author: JUSTICE DUNN

text:
    KIM TERSAVICH, Plaintiff-Appellant and Cross-Appellee, v. FIRST NATIONAL BANK & TRUST COMPANY OF ROCKFORD, as Trustee, Defendant-Appellee and Cross-Appellant.
    Second District
    No. 2—89—0405
    Opinion filed March 2, 1990.
    Rehearing denied April 4, 1990.

      David K.A. Shair and Craig A. Willette, both of Ritz, Shair & Anderson, Ltd., of Rockford, for appellant.
    Kim M. Casey and Bradley T. Koch, both of Holmstrom & Green, P.C., of Rockford, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

The defendant, First National Bank & Trust Company of Rockford, is the trustee of a residuary testamentary trust created by Edward B. Holt (decedent). The will which created the trust lists as its beneficiaries the decedent’s “children,” but it does not name the plaintiff, Kim Tersavich, who claims to have been fathered out of wedlock by the decedent. The plaintiff brought an action for declaratory relief pursuant to section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 701) seeking to construe the trust. The defendant moved for summary judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005) on the ground that the plaintiff did not file her action within the time specified by section 8 of the Illinois Parentage Act of 1984 (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2508). The trial court granted the defendant’s motion, and the plaintiff now appeals.

The facts here are not substantially in dispute. The decedent died in February 1985 leaving a will dated January 24, 1985. Article I of the will set forth a series of terms and their definitions as used in the will. Article I defined the terms “spouse,” “children,” “executor,” “first successor executor,” “trustee” and “guardian of the person” in this manner, and then these generic terms were used throughout the rest of the will. Thus, a rather general and nonspecific document was tailored to the decedent’s wishes mainly through the definitions contained in Article I. Article I indicates that the word “children” in the will was to mean John E. Holt, Richard R. Holt, Douglas B. Holt, Melissa A. Holt, Nancy L. Holt and Cynthia R. Holt. The name of the plaintiff was not included in this definition of the decedent’s “children.” Article V of the will created a residuary trust that named as beneficiaries the decedent’s spouse and children.

On March 25, 1985, the decedent’s will was admitted to probate, and an order declaring heirship of the decedent was entered. The order named six individuals as the only heirs at law of the decedent, and the list of names did not include that of the plaintiff.

On September 11, 1986, the plaintiff filed a complaint for declaratory relief seeking to construe the trust. An amended complaint was filed on November 6. The amended complaint alleged that, although the plaintiff was the decedent’s daughter, she was not included within the will’s definition of “children.” This, the plaintiff claimed, constituted a latent ambiguity in the trust. She asked the trial court to enter judgment in her favor by construing the testamentary trust so as to include her within the definition of the decedent’s “children” who were beneficiaries under the trust.

Among the affirmative defenses the defendant advanced was that the plaintiff’s claim was barred because it was not filed within the period specified by the statute of limitations contained in the Act, which requires that an action to determine parentage must be brought within two years of the date when the child reaches the age of majority. (Ill. Rev. Stat. 1987, ch. 40, par. 2508.) The age of majority in Illinois is 18. (Ill. Rev. Stat. 1987, ch. 1101/2, par. 11 — 1.) Because the plaintiff was born on April 7, 1960, her complaint would have to have been filed by April 7, 1980, if, in fact, the Act applies to this action. The trial court denied the plaintiff’s motion to strike this affirmative defense.

The plaintiff filed a motion seeking reconsideration of the trial court’s denial of her earlier motion to strike the affirmative defense based on the statute of limitations in the Act. The trial court denied the motion to reconsider, but it certified the question for interlocutory review pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). In an order issued March 21, 1988, this court denied the plaintiffs application for leave to appeal.

On September 7, 1988, the defendant filed a motion for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005). The motion was based, once again, on the plaintiff’s failure to file her action within the time specified in the Act. In opposition to the motion for summary judgment, the plaintiff submitted her affidavit and the affidavits of her mother, Mary Katz Moule, and her uncle, Guy Spinello. The trial court granted the defendant’s motion to strike the plaintiff’s affidavit on the ground that she was an interested party under the Dead Man’s Act (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201), but the court denied the motion to strike the affidavits of Moule and Spinello. Moule’s affidavit recounted her relationship with the decedent, which began in 1959. She indicated that the decedent acknowledged that he was the plaintiff’s father. Spinello’s affidavit also stated that the decedent had acknowledged that he was the plaintiff’s father.

After hearing arguments, the trial court granted the defendant’s motion for summary judgment on March 28, 1989. The trial court found that there existed no issue of material fact and that the defendant was entitled to judgment as a matter of law. The basis of the trial court’s decision was its determination that the statute of limitations contained in the Act barred the plaintiff’s suit. The plaintiff appealed from the trial court’s rulings on the defendant’s motion for summary judgment, the denial of the plaintiff’s motion to strike the affirmative defense based on the Act, and the granting of the defendant’s motion to strike the plaintiff’s affidavit. The defendant cross-appealed from the trial court’s denial of its motion to strike the affidavits of Moule and Spinello.

We note initially that the plaintiff has withdrawn her appeal of the trial court’s order striking her affidavit. Similarly, the defendant has withdrawn its cross-appeal. What remains at issue on appeal is whether the trial court properly granted summary judgment in favor of the defendant based on the plaintiff’s failure to file her complaint within the time specified in the Act. The plaintiff argues that the Act does not apply to a declaratory action seeking construction of a trust. The plaintiff also argues that, if we find that the Act does apply to this action, then she, as an illegitimate child, is faced with a barrier to such a suit that would not confront a similarly situated child born to married parents. The plaintiff claims that such a result would violate the equal protection guarantee of the fourteenth amendment (U.S. Const., amend. XIV).

The public policy underlying the Act is that “Illinois recognizes the right of every child to the physical, mental, emotional and monetary support of his or her parents.” (Ill. Rev. Stat. 1987, ch. 40, par. 2501.1.) It is difficult to see how the construction of a trust, several years after a child reaches the age of majority, is relevant to this public policy. Nevertheless, the Act declares that in “any civil action not brought under this Act, the provisions of this Act shall apply if parentage is at issue.” (Ill. Rev. Stat. 1987, ch. 40, par. 2509.) The plaintiffs claim is based, at its heart, on the contention that she is the decedent’s child. Without establishing this, her argument that the trust is ambiguous collapses.

The trial court relied on the Act’s statute of limitations provision and, finding that the plaintiff’s parentage had been placed at issue in the proceedings, held that the Act’s statute of limitations worked to bar the plaintiff’s suit. While it is understandable that the court reached such a result in interpreting the Act, we believe that closer analysis demonstrates that such an interpretation is untenable.

Generally, an action to enforce an express trust is not barred by a mere lapse of time, at least where the trust beneficiary is not given reason to know of improper conduct on the part of the trustee. (Lesser v. Village of Mundelein (1975), 36 Ill. App. 3d 433, 437, 344 N.E.2d 29, 32.) Obviously, in the case of a testamentary trust, a “beneficiary” cannot possibly bring suit to construe or enforce the trust until it takes effect or, in other words, until the death of the settlor. Here, the plaintiff could not have brought suit to enforce the trust until February 1985, at the very earliest. If we were to hold that the Act’s statute of limitations applies here, then the plaintiff’s action would have to have been filed within two years of her 18th birthday, or April 7, 1980. Such a reading suggests that the plaintiff would never have had an opportunity to file the action to construe the trust because she could not have done so before the statute of limitations expired.

We reject this interpretation for four reasons. First, we feel the result reached is, without question, unjust and unreasonable. In construing statutes, it is presumed that the legislature did not intend its legislation to result in unjust and unreasonable consequences. (Cruz v. Puerto Rican Society (1987), 154 Ill. App. 3d 72, 78, 506 N.E.2d 667, 671.) It is difficult to impart to the legislature an intention to create the unjust result, which would occur if the Act were applied to the instant action.

Second, as noted above, the common law of trusts imposed no time limitation on the bringing of suits to construe a trust where the beneficiary does not know that the trustee has effectively repudiated the trust. To impose an arbitrary cutoff on this plaintiffs suit, despite the fact that the trust was not even created until after the statute of limitations had run, would be a stark departure from the common law. We are hesitant to reach such a result because, as a rule, statutes in derogation of the common law are to be strictly construed in favor of the person sought to be subjected to their operation. Hettermann v. Weingart (1983), 120 Ill. App. 3d 683, 690, 458 N.E.2d 616, 621.

Third, the purpose of the Act, which is to hold parents accountable for the support of their children, is in no way implicated where the “child” has since passed the age of majority and is not seeking to recover for unpaid support obligations. In construing a statute, the court should examine not only the statutory language, but its context and purpose as well. To ascertain the legislature’s intent, the court will examine the entire statute and determine the objective the statute seeks to accomplish and the evils it is designed to remedy. (Wills v. De Kalb Area Retirement Center (1988), 175 Ill. App. 3d 833, 840, 530 N.E.2d 1066, 1070.) Here, none of the Act’s goals would be served by application of the statute of limitations to a suit to construe a trust which itself was not created until well after the child reached the age of majority.

Fourth, if we hold that the Act bars this plaintiff’s claim, we would impose a burden on the assertion of the rights of illegitimate children that does not affect similarly situated children born into wedlock. This raises serious concerns about whether such a scenario would run afoul of the constitutional guarantee of the equal protection of the laws. Though it may be constitutionally permissible to treat illegitimate children differently, they may not be denied a “reasonable opportunity” to assert their legal claims. (Clark v. Jeter (1988), 486 U.S. 456, 462-63, 100 L. Ed. 2d 465, 472-73, 108 S. Ct. 1910, 1914-15.) Here, the trial court’s interpretation of the Act would effectively bar the claims of illegitimate children such as the plaintiff without providing a “reasonable opportunity” to assert them. Where possible, courts will interpret statutes so as to avoid an unconstitutional construction. People v. Orth (1988), 124 Ill. 2d 326, 334, 530 N.E.2d 210, 213.

The defendant, however, argues that the plaintiff could have appeared before the probate court to assert her claim of parentage when the probate court considered issuance of the order of heirship. This, the defendant contends, provided the plaintiff with a reasonable opportunity to press the issue of her parentage. The defendant correctly notes that the Act specifically declares that it “does not affect the time within which any rights under the Probate Act of 1975, as amended, may be asserted beyond the time provided by law relating to distribution and closing of decedent’s estates or to the determination of heirship, or otherwise.” (Ill. Rev. Stat. 1987, ch. 40, par. 2508(c).) The defendant suggests, however, that the plaintiff failed properly to avail herself of the reasonable opportunity to litigate her parentage within the probate proceedings.

There are two problems with the defendant’s argument. First, even if the plaintiff had litigated her parentage in the probate court via the order of heirship, this would not conclusively establish her right to the relief she seeks in her suit to construe the trust. An order of heirship would only be prima facie, not conclusive, proof of parentage, and, ordinarily, heirship may also be litigated “in any place or court where the question may arise.” (Ill. Rev. Stat. 1987, ch. IIOV2, par. 5 — 3(c).) Furthermore, even if the order of heirship were conclusive on the issue of the plaintiff’s parentage, this would establish only one portion of her argument that she is entitled to benefits under the trust. The fact that the decedent was her father, if established, would merely serve as the predicate for her ultimate argument, namely, that the trust is ambiguous and in reality was intended to include her.

Second, even if the Act’s exception pertaining to probate proceedings could apply to this action, what about similar actions brought to construe an inter vivos trust? An inter vivos trust does not relate in any manner to probate proceedings, so the Act’s exception regarding probate proceedings would not save a suit to construe an inter vivos trust from the strictures of the Act’s period of limitations. Once again, if the inter vivos trust is created more than two years after a would-be beneficiary reaches the age of majority, any suit in which parentage is at issue would be forever barred. The same equal protection problems would arise again. We believe it would be shortsighted to accept such an interpretation of the Act.

Therefore, we must search for an interpretation of the Act as it applies to an illegitimate child’s suit to construe a trust which will serve the purpose of the Act without infringing on the rights of the illegitimate child.

Though the purpose of the Act is to insure that children receive the support due them from their parents, the statute of limitations contained therein evidences a further purpose. The limitation attempts to limit the spectre of “lurking problems with respect to proof of paternity” (Gomez v. Perez (1973), 409 U.S. 535, 538, 35 L. Ed. 2d 56, 60, 93 S. Ct. 872, 875); at the same time, however, it triggers a two-year statute of limitations only when a child reaches the age of majority so that such children have a reasonable opportunity to assert their rights. Thus, the legislature has struck a balance between the finality of parentage determinations and the rights of illegitimate children. The key to this balance is that the period of limitation does not run until the child can reasonably be expected to assert his or her rights.

Applying the same rationale to the case of an illegitimate child seeking to construe a trust, we believe that the Act’s period of limitation should not run until the later of two triggering events occurs: (1) the child reaches the age of majority; or (2) the child knows, or should know, that a trustee has “repudiated, disavowed or acted in hostility to the trust” (see Lesser v. Village of Mundelein (1975), 36 Ill. App. 3d 433, 437, 344 N.E.2d 29, 32). The first prong reflects the statutory purpose to guard against stale paternity claims. The second prong, which is derived from firmly rooted principles of the law of trusts, insures that the statute does not unfairly penalize children who may not have knowledge of a possible cause of action until more than two years after they reach majority. Thus, the Act is harmonized with the common law of trusts. Such a construction also resolves the difficulties we outlined above because it avoids an interpretation of the statute that is patently unreasonable, possibly unconstitutional, and out of step with the underlying purpose of the Act.

Applying this standard to the instant case, the very earliest date at which the petitioner could have known that the trustee would act in hostility to her possible rights under the trust would have been in February 1985. The instant action was commenced in September 1986, after a period of less than two years. Therefore, the plaintiffs complaint for declaratory relief was timely filed, and the trial court erred by granting the defendant’s motion for summary judgment.

The order of the circuit court is, therefore, reversed and the cause remanded for further proceedings.

Reversed and remanded.

WOODWARD and GEIGER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRADFORD SIVERLY, Defendant-Appellant.
    Second District
    No. 2—87—1016
    Opinion filed March 2, 1990.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and David A. Bernard, 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, Bradford Siverly, was found guilty by a jury in the circuit court of Winnebago County of the offenses of murder and attempted murder. (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 1(a)(1), 8 — 4.) He was sentenced to consecutive 28- and 12-year terms of imprisonment, respectively, for these convictions.

The defendant charges three errors deprived him of a fair trial. First, the trial court erroneously excluded important testimony offered as nonhearsay state-of-mind evidence. Second, his guilt of the lesser included offense of voluntary manslaughter was improperly conceded by his trial counsel. Third, the burden-of-proof jury instructions for murder and manslaughter were incorrect and amounted to grave, reversible error. We affirm.

The charges against the defendant arose out of the February 12, 1987, fatal stabbing of Lonnie Jenkins, Jr., who was approximately 55 years of age, and the stabbing injury to 15-year-old Douglas Thompson. The decedent, Lonnie Jenkins, was confined to a wheelchair on the date of his death as a result of a progressive muscle disorder. Jenkins was also a seller of marijuana.

Daniel Sreenan, who was then living at Jenkins’ house in Rockford, testified for the prosecution that the defendant came to Jenkins’ house twice on the morning of the incident. The first time, at about 10 a.m., the defendant had a friendly, 10-minute conversation with Jenkins and then left to get his wallet. The defendant apparently was purchasing some marijuana from Jenkins, but, when Sreenan brought out the drug at Jenkins’ bidding, the defendant discovered that he did not have his wallet.

The defendant returned to the house about one-half hour later, passing by Sreenan, who was then washing a car in the driveway. Shortly after the defendant reentered the house, Douglas Thompson and his 18-year-old brother, Danny, arrived, and Sreenan sent Douglas into the house to obtain a chamois. Moments later, a scream and thumping noises were heard coming from the house. Rushing inside, Sreenan found Jenkins injured on the bathroom floor and was told by the defendant that Jenkins and Douglas Thompson had gotten “into a scuffle.” Sreenan then heard Douglas Thompson say, “The son-of-a-bitch stabbed me.”

According to Douglas Thompson’s testimony, he was unexpectedly stabbed in the back of the neck while he was looking for the chamois in a metal closet on the porch of the house. The defendant then covered Thompson’s mouth with his hand and dragged him into a bedroom. Thompson testified the defendant was bent over him in position to stab him again and that he said to the defendant, “Please don’t kill me.” At that point, Sreenan and Danny Thompson came into the house, and the defendant jumped up and hid the knife when he heard them. Danny Thompson scuffled with the defendant, trying to prevent him from leaving the house, but Sreenan, who did not yet realize what had happened, told Danny to let the defendant go. The defendant ran out of the house to his car, which was parked two or three blocks away from Jenkins’ house. The defendant testified that he parked that far away because Jenkins felt the police were watching the traffic at his house.

According to the record, when defendant neared his grandmother’s house, where he was living with his children, the police were already there, so he went to a friend’s house, where the friend advised him to call the police. The defendant called his grandmother instead, and he spoke with a police officer who was there. The defendant agreed to go to his grandmother’s house, where the police would be waiting for him. On the way there, he was spotted in his car and was arrested.

The defendant subsequently gave the police two written statements which were read at trial. In his first statement, the defendant claimed he was attacked by a young white male in Jenkins’ house— presumably Douglas Thompson — and that he took the knife away from the boy and stabbed him in the back. He then used the knife to stab Jenkins after Jenkins said, “I am going to get you” and leaned out of his wheelchair. The defendant stated that for about three weeks he owed Jenkins $50 from the sale of an ounce of marijuana and had gone to Jenkins’ house on February 12 to talk with him about the debt. He was too afraid to tell Jenkins he could not pay him, however, and told him he forgot his wallet instead and left to get it.

In his second statement, given later that same day, the defendant stated that when he returned to Jenkins’ house he had with him a kitchen knife from his grandmother’s house because he feared Jenkins would get mad when he told him he didn’t have the money to pay him. When he told Jenkins that he had no money, Jenkins said, “I guess I am going to have to teach you a lesson.” Jenkins then said that he knew where the defendant’s daughter goes to school. When the defendant asked if Jenkins was threatening defendant’s daughter, Jenkins said, “Well, you will find out.” The defendant told Jenkins, “You are not [obscenity] with my family, especially my daughter,” and he pulled the knife out of his coat and stabbed Jenkins in the back either once or twice. Jenkins fell out of the wheelchair onto the floor, and the defendant told him, “You are not messing with my daughter.” The defendant then stabbed Jenkins a couple more times. When he encountered Douglas Thompson on the porch by the metal cabinet, the defendant thought Thompson might go in the house and see what he had done. The defendant stabbed Thompson in the back and dragged him across the living room and threw him on the bed in the bedroom. He encountered Sreenan and Danny Thompson as he was leaving and told them something happened, that he had “gone nuts” when Jenkins threatened his kids. Thompson grabbed the defendant, but he pushed Thompson away, ran outside and was later arrested as he related in his first statement.

Lonnie Jenkins died as a result of stab wounds to the chest. He sustained five or six wounds in his upper chest and back. Douglas Thompson’s carotid artery on the right side of his neck was 80% severed; emergency surgery saved his life.

At trial, the defendant testified that he had custody of his two children, Stacey, age 10, and Tracey, age five, after his wife ran off with his grandfather in 1985, when the defendant and his grandmother discovered them in bed together. His wife and grandfather returned after two weeks, but ultimately left again after about one month, and they presently reside together. The defendant stated that he knew Lonnie Jenkins for more than 10 years and that he bought marijuana from him about twice a month, sometimes on credit. The defendant testified he usually carried a pocketknife with him when he went to Jenkins’ house because he was afraid of the people who came there. He could not find his pocketknife when he returned to his grandmother’s house after having been to Jenkins’ house the first time, so he took the kitchen knife because he was afraid of Jenkins and the things he told him “would happen to people that owed him money and didn’t come up with it.” When the defendant returned to Jenkins’ house, Jenkins asked him if he had the money he owed him. The defendant replied he did not but that he would be able to get it shortly. Jenkins told the defendant Jenkins waited long enough and that he would have to deal with it in his own way and that he knew where the defendant’s children went to school. Defendant testified he asked Jenkins what he meant by that, and Jenkins told him he would find out. The defendant stated Jenkins then began wheeling himself towards the bathroom. The defendant told Jenkins he was not messing with defendant’s kids, and he took out the knife and stabbed Jenkins. He testified he did not remember stabbing Jenkins more than once because he “more-or-less snapped.” The defendant also testified he did not remember stabbing Douglas Thompson or Thompson saying anything to him, but he did remember dragging Thompson through the living room and throwing him in the bedroom.

The defendant first contends he was denied a fair trial because he was not permitted to testify as to his reason for fearing the threat made against his children by Lonnie Jenkins. Specifically, he claims he was not allowed to testify to previous conversations between himself and Jenkins regarding what happens to those who fail to pay their debts to Jenkins. Inasmuch as such conversations were being offered to show their effect on his state of mind and not for the truth of the matter asserted, the defendant contends they were relevant to the issue of whether he stabbed Jenkins “with malice aforethought” and that he is entitled to a new trial.

The State responds that assuming, arguendo, the alleged conversations took place and were truthful, they and the testimony offered at trial would not, as a matter of law, have risen to the level of serious provocation needed to reduce the defendant’s murder conviction of voluntary manslaughter. Thus, the State argues the defendant cannot claim prejudice due to the excluded evidence. We agree.

Preliminarily, we note the defendant provides no record references to any offers of proof which were made regarding the substance of any of the excluded conversations. Without such offers of proof, this court would have no way of determining whether the exclusions were erroneous and prejudiced the defendant to the extent that a new trial is warranted. (See People v. Wallace (1966), 35 Ill. 2d 620; People v. Brown (1986), 150 Ill. App. 3d 535.) That aside, it has been held that out-of-court statements offered to show the resultant effect on the listener’s state of mind are not hearsay. (People v. Campbell (1987), 161 Ill. App. 3d 147, 157.) “Similarly, threats made to the defendant bearing on the reasonableness of his apprehension of danger, or which conversely provide a reason for conduct, are not hearsay when offered for such purpose.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence, §801.5, at 516-17 (4th ed. 1984).

As the State argues, however, even assuming the defendant had knowledge of Jenkins’ probable “muscle” collection tactics and, thus, reason to believe his threats against his children, the Illinois Supreme Court has recognized only four categories of “serious provocation” as that term is used in the voluntary manslaughter statute. They are (1) substantial physical injury or assault, (2) illegal arrest, (3) mutual quarrel or combat, and (4) adultery with the defendant’s spouse. (People v. Chevalier (1989), 131 Ill. 2d 66, 71; People v. Fausz (1983), 95 Ill. 2d 535, 539; People v. Wiley (1989), 185 Ill. App. 3d 1097, 1103.) “Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” (Ill. Rev. Stat. 1985, ch. 38, par. 9—2(a)(2).) Words alone, no matter how aggravated, abusive, opprobrious, or indecent, are not sufficient to constitute “serious provocation.” (Wiley, 185 Ill. App. 3d at 1103; People v. Neal (1983), 112 Ill. App. 3d 964, 967.) No matter how intense the passion on the part of the slayer, he will not be relieved of liability for murder unless the passion is engendered by a serious provocation which the law recognizes as being reasonably adequate. (People v. Nunn (1989), 184 Ill. App. 3d 253, 275.) Further, the provocation must be proportionate to the manner in which the accused retaliates (People v. Pugh (1989), 187 Ill. App. 3d 860, 868; People v. Stanley (1986), 146 Ill. App. 3d 912, 920), and where a defendant’s retaliation is disproportionate to the victim’s provocation, the crime committed is murder, not manslaughter, especially if the defendant accomplishes the offense with a deadly weapon. Pugh, 187 Ill. App. 3d at 868.

Thus, even if the excluded evidence here would have tended to establish that the defendant believed Jenkins could carry through his veiled threat to defendant’s children, Jenkins’ threat did not constitute the serious provocation necessary to allow the jury to find the defendant guilty of voluntary manslaughter rather than murder. Accordingly, the court’s error, if any, in excluding such evidence did not prejudice the outcome of the defendant’s trial.

The defendant next contends he was deprived of the effective assistance of counsel where there is no indication in the record that he agreed to the concession of his guilt of voluntary manslaughter made by trial defense counsel during opening and closing argument. In opening argument, counsel told the jury: “There is no dispute as to the fact that my client, Brad Siverly, *** did kill Lonnie Jenkins.” In closing, counsel argued: “And I believe after reviewing everything and carefully considering facts and the law as the Judge describes it to you, you could very likely and in good conscious [sic] and doing your duty as a jury, convict him of voluntary manslaughter which is a serious felony. *** [B]ut there is no question in my mind he is not guilty of murder based on the evidence.” Defendant relies primarily on People v. Hattery (1986), 109 Ill. 2d 449, in support of his argument.

In Hattery, the court found the defendant was deprived of his sixth amendment right to the effective assistance of counsel where his trial attorneys conceded during the guilt-innocence phase of the trial that the jury would find him guilty of murder and would find him eligible for the death penalty and that the only issue to be decided by the jury was whether he should receive the death penalty. The court reasoned that counsel’s trial strategy — showing that the defendant was guilty of murder but undeserving of the death penalty — was totally at odds with his earlier plea of not guilty and the record was silent as to whether the defendant had consented to his attorneys’ strategy. In the absence of an adequate showing of the defendant’s knowing and intelligent consent to such strategy, the court found counsels’ actions deprived the defendant of the right to have the issue of his guilt or innocence presented to the jury as an adversarial issue, and, thus, there was a denial of sixth amendment rights that made the adversarial process itself presumptively unreliable. (Hattery, 109 Ill. 2d at 460-64.) The defendant also cites People v. Calhoun (1986), 144 Ill. App. 3d 829, and People v. Woods (1986), 151 Ill. App. 3d 687, in support of his position on this issue.

The State asserts Hattery does not support the broad interpretation ascribed to it by the defendant, to wit: that whenever defense counsel admits his client’s guilt without his client’s on-the-record acquiescence, it amounts to ineffective assistance of counsel. It argues the instant cause is distinguishable from Hattery and Woods and points out that Calhoun has been criticized in People v. Weger (1987), 154 Ill. App. 3d 706, as misapplying Hattery. It argues an admission of guilt to less than all the elements of a crime charged where the evidence of the defendant’s guilt is overwhelming and where counsel otherwise provides a vigorous defense has been recognized as good defense strategy in Weger and People v. Gill (1988), 169 Ill. App. 3d 1049. Assuming, arguendo, counsel’s actions were erroneous, the State alternatively urges such error was harmless in light of the strength of the State’s case.

Although the instant issue was not raised in the defendant’s post-trial motion, the Illinois Supreme Court has approved review under the plain error doctrine where, as here, defendant’s trial counsel prepared and argued the post-trial motion. People v. Chandler (1989), 129 Ill. 2d 233, 241-42.

Generally, a defendant must meet the two-pronged test announced in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, in order to establish a deprivation of the sixth amendment right to the effective assistance of counsel. In rare cases, however, ineffectiveness of counsel will be presumed without application of the Strickland test. Where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, there has been a denial of sixth amendment rights that makes the adversary process itself presumptively unreliable. United States v. Cronic (1984), 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047.

Strickland requires proof (1) that counsel’s performance was deficient by having made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the sixth amendment, and (2) that counsel’s deficiencies prejudiced the defendant. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; Chandler, 129 Ill. 2d at 242.) Errors in counsel’s trial strategy, judgment or tactics alone will not render counsel’s performance deficient (People v. Hillenbrand (1988), 121 Ill. 2d 537, 548), and prejudice may be established by proof that there is a reasonable probability that, but for counsel’s deficient conduct, the outcome of the proceeding would have been different (People v. Barnard (1984), 104 Ill. 2d 218, 237-38; People v. Cobb (1989), 186 Ill. App. 3d 898, 917).

In line with the State’s argument, the court in People v. Johnson (1989), 128 Ill. 2d 253, 269, stated that Hattery does not hold that it is per se ineffectiveness of counsel whenever an attorney concedes his client’s guilt to offenses in which there is overwhelming evidence of that guilt but fails to show on the record consent by defendant. The Johnson court also noted that Hattery is to be narrowly construed. (Johnson, 128 Ill. 2d at 269.) The Cronic “presumption” standard was met in Hattery due to counsel’s unequivocal concession of the defendant’s guilt to the murder charge, the only charge brought against the defendant.

The presumption standard utilized in Hattery has not been met here, however, where the defendant was charged with murder and attempted murder, and counsel presented a vigorous theory of defense to the murder charge, i.e,, that the defendant was acting under serious provocation engendered by the victim. Counsel did not concede all the elements of the murder offense as counsel did in Hattery, and counsel’s actions here were not inconsistent with the defendant’s plea of not guilty to the offense of murder. Consequently, where counsel held the prosecution to its heavy burden of proof beyond a reasonable doubt, a showing of the defendant’s consent to counsel’s trial strategy was not necessary. See Hattery, 109 Ill. 2d at 464-65; see also Johnson, 128 Ill. 2d at 270-71.

People v. Woods and People v. Calhoun, cited by the defendant, are distinguishable. In Woods, the defendants were found guilty of theft and burglary. In closing argument, defense counsel conceded defendant’s guilt of the theft offense when he argued to the jury that it was within its province to determine that this is “merely a theft, not burglary.” Because there was no effective way to argue that the defendants, by opening the car hood and removing the battery, were guilty of theft but not of burglary, and there was no showing that the defendants agreed to concede their guilt of any offense charged, the court reversed their convictions and remanded for a new trial. Woods, 151 Ill. App. 3d at 694.

Similarly, in Calhoun, a prosecution for murder and two armed robberies, defense counsel conceded in opening and closing statements and in the presentation of evidence his client’s guilt of the armed robberies but not the murder, and there was no indication in the record that Calhoun agreed to concede his guilt of the armed robberies. Accordingly, under Hattery, the court reversed his convictions of those robberies and remanded the cause.

As noted by the State, the court in People v. Weger agreed Woods was correctly decided under Hattery because counsel’s conduct in that case was so deficient, but it felt that Calhoun misapplied the Hattery case. The Weger court considered that conceding a client’s guilt on a less serious offense of a multicount indictment where there exists overwhelming evidence of that lesser offense and contesting the more serious offense could be viewed as good defense strategy inasmuch as it enhances counsel’s credibility with the trier of fact when it comes to the charges for which a legitimate defense exists. This view was echoed in People v. Gill (1988), 169 Ill. App. 3d 1049, 1055, where the court rejected the defendant’s claim of ineffective assistance of counsel. In that case, counsel conceded the defendant’s guilt of robbery, a lesser-included offense of armed robbery, in an attempt to remove the defendant from the ambit of a life sentence as an habitual offender. See also Johnson, 128 Ill. 2d at 270.

The evidence here included the defendant’s own statements to the police and testimony at trial admitting he stabbed Jenkins and that he did so because he “snapped” and “went nuts,” when Jenkins threatened his children. Given this evidence, counsel’s concession of the defendant’s guilt only to the lesser-included offense of voluntary manslaughter in the hope of avoiding a murder conviction may be viewed as good defense strategy, where counsel otherwise vigorously defended the murder charge. Cf. People v. Powell (1987), 159 Ill. App. 3d 1005 (not unreasonable for defense counsel to concede defendant shot three people where defendant did not deny shootings, there was no question regarding defendant’s identity, and the only issue was the defendant’s intentions during the shootings).

Consequently, ineffectiveness of counsel may not be “presumed” under Cronic as it was in Hattery. Further, under the first prong of a Strickland analysis, counsel’s performance here cannot be viewed as deficient, and defendant’s claim of the ineffective assistance of counsel must fail. Even absent counsel’s concession of the defendant’s guilt of voluntary manslaughter, there is no reasonable probability that the result of the defendant’s trial would have been different (People v. Barfield (1989), 187 Ill. App. 3d 190, 201), considering that the “serious provocation” here is not the type recognized as being reasonably adequate under the voluntary manslaughter statute. Chevalier, 131 Ill. 2d at 71; Fausz, 95 Ill. 2d at 539; Wiley, 185 Ill. App. 3d at 1103.

In a supplemental brief, the defendant’s final contention is that he was deprived of a fair trial because the jury instructions improperly stated the prosecution’s burden of proof. In support, he relies on People v. Reddick (1988), 123 Ill. 2d 184, in which the supreme court held that when the IPI voluntary manslaughter instructions and the instruction for murder are read together, they erroneously state the burdens of proof on the issues of whether a defendant has acted under either intense passion — which is the case here — or has acted under the unreasonable belief that his action was justified. (Illinois Pattern Jury Instructions, Criminal, Nos. 7.02 (murder), 7.04 (voluntary manslaughter-provocation), 7.06 (voluntary manslaughter — belief of justification) (2d ed. 1981) (IPI Criminal 2d).) He also cites as supplemental authority, People v. Chevalier (1988), 167 Ill. App. 3d 790, where this court agreed with the defendant that the jury was improperly instructed and the defendant entitled to a new trial when it received the same two instructions at issue here, IPI Criminal 2d Nos. 7.02 and 7.04. We note that Chevalier has since been reversed by the Illinois Supreme Court on the basis Chevalier was not prejudiced by the erroneous instructions because the evidence did not, as a matter of law, constitute the serious provocation necessary to reduce the homicide from murder to voluntary manslaughter. People v. Chevalier (1989), 131 Ill. 2d 66.

The State similarly contends here that the error, if any, in the instructions was harmless and did not prejudice defendant because the evidence here was insufficient to reduce the defendant’s murder conviction to involuntary manslaughter and, thus, the giving of a voluntary manslaughter instruction of any kind — even an erroneous one— would only have benefitted the defendant.

At the outset, we note the State’s “benefit to the defendant” argument was rejected in People v. Brooks (1988), 175 Ill. App. 3d 136, 142, in light of the supreme court’s recognition in Reddick of the gravity of the error of not correctly apprising the jury of the State’s burden of proof. Also due to the gravity of the error, Reddick found the defendant there had not waived the issue by failing to object or proffer alternative instructions at trial or to raise the issue in his post-trial motion. (Reddick, 123 Ill. 2d at 198-99.) Defendant here raises the issue for the first time as well, and, per Reddick, we proceed to review the issue under the plain error doctrine.

It was stated in Reddick:

“[Wjhen read together, [the murder and voluntary manslaughter instructions] erroneously state the burdens of proof on the issues of whether the defendants acted under either intense passions or unreasonable beliefs that their actions were justified. The voluntary manslaughter instructions indicate that to obtain a voluntary manslaughter conviction the People must prove the existence of one of the alternative mitigating mental conditions which the People contend did not exist. By contrast, the murder instruction makes no mention of the mitigating mental conditions. These instructions essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter. The reason is that even if a mitigating mental state is proved, it will have been proved by the defendant, not the People.
The burden-of-proof instructions regarding both voluntary manslaughter and murder *** were thus incorrect in placing upon the People the burden of proving the existence of intense passion or unreasonable belief in justification. The instructions should have placed upon the People the burden of disproving the existence of either of these two states of mind.” (Emphasis added.) Reddick, 123 Ill. 2d at 194-95, 197.

Based on Reddick, which has been applied retroactively (People v. Brooks (1988), 175 Ill. App. 3d 136), it is evident the jury here was improperly instructed as to the State’s burden of proof. Errors in instructions may be found to be harmless beyond a reasonable doubt, however, where the result of the trial would not have been different if the proper instruction had been given. (People v. Fierer (1988), 124 Ill. 2d 176, 187; People v. Skipper (1988), 177 Ill. App. 3d 684, 789; People v. Carter (1988), 177 Ill. App. 3d 593, 598.) Although the State agreed at trial that the defendant was entitled to have the jury instructed as to manslaughter, the evidence of provocation offered here was, as a matter of law, insufficient to constitute the type of serious provocation necessary to reduce the homicide for murder to voluntary manslaughter. (See, e.g., Chevalier, 131 Ill. 2d at 71.) Accordingly, as the State argues, the defendant could not have been prejudiced by the erroneous instructions, and reversal is not warranted. Chevalier, 131 Ill. 2d at 76.

For the reasons stated above, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

DUNN and WOODWARD, JJ., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KAREN SACHS, Defendant-Appellee.
    Second District
    No. 2—89—0021
    Opinion filed March 2, 1990.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    John J. Cresto and Anne V. Swanson, both of Schillerstrom & Cresto, Ltd., of Naperville, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The State appeals from the trial court’s dismissal of a criminal complaint against the defendant, Karen Sachs. The State argues that the court incorrectly found that it lacked jurisdiction over the defendant’s criminal prosecution under sections 3 — 909 and 3 — 915 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1987, ch. 95V2, pars. 3— 909, 3 — 915). We reverse the judgment and remand the cause.

The defendant was charged by Secretary of State police citation and complaint with violations of sections 3 — 909 and 3 — 915 of the Code. She moved to dismiss the complaint, arguing that the charged violation should have been addressed as a Secretary of State’s administrative hearing. She also argued that the circuit court had no original jurisdiction over the alleged Code violation. The court granted the defendant’s motion, and the State brought this appeal.

This case requires us to address article IX (the article) of chapter three of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 3 — 900 et seq.). Generally, the article covers licensing and obligations of “remittance agents” who may accept vehicle tax, license, or registration fees for remittance to the State. The article also covers such agents’ obligations for remittance to the State, provides for suspension or revocation of an agent’s license, and provides penalties for “violations” of the article. Section 3 — 913 of the Code also provides for administrative hearings and judicial review under the article. Ill. Rev. Stat. 1987, ch. 95V2, par. 3-913.

The complaint against the defendant was based upon section 3— 909 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 3 — 909), which addresses an agent’s obligations to forward monies to the State. Section 3 — 915, which is also cited in the defendant’s charge, is the article’s “violations” section; it provides that violators “of any provision of this Act *** shall be guilty of a Class B misdemeanor.” Ill. Rev. Stat. 1987, ch. 95V2, par. 3-915.

The State argues on appeal that under the plain language of section 3 — 915, which provides for a criminal sanction, violators of the article’s provisions are subject to criminal prosecution in the circuit court. According to the State, section 3 — 913’s specific provisions for administrative hearings and judicial review (Ill. Rev. Stat. 1987, ch. 95V2, par. 3 — 913), upon which the trial court relied, do not call for administrative hearings on charged violations. Rather, according to the State, section 3 — 913 applies only to an agent’s opportunity for an administrative hearing in connection with a possible license suspension or revocation under section 3 — 907 (Ill. Rev. Stat. 1987, ch. 95V2, par. 3 — 907).

The defendant asserts that there is no basis to support the State’s contention that section 3 — 913’s hearing provision is related merely to license suspensions or revocations. According to the defendant, section 3 — 913 reveals that the legislature intended that violations charged under section 3 — 909 be heard as administrative hearings by the Secretary of State, to the exclusion of original circuit court proceedings. Also, in addressing section 3 — 915’s provision that a violation of the article is a Class B misdemeanor, the defendant asserts that the legislature intended that violations under the article be punished by the maximum $500 fine applicable to Class B misdemeanors.

As both parties agree, in construing the statute at issue we must ascertain and give effect to the legislature’s intent (People v. Haywood (1987) 118 Ill. 2d 263, 270-71). To do so, we first focus on the section 3 — 915 provision that violations of the article shall be a Class B misdemeanor. The potential sanctions for a Class B misdemeanor are not only a $500 fine (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1(a)(3)), to which the defendant refers, but also six months of imprisonment (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—3(a)(2)).

We are aware of no basis to conclude, as the defendant does, that although it defined violations of the article as Class B misdemeanors, the legislature intended that potential penalties include only the relevant potential fines, not the relevant potential periods of imprisonment. We find that the plain language of the statute calls for criminal sanctions for violations of the article.

Furthermore, we find that section 3 — 913’s provision for administrative hearings is in no way inconsistent with a legislative intent to punish criminally violations of the article. Section 3 — 913 provides, inter alia, that “[hjearings under this Article shall be governed by [administrative hearing procedures described elsewhere in the Code] and the Administrative Review Law.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 3 — 913.) It does not, however, provide that only administrative procedures are available under the article; neither does it enumerate any issue which must be determined by an administrative hearing. We find that the legislature enacted section 3 — 913 to cover those administrative hearings which may arise under other provisions of the article (see Ill. Rev. Stat. 1987, ch. 951/2, pars. 3 — 906, 3 — 907), not to exclusively require administrative procedure.

The plain language of the Code provides for criminal penalties for the violation charged against the defendant; it does not mandate administrative testing of charged violations. Because the Code does not mandate an administrative hearing (Ill. Rev. Stat. 1987, ch. 951/2, par. 3 — 913), and because an administrative officer or agency cannot impose the criminal penalties which the legislature clearly prescribed for the instant charged violation (Ford v. Environmental Protection Agency (1973), 9 Ill. App. 3d 711, 714-15), we find that the legislature intended that the circuit court have original jurisdiction over the instant charge.

Based on the foregoing, we reverse the judgment of the circuit court of Du Page County. We remand the cause for further proceedings consistent with our decision.

Reversed and remanded.

DUNN and WOODWARD, JJ., concur.


author: JUSTICE REINHARD JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TIMOTHY P. HART, Defendant-Appellee.
    Second District
    No. 2—88—0780
    Opinion filed January 16, 1990.
    Supplemental opinion filed upon rehearing April 6, 1990.

      Michael P. Coghlan, State’s Attorney, of Sycamore (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Howard R. Wertz, T. Jordan Gallagher, Kurt P. Klein, and William P. Brady, all of Gallagher, Klein & Brady, of De Kalb, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The State appeals, pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)), from an order of the circuit court of De Kalb County granting defendant’s, Timothy R Hart’s, motion to quash numerous subpoenas duces tecum. The State essentially raises two issues on appeal: (1) whether the use of the subpoenas duces tecum was proper; and (2) whether defendant’s medical records were protected by the physician-patient privilege.

Defendant was charged by information with four counts of reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3) and four counts of driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 951/2, pars. 11 — 501(a)(1), (a)(2), (e)), stemming from an automobile accident involving defendant’s vehicle and another vehicle in which a passenger in the other automobile was killed. On June 19, 1987, the State filed a “motion for disclosure to prosecution,” and defendant filed his response thereto on July 3,1987.

On February 3, 1988, the State caused to be issued some 41 subpoenas duces tecum to various hospitals, hospital personnel, clinics and physicians. The subpoenas duces tecum are all worded the same and state in pertinent part:

“YOU ARE COMMANDED to appear to testify before the Honorable Presiding Judge at De Kalb County Courthouse, Sycamore, Illinois, on February 16, 1988 at 1:30 p.m.
YOU ARE COMMANDED also to being [sic] the following: ANY AND ALL RECORDS, MEDICAL REPORTS, NOTES PERTAINING DIRECTLY OR'INDIRECTLY TO TIMOTHY P. HART FROM ON OR ABOUT JANUARY 31, 1987 TO THE PRESENT DATE, INCLUDING BUT NOT LIMITED TO ANY STATEMENTS MADE BY TIMOTHY P. HART in your possession or control.
NOTE: Compliance with this subpoena duces tecum may be made by providing legible copies of the documents requested herein to the authorized agent serving this subpoena.
YOUR FAILURE TO APPEAR IN RESPONSE TO THIS SUBPOENA WILL SUBJECT YOU TO PUNISHMENT FOR CONTEMPT OF THIS COURT.”

The State apparently directly received from some of the persons subpoenaed various materials pursuant to those subpoenas duces tecum which it in turn provided to defendant as part of discovery. The record does not indicate that there was a court hearing on February 16, 1988, the day all the persons subpoenaed were to appear in court with the materials, and the State does not so argue. The materials received by the State have not been made part of the record on appeal.

Defendant filed a motion to quash subpoenas and a motion in limine seeking to quash all the above-described subpoenas duces tecum, requesting an order precluding the State from using and/or seeking to introduce any evidence already obtained as a result of the subpoenas, and seeking an order barring the State from using the testimony of all physicians who had been unlawfully subpoenaed. Defendant’s motion sought relief based on the subpoenas’ alleged violation of the physician-patient privilege under section 8 — 802 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 802) and because the scope of the subpoenas and the information received pursuant thereto exceeded the parameters of section 8 — 802. Defendant further argued in his memorandum in support of his motion that the subpoenas were defective because they allowed for delivery of the requested materials to the State’s Attorney, thereby precluding judicial review of their propriety.

The trial court quashed the subpoenas, precluded the State from using and/or seeking to introduce any evidence obtained through the subpoenas, and barred the State from introducing the testimony of any physicians who were unlawfully subpoenaed. The trial court indicated, in its opinion letter, that the exceptions contained in section 8— 802 of the Code of Civil Procedure did not apply and further found that the State employed an improper procedure in having the subpoenas issue.

The State presents two contentions in its appeal, namely, that the subpoenaed records were not subject to the physician-patient privilege and that the use of the subpoenas duces tecum to obtain medical records was proper. We address the latter contention first. As to that argument, the State seems to contend that the recipient of the subpoena duces tecum, rather than the defendant, should have asserted the physician-patient privilege and moved to quash the subpoena. This misses the mark. While defendant advanced several reasons below for the quashing of the subpoenas, the trial court concluded that “the procedure employed by the State in this case was clearly improper.” We, therefore, perceive the more relevant issue to be whether the subpoenas duces tecum issued here, which authorized turning over the requested materials to the person serving the subpoena without bringing the materials into court, are in conformance with Illinois law.

In Illinois, the statutory authority for issuance of a subpoena in criminal cases is contained in section 7 of “An Act to revise the law in relation to criminal jurisprudence” (Ill. Rev. Stat. 1987, ch. 38, par. 155 — 2) and provides, in part, that “[i]t shall be the duty of the clerk of the court to issue subpoenas, either on the part of the people or of the accused.” Under this provision, the subpoena is issued by the clerk of the court upon application without an order of court. Section 155 — 2 is apparently recognized to include subpoenas duces tecum (see People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259, 267, 396 N.E.2d 17), which are a classic, recognized method for compelling the production of documents desired to be introduced into evidence. (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 326, 211 N.E.2d 247.) The practice in Illinois regarding the use of subpoenas duces tecum in criminal cases has been to extend the use of such subpoenas to hearings other than the actual trial of a case, such as in grand jury hearings, preliminary hearings, and other pretrial hearings.

In People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259, 396 N.E.2d 17, our supreme court allowed the use of a subpoena duces tecum by an accused prior to a preliminary hearing, but narrowly limited the procedure, as follows:

“We share the State’s Attorney’s concern that the issuance of subpoenas duces tecum prior to a preliminary hearing could be abusive and could be utilized as a discovery tool. Accordingly, we limit our holding: a police report is subject to a subpoena duces tecum prior to a preliminary hearing but subsequent to the charging of an accused (which encompasses a formal complaint as well as an information or an indictment (Ill. Rev. Stat. 1975, ch. 38, par. 102 — 8)). *** We emphasize that the court must not hesitate to act on motions to quash subpoenas which are oppressive, unreasonable or overbroad.” (77 Ill. 2d at 270, 396 N.E.2d at 22.)

The court further upheld the trial and appellate court decisions which directed the police department to deliver subpoenaed records directly to the court. 77 Ill. 2d at 270, 396 N.E.2d at 22.

In reaching this result, the court initially concluded that the subpoenaed material should be sent directly to the court because the subpoena is a judicial process or court writ. (77 Ill. 2d at 265, 396 N.E.2d at 20.) The court then determines the relevance and materiality of the materials, whether they are privileged, and whether the subpoena is unreasonable or oppressive. (77 Ill. 2d at 265, 396 N.E.2d at 20.) The State’s Attorney must be fully aware of the records sought by the subpoena in order to object. (77 Ill. 2d at 265, 396 N.E.2d at 20.) The criminal discovery rules do not limit a party’s' access to a court’s compulsory process. 77 Ill. 2d at 268, 396 N.E.2d at 21.

While we recognize that the holding in People ex rel. Fisher v. Carey was limited to the issuance of a subpoena duces tecum on behalf of a defendant prior to a preliminary hearing, the general principles of the use of a subpoena duces tecum articulated in the opinion are applicable hereto and useful in the instant case. Here, the subpoenas duces tecum were properly issued by the clerk of the circuit court (see Ill. Rev. Stat. 1987, ch. 38, par. 155—2), but provided for compliance by “providing legible copies of the documents requested *** to the authorized agent serving this subpoena.” Various documents and materials were in turn delivered to the State’s Attorney’s office by some of the subpoenaed persons. Defendant did not become aware of the issuance of the subpoenas until after the State had received numerous documents and materials pursuant to the subpoenas duces tecum. The February 16, 1988, date on the subpoena on which the person subpoenaed was “commanded to appear” does not appear in the record to be a court hearing date.

The subpoenas duces tecum were, therefore, defective in several respects. First, they provided for extrajudicial delivery and inspection of documents and materials, clearly in violation of the principles announced in People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259, 264, 396 N.E.2d 17, 19-20. By providing that the documents and materials could be delivered to the State’s Attorney, the subpoenas duces tecum effectively circumvented any judicial review, particularly as to privileged information, until after it had been disclosed to the State.

Furthermore, defendant was never made aware of the materials sought in the subpoenas duces tecum and was thereby denied an opportunity to effectively object to their issuance. (See People ex rel. Fisher, 77 Ill. 2d at 265, 396 N.E.2d at 20.) Although defendant was apprised of the materials sought when the State provided it pursuant to his discovery request, such an apprisal was too late for defendant to effectively challenge the issuance of the subpoenas. As the subpoenas were issued for a date on which there was no court hearing, they could not be challenged by defendant in court at the time of their production. Nor are we aware of any authority that would permit the State to have the clerk issue subpoenas duces tecum which are not, in fact, for a court hearing.

For these reasons, the subpoenas duces tecum were properly quashed by the trial court. While upholding that part of the trial court’s order quashing the subpoenas duces tecum and ordering return of all materials obtained by use of these subpoenas, we vacate that part of the order apparently barring forever in these proceedings the use of the testimony of all the subpoenaed persons and the use or introduction of any evidence obtained, revealed, or tainted by the subpoenas. The State in one sentence has suggested that the latter part of the order was improperly imposed as a sanction. The defendant has not responded to this statement or directed us to any authority for imposition of such a sanction without a hearing under these facts. Under these circumstances, we shall vacate that part of the order.

Several additional issues must be briefly examined as they are raised in defendant’s brief. Defendant seeks-dismissal of this appeal because the State failed to show that the trial court’s ruling substantially impairs the State’s ability to prosecute this case. We disagree. The filing of the certificate of impairment, as -was done here, is a sufficient showing of substantial impairment as the reviewing court will rely upon the good-faith evaluation by the prosecutor of the impact of the suppression order. People v. Young (1980), 82 Ill. 2d 234, 247, 412 N.E.2d 501; People v. Davidson (1983), 116 Ill. App. 3d 164, 166-67, 451 N.E.2d 978.

Defendant also sought to quash the subpoenas duces tecum on the alternate basis that the materials sought were privileged under the physician-patient privilege set forth in section 8 — 802 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 802). While it is only problematic that this issue would arise again upon remand, we point out that an exception to the physician-patient privilege exists in reckless homicide cases under subsection (1) of section 8 — 802 (People v. Bates (1988), 169 Ill. App. 3d 218, 225, 523 N.E.2d 675) and in prosecutions where written results of blood-alcohol tests are admissible pursuant to section 11 — 501.4 of the Illinois Vehicle Code, under subsection (9) of section 8 — 802. (See People v. Saulsburry (1989), 178 Ill. App. 3d 857, 862, 533 N.E.2d 1154 (holding, in dicta, that subsection (9), as a rule of evidence, would apply to litigation pending when the law takes effect).) Whether these exceptions to the physician-patient privilege apply to this case can only be determined by the trial court upon facts adduced at a hearing, should the issue arise upon remand.

Defendant also has argued that the language of the subpoenas was overly broad. We need not consider this argument as we have found that the subpoenas were properly quashed on another basis.

The judgment of the circuit court of De Kalb County is affirmed in part and vacated in part, and the cause is remanded.

Affirmed in part; vacated in part and remanded.

DUNN and INGLIS, JJ., concur.

SUPPLEMENTAL OPINION UPON REHEARING

JUSTICE REINHARD

delivered the opinion of the court:

We allowed defendant’s petition for rehearing asking us to reconsider a portion of our opinion in which we stated:

“The State in one sentence has suggested that the latter part of the order was improperly imposed as a sanction. The defendant has not responded to this statement or directed us to any authority for imposition of such a sanction without a hearing under these facts. Under these circumstances, we shall vacate that part of the order.”

In the petition, defendant contends that the State, rather than he, waived the issue of the sanctions by failing adequately to argue and cite authority and by not specifying the motion to reconsider the sane-tions in its notice of appeal. He also claims that he did address the issue in a portion of his appellate brief and that the record of the proceedings below reflects that there was a hearing on the sanctions imposed. The defendant, however, has not availed himself of the opportunity on rehearing to advance any arguments which would support the extent of the sanctions imposed by the trial court.

We disagree that the record supports defendant’s assertions in the petition for rehearing, and, as defendant has not presented us with any authority to support the sanctions imposed by the trial court, the opinion will remain as written.

Affirmed in part; vacated in part and remanded.

DUNN and INGLIS, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    SAMUEL F. KENNEDY, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF MATTOON et al., Defendants-Appellees (James F Reimer et al., Defendants).
    Fourth District
    No. 4—89—0526
    Opinion filed February 15, 1990.
    Modified on denial of rehearing April 5, 1990.

      Duane D. Young, of Long, Rabin & Young, Ltd., of Springfield, for appellant.
    Donald E. Brilley, of Brilley & Little, of Decatur, for appellee Bank of Findlay.
    Dilsaver, Nelson & Winter-Black, of Mattoon, for appellee First National Bank of Mattoon.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff appeals a trial court order which - dismissed counts II through VII of his first-amended complaint for failure to state a cause of action. Plaintiff argues the original and amended counts state valid causes of action. Additionally, he contends the trial court erred in denying his oral motion to further amend the counts.

We affirm in part, reverse in part, and remand.

On November 7, 1988, plaintiff filed a five-count complaint alleging First National Bank of Mattoon (FNB), the Bank of Findlay, Reimer Estates, Inc., Judith Reimer, and James Reimer (Reimers), violated the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1987, ch. 121V2, par. 261 et seq.) by actions taken in connection with the assignment and attempted collection of a judgment debt in Coles County case No. 81 — L—93. Supplemental proceedings were ongoing in that action at the time plaintiff filed the instant complaint. Count I of the complaint against FNB is still pending. However, the trial court granted the Bank of Findlay’s motion to dismiss as to counts II through Y. Plaintiff amended those counts and added two additional counts. The trial court granted the Bank of Findlay’s motion to dismiss the amended counts II through VII and dismissed them with prejudice.

In amended count II, plaintiff alleged he and the Reimers executed a promissory note in favor of FNB on November 6, 1978. The note promised to pay FNB $50,000 plus interest on May 5, 1979. The note and extensions to it were attached to the complaint as exhibit A and referred to in the amended complaint. Plaintiff alleged he was an accommodation maker and received no proceeds from the loan. The note and extensions to it show plaintiff signed as maker. On December 11, 1981, FNB obtained a judgment in Coles County case No. 81— L— 93 against the Reimers and plaintiff. Plaintiff alleged a default judgment entered against him individually on March 30, 1982, and subsequently a default judgment was taken against the Reimers on August 16, 1982, for $55,878.26 plus costs.

Plaintiff further alleged the “makers” made payments on the note after the default judgments had entered. However, plaintiff had not made any payments.

Plaintiff alleged further that Champion Federal Savings and Loan Association and Mid-Illinois Service Corporation had become indebted to the Reimers in the amount of $150,000 due to Shelby County case No. 85 — L—8. On November 12, 1986, FNB as a judgment creditor in Coles County case No. 81 — L—93 garnished the Champion Federal Savings and Loan Association. On November 18, 1986, FNB in consideration of $50,000 assigned all right, title, and interest in the March 30, 1982, and August 16, 1982, judgments in Coles County case No. 81 — L— 93 to the Reimers’ attorneys, Rosenberg, Rosenberg, Bickes, Johnson and Richardson. These attorneys represented the Reimers in both the Coles County and Shelby County actions.

In paragraph 17 of amended count II, plaintiff concluded the assignment of the March 30, 1982, and August 16, 1982, judgments to the Reimers’ attorneys had the legal effect of assigning the judgment to the Reimers and extinguished the August 16, 1982, judgment. In paragraph 18, plaintiff further concluded that since the March 30, 1982, judgment against him was on the same indebtedness as the August 16, 1982, judgment, against the Reimers, which was satisfied by the effect of the November 18, 1986, assignment, the March 30, 1982, judgment was also satisfied and released.

Plaintiff further alleged that on November 26, 1986, FNB, acknowledging receipt of $50,000, assigned the judgments recovered in Coles County case No. 81 — L—93 to the Bank of Findlay. Plaintiff concluded the Bank of Findlay, to “induce” the Reimers to execute a promissory note and mortgage in its favor, used “deception, fraud, false pretenses, misrepresentation, and/or concealment, suppression, or omission” to cause the Reimers to believe the August 16, 1982, and March 30, 1982, judgments in Coles County case No. 81 — L—93 were enforceable. On December 4, 1986, the Bank of Findlay in consideration of a note and mortgage in its favor released the August 16, 1982, judgment against the Reimers while reserving a right to enforce the March 30, 1982, judgment against plaintiff. The Bank of Findlay agreed to credit the Reimers’ account with a portion of the monies collected from plaintiff.

In paragraph 23 of amended count II, plaintiff alleged the Bank of Findlay concealed from the Reimers the fact that the March 30, 1982, and August 16, 1982, judgments were not enforceable. In paragraph 24 of amended count II, plaintiff alleged the Bank of Findlay initiated proceedings to collect the judgment “though it was aware” the March 30, 1982, judgment was unenforceable. Plaintiff concluded the Bank of Findlay violated the Act by attempting to enforce an unenforceable judgment and using “deception, fraud, false pretenses, misrepresentation and/or concealment” of the unenforceability of the judgment with the intent that the Reimers and others would rely upon the concealment.

Plaintiff further alleged that he had to defend against the collection proceedings, was arrested in Texas, and has otherwise been harmed. Plaintiff sought $50,000 actual damages plus costs and $200,000 punitive damages from the Bank of Findlay.

In amended count III, plaintiff realleged amended count II and further alleged the Bank of Findlay and FNB “knowingly conspired” to collect money under judgments they knew were unenforceable. In amended count IV, plaintiff realleged amended count II and asserted the Bank of Findlay and the Reimers “knowingly conspired” to wrongfully collect under the March 30, 1982, judgment in violation of the Act.

In amended count V, based upon the allegations of amended count II, plaintiff alleged the Bank of Findlay “knowingly and improperly” used the legal process in an attempt to collect money under a judgment which it knew or should have known was unenforceable. In amended count VI, plaintiff, based upon the allegations of amended count II, alleged that the Bank of Findlay and FNB conspired to “improperly utilize the legal process” in an attempt to collect a money judgment which they knew or should have known was unenforceable. In amended count VII, plaintiff alleged the Bank of Findlay and the Reimers conspired to improperly utilize the legal process in an attempt to collect money under a judgment they knew or should have known was satisfied and unenforceable.

In reviewing the propriety of a motion to dismiss a complaint for failure to state a cause of action, the well-pleaded factual matters in the complaint are accepted as true. Additionally, the court must assume the truth of all reasonable inferences from those facts. (Loftus v. Mingo (1987), 158 Ill. App. 3d 733, 511 N.E.2d 203; Campbell v. Haiges (1987), 152 Ill. App. 3d 246, 252, 504 N.E.2d 200, 204.) However, mere conclusions of law, argumentative matter, or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest are irrelevant. They must be disregarded by the court in ruling upon the motion to dismiss. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976; Loftus, 158 Ill. App. 3d 733, 511 N.E.2d 203; Mlade v. Finley (1983), 112 Ill. App. 3d 914, 918, 445 N.E.2d 1240, 1244.) Although pleadings should be liberally construed, a complaint which does not allege facts necessary to enable plaintiff to recover does not state a cause of action. (Knox, 88 Ill. 2d 407, 430 N.E.2d 976.) If, after deleting the conclusions that are pleaded, there are not sufficient allegations of fact which state a cause of action against the defendant, the motion must be granted regardless of how many conclusions the count may contain and regardless of whether they inform the defendant in a general way of the nature of the claim against him. Knox, 88 Ill. 2d at 426, 430 N.E.2d at 985.

Viewing amended count II absent the conclusions of law and fact, the count alleged a default judgment was entered against plaintiff on March 30, 1982, on a note which he signed with the Reimers. A separate judgment on the note was entered against the Reimers on August 16, 1982. FNB, the judgment creditor, assigned its interest in the judgments to the Reimers’ attorneys. Subsequently, FNB reassigned its interest in the judgments to the Bank of Findlay, which brought enforcement proceedings against plaintiff. Plaintiff has alleged the Bank of Findlay knew of the invalidity and unenforce-ability of the note. Such an allegation is a statement of ultimate fact, not a conclusion as asserted by the Bank of Findlay and FNB. Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 45 N.E.2d 20.

Section 2 of the Act makes unlawful engaging in:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact.” (Ill. Rev. Stat. 1987, ch. 121V2, par. 262.)

The preamble of the Act states its purpose is to protect consumers, borrowers, and businessmen from fraud and unfair methods of competition. (Ill. Rev. Stat. 1987, ch. 121V2, par. 261 et seq.) The Act is regulatory and remedial legislation intended to curb a variety of fraudulent abuses and provide a remedy to individuals injured by such abuses. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 430 N.E.2d 1012.) The Act should be broadly construed. (People ex rel. Hartigan v. Stianos (1985), 131 Ill. App. 3d 575, 475 N.E.2d 1024.) At minimum, a complaint brought alleging a violation of the Act should set out factual allegations supporting activity in violation of the Act. Merely characterizing actions as unlawful or wrongful is insufficient. See generally Salaymeh v. InterQual, Inc. (1987), 155 Ill. App. 3d 1040, 1044, 508 N.E.2d 1155, 1158 (allegation of conspiracy insufficient).

Similarly, in amended counts III and IV, plaintiffs assertion that the Bank of Findlay, FNB, and the Reimers “knowingly conspired” to wrongfully collect the judgment in violation of the Act is sufficient to state a cause of action. A conspiracy is an agreement or combination of two or more people to do an unlawful act or do a lawful act by unlawful means. (Salaymeh, 155 Ill. App. 3d 1040, 508 N.E.2d 1155; Daley v. G’Sell (1981), 102 Ill. App. 3d 548, 430 N.E.2d 556.) Plaintiff has alleged sufficient factual matters which show the Bank of Findlay and the Reimers acted unlawfully.

Amended count V alleged the Bank of Findlay individually abused the legal process in attempting to collect a judgment which it knew was unenforceable. Two elements are necessary to state a cause of action for abuse of process. First, the defendant must have an ulterior purpose in using the legal process, and second, he must engage in the use of legal proceedings not proper in the regular course of the proceedings. (Holiday Magic, Inc. v. Scott (1972), 4 Ill. App. 3d 962, 282 N.E.2d 452.) The mere institution of a proceeding is not an abuse of process. Plaintiff has not pleaded facts tending to establish an improper motive on the Bank of Findlay’s part. Moreover, plaintiff stated the Bank of Findlay filed a citation to discover assets. Plaintiff also alleged he was arrested. However, plaintiff did not allege the actions were not proper in the regular course of supplemental proceedings to collect monies under the judgment. Plaintiff did not obtain leave of court to file amended counts VI and VII, and therefore, they are not properly before this court. In addition, amended counts VI and VII fail to state causes of action.

Plaintiff urges this court to consider the propriety of the trial court’s dismissal of counts II through V of his original complaint. Plaintiff has waived review of the propriety of the dismissal of counts II through V, original complaint. Where an amendment is complete in itself and does not adopt the prior pleading, the earlier pleading ceases to be a part of the record and it in effect is abandoned and withdrawn. Foxer of Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 449 N.E.2d 125; Bowman v. County of Lake (1963), 29 Ill. 2d 268, 193 N.E.2d 833.

Plaintiff also argues the trial court erred in denying him leave to further amend the amended complaint. In connection with this issue, we address the Bank of Findlay’s motion to supplement the record on appeal. On October 29, 1989, the Bank of Findlay filed an amended motion to supplement the record on appeal with a partial transcript of the argument on its motion to dismiss the amended counts of the complaint. This court took the motion with the case on October 30, 1989. The report of proceedings is necessary to a resolution of the instant issue. Therefore, we allow the motion.

The proceedings show plaintiff made an oral motion to further amend the amended complaint. The trial court denied the motion. Plaintiff now argues the trial court abused its discretion in denying him leave to further amend. The plaintiff’s proposed amendment does not appear in the record. His failure to make it a part of the record waives his right to have this court review the propriety of the trial court’s denial of the motion. Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 521, 513 N.E.2d 387, 394.

For the above reasons, we affirm the dismissal of amended counts V, VI, and VII, but reverse the dismissal of amended counts II, III, and IV.

Affirmed in part; reversed in part, and remanded.

KNECHT, P.J., and GREEN, J., concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHARON STRASBAUGH, Defendant-Appellant.
    Fourth District
    No. 4—89—0668
    Opinion filed March 8, 1990.
    Rehearing denied April 5, 1990.

      Daniel C. Lanterman, of Gramlich Law Offices, P.C., of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by defendant Sharon Strasbaugh from an order of the circuit court of Sangamon County denying defendant’s petition to rescind the statutory summary suspension of defendant’s driver’s license. On May 22, 1989, traffic citations were issued against defendant for failure to reduce speed to avoid an accident (docket No. 89— T — 13528) and for driving while under the influence of alcohol (docket No. 89 — T—13529) (Ill. Rev. Stat. 1987, ch. 95%, pars. ll-601(a), 11 — 501(a)(3)). On May 24, 1989, a law-enforcement sworn report was filed indicating that on May 29, 1989, a notice of a six-month summary suspension of driving privileges was issued to defendant for refusing to submit to or failing to complete chemical testing. The notice further provided that if defendant was determined not to be a first offender, suspension will be for a minimum of 12 months. On the report, arresting officer Robert D. Byrne of the Springfield police department explained his reasonable grounds for believing defendant was driving under the influence as follows:

“Subject ran into the rear of a moving vehicle. Had a strong odor of alcohol beverage coming from her, seemed very disoriented wobbling and swaying.”

On June 5, 1989, a confirmation of statutory summary suspension was filed. This document indicated summary suspension was to become effective July 7, 1989, and last for a minimum of 12 months.

On June 7, 1989, defendant’s attorney entered an appearance in the traffic case on behalf of defendant. Also on June 7, 1989, a request for admission of facts was filed pursuant to Supreme Court Rule 216(a) (107 Ill. 2d R. 216(a)) requesting the State to respond thereto within 28 days. The facts the State was requested to admit were:

“1. At the time my vehicle was stopped, the arresting officer did not have probable cause to believe that I had committed any offense.
2. At the time of my arrest, the arresting officer did not have reasonable grounds to believe that I was driving, or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol.
3. I was not properly warned by the arresting officer that my privileges to operate a motor vehicle would be suspended if I refused to submit to and complete a breath test.
4. I was not advised by the arresting officer that if I submitted to a breath test and the reading was .10 or greater that my privileges to operate a motor vehicle would be suspended.
5. I did not refuse to take a breath test at the request of the arresting officer.”

On June 9, 1989, the trial court entered an order directing the State to disclose to defendant’s attorney a list of witnesses, copies of written confessions and a list of witnesses thereto, a list of witnesses to oral confessions, evidence negating defendant’s guilt, and the results of any scientific tests for the presence of alcohol or drugs in defendant.

On July 11, 1989, defendant filed her petition to rescind statutory summary suspension. As grounds therefore she alleged (1) she was not properly arrested for an offense defined by section 11 — 501 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 501); (2) the arresting officer did not have reasonable grounds to believe defendant was driving or in actual physical control of the motor vehicle while under the influence of alcohol or other drugs; (3) she was not properly warned by the arresting officer pursuant to section 11 — 501.1(c) of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11— 501.1(c)); (4) she did not refuse to submit to or fail to complete the required chemical tests; and (5) she submitted to the test or tests and the blood-alcohol concentration did not indicate a blood-alcohol concentration of 0.10 or more.

The cause came on for hearing July 28, 1989. On that date, defendant presented a motion for summary judgment based on the failure of the State to respond to the request for admission of facts. The trial judge denied the motion for summary judgment, ruling that Rule 216(a) did not apply to summary suspension cases, and therefore, defendant was not entitled to file a request to admit facts and the State had no obligation to respond.

The matter then proceeded to hearing. The defendant called Byrne as an adverse witness. Byrne testified no field tests were given to the defendant. He stated she had a strong odor of alcohol, red, watery eyes, her balance was poor, and she could not find her purse at the scene. Defendant had been in a two-car accident, and the front end of the car was heavily damaged. The accident occurred at approximately 11:45 p.m. Byrne acknowledged it is not uncommon for people involved in automobile accidents to be shaken up and unsteady.

The defendant’s mother, Dorothy Them, testified. She stated she had been with her daughter at a restaurant known as Wayne’s Red Coach Inn from approximately 7 p.m. to 11 p.m. the night the’ defendant was arrested. She stated her daughter’s speech, walking, and balance were fine in the restaurant. Them kissed defendant when Them left the restaurant at approximately 11 p.m. At that time, Them did not smell any odor of alcohol on defendant’s breath. She did not think defendant was intoxicated.

Miriam Marshall, the defendant’s aunt, also testified. She confirmed the defendant and other family members had dinner at Wayne’s Red Coach Inn the night of the defendant’s arrest. She stated defendant’s speech, walking, and balance were fine throughout the evening. Marshall and her husband left the restaurant with the defendant at approximately 11:30 p.m. The defendant’s walking was fine at that point. Marshall did not notice anything unusual about the defendant’s actions. She did not think the defendant was intoxicated.

The defendant testified she had dinner at Wayne’s Red Coach Inn with several family members. She arrived at approximately 7 p.m. and left at approximately 11:30 p.m. During the course of the evening, she had three vodka and Seven Up drinks. Two drinks were before dinner and one drink was after dinner. Defendant testified her car was heavily damaged in the automobile accident and that although she did not seek medical treatment after the accident, she was very shaken up and felt “funny” for several days after it.

The trial court denied defendant’s petition to rescind statutory summary suspension. The trial judge stated the testimony of the defendant, her mother and aunt were of no significance in the summary suspension hearing. He ruled the scope of the inquiry was what the officer observed at the scene of the arrest and whether those observations demonstrated reasonable grounds to believe defendant was under the influence of alcohol. The trial court ruled the officer did not have to try to determine if any actions he observed which he thought were indications of intoxication could or might have been related to the trauma of the accident itself rather than alcohol.

The first issue raised by defendant is whether the trial court improperly denied defendant’s motion for summary judgment based on the State’s failure to answer a request for admission of facts made pursuant to Supreme Court Rule 216. Rule 216(a) states:

“A party may serve on any other party a written request for the admission by the latter of the truth of any specified relevant fact set forth in the request.” 107 Ill. 2d R. 216(a).

At the inception of her argument concerning this issue, defendant’s brief states “although ordinarily, denial of summary judgment matters are not appealable after a party has proceeded to hearing on the merits, this case presents an exception to that general rule.” However, defendant does not explain why this case is an exception to the general rule and cites no authority to support that proposition.

The general rule is that denial of a motion for summary judgment is not appealable (In re Estate of Luther (1972), 3 Ill. App. 3d 357, 277 N.E.2d 735 (abstract of opinion)), and if there is a hearing on the merits, there is a merger of issues such that the denial of the motion is not reviewable after judgment is entered. (Banwart v. OJcesson (1980), 83 Ill. App. 3d 222, 403 N.E.2d 1234.) The denial of a motion for summary judgment may be reviewed on appeal where there has been no evidentiary hearing and the party seeking review of the denial of the motion for summary judgment has done nothing to avoid trial. (See Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 402 N.E.2d 352.) In Cedric Spring, the court held that failure to comply with discovery caused the sanction of granting judgment for plaintiff and, therefore, defendant caused the avoidance of trial and could not appeal the denial of defendant’s motion for summary judgment. Most cases involving a review of the denial of the motion for summary judgment involve cross-motions for summary judgment and the granting of summary judgment to the opposing party. (See Novak v. Insurance Administration Unlimited, Inc. (1980), 91 Ill. App. 3d 148, 414 N.E.2d 258; Reznick v. Home Insurance Co. (1977), 45 Ill. App. 3d 1058, 360 N.E.2d 461.) As was pointed out in In re Marriage of Adams (1988), 174 Ill. App. 3d 595, 607, 528 N.E.2d 1075, 1081-82:

“The rationale behind the court’s refusal to review the denial of a motion for summary judgment appears to be that such review would be unjust to the party that was victorious at trial, which won judgment after the evidence was more completely presented, where cross-examination played its part and where witnesses were seen and appraised. Otherwise, a decision based upon less evidence would prevail over a verdict reached on more evidence, and judgment would be taken away from the victor and given to the loser despite the victor having the greater weight of evidence. This would defeat the fundamental purpose of judicial inquiry. Home Indemnity Co. v. Reynolds & Co. (1962), 38 Ill. App. 2d 358.”

Nevertheless, the court in Adams reversed the denial of the motion for summary judgment because the motion addressed a factual question which was not addressed in the hearing on the merits.

This case does not fit into an exception to the general rule. The failure of defendant to cite authority to support the proposition that the denial of the motion for summary judgment is reviewable in this case is a waiver of that argument.

Moreover, the facts sought to be admitted were the ultimate facts of the case. The traffic citation and the statements on the law-enforcement sworn report clearly constitute a denial of the facts sought to be admitted. So, without deciding whether Rule 216 applies to these types of cases, it is clear that not only had the State already denied the facts sought to be admitted, but the request to admit facts improperly sought the admission of ultimate facts. A request to admit facts is designed to eliminate the need to prove facts which are not in dispute, and it is not appropriate for a party to prove her case by use of this procedure where ultimate facts are fairly disputed. (See Ill. Ann. Stat., ch. 110A, par. 216, Historical & Practice Notes, at 366 (Smith-Hurd 1985); see also Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 197 N.E.2d 578.) As was stated in Cedric Spring, the purpose of discovery sanctions is to compel cooperation rather than to dispose of litigation as a punishment to the other party, and the just result would insure discovery and a trial on the merits unless noncompliance with orders or rules of discovery is unreasonable.

The remaining issue to consider is whether the finding of the trial court that the arresting officer had reasonable grounds to believe defendant was operating a motor vehicle while under the influence of alcohol was contrary to the manifest weight of the evidence. Defendant contends the order of the trial court is against the manifest weight of the evidence because the trial court did not consider the extent to which the trauma and shock of the automobile accident contributed to the signs of intoxication observed by the arresting officer. A decision is aghinst the manifest weight of the evidence if, after a review of the evidence, it is clearly evident that the conclusion opposite to the one reached by the trial court was the proper disposition. (Stone v. City of Arcola (1989), 181 Ill. App. 3d 513, 536 N.E.2d 1329.) The trial court, having observed the witnesses, is in a much better position than is this court to assess credibility of witnesses and weigh the evidence. (In re J.H. (1987), 153 Ill. App. 3d 616, 505 N.E.2d 1360.) Therefore, reviewing courts generally will not reverse on issues of credibility of witnesses.

Section 2 — 118.1(b) of the Code limits the scope of the hearing on a petition to rescind to consideration of the following issues:

“1. Whether the person was placed under arrest for an offense as defined in Section 11 — 501, or a similar provision of a local ordinance, as evidenced by the issuance of a Uniform Traffic Ticket; and
2. Whether the arresting officer had reasonable grounds to believe that such person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol, other drug, or combination thereof; and
3. Whether such person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person refused to submit to and complete the test or tests, did refuse to submit to or complete such test or tests to determine the person’s alcohol or drug concentration; or
4. Whether the person, after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person submits to a chemical test, or tests, and such test discloses an alcohol concentration of 0.10 or more, and such person did submit to and complete such test or tests which determined an alcohol concentration of 0.10 or more.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 2 — 118.1(b).)

In this appeal, the challenge to the sufficiency of the evidence is only directed at section 2 — 118.1(b)(2). Had there been evidence that defendant was not driving the vehicle, as in People v. Wireman (1989), 181 Ill. App. 3d 385, 536 N.E.2d 1346, then rescission of the suspension would have been appropriate. But that was not the evidence here. Nor was the trial court required to find incredible the testimony of defendant’s witnesses. It may well have been that defendant’s witnesses, who had been at the restaurant with her, did not observe any signs of intoxication, but that a short time later such signs were noted by the arresting officer. Except for defendant and the police officer, none of the witnesses were present at the scene of the accident or the police station. Defendant testified she was shaken up after the accident. Nevertheless, the trial court found that there were sufficient reasonable grounds for the police officer to believe that defendant was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol to ask her to submit to a test. See People v. Bafia (1983), 112 Ill. App. 3d 710, 445 N.E.2d 878.

Based on the record, a contrary result is not more appropriate than the determination of the trial court. Therefore, the order of the circuit court of Sangamon County is affirmed.

Affirmed.

LUND and STEIGMANN, JJ., concur.