author: JUSTICE LaPORTA

text:
    MAMIE SPENCER, Adm’r of the Estate of Patrick James Spencer, Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—0749
    Opinion filed December 8, 1989.

      Susan E. Loggans & Associates, of Chicago (Susan E. Loggans and.Patrick J. Condron, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Michelle A. Hutchinson, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
    Donald J. Suriano, of Chicago Park District, and Nelson A. Brown, Jr., both of Chicago, for appellee Chicago Park District.
   JUSTICE LaPORTA

delivered the opinion of the court:

This is an appeal from an order by the trial court granting the defendants’ motion to strike all counts of plaintiff’s third amended complaint with prejudice, denying plaintiff leave to file a fourth amended complaint and dismissing the litigation.

On May 5, 1987, while he was in the care of a babysitter, plaintiff’s three-year-old son, Patrick, wandered from the house and crossed the street to an unfenced lagoon in Auburn Park where he fell into the water. He was taken immediately to Mitchell/Wyler’s Hospital emergency room, where he was pronounced dead.

On April 8, 1988, as administrator of the estate of Patrick Spencer, deceased, plaintiff filed suit under the wrongful death statute (Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2), against the City of Chicago and the Chicago Park District in a one-count complaint alleging the child’s wrongful death was caused by defendants’ negligence in failing to fence the lagoon, failing to post lifeguards or security personnel and failing to replace graffiti-marked warnings or danger signs.

On May 16, 1988, plaintiff in an emergency motion moved for leave to file a first amended complaint at law. The two-count amended complaint was filed the same date, alleging in count I the wrongful death and the same allegations of negligence from the original complaint, and in count II, alleged plaintiff’s appointment as estate administrator, alleged the same negligence, alleged the pain and suffering of the child prior to his death and alleged this action had survived him.

Both defendants on June 14, 1988, moved to dismiss the amended complaint pursuant to section 2 — 619(a)(9) (Ill. Rev. Stat. 1985, ch. 110, par. 2—619(a)(9)) (claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim) and alleged that under the Illinois Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 106), defendants were not liable under the ordinary negligence pled by plaintiff because the statute required a showing of willful and wanton conduct by the public entity to impose liability on the public body. Defendants’ motions were granted.

On July 12, 1988, plaintiff was given leave to file and did file a second amended complaint in four counts. Count I alleged wrongful death due to ordinary negligence and contained the same allegations of count I of the two prior complaints. Count II alleged the same negligence, wrongful death, pain and suffering and survival of the child’s cause of action as alleged in count II of the two prior complaints. Count III on information and belief alleged the lagoon was jointly owned, maintained and controlled by the defendants; that small children frequently played in the vicinity; that defendants should have known or anticipated that the minor plaintiff would be there; that defendants knew or should have known of prior incidents of children coming into contact with the lagoon water; that prior to May 15, 1987, defendants cleaned the lagoon, regulated its water level and patrolled in the vicinity and therefore knew children were frequently in the area; that defendants had a duty to provide adequate safety barriers or guards to protect the public and small children from contact with the lagoon water and should have known of the dangerous condition of the lagoon; that the defendants were engaged in willful and wanton conduct and with indifference and conscious disregard for the minor plaintiff’s safety failed to fence the area to prevent access to small children, failed to post lifeguards or security personnel to protect small children from falling into the lagoon and failed to replace defaced warning or danger signs. Count IV alleged the willful and wanton acts of defendants recited in count III and alleged the cause of action survived the child’s death.

Defendants moved to strike the second amended complaint, counts I and II, under section 2 — 619(a)(9) as in prior motions to strike based on the Illinois Tort Immunity Act, and counts III and IV for failure to allege any latent conditions, and that the only condition alleged is the existence of the water. The allegation of failure to replace warning signs presumes the deceased three-year-old could comprehend them if graffiti-free. The allegation of the complaint is that the child was unsupervised at the time of the occurrence. The motion argued defendants had no duty to protect from the ordinary condition of water, and therefore counts III and IV failed to state a cause of action.

On September 15, 1988, plaintiff moved for and was given leave to file a third amended complaint, which was filed the same date. In the third amended complaint the plaintiff added the following allegations to all four counts of the complaint in addition to the allegations already pled:

(a) That the lagoon was not intended for recreational purposes such as swimming, fishing, boating; posted signs prohibited swimming and walking on lagoon when it was frozen;

(b) That children of all ages including those “not allowed to be at large” played in the area daily and defendants should have known that children of very tender age would roam unattended at the lagoon, and that prior to May 15,1987, many small children fell into the water;

(c) ' That the levels of the lagoon would increase due to heavy rainfalls and on May 15, 1987, the water level was over the edge of the rocks bordering the lagoon and the water was filled with debris and garbage;

(d) That defendants were negligent in failing to regulate water levels, failure to install barriers around the edge of the lagoon to prevent access, failed to take steps to mark or permit persons to see the accurate depth of the lagoon, built the lagoon of an excessive depth in a heavily-populated area and failed to provide adequate safety measures.

On November 21, 1988, defendants filed motions to dismiss counts I and II pursuant to section 2 — 619(a)(9), arguing that under the provisions of the Tort Immunity Act, public entities are not liable for claims of ordinary negligence, and moved to dismiss counts III and TV pursuant to section 2 — 615, arguing plaintiff alleged no latent conditions or extraordinary risk of harm posed by the lagoon but only alleged the existence of water which was obvious and ordinary and alleged that the child here was unsupervised or “at large.” On December 21, 1988, plaintiff responded to the motion that the pleadings sufficiently stated causes of action and defendants filed their reply.

On February 3, 1989, following arguments of counsel for the respective parties, the trial judge entered an order that provided in part:

“It is hereby ordered that defendants’, City of Chicago and Chicago Park District, motions to dismiss (2 — 615 and 2 — 619) are hereby sustained with prejudice.
This lawsuit is dismissed.
Plaintiff is denied leave to amend his pleading to file a fourth amended complaint.”

A transcript of a portion of the argument heard on February 3, 1989, is part of the record.

Plaintiff raises the following issues: (1) Whether the trial court erred in granting defendants’ motions to dismiss counts I and II with prejudice and in denying plaintiff leave to file a fourth amended complaint, where plaintiff alleged or could have established that the lagoon was not intended for recreational purposes, so that the Tort Immunity Act does not apply, and therefore an action in ordinary negligence could stand, and (2) whether the dismissal with prejudice of counts III and IV and refusal to permit plaintiff to amend were error where plaintiff alleged or could have alleged facts to show that a three-year-old could not appreciate the attendant risks of the lagoon, that defendants knew or should have known of the hazards to small children and that the lagoon is an extraordinary danger.

The Illinois Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 3—106) provides immunity from tort liability to local public entities or public employees based on the condition of any public prope; ty “intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.”

There is no dispute that the lagoon is located in a public park. Plaintiff states that the trial judge “determined that the lagoon was public property used for recreational purposes only” and that he further ruled that “the lagoon was an open and obvious hazard that Patrick Spencer would be able to appreciate and avoid,” and therefore, a cause of action could not exist, and inferentially, could not be pled.

We first consider whether dismissal with prejudice of counts I and II and refusal to permit plaintiff to file a fourth amended complaint were error where facts were alleged or could be alleged to establish that the lagoon was not intended for recreational purposes and therefore an action in ordinary negligence could stand.

In finding that the third amended complaint counts I and II failed to state facts sufficient to overcome the tort immunity given to public entities and their employees under the Illinois Tort Immunity Act (Ill. Rev. Stat. 1987, ch. 85, par. 3—106), the trial judge found that the lagoon was located in a public park, that the Act specifically identified a park as “public property intended or permitted to be used for recreational purposes” and, therefore, that the defendant public entities were immune from liability for the ordinary negligence alleged in counts I and II.

Plaintiff argues that because signs were posted around the perimeter of the lagoon which prohibited fishing and swimming, it is clear that the lagoon was not meant for recreational purposes, and therefore, the court’s application of the Tort Immunity Act was error. Plaintiff points to the accumulated debris which obscured the lagoon’s border and argues that if the lagoon was intended for recreational purposes, defendants would not allow this condition to exist, making the lagoon unsafe and unattractive for such purpose. Plaintiff concludes that if the “recreational purposes” factor is removed from the equation, an action sounding in ordinary negligence is permitted against a public entity, and therefore, the court’s dismissal with prejudice of counts I and II without leave to amend was too harsh a ruling, unless it is apparent that no new cause of action can be stated.

A park is “an inclosed pleasure-ground in or near a city, set apart for the recreation of the public.” (Black’s Law Dictionary 1005 (5th ed. 1979).) The defendant park district cites Beckus v. Chicago Board of Education (1979), 78 Ill. App. 3d 558, 560, 397 N.E.2d 175, 177, which argues that clearly parks are included in the definition of recreation areas. Plaintiff’s own allegations state the lagoon is within Auburn Park.

The term “recreation area” or “recreation purpose” is not limited to active recreation. The court in Zebulon Enterprises, Inc. v. County of Du Page (1986), 146 Ill. App. 3d 515, 518-19, 469 N.E.2d 1256, 1259, found the term “recreation” to include both active and passive activities.

Plaintiff cites Cates v. City of Bloomington (1947), 333 Ill. App. 189, 77 N.E.2d 46, to argue the city’s liability for injuries on bodies of water owned by the city. Cates is distinguishable on its facts. That case was decided on the question of whether the rental of rowboats for use on a lake maintained by the city for water supplies was a proprietary or governmental function and, if found to be a governmental function, then municipal immunity would apply. In reversing the trial court’s dismissal of the complaint, the court found that while the lower court assumed the city operated a recreational facility on the lake, the complaint contained no allegation from which such inference could be drawn. The court further stated that the mere fact that boats were operated on the lake when its primary use was for city water supplies does not compel the conclusion that they were used for recreational purposes. On the basis of the specific allegations of the complaint, the court reversed the trial judge. The Cates case was decided prior to the enactment of the tort immunity statute.

Because of the undisputed facts of this case, the trial court found the tort immunity statute applied and that counts I and II, sounding in ordinary negligence, did not state a cause of action against the defendants, nor could these two counts be amended to allege facts which would correct the deficiency. We agree.

We next consider whether the trial court’s dismissal of counts III and IV and refusal to permit plaintiff to file a fourth amended complaint were error where plaintiff argues that facts were or could be alleged to establish an exemption to the Tort Immunity Act in that defendants knew of the dangerous condition and willfully and wantonly failed to act to insure the safety of small children.

Counts III and IV allege certain willful and wanton conduct by defendants as a result of which the plaintiff’s minor child drowned. Specifically, the allegations impute to the defendants knowledge that: young children habitually frequent the area of the lagoon, that the lagoon was defective or dangerous, that the children were incapable of appreciating the danger, that the condition of the lagoon was likely to cause injury to the children and that the expense or inconvenience of remedying the condition is slight compared to the risk to the children. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625, 126 N.E.2d 836, 842.) Plaintiff argues that the allegations of counts III and IV of the complaint are sufficient to allege the willful and wanton conduct of defendants to satisfy the exception requirements of the tort immunity statute and therefore sufficiently pled causes of action against the defendants.

In summary, plaintiff states that this appeal is premised on the allegation that a dangerous condition existed which was likely to cause injury to children who were incapable of appreciating the danger because of their immaturity.

It should be noted that the Kahn case is factually distinguishable from our case, involving injury to an 11-year-old child playing on a pile of lumber stacked on a private homesite rather than a dangerous condition existing on public land. The court discussed the defendant’s duty to exercise ordinary care against injury from defendant’s acts, and therefore, the court’s analysis was limited to liability for ordinary negligence and the foreseeability of harm to children. The court did not discuss willful and wanton conduct.

Defendants cite Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 326, 383 N.E.2d 177, 181-82, involving a two-year-old child who fell into a ditch, where the court discusses the “dangerous condition” rule which held that an owner of the land has a duty to remedy conditions which are dangerous to children who are too immature to realize the danger, but found that a child of any age allowed to be at large may reasonably be expected to understand and appreciate the dangers of fire, water and falling from a height. See also Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023.

Here, plaintiff alleged that the minor plaintiff was not allowed to be at large but in fact was at large and without supervision at the time of the accident.

The allegations are that plaintiff allowed the minor child to be at large. The third amended complaint alleges no facts other than the existence of water and the failure to barricade the area to protect unsupervised children. Defendants respond that existence of water is an everyday occurrence in the lives of children, and that this condition imposes no duty on defendants to remedy risks which are obvious and which children would be expected to appreciate and avoid. (Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180.) If the condition complained of presents such obvious risks to children, there is no duty to remedy and no recovery for injuries caused by a danger found to be obvious. (Cope, 102 Ill. 2d at 286, 464 N.E.2d at 1027.) A person in control of property is not required to indemnify against all risks; a child’s safety and the responsibility for preventing danger to him rest primarily in his parents or caretakers. Driscoll v. C. Rasmussen Corp. (1966), 35 Ill. 2d 74, 79, 219 N.E.2d 483, 486.

The complaint at counts III and IV states no duty on defendants to supervise this unattended three-year-old child nor does the law impose such a duty on the defendants. The fact that this child was near the lagoon and was unattended by either parents or babysitter and drowned as the result of his fall into the water will impose no duty on the defendants which they otherwise did not have. The addition of the words “willful and wanton” does not impose a duty on defendants which was not theirs.

The clear facts of this case preclude defendants’ liability for the injuries and impose no duty to substitute defendants’ supervision of the minor child for that of parents or babysitter. The trial court correctly dismissed counts III and IV. No additional facts can be pled which would create a duty which plaintiff can allege was breached and caused the child’s death, and therefore, counts III and IV were incapable of amendment to state a valid cause of action.

For all of the foregoing reasons, the trial court’s dismissal of the complaint and denial of motion for leave to amend are affirmed.

Judgment affirmed.

EGAN, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN HOLCOMB, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—2923
    Opinion filed December 11, 1989.

      Robert A. Willis, of Chicago, for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Loretta H. Davenport, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Following a jury trial, Stephen Holcomb (defendant) was found guilty of aggravated criminal sexual assault and armed robbery and sentenced to concurrent terms of 30 years’ imprisonment. Defendant appeals his conviction and sentence, contending that (1) the trial court erred in denying his motion to dismiss the indictment for violation of his speedy trial rights; (2) the trial court erred in admitting testimony regarding a subsequent offense committed by defendant; (3) the trial court erred in denying his motion to suppress his statement; (4) the trial court erred in denying his motion to suppress identification evidence; (5) the State failed to prove him guilty of the offenses beyond a reasonable doubt; and (6) his sentence is excessive. We affirm.

Following his arrest on November 6, 1985, for an incident not the subject of the charges here, defendant, who was 14 years old at the time, was held in juvenile detention at the “Audy Home.” On November 18, 1985, in connection with the offenses charged in the case at bar, the State filed petitions for adjudication of wardship and to have defendant tried as an adult. The hearing on the petitions, scheduled for December 4, 1985, was continued upon defendant’s request to December 18, 1985, and again continued “by agreement” of the parties to January 15,1986.

A finding of probable cause on the petition for wardship was entered on January 15, 1986, and the State’s petition to have defendant tried as an adult was granted on January 17, 1986. On February 19, 1986, defendant was indicted by a grand jury for the instant offenses, and the State and defendant were thereafter granted numerous continuances either on their own motions or “by agreement.” On June 30, 1987, defendant filed a motion to dismiss the indictment on grounds that his speedy trial rights had been violated. The trial court denied defendant’s motion for discharge and his subsequent motion to reconsider.

Prior to commencement of trial on July 8, 1987, the trial court denied defendant’s motion to exclude evidence of a subsequent offense. Defendant also moved to suppress a pretrial statement and pretrial lineup identification, and the trial court conducted a combined pretrial hearing on these motions, during which the following evidence was presented.

Chicago police officer Edward Hansen testified that at approximately 3:45 p.m. on November 6, 1985, while off duty at his home on North Marmora in Chicago, Illinois, he had occasion to arrest defendant following an incident involving victim Lynnea Hill. During the apprehension of defendant, Hansen “tackled” defendant when he continued to run despite Hansen’s statements as to his police status. Hansen also struck defendant once in the mouth when defendant kicked Hansen’s gun out of his hand and moved towards the gun.

Following defendant’s transportation to the 25th district police station by other officers, Hansen had occasion to speak with defendant in an interview room, where he first advised him of his Miranda rights and then questioned him regarding the Lynnea Hill incident. During the conversation, defendant was handcuffed to the wall. At the conclusion of their conversation, Hansen escorted defendant to the second floor for further investigation by Detectives Raymond Krull and Robert Collins and youth officer Gregory Bernacki. Hansen denied, either during or subsequent to their conversation, threatening or striking defendant or refusing any requests by defendant to speak with family members.

Collins, Krull and Bernacki, all of whom first observed defendant in the early evening at the second-floor police interview room when he was escorted there by Hansen, testified to their contact with defendant on November 6. They denied threatening or striking defendant on that day, and they did not observe Hansen strike or threaten defendant. Krull testified that defendant mentioned that he was struck by Hansen on the street, that defendant stated he wished to make a statement, and that defendant never told them he did not want to make a statement. He further stated that defendant’s Aunt Patricia was contacted prior to the conversation with defendant, and she arrived after their conversation with him prior to 8 p.m. Bernacki testified that defendant never told him that Hansen beat him when he was downstairs or stated that he would not talk without the presence of a lawyer or family member. Collins testified that defendant gave an oral statement after he was advised who they were, advised of his Miranda rights, and advised that he could be tried as an adult even though he was only 14 years of age.

After the police became aware that evening that defendant might be a suspect involving a crime pattern of sexual assaults in the “Area 5” district, Krull testified that he drove to the home of Lillian Gonzalez, the victim of the assault in the case at bar, and informed her that they had a suspect in custody. He denied showing any photographs to her. He stated that he stopped four teenage black youths on the street and asked them to volunteer to participate in the lineup. Collins testified that at 8 p.m. on November 6, defendant was placed in a lineup with these four other individuals, all black males, with ages of 16, 18, 19 and 21 and heights ranging from 5 feet 6 inches to 5 feet 9 inches. Gonzalez had previously given Collins a description of her attacker as a black male, 15 to 18, skinny, bumps on the face, high forehead, and short-cropped hair.

Gonzalez testified that she waited in a room at the police station with other victims of sexual assaults before she was brought to a room to view the lineup. She immediately identified defendant as the attacker. Collins, Krull, and Gonzalez all testified that no one told Gonzalez who the suspect was or where he was standing.

Collins also testified that he noticed a cut on defendant’s lip, which was not bleeding, and he was aware that defendant was later that night taken to St. Anne’s Hospital in Chicago for treatment for his mouth and then taken to the Audy Home.

Collins, Krull and Assistant State’s Attorney Patrick McNemey testified to their contact with defendant on November 7, 1985. Krull stated that he and Collins went to the Audy Home on November 7 after they were informed that court documents indicated defendant was 15 years of age and therefore defendant would become an automatic transfer to the criminal division. After defendant also stated that he was 15 years of age, they notified the State’s Attorney’s felony review unit.

McNerney testified that when he arrived at the Audy Home on November 7, 1985, he introduced himself and his position to defendant and advised him of his Miranda rights. Upon his inquiries, defendant responded that the police had treated him well and that no threats or promises had been made to him. After his conversation with defendant, he left the room, memorialized their conversation to paper, returned and read the statement with defendant. Defendant made two corrections, which were initialed by defendant and himself. He, Krull, Collins, and defendant signed the statement. These events lasted approximately 30 to 40 minutes, at most.

Krull and Collins testified that at no time on November 7 did anyone threaten or strike defendant or tell him he could go home upon signing the statement. Krull stated that defendant never expressed that he did not wish to speak with them and that defendant never requested an attorney. Krull related that although it was Chicago police department policy to have a youth officer present when interrogating a juvenile, no youth officer was present because none was available.

Defendant presented no evidence at the hearing on these motions, and the trial court denied the motions.

The following evidence was adduced at defendant’s jury trial: Fourteen-year-old Lillian Gonzalez testified that in the afternoon of October 30, 1985, after she left a grocery store located at Grand and Austin carrying groceries, she walked along Grand until she reached a parking lot. As she walked across the parking lot and into an alley, she turned around and saw a “male black, 120 pounds, five-four, 15 to 18,” whom she identified as defendant. As she continued walking, defendant grabbed her by the hair and pushed her against the garage. He put a knife to her throat, touched her breast, and threatened to put the knife in if she screamed.

Gonzalez managed to run to the other side of the alley after struggling with defendant. Defendant caught her by the hair, they struggled, and she grabbed the knife and threw it. Defendant then bit her on her left wrist. He next threw her on the ground between two garages, grabbed her by the throat, and banged her head repeatedly against the garage. Defendant proceeded to put her in a position where she was on her back and tried to pull her pants down. At that point she lost consciousness. When Gonzalez awoke, defendant’s penis was in her vagina. Defendant remained on top of her a little while and spoke to her. He took four rings and two necklaces from her before he left.

Gonzalez ran home and immediately related the incident to her sister, who telephoned police. Gonzalez was admitted to Northwestern Hospital, where she remained for four days for treatment of cuts and a concussion. At the hospital, Gonzalez described her attacker to police as a male black, five-four, 120 pounds, very short hair, bumps on his face and wearing a brown jacket and black pants.

On November 6, 1985, Gonzalez waited at the police station in a room with other girls until she was taken to another room to view a lineup. She immediately identified defendant in the lineup.

Fifteen-year-old Lynnea Hill testified over defense objection to an incident which occurred on November 6, 1985, at approximately 3:30 p.m. when she left the grocery store at Austin and Grand. As she began walking home, she noticed defendant walking behind her. After she turned around three times to look at defendant, she started to walk faster and then jog. Defendant grabbed her right arm from the side, called her “a bitch,” threw her on the grass and stomped on her head twice with his feet. Hill escaped from defendant and ran to her house, located two or three houses from where defendant had attacked her. Her mother came to the door and then chased defendant. Her neighbor, Officer Hansen, exited his home and ran in the direction of her mother and defendant. He returned 15 minutes later with defendant. On cross-examination, Hill stated that her attacker had little bumps on his face and was not carrying a weapon.

Hansen and Krull testified consistent with their testimony at the motion to suppress hearing, both denying that defendant was abused or threatened after his arrest.

Officer Donald Rehling testified that he transported defendant to the Audy Home shortly after midnight on November 7, 1985. They stopped at St. Anne’s Hospital for treatment after defendant complained of a sore lip, where they remained for one-half hour.

McNerney testified to the circumstances surrounding defendant’s statement on November 7, 1985, consistent with his testimony at the motion to suppress hearing. He then read to the jury defendant’s statement, which indicated that defendant observed Gonzalez enter the store at Grand and Austin as he was riding the Austin Street bus. He exited the bus and waited for her to leave the store. When she exited the store, he followed her into the alley, ran up behind her, and pulled her into the garage. When she began to fight back, he “punched her in the nose.” He then pulled her between the garages in the alley, where she fought with him again and she began to lose more blood. He then told her “to drop them.” She took her pants down, and he “made her lay down.” He thereafter got on top of her and “gave it to her in her vagina half way.” She then gave him her chains and rings and he left.

Defendant testified on his own behalf. He stated that he was not in the vicinity of the crime on October 30, 1985, and he denied attacking Gonzalez or Hill. He stated on cross-examination that when Officer Hansen arrested him on November 6, Hansen hit him once in the mouth. He did not fight with Hansen or kick the gun out of his hand. Hansen also threatened him and struck him in the mouth five times as he had the gun pointed at his face while they were in the first-floor police interview room.

The officers did not grant his request to call family members. During Krull’s and Collins’ two-hour interrogation at the second-floor police interview room, Collins refused his request to make a telephone call and threatened him. Defendant also told other officers that Hansen struck him.

After arriving at the Audy Home during the early morning hours of November 7, 1985, defendant was given something to eat, but was not allowed to call family members. When the officers and assistant State’s Attorney arrived at the Audy Home in the evening of November 7, 1985, one of the officers threatened him. When asked by McNerney, defendant denied having any knowledge of the Gonzalez case, and Collins told McNerney to write a statement. The statement he signed was not true, and he signed the statement because he was afraid he would be beaten again.

On appeal, we first address defendant’s contention that the trial court erred in refusing to dismiss the indictment on “speedy trial” grounds. In his appellate brief, defendant raises two arguments in this regard: first, that the trial court violated Illinois statutory provisions; and, second, that his due process rights were violated.

Defendant apparently conceded the statutory issue at oral argument. The relevant provision, section 103 — 5 of the Code of Criminal Procedure of 1963 (the Code), provides that “[e]very person in custody *** for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant.” (Ill. Rev. Stat. 1985, ch. 38, par. 103 — 5.) In the case at bar, while the 120-day period elapsed if the period is calculated from the time of defendant’s arrest to his trial, the 120-day period did not expire if it is calculated from the time of defendant’s transfer to the criminal division to be tried as an adult to the commencement of his trial. The question of which time frame would be appropriate to the statutory calculation was answered by our supreme court in People v. Woodruff (1981), 88 Ill. 2d 10, 20, 430 N.E.2d 1120, 1122-23, when it interpreted section 103 — 5’s 120-day time period as not attaching until the order authorizing the minor to be prosecuted as an adult.

Defendant argues in his brief that the Illinois legislature’s amendment of the Juvenile Court Act to provide a 120-day speedy trial provision for juveniles held in custody (Pub. Act 83 — 1517; 9 Ill. Leg. Serv. 69, 76; Ill. Rev. Stat. 1985, ch. 37, par. 704 — 2(1)) nullified the supreme court’s decision in Woodruff ostensibly because it evidences an intention to alter the Code’s 120-day attachment term. Apparently, deféndant was not aware when he raised this argument that, while the original amendment was to be effective before defendant’s arrest, the effective date was extended to take effect after defendant’s arrest on April 1, 1986 (Pub. Act 84 — 12 (amending Public Act 83 — 1517); Ill. Rev. Stat. 1985, ch. 37, par. 704 — 2). The legislative history of Public Act 84 — 12 indicates that the purpose of the postponement was to afford the State’s Attorney’s office and the circuit court of Cook County additional time to implement an effective program to comply with the Juvenile Court Act amendments. (See 84th Ill. Gen. Assem., House Proceedings, June 30, 1985, at 121 (statements of Representative Cullerton); 84th Ill. Gen. Assem., Senate Proceedings, June 25, 1985, at 280 (statements of Senator Lemke).) Thus, we need not determine the effect of the amendment on the Code’s 120-day speedy trial provision, as any change was not intended to be applicable to a juvenile’s arrest before April 1, 1986. Woodruff, therefore, mandates a finding that the Code’s provisions were not violated in the instant case.

As to defendant’s constitutional claim, defendant does not rely on his sixth amendment right to a speedy trial, which attaches at the time of arrest or indictment, and the stringent balancing test applicable to establishing such a violation. (See Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182; United States v. Marion (1971), 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455.) Rather, defendant claims that he was denied his due process rights under the fourteenth amendment when he was held in custody for approximately 20 months from his arrest to his trial, he was held “incommunicado” for 12 days before appearing before a judicial officer, and he was never given a detention hearing or an adjudicatory hearing as required under the Juvenile Court Act. To clarify defendant’s factual assertions, we note that only 160 days of the almost 20-month delay here are attributed to the State, with 13 continuances attributed to defendant either through “by-agreement” or “motion-defendant” continuances. In addition, although defendant claims to have been “incommunicado” for 12 days, he appeared before a juvenile court the day after he was taken into custody, at which time he was arraigned on other charges and appointed a public defender.

Before addressing defendant’s due process claim, it is necessary that we set forth certain established principles. A failure to give a juvenile a detention hearing or adjudicatory hearing within the statutorily prescribed time does not automatically warrant discharge, nor is the failure a per se violation of due process. (See In re A.J. (1985), 135 Ill. App. 3d 494, 481 N.E.2d 1060; In re McCall (1982), 108 Ill. App. 3d 164, 438 N.E.2d 1269.) An adjudicatory hearing is not required where the defendant is transferred to the criminal court to be tried as an adult. (See People v. Eckmann (1978), 60 Ill. App. 3d 300, 376 N.E.2d 751.) Finally, although a suspect may challenge his present detention, the mere fact of an illegal arrest or detention does not void a subsequent conviction. See Gerstein v. Pugh (1975), 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (detaining a defendant pending trial without a determination of probable cause); People v. Howell (1975), 60 Ill. 2d 117, 324 N.E.2d 403 (failing to give a defendant a prompt preliminary hearing); People v. Thompson (1980), 91 Ill. App. 3d 1111, 415 N.E.2d 648 (failing to promptly bring a defendant before a court for arraignment).

Turning now to defendant’s due process claim, the United States Supreme Court has held that the due process clause of the fourteenth amendment protects defendants from pre-accusation delays. (United States v. Lovasco (1977), 431 U.S. 783, 52 L. Ed. 2d 752, 97 S. Ct. 2044.) The Illinois Supreme Court in People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244, has held that a trial court’s inherent authority to insure a fair trial permits it to dismiss an indictment where defendant has been denied due process because of actual and substantial prejudice resulting from pre-indictment delay. Although Lawson addressed only pre-indictment delay and involved the review of a trial court’s dismissal of the indictment before trial, defendant argues that Lawson requires a reversal of defendant’s convictions here for the delay and circumstances involved from his arrest to his trial. Even assuming arguendo that the Lawson due process test applies to the circumstances here, we do not believe defendant has established a due process violation under Lawson.

A defendant, under Lawson, first bears the burden of showing actual and substantial prejudice. The burden then shifts to the State to demonstrate the reasonableness of the delay. Finally, if the defendant and the State has each satisfied its burden in this regard, then the court must balance the interests of the defendant and the public. Lawson, 67 Ill. 2d at 459, 367 N.E.2d at 1248.

Defendant essentially relies on his loss of liberty pending trial to show actual and substantial prejudice to him. The prejudice required by Lawson and Lovaseo to establish a fourteenth amendment claim, however, is a showing that a defendant was denied an opportunity of a fair trial, such as an impairment of defendant’s ability to prepare a defense. The prejudice in Lovaseo, for example, was a loss of a significant witness, while that in issue in Lawson was defendant’s assertions of his inability to remember the events at the time of the alleged violation. Defendant here has not set forth any similar facts from which to find that the delay denied him a fair trial or hampered his ability to receive a fair trial. Thus, as defendant has failed to set forth any facts to demonstrate that he was denied a fair trial, we hold that defendant has not met his burden under Lawson.

Defendant next contends that he was denied a fair trial when the trial court allowed highly prejudicial testimony from Lynnea Hill as to an offense committed by defendant subsequent to the offense for which he was on trial. This testimony, he argues, was not relevant to any issue on trial, but offered merely to prove defendant’s propensity to commit the crime.

While evidence of other crimes is inadmissible if offered merely to establish a defendant’s propensity to commit a crime, the evidence may be admitted if relevant to prove motive, intent, identity, absence of mistake or modus operandi. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238; People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Clark (1984), 124 Ill. App. 3d 14, 463 N.E.2d 981.) The determination to admit or exclude such testimony is within the trial court’s sound discretion. (People v. Houseton (1986), 141 Ill. App. 3d 987, 490 N.E.2d 1354.) We hold that the trial court’s decision to admit Hill’s testimony here was not an abuse of discretion, as this modus operandi testimony was relevant to prove defendant’s identity as to the offenses on trial.

The modus operandi exception has been recognized as circumstantial evidence of identity on the basis that crimes committed in a similar manner suggest a common author and strengthen the identification of a defendant. (Houseton, 141 Ill. App. 3d at 992, 490 N.E.2d at 1358; People v. Pavic (1982), 104 Ill. App. 3d 436, 442, 432 N.E.2d 1074, 1079.) It is especially proper where the defendant’s identity is a central issue in the case, as may be shown by a defendant’s attempts on cross-examination to discredit a complainant’s identification abilities or by defendant’s presentment of an alibi defense. (Houseton, 141 Ill. App. 3d at 992-93, 490 N.E.2d at 1359; People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056.) To establish modus operandi evidence, the State must make a strong and persuasive showing of a similarity in the crime charged and the separate offense which establishes between the two offenses a meaningful link, shown by some distinctive feature not common to most offenses. (People v. Tate (1981), 87 Ill. 2d 134, 141, 429 N.E.2d 470, 474.) The State need not, however, demonstrate that the offenses are identical. Houseton, 141 Ill. App. 3d 987, 490 N.E.2d 1354.

Defendant here placed in issue his identity by attacking on cross-examination the victim’s identification of him and suggesting in opening argument that the lineup identification was tainted by unlawfully suggestive procedures. Additionally, the two offenses had strong similarities and common distinctive characteristics. Both victims were junior high school age girls. Both were followed from behind as they exited the same grocery store at approximately the same time in the afternoon. Both were grabbed from behind, thrown to the ground, and brutally attacked. The trial court’s admission of this testimony, therefore, was not improper.

We now consider defendant’s assertion that his fifth amendment rights were violated because his pretrial statement was involuntarily given, as it was obtained through the use of duress and coercion. The constitutional privilege against self-incrimination is applicable to juveniles (In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428), and the State bears the burden of demonstrating that a confession was voluntarily made (People v. Reed (1984), 123 Ill. App. 3d 52, 462 N.E.2d 512). The trial court need be convinced only by a preponderance of the evidence that the statement in question was voluntary (Reed, 123 Ill. App. 3d at 59, 462 N.E.2d at 518; Lego v. Twomey (1972), 404 U.S. 477, 489, 30 L. Ed. 2d 618, 627-28, 92 S. Ct. 619, 627), and an appellate court’s review of the voluntariness question is limited to whether the trial court’s finding is against the manifest weight of the evidence (People v. Daugherty (1987), 161 Ill. App. 3d 394, 397, 514 N.E.2d 228, 231; Reed, 123 Ill. App. 3d at 59, 462 N.E.2d at 518; People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, 606).

To determine whether a confession is voluntarily given, courts have applied the test of whether, under the totality of the circumstances, the confession has been made freely and voluntarily and without compulsion or whether the defendant’s will was overborne at the time so as not to be the product of a rational intellect and free will. (People v. Prude (1977), 66 Ill. 2d 470, 363 N.E.2d 37; Prim, 53 Ill. 2d 62, 289 N.E.2d 601.) When looking at the totality of the circumstances, consideration must be given to “both the characteristics of the accused and the details of the interrogation.” People v. Simmons (1975), 60 Ill. 2d 173, 179, 326 N.E.2d 383, 386.

In the case of juveniles unaided by counsel, trial courts must take great care “to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” (In re Gault, 387 U.S. at 55, 18 L. Ed. 2d at 561, 87 S. Ct. at 1458; see also Haley v. Ohio (1948), 332 U.S. 596, 599-600, 92 L. Ed. 224, 228-29, 68 S. Ct. 302, 303-04.) The youth of the defendant and the length of his detention must be considered due to the “unequal footing” of a juvenile and an adult. Gallegos v. Colorado (1962), 370 U.S. 49, 54, 8 L. Ed. 2d 325, 328, 82 S. Ct. 1209, 1212.

Defendant argues that the State’s evidence as to the facts and circumstances which gave rise to the confession here demonstrate the oppressive and coercive police conduct and the involuntariness of defendant’s statement. He directs us to his youth, the length of his detention without consultation of an attorney or meaningful contact with a relative, the absence of a youth officer at the time of his confession, and the fact that defendant had previously been struck by Hansen. These facts and circumstances, defendant argues, are similar to those found oppressive in Gallegos v. Colorado (1962), 370 U.S. 49, 8 L. Ed. 2d 325, 82 S. Ct. 1209, and People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383.

The totality of the circumstances giving rise to the involuntary finding in Gallegos consisted of a five-day detention of a 14-year-old boy, during which time the boy’s mother unsuccessfully tried to see him and the police refused him any contact with a law or adult advisor. In Simmons, the Illinois Supreme Court remanded the case to the trial court to evaluate whether the statement of the 16-year-old, borderline mentally retarded boy was voluntary because the trial court’s statement that the defendant “shouldn’t be handled any differently than an adult” indicated that the trial court did not use the “special care in scrutinizing the record” as required when evaluating the confession of a juvenile. 60 Ill. 2d at 181.

We find Gallegos and Simmons to be distinguishable from the case at bar. Unlike Simmons, there is no indication here that the trial court did not carefully scrutinize the record in light of defendant’s age. Contrary to the circumstances present in Gallegos, defendant’s guardians were contacted immediately upon his arrest and defendant met with a juvenile officer and his aunt the day he was taken into custody. Defendant was also treated at the hospital and held in juvenile custody at the Audy Home.

In considering the totality of the circumstances in light of defendant’s age and his approximate 27-hour detention at the time of his statement, we find the trial court’s finding that defendant’s statement was voluntarily given not to be against the manifest weight of the evidence. In addition to defendant’s above-stated outside contacts with adult advisors on the day of his arrest, he was given Miranda warnings prior to each interrogation, and he never requested to see an attorney. Furthermore, Hansen explained the circumstances surrounding defendant’s injury, other officers testified that defendant’s injury was minor, and those officers who had contact with defendant before his confession denied ever threatening or striking defendant. Moreover, defendant made corrections in the statement he signed, initialled the corrections, and indicated at that time that the police had not treated him badly. Finally, although a youth officer was not present when defendant signed the written confession, Krull testified that he attempted to contact a youth officer but was advised that none was available. Where the police are unable to locate a juvenile officer after making a reasonable effort, they are not precluded from interrogating the juvenile, since the police have a duty to investigate crimes even where juveniles are involved. People v. Baxtrom (1980), 81 Ill. App. 3d 653, 402 N.E.2d 327; People v. Zepeda (1970), 47 Ill. 2d 23, 265 N.E.2d 647.

Defendant also contends that the trial court erred in denying his motion to suppress identification evidence. He argues that he was denied due process of law by the procedures employed by the police in conducting the pretrial lineup and, therefore, the admission of the victim’s pretrial lineup identification and the victim’s later in-court identification were improper.

Where identification evidence is involved, a court must determine, after considering the totality of the circumstances, whether the confrontation “was so unnecessarily suggestive and conducive to irreparable mistaken identification” that the defendant was denied due process of law. (Stovall v. Denno (1967), 388 U.S. 293, 302, 18 L. Ed. 2d 1199, 1206, 87 S. Ct. 1967, 1972; People v. Hamilton (1977), 54 Ill. App. 3d 215, 218, 369 N.E.2d 377, 378.) This two-part test involves an examination into, first, the suggestiveness of the identification, and, second, in the wake of a suggestive out-of-court identification, the reliability of the out-of-court identification and later in-court identification. Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375.

In evaluating the suggestiveness of the lineup identification here, we consider defendant’s references to three circumstances which he argues support his contention that the lineup was unnecessarily suggestive: first, the fact that a detective drove to the victim’s home before she viewed the lineup; second, the fact that the victim was placed in a room with other victims believed to have been attacked by defendant; and, finally, the dissimilarities in the physical characteristics between defendant and the other lineup participants.

Defendant fails to indicate how the first two circumstances resulted in a suggestive identification. Defendant implies that in driving to the victim’s home, Krull must have suggested the defendant’s identification, but he presents no factual evidence to support this claim, and it is contrary to Krull’s and the victim’s testimony that no photographs were shown to the victim and no one described the suspect to the victim. Defendant also has not shown that the victim, who was the first to view the lineup, compared descriptions with the other victims or that the other victims otherwise suggested defendant’s identification to the victim.

As to his final claim concerning the suggestiveness of the lineup, defendant asserts that the physical appearance of defendant and the victim’s description of the offender were dissimilar from the other four lineup participants. It is established that participants in a lineup need not be physically identical to meet constitutional standards. People v. Brewer (1983), 118 Ill. App. 3d 189, 454 N.E.2d 1023.

In the case at bar, the victim described the offender to one police officer as a black male, approximately 18 years of age, 120 pounds, with a high forehead and very short hair, and similarly described the offender to another officer as a black male, 15 to 18, skinny, with bumps on his face, a high forehead and short-cropped hair. The 14-year-old black defendant was described at trial as being approximately five feet five inches in height with very short hair. The other four black male participants were ages 16, 18, 19 and 21 years old, with heights ranging from five feet six inches to five feet nine inches, and each had short-cropped hair, although none of the participants had hair as short as defendant’s. We do not believe the above differences in physical characteristics are unnecessarily suggestive.

The cases cited by defendant which have found identifications to be unnecessarily suggestive do not dictate a different result. In People v. Blumenshine (1969), 42 Ill. 2d 508, 250 N.E.2d 152, the defendant was first presented to the victim alone in a “showup” and later presented with another suspect. The 18-year-old defendant in People v. Morris (1970), 131 Ill. 2d 443, 266 N.E.2d 44, was placed in a lineup with two adults who were described as physically dissimilar to him.

Moreover, assuming the lineup was unnecessarily suggestive for purposes of applying the second part of the constitutional analysis, we believe that the record would support a finding that the suggestiveness of the lineup did not affect the reliability of either the victim’s out-of-court lineup identification or her later in-court identification. The constitutional standard utilized for testing the reliability of an in-court identification is whether the.out-of-court identification was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification, while the standard utilized for testing the reliability of the out-of-court identification is similar except that the misidentification need not be “irreparable.” (Neil, 409 U.S. at 198, 34 L. Ed. 2d at 410, 93 S. Ct. at 381.) In evaluating the out-of-court and in-court identification under these standards, a trial court must consider the totality of the circumstances and is guided by the following factors: the opportunity of the witness to view the criminal act, the witness’ degree of attention, the accuracy of the prior description of the offender, the level of certainty demonstrated by the witness at the confrontation, and the time between the crime and the confrontation. Manson v. Brathwaite (1977), 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154, 97 S. Ct. 2243, 2253.

Defendant maintains that the victim had little opportunity to observe the offender during the struggle and that the victim’s description of her offender in no way related to defendant. Contrary to these assertions, the record demonstrates that the victim had ample opportunity to observe the offender, that her description of the offender was comparable to defendant’s physical characteristics, and that the victim evidenced a high level of certainty in her identification of defendant at the lineup. The victim observed the offender in the afternoon hours when the offender was following her, during her struggle with the offender, and when he engaged her in conversation during the sexual act. In addition, similar to the victim’s description of her attacker, defendant was a teenage black male, thin, with short hair and a high forehead. Finally, the victim immediately identified defendant in the lineup conducted within a week of the attack, and no evidence was presented that she ever wavered in her identification. Considering the totality of the circumstances under the guidance of the above-mentioned factors, we find that the record supports a finding that any suggestive procedures in the lineup did not give rise to a substantial likelihood of misidentification or irreparable misidentification.

Defendant next contends that the State’s identification evidence was insufficient to prove him guilty beyond a reasonable doubt. It is established that the clear and convincing testimony of a complaining witness alone is sufficient to prove a defendant guilty beyond a reasonable doubt of a sexual offense. (People v. Secret (1978), 72 Ill. 2d 371, 381 N.E.2d 285.) In the case at bar, not only did the State present clear and convincing testimony from a complaining witness, but corroborating evidence as well.

As stated previously the victim had ample opportunity to observe the offender during the course of the attack. Her description to police of the offender shortly after the attack was similar to defendant’s description, and she made a positive identification of defendant from a lineup conducted only six days after the attack. Furthermore, the State also introduced corroborating evidence of defendant’s signed confession and modus operandi testimony from a witness, who had ample opportunity to observe defendant, that defendant also brutally attacked her after he followed her from the same grocery store six days later. We find this evidence amply demonstrates that defendant was proven guilty beyond a reasonable doubt.

Finally, we consider defendant’s contention that his 30-year sentence is excessive. We are mindful that a sentence imposed by a trial court should not be reversed by a reviewing court absent a clear abuse of the trial court’s discretion. (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 883.) Defendant argues that, in imposing his sentence, the trial court totally disregarded his rehabilitative capacity in violation of the Illinois Constitution.

The Illinois Constitution requires that penalties shall be determined according to the seriousness of the offense and “with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) Although rehabilitation is a factor which must be considered in determining a proper sentence, it is not the only factor and does not outweigh other considerations which are persuasive of a severe sentence. (People v. Rogers (1986), 141 Ill. App. 3d 374, 382, 490 N.E.2d 133, 139; People v. Watson (1982), 107 Ill. App. 3d 691, 697, 438 N.E.2d 453, 458.) Other factors to be considered are the nature of the crime and degree of harm to the victim. People v. Plantinga (1985), 132 Ill. App. 3d 512, 477 N.E.2d 1299.

At sentencing, the trial court noted the vicious and repeated attack on the victim. The record provides no indication that the trial court did not consider the defendant’s rehabilitative potential. The trial court heard evidence in aggravation and mitigation before sentencing defendant. The State presented ample evidence to show that defendant’s rehabilitative potential was poor, including testimony from an Oak Park police officer concerning a 1984 sexual assault on a six-year-old boy, a citation to a 1984 juvenile court adjudication for that assault, and a citation to another adjudication in 1985 for the offense of forcible sexual intercourse. The court was also aware of Lynnea Hill’s trial testimony as to defendant’s attack on November 6, 1985. In light of the brutal nature of the crime, defendant’s prior criminal background, and no indication that the court failed to consider defendant’s rehabilitative potential, we find that the trial court did not abuse its discretion in imposing a 30-year sentence here.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.

      In People v. F.H. (1989), 190 Ill. App. 3d 321, an appellate court recently applied Lawson to vacate a defendant’s adjudication of delinquency for a delay occurring between the time of the filing of a juvenile delinquency petition and the commencement of the adjudicatory hearing.


author: PRESIDING JUSTICE BILANDIC

text:
    MELVIN N. SEGLIN, Plaintiff-Appellee and Cross-Appellant, v. OLD ORCHARD HOSPITAL et al., Defendants-Appellants and Cross-Appellees.
    First District (2nd Division)
    Nos. 1—87—3853, 1—87—3874 cons.
    Opinion filed December 12, 1989.

      Michael J. Koenigsknecht, Thaddeus J. Nodzenski, and Sheldon M. Katz, all of Gardner, Carton & Douglas, of Chicago, for appellants.
    Jerry A. Esrig and Francine Kaplan, both of Epstein, Zaideman & Esrig, P.C., of Chicago, for appellee.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, Dr. Melvin Seglin, sued defendants for the summary suspension of his admitting and staff privileges at Old Orchard Hospital (the Hospital). The trial court dismissed this case pursuant to defendants’ section 2 — 615 motion (Ill. Rev. Stat. 1985, ch. 110, par. 2—615). Defendant appealed the denial of attorney fees. Plaintiff cross-appealed the dismissal of this action.

The motion to dismiss was, in reality, a hybrid motion which involved two allegations which were proper under section 2—615 (Ill. Rev. Stat. 1985, ch. 110, par. 2—615), and a third allegation which was proper under section 2 — 619 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619). The form of the motion, which was labeled simply “Motion to Dismiss” and only referred to section 2 — 615, while improper, does not require dismissal absent a showing of prejudice. (Wilde v. First Federal Savings & Loan Association (1985), 134 Ill. App. 3d 722, 480 N.E.2d 1236; Cali v. DeMattei (1984), 121 Ill. App. 3d 623, 460 N.E.2d 121.) No prejudice was alleged here. Thus, we will consider the allegations raised in this hybrid motion.

Plaintiff, a psychiatrist, filed a two-count action seeking damages. In count I, he alleged that defendants breached their contract with him by suspending his admitting privileges at the hospital in contravention of its bylaws, rules and regulations. In count II, he alleged that the suspension of his admitting privileges was a tortious interference with prospective business relationships between him and his patients.

The pleadings allege the following facts. Dr. Seglin had full admitting privileges at the hospital since 1977. A dispute arose between Dr. Seglin and the hospital over how to approach caring for a juvenile patient. The patient was admitted to the hospital in July 1981. When that patient was discharged from the hospital in October 1981, Dr. Seglin had no other patients in the hospital. As a result of the dispute, Dr. Esau, as medical director of the hospital, initiated a request that all of Dr. Seglin’s staff and admitting privileges be summarily suspended, on the grounds that plaintiff failed to maintain appropriate medical records and had failed to attend meetings unilaterally scheduled by defendant Kachoris, as director of the child program.

As a result of Dr. Esau’s request, the administrative committee summarily suspended plaintiff on October 14, 1981. Plaintiff alleges that this suspension was a breach of contract because the grounds for the suspension were on their face inadequate to support the suspension according to the bylaws and rules.

The pleadings further allege that in breach of the contract, an ad hoc committee was appointed to review the suspension. The appointment of the ad hoc committee violated the bylaws. Neither the administrative committee nor the ad hoc committee afforded plaintiff an appearance within the time limits required in the bylaws and rules relating to summary suspension. The ad hoc committee unanimously decided to continue the suspension and gave its report to that effect to the administrative committee on or about October 30,1981.

The administrative committee decided to continue the suspension. Dr. Seglin was notified of the continuation of his suspension on November 4, 1981.

A hearing before a judicial review committee (JRC) was arranged at Dr. Seglin’s request. (The JRC is not an independent judicial body, but is a committee within the hospital’s corporate structure.) Dr. Seglin maintained that the suspension should be declared invalid because the administrative committee’s actions did not adhere to the provisos of the bylaws. Hearings were concluded on November 19,1982.

The JRC’s report, issued on January 13, 1983, concluded that the suspension was unwarranted and not supported by the evidence, and reinstated Dr. Seglin.

Plaintiff alleges that: (1) defendant Esau initiated the summary suspension upon obviously inadequate and inappropriate grounds, clearly in contravention of the bylaws and rules; and (2) defendants Grygotis, Klapman, and Kachoris continued the summary suspension and issued a report to that effect, in breach of contract, upon obviously inadequate and inappropriate grounds, clearly in contravention of the bylaws and rules. Plaintiff further alleges that despite his vindication by the JRC, he has been foreseeably and seriously damaged in his professional practice by the defendants’ breach of contract. He also alleges that this was an unjustified, intentional interference with his ability to practice psychiatry and to form professional relationships with prospective patients.

The defendants’ motion to dismiss was based on three allegations. First, defendants alleged section 10.2 of the Illinois Hospital Licensing Act (Ill. Rev. Stat. 1985, ch. 1111/2, par. 151.2), which regulates the liability of individuals and hospitals, bars any action against physicians who participate in peer review committees, “or any other committee whose purpose *** is internal quality control *** or the improving or benefiting of patient care and treatment, *** or for the purpose of professional discipline.” Second, they argued the bylaws of the hospital barred this action, since the bylaws limit plaintiffs exclusive remedy to a writ of mandate. Third, they asserted the claim for interference with prospective business relations failed because it did not allege that defendants directed their conduct toward plaintiffs prospective patients. Defendants also asked for the awarding of attorney fees as provided in the hospital bylaws. The trial court dismissed both counts on the grounds that the bylaws specified that plaintiff’s exclusive remedy was an action for mandamus. The trial court denied defendants’ motion for costs and fees.

Defendants appealed the denial of attorney fees. Plaintiff cross-appealed the dismissal of the action. We affirm.

I

We must initially determine whether plaintiffs complaint for money damages was sufficient to state a cause of action in order to withstand a motion to dismiss. Pleadings are to be liberally construed to provide substantial justice between parties. (Ill. Rev. Stat. 1983, ch. 110, par. 2—603(c).) A dismissal should not be based solely on the pleadings “unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover.” Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790.

While it is well settled in Illinois that a private hospital’s refusal to appoint a physician to its medical staff is not subject to judicial review (Barrows v. Northwestern Memorial Hospital (1988), 123 Ill. 2d 49, 50-60, 525 N.E.2d 50), an exception to that rule of nonreview exists where a private hospital revokes, suspends or reduces a physician's existing staff privileges. The hospital must follow its own bylaws or be subject to limited judicial review. Jain v. Northwest Community Hospital (1978), 67 Ill. App. 3d 420, 425, 385 N.E.2d 108.

A

Section 10.2 of the Hospital Licensing Act (the Act) provides that hospitals and their staffs are immune from civil liability for services rendered while serving in the capacity of a medical care evaluation committee or peer review committee. Ill. Rev. Stat. 1985, ch. 1111/2, par. 151.2; Barrows v. Northwestern Memorial Hospital (1988), 123 Ill. 2d 49, 58, 525 N.E.2d 50.

Plaintiff argues that the application of section 10.2 of the Act would be an unconstitutional impairment of his vested contract rights. The Act became effective after the contractual relationship of the parties arose and after the initiation of the present action. Plaintiff initially filed suit against the defendants herein, in Federal district court, on July 27, 1983. His suit was for Federal antitrust damages, several pendent State claims and sought $15.5 million in damages before trebling. The Federal district court dismissed the action for failure to state a Federal cause of action. Dr. Seglin then appealed. The Seventh Circuit upheld the trial court’s dismissal. (Seglin v. Esau (7th Cir. 1985), 769 F.2d 1274.) On August 5, 1986, Dr. Seglin brought the present action.

While the effective date of the Act was August 16, 1986, the appellate court in Rodriguez-Erdman v. Ravenswood Hospital Medical Center (1987), 163 Ill. App. 3d 464, 471, 516 N.E.2d 731, appeal denied (1988), 118 Ill. 2d 551, held that the Act is retroactive. (Accord Levy v. McKiel (1989), 185 Ill. App. 3d 240, 243; Knapp v. Palos Community Hospital (1988), 176 Ill. App. 3d 1012, 1023-24, 531 N.E.2d 989, cert. denied (1989),__U.S.__, 107 L. Ed. 2d 100, 110 S. Ct. 141; Gates v. Holy Cross Hospital (1988), 175 Ill. App. 3d 439, 446 n.2, 529 N.E.2d 1014, appeal denied (1989), 124 Ill. 2d 554.) We agree. Therefore, based on the grant of immunity from civil liability, we conclude that the trial court properly dismissed plaintiff’s complaint.

B

Plaintiff’s complaint raises issues regarding breach of contract and tortious interference with prospective business advantage. Each of these counts is seeking compensatory or punitive damages. As previously noted, hospitals and their staffs are immune from civil liability for services on medical care evaluation committees or peer review committees. Ill. Rev. Stat. 1985, ch. 1111/2, par. 151.2; Levy v. McKiel (1989), 185 Ill. App. 3d 240, 243; Barrows v. Northwestern Memorial Hospital (1988), 123 Ill. 2d 49, 58, 525 N.E.2d 50; Knapp v. Palos Community Hospital (1988), 176 Ill. App. 3d 1012, 1023-24, 531 N.E.2d 989, cert. denied (1989),__U.S.__, 107 L. Ed. 2d 100, 110 S. Ct. 141; Gates v. Holy Cross Hospital (1988), 175 Ill. App. 3d 439, 446, 448-49, 529 N.E.2d 1014, appeal denied (1989), 124 Ill. 2d 554.

C

The hospital’s bylaws on the plaintiff’s remedy in this situation are clear and unambiguous. They are subject only to one interpretation. (A.A. Conte, Inc. v. Campbell-Lowrie-Lautermilch Corp. (1985), 132 Ill. App. 3d 325, 477 N.E.2d 30.) The bylaws limit judicial review only to a writ of mandate. Further, plaintiff could seek this writ only if the hospital’s internal review has upheld the suspension. The parties also agreed not to sue one another for damages arising out of medical staff disputes. Thus, the hospital’s internal review gave plaintiff all the relief to which he was entitled. Therefore, plaintiff’s action was also barred by his contract with the hospital.

II

Defendants argue that attorney fees should be awarded to them in this case, pursuant to the hospital’s bylaws. They state that Dr. Seglin has filed two actions, both of which he lost, and is liable to the defendants for their reasonable costs and attorney fees.

In Illinois, it is well settled that attorney fees are not ordinarily recoverable unless specifically authorized by contract. (Meyer v. Marshall (1976), 62 Ill. 2d 435, 343 N.E.2d 479.) Contract provisions with regard to attorney fees are to be strictly construed. (Verni v. Imperial Manor of Oak Park Condominium, Inc. (1981), 99 Ill. App. 3d 1062, 425 N.E.2d 1344.) Illinois courts consistently refuse to broaden contractual provisions for attorney fees beyond the precise language used in the contract. Thread & Gage Co. v. Kucinski (1983), 116 Ill. App. 3d 178, 451 N.E.2d 1292, appeal denied (1983), 96 Ill. 2d 566 (attorney fees not allowed pursuant to a confession of judgment clause which authorized fees in such actions, since the defendant had proceeded by way of an action for breach of contract and not through a confession procedure); Wheeling Trust & Savings Bank v. Citizens National Bank (1986), 142 Ill. App. 3d 333, 491 N.E.2d 866 (attorney fees not allowed in an action for declaratory rights in an extension agreement to a mortgage, even though attorney fees would have been allowed if the action had been brought to determine rights under the mortgage).

Plaintiff submits that he is not within the attorney fees provision of the bylaws because he is asking for contract damages and not asking the court to direct, by writ of mandate or a similar order, the hospital or any of the defendants to take any action. We agree.

The payment of attorney fees in the bylaws is expressly limited and does not apply to this action. The bylaws provide for attorney fees of the prevailing party to be paid when there is an action for a writ of mandate brought to review any adverse ruling with respect to clinical privileges. The present action does not seek review of an adverse ruling, does not request a writ of mandate, and therefore, is not within the plain meaning of the words used by the hospital.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SCARIANO and EGAN, JJ., concur.

       Justice Egan participated in the decision of this case prior to his assignment to the sixth division.


text:
    DICK TEMPLE et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 94, Cook County, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—1577
    Opinion filed December 12, 1989.

      Thomas A. Morris and Scott E. Nemanich, both of Brydges, Rise-borough, Morris, Franke & Miller, of Chicago, for appellant.
    Lawrence Jay Weiner and Joan M. Eagle, both of Schwartz & Freeman, of Chicago, for appellees.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Defendant Board of Education of School District No. 94 (the Board) appeals from a judgment of the circuit court directing it to reinstate, with back pay, and pay damages to plaintiff, Mark Starkovich. The other plaintiffs are not involved in this appeal.

The defendant’s principal arguments on appeal are that: (1) the judgment of the circuit court, finding that the defendant wrongfully discharged the plaintiff, is contrary to the manifest weight of the evidence; and (2) the circuit court erroneously found that the plaintiff was discharged in retaliation for exercising his constitutional right of association.

The essential facts of the instant case are not in dispute. The plaintiff was a tenured teacher working for the defendant Board. At the conclusion of the 1983-84 school term, the Board instituted a reduction in force (RIF) and honorably dismissed the plaintiff, two other tenured teachers, and five nontenured teachers pursuant to the Illinois School Code (Ill. Rev. Stat. 1983, ch. 122, par. 24—12). The Board cited economic necessity as its reason for the RIF, due to the declining student enrollment it had been experiencing for approximately 20 years. The three tenured teachers dismissed by the Board had from 16 to 21 years’ experience with District 94. Prior to the RIF at issue, no tenured teacher had been honorably dismissed by the Board.

The three tenured teachers brought suit against the Board, seeking a declaratory judgment that the Board acted arbitrarily and unreasonably in dismissing the plaintiffs by basing such dismissals upon an economic necessity that did not exist. The plaintiffs also sought a declaratory judgment that they were dismissed by the Board in retaliation for their participation in the unionization efforts that had been taking place at their school during the 1983-84 school term.

The trial court found that “there is no credible evidence in the record that an economic necessity existed” and that the Board’s action in dismissing the plaintiffs was “arbitrary and unreasonable.” The court ordered the Board to reinstate the plaintiffs with back pay. It further found that the plaintiffs were discharged in retaliation for exercise of their constitutional rights and awarded the plaintiffs damages. Subsequent to filing the notice of appeal, counsel for defendant admitted that it erroneously terminated two of the three plaintiffs due to the fact that they had tenure status senior to some of the tenured faculty retained by the Board. All matters as to these two plaintiffs were settled, leaving the award of damages and reinstatement as to plaintiff Starkovich the only subject of this appeal.

I

On appeal, the Board argues that the trial court erroneously determined that no economic necessity existed at the time the plaintiff was dismissed and, consequently, the trial court erred when it found that the dismissal decision was arbitrary and unreasonable.

The legislature has placed the administration of schools within the domain of the school board. A school board is given wide discretion to exercise its powers, and courts will not interfere with the exercise of the board’s powers or substitute their discretion for that of the school board unless the board’s action is palpably arbitrary, unreasonable or capricious. (Tyska v. Board of Education of Township High School District 214 (1983), 117 Ill. App. 3d 917, 922, 453 N.E.2d 1344, appeal denied (1983), 96 Ill. 2d 566.) The plaintiff does not deny that the Board has the statutory power, and indeed the statutory duty, to prudently manage the fiscal affairs of its district. However, Starkovich alleges that his dismissal was based upon a claim of economic necessity which did not exist. Thus, Starkovich argues, the defendant’s decision to dismiss him because of economic necessity was palpably arbitrary and capricious. The trial court examined the evidence and agreed that no economic necessity existed. Upon review of the record, we affirm the trial court’s holding.

The Board minutes, taken at the meetings where the dismissal decision was made, revealed no substantive or documentary evidence to support a claim of economic necessity. The Board alleged that declining student enrollment largely contributed to the economic necessity. However, the student enrollment, instead of declining, actually increased slightly from 1983-84, and from 1984-85. Further, at the time the Board dismissed Starkovich, the district was employing two extra full-time administrative personnel. If student enrollment actually were declining, the amount of administrative personnel needed would also necessarily decrease. Additionally, the three tenured teachers honorably dismissed by the Board were not the three teachers with the least amount of tenure. If the Board actually were dismissing faculty members because of economic necessity, the extra administrative personnel and the teachers with the least amount of seniority would have been the logical choices.

Moreover, Starkovich presented expert testimony at trial to support his contention that there was no economic necessity. Harry Van Houdnos, of the Illinois Education Association, testified that the district’s financial condition from 1983-85 was “progressively enhancing” and that the district, at the time of plaintiff’s dismissal, was in “excellent fiscal condition.” The district was without debt for three years at the time of the dismissal. In fact, in 1985, the district experienced a 5% decrease in requested tax revenue. Mr. Van Houdnos further testified that the district had continued to accumulate additional surpluses. This testimony remained unrebutted by the Board.

Although great deference should be afforded a school board’s action taken within the realm of its enumerated powers, the defendant Board did not present any credible evidence to convince this court that an economic necessity existed at the time it dismissed the plaintiff. The hiring of additional administrative personnel, while three tenured teachers are reduced in force, then confessing that the two co-plaintiffs were indeed wrongfully dismissed, supports the conclusion that the Board’s conduct was arbitrary and capricious. The selective dismissal of the three tenured teachers under the circumstances of this case warrants reversal of the Board’s action. Accordingly, we affirm the trial court’s determination that Starkovich’s dismissal was “arbitrary and unreasonable.”

II

The Board also argues that the trial court erred when it found that Starkovich was discharged in retaliation for exercising his constitutional rights of association. Starkovich contends that the trial court properly found that the Board discharged him because of his involvement in the union organization campaign and utilized its claim of economic necessity as a subterfuge for the retaliatory action.

The trial court relied upon Mt. Healthy City School District Board of Education v. Doyle (1977), 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568, to delineate the procedural shifting of burdens of proof in cases where it is alleged that a constitutionally protected activity is invaded under the guise of a legitimate reason for dismissal. In Mt. Healthy, an untenured teacher asserted that he was impermissibly not rehired by the school board because he exercised his first amendment rights. The board countered that the incident involving the exercise of his first amendment rights was one, among many, of the reasons for its decision not to rehire the plaintiff. Because both parties alleged different reasons for the board’s action and one of those reasons involved exercise of a constitutionally protected freedom, the Supreme Court enunciated the following test:

“Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that this conduct was a ‘substantial factor’ — or, to put it in other words, that it was a ‘motivating factor’ in the Board's decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent’s reemployment even in the absence of the protected conduct.” (429 U.S. at 287, 50 L. Ed. 2d at 484, 97 S. Ct. at 576.)

The trial court in the case at bar properly invoked the Mt. Healthy procedural device by placing the initial burden on the plaintiff to prove that: (1) he was involved in a constitutionally protected activity; and (2) that this activity was a “substantial” or “motivating” factor in the board’s decision to dismiss him.

The plaintiff is required to make a threshold showing that the constitutionally protected activity was a motivating factor in the adverse decision. (Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977), 429 U.S. 252, 270-71 & n.21, 50 L. Ed. 2d 450, 468 & n.21, 97 S. Ct. 555, 566 & n.21.) The trial court found that the plaintiff in the instant case made the required threshold showing. We agree.

Prior to plaintiff’s dismissal, the Board had never dismissed a tenured teacher. Starkovich established that he was 12 out of 23 tenured teachers on the seniority list. The other two coplaintiffs were also dismissed by the Board even though they were admittedly senior to tenured teachers retained by the Board. In addition to being senior to the teachers retained by the Board, Starkovich and the two co-plaintiffs were involved in union activities prior to their dismissals. Starkovich was the president of the Komarek Faculty Association and one of the leaders in the unionization campaign. His dismissal came within two months of open efforts to organize the Komarek faculty into the Illinois Education Association. The Board failed to respond to a request by the Komarek Faculty Association for voluntary recognition, and one of the Board members even stated that he did not want to be on the Board if the faculty unionized. This evidence, taken together, more than sufficiently supports the trial court’s finding that Starkovich carried his burden of proof. The trial court properly found that Starkovich made the threshold showing that his protected union activities were a motivating factor in the Board’s decision to dismiss him.

Under Mt. Healthy, supra, once the plaintiff has carried his burden of proof, the burden shifts to the Board to establish, by a preponderance of the evidence, that the decision to dismiss would have been made even in the absence of his constitutionally protected activities. Here, the Board asserted that Starkovich was not dismissed because of his union activities but because of economic necessity. The Board failed to present any credible evidence that an economic necessity existed, while Starkovich’s proof established that an economic necessity did not exist. The Board was unable to carry its burden of proving, by a preponderance of the evidence, that the decision to dismiss Starkovich would have been made even in the absence of his union activities. It is therefore reasonable to conclude that the Board’s reliance upon economic necessity was indeed a subterfuge used to dismiss three tenured teachers for exercising a constitutionally protected right.

In summary, the Board’s order to dismiss Starkovich was palpably erroneous and unreasonable because no economic necessity existed. In addition, the trial court properly found that Starkovich was dismissed in retaliation for exercising his constitutional rights.

Accordingly, the judgment of the circuit court of Cook County ordering plaintiff’s reinstatement, with back pay, and damages for retaliatory discharge is affirmed.

Affirmed.

HARTMAN and DiVITO, JJ., concur.


text:
    LINCOLN PARK FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellee, v. ROBERT A. CARRANE et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—88—1881
    Opinion filed December 12, 1989.

      Douglas G. Felder, of Carrane, Newman & Freifeld, of Chicago, for appellants.
    Gerard C. Heldrich, Jr., and Jeffrey K. Gutman, both of Heldrich, Gut-man & Associates, of Chicago, for appellee.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, Lincoln Park Federal Savings and Loan Association (hereinafter the Bank), sued defendants, Robert A. Carrane and Joseph Bechtold, as guarantors of a promissory note made by Cosmopolitan National Bank, as trustee under a land trust agreement (the Land Trustee). The land trust was created by defendants, Carrane and Bechtold, who are also the sole beneficiaries of the trust. A default judgment was entered against Bechtold and the Land Trustee for failure to appear and answer or otherwise plead. The Bank subsequently sought and was granted summary judgment against Carrane. Carrane’s post-trial motion was denied. He appeals. The other defendants are not involved in this appeal.

On March 25, 1980, at the direction of Carrane and Bechtold, the Land Trustee executed a mortgage and a note (secured by the mortgage) in connection with a loan made by the Bank. Contemporaneously with the execution of the note and mortgage by the Land Trustee, Carrane and Bechtold, the sole beneficiaries of the land trust, executed a guaranty of the note and mortgage. The loan went into default on May 1, 1980.

On May 14, 1984, the Bank filed a one-count action to enforce the guaranty against Carrane and Bechtold. Carrane answered and asserted an affirmative defense demanding that the Bank proceed against the Land Trustee as the maker of the note.

An amended complaint was filed on November 29, 1984. The Bank added the Land Trustee as a defendant and added a second count, seeking judgment against the Land Trustee under the terms of the note.

On March 27, 1985, the Bank filed a motion seeking a default judgment against Bechtold and the Land Trustee for failure to appear or plead. After a prove up hearing on April 15, 1985, a default judgment was entered against Bechtold and the Land Trustee.

The Bank filed its motion for summary judgment against Carrane on May 24, 1985. The affidavit supporting the motion stated that the loan had been in default since May 1, 1980, and that the court had entered judgment against the mortgagor on April 15,1985.

The Bank’s motion was granted on October 16, 1987. Carrane’s post-trial motion was denied on May 17, 1988. Carrane appeals.

I

The technical nature of a transaction involving a corporate land trustee following the direction of its beneficiaries in obtaining a loan from a financial institution, secured by the corpus of the trust, requires the use of language that makes a relatively simple transaction appear to be unduly complex.

Simply stated, in substance, this case involves an individual, defendant Carrane, who elected to hold title to real estate in a land trust rather than in his own name. To accomplish that end, he caused the land trust to be created. Then he directed the trustee to execute the note and mortgage in favor of the Bank. It was acknowledged at oral argument that the Bank would not make the loan to the land trust without the personal guaranty of the beneficiaries. For this reason, defendant Carrane and his cobeneficiary executed the guaranty.

It is undisputed that the trustee of a land trust merely holds naked legal title to real estate and has no affirmative duties. The beneficiary holds equitable title. (Melrose Park National Bank v. Melrose Park National Bank (1984), 123 Ill. App. 3d 282, 285, 462 N.E.2d 741.) It was acknowledged at oral argument that the proceeds of the loan were delivered to Carrane and Bechtold, the sole beneficiaries of the land trust.

Now, defendant Carrane seeks to avoid repayment to the Bank on the theory that the judgment against the Land Trustee caused his obligation under the guaranty to evaporate under the theory of merger. We disagree.

The guaranty stated that Carrane and Bechtold

“guarantee the payment of the foregoing Note, together with all interest thereon, and any and all sums advanced pursuant to the terms of said note or of the mortgage by which it is secured, and agree[ ] to pay all costs, expenses and attorneys’ fees paid or incurred in and about the collection of said Note, the foreclosure of the lien of said Mortgage, or the enforcement of the Guarantee [sic]; and do[ ] hereby adopt, agree to, accept, and assume all terms, conditions, covenants and waivers contained in said Note and Mortgage.”

The guaranty specifically referred to the note between the Bank and the Land Trustee.

The liability of a guarantor is strictly construed in his favor and against the party in whose favor the guaranty runs. (Harris Trust & Savings Bank v. Stephans (1981), 97 Ill. App. 3d 683, 422 N.E.2d 1136.) A guarantor is to be accorded the benefit of any doubt which may arise from the language of the guaranty. (Lawndale Steel Co. v. Appel (1981), 98 Ill. App. 3d 167, 423 N.E.2d 957.) A guarantor’s liability is not to be varied or extended beyond its precise terms by construction or implication. He is bound only to the extent and in the manner and under the circumstances pointed out in his obligation. Telegraph Savings & Loan Association v. Guaranty Bank & Trust Co. (1978), 67 Ill. App. 3d 790, 793, 385 N.E.2d 97.

Carrane asserts that his liability is predicated on the existence of a note. If the note does not exist, he claims that he is then not obligated on the guaranty.

Carrane’s affirmative defense to the original complaint was that the Bank had to exhaust all of its other remedies before it could proceed against him as a guarantor. In response, the Bank obtained a judgment on April 15, 1985, against the Land Trustee, as the maker of the note. Now, Carrane contends that the note merged with the judgment against the Land Trustee and, therefore, the note does not exist and he cannot be the guarantor of a nonexistent note.

Merger means that a plaintiff who obtained a final judgment against a defendant may not maintain a second action against that defendant on the same claim. (United States v. Ryan (7th Cir. 1987), 810 F.2d 650, 654.) Here, no merger took place since the April 15 judgment was in this same case and the order was obtained against a different party defendant.

Defendant’s reliance on Doerr v. Schmitt (1941), 375 Ill. 470, 31 N.E.2d 971, is misplaced. In Doerr, our supreme court held that if a final judgment had been obtained by a party, that instrument can never again become the basis of a suit between the same parties.

In the case at bar, no merger occurred because: (1) the judgment order previously obtained on the note was in this same action; (2) the order obtained was against another party defendant; and (3) the order obtained was not a final judgment, since the court did not make a Supreme Court Rule 304(a) finding. 87 Ill. 2d R. 304(a).

We therefore conclude that the trial court correctly determined that Carrane’s. defense of merger does not apply to the facts of this case.

II

Defendant next contends that the trial court improperly granted summary judgment because a genuine issue of material fact existed with regard to the obligation of good faith imposed upon the Bank by the Illinois Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1985, ch. 26, par. 1—101 et seq.).

Under the terms of the note and guaranty signed by Carrane, any obligation to act with commercial reasonableness has been waived. The guaranty agreement provides that “the undersigned hereby waives demand, protest, notice of protest or notice of default, presentment of payment and diligence in the collection of said note or in the preservation and/or enforcement of said security.” (Emphasis added.) Thus, it is clear from the terms of the guaranty that diligence in collection is not required since it has been waived by Carrane.

Additionally, the note states that “[t]he makers, sureties, guarantors and endorsers of this Note jointly and severally hereby waive *** any and all notice of whatever kind or nature and the exhaustion of legal remedies herein.” (Emphasis added.) Thus, the Bank had no obligation to foreclose upon the collateral of the note.

Even if some obligation existed, Carrane has failed to present an affidavit as evidence that there was a lack of diligence or prejudice to the guarantors. Thus, summary judgment was properly granted.

The cases cited by Carrane are inapposite. In McHenry State Bank v. Y & A Trucking, Inc. (1983), 117 Ill. App. 3d 629, 454 N.E.2d 345, the court discharged the guarantor’s obligation based on a finding that the plaintiff had impaired the collateral. Here, there is no evidence that the Bank impaired the collateral.

Thus, the obligation to act in a commercially reasonable manner was waived in the guaranty and the note. Additionally, Carrane failed to present any evidence below that the Bank was required to, or that the Bank did not, act in a commercially reasonable manner.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SCARIANO and DiVITO, JJ., concur.