text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL D. KOHL, Defendant-Appellee.
    Second District
    No. 2—88—0959
    Opinion filed December 28, 1989.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Craig F. Miller and Dennis J. Sopata, both of Miller & Sopata, of Oak Lawn, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

On January 1, 1988, at approximately 7 a.m., defendant, Michael D. Kohl, was the driver of an automobile involved in a head-on collision with a car driven by Gamer L. Williams, Jr. The incident resulted in Williams’ death. Defendant was initially charged with driving under the influence of alcohol in violation of section 11 — 501 of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1987, ch. 95^2, par. 11 — 501). Subsequently, however, defendant was indicted on one count of reckless homicide in violation of section 9 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3), and the State nol-prossed the charge of driving under the influence. Defendant filed a motion to suppress certain evidence, namely, blood samples extracted from him immediately after the accident. Defendant alleged that he did not consent to the taking of the blood samples and that the police had no probable cause to believe that defendant was intoxicated. The trial court granted the motion to suppress based on its finding that defendant did not consent to the taking of the blood samples. The trial court denied the State’s motion to reconsider, and the State now appeals.

The State presented the testimony of three witnesses at the hearing on the motion to suppress evidence. The first witness, Officer Glenn T. Felbinger. testified that he arrived at the scene of the accident shortly after it occurred at about 7 a.m. on January 1, 1988. An ambulance arrived almost immediately thereafter. The ambulance crew attended to defendant for about 10 or 15 minutes and then took him to Elmhurst Memorial Hospital. After checking on the injuries of the parties involved, Officer Felbinger had a short discussion with a witness to the accident, Dana Morey. Officer Felbinger then drove his squad car to the hospital, where he had occasion to speak with defendant in a cubicle in the emergency room at about 7:45 a.m.

Officer Felbinger described defendant as coherent and responsive. The officer testified that he told defendant that he would read him his rights, that an investigation was being made, and that he would direct hospital personnel to take from defendant blood and urine samples because he felt that defendant had been drinking. While being read his Miranda warnings, defendant interrupted Officer Felbinger, telling him that he knew his rights and admitting that he had been drinking. The officer continued reading defendant his rights, and when he finished he again explained that he would have blood and urine samples taken. He told defendant that the purpose of the tests was to determine if he was legally intoxicated. When asked about the circumstances of the accident, defendant told the officer he had been returning home from a party where he had consumed a couple of glasses of champagne. The blood and urine samples were then taken by hospital personnel.

The State’s second witness was Elizabeth Schrieber, a registered nurse who worked in the emergency room at Elmhurst Memorial Hospital. She testified that Officer Felbinger was already with defendant when she entered the cubicle. She took the urine sample from defendant, but she did not recall any conversation that may have taken place between defendant and Officer Felbinger. She could not recall whether the officer read defendant his Miranda rights.

The next witness for the State was Laura Michelon, a lab technician at Elmhurst Hospital. She testified that when she entered the cubicle, defendant, Officer Felbinger and the nurse were already present. According to Michelon, she heard the officer tell defendant, “We have to take some blood from you. Do you realize this?” Defendant replied, “Yes, I do, but I have only had a few drinks.” She never heard the officer give defendant his Miranda warnings. Michelon then drew two blood samples for the police and four to six for hospital purposes.

Defendant testified in support of his motion to suppress evidence. He stated that he was not told, either at the scene of the accident or at the hospital, that he had violated any law. He claims that while he agreed to the nurse’s request to give a urine sample, he does not remember giving, or being asked to give, a blood sample.

The trial court found that defendant was in custody but that he was not informed of the reasons for his custody or “of his right to refuse to give evidence in this case.” The trial court also found that defendant did not voluntarily consent to the withdrawal of the blood samples. Based on these findings, the trial court granted the motion to suppress the blood samples because, the court said, they were withdrawn in violation of the defendant’s fourth amendment rights. The trial court denied the State’s motion to reconsider the ruling, and the State timely filed this appeal in which the following issues are raised: (1) whether defendant must have consented to the blood test in order for the results of the test to be admitted into evidence; (2) whether the trial court’s ruling that defendant did not consent was against the manifest weight of the evidence; (3) whether the additional blood samples extracted allegedly for the hospital’s own medical purposes are admissible; and (4) whether defendant waived the issue of probable cause.

We first address the issue of consent. The State argues that consent is not required in the case at bar, and thus, defendant’s test results are admissible even without his consent. Defendant apparently contends that section 11 — 501.1 of the Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1) requires consent before a blood test may be completed and that such requirement applies here, where defendant was arrested for DUI but prosecuted for reckless homicide.

This court recently addressed this issue and concluded that section 11 — 501.1 does not apply in such a case. (People v. Giere (1989), 192 Ill. App. 3d 520, 525.) In Giere, the defendant was arrested for DUI and later charged with reckless homicide. The DUI count was dismissed prior to trial, and the defendant was subsequently found guilty of reckless homicide. On appeal, the defendant argued that section 11 — 501.1 requires consent before blood may be withdrawn and that the section is applicable in a reckless homicide prosecution following an arrest for DUI.

This court stated that “[a] compulsory blood test, taken without the consent of the donor, does not violate any constitutional right of the donor, and absent a more limiting statutory provision, is admissible as evidence of intoxication.” (Giere, 192 Ill. App. 3d at 524.) We found that section 11 — 501.1 does not limit the admissibility of a compulsory blood test in a reckless homicide prosecution and applies only where the statutory summary suspension of the privilege to operate a motor vehicle is involved or at issue. (Giere, 192 Ill. App. 3d at 525.) Thus, the ordinary standards of admissibility apply in reckless homicide prosecutions. (People v. Murphy (1985), 108 Ill. 2d 228, 234.) Further, even in a DUI prosecution, there is no statutory requirement of consent before blood-alcohol test results may be admitted into evidence. (Giere, 192 Ill. App. 3d at 524.) Thus, in the case at bar, the trial court erred when it relied upon People v. Romano (1985), 139 Ill. App. 3d 999, and found that defendant’s consent was necessary to withdraw the blood samples.

Because we find that defendant’s consent was not required in order for the results of the test to be admitted into evidence, we deem it unnecessary to address the State’s argument that consent was, in fact, given. Similarly, our finding concerning consent also addresses the admissibility of the blood drawn for hospital purposes, that is, because consent is not required, all the test results are admissible whether taken at the direction of the officer or the hospital staff.

Next, we address the contention made by defendant that the trial court’s finding that defendant’s constitutional rights were violated is supported by the fact that “the State never established any reasonable grounds to request the Defendant to submit to any alcohol tests.” On a motion to suppress evidence based on a lack of probable cause, the initial burden of going forward with the evidence is on the defendant, not the State. (People v. Hattery (1985), 109 Ill. 2d 449, 466; People v. Wingren (1988), 167 Ill. App. 3d 313, 319-20.) While defendant raised the probable cause to arrest issue in his pretrial motion to suppress, he did not introduce any evidence of his arrest at the hearing on the motion and objected when the State attempted to do so. Thus, the defendant failed to carry his burden of going forward with the evidence and failed to meet his initial burden of proof. As such, we hold that defendant has waived the issue of probable cause. Hattery, 109 Ill. 2d at 466.

For the foregoing reasons, the judgment of the circuit court granting defendant’s motion to suppress is reversed, and the cause is remanded for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

UNVERZAGT, P.J., and REINHARD, J., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    JEANNE HLADISH, a Minor, by Ruth Ann Hladish, her Mother and Next Friend, et al., Plaintiffs-Appellees, v. AUGUST WHITMAN, Defendant-Appellant.
    Second District
    No. 2—89—0368
    Opinion filed December 20, 1989.

      William P. Anderson, of Fuqua, Winter, Stiles & Anderson, Ltd., of Waukegan (Bryan R. Winter, of counsel), for appellant.
    Snyder, Clarke, Dalziel & Johnson, of Waukegan (Julian Johnson, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiffs, Jeanne Hladish (Jeanne), a minor, and her parents, Ruth Ann Hladish and Edward M. Hladish (parents), filed a three-count complaint in the circuit court of McHenry County against defendant, August Whitman, seeking damages for injuries to Jeanne based on negligence, wilful and wanton conduct, and recovery for medical expenses incurred by her parents for the care and treatment of Jeanne. The trial court directed a verdict at the close of all the evidence in favor of all plaintiffs on the liability issue, and the jury returned a verdict for Jeanne in the amount of $100,000 and a verdict for her parents of $53,500 for medical expenses. The parents sought, in a post-trial motion, a judgment n.o.v. for the total amount of the medical bills submitted of $167,266.88 and, alternatively, sought an additur to increase the damages to $167,266.88, or a new trial on damages only. The trial court granted their request for an additur increasing the damages verdict to $167,266.88.

Defendant appeals from the judgment entered on both verdicts and raises the following issues: (1) whether the trial court erred in using additur to increase the damage award to the parents; (2) whether the trial court erred in refusing to instruct the jury on the definition of proximate cause; and (3) whether the trial court erred in directing a verdict on liability in favor of all the plaintiffs.

The facts relevant to the disposition of this appeal may be briefly summarized. On November 7, 1982, at approximately 5:30 p.m., plaintiffs were occupants in an automobile traveling west on Elm Street in McHenry, Illinois. While plaintiffs’ vehicle was stopped for a red light, a vehicle driven by defendant rear-ended plaintiffs’ vehicle. The collision caused Jeanne Hladish, who was seated behind the driver, to strike the left side of her head on the window frame and the coat hanger device. She was 15 years old at the time of the accident.

Just prior to colliding with plaintiffs’ vehicle, defendant collided with the rear end of another vehicle, but left the scene of that accident. According to Officer Mark Raz of the McHenry police department, defendant needed help in exiting his vehicle and had difficulty walking. There was a strong odor of alcohol emanating from defendant’s vehicle, and Officer Raz believed defendant had been drinking. Defendant also defecated while in the squad car. At the police station, defendant admitted drinking beer, although he could not recall how much. According to Raz, defendant’s balance was very shaky, his speech was slurred and garbled, and his eyes were very bloodshot. Defendant was arrested for driving under the influence of alcohol and subsequently pleaded guilty to that charge. Defendant admitted at trial to drinking eight glasses of beer between 2:50 p.m. and about 5:30 p.m. on the date of the accident. He further testified that he was not feeling well that day, that he did not recall seeing the Hladish vehicle before the collision or remember rear-ending the vehicle, and that he fell asleep or “something.”

Jeanne testified that, following the accident, she and her family continued to their destination, but that she felt excruciating pain in her head, was nauseous, and applied an ice pack to her head. The following day she was seen by her pediatrician, who examined her and referred her to a neurologist. During the following year, Jeanne experienced severe headaches and missed 60 full days and 30 half days of school. According to Jeanne, during the time between the accident and May 1983 she experienced an average of 10 pain-free hours per week. She testified that she thought of taking her life because she thought she was not going to get better, that no one knew what to do with her, and that she was becoming a burden on her parents. She attempted suicide twice between the date of. the accident and July 1984.

In December 1984, Jeanne began seeing Dr. Jan Fawcett, a psychiatrist, who prescribed medication for her migraine headaches. This was not effective, however, and she attempted suicide again in Jan-nary 1985. She was subsequently hospitalized until July 1985. Following her hospitalization, she continued seeing Dr. Fawcett and began attending a special school which could accommodate her needs. She graduated from the school and was attending De Paul University at the time of trial. She was then 21 years old.

Dr. Fawcett concluded, after his initial consultation with Jeanne, that she had a significant depression which was exacerbated by her uncontrolled headaches and their effect on her life. He further concluded that there was a significant suicide risk because of her view of her future and because of the interference with her life. According to Dr. Fawcett, Jeanne had a history subsequent to the accident of unpredictable behavior which included deep depression one moment and not so bad the next and that such a condition is not uncommon in adolescence. He also believed that control of her headaches was essential to the future prevention of her depressions. It was clear to Dr. Fawcett that her headaches were one of the major causes, or at least aggravating causes, of her depression. In Dr. Fawcett’s opinion, Jeanne’s headaches were a result of the accident; they markedly interfered with her life and were the major precipitating factor in her depression. He further opined that it was necessary that she be hospitalized between January and July 1985 and that she be placed in a special school following her hospitalization. In Dr. Fawcett’s opinion, she is at risk for recurrence of both headaches and depression for the rest of her life.

During cross-examination, Dr. Fawcett admitted that younger females generally have a much higher rate of depression. He further stated that depression may also result from a combination of biological vulnerabilities and stress, but that the actual causes of depression are not really known.

Dr. Kenneth Moore, a board-certified psychiatrist and neurologist, also testified by way of an evidence deposition. Dr. Moore treated Jeanne for her headaches. According to Dr. Moore, her headaches resulted in severe pain, sometimes lasting for days, and also consisted of knife-like or ice-pick-like pains that were brief in duration. Tests administered by Dr. Moore indicated that she was accurately reporting her pain. Dr. Moore opined that Jeanne’s headaches were caused by the automobile accident. Defendant offered no expert witnesses or any evidence regarding Jeanne’s headaches or depression. Plaintiffs submitted an itemized list of some 30 medical bills incurred on behalf of Jeanne which included various doctor’s bills, hospital bills, and bills for drugs and radiological services.

At the close of all the evidence, the trial court granted plaintiffs’ motion for directed verdict as to liability only. The court denied defendant’s tendered instruction defining proximate cause. The jury returned a verdict in the amount of $53,500 for the medical expenses incurred by the parents. Plaintiffs’ post-trial motion requested, inter alia, an additur to the parents’ award to increase the amount of the award to $167,266.88, the total medical expenses incurred for the care and treatment of Jeanne. The trial court granted the additur of $113,766.88, thus entering judgment for the parents in the amount of $167,266.88 (the original jury award of $53,500 plus the additur of $113,766.88). Defendant did not file a post-trial motion.

We first address defendant’s contention that the trial court erred in utilizing additur to increase the jury award to $167,266.88, an amount equalling the medical bills submitted by plaintiffs. Defendant contends that the jury verdict of $53,500 was appropriate because there was evidence that Jeanne’s depression was not caused by her headaches resulting from the accident, but were caused by a combination of “genetic vulnerability and the stresses of being a teenager in today’s competitive society.” Defendant further argues that the damages were unliquidated and not susceptible to easy calculation as required to utilize additur and that additur was inappropriate here where no new trial was offered to him on the issue of damages to the parents.

As an alternative to granting a plaintiff a new trial, additur has traditionally been limited in Illinois to rectifying the omission of a liquidated or easily calculated item of damages. (Fraher v. Inocencio (1984), 121 Ill. App. 3d 12, 16, 459 N.E.2d 11; Ross v. Cortes (1981), 95 Ill. App. 3d 772, 777, 420 N.E.2d 846.) Additur is unavailable where unliquidated tort damages are at issue. (Bernesak v. Catholic Bishop (1980), 87 Ill. App. 3d 681, 692, 409 N.E.2d 287; Hong v. Williams (1955), 6 Ill. App. 2d 456, 460, 128 N.E.2d 655.) Additionally, additur is improper if a defendant does not consent to it as an alternative to a new trial. (See J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 458, 516 N.E.2d 260.) Additur is a practice which should be sparingly indulged and should never be adopted except in clear cases. J.I. Case Co., 118 Ill. 2d at 457, 516 N.E.2d at 265, quoting Carr v. Miner (1866), 42 Ill. 179, 192.

Here, the issue of damages was the only question presented to the jury, and, although the parents submitted medical bills in the amount of $167,266.88, the issue of what bills were attributable to injuries that were the proximate result of defendant’s conduct was in issue. Damages were neither liquidated nor easily calculable. This is not a case of evident miscalculation or mistake on the part of the jury as to the damage award, but rather, is a determination by the jury as to what medical bills incurred were proximately caused by defendant. As that issue was in dispute here, this case was inappropriate for application of an additur.

Furthermore, additur is inapplicable here because defendant did not consent to it. Rather, defendant filed a response to plaintiffs’ post-trial motion in which he objected to an additur. Absent defendant’s consent to the additur, he was effectively denied a trial on the issue of damages. Accordingly, for these reasons we must reverse the trial court’s order increasing plaintiffs’ award from $53,500 to $167,266.88 by way of additur.

Defendant also has sought on appeal a new trial on the issue of damages as to both judgments in favor of all the plaintiffs based upon the contention that the trial court erred in refusing to give defendant’s tendered jury instruction defining proximate cause. Plaintiffs have responded that this issue is waived because defendant did not file a post-trial motion raising this question for the trial court’s consideration. We agree with plaintiffs. Defendant’s failure to file a post-trial motion following the jury trial amounted to a failure to preserve the instructional issue for review. 107 Ill. 2d R. 366(b)(2)(iii); Malott v. Hart (1988), 167 Ill. App. 3d 209, 211, 521 N.E.2d 137; see Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 348-49, 415 N.E.2d 337.

Defendant further raises the contention that the trial court erred in directing a verdict in favor of the plaintiffs on the issue of liability. Essentially, defendant argues that there is evidence from which the jury could conclude that he passed out prior to the accident either due to the effects of the previous accident or because of the illness from which he was suffering.

Plaintiffs initially reply that the issue is waived because defendant did not file a post-trial motion raising the granting of the motion for directed verdict on the issue of liability. We disagree. The general rule is that a post-trial motion need not be filed to raise the issue on appeal of the granting of a directed verdict. (Keen v. Davis (1967), 38 Ill. 2d 280, 281-82, 230 N.E.2d 859; Dyback v. Weber (1985), 134 Ill. App. 3d 426, 446, 480 N.E.2d 845, aff’d in part & rev’d in part (1986), 114 Ill. 2d 232, 500 N.E.2d 8.) Although only the liability issue was removed from the jury by the granting of the motion for directed verdict in the instant case, we conclude that the same rule is logically applicable whether the entire cause of action or the liability issue alone is taken from the jury.

Upon reviewing the merits of defendant’s argument, however, we find it baseless. The well-established rule to apply in addressing a motion for a directed verdict is that verdicts ought to be directed only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Here, the evidence established that defendant was intoxicated, that he drove his vehicle into the rear end of plaintiffs’ vehicle, which was stopped at a stop light, and that, just prior to this accident, defendant had collided with the rear end of another vehicle and had driven off from the scene of that accident. The evidence that defendant was not feeling well and could not remember rear-ending plaintiffs’ vehicle does not, under the circumstances of this accident, diminish the overwhelming evidence of defendant’s liability.

Defendant asks that upon reversal of the additur, as we decided earlier in this opinion, we reinstate the original jury verdict of $53,500. We agree that this results from the reversal of the additur. However, the parents’ post-trial motion requested, alternatively, judgment n.o.v., additur, or a new trial on damages only. The trial court made no ruling on the requests for judgment n.o.v. or for a new trial on damages. Moreover, the parties addressed only the additur issue in their appellate briefs. We therefore reverse the judgment of additur, reinstate the $53,500 judgment, and remand with directions to the trial court to consider the remaining contentions of the parents in their post-trial motion relating to judgment n.o.v. and a new trial on damages.

The judgment of the circuit court is reversed, and this cause is remanded with directions.

Reversed and remanded with directions.

UNVERZAGT, P.J., and INGLIS, J., concur.


text:
    THE VILLAGE OF LISLE, Plaintiff-Appellant, v. THE VILLAGE OF WOODRIDGE et al., Defendants-Appellees.
    Second District
    No. 2—88—1148
    Opinion filed December 20, 1989.

      Robert T.C. Kay, Assistant Village Attorney, of Lisle, and Thomas W. Fawell, of Katten, Muchin & Zavis, of Oak Brook (John J. Curry, Jr., of counsel), for appellant.
    Thomas W. Good, of Gorski & Good, of Wheaton (Gerald M. Gorski, of counsel), for appellee Village of Woodridge.
    Peter M. King, of Jay A. Canel, P.C., of Chicago (Jay A. Canel, of counsel), for appellee Forest City-Harris Group.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, the Village of Lisle (Lisle), filed an 11-count complaint in the circuit court of Du Page County naming as defendants the Village of Woodridge (Woodridge) and Forest City-Harris Group (Forest City). Counts I, II and IV sought specific performance, permanent injunction and damages for breach of contract, respectively. The remainder of the complaint sought: damages for civil conspiracy (count III), damages for tortious interference with economic expectation (count V), a constructive trust (count VI), declaratory judgment on four separate bases (counts VII through X), and damages for tortious interference with a contract (count XI). On September 6, 1988, the circuit court dismissed counts VI, VIII, IX, and X pursuant to sections 2 — 615 and 2 — 619 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619) and count III pursuant to section 2 — 615. Count V was dismissed without prejudice as to Forest City with leave to amend. On October 27, 1988, the circuit court granted defendants’ motions for summary judgment as to counts I, II, IV, V, VII and XI. On November 22, 1988, Lisle appealed the October 27, 1988, order granting summary judgment in favor of Woodridge and Forest City.

Although Lisle raises numerous issues on appeal, the two issues dispositive of this appeal are: (1) whether this court has jurisdiction to consider the trial pourt’s dismissal of counts III, VI, VIII, IX and X; and (2) whether the boundary-line agreement between Woodridge and Lisle prohibited Woodridge’s subsequent agreement to purchase and annex property on Lisle’s side of the boundary line.

Lisle and Woodridge are municipalities located in Du Page County. In 1979, they entered into a written boundary-line agreement which provides, in pertinent part:

“2. Neither Lisle nor Woodridge shall act to annex or exercise any zoning or subdivision control authority beyond the boundary line established by this Agreement.”

On March 7, 1987, Woodridge’s board of trustees authorized by ordinance the purchase of an approximately 140-acre parcel of land, part of which lies on the Lisle side of the boundary line established by the boundary-line agreement. This parcel was purchased from Forest City, the beneficial owner of a land trust which consisted in part of the 140-acre parcel. That purchase was conditioned on Woodridge and Forest City entering into an annexation agreement as well as Wood-ridge approving a zoning ordinance for the subject property.

On May 3, 1988, Lisle filed its 11-count, third amended complaint. Pursuant to Woodridge and Forest City’s motions, the trial court dismissed with prejudice counts III, VI, VIII, IX and X on September 6, 1988. That order was not final and appealable as it did not contain the language required by Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), and Lisle did not appeal.

On October 27, 1988, the circuit court granted summary judgment as to the remaining six counts of Lisle’s complaint. The court found that paragraph 2 of the boundary agreement prohibiting the parties from annexing beyond the boundary line was invalid as an unauthorized assumption of power, relying on Village of Long Grove v. Village of Kildeer (1986), 146 Ill. App. 3d 979, 497 N.E.2d 319. On November 22,1988, Lisle filed its notice of appeal. The notice of appeal states:

“PLAINTIFF-APPELLANT, Village of Lisle, an Illinois municipal corporation, by its attorneys FATTEN MUCHIN & ZAVIS, hereby appeals to the Appellate Court of Illinois, Second District, from the Judgment Order entered on October 27, 1988 by the Circuit Court of the Eighteenth Judicial Circuit, Du Page County, Illinois, Civil Division I, The Honorable Judge John W. Darrah presiding. A copy of said Judgment Order is marked Exhibit A, attached hereto and made a part hereof.
Plaintiff-Appellant prays that the Judgment Order entered against Plaintiff-Appellant and in favor of Defendants-Appellees upon Defendants-Appellees’ Motions for Summary Judgment be reversed or, in the alternative, reversed and remanded for further proceedings consistent with the opinion of the Appellate Court.
Plaintiff-Appellant further prays that this cause be remanded to the Circuit Court of the Eighteenth Judicial District, Du Page County, Illinois, for entrance of an appropriate Judgment Order which grants Plaintiff-Appellant relief requested in its complaint and for other relief to which it is entitled.”

Woodridge contends that this court lacks jurisdiction to consider the September 6, 1988, dismissal order because Lisle’s notice of appeal refers only to the October 27, 1988, order granting summary judgment in favor of Woodridge and Forest City. Relying on Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380, Lisle responds that the omission of the September 6 order from the notice of appeal was a technical error which does not deprive this court of jurisdiction as the September 6 order was a procedural step which ultimately produced the final judgment of October 27,1988.

Supreme Court Rule 303(cX2) states:

“(c) Form and Contents of Notice of Appeal.
(2) It shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court.” (107 Ill. 2d R. 303(c)(2).)

This court held in Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 467 N.E.2d 1153, that, where a plaintiff’s notice of appeal was from a summary judgment order as to certain counts and did not refer to an earlier order dismissing other counts, a reviewing court lacks jurisdiction to consider the earlier dismissal order that was not otherwise timely appealed. (126 Ill. App. 3d at 1062.) In a slightly different factual circumstance, our supreme court has held, citing Rule 303(c)(2), that a notice of appeal which referred to the dismissal order as to one defendant but not the earlier dismissal order as to another defendant did not bestow jurisdiction on the reviewing court to consider the separate, earlier dismissal order not mentioned in the notice of appeal. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 442, 490 N.E.2d 1252.) Similarly, in Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc. (1979), 78 Ill. 2d 56, 398 N.E.2d 3, the supreme court held that the failure to mention an earlier order dismissing a counterclaim in the notice of appeal seeking review of a summary judgment order deprived the reviewing court of jurisdiction to consider the dismissal order. 78 Ill. 2d at 61.

This court’s decision in Long v. Soderquist is consistent with the supreme court's application of Rule 303(c)(2) to similar circumstances and is directly controlling in this case. Lisle’s notice of appeal refers only to the October 27, 1988, summary-judgment order and requests relief from that order only. As such, this court lacks jurisdiction to consider any issues raised by the September 6, 1988, dismissal order. In so holding, we note that although Lisle could not appeal the September 6 order prior to entry of summary judgment on October 27, 1988, as the order lacked the requisite Rule 304(a) language regarding finality and appealability, Lisle could have appealed the order following the October 27 summary judgment as a final order had it included reference to the dismissal order in its notice of appeal.

Lisle’s reliance on Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380, is misplaced. In Burtell, the court held that a notice of appeal need not specify a particular order to confer jurisdiction if the order specified in the notice of appeal directly relates back to the judgment or order sought to be reviewed. (76 Ill. 2d at 434, 394 N.E.2d at 383.) The unspecified judgment is reviewable if it is a “ ‘step in the procedural progression leading’ ” to the judgment specified in the notice of appeal. (76 Ill. 2d at 435, 394 N.E.2d at 383.) The earlier order sought to be reviewed but not mentioned in the notice of appeal was an order for an accounting, and the notice of appeal referred only to the judgment which was based on the accounting. 76 Ill. 2d at 431, 394 N.E.2d at 381.

The present case is distinguishable from Burtell in that the earlier order dismissing five counts of Lisle’s complaint was not a step in the procedural progression leading to the summary-judgment order as to the other six counts. It was unnecessary for the circuit court to have entered the dismissal order in order for it to enter subsequently the summary judgment as to the other counts. Thus, the summary-judgment order as to the remaining counts does not directly relate back to the dismissal order, and, as such, Burtell is not controlling in this case.

As to the remaining counts at issue in this appeal, Lisle contends that the boundary-line agreement is valid and enforceable and that the trial court therefore erred in granting summary judgment in favor of Woodridge and Forest City based on the contract’s invalidity. Specifically, Lisle first argues that the agreement is authorized by article VII, section 10, of the Illinois Constitution (Ill. Const. 1970, art. VII, §10) and section 5 of the Intergovernmental Cooperation Act (Ill. Rev. Stat. 1987, ch. 127, par. 745). Second, Lisle maintains that the agreement prohibits the acquisition of that portion of the 140-acre parcel on Lisle’s side of the boundary line. Third, Lisle contends that Wood-ridge is estopped from asserting the invalidity of the agreement because Woodridge had enjoyed the benefits of and sought compliance with the agreement in the past. Finally, Lisle urges this court to modify or reverse its decision in Village of Long Grove v. Village of Kildeer (1986), 146 Ill. App. 3d 979, 497 N.E.2d 319, or, at the very least, distinguish it from this case.

Woodridge and Forest City respond that the trial court correctly ruled that paragraph 2 of the agreement prohibiting annexation was invalid and therefore Woodridge was not prohibited by the agreement from purchasing that portion of the 140-acre parcel located on Lisle’s side of the boundary line. Particularly, they argue that pursuant to section 11 — 12—9 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 11—12—9) Lisle and Woodridge lacked the authority to enter into an agreement prohibiting each other from annexing property. Woodridge and Forest City further maintain that Village of Long Grove v. Village of Kildeer is dispositive of whether Woodridge and Lisle were authorized by law to prohibit annexation by the other. Additionally, they posit that article VII, section 10, of the Illinois Constitution and section 5 of the Intergovernmental Cooperation Act do not create an independent source of municipal authority which would validate that portion of the boundary-line agreement prohibiting annexation. Woodridge and Forest City also contend that the agreement does not expressly prohibit the purchase of property on Lisle’s side of the boundary line. Finally, they argue that Woodridge is not estopped from raising the invalidity of the agreement.

We find it necessary to carefully frame the precise issue before this court. Although Lisle suggests that the boundary-line agreement is implicated because of Woodridge’s purchase of the subject property and that such purchase is prohibited by the agreement, we conclude that the question of Woodridge’s purchase is itself not at issue in this case. Although Woodridge did purchase the subject property in this case, the deed provides, inter alia, that Woodridge and Forest City must execute and deliver an annexation agreement and Woodridge pass an ordinance to zone the subject property within 90 days or the subject property would revert. Therefore, for the purchase to ultimately come to fruition, an annexation agreement and zoning ordinance would first have to exist. Thus, under these facts we do not view the purchase by Woodridge as a separate act independent of an annexation. Rather, the purchase is wholly dependent upon Woodridge and Forest City achieving an annexation agreement. Thus, we characterize the purchase conditional upon an annexation agreement as “an act to annex.” It is, therefore, expressly encompassed by paragraph 2 of the boundary-line agreement, which provides that neither municipality shall “act to annex.”

We note at this point that although Woodridge had not annexed the property at the time this suit was filed, Lisle has asked for a declaratory judgment as to its rights under the agreement, including its right to enforce the agreement as to any future annexation of the subject property by Woodridge. Furthermore, the deed requires an annexation agreement between Forest City and Woodridge, otherwise the property will revert to Forest City. Thus, the issue of annexation under the agreement is properly before us.

The boundary-line agreement states, in pertinent part:

“WHEREAS, Woodridge and Lisle recognize the need to provide for logical municipal boundaries and areas of municipal authority between their respective municipalities in order to plan effectively and efficiently for growth and potential development between their communities and conservation of available resources for their respective citizens; and
WHEREAS, Woodridge and Lisle have authorized, by ordinance, the execution of this Agreement as an exercise of their respective authority and in accordance with the intergovernmental cooperation provisions of the Constitution of the State of Illinois of 1970;
NOW, THEREFORE, in consideration of the mutual promises contained herein and in further consideration of the recitals set forth above, it is hereby agreed between Woodridge and Lisle, as follows:
1. That in the unincorporated area lying between the two municipalities the boundary line, for municipal government planning, subdivision control, official maps, ordinances, and other municipal purposes shall be as follows: [remainder contains description of the boundary line].
2. Neither Lisle nor Woodridge shall act to annex or exercise any zoning or subdivision control authority beyond the boundary line established by this Agreement.
3. Each municipality shall actively oppose any attempt to effectuate an annexation to its respective municipality which would have the effect of changing the boundaries established under this Agreement.
4. This Agreement shall not be construed so as to limit or adversely affect the right of either municipality to file a statutory objection to proposed rezonings within one and one-half (L-V2) [sic] miles of its corporate limits.
5. This Agreement shall be binding upon, and shall apply only to relations between Woodridge and Lisle. Nothing herein shall be used or construed to affect, limit, or invalidate the boundary claims of either Woodridge or Lisle insofar as such claims shall relate to any municipality which is not a party to this Agreement.
6. Neither Lisle nor Woodridge shall directly or indirectly seek any modification of this Agreement through court action and this Agreement shall remain in full force and effect until amended or changed by the mutual agreement of both respective corporate authorities.
7. Should any provisions of this Agreement be declared invalid for any reason, such invalidation shall not affect other provisions of this Agreement which can be given effect without the invalid provisions and to this extent the provisions of this Agreement are to be construed as severable.
8. This Agreement shall be construed in accordance with the laws of the State of Illinois and shall be published by the respective municipalities and recorded or filed with appropriate County Recorders, County Clerks, and others as their interests may appear.” (Emphasis added.)

The crucial language relevant to this appeal is contained in paragraph 2 of the agreement. To the extent the agreement prohibits Woodridge from acting to annex the subject property, we find it to be invalid and unenforceable. Our decision in Village of Long Grove v. Village of Kildeer (1986), 146 Ill. App. 3d 979, 497 N.E.2d 319, is controlling on this issue. In Village of Long Grove we held that there was no statutory authority for municipalities to enter into a boundary-line agreement prohibiting annexation. (146 Ill. App. 3d at 980-82, 497 N.E.2d at 320-21.) That holding applies equally to an agreement prohibiting an act to annex. Thus, the boundary-line agreement in this case is invalid to the extent that paragraph 2 purports to prohibit any act to annex by either Lisle or Woodridge.

Neither are we persuaded by the recent amendment to section 11 — 12—9 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 11—12—9) now expressly authorizing boundary-line agreements prohibiting annexation. That amendment states that it is effective “[o]n and after September 24, 1987,” and, as such, has no effect on this case. Furthermore, such prospective language contradicts Lisle’s argument that the amendment reflects the legislature’s intent to have allowed boundary-line agreements prohibiting annexation under the previously unamended version of section 11 — 12—9.

Lisle also argues that Woodridge is estopped from asserting the invalidity of the agreement because Woodridge enjoyed the benefits of and sought compliance with the agreement in the past. While it is true that a municipality may not avoid enforcement of a contract based on some irregularity in the formation of the contract if it has otherwise properly entered into the contract and the other party has substantially performed its obligations, it is equally true that a contract entered into by a municipality which lacks the authority to do so is ultra vires and void. (McGovern v. City of Chicago (1917), 281 Ill. 264, 280-82, 118 N.E. 3.) Where, as here, the municipality lacks the power to contract, then the municipality may avoid enforcement of the contract as void, even though the other contracting party has performed satisfactorily. See McGovern, 281 Ill. at 280-82,118 N.E. at 9.

Finally, Lisle contends that the agreement is valid pursuant to article VII, section 10, of the Illinois Constitution (Ill. Const. 1970, art. VII, §10) and section 5 of the Intergovernmental Cooperation Act (Ill. Rev. Stat. 1987, ch. 127, par. 745). Article VII, section 10, of the Illinois Constitution clearly authorizes municipalities to enter agreements to “exercise, combine, or transfer any power or function, in any manner not prohibited by law or by ordinance.” (Emphasis added.) (Ill. Const. 1970, art. VII, §10.) The Intergovernmental Cooperation Act provides, in pertinent part: “Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity or undertaking which any of the public agencies entering into the contract is authorized by law to perform.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 127, par. 745.) Both article VII, section 10, of the Illinois Constitution and section 5 of the Intergovernmental Cooperation Act authorize municipalities to enter into cooperative agreements, but only to the extent that the agreement encompasses subject matter over which the municipalities already have authority. Article VII, section 10, uses the word “power,” and section 5 limits the agreement to those functions a municipality is “authorized by law to perform.” Clearly, neither article VII, section 10, nor section 5 gives municipalities a separate source of authority to perform functions not otherwise authorized by the Constitution or statute. Accordingly, we reject Lisle’s argument that article VII, section 10, and section 5 grant municipalities the authority to enter into agreements which give the municipalities powers which they otherwise do not have.

We therefore affirm the order of the circuit court of Du Page County granting summary judgment in favor of Woodridge and Forest City and dismiss the appeal as to the remaining counts.

Affirmed in part and dismissed in part.

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


text:
    PHIL DRESSLER & ASSOCIATES, INC., Plaintiff-Appellant, v. OLD OAK BROOK INVESTMENT CORPORATION, Defendant-Appellee (Michael Butler, Defendant).
    Second District
    No. 2—89—0327
    Opinion filed December 27, 1989.

      Louis A. Varchetto, Joseph G. Skryd, Richard M. Guerard, and John J. Pcolinski, Jr., all of Guerard, Kalina, Musial, Ulrich & Varchetto, Ltd., of Wheaton, for appellant.
    Dean A. Dickie and Michael J. Howlett, Jr., both of Phelan, Pope & John, Ltd., of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Phil Dressier & Associates, Inc., brings this interlocutory appeal pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) from an order of the circuit court of Du Page County entering summary judgment in favor of defendant, Old Oak Brook Investment Corporation, on counts II and III of plaintiff’s complaint seeking specific performance and declaratory relief in connection with an alleged contract for the sale of certain real property.

On appeal, plaintiff contends that the circuit court erred in finding that its claims were barred by a release executed by plaintiff and defendant because a genuine issue existed as to a material fact, namely, whether the release was procured by fraud. Defendant responds that no genuine issue exists in this regard and summary judgment was properly entered. Defendant also contends that this court is without jurisdiction to review the summary judgment order, and accordingly, this appeal must be dismissed.

As this court’s jurisdiction is in issue, we briefly recount the procedural history of this case. On May 23, 1988, plaintiff filed its three-count complaint against defendant and Michael Butler, who is not a party to this appeal. Plaintiff alleged that a contract between plaintiff and defendant provided defendant the option to purchase a certain lot, after certain other lots were sold, subject to the right of Michael Butler or his sister to purchase the lot “for the purpose of consolidating his/her property for the use of himself or herself or his or her family.” Plaintiff further alleged that defendant refused to sell the lot, indicating that Michael Butler had exercised his option, though it was known to defendant that Butler intended to purchase the property for resale rather than personal use. Plaintiff also alleged that defendant fraudulently induced it to execute a release from liability for claims on the contract. Count II was against defendant only and sought specific performance of the contract. Count III is against defendant and Butler and sought certain declaratory relief. Count I is against Butler . only and alleged intentional interference with contractual relations.

Defendant moved for summary judgment on counts II and III on the basis of, inter alia, the release, contending that no genuine issue existed with respect to its validity. Following a hearing on the motion on July 13, 1988, the circuit court entered summary judgment in favor of defendant. The circuit court’s order did not contain a finding of no just reason to delay enforcement or appeal of the order pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Thereafter, on July 13, 1988, plaintiff filed a notice of appeal from the order. On July 19, 1988, on defendant’s motion to clarify the July 13 order nunc pro tunc, the circuit court entered an order stating that the July 13 order was amended, nunc pro tunc, to include a finding of no just cause to delay enforcement or appeal.

On December 8, 1988, on defendant’s motion, this court dismissed, for lack of jurisdiction, the appeal taken pursuant to the July 13, 1988, notice of appeal. Thereafter, on plaintiff’s motion, the circuit court on March 7, 1989, entered an order finding, as of that date, no just cause to delay enforcement or appeal of the July 13, 1988, order. On March 31, 1989, plaintiff filed a notice of appeal from the July 13, 1988, order.

Defendant filed a motion in this court to dismiss the present appeal.. We initially denied the motion, but defendant reiterated its position in its appellate brief. We note our firmly established obligation to consider our jurisdiction and dismiss an appeal if jurisdiction is found wanting. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 490 N.E.2d 1252.) Having again considered the question, we conclude that jurisdiction is proper.

The July 13, 1988, order was a final judgment as to fewer than all of the parties and claims in an action involving multiple claims and parties. Pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), such an order is not appealable in the absence of an express finding of no just reason to delay its enforcement or appeal. (Ferguson, 111 Ill. 2d at 442, 490 N.E.2d at 1254.) Prior to its amendment, effective January 1, 1989, Rule 304(a) provided that the time for filing the notice of appeal shall run from the entry of the required finding. (107 Ill. 2d R. 304(a).) When an order contains the requisite finding, the affected party loses the right to appeal by waiting until the termination of the remainder of the case. In re Johnson (1985), 134 Ill. App. 3d 365, 368, 480 N.E.2d 520.

Here, the July 13, 1988, order did not contain the requisite finding and, hence, was not appealable at the time entered. It is undisputed that the notice of appeal filed on that day was premature and that the subsequent order of July 19, 1988, purporting to amend the July 13, 1988, order nunc pro tunc to include the finding could not cure the jurisdictional defect where the later order was not a correction of a clerical error but was an attempt to supply omitted judicial action. (See Rauscher v. Albert (1985), 138 Ill. App. 3d 799, 804-05, 485 N.E.2d 1362.) “The office of an order nunc pro tunc is only to supply some omission in the record of an order which was really made but omitted from the record. If an order is actually made by the court but there is a failure to enter it, the court may correct the mistake in failing to enter the order and make the record show the order which the court actually made as of the time it was made.” (People v. Rosenwald (1915), 266 Ill. 548, 554, 107 N.E. 854, 856.) No court has a right, as attempted in the case at bar, to create an order by that method or to supply an order which was never, in fact, made. Rosenwald, 266 Ill. at 554, 107 N.E. at 856.

Defendant maintains, however, that while the addition of the finding was not effective nunc pro tunc, the finding was effectively entered on July 19, 1988, and the time for filing a notice of appeal began to run on that date and expired 30 days thereafter. Thus, defendant contends the instant appeal is not timely. Plaintiff responds that the July 19, 1988, order should be given no effect, and thus the requisite finding was first entered on March 7, 1989, such that plaintiff’s notice of appeal filed on March 31, 1989, was timely.

We agree with plaintiff under the circumstances. It is apparent that the circuit court entered the July 19 order, at the behest of defendant, to cure the jurisdictional defect resulting from the premature notice of appeal. We do not believe the circuit court intended its order to have prospective effect if it could not properly be entered nunc pro tunc, and in the circumstances here, it would be manifestly unfair to give the order prospective effect. This is particularly true here where defendant successfully sought a dismissal of plaintiff’s first appeal to this court on the basis that the July 19 nunc pro tunc order could not validate the prior notice of appeal. We need not determine whether under other facts an order improperly entered nunc pro tunc can be otherwise effective from the time of entry.

The July 19, 1988, order was of no effect, and the July 13 order first became appealable on March 7, 1989; therefore, the instant appeal was timely filed.

Turning to the merits of this appeal, the pleadings, depositions, and affidavits establish the following facts. Plaintiff and defendant entered into an agreement pertaining to the development and marketing of certain real estate owned by defendant. The agreement provided that “[defendant] shall have the right during the term of this Agreement to purchase any lot for the sale of which a contract has not been entered into, for the scheduled price.” The agreement also contained the following provision:

“It is agreed that Lot 12 shall be offered for sale only after a binding contract for sale has been entered into for the other lots listed on Exhibit ‘A’. Michael Butler and/or Jorie Butler Kent shall have an option any time prior to the signing of a binding contract for sale, to purchase the lot, for the purpose of consolidating his/her property for the use of himself or herself or his or her family. Any other lots in the Old Oak Brook subdivision owned by Owner, and not closed on contracts now pending, shall be added to Exhibit ‘A’ and shall become subject to this agreement.”

On or about March 3, 1988, after all lots except lots 12, 14 and 15 had been sold, plaintiff offered to purchase lot 12. Plaintiff was informed by a letter from David Weber, an officer of defendant, that its offer was not accepted because lots 14 and 15 remained unsold. Thereafter, on March 10, 1988, plaintiff submitted offers to purchase lots 12, 14 and 15 and sent contract forms to defendant for execution. Defendant apparently executed the contract forms for lots 14 and 15 only. Phil Dressier, president of plaintiff, testified in his deposition that Weber told him that “[y]ou cannot buy Lot 12 because Michael Butler is going to exercise his option on Lot 12.” The record contains a letter dated March 29, 1988, from plaintiff’s attorney to defendant’s attorney which stated in pertinent part, as follows:

“This letter is to confirm a telephone conversation which I had with David Webber [sic] on March 29, 1988. At that time, he indicated to me that Michael Butler had not at this time made any decision regarding Lot 12 and that in the event Phil Dressier & Associates, Inc. did not wish to proceed with the purchase of Lots 14 and 15 without Lot 12, that Old Oak Brook Investment Corporation was then requesting that Phil Dressier & Associates, Inc.’s signs be removed from the properties. I indicated to him as agent and attorney for Phil Dressier & Associates, Inc., that Phil Dressier & Associates, Inc. would not proceed on contracts for Lots 14 and 15 under the existing conditions and has withdrawn all offers for the purchase of Lots 12,14 and 15.”

On April 20, 1988, plaintiff and defendant executed a mutual release of any claims arising in connection with the development agreement. Phil Dressier testified in his deposition that, prior to signing the release, he asked George Milman, an officer of defendant, whether Michael Butler was going to exercise his option to purchase lot 12 exactly under the terms of the agreement and whether defendant had any “side deals.” According to Dressier, Milman responded that Butler was going to exercise his option pursuant to the agreement and that no side deals existed. Milman stated in an affidavit that he had no knowledge of Butler’s intentions and that he so advised Dressier.

Milman stated that he had no knowledge of any agreement between Michael Butler and Carol Shell respecting the sale of lot 12 to Shell. David Weber similarly stated in his affidavit that he was unaware of Butler’s actual intentions and was unaware of any agreement between Butler and Carol Shell.

Shell testified at her deposition that she and Michael Butler had reached an oral agreement with respect to lot 12 whereby Butler agreed to exercise his option and resell the lot to Shell for a $25,000 profit. According to Shell, she informed David Weber of this agreement during a telephone conversation that took place during the first week of March 1988. Shell further testified that her agreement with Butler was never reduced to writing and the sale was never completed.

On May 23, 1988, a written agreement was executed for the sale of lot 12 to Michael Butler and Reetz Gammonley Corporation. The same day, plaintiff filed its complaint in this action, alleging that defendant breached the development agreement by failing to sell plaintiff lot 12 and that defendant fraudulently induced plaintiff to execute the release. Plaintiff sought declaratory relief and specific performance. The circuit court entered summary judgment in favor of defendant on the basis of the release executed by plaintiff and defendant.

Plaintiff contends that a genuine issue of material fact exists with respect to whether the release was procured by fraud and is therefore invalid. Plaintiff further maintains that the release is invalid because of fraud in the inducement.

A release may be set aside if there is fraud in the inducement. (Ainsworth Corp. v. Cenco, Inc. (1982), 107 Ill. App. 3d 435, 439, 437 N.E.2d 817.) In order to constitute fraud in the inducement, the defendant must have made a false representation of a material fact knowing or believing it to be false and doing it for the purpose of inducing the plaintiff to act. The plaintiff must also show his reasonable belief in and reliance on the statement to his detriment. Glazewski v. Coronet Insurance Co. (1985), 108 Ill. 2d 243, 249, 483 N.E.2d 1263.

Here, according to Phil Dressler’s deposition testimony, in connection with the execution of the release, George Milman, an officer of defendant, stated in response to a question by Dressier that Michael Butler was going to exercise his option to purchase lot 12 according to the terms of the agreement. This testimony contradicts Milman’s affidavit stating that he advised Dressier that he was unaware of Butler’s intentions. According to Dressier, Milman further stated that defendant was not involved in any side deals. However, there is no evidence suggesting that the latter representation was untrue. Nevertheless, with respect to the representation that Butler was going to exercise his option in accordance with the agreement, there is evidence that, contrary to the representation, Butler was engaged in negotiations with Carol Shell for resale of the property and defendant knew of these negotiations.

While the statement of George Milman in his affidavit that he was unaware of any agreement between Butler and Shell is uncontradicted, a similar statement in David Weber’s affidavit is contradicted by Carol Shell’s deposition testimony that she told Weber of an agreement between Butler and herself. As Weber is an officer of defendant, his knowledge in this respect is properly imputed to defendant (see People ex rel. Daley v. Warren Motors, Inc. (1986), 114 Ill. 2d 305, 320, 500 N.E.2d 22), and his knowledge could properly supply the element of scienter. Cf. People v. American Medical Centers of Michigan, Ltd. (1982), 118 Mich. App. 135, 324 N.W.2d 782.

Defendant points out that the deal between Butler and Shell was never finalized. However, the representation was not as to this specific transaction, but rather, pertained generally to Butler’s intent to exercise his option.

Defendant contends that the representation cannot be con-, sidered fraud because it constituted a mere prediction of future conduct upon which plaintiff had no right to rely. We disagree. While misrepresentations as to something to be done in the future generally do not constitute fraud, a statement of matters in the future, if affirmed as a fact, may amount to a fraudulent misrepresentation if it amounts to an assertion of fact. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 490-91, 429 N.E.2d 1267.) As related by Phil Dressier in his deposition testimony, Milman’s representation was such an assertion of fact. Moreover, under the circumstances here, Milman’s statement was, in substance, a representation as to Butler’s present intention which was then a present fact.

Defendant further contends that plaintiff could not justifiably rely on defendant’s representation. Defendant notes that reliance upon representations of others is not justified when the party so relying has “ample opportunity to ascertain the truth of the representations before he acts.” (Schmidt v. Landfield (1960), 20 Ill. 2d 89, 94, 169 N.E.2d 229.) Defendant contends that plaintiff had the opportunity to inquire directly of Michael Butler about his plans with respect to lot 12. In our view, at this stage of the proceeding plaintiff must only raise a genuine issue of fact on the question, which it has done.

Defendant also argues that plaintiff suffered no injury as a result of the execution of the release. While nominally directed at the validity of the release, in substance defendant’s argument is addressed to the merits of plaintiff’s claim. Defendant contends that plaintiff never acquired the right to purchase lot 12 because plaintiff refused to purchase lots 14 and 15 except as part of a “package deal” with lot 12. Defendant maintains that contracts for the sale of lots 14 and 15 were never entered into, and therefore, no obligation to sell lot 12 to plaintiff arose. Accordingly, defendant concludes plaintiff has no right to specific performance.

This argument was made below but not ruled upon. As we may affirm on any basis appearing in the record regardless of whether relied upon by the trial court (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9), we briefly consider this argument now.

Suffice it to say that we do not find sufficient facts in the record to allow us to agree with defendant’s characterization of the transaction relating to lots 12, 14 and 15. Defendant maintains that plaintiff’s offer was a package deal. While it appears that plaintiff desired to purchase all three lots, it is not entirely clear from the record that the offers were not separate and subject to separate acceptance. Similarly, despite defendant’s characterization of its response as a counteroffer to sell lots 14 and 15 alone, it is not clear from the record that defendant did not, in fact, accept the offers for lots 14 and 15 such that, contrary to defendant’s assertion, contracts for the sale of those lots did come into existence. Factual questions exist on this issue. We express no opinion at this point on the correctness of defendant’s legal reasoning or whether it reflects a proper construction of the contract.

A motion for summary judgment should only be granted when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) As genuine issues of fact exist, summary judgment was improper.

The judgment of the circuit court of Du Page County is reversed and the cause remanded.

Reversed and remanded.

INGLIS and McLAREN, JJ., concur.


author: JUSTICE DUNN

text:
    PATRICIA J. MIRANDA, Plaintiff-Appellant, v. JEWEL COMPANIES, INC., Defendant-Appellee.
    Second District
    No. 2—89—0187
    Opinion filed December 27, 1989.

      Michael F. Harvey, of Wheaton, for appellant.
    Francis D. Morrissey, Gerald L. Maatman, Jr., and Oran F. Whiting, all of Baker & McKenzie, of Chicago, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Patricia J. Miranda, appeals the trial court’s order dismissing her complaint with prejudice, the trial court having found plaintiff’s fraud claim against her employer, defendant, Jewel Companies, Inc., preempted by Federal labor law. On appeal, plaintiff contends that the existing collective-bargaining agreement and the Federal labor statutes are not applicable to her fraud claim and need not be analyzed in order to resolve the claims alleged in her complaint. We affirm the dismissal for the reasons discussed below.

I. THE STANDARD OF REVIEW

The trial court granted defendant’s motion to dismiss filed pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619). Defendant asserted, inter alia, that section 301(a) of the Labor Management Relations Act (LMRA) preempted plaintiff’s claim (29 U.S.C.A. § 185(a) (West 1982)). A movant proceeding under section 2 — 619 concedes all well-pleaded facts contained in the complaint but does not admit conclusions of law or conclusions of material fact unsupported by allegations of material fact. (Magnuson v. Schaider (1989), 183 Ill. App. 3d 344, 352, 538 N.E.2d 1309, 1315; see also Ronning Engineering Co. v. Adams Pride Alfalfa Corp. (1989), 181 Ill. App. 3d 753, 757, 537 N.E.2d 1032, 1035.) Such motion to dismiss should be granted only when it raises an affirmative matter which negates the plaintiff’s cause of action completely or which refutes crucial conclusions of law or material fact that are unsupported by specific facts alleged in the plaintiff’s complaint. (Egidi v. Town of Libertyville (1989), 181 Ill. App. 3d 542, 546, 537 N.E.2d 369, 372.) The function of the appellate court in reviewing the trial court’s dismissal of a complaint pursuant to section 2 — 619 is limited to a consideration of the legal questions presented by the pleadings. (See Ronning Engineering Co., 181 Ill. App. 3d at 758, 537 N.E.2d at 1035); however, such review is independent, and the appellate court is not required to defer to the trial court’s reasoning. (See Oak Park Trust & Savings Bank v. Village of Mount Prospect (1989), 181 Ill. App. 3d 10, 19, 536 N.E.2d 763, 769.) Thus, although we concur in the result reached by the trial court, viz., dismissal with prejudice of plaintiff’s complaint, we believe that the trial court’s reasoning, although correct, is insufficient to support such a result. Nevertheless, a reviewing court may affirm a dismissal of a complaint on any grounds supported by the record. Woodson v. North Chicago Community School District No. 64 (1989), 187 Ill. App. 3d 168, 172, 543 N.E.2d 290, 292.

The issue presented by plaintiff’s appeal is whether the trial court properly dismissed plaintiff’s complaint with prejudice as preempted by Federal labor law. As discussed below, insofar as the resolution of plaintiff’s claims requires the interpretation and application of a collective-bargaining agreement, State court jurisdiction over plaintiff’s claims is duly preempted by Federal labor law; however, insofar as plaintiff’s claims rely upon and must be resolved by reference to the Illinois Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.), the Act provides the exclusive remedies for the economic losses she alleges.

The following facts may be adduced from the record on appeal. Plaintiff, an employee of defendant since 1963, sustained a work-related injury to her foot on August 2, 1984. Defendant did not dispute plaintiff’s injury or plaintiff’s entitlement to compensation benefits pursuant to the Act. At some point in 1985, defendant made a statement to plaintiff to the effect that she was not entitled to receive compensation benefits simultaneously with vacation pay, apparently in response to plaintiff’s inquiry on this subject. Defendant then proceeded to pay plaintiff for four weeks’ vacation and, thereafter, reinstituted payment of compensation benefits to plaintiff.

At the times relevant to plaintiff’s allegations, the terms and conditions of plaintiff’s employment with defendant were subject to a collective-bargaining agreement between defendant and plaintiff’s union. The collective-bargaining agreement provided for employees’ vacations and vacation pay; it further provided for leave of absence for employees due to illness or injury. Finally, the collective-bargaining agreement provided for the arbitration of grievances, which it defined as “any dispute involving the interpretation or application of the provisions of the Contract.” Plaintiff’s complaint alleges the existence of the parties’ collective-bargaining agreement and the Illinois Workers’ Compensation Act.

The complaint further alleges that defendant’s representation concerning plaintiff’s entitlement to workers’ compensation benefits with regard to vacation pay was a false representation made by defendant intentionally and with the knowledge that plaintiff would rely upon it. The complaint goes on to allege that it was defendant’s policy to substitute wages for such benefits and that the policy constituted a fraudulent practice which deprived plaintiff of wages and statutory benefits. We note these allegations separately from the facts set out above for the simple reason that these allegations are not well-pleaded facts but constitute, in the main, conclusions of law which may not be presumed as true in the context of a section 2 — 619 motion to dismiss. (See Magnuson, 183 Ill. App. 3d at 352, 538 N.E.2d at 315.) In essence, plaintiff claims that because her employer told her she could not collect vacation pay and workers’ compensation benefits simultaneously, her employer committed fraud upon her.

Without discussion, the trial court rejected defendant’s initial motion to dismiss which alleged that the Illinois Workers’ Compensation Act provided plaintiff’s exclusive remedy, or, in the alternative, that plaintiff was required to exhaust her administrative remedies pursuant to the grievance-arbitration mechanism contained in the collective-bargaining agreement. Defendant next sought dismissal of plaintiff’s complaint on the theory that Federal labor law preempted her claims, and it was on this basis that the trial court granted the dismissal with prejudice.

II. FEDERAL LABOR LAW AND THE PREEMPTION OF STATE LAW CLAIMS

Federal preemption under section 301(a) of the LMRA applies only where the resolution of a State court plaintiff’s claims requires the interpretation of a collective-bargaining agreement. (Lingle v. Norge Division of Magic Chef, Inc. (1988), 486 U.S. 399, 406, 100 L. Ed. 2d 410, 418-19, 108 S. Ct. 1877, 1881; see also Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill. 2d 1, 11, 503 N.E.2d 308, 312, cert. denied (1987), 483 U.S. 1032, 97 L. Ed. 2d 779, 107 S. Ct. 3248.) In Lingle, the Supreme Court stated:

“[I]f the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is pre-empted and federal labor-law principles — necessarily uniform throughout the nation — must be employed to resolve the dispute.” (486 U.S. at 405-06, 100 L. Ed. 2d at 418-19, 108 S. Ct. at 1881.)

The Lingle court relied upon Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904, as did the Illinois Supreme Court in Gonzalez. The Gonzalez court held that an employee’s tort claim of retaliatory discharge was not preempted by section 301(a) of the LMRA because such claim was “wholly separate and independent from any contract-based action,” and resolution of the employee’s claim did not turn in any way upon the interpretation of the applicable collective-bargaining agreement. Gonzalez, 115 Ill. 2d at 10, 503 N.E.2d at 312.

In the instant cause, it is far from clear that plaintiff’s claim may be resolved by interpretation and application of her union’s collective-bargaining agreement. In fact, although she alleges the agreement’s existence, she does not allege that it is the source of the entitlement she claims, i.e., the right to receive workers’ compensation benefits simultaneously with vacation pay. Indeed, careful review of the collective-bargaining agreement contained in the record before us fails to reveal such an entitlement anywhere within its four corners. Thus, it would appear that the collective-bargaining agreement has no relevance to plaintiff’s claim for workers’ compensation benefits; however, we were unable to reach this conclusion without resort to a careful review of the agreement itself. Further, plaintiff’s complaint is so inartfully drawn that it is difficult for us to conclude with certainty that plaintiff was not relying in some fashion upon the terms of the agreement when she filed her complaint. Thus, we hold that to the extent plaintiff’s claims arise out of and depend upon the applicable collective-bargaining agreement, such claims are preempted by section 301(a) of the LMRA; however, such preemption is not applicable to those portions of plaintiff’s claims which arise out of and depend upon the Illinois Workers’ Compensation Act. As the Supreme Court noted:

“[A]s a general proposition, a state law claim may depend for its resolution upon both the interpretation of a collective-bargaining agreement and a separate state law analysis that does not turn on the agreement. In such a case, federal law would govern the interpretation of the agreement, but the separate state law analysis would not be thereby pre-empted.” Lingle, 486 U.S. at 413 n.12, 100 L. Ed. 2d at 423 n.12, 108 S. Ct. at 1885 n.12.

III. EXCLUSIVITY OF WORKERS’ COMPENSATION REMEDIES PRECLUDES AN INDEPENDENT CAUSE OF ACTION

In her response to defendant’s initial motion to dismiss, which claimed that the Workers’ Compensation Act provided plaintiff’s exclusive remedy, plaintiff admitted the pendency of her workers’ compensation claim before the Industrial Commission but denied that temporary compensation and permanent disability were issues before the Commission. Unfortunately, neither party saw fit to include any further information concerning this claim or its contents in the record on appeal. Ordinarily, we believe that the doctrine of primary jurisdiction would require us to defer to the Industrial Commission’s discretion and expertise in the area of disputes concerning workers' compensation benefits. (See Kellerman v. MCI Telecommunications Corp. (1986), 112 Ill. 2d 428, 444-45, 493 N.E.2d 1045, 1052, cert. denied (1986), 479 U.S. 949, 93 L. Ed. 2d 384, 107 S. Ct. 434.) This doctrine “provides that even when a court has jurisdiction over a matter, it should in some instances stay the judicial proceedings pending referral of the controversy, or a portion of it, to an administrative agency having expertise in the area.” (Kellerman, 112 Ill. 2d at 444, 493 N.E.2d at 1052, citing Nader v. Allegheny Airlines, Inc. (1976), 426 U.S. 290, 303-04, 48 L. Ed. 2d 643, 654-55, 96 S. Ct. 1978, 1986-87.) In such a case, the proper procedure would require the trial court to suspend or stay its action pending referral of the issues to the appropriate administrative agency, rather than striking or dismissing any inappropriate allegations or issues. (See Indiana Harbor Belt R.R. Co. v. Industrial Scrap Corp. (N.D. Ill. 1986), 672 F. Supp. 1041, 1042.) Nevertheless, in view of our conclusion below that the Act precludes plaintiff’s cause of action, the doctrine is inapplicable as the trial court lacked authority over plaintiff’s claim from the outset.

Without stating its reasons, the trial court earlier denied defendant’s motion to dismiss which alleged that the Workers’ Compensation Act provided plaintiff’s exclusive remedy. Plaintiff’s brief in response to this motion argued that the exclusivity of the Act did not preclude all common-law claims an employee might have against her employer, including fraud. Yet plaintiff went on to state, “the Workers’ Compensation Act was the vehicle that [defendant] used to defraud plaintiff” out of receiving simultaneously both workers’ compensation benefits and vacation pay. We have already dealt with plaintiff’s claims insofar as they implicate her contractual rights (i. e., vacation pay) and have concluded that such claims are preempted by Federal labor law; in addition, we determine that plaintiff’s compensation claim does not state an independent cause of action because the exclusive remedies for her alleged economic loss are provided by the Act. (Martinez v. Admiral Maintenance Service (1987), 157 Ill. App. 3d 682, 685, 510 N.E.2d 1122, 1125; Cook v. Optimum/Ideal Managers, Inc. (1984), 130 Ill. App. 3d 180, 186-87, 473 N.E.2d 334, 339.) In Cook, an employee sued his employer’s workers’ compensation insurer for economic loss because his total temporary disability payments were withheld even though he allegedly had continuing medical justification. This court observed that section 4(h) of the Act proscribes an employer’s restraint or coercion of, or interference with, an employee in the exerelse of his rights under the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.4(h)) and concluded that no independent cause of action existed for violations of section 4(h). (Cook, 130 Ill. App. 3d at 186-87, 473 N.E.2d at 339.) As we noted:

“The need under the statute for civil actions like the one brought by Cook is anything but clear. The Act itself provides numerous remedies to employees for the delay and economic loss caused by the improper conduct of which Cook complains. *** Moreover, the Act includes provisions for penalties where payment of compensation awarded, including compensation for temporary total incapacity, has been unreasonably delayed or withheld without good and just cause (Ill. Rev. Stat. 1983, ch. 48, pars. 138.19(k) and (l).) ***
Moreover, there are indications that these are the exclusive remedies for the economic loss and delay caused by the conduct complained of” (Emphasis added.) Cook, 130 Ill. App. 3d at 186-87, 473 N.E.2d at 339.

Although plaintiff fails to allege that the Act is the source of the right she claims, namely, the simultaneous receipt of vacation pay and workers’ compensation benefits, in the absence of allegations to the contrary, we believe it would be illogical to presume that plaintiff’s alleged right in this regard arises from any other source, if it exists at all. Moreover, it is apparent from the record that the economic loss allegedly sustained by plaintiff consists solely of approximately three weeks of total temporary weekly benefits. As we noted in Cook, the Act provides penalties against employers who improperly withhold compensation benefits already awarded to employees. (See Ill. Rev. Stat. 1987, ch. 48, pars. 138.19(k), (l).) As we concluded in Cook, when the Act provides remedies for damages such as are alleged in the instant appeal, we believe that the Act does not authorize an independent cause of action by an employee for an alleged violation of section 4(h). Cook, 130 Ill. App. 3d at 187, 473 N.E.2d at 339.

In view of the foregoing, the judgment of the circuit court is affirmed.

Affirmed.

McLaren and WOODWARD, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN C. SCOTT, Defendant-Appellant.
    Second District
    No. 2—88—0434
    Opinion filed December 27, 1989.
    G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Steven Scott, was indicted on two counts of aggravated criminal sexual assault in violation of section 12 — 14 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14) and one count of aggravated criminal sexual abuse in violation of section 12 — 16 (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16). These charges arose from the defendant’s alleged sexual contact with two boys under the age of nine. Count I, which was severed from the other two and eventually nol-prossed by the State, is not at issue on appeal. The defendant was tried before a jury on counts II and III and was convicted of both counts. The defendant’s motion for a new trial, grounded in issues not relevant here, was denied by the trial court. The defendant now appeals based on the existence in the record of two ambiguous notes that suggest the existence of communications between the judge and the jury while the jury was deliberating. The defendant asks us to remand the cause to the trial court to determine the origin of these notes. The defendant also asks us to order a new trial if it is determined that the notes represent private communications between the judge and the jury.

We will recite only those facts necessary to resolve this appeal. Between March and May 1986, the victim, a four-year-old boy, lived with his family in an apartment they rented from the defendant’s parents. The defendant lived next door to the victim’s family. The two families had a friendly relationship, and occasionally the defendant would baby-sit for the victim while the victim’s mother would run errands. The charges at issue here stem from alleged sexual contact between the defendant and the victim, sometime between March and May 1986, on a day when the two were alone. Count II alleged that the defendant knowingly touched the penis of the victim for the purpose of his own sexual gratification. Count III alleged that the defendant placed his penis on the victim’s penis. The victim testified to these events in court.

The victim’s mother also testified that on March 10, 1987, the victim told her about the sexual contact with the defendant. According to the mother, the victim told her that the defendant attempted to put his penis in the child’s anus and that he ejaculated on the child’s stomach. The mother’s testimony does not reflect penis-to-penis contact between the defendant and the victim. Officer Michael Beth of the Elgin police department testified that on March 11, 1987, the victim’s mother brought her child to the police station. The victim told Officer Beth that the defendant had touched the victim’s penis, attempted to put his penis in the victim’s anus, and ejaculated on the victim’s stomach. Officer Beth testified that the victim also demonstrated these events through the use of anatomically correct dolls. Officer Beth’s testimony does not indicate that the victim told him of any penis-to-penis contact with the defendant.

Officer Beth also testified that he and a fellow officer spoke with the defendant at the police station on March 26, 1987. The defendant was not in custody, but the officers read him his Miranda rights before they began to question him. Officer Beth informed the defendant that he was a suspect in a sexual abuse case. The defendant indicated that about one year earlier he and the victim had, in fact, touched each other’s penises. Officer Beth’s testimony did not reveal that the defendant told him at this time that the previous sexual contact with the victim had been penis to penis. Officer Beth further testified that he spoke with the defendant a second time on March 28, 1987, at the Elgin police station. Again, the defendant was not in custody, but Officer Beth advised him of his Miranda rights. Officer Beth testified that, in this second interview, the defendant admitted that he had rubbed his penis on the 'victim’s buttocks, stomach and penis.

On cross-examination, Officer Beth testified that when he reviewed the notes he had taken in the March 28, 1987, interview with the defendant he encountered some difficulty reading them. At some point thereafter, Officer Beth called the defendant on the telephone to clarify what had been said during the interview. The officer’s police report did not indicate that this telephone call was made. Officer Beth said that, aside from what he read when reviewing his police report, he could not remember exactly what the defendant said during the March 28 interview. He indicated that the language in his report reflecting the defendant’s admission of penis-to-penis contact could have been added after the telephone conversation, but he believed that he was told this by the defendant during both the interview and the telephone conversation.

On redirect examination, Officer Beth testified that, although he used his police report to refresh his memory, he also independently recalled what transpired in the March 28 interview of the defendant. He was not, he said, testifying solely on the basis of his written report. He did not believe that the defendant gave him any information in the telephone conversation that was not also given during the March 28 interview. On re-cross-examination, Officer Beth indicated that he was testifying primarily on the basis of his written report.

The defendant testified on his own behalf, and he admitted that he touched his penis to the victim’s stomach and buttocks and that he had fondled the victim’s penis. He denied ever having penis-to-penis contact with the victim. He also denied that he ever told Officer Beth, either in person or during the later telephone conversation, that he had engaged in any penis-to-penis contact with the victim.

After it received instructions pertaining to aggravated criminal sexual assault and aggravated criminal sexual abuse, and also instructions regarding the lesser-included offense of battery, the jury retired to deliberate. The trial transcripts do not indicate that the jury submitted any questions to the trial court during the course of deliberations. The jury returned verdicts of guilty on the charges of aggravated criminal sexual assault and aggravated criminal sexual abuse, and it also returned two guilty verdicts on the lesser-included offense of battery.

After it entered judgment on the verdicts, the trial court denied the defendant’s post-trial motion for a new trial. The grounds for that motion are not at issue on appeal. After vacating the defendant’s convictions of the lesser-included battery offenses, the trial court imposed concurrent sentences of eight years’ imprisonment for the offense of aggravated criminal sexual assault and five years’ imprisonment for the offense of aggravated criminal sexual abuse.

The focus of this appeal is on two handwritten notes that appear in the record. Neither the origin of these notes nor their presence in the record is anywhere explained. The notes are uncaptioned, but they appear to reflect a question and answer form. One note reads:

“[Question]: Did Detective Beth say in any of the three or four times he talked to the defendent [sic], that the defendent [sic] said there was penis to penis contact or did he say that he could not remember if the defendent [sic] said there way [sic] penis to penis contact [.]
[Answer]: The jury will use their [sic] collective memories to recall the evidence.”

The second note reads:

“[Question]: The jury would like clarification of the legal basis for a finding of guilt of battery only under the charge of aggravated criminal sexual assault.
[Answer]: Please reread the instructions re both offenses + the instructions on the last page which commences [sic] with the words ‘when you retire.[’]”

On appeal, the defendant asserts that the notes in the record indicate only that two written questions were asked and that they received two responses. According to the defendant, the author of the questions is not identified as the jury and the trial court is not identified as the author of the responses. More important, the defendant contends, even if the trial court did author the answers to the jury’s questions, neither the notes nor the trial transcript indicates that counsel for either party was ever made aware of the fact that such questions were posed. The defendant seeks a remand to the trial court for a hearing on these matters, and he also asks us to instruct the trial court to order a new trial if it concludes that private communications between the judge and the jury did occur. The State, on the other hand, argues that it is the defendant’s responsibility to ensure that the record on appeal is complete and sufficient to permit the reviewing court to determine what errors occurred at trial. We agree.

Defendant, as the party appealing and asserting error, has the responsibility for preserving and presenting a sufficient record of the asserted error. (People v. Smith (1985), 106 Ill. 2d 327.) All defendant has provided us relevant to the assertion of error that the two handwritten notes constituted ex parte communication with the jury are the two handwritten notes as contained in the common-law record. The common-law record does not disclose whether or not defendant and his counsel were present when the notes were presented and answered by the trial judge. What occurred.'during this part of the proceeding is essential to a determination of the issue raised by defendant.

A report of proceedings may be by a verbatim transcript. (107 Ill. 2d R. 323(b).) If a verbatim transcript is not available, a party may submit in its stead a proposed report of proceedings (107 Ill. 2d R. 323(c)) or an agreed statement of facts. (107 Ill. 2d R. 323(d); Smith, 106 Ill. 2d at 334.) Defendant has not followed the applicable supreme court rule in presenting a proper record for us to review the error now claimed on appeal. Although the omission in the record in this regard was apparently not discovered until after the appeal was filed in this court, Supreme Court Rule 329 (107 Ill. 2d R. 329) is designed to provide for amendment of the record on appeal. (See People v. Partee (1988), 125 Ill. 2d 24, 41.) Defendant did not avail himself of the procedure afforded by this rule. This court will not create a review procedure when a party has not complied with the applicable rules of our supreme court.

In our recent decision in People v. Lowery (1988), 177 Ill. App. 3d 639, the court examined the record before it and, although the issue involved had not been raised below, reviewed the issue under the plain-error doctrine. (Lowery, 177 Ill. App. 3d at 643.) Upon review of the record before it, this court found no prejudice was caused to plaintiff, apparently assuming, arguendo, that defendant and his counsel were not aware of the jury’s inquiries to the trial judge. (Lowery, 177 Ill. App. 3d at 643-45.) In Lowery, the record before the court was sufficient to decide the merits of the issue, thus avoiding possible further litigation of the issue under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.) or by a proceeding pursuant to section 2 — 1401 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401).

On the record provided us, defendant has not shown that he and his counsel were not present when the two notes from the jury were received and answered by the trial judge. Where the record does not demonstrate the alleged error, a reviewing court must refrain from supposition and decide accordingly. (People v. Edwards (1978), 74 Ill. 2d 1, 7.) Any doubts which may arise from the incompleteness of the record will be resolved against the appellant. See Foutch v. O’Bryant (1984), 99 Ill. 2d 389.

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

Affirmed.

REINHARD and INGLIS, JJ., concur.