author: JUSTICE RARICK

text:
    ZION-BENTON TOWNSHIP HIGH SCHOOL DISTRICT 126, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Gilbert Andrade, Appellee).
    Second District (Industrial Commission Division)
    No. 2 — 92—0369WC
    Opinion filed March 2, 1993.

      Arthur S. Bresnahan, of Bresnahan & Garvey, of Chicago, for appellant.
    Salvatore J. Bongiorno, of Krol, Bongiorno & Given, Ltd., and Martin T. Spiegel, of Modesto, Reynolds & McDermott, both of Chicago, for appellees.
   JUSTICE RARICK

delivered the opinion of the court:

As is true for all workers’ compensation cases, the ultimate issue here is whether the claimant, Gilbert Andrade, is entitled to compensation under the Workers’ Compensation Act (the Act) (111. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.). What is unique about this case is that employer, Zion-Benton Township High School District 126 (Zion-Benton), is represented by two different law firms from two different insurance carriers. Consequently, this case in reality involves an argument between the two carriers as to which one is liable for compensation payments to claimant after July 2, 1984. There is, in fact, no real question that claimant is not entitled to compensation from employer for his injuries.

Andrade, a high school graduate, began working for Zion-Benton as a maintenance man and in-house mail carrier in 1979. As a maintenance man, Andrade’s duties included moving furniture, repairing machinery, unloading trucks and shoveling snow. On March 21, 1983, Andrade, then age 36, noticed a pain in his back while shoveling snow for Zion-Benton. He continued shoveling for two more hours until the pain became too great. He notified his supervisor of his condition and went home. Two days later Andrade saw his family physician, Dr. Chin Tsai, who initially prescribed bed rest and pain medication for Andrade’s condition. On March 31, however, An-drade was admitted to the hospital complaining of severe low back pain radiating to both lower extremities. He also complained of neck pain and occipital headaches. At the hospital, he was treated by Dr. Tsai and Dr. Galo Tan who both diagnosed Andrade as suffering from cervical and lumbosacral radiculopathy and post laminectomy syndrome. X rays of the cervical and lumbar spine exhibited some degenerative changes, while an EMG revealed nerve root irritation at L4-5 and L5. After an epidural nerve block was administered, Andrade was released on April 23, 1983. On April 25, however, An-drade was readmitted to the hospital for severe low back pain with radiation to the left leg. Although Andrade was released on May 7, he was readmitted June 29 to July 23 and August 5 to August 18 for the same problem. The diagnosis of acute L4-5 radiculopathy was made at each admission, and conservative care was provided throughout his stays. A second epidural nerve block was administered on July 7. While a cervical myelogram taken in July was normal, a lumbar myelogram indicated an L4-5 extradural defect on the left. On August 18, 1983, Andrade was admitted to a different hospital under the care of Dr. Ronald Pawl and later released on August 27, still under Dr. Pawl’s care, to attend the Pain Treatment Center. Andrade remained at the Center as an inpatient until October 19, 1983, when he was released to return to work. At this point, Andrade returned to his regular duties at Zion-Benton but had the assistance of several other people for heavier jobs. Andrade continued to see Drs. Tsai and Tan for medications on a regular basis after returning to work. At some point in time, Andrade found himself unloading truckloads of boxes weighing up to 72 pounds and 55-gallon drums of maintenance supplies on a regular basis. An-drade’s condition progressively worsened, and on July 2, 1984, An-drade left work because he “couldn’t handle it anymore.” He was immediately hospitalized until July 10 with a diagnosis of post lami-nectomy low back pain, spondylosis of the lumbosacral spine and mild hypertension. Conservative treatment again was provided. An-drade was hospitalized yet another time on August 12 for recurrent lumbar radiculopathy, herniated disc and spondylosis. A lumbar CT scan on August 13 exhibited a slight narrowing of the L4-5 left fora-men due to left facet hypertrophy but revealed no herniation. A fusion at L5-S1 with a left iliac bone graft was performed on September 7, 1984. Andrade was eventually discharged on September 28. He was rehospitalized some 13 times between September 28, 1984, and his first hearing on his claims for compensation. Each time the diagnosis was recurrent lumbosacral radiculopathy. By September 1985, Andrade also had developed bilateral carpal tunnel syndrome and chronic pain syndrome. Carpal tunnel releases were performed in August and November 1986. Nerve blocks were also administered in November 1985 and 1986. By January 1987, Andrade was further diagnosed with severe depression necessitating psychological counseling. While the doctors noted some improvement in Andrade’s condition for varying periods over the years, they concluded his rehabilitative potential for return to work was minimal. Several of the doctors opined Andrade was totally and permanently disabled. An-drade has never been released from a doctor’s care since July 2, 1984.

Andrade filed two applications for adjustment of claim pursuant to the Workers’ Compensation Act. The first claim alleged injuries stemming from March 21, 1983. The second claim alleged an accident date of July 2, 1984. Both claims were consolidated for trial. With respect to the first claim, the arbitrator awarded Andrade 30% weeks of temporary total disability and found that Andrade was permanently and partially disabled to the extent of 10% of a man as a whole as the injuries sustained aggravated and worsened a preexisting back condition from the 1970s. With respect to the second claim, the arbitrator determined Andrade sustained a repetitive trauma injury, leaving him permanently and totally disabled for life, and was entitled to receive $89,092 in unpaid medical expenses. An-drade was ordered, however, to repay medical expenses and disability payments made by INA Insurance Company (INA) after July 2, 1984, because Zion-Benton had changed insurance carriers for the year 1984. Both Andrade and counsel for Zion-Benton with respect to the second claim (Bresnahan & Garvey) filed petitions for review with the Industrial Commission. The Commission affirmed the arbitrator’s decision for both claims but eliminated the requirement that Andrade reimburse INA. Bresnahan & Garvey then appealed the Commission’s decision claiming, in essence, that Andrade did not sustain an accidental injury of a repetitive nature on July 2, 1984. The circuit court of Lake County confirmed the Commission’s decision in total. Bresnahan & Garvey now appeal to this court. Both Andrade and counsel for Zion-Benton with respect to the first claim (Modesto, Reynolds & McDermott) filed briefs in defense of the Commission’s decision. In response, Bresnahan & Garvey filed a motion to strike the brief of Modesto. We initially granted the motion but later reinstated Modesto’s brief. The motion has now been taken with the case.

Bresnahan & Garvey raise many issues on appeal with respect to the Commission’s decision as affirmed by the circuit court pertaining to Andrade’s second claim for benefits. No one disputes the fact Andrade was injured on March 21, 1983. The question is whether Andrade sustained an accidental injury of a repetitive nature on July 2, 1984, or whether Andrade’s condition of ill-being in reality stems from the March 1983 accident. The Commission determined a separate accident breaking the first chain of causal connection occurred on July 2, 1984. Bresnahan & Garvey assert on appeal that Andrade did not sustain an accidental injury of a repetitive nature on July 2, 1984. Bresnahan & Garvey also argue on appeal that Andrade failed to give Zion-Benton timely notice of the July 2, 1984, accident, that Andrade’s second application for adjustment of claim is barred by the statute of limitations, and that Andrade is not permanently and totally disabled as a result of his employment on July 2,1984.

We begin our analysis by noting it is the province of the Commission to resolve disputed questions of fact, including those of causal connection, to draw permissible inferences, and to judge the credibility of the witnesses. (E.g., Interlake, Inc. v. Industrial Comm’n (1981), 86 Ill. 2d 168, 175, 427 N.E.2d 103, 107; Service Adhesive Co. v. Industrial Comm’n (1992), 226 Ill. App. 3d 356, 366, 589 N.E.2d 766, 772.) We cannot reject or disregard permissible inferences drawn by the Commission simply because different or conflicting inferences might also reasonably be drawn from the same facts, nor can we substitute our judgment for that of the Commission on such matters unless its findings are contrary to the manifest weight of the evidence. (E.g., Health & Hospitals Governing Comm’n v. Industrial Comm’n (1975), 62 Ill. 2d 28, 32, 338 N.E.2d 402, 404; General Electric Co. v. Industrial Comm’n (1984), 129 Ill. App. 3d 352, 359, 472 N.E.2d 486, 490.) Consequently, we cannot say the Commission’s decision is against the manifest weight of the evidence in this instance.

Gradual injury stemming from repeated trauma clearly is compensable under the Workers’ Compensation Act as long as the employee proves the injury is work-related and not the result of normal degenerative processes. (See Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 505 N.E.2d 1026; Three “D” Discount Store v. Industrial Comm’n (1989), 198 Ill. App. 3d 43, 556 N.E.2d 261.) He need not show any external violence to the body to prove an accidental injury, for compensation may be allowed whenever an employee’s existing physical structure, whatever it may be, gives way under the stress of his usual labor. (General Electric Co., 129 Ill. App. 3d at 359, 472 N.E.2d at 491.) The employee need only identify the date on which the injury manifested itself. (Darling v. Industrial Comm’n (1988), 176 Ill. App. 3d 186, 191, 530 N.E.2d 1135, 1139.) “Manifests itself” signifies the date on which both the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become plainly apparent to a reasonable person. (Belwood Nursing Home, 115 Ill. 2d at 531, 505 N.E.2d at 1029.) This does not mean, however, necessarily the date the employee became aware of the physical condition and its clear relationship to his employment. (See Oscar Mayer & Co. v. Industrial Comm’n (1988), 176 Ill. App. 3d 607, 610, 531 N.E.2d 174, 176.) A date based purely on discovery would penalize those employees who continue to work without significant medical complications when the eventual breakdown of the physical structure occurs beyond the statute of limitations period. (176 Ill. App. 3d at 611, 531 N.E.2d at 176.) Consequently, where the employee continues to work until the day his structure collapses or surgery is required, that can reasonably be considered by the Commission to be the date of accident in certain instances. (176 Ill. App. 3d at 611, 531 N.E.2d at 177.) Here, Andrade returned to work in October 1983 after his first accident and continued to carry out his responsibilities until July 2, 1984, when he no longer could handle the pain of repeated acts of heavy lifting involved in unloading truckloads of boxes weighing up to 72 pounds and 55-gallon drums of maintenance supplies. Although Andrade continued to see his doctors for medications during this period, he was able to perform his job. It was the repeated stress of unloading the trucks which eventually caused Andrade’s condition to worsen to the point of the breakdown of his physical structure. A causal connection between an accident and a claimant’s condition may be established by a chain of events including the employee’s ability to perform manual duties prior to the date of an “accident” and a decreased ability to perform them immediately following that date. (See Pulliam Masonry v. Industrial Comm’n (1979), 77 Ill. 2d 469, 471, 397 N.E.2d 834, 835; Darling, 176 Ill. App. 3d at 193, 530 N.E.2d at 1140.) Moreover, a claimant need not negate every possible cause of injury or every unfavorable inference. (Health & Hospitals Governing Comm’n, 62 Ill. 2d at 33, 338 N.E.2d at 404-05; Darling, 176 Ill. App. 3d at 194, 530 N.E.2d at 1141.) Given such circumstances, the Commission’s determination that a separate accident, breaking the first chain of causal connection, occurred on July 2, 1984, the last day Andrade was able to work,, is not against the manifest weight of the evidence.

We also cannot say the Commission’s determination that Zion-Benton received adequate and timely notice of Andrade’s second injury is against the manifest weight of the evidence. Section 6(c) of the Workers’ Compensation Act states in part:

“Notice of the accident shall be given to the employer as soon as practicable, but not later than 45 days after the accident.
* * *
No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings on arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy.” (111. Rev. Stat. 1983, ch. 48, par. 138.6(c).)

Zion-Benton received notice of Andrade’s condition of ill-being shortly after he left work on July 2, 1984. Within a matter of days, Andrade contacted his supervisor to inform him of his condition. His supervisor told him not to come back to work until he was “a hundred percent.” Temporary disability payments were resumed effective July 2, 1984. While Andrade did not mention the possibility of a second “accident,” an employer has the burden of proving undue prejudice from a defective or inaccurate notice. This Zion-Benton did not do. Zion-Benton had as much information as Andrade did at that point in time. (See McLean Trucking Co. v. Industrial Comm’n (1978), 72 Ill. 2d 350, 354-55, 381 N.E.2d 245, 247.) Additionally, because the date of Andrade’s accident was determined correctly to be July 2, 1984, his filing of an application for adjustment of claim on June 26, 1987, was within the three-year limitations period for filing workers’ compensation claims. We therefore find no merit to Bresnahan & Garvey’s contentions with respect to the issues of notice or timeliness.

The final issue Bresnahan & Garvey urge on appeal pertains to the Commission’s finding of total permanent disability. Bresnahan & Garvey argue Andrade did not meet his burden in proving he was unable to return to gainful employment as he presented no evidence of attempts to find work since July 2, 1984. The determination of the extent and permanency of an employee’s medical disability is a question of fact for the Commission, and its determination will not be set aside unless it is against the manifest weight of the evidence. (E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353, 361, 376 N.E.2d 206, 209; Glover v. Industrial Comm’n (1985), 140 Ill. App. 3d 361, 365-66, 485 N.E.2d 605, 608.) An employee does not have to be reduced to a state of total physical and mental incapacity before total permanent disability compensation can be awarded. Workers’ compensation benefits are designed to compensate the employee for the impaired earning capacity resulting from his disability, not necessarily for the disability itself. (E.R. Moore Co., 71 Ill. 2d at 360, 376 N.E.2d at 209.) A person is totally disabled under the Act when he cannot perform any services except those for which no reasonably stable labor market exists. (Interlake, 86 Ill. 2d at 176, 427 N.E.2d at 107; A.M.T.C. of Illinois, Inc. v. Industrial Comm’n (1979), 77 Ill. 2d 482, 487, 397 N.E.2d 804, 806.) Here, Andrade sustained a herniated disc and underwent numerous hospitalizations and medical treatments including spinal fusion, nerve blocks, carpal tunnel releases and eventually psychological counseling. He continues to suffer from intense low back pain, radiating pain down both legs, neck pain and headaches. All doctors who treated Andrade or reviewed his medical records opined there was little hope of his ever returning to any type of gainful employment. Zion-Benton introduced no medical evidence to the contrary. Once Andrade established he was not employable, the burden shifted to Zion-Benton to come forward with evidence to show not only that Andrade was capable of engaging in some type of regular and continuous employment but also that such employment was reasonably available. (E.R. Moore Co., 71 Ill. 2d at 362, 376 N.E.2d at 210; Chicago Rotoprint v. Industrial Comm’n (1987), 157 Ill. App. 3d 996, 1003-04, 509 N.E.2d 1330, 1336.) Zion-Benton presented no such evidence. Clearly the Commission’s decision with respect to Andrade’s total permanent disability is not against the manifest weight of the evidence.

Finally, we deny Bresnahan & Garvey’s motion taken with the case. Because INA was served with a notice of appeal and ultimately could have been affected by the outcome of Bresnahan & Garvey’s appeal had we reversed the Commission’s decision with respect to the issue of a second accident, its brief, as presented by Modesto, Reynolds & McDermott, is relevant to this appeal.

For the aforementioned reasons, the decision of the circuit court of Lake County confirming the decision of the Industrial Commission is affirmed in its entirety.

Affirmed.

McCULLOUGH, P.J., and WOODWARD, STOUDER and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE QUETSCH

license: Public Domain

text:
    GZIME MENOSKI, a Minor, by Neim Menoski et al., Her Parents and Next Friends, Plaintiffs-Appellees, v. S.K. SHIH et al., Defendants (Michael F. Henrick, Contemnor-Appellant).
    Second District
    No. 2 — 92—0264
    Opinion filed February 24, 1993.
    Rehearing denied April 14, 1993.

      D. Kendall Griffith and Nancy G. Lischer, both of Hinshaw & Culbertson, of Chicago, for appellant.
    Patrick A. Salvi and Megan E. Chadwick, both of Law Offices of Patrick A. Salvi, of Waukegan, for appellees.
   JUSTICE QUETSCH

delivered the opinion of the court:

Plaintiff, Gzime Menoski, by her parents and next friends, Neim Menoski and Fatime Menoski, sued defendants S.K. Shih, M.D., Ltd., Shien-Keng Shih, M.D. (collectively, Shih), Victory Memorial Hospital (Victory) and Maryln Zelenz for medical malpractice. In this appeal, Victory’s attorney, Michael Henrick, appeals the circuit court’s order finding him in contempt of court for refusing to produce for an in camera inspection Victory’s complete credentials file on Dr. Shih. Contemnor contends that the file is privileged pursuant to the Medical Studies Act (Act) (111. Rev. Stat. 1991, ch. 110, par. 8 — 2101 et seq.).

Plaintiff filed a medical malpractice complaint against Shih, his corporation, Victory, and a nurse. Count II of the complaint alleged that the hospital was negligent in, inter alia, granting obstetrical privileges to Shih.

During discovery, plaintiff served defendant with a notice to produce which included a request for:

“7. A copy of all materials ever submitted by Dr. Shih or obtained by you that in whole or in part were relied upon in determining his obstetrical privileges in 1982.” (Emphasis in original.)

Victory failed to produce these documents, and plaintiff filed a motion to compel production of “all documents related to hospital privileges of Dr. Shih.”

Following a hearing on plaintiff’s motion on December 5, 1991, the court ordered production of various documents, including (1) Shih’s educational transcripts, (2) his applications for appointment to Victory’s staff and for specific privileges, (3) “materials regarding initial privileges granted to Dr. Shih and any modifications, restrictions, revocations, letters of resignation or withdrawal which preceded or were subsequent to peer-review process,” and (4) written criteria for each category of privileges granted to Shih.

In response, Victory produced Shih’s privilege card and his application for staff privileges with references deleted. Victory stated that it was not in possession of any educational transcripts. It stated that it was in possession of a letter of resignation from Shih, which was based on the cost of insurance and not peer review. The hospital objected to production of the letter on the ground of relevance, but stated that it would produce it for an in camera inspection if ordered to do so. Victory’s response also stated:

“The credentials file contains additional materials which it is the position of this defendant are protected under Ch. 110, §8 — 2101 in that they are used ‘in the course of quality control or of medical studies for the purposes of reducing mortality or morbidity or for improving patient care’ and to produce said materials, even in an in camera inspection,- is violative of Ch. 110, §8 — 2105 and would constitute ‘a Class A misdemeanor.’ ”

On January 14, 1992, the court ordered Victory to produce “the entire credentials file of Dr. Shih” for an in camera inspection. When Victory failed to do so, plaintiff filed a petition for a rule to show cause why Victory’s attorney should not be held in contempt. On February 5, the court held Henrick in contempt and fined him $1 per day until the materials were produced. Contemnor filed a timely notice of appeal.

As a preliminary matter, we address plaintiff’s contention that we have no jurisdiction to hear this appeal. Plaintiff contends that the order finding attorney Henrick in contempt was not a final order and contained no finding pursuant to Supreme Court Rule 304(a) that would make it immediately appealable. (See 134 111. 2d R. 304(a).) Plaintiff suggests that we apply Rule 304(a) to orders of contempt. It is well established, however, that a contempt order is final and appealable. (Laurent v. Brelji (1979), 74 Ill. App. 3d 214, 216; see also Flannery v. Lin (1988), 176 Ill. App. 3d 652, 655.) We decline plaintiff’s invitation to overrule this long line of precedent.

On the merits, contemnor states that the issue on appeal is whether the documents the trial court ordered produced are privileged under the Medical Studies Act. We cannot squarely address this issue, however, since the documents have never been produced even to the trial court in camera and are not contained in the record. Rather, we perceive the issue to be whether the trial court abused its discretion in ordering the documents to be produced for an in camera inspection.

Victory and contemnor claim that Shih’s credentials file is privileged and confidential pursuant to the Medical Studies Act. Section 8 — 2101 of the Act provides as follows:

“All information, interviews, reports, statements, memo-randa or other data of *** committees of licensed or accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees and Executive Committees, (but not the medical records pertaining to the patient), used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care, shall be privileged, strictly confidential and shall be used only for medical research, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges, except that in any hospital proceeding to decide upon a physician’s staff privileges, or in any judicial review thereof, the claim of confidentiality shall not be invoked to deny such physician access to or use of data upon which such a decision was based.” 111. Rev. Stat. 1991, ch. 110, par. 8-2101.

The purpose of the Act is to facilitate professional self-evaluation by members of the medical profession. It is based on the premise that absent such a privilege physicians would be reluctant to sit on peer-review committees and engage in frank evaluation of their colleagues. Jenkins v. Wu (1984), 102 Ill. 2d 468, 480.

Not every document which has some connection to a peer-review committee is subject to the privilege. (Gleason v. St. Elizabeth Medical Center (1985), 135 Ill. App. 3d 92, 95.) Documents such as applications for privileges and educational transcripts are generated prior to the peer-review process and are therefore not privileged. (Richter v. Diamond (1985), 108 Ill. 2d 265, 269; Willing v. St. Joseph Hospital (1988), 176 Ill. App. 3d 737, 743.) Similarly, the privilege does not apply to actions taken as a result of the process. (Richter, 108 Ill. 2d at 269; Gleason, 135 Ill. App. 3d at 95.) As a result, questions frequently arise concerning whether particular documents are covered by the privilege.

Contemnor contends that he has produced all discoverable material and that additional documents in Victory’s possession are privileged pursuant to the Act. He further maintains that the privilege provided by the Act is absolute, so that he need not produce the documents even for an in camera inspection. We disagree.

This court recently rejected a similar contention in Ekstrom v. Temple (1990), 197 Ill. App. 3d 120. We noted that a party claiming a privilege has the burden of establishing that the privilege applies. A party’s “mere assertion that the matter is confidential and privileged will not suffice.” (197 Ill. App. 3d at 127.) In that case, as in the instant case, the contemners merely objected that the documents were privileged. We held that they should have supported their claim of privilege either by producing the materials for an in camera inspection or by submitting affidavits setting forth facts sufficient to establish the applicability of the privilege to the particular documents. 197 Ill. App. 3d at 127.

We agree with the statement in Walker v. Alton Memorial Hospital Association (1980), 91 Ill. App. 3d 310, 313:

“It is a rule of law too elementary to require citation that the court and no one else — certainly not the parties — determines whether that which is offered into evidence is properly admissible. In order to rule upon that question, the court must have an opportunity to acquaint itself with the nature of the material offered.”

The same consideration applies to the question of whether a given document is discoverable.

The applicability of a discovery privilege is a matter of law for the court to determine, but the question of whether specific materials are part of a medical study is a factual question within that legal determination. Niven v. Siqueira (1985), 109 Ill. 2d 357, 368; Willing v. St. Joseph Hospital (1988), 176 Ill. App. 3d 737, 744.

To accept contemnor’s contention would leave the determination of whether a given document was required to be produced to the unfettered discretion of the party possessing it or its attorneys. The court would have no opportunity to review the party’s assertion of the privilege. While we do not question the good faith of the instant parties, such a rule has obvious potential for abuse.

Our conclusion is not altered by the fact that section 2105 of the Act makes the unauthorized disclosure of the privileged information a Class A misdemeanor. (111. Rev. Stat. 1991, ch. 110, .par. 8 — 2105.) In construing a statute, courts will presume that the legislature did not intend absurdity, inconvenience or injustice. (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 195.) To hold that a court could order a party to produce a document and that a branch of the same court could find that party guilty of a criminal offense for obeying that order would indeed be absurd. We hold that producing documents pursuant to a valid court order is not an unauthorized disclosure which would render the complying party guilty of a misdemeanor. The supreme court recently reviewed an order requiring the disclosure of certain documents which had been produced for an in camera inspection. (Roach v. Springfield Clinic (1992), 157 Ill. 2d 29.) While the court reversed the order denying disclosure, it did not suggest that the in camera review was improper, or that the defendant’s attorney should be charged with a crime for complying with the trial court’s order.

Contemnor cites People v. Foggy (1988), 121 Ill. 2d 337, cert. denied (1988), 486 U.S. 1047, 100 L. Ed. 2d 628, 108 S. Ct. 2044, for the proposition that he cannot be compelled to produce the documents for an in camera inspection. In Foggy, the supreme court interpreted the scope of the privilege accorded to records of counselling provided to a rape victim by a rape crisis center. (See 111. Rev. Stat. 1987, ch. 110, par. 8 — 802.1.) The court held that defendant had no constitutional right to have the court conduct an in camera inspection of such material. (Foggy, 121 Ill. 2d at 347.) The court noted that the legislature had deleted from the statute a provision which specifically called for an in camera inspection procedure (121 Ill. 2d at 348) and that the role of rape counsellors is not to investigate the occurrence (121 Ill. 2d at 348-49). The court apparently concluded that any information in the possession of the counsellors was unlikely to be relevant to the criminal prosecution of defendant. The court noted that defendant’s request for the records was merely general and did not allege that material useful to the defense was likely to be found. 121 Ill. 2d at 347.

Foggy is distinguishable from the instant case. In this case, plaintiff’s request was not merely general, but was specifically directed to material which is quite likely to be relevant to the issue of whether the hospital was negligent in granting obstetric privileges to Dr. Shih. Moreover, unlike the statute at issue in that case, the legislature has not specifically deleted an in camera review provision. Rather, we presume the legislature is aware of previous decisions such as Ekstrom requiring the submission of documents for an in camera inspection, and the legislature has not seen fit to amend the statute. Finally, we note that the documents at issue in Foggy were in the possession of a neutral third party, and there was no question that the documents were subject to the privilege. Thus, there was no potential for abuse from self-determination of the privilege by a party to the litigation.

Contemnor also cites Mennes v. South Chicago Community Hospital (1981), 100 Ill. App. 3d 1029, where the court refused to order an in camera inspection to determine whether certain requested documents were privileged. The court held that such an inspection was unnecessary because the very wording of the request to produce established “on its face” that the material sought was privileged. 100 Ill. App. 3d at 1032.

We are unable to say that the hospital’s “credentials file” on its face contains privileged material. Victory has already produced some documents, apparently from Shih’s credentials file, thus essentially conceding that some material demanded by the court’s January 14 order was not privileged.. We cannot say that the phrase “credentials file” by itself necessarily implies that all the material therein is privileged. The determination of whether a given document within the file is subject to the privilege should be made by the trial court, and not by the party in possession of the documents. Ekstrom, 197 Ill. App. 3d at 127.

Contemnor’s final contention in this regard is that his signature on the production response establishes that all matters contained therein are true and that therefore an in camera inspection is unnecessary. Rule 137 provides that an attorney’s signature on a document signifies that he has conducted a reasonable investigation of the facts and law contained therein and believes that it is well-grounded in fact. It does not establish that the facts contained therein are in fact true. (134 Ill. 2d R. 137.) To accept this argument would obviate the need for any legal proceedings whatsoever, since an attorney’s signature on a complaint would establish the truth of the matters asserted, dispensing with the need for a finder of fact.

Plaintiff requests that we review and affirm several of the trial court’s rulings requiring the production of specific documents. These rulings are contained in the court’s December 5 order, which is not before this court. Only the order of contempt, and by implication the January 14 order on which it is based, is the subject of this appeal. (See Flannery, 176 Ill. App. 3d at 655.) We have no jurisdiction to review additional interlocutory orders of the trial court. See 134 Ill. 2d R. 301.

For the foregoing reasons, the order of the circuit court holding contemnor in contempt of court is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PERRY McKINLEY, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 89—2492
    Opinion filed December 14, 1992.
    Rehearing denied March 4, 1993.
    Modified opinion filed March 8, 1993.

      Rita A. Fry, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Judith M. Pietrucha, and Daniel Fahlgren, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Perry McKinley, and codefendant Ruben Johnson were charged in an indictment with aggravated criminal sexual assault and armed robbery. Following a jury trial, defendant was found guilty of aggravated criminal sexual assault and armed robbery and sentenced to consecutive prison terms of 60 years and 30 years, respectively, for each count. Codefendant Johnson was found not guilty on both counts. On appeal, defendant contends that: (1) the State failed to prove him guilty of aggravated criminal sexual assault beyond a reasonable doubt because the complainant did not adequately identify him as her assailant; and (2) he was denied a fair trial because the prosecutor made improper comments during closing argument. For the reasons below, we affirm the judgment of the trial court.

The record discloses the following relevant facts. At trial, complainant testified that on the morning of April 3, 1988, at 5:45 a.m., she left her apartment at 4753 North Malden Avenue in Chicago to take the bus to her job at O’Hare airport. It was still dark outside when she reached the bus stop V-lz blocks away from her apartment, but the bus stop was well lit. As she stood at the bus stop, a number of people drove by and offered her rides and she declined their offers. After about 15 minutes, complainant saw defendant and Johnson go into the building across the street from where she was waiting, 4752 North Malden. Defendant then came out again, walked toward a car, and then walked across the street toward complainant. Complainant started to walk into the middle of the street toward defendant, and then went back to the bus stop and stood under the light. She was looking directly at defendant the entire time he was walking toward her.

Defendant approached complainant with his right hand under his brown leather jacket. He grabbed her right arm with his left hand and pointed a black gun held in his right hand at her chest. Defendant told her not to say or do anything. Complainant began crying and asked, “Where are you taking me?” and defendant told her to just follow him, that they were going to cross the street.

As they crossed the street, she saw Johnson pass them on the sidewalk and she looked at him because she thought he may be able to help her. However, as they approached the apartment building, Johnson pushed her up the stairs. Complainant was still crying and asked again “Where are you going to take me?” Defendant stated that they were going to the second floor. Defendant continued to point a gun to her chest as the two men led complainant to the second floor.

Once on the second floor, defendant and Johnson led complainant into a room and told her to face the wall. Johnson asked her if she had any money. As she opened her purse, defendant pointed a pen-type flashlight at the purse. She gave defendant $17 from her wallet and her $2 bus fare.

Johnson then asked complainant if she had any children. She said no, and then Johnson said, “Let’s see what else do you have.” Johnson then put his hands under her skirt and touched her vagina. Then he told her to take off her clothes. Complainant took off her clothes and one of the men pushed her onto a bed. Defendant unzipped his pants, told her to get on top of him and he put his penis in her vagina. She was able to see defendant’s face at this time because he was directly in front of her. Then Johnson told her to put his penis in her mouth, and she did so. Then the men exchanged places and continued to sexually assault complainant. When Johnson put his penis into her vagina, defendant tried to put his penis into her anus. At this time she could see Johnson’s face.

Defendant and Johnson threatened to kill complainant if she told the police what happened. Johnson slapped complainant’s face and said “don’t look at me,” as he was raping her. Complainant then asked to be blindfolded, and Johnson blindfolded her. Defendant then told her to put his penis in her mouth. The two men then exchanged places again.

Complainant cried and begged defendant and Johnson to let her go. Defendant finally said, “Yes, we are going to let you go. Don’t worry.” Defendant told her she could go, but to leave her blindfold on. When she took off the blindfold, complainant saw defendant’s back as he walked out of the door.

Complainant put on her skirt, leaving her other clothes, and ran out of the building. She ran down the street toward her apartment building and passed a group of people standing near the bus stop. She heard a man say, “Oh, baby, you running around without your clothes on.” She thought she recognized the voice as defendant’s voice, but was not sure. She arrived back at her apartment and told her fiancee and roommate, Timothy Pattison, what happened. At that time she was crying and screaming. Pattison called the police.

The police arrived and complainant described her assailants as two black men, one short and the other tall, somewhere between five feet ten and six feet. She described defendant as the taller assailant and stated that he was wearing dark pants and a brown leather jacket. She did not describe defendant as having any facial hair.

The police took complainant to Weiss Memorial Hospital. Later that day, a detective drove complainant and Pattison from the hospital back to the scene of the assault. He drove around the neighborhood for approximately 15 to 20 minutes to see if she could identify a suspect. Complainant did not recognize anyone on the street.

The following day, at approximately 1 p.m., complainant and Pat-tison met Officer McNamara at the police station and they drove around the neighborhood again. After about 14 minutes, complainant saw defendant standing on the street, talking in front of a moving van. Complainant identified defendant as the man that raped her. At that time, defendant looked into the police car, saw complainant and ran down the alley. Officer McNamara chased defendant, eventually apprehending him on the first floor of a nearby apartment building. Officer McNamara returned to the squad car with defendant in custody and complainant again identified him as the man who raped her.

On April 15, the police called complainant and asked her to come to the station to view some pictures. She viewed photographs of defendant that were black and white and were taken in 1976 or 1978 and could not identify him from the pictures. At that time, she also viewed a lineup, but did not identify Johnson from the lineup.

Chicago police officér John McNamara testified on behalf of the State that on April 3, 1988, complainant described her assailants as two black males, one approximately six feet tall weighing approximately 170 pounds and wearing a dark leather jacket. McNamara stated that complainant described the second offender as a few inches shorter and wearing a black leather jacket. When complainant spotted defendant on the street on April 4 and stated, “that’s the man that raped me,” Officer McNamara heard defendant say, “I have to get the fuck out of here,” before he turned and ran down the alley. Upon defendant’s arrest, police officers recovered a pen-type flashlight from defendant’s right front pocket.

At the time of defendant’s booking, defendant told Officer McNamara that he was five feet ten and 160 pounds. Defendant stated that he lived on the third floor at 4752 North Malden with his sister, Cynthia Hill. At the time of his arrest, defendant had a goatee-type beard and a mustache. Officer McNamara testified that at trial, defendant appeared larger and more muscular than at the time of his arrest, one year prior to trial.

Chicago police department evidence technicians Carl Brasic and Denny Veneigh testified that they found defendant’s fingerprint on a malt liquor bottle at the scene of the attack. Detective Anthony Graf-feo testified that he recovered a brown leather jacket from Cynthia Hill’s apartment.

The State rested its case and defendant presented no witnesses on his behalf. The jury found defendant guilty of aggravated criminal sexual assault and armed robbery. Following a hearing in mitigation and aggravation, the trial judge sentenced defendant to consecutive prison terms of 60 years and 30 years, respectively, for each count. This timely appeal followed.

Defendant initially contends that the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt. In cases where a sex offense is charged, the appropriate standard of review of a challenge to the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690.

Defendant first contends that complainant’s identification was questionable under the factors used to evaluate the strength of a victim’s identification set forth in People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317. The factors delineated by the Slim court in assessing an identification of a defendant are as follows: (1) the opportunity the victim had to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the length of time between the crime and the identification confrontation.

Defendant argues that complainant had little opportunity to observe her assailant during the attack because, as she testified, it was dark outside and she was blindfolded when in the abandoned apartment. Defendant further contends that complainant’s description of her assailant is not comparable to his physical characteristics because he had facial hair at the time of the attack and complainant did not tell police that her assailant had facial hair. In addition, defendant argues that complainant described her assailant as being taller and heavier than he was at that time. Finally, defendant argues that complainant failed to pick out his photographs from a group of pictures.

It is established that the sufficiency of identification evidence is a question for the jurors, and a reviewing court will not set aside a conviction unless the evidence is so unsatisfactory as to raise a reasonable doubt as to the guilt of the defendant. (People v. Johnson (1986), 114 Ill. 2d 170, 190, 499 N.E.2d 1355; People v. Uzelac (1988), 179 Ill. App. 3d 395, 534 N.E.2d 1250.) Identification by a single eyewitness is sufficient to support a conviction, provided the witness viewed the accused under circumstances permitting a positive identification. (Slim, 127 Ill. 2d at 309; People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612.) Discrepancies in identification simply present a question of the credibility of the witness and the weight to be given to the testimony. Slim, 127 Ill. 2d at 308.

The record discloses that complainant had ample opportunity to view the defendant on the morning of April 3, 1988. At trial, complainant testified that on that morning, although it was dark outside, the bus stop where she stood was well lit and she could see defendant clearly as he crossed the street toward her. Defendant grabbed her from the bus stop and walked her to a building across the street. Complainant testified that once inside the building, defendant ushered her to an abandoned apartment and robbed her at gunpoint. Thereafter, defendant repeatedly sexually abused complainant, and complainant could clearly see defendant’s face during the assault because he was directly in front of her at various times. Complainant was not blindfolded for the duration of the assault.

The record further reveals that in her initial description, complainant estimated that defendant was approximately 6 feet tall and weighed 170 pounds. Defendant was in fact 5 feet 10 inches and weighed 160 at the time of the offense. While few people are accurate judges of height and weight (see People v. Evans (1962), 25 Ill. 2d 194, 184 N.E.2d 836; People v. Dixon (1985), 133 Ill. App. 3d 1073, 480 N.E.2d 128), complainant’s estimates here regarding height and weight were extremely accurate in that the description matched defendant within 10 pounds in weight and two inches in height. Defendant’s further argument that complainant failed to identify him from two photographs is without merit. The record shows that complainant positively identified defendant as her assailant twice on the day following the attack, both on the street and again after he was apprehended. See Uzelac, 179 Ill. App. 3d at 409.

In addition, complainant’s failure to mention the fact that defendant had facial hair in her initial description is a minor discrepancy. Failure to notice facial hair is not fatal to a positive and otherwise credible identification. (See Slim, 127 Ill. 2d at 310; see also People v. Nims (1986), 156 Ill. App. 3d 115, 505 N.E.2d 670.) The findings of the trial court do not raise a reasonable doubt as to the defendant’s identification and guilt.

Defendant additionally argues that the physical evidence produced by the State, specifically (1) fingerprints from a malt liquor bottle taken from the scene of the incident; (2) a pen-type flashlight found in defendant’s possession upon arrest; and (3) a brown leather jacket recovered from defendant’s sister Cynthia Hill’s apartment, do not justify a finding of guilty beyond a reasonable doubt because they are merely “coincidental.” Defendant cites no authority in support of his argument. Defendant’s failure to provide this court with any legal argument or citation to supporting authority waives this issue for review. People v. Barlow (1989), 188 Ill. App. 3d 393, 544 N.E.2d 947.

Defendant also contends that he was prejudiced by several comments made by the prosecutor during closing rebuttal argument and thereby denied a fair trial. Defendant calls into question the following remarks made by the prosecutor during his closing rebuttal argument:

“[A]nd while counsel says they don’t have to prove anything, they have no burden of proof, I would agree with that. Quite clearly that doesn’t mean they have to sit on their hands and they can’t call any witnesses.”

Defense counsel objected to the comments at trial, and the trial judge sustained the objection, instructing the jury to disregard the comments. The prosecutor continued his argument, stating:

“If they really question the fingerprint examiner, the serologist, they have a right to testify they have a different finding, they have every right to have — .”

The defense attorney objected and the trial judge again sustained the objection. When the prosecutor continued a third time with, “They have every right to have the same — ” defense counsel’s objection was overruled. The prosecutor then began a different line of argument. The record further indicates that defense counsel had commented during closing argument that the State failed to produce the beer bottle from which evidence technicians lifted' defendant’s fingerprints, and also failed to conduct DNA tests on the fluids removed from complainant’s body.

Defendant initially argues that the prosecutor’s comments deemphasized the State’s burden and improperly shifted the burden of proof to the defendant. Defendant quotes People v. Burke (1985), 136 Ill. App. 3d 593, 603, 483 N.E.2d 674, for the proposition that “[i]t is not proper to comment on reasonable doubt, or on the presumption of innocence, so as to de-emphasize the State’s burden.” Defendant’s reliance in support of his argument is misplaced, however. In Burke, the court held that an improper remark by the prosecutor in closing: “Now in this case the defendant, as every other defendant is presumed to be not guilty until we say different,” did not deprive defendant of a fair trial because immediately following the remark, the prosecutor informed the jury that the defendant was not required to prove anything and that the State had the burden of proving the defendant guilty beyond a reasonable doubt. Burke, 136 Ill. App. 3d at 602.

Similarly, the comments by the prosecutor in the present case do not amount to an improper shifting of the burden to defendant. Here, the prosecutor clearly stated that he agreed that the defendant did not have to prove anything. The record further indicates that the jury was instructed on the presumption of innocence and the State’s burden of proving the guilt of the defendant beyond a reasonable doubt.

Defendant further relies on People v. Nevitt (1990), 135 Ill. 2d 423, 553 N.E.2d 368. There, the supreme court found that “it was error for the prosecutor to comment on defendant’s failure to produce alibi witnesses under the circumstances in this case.” (Emphasis added.) (Nevitt, 135 Ill. 2d at 451.) The prosecutor in Nevitt stated in closing argument:

“But what I’d like to know, Tommy Nevitt supposedly is not at work, well where are all the defense witnesses to tell you where Tommy Nevitt was in the morning?” (Nevitt, 135 Ill. 2d at 448.)

The court found that the prosecutor invited the jury to draw an inference that because defendant did not call an alibi witness to explain his whereabouts at the time of the alleged crime, then he must have been at the crime scene. The court held that a prosecutor may not comment on the failure of a defendant to produce a witness when there is no evidence that a witness exists. Nevitt, 135 Ill. 2d at 451-52.

Nevitt is distinguishable on its facts, as the statements by the prosecution in the present case are not similar. Where the complained-of remarks are within the rebuttal argument, they will not be held improper if they appear to have been provoked or invited by the defense counsel’s argument. (People v. Lyles (1985), 106 Ill. 2d 373, 390, 478 N.E.2d 291.) Here, the defense did not put on a case or present an alibi defense, and the prosecutor did not comment on defendant’s failure to produce alibi witnesses.

The record indicates that the comments of the prosecutor in rebuttal were invited by the comments of defense counsel in his closing argument. Moreover, where the prosecutor does not state that defendant must provide the evidence that would create a reasonable doubt of guilt, but rather points to defendant’s failure to submit any evidence that would tend to refute the case against him, the statements are within the bounds of proper comment. (People v. Albanese (1984), 104 Ill. 2d 504, 522, 473 N.E.2d 1246.) Albanese is strikingly similar to the present case. There, the prosecutor responded to defense counsel’s invited comment in closing argument that no pathologists testified at trial, by stating in closing rebuttal argument that the defendant “has subpoena power ***. He can subpoena that pathologist if he likes,” and “he can subpoena anybody or any document that he wishes to testify here before you.” (Albanese, 104 Ill. 2d at 522.) Accordingly, we find that the prosecutor’s comments during rebuttal argument in the present case were within the bounds of proper argument.

Defendant further argues that the prosecutor’s comments were improper because the prosecutor attempted to finish his statement twice after defense counsel objected. Defendant relies on People v. Larry (1991), 218 Ill. App. 3d 658, 578 N.E.2d 1069, which is distinguishable on the facts. In Larry, the prosecutor at trial repeated the same basic question to a witness six times in a row regarding out-of-court statements, and defense counsel’s six objections to the questions were sustained each time. Later, during closing and rebuttal closing arguments, the prosecutor referred to the significance of the out-of-court statements he attempted to elicit from the witness at trial. The court found that the prosecutor defied the trial court’s rulings by repeating the same questions after objections were sustained and compounded the error by his comments in summation. (Larry, 218 Ill. App. 3d at 663, citing People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432.) By contrast, the prosecutor in the present case did not pursue an objectionable line of questioning at trial which was compounded by improper reference during closing argument. Any error in the present case was corrected by defense counsel’s timely objection and the court’s sustaining of the objection and instructions to the jury to disregard the comments. Larry, 218 Ill. App. 3d at 662.

Defendant also objects to the following comments made by the prosecutor during rebuttal:

“STATE: Again you can consider that but it’s a lot easier to sit back and throw mud at everybody. The police, the State’s Attorney’s Office is lazy, [complainant] was lying—
DEFENSE: Objection. We never said she was lying.
COURT: The jury heard the evidence.
STATE: That’s right, ladies and gentlemen you have heard the evidence in this case. Now, if you believe the defense argument everybody is lying. The officers that got up on that stand lied to you. And I’m so lazy that I don’t even care about any evidence out there. I just figure what the hell, I’m going to go get it. If you really believe that, there’s not much I can say that’s going to change your mind.
* * *
And it’s nice to say well, yeah, she’s telling the truth about the fact she got raped, but then in the next breath she’s lying about who did it.”

Defendant argues that the prosecutor misstated the law because it was not the defense’s theory that the complainant was lying.

In general, courts in this State allow a great deal of latitude to the prosecution during closing and rebuttal arguments. (People v. Williams (1991), 147 Ill. 2d 173, 231, 588 N.E.2d 983; People v. Smith (1990), 199 Ill. App. 3d 839, 854, 557 N.E.2d 596.) When reviewing allegations of prosecutorial misconduct, the complained-of remarks must be considered in the context of the entire closing arguments of both the State and the defendant. (People v. Cisewski (1987), 118 Ill. 2d 163, 175-76, 514 N.E.2d 970.) In closing argument, a prosecutor may comment on the evidence and legitimate inferences arising therefrom, and such comments do not exceed the bounds of proper argument. Williams, 147 Ill. 2d at 231.

Defendant relies upon People v. Wilson (1990), 199 Ill. App. 3d 792, 557 N.E.2d 571. There, the defendant was convicted of attempted criminal assault. The complainant admitted at trial that the defendant had not threatened, slapped or punched her, and neither party removed any clothing. The record indicated that complainant was not injured by defendant, and other than a self-inflicted wound, she had no bruises or other marks of a struggle. The record further disclosed that the principal witness for the prosecution had a motive to lie about the assault. This court found that the evidence, while sufficient to prove guilt, was not overwhelming. In closing argument, the prosecutor stated:

“Is it curious to anyone the defense would have you believe everybody in this case is guilty except the Defendant? [State’s witness] Kondal committed perjury. The State’s Attorney is guilty of trying to frame someone. [The victim] is guilty.” (Wilson, 199 Ill. App. 3d at 796.)

We held that the prosecutor misstated the law by suggesting incorrectly what the jury must find to reach a certain verdict and remanded the case for a new trial. Wilson, 199 Ill. App. 3d at 797.

In the present case, the defendant’s sole argument was that he was wrongly identified as complainant’s assailant. In her opening statement, defense counsel admitted that complainant was brutally sexually assaulted, but argued that defendant did not commit the assault. During cross-examination, defense counsel sought to impeach complainant’s identification testimony by raising the issue that complainant had not told police that defendant had facial hair at the time of the assault. Defense counsel subsequently attacked complainant’s identification in closing argument. Defense counsel never took issue with the evidence of the assault, and thereby made the issue of defendant’s identity the central issue at the trial.

An examination of the record reveals that the comments in the present case do not rise to the level of the prosecutor’s comments in Wilson. In Wilson, the sufficiency of the evidence, not identification, was the central issue at trial. Contrary to defendant’s arguments, the record indicates that this was not a close case in terms of the evidence. We therefore find that the prosecutor’s comments in the present case were based on legitimate inferences drawn from the evidence and do not exceed the bounds of proper debate. Even if the prosecutor’s comments were improper, any impropriety constitutes harmless error under the circumstances, as the record demonstrates that the verdict would not have been otherwise had the comments not been made. See Williams, 147 Ill. 2d at 232.

For the above reasons, we affirm the finding of the trial court.

Affirmed as modified.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE MAAG

text:
    NORMAN MEYERS, Plaintiff-Appellant and Cross-Appellee, v. GEORGE KISSNER et al., d/b/a Kissner and Weaver Farm Implement Company, et al., Defendants-Appellees and Cross-Appellants.
    Fifth District
    No. 5 — 89—0567
    Opinion filed March 4, 1993.
    Tracy W. Resch, of Parker, Siemer, Austin, Resch & Resch, of Effing-ham, for appellant.
    Howard & Howard, of Mt. Vernon (G.W. Howard III, of counsel), for ap-pellees George Kissner and Glen Weaver.
    Douglas A. Enloe and Robert M. Hopkins, both of Gosnell, Benecki, Borden & Enloe, Ltd., of Lawrenceville, for appellee Owen Rainwater.
   JUSTICE MAAG

delivered the opinion of the court:

Plaintiff, Norman Meyers, brought an action in the circuit court of Wayne County to obtain redress for injuries to his farmland allegedly caused when the natural flow of water was obstructed by earthen levees constructed by defendants, George Kissner and Glen Weaver, d/b/a Kissner & Weaver Farm Implement Company, and Owen Rainwater. Plaintiff’s complaint, as amended, was in two counts. Both counts were based on the same factual allegations. The only difference was that count I sought a mandatory injunction to require defendants to remove the levees, while count II prayed for money damages.

On defendants’ motions for summary judgment, the circuit court determined that plaintiff’s damage claim was time-barred under the limitations period set forth in section 13 — 205 of the Code of Civil Procedure (111. Rev. Stat. 1985, ch. 110, par. 13 — 205) because the action had not been commenced within five years following construction of the levees. The matter therefore proceeded to trial on the in-junctive claim alone. Although a jury demand had been filed by defendants, elimination of the damage claim meant that only equitable relief remained at issue. As a result, the trial was conducted by the court, sitting without a jury.

Based on its assessment of the evidence, the court issued an injunction requiring that a portion of the levees be modified. Plaintiff appealed, arguing that the remedy fashioned by the court was inadequate. Defendants cross-appealed. With one judge dissenting, this court held that the plaintiff should have brought his injunctive claim within the same period governing his action for damages and that his failure to do so constituted laches. Accordingly, we reversed and remanded with directions that judgment be entered in favor of defendants. Meyers v. Kissner (1991), 217 Ill. App. 3d 136, 576 N.E.2d 1094.

Our supreme court granted leave to appeal. The court reexamined the law governing when an action to recover damages for an overflow of water onto land should be deemed to accrue and revived plaintiff’s claim for money damages. Specifically, the court found that defendants’ levees constitute a continuing private nuisance and that plaintiff is therefore “not barred by the lapse of five years from the erection of the structure.” (Meyers v. Kissner (1992), 149 Ill. 2d 1, 11, 594 N.E.2d 336, 340.) For continuing violations such as this, the court held that the five-year statute of limitations “merely specifies the window in time for which monetary damages may be recovered prior to the filing of the complaint.” (149 Ill. 2d at 11, 594 N.E.2d at 340.) Accordingly, the court reasoned that the plaintiff here should not be barred “from recovering monetary damages for the five-year period preceding the filing of the complaint.” 149 Ill. 2d at 11, 594 N.E.2d at 340.

In addition to reviving plaintiff’s damage claim, the supreme court considered our determination that plaintiff’s claim for injunctive relief was barred by laches because it had not been commenced within the statutory five-year limitations period. The court held that the injunctive claim was subject only to the 20-year time period necessary to create a prescriptive easement. Because plaintiff had filed his complaint within 20 years of the construction of the levees, and because there were “no extraordinary circumstances which justify shortening the limitation period below 20 years,” the court opined that plaintiff’s request for a mandatory injunction was not untimely either. (149 Ill. 2d at 13, 594 N.E.2d at 341.) It therefore reversed and remanded for further consideration of plaintiff’s arguments regarding the sufficiency of the trial court’s injunction. The cause was then to be remanded to the trial court “for such further proceedings as may then be pertinent to the claim for injunctive relief and for further proceedings regarding plaintiff’s claim for monetary damages.” (149 Ill. 2d at 13, 594 N.E.2d at 341.) It is in this posture that the matter is before us once again for review.

Although the supreme court has not told us specifically how to dispense with the arguments regarding the circuit court’s injunction, we believe that the high court’s decision to revive plaintiff’s damage claim compels the conclusion that the injunction must now be set aside. This is so because all defendants filed timely jury demands. with respect to the damage claim. Once the damage .claim is reinstated, these jury demands must be reinstated as well.

The facts necessary to establish liability on the damage claim are precisely the same as those underlying plaintiff’s claim for injunctive relief (149 Ill. 2d at 6, 594 N.E.2d at 338). By granting the injunction, the circuit court necessarily ruled on these common facts adversely to defendants. So long as the court’s judgment granting the injunction continues in force, these factual determinations by the court will be controlling in any subsequent proceedings in the case and will deprive the defendants of a jury trial on the damage claim.

By requesting an injunction in count I, the plaintiff invoked the equity jurisdiction of the circuit court. When the trial judge sits in equity, there is no right to a jury trial. (Lazarus v. Village of Northbrook (1964), 31 Ill. 2d 146, 199 N.E.2d 797.) The trial judge has authority to direct a jury trial on the equitable’ claims. (See Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1111.) But in such cases, the jury is advisory only. Carroll v. Hurst (1982), 103 Ill. App. 3d 984, 431 N.E.2d 1344.

Supreme Court Rule 232(b) (134 Ill. 2d R. 232(b)) requires the court to determine whether the legal and equitable claims are sever-able and, if so, mandates a jury trial on the legal claims if a jury is demanded. The court never made this determination because the damage claim was dismissed prior to trial.

The injunction must be set aside for another reason as well. It is axiomatic that an injunction is an extraordinary remedy which should only be granted after the plaintiff establishes a lawful right, irreparable harm, and an inadequate remedy at law. (Tamalunis v. City of Georgetown (1989), 185 Ill. App. 3d 173, 189, 542 N.E.2d 402, 413.) The requirement of an inadequate remedy is based on the same principles as the rule that legal claims must be tried by the jury before equitable claims based on the same facts are decided by the court. If equitable relief is granted where an adequate remedy at law exists, the defendant will be deprived of his constitutional right to a jury trial. Stevens v. Protectoseal Co. (1975), 27 Ill. App. 3d 724, 729-30, 327 N.E.2d 427, 431.

In this case the supreme court has now classified plaintiff’s claims as involving a continuing nuisance. The mere existence of a nuisance is not, however, sufficient to warrant injunctive relief. Under established Illinois law, equity will not, as a matter of course, order relief in nuisance cases until all the circumstances and consequences of such action are considered. This is so because an award of money damages may be sufficient to remedy the nuisance and therefore constitute an adequate remedy at law, even where the nuisance is of a continuing nature. (Tamalunis v. City of Georgetown, 185 Ill. App. 3d at 190, 542 N.E.2d at 413-14.) Given this, it is apparent that any injunctive relief in this case is premature until such time as plaintiff’s damage claim has been presented to and passed upon by the jury. The mere fact that a remedy in the form of damages exists does not mean that a damage award alone is an adequate remedy. The adequacy of the damage award, if any, must be considered by the circuit court after the jury has rendered its verdict. If the jury awards plaintiff damages, the court must then determine whether injunctive relief is also required.

Before concluding our discussion, there is one final matter we must address. Because our previous disposition ruled against plaintiff, we had no need to reach an argument by defendant Rainwater that his counterclaim for contribution on count I of plaintiff’s complaint had been improperly dismissed by the circuit court. Rainwater has now filed a supplemental brief asking that the issue be taken up on the merits. Rainwater’s position is that his counterclaim was originally dismissed by the circuit court solely on the grounds that the Contribution Act (111. Rev. Stat. 1989, ch. 70, par. 301 et seq.) can never be applicable where, as here, the underlying action seeks injunctive relief. Citing the recently decided case of People v. Brockman (1989), 192 Ill. App. 3d 680, 550 N.E.2d 222, aff’d in part & rev’d in part (1991), 143 Ill. 2d 351, 574 N.E.2d 626, and aff’d in part & rev’d in part (1992), 148 Ill. 2d 260, 592 N.E.2d 1026, however, Rainwater asserts that this proposition can no longer be sustained. Without passing on the validity of Rainwater’s argument, we note that consideration of the viability of his counterclaim was not encompassed within the supreme court’s mandate. We therefore may not consider it here. (Elliott v. Willis (1983), 113 Ill. App. 3d 848, 852, 447 N.E.2d 1062, 1065.) However, this does not foreclose consideration of this matter by the circuit court following remand. Callier v. Callier (1986), 142 Ill. App. 3d 407, 414, 491 N.E.2d 505, 510.

Accordingly, the judgment of the circuit court granting injunctive relief is reversed. Upon retrial the damage claim shall be tried before a jury. The trial court may, in the exercise of its discretion, hear the equitable claim at the same time or may set that claim for a separate trial. This case is hereby remanded for further proceedings consistent with this opinion and the opinion of the supreme court.

Reversed and remanded with directions.

CHAPMAN, P.J., and LEWIS, J., concur.

      Justice Harrison participated in oral argument. Justice Maag was later assigned to this case in substitution for Justice Harrison, and Justice Maag has read the briefs and listened to the audiotape of oral argument.

      Justice Howerton participated in oral argument. Justice W.A. Lewis was later assigned to this case in substitution for Justice Howerton, and Justice W.A. Lewis has read the briefs and listened to the audiotape of oral argument.


author: JUSTICE CHAPMAN

text:
    NAMEOKI TOWNSHIP et al., Plaintiffs-Appellants, v. GRANITE CITY TOWNSHIP et al., Defendants-Appellees.
    Fifth District
    No. 5 — 91—0423
    Opinion filed February 9, 1993.
    Rehearing denied March 16, 1993.
    Irvin C. Slate, Jr., of Granite City, for appellant Nameoki Township.

      John Dale Stobbs and James S. Sinclair, both of Stobbs & Sinclair, of Alton, for appellant Chouteau Township.
    Mark C. Goldenberg, Susan E. Bacon, and Elizabeth V. Heller, all of Granite City, for appellee City of Granite City.
    William W. Schooley, of Law Offices of William W. Schooley, of Granite City, for appellee Township of Granite City.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Nameoki Township, Chouteau Township, and Granite City Township are situated in Madison County and operate under the Township Law of 1874 (111. Rev. Stat. 1991, ch. 139, par. 0.1 et seq.). The City of Granite City is a municipality within the meaning and under the governance of the Illinois Municipal Code (111. Rev. Stat. 1991, ch. 24, par. 1 — 1—1 et seq.). For a number of years prior to March 18, 1988, Granite City Township and Granite City were coterminous. On or about December 23, 1987, Granite City annexed a portion of Nameoki Township referred to as the Gorbe subdivision. On March 18, 1988, a referendum was held pursuant to statute (111. Rev. Stat. 1989, ch. 139, par. 127) to determine the township by which the Gorbe annexation would be governed. As a result of the referendum, the Gorbe subdivision remained a part of Nameoki Township.

From March 18, 1988, until the date of filing of the complaint in the instant case, Granite City annexed additional territory in Nameoki and Chouteau Townships. On March 9, 1990, the plaintiff townships filed a declaratory judgment action and requested the court to declare that the property annexed by Granite City subsequent to March 18, 1988, had not been brought under the jurisdiction of Granite City Township. The trial court found that, notwithstanding the failure of the March 18, 1988, referendum to disconnect the Gorbe subdivision from Nameoki Township, Granite City and Granite City Township boundaries, while not identical, have remained coterminous under section 1 of the Township Annexation Act (111. Rev. Stat. 1991, ch. 139, par. 127). Plaintiffs appeal from the trial court’s decision.

It is undisputed that after the March 18, 1988, referendum the Gorbe subdivision remained in Nameoki Township. Nameoki and Chouteau Townships argue that as a result of that referendum Granite City and Granite City Township were no longer coterminous for purposes of section 1 of the Township Annexation Act and, therefore, any parcels Granite City annexed after March 18, 1988, were not automatically transferred to Granite City Township. Defendants maintain that the City of Granite City and Granite City Township retained their coterminous status even though Granite City’s boundaries and Granite City Township’s boundaries were no longer identical after the 1988 Nameoki Township referendum on the Gorbe subdivision.

In construing a statute, we must ascertain and give effect to the intention of the legislature. (Harvel v. City of Johnston City (1992), 146 Ill. 2d 277, 282, 586 N.E.2d 1217, 1220.) The language used in the statute is the primary source for determining legislative intent. (Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1991), 146 Ill. 2d 175, 207, 585 N.E.2d 1032, 1044.) The following, with the exception of the underlined provisions, is an excerpt of section 1 of the Township Annexation Act (HI. Rev. Stat. 1991, ch. 139, par. 127) as it read on August 11, 1986. The underlined text was added with the adoption of Public Act 86 — 1299. Pub. Act 86 — 1299, eff. Jan. 1, 1991 (amending 111. Rev. Stat. 1989, ch. 139, par. 127).

“Whenever a city which is coterminous with a township proposes to annex any territory in an adjacent township, the city clerk shall, by registered or certified mail, file a certified copy of the annexation ordinance ***. Except as otherwise provided herein, if, within 45 days after the notification, the board of trustees of the township from which the territory is to be disconnected determines by a majority vote of those then holding office that the disconnection would not be in the best interests of that township, the board may request that a referendum approving or disapproving the disconnection be held in that township. The city, its coterminous township and the adjacent township may, however, agree by intergovernmental agreement and without the necessity of a referendum that the territory shall remain part of the adjacent township and shall not become part of the township that is coterminous with the municipality.
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If a majority of those voting on the proposition in the township vote in favor thereof, the territory shall be disconnected from the adjacent township and connected to the township which is coterminous with the city. *** If a majority of those voting on the proposition do not vote in favor thereof, the territory shall remain with the adjacent township. ***
Where the proposition to disconnect the territory fails and it remains with the adjacent township, the status quo and operation of a township and the officers of a township coterminous with a city at the time provided for herein shall not be affected. *** Where the proposition to disconnect fails or the city, its coterminous township and the adjacent township agree by intergovernmental cooperation agreement that the territory shall remain part of the adjacent township, the city may annex such territory and by doing so shall not relinquish its status as a city with a coterminous township.
Within any 12 month period beginning on the date of a coterminous city’s first annexation after August 11, 1986, where any parcel of territory lying in an adjacent township is annexed by the city and such parcel constitutes less than 1% and until all such parcels annexed during each such annual period constitute 1% or more of the total equalized assessed value of the adjacent township, each separate parcel shall become disconnected from that township and included in the coterminous township without having the proposition to disconnect submitted to the voters in the adjacent township.”

Granite City and Granite City Township argue that the Act as it existed on August 11, 1986, and as it reads today clearly provides that their coterminous status continues, notwithstanding a change in boundaries. Defendants point in particular to that sentence which reads:

“Where the proposition to disconnect the territory fails and it remains with the adjacent township, the status quo and operation of a township and the officers of a township coterminous with a city at the time provided for herein shall not be affected.”

Defendants argue that because the statute provides that the status quo is to be maintained, the status of a coterminous city and township does not change. We disagree.

The sentence defendants rely upon sets forth how the governmental function and the status of elected officials of the adjacent township and the township coterminous with a city are affected in the event the proposition to disconnect an adjacent township fails. Nowhere in the sentence defendants rely upon, or in the entire statute as it read prior to the 1991 revision, does the statutory language purport to establish that a city and a township which were coterminous before annexation remain coterminous even though their boundaries are no longer identical. This court will not make hypothetical indulgences into legislative intent. (Business & Professional People, 146 Ill. 2d at 208, 585 N.E.2d at 1045.) Before the January 1, 1991, revision of the Act, the statute contained no language that suggested that coterminous meant anything other than the plain meaning of that word. While coterminous is not defined in the Act, the word has been defined as “having the same or coincident boundaries.” (Webster’s Ninth New Collegiate Dictionary 295 (1988).) Had the legislature intended coterminous townships and cities to maintain such status even though they in fact did not have identical boundaries, the legislature could have included express language to that effect. See Harvel v. City of Johnston City, 146 Ill. 2d at 282, 586 N.E.2d at 1220.

Defendants contend that the legislative history of Public Act 86— 1299 indicates that the legislature intended to preserve the coterminous status of a city township even after a city’s identical boundaries with the township were altered as a result of the referendum process provided in the Act. We turn to the legislative history to examine the reason and necessity for amending the Act. (See Harvel, 146 Ill. 2d at 283, 586 N.E.2d at 1220.) The legislative deliberations on the bill which led to the passage of Public Act 86 — 1299 read in part:

“SENATOR RIGNEY: It merely cleans up, or at least provides a clarification on coterminus [sic] townships. It makes it clear that coterminus [sic] status remains within their governmental structure, even after boundary changes may have occurred during the annexation process.
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SENATOR HAWKINSON: And finally, this Senate Amendment No. 1, then, as I understand it, is not really adding new authority, but is clarifying the Statute to make it clear that the city remains a coterminus [sic] city township, even after its city boundaries may no longer be identical to its township boundaries.
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SENATOR RIGNEY: Yes. That is correct. Senate Amendment No. 1 is declarative of existing law in stating that failure of disconnection from the adjacent township does not affect the status of the coterminus [sic] city township in its future annexations and disconnections, or its ongoing authority to act within its boundaries as a coterminus [sic] city township.
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SENATOR RIGNEY: *** [A]ll it does is provide a simpler and more streamlined measure to achieve what was contained in that legislation that we passed here a few years back.” 86th 111. Gen. Assem., Senate Proceedings, June 13, 1990, at 69-71 (statements of Senator Rigney and Senator Hawkinson).

While Senator Rigney’s first quoted statement appears to support defendants’ position, Senator Hawkinson’s statement and Senator Rigney’s second statement support the plaintiffs’ position. As we indicated earlier, the sentence relied upon by the defendants deals with the “status quo and operation of a township.” If the legislature had intended it to have the effect defendants attribute to it, there would have been no reason to add the 1991 amendment which deals not with “status quo and operation” but with the “status as a city with a coterminous township.” We note the presumption that every statutory amendment is made for some purpose, and we must give effect to the amendment in a manner consistent with that purpose. In re Marriage of Freeman (1985), 106 Ill. 2d 290, 298, 478 N.E.2d 326, 329.

Senator Rigney’s statements do support the premise that the amendment also assures that a change in the boundaries of a city with its coterminous township will not upset the governmental function of those entities. For example, under the Township Annexation Act a coterminous city township may consolidate elected officers. Thus, the offices of city treasurer and town collector may be united in the same person; the offices of city and town clerk may be united in the same person. (See El. Rev. Stat. 1991, ch. 139, par. 131.) The amendment assures that the status quo will be maintained as to elected officials and the governmental workings of the city and township which were formerly coterminous. The amendment also allows a city and township whose boundaries are not identical to annex property under the statute as if they were coterminous if they had previously been coterminous.

Under the Township Annexation Act, until Granite City annexed parcels beyond the threshold of the 1% equalized assessed valuation within a 12-month period, the annexed townships had no voice in the decision of whether they would become part of Granite City Township. It was not until Granite City annexed property with more than the 1%-equalized-assessed-valuation threshold of the Act that the referendum provision was triggered. Under the Act, even after a coterminous city-township annexes over the 1% threshold, if the city-township is successful in the referendum, it remains a coterminous city-township. It is only when the city-township loses the referendum that its coterminous status for purposes of annexation no longer exists.

The Act does not hinder the city from annexing property just because it loses its city-township coterminous status. Even though a city and its township are no longer coterminous, the city may utilize the provisions of article 7 of the Illinois Municipal Code (111. Rev. Stat. 1991, ch. 24, par. 7 — 1—1 et seq.) to annex property. The city is free to annex as much property as it was permitted to annex under the Township Annexation Act, but because it is no longer coterminous, it may not unilaterally alter township boundaries. Although it has lost its coterminous status, the city may still have a referendum (111. Rev. Stat. 1991, ch. 139, par. 127) or proceed under section 3 — 1 of the Township Law of 1874 (HI. Rev. Stat. 1991, ch. 139, par. 25), which authorizes the county board to direct a change in the township boundaries.

Granite City and Granite City Township were no longer coterminous after the March 18, 1988, referendum. The city and township, however, did maintain coterminous status under the Act for purposes of the method of selecting officers and the operation of the city-township. In addition, pursuant to the Township Annexation Act, territory annexed to Granite City subsequent to March 18, 1988, was not automatically annexed to Granite City Township. Accordingly, we reverse the judgment of the trial court and remand this case with directions that the trial court enter an order in accordance with this opinion.

Reversed and remanded with directions.

WELCH and LEWIS, JJ., concur.