posted public notice at its offices indicating that this vote had been reached at its executive session. The Board also notified persons who had requested bid packages, as well as those who had appeared for the original public sale on October 19, that the date of public sale had been rescheduled to October 23. The Board did not publish notices in local newspapers regarding the rescheduled date of the public sale.

On the date and time of the rescheduled public sale of the Hynes School property, defendant Katz appeared and submitted a bid for the minimum amount stated in the notice of sale, i.e., $2 million. No other person or entity appeared to submit a bid for the property. At a duly convened meeting on October 24, 1989, the trustees adopted a resolution approving the Board “as designee for the purpose of the sale of the Hynes School.” A day later, a neighbor of the school, Margaret Sikorski, filed a declaratory judgment action seeking to enjoin the sale on the ground that the Board had violated the Open Meetings Act and the School Code. (Sikorski v. Niles Township Trustees of Schools, No. 89—CH—09605 (hereinafter Sikorski).) This suit was consolidated with the earlier action, Spatz, which remained pending in the circuit court.

On October 26, 1989, i.e., the date designated in the original notice of sale, the Board accepted the Katz bid and signed the real estate contract with Katz for sale of the Hynes School property. Katz deposited with the Board the $400,000 earnest money required by the contract, and complied with the contract’s requirement that Katz initiate proceedings to have the Hynes School property rezoned for multifamily residential use.

An election of new Board members was held in November 1989, and four new members were elected to the seven-person Board. The new Board, a majority of which apparently disfavored sale of the Hynes School property, filed suit against Katz for a declaratory judgment that the prior Board’s actions with respect to the public sale of the Hynes School property violated the Open Meetings Act and the School Code. The Board’s suit was consolidated with the Sikorski and Spatz litigation. Thereafter, the parties filed cross-motions for summary judgment with respect to the Board’s declaratory judgment action.

The trial court determined that the Board violated the Open Meetings Act (Ill. Rev. Stat. 1989, ch. 102, par. 42(c)) when the Board held an executive session, rather than a public session, to determine that the public sale date should be rescheduled to a particular date. The trial court also determined that the Board violated the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 5—22) when the Board failed to publish additional public notice in local newspapers to indicate that the public sale had been continued to a later date. On these bases, the trial court declared the contract between the Board and Katz void ab initio and unenforceable. Katz appeals from this ruling.

We consider first whether the record shows, as a matter of law (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005; Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867 (standard for summary judgment)), that the Board violated the Open Meetings Act on October 20, 1989, when it held an executive session, rather than a public session, to choose a new date for public sale of the Hynes School property. We note that there is no dispute that the Board’s meeting was an executive session, i.e., one closed to the public.

The parties’ disagreement focuses on whether this closed session was governed by certain provisions of the Open Meetings Act. Specifically, the Board and Katz disagree with respect to whether the Board’s executive meeting pertained to the selling price of the Hynes School property. The parties also dispute whether the executive session was held to discuss the impact of the Spatz litigation upon the intended sale of the Hynes School property.

The Open Meetings Act states in pertinent part that “[a]ll meetings of public bodies shall be public meetings except for *** (c) meetings where the *** selling price of real estate is being considered by the school board of a public school district, [or] *** (h) meetings held to discuss litigation when an action against, affecting, or on behalf of the particular body has been filed and is pending in a court.” Ill. Rev. Stat. 1989, ch. 102, pars. 42(c), (h).

We cannot say, as a matter of law, that the Board’s October 20, 1989, executive session meeting came within the provisions of the Open Meetings Act that exempt sessions held to discuss either the sale price of real property or litigation pending against the Board. The minutes of the Board’s meeting, the contents of which were the subject of a stipulation between the parties, simply state that the Board voted to move into executive session “to discuss the sale of the School.” The Board then voted to hold “a public auction *** on Monday, October 23, 1989, for the purpose of selling Hynes Elementary School.” There is nothing in the record to show that the executive meeting related to the selling price of the Hynes School property, as required by subsection (c) (Ill. Rev. Stat. 1989, ch. 102, par. 42(c)) as quoted above. Consequently, this subsection did not justify the Board’s holding of an executive session on October 20, 1989.

The record also does not demonstrate that the Board’s executive meeting was designed to discuss the pending Spatz litigation against the Board, as required in subsection (h) (Ill. Rev. Stat. 1989, ch. 102, par. 42(h)) above. Katz asserts that the Board could have discussed any matter, such as the Spatz litigation, that was germane to the Board’s intended topic of discussion regarding whether to reschedule the date of public sale of the Hynes School property. (See Argo High School Council of Local 571 v. Argo Community High School District 217 (1987), 163 Ill. App. 3d 578, 516 N.E.2d 834.) On this basis, Katz argues that we should infer, from the circumstances surrounding the Board’s executive meeting, that the Board probably discussed the Spatz litigation during its executive session.

However, the record does not disclose that the Board actually discussed the Spatz litigation, and we decline to speculate on whether the Board did, in fact, discuss this matter during its executive meeting. We note that Katz could have requested that the trial court “examine in camera any portion of the minutes of a meeting at which a violation of the Act is alleged to have occurred,” or that Katz could have asked that the trial court “take such additional evidence as it deems necessary,” in order to prove Katz’ allegation regarding the scope of the Board’s executive session. (Ill. Rev. Stat. 1989, ch. 102, par. 43(b).) Katz did not pursue either of these alternatives to provide factual support for his position that the Board discussed the Spatz litigation during its executive meeting on October 20, 1989. Under these circumstances, we find insufficient ground to disturb the trial court’s determination that the Board’s holding of an executive session on October 20, 1989, violated the Open Meetings Act.

However, we further determine that the Board’s violation of the Open Meetings Act was inadequate basis to render the sales contract between the parties void ab initio and unenforceable, since the Board’s decision to reschedule public sale of the Hynes School property was ratified in subsequent public meetings of the Board.

The Open Meetings Act states that the trial court, when confronted with a violation of the Open Meetings Act, may choose from a variety of remedies, including a mandamus that meetings be open, an injunction against future violations of the Act, an order that meeting minutes be made public, or a declaration that voids final action taken at a closed meeting in violation of the Act. (Ill. Rev. Stat. 1989, ch. 102, par. 43(c).) Thus, the trial court is not required to declare a final action null and void, but is permitted to choose an “appropriate” remedy that satisfies “orderly administration and the public interest, as well as for the interests of the parties.” (Ill. Rev. Stat. 1989, ch. 102, par. 43(c); see, e.g., Williamson v. Doyle (1983), 112 Ill. App. 3d 293, 445 N.E.2d 385; Betts v. Department of Registration & Education (1981), 103 Ill. App. 3d 654, 431 N.E.2d 1112.) Moreover, it has been held improper to declare a public body’s decision null and void when its initial decision, although reached during an improper executive session, has been subsequently ratified by additional public meetings. See, e.g., Argo High School Council of Local 571 v. Argo Community High School District 217 (1987), 163 Ill. App. 3d 578, 516 N.E.2d 834; Lindsey v. Board of Education (1984), 127 Ill. App. 3d 413, 468 N.E.2d 1019; Collinsville Community Unit School District No. 10 v. Witte (1972), 5 Ill. App. 3d 600, 283 N.E.2d 718.

Based upon this precedent, we conclude that the Board’s subsequent actions, taken during public meetings, ratified and cured the Board’s previous decision during executive session to reschedule the date for public sale of the Hynes School property. According to the record, after the Board’s closed session, the Board held public meetings to: (1) receive bids for purchase of the property; (2) determine which bid, if any, to accept for sale of the property; and (3) decide if it should enter into a contract for sale of the property to the chosen bidder. In light of these circumstances, the Board’s earlier violation of the Open Meetings Act was cured and ratified by its subsequent public meetings, each of which provided the public with a forum to air their views with respect to sale of the Hynes School property. As a result, the trial court erred when it declared the parties’ sale contract null and void because of the Board’s violation of the Open Meetings Act. See Collinsville Community Unit School District No. 10 v. Witte (1972), 5 Ill. App. 3d 600, 283 N.E.2d 718; see also Bethune v. Larson (1989), 188 Ill. App. 3d 163, 544 N.E.2d 49.

We further determine that the Board’s failure to publish additional public notice in local newspapers regarding the rescheduled date of public sale of the Hynes School property did not violate the School Code. The Code states in relevant part that the trustees “shall *** sell the property at public sale, by auction or sealed bids, after first giving notice of the time, place, and terms thereof by notice published once each week for 3 successive weeks prior to the date of the sale *** in a newspaper published in the district.” Ill. Rev. Stat. 1989, ch. 122, par. 5—22.

The School Code does not explicitly anticipate the type of factual pattern presented in the instant cause, where a Board must reschedule its public sale because of the entry of a temporary restraining order that prohibits the public sale on the date originally scheduled. Because of this lack of specific reference to circumstances such as those presented in the case at bar, the Board contends that section 5 — 22 of the Code quoted above, regarding publication of public sale of school property, is mandatory and recognizes no exception to its publication requirements.

We cannot accept the Board’s argument that section 5—22 admits to no exceptions in its publication requirements. In addition to the rules regarding publication cited by the Board, section 5—22 also provides that if “a reasonable minimum selling price *** is not met or if no bids are received,” the Board may renew its efforts to sell the property, and “may raise the minimum selling price without repeating the public sale procedures.” (Ill. Rev. Stat. 1989, ch. 122, par. 5—22.) Similarly, the Board is permitted to take further steps to sell the property, without repeating the public sale procedures of this provision of the Act, where the original selling price is left unaltered. Harrisburg Community Unit School District No. 8 v. Steapleton (1990), 195 Ill. App. 3d 1020, 553 N.E.2d 76.

We find that the failure of section 5—22 to explicitly provide for the instant factual pattern created an ambiguity regarding the proper method of public notice once the Board’s original, properly published notice of public sale was temporarily enjoined by the circuit court because of the filing of the Spatz litigation. When a statute is ambiguous, its terms must be interpreted according to the purposes of the legislation and the evils sought to be remedied. (See, e.g., American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 537 N.E.2d 284.) Particularly where public notice of official action is concerned, the ultimate inquiry is whether all interested parties are adequately informed of the actions taken by the public body. See Jacobson v. Village of Wilmette (1949), 403 Ill. 250, 85 N.E.2d 753; City of Carbondale v. Walker (1909), 240 Ill. 18, 88 N.E. 296.

The parties do not dispute that the Board’s original notice of public sale was properly published under section 5—22 of the School Code. The record demonstrates that all parties who expressed an interest in the original public sale were promptly and fully notified of the rescheduled date for sale of the Hynes School property. The record also indicates that public notice of the rescheduled date of sale was plainly posted by the Board for public viewing. Moreover, the necessity for rescheduling the date of public sale was created by litigation that was not instituted by the Board, and the new date chosen by the Board was only three days after the initially scheduled date. Given all of these circumstance, we cannot say that the Board’s actions in the instant cause violated the publication requirements of section 5 — 22 of the School Code.

The cases cited by the Board are inapposite to the instant cause, as they pertain to judicial sales of foreclosed property, which are not governed by the School Code and are specifically regulated by particular procedures that must be followed when a judicial sale is rescheduled. (See City of Chicago v. Central National Bank (1985), 134 Ill. App. 3d 22, 479 N.E.2d 1040; First Federal Savings & Loan Association v. Chapman (1983), 116 Ill. App. 3d 950, 452 N.E.2d 660.) Similarly, the reported decisions cited by the Board regarding a candidate’s failure to comply with mandatory provisions of the Election Code are factually inapposite. See Serwinski v. Board of Election Commissioners (1987), 156 Ill. App. 3d 257, 509 N.E.2d 509; Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292.

Moreover, assuming arguendo that the Board’s failure to publish the rescheduled date of sale violated the School Code, we conclude that the Board is estopped from asserting its own violation as ground to render the parties’ sale contract null and void ab initio. As Katz asserts, the Board cannot set up its own violation of the School Code in order to retain the Hynes School property and render void ab initio the contract between the parties. See, e.g., DeKam v. City of Streator (1925), 316 Ill. 123, 146 N.E. 550; A.S. Schulman Electric Co. v. Village of Fox Lake (1983), 115 Ill. App. 3d 746, 450 N.E.2d 1356.

Branigar v. Village of Riverdale (1947), 396 Ill. 534, 72 N.E.2d 201, illustrates this point. In that case, the Village of Riverdale entered into a contract with a private company, Branigar, whereby the village would pay to Branigar a percentage of the village’s water revenues in exchange for Branigar’s construction of a water supply system for certain residences to be built in the village. After the system was constructed and became operational, the village refused to pay Branigar pursuant to the parties’ contract. The village claimed that the agreement was void because the village had failed to publish notice of the contract to its residents. The Illinois Supreme Court rejected the village’s argument, reasoning that where “contracts are irregularly made, and the city accepts the benefits of the contracts, it is estopped from setting up or relying on its own irregularity to defeat recovery. [Citation.]” (396 Ill. at 546.) The court noted that Branigar had “acted in good faith and parted with value for its benefit,” and that the village’s defense pertained to “mere irregularities in the exercise of power conferred [regarding] *** failure to make publication” of the contract. (396 Ill. at 546.) The court observed that “to permit a city *** to say that it neglected publication [under these circumstances] *** would be a fraud which the law ought not to permit.” 396 Ill. at 546.

Similar to the argument made by the village in Branigar, the Board in the instant cause has attempted to set up its own failure to publish adequate notice of sale of the Hynes School property as ground to void its contract with Katz. Katz, like the private contractor in Branigar, has parted with value in reliance on his agreement with the Board, by depositing $400,000 earnest money with the Board and by instituting proceedings to have the property rezoned for multifamily residential use. In accordance with the Illinois Supreme Court’s decision in Branigar, we conclude that, assuming arguendo the Board’s actions violated the School Code, the Board is estopped from asserting its violation of the School Code as ground to render void its contract with Katz.

The Board also argues that its contract with Katz is void, because the trustees lacked the legal authority to delegate to the Board the power to execute the contract selling the Hynes School property to Katz. To support this position, the Board cites exclusively to the language of section 5—22 which states that “trustees of schools *** shall *** sell the property.” (Ill. Rev. Stat. 1989, ch. 122, par. 5—22.) The Board refers to no further legal authority to support its claim on this issue.

With respect to the duties of the trustees and the School Board in the sale of school property, section 5 — 22 states in pertinent part as follows:

“When in the opinion of the school board, a school site *** has become unnecessary or unsuitable or inconvenient for a school, or unnecessary for the uses of the district, the school board *** may direct that said property be sold ***. The school board shall forthwith notify the trustees of schools *** of the terms upon which they desire the property to be sold. *** [T]he trustees of schools *** shall, within 60 days after receiving such notice, sell the property at public sale ***. ***
* * *
*** The board may accept a written offer equal to or greater than the established minimum selling price for the described property. ***
The deed of conveyance shall be executed by the president and clerk or secretary ***.” Ill. Rev. Stat. 1989, ch. 122, par. 5-22.

Initially we note that there is nothing in this provision that explicitly directs whether the contract for sale of school property shall be executed by the trustees or the School Board. Because the trustees are deemed the legal title owners to school property (Ill. Rev. Stat. 1989, ch. 122, par. 5—21), it has been held that the School Board does not possess the inherent authority to sell or lease school property to a third party. (Carter Oil Co. v. Liggett (1939), 371 Ill. 482, 21 N.E.2d 569.) However, it has also been recognized that a municipal corporation or body politic may, at least as a general rule, delegate a purely ministerial function to its subordinate. (See 63 C.J.S. Municipal Corporations §962, at 514 (Supp. 1950 & 1990).) The trustees in the case at bar are deemed a body politic. (Ill. Rev. Stat. 1989, ch. 122, par. 5—2.) Although the trustees hold legal title to school property, the statute designates the Board as the entity which must accept or reject any bids for purchase of school property. Thus, the trustees perform the nondiscretionary task of executing the sales contract pursuant to the directions of the Board. In the case at bar, the trustees simply delegated to the Board the ministerial function of executing the sales contract with Katz. The Board asserts no harm or prejudice to school interests because of this delegation of ministerial power. On this record, we find the Board’s argument insufficient ground to affirm the trial court’s ruling.

For the reasons stated, the judgment of the circuit court of Cook County is reversed, and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE MURRAY

text:
    JOVAN MEMEDOVIC, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant (Cook County Hospital, Lienholder-Appellee).
    First District (5th Division)
    No. 1—90—0776
    Opinion filed May 31, 1991.

      Grace E. Wein, of Malek & Wein, P.C., of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Joan S. Cherry, Donald M. Devlin, and Dennis M. McGuire, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Cook County Hospital (the hospital) asserted a lien against certain proceeds awarded to plaintiff, Jovan Memedovic, in a personal injury action. The circuit court of Cook County entered judgment in favor of the hospital for the full amount of the lien ($24,840). Plaintiff appeals.

Plaintiff was injured in a motor vehicle accident with a bus owned and operated by the Chicago Transit Authority on February 17, 1983. Plaintiff received medical treatment at the hospital and incurred a bill for hospital services in the amount of $24,840. Plaintiff then filed a personal injury action against the Chicago Transit Authority. Following a jury trial in the circuit court, plaintiff was awarded $78,750, an amount which was reduced from a finding of $225,000 in damages based upon a jury finding that plaintiff’s comparative negligence was 65%. Prior to distribution of the proceeds, the hospital filed a lien on December 6, 1989, to recover the amount of its services. The trial court entered an order enforcing the lien in the amount of $24,840 to be paid immediately.

Plaintiff raises these issues on appeal: (1) the hospital’s lien is unenforceable because the claim was filed more than five years after the services had been rendered and (2) the hospital lien should be reduced by the amount of plaintiff’s comparative negligence in the underlying cause of action.

We affirm.

Under the Hospital Lien Act (Ill. Rev. Stat. 1987, ch. 82, par. 97 et seq.) the plaintiff is a debtor obligated to pay for the services rendered by the hospital out of any resources which might become available to him. (In re Estate of Wade (1987), 156 Ill. App. 3d 844, 510 N.E.2d 99; Maynard v. Parker (1979), 75 Ill. 2d 73, 387 N.E.2d 298.) Plaintiff received a monetary award following a jury verdict in a personal injury action. That jury award included damages for plaintiff’s medical bills.

Disallowance of the hospital’s lien would result in a double recovery or an unjust enrichment to plaintiff. It would be unconscionable to permit plaintiff to receive free medical care and then allow him to recover damages for medical services from the tortfeasor and pocket the windfall. (Gordon v. Forsyth County Hospital Authority, Inc. (M.D.N.C. 1975), 409 F. Supp. 708, modified (4th Cir. 1976), 544 F.2d 748; In re Estate of Wade (1987), 156 Ill. App. 3d 844, 510 N.E.2d 99.) Under the facts of this case, plaintiff should be required to pay the hospital for services rendered out of the proceeds of the jury verdict. Now that the plaintiff is solvent, the hospital has a right to assert its lien.

Under the Hospital Lien Act, when a hospital attaches a lien upon an accident victim’s recovery, it fashions for itself a type of property interest in any assets constituting the recovery, because a lien is a property interest. The lien is a legal claim upon the property recovered as security for payment of the debt. Only when a recovery is made can the lien come into existence, because absent a provision to the contrary, a lien is created only when there is property on hand to which it may attach. (In re Estate of Cooper (1988), 125 Ill. 2d 363, 532 N.E.2d 236.) Under the Hospital Lien Act, the lien is created only when the injured person has a “sum paid or due” him. (Ill. Rev. Stat. 1987, ch. 82, par. 97; In re Estate of Cooper (1988), 125 Ill. 2d 363, 532 N.E.2d 236.) Therefore, the hospital lien was created when the jury awarded monetary damages to plaintiff. Accordingly, we reject plaintiffs argument regarding the five-year statute of limitations period.

According to the Hospital Lien Act, a hospital lien does not attach until notice of the lien is served. In this case, notice was served prior to the disbursement of the proceeds. While no time limit is set forth in the statute for perfecting the lien, the only requirement is that the notice be served before the proceeds have been distributed. (In re Estate of Phillips (1987), 163 Ill. App. 3d 935, 517 N.E.2d 30; Illini Hospital v. Bates (1985), 135 Ill. App. 3d 732, 482 N.E.2d 235.) The lien was filed by the hospital before the proceeds were distributed; therefore, the trial court was entitled to consider enforcement of the lien.

Once the hospital lien is established under the Hospital Lien Act, the trial court has no discretion to reduce the amount of the lien so long as the total amount of liens filed is not in excess of one-third of the award. (In re Estate of Wade (1987), 156 Ill. App. 3d 844, 510 N.E.2d 99.) The lien was not in excess of one-third of the award; therefore, the trial court was not authorized to disallow or reduce the amount of the hospital’s lien.

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

Judgment affirmed.

GORDON and McNULTY, JJ., concur.