author: JUSTICE LINDBERG

text:
    THE CITY OF OAKBROOK TERRACE, Plaintiff-Appellant, v. LA SALLE NATIONAL BANK, as Trustee, et al., Defendants-Appellees.
    Second District
    No. 2—88—1123
    Opinion filed July 27, 1989.

      Patrick M. Loftus, of Law Offices of Hubert J. Loftus, Ltd., of Addison, for appellant.
    Robert E. Wiss and Carl A. Gigante, both of Foran, Wiss & Schultz, of Chicago, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, City of Oakbrook Terrace (City), appeals from an order of the circuit court of DuPage County dismissing the City’s complaint to condemn the property held in trust by La Salle National Bank for the benefit of defendant, Don Keller. The City raises two issues on appeal: (1) whether the City had authority to condemn the subject property; and (2) whether the City made a good-faith offer to purchase the property.

The parties stipulated to the following facts. The City is a municipal corporation organized pursuant to the laws of the State of Illinois. Keller is the sole beneficiary of La Salle National Bank trust No. 49834. The real property at 17W741 Butterfield Road, Oakbrook Terrace, Illinois (the properly), contains approximately 22,500 square feet. The City hired an appraiser who, if called to testify, would state that he appraised the property on July 7, 1987, and in his opinion the fair cash market value was $80,000. In a letter dated September 2, 1987, the city attorney sent Keller an offer to purchase the property. Keller did not respond to the letter. Keller has maintained a sales price of $17 per square foot for the property. After the September 2, 1987, letter, the City did not make any further offers to purchase the property, nor did it make any attempt to agree or engage in negotiations with Keller.

On January 6, 1988, the City filed a petition to condemn the property alleging that it was “authorized to acquire a site for a Community Building by condemnation” and that the acquisition of the property was “convenient, required and needed for a site for a Community Building.” The complaint also alleged that the parties were unable to agree on the amount of compensation. The City attached a copy of an ordinance passed by the Oakbrook Terrace city council, which provided that “an Historic and Municipal Building” be established on the property; that it was “necessary and desirable” for the City to acquire title to and possession of the property; that the city attorney was authorized and directed to negotiate with the owner of the property for its purchase; and that if the city attorney was unable to agree with the owners on the amount of compensation, then title to and possession of the property “shall be acquired by the City of Oakbrook Terrace through condemnation.” The city clerk certified that the ordinance was passed at an authorized meeting of the city council on October 27, 1987. The condemnation complaint expressed that the City was proceeding pursuant to the authority granted it in section 11 — 63—5 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 63—5).

Keller filed a traverse and motion to dismiss, alleging: (1) the City was not authorized to acquire the property by eminent domain proceedings; (2) the ordinance did not authorize the City to acquire the property for any purpose authorized by statute; (3) the ordinance was “ineffective in law to vest the power of condemnation in plaintiff or to authorize plaintiff to condemn”; and (4) the City did not make a bona fide attempt to agree on the amount of compensation to be paid to Keller for the property.

The trial court granted Keller’s traverse and dismissed the complaint with prejudice. In a letter of opinion, the court explained its reasons for granting Keller’s motion. First, the court decided that section 11 — 63—5 must be read in conjunction with the other sections of division 63 of article 11, in particular section 11 — 63—2, which requires a referendum when a municipality seeks to establish and levy a tax for a community building. The court stated:

“To argue that Section 11 — 63—5 should stand apart from the rest of Section 63 so that the corporate authorities may acquire a site for community purposes without a referendum and yet may not establish, maintain or equip such a community building and the further reference to real property found in [section 11 — 63—3], leads me to conclude that a referendum is necessary before the plaintiff in this case can proceed to condemn the property.”

The court also found that the offer embodied in the September 2 letter “was a hollow one in view of the fact the ordinance authorizing eminent domain had not yet been enacted.” In addition, the court decided that because the ordinance provided that the property was to be acquired for “historic and municipal purposes,” the property would first have to be designated a historic site before the City could condemn the property. See Ill. Rev. Stat. 1987, ch. 24, par. 11— 48.2 — 1 et seq.

The City’s first contention on appeal is that the trial court erred when it construed sections 11 — 63—1, 11 — 63—2, and 11 — 63—3 with section 11 — 63—5 when determining whether the City had authority to condemn the property. Section 11 — 63—1 provides that municipalities may “establish, equip, maintain and operate a community building or buildings *** and may levy annually a tax *** for these purposes.” (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 63—1.) Under section 11 — 63—2, a municipality:

“[M]ay not exercise the authorities granted by Section 11— 63 — 1 until the question of establishing, equipping, maintaining and operating a community building or buildings and the levying of an annual tax therefor *** is submitted to the electors of such municipality ***.” (Ill. Rev. Stat. 1987, ch. 24, par. 11-63-2.)

Under section 11 — 63—3, the municipality which voted for the proposition may issue bonds “for the acquisition or construction, or both, of such property, either real or personal, or both, as may be necessary to establish, equip, operate and maintain a community building or buildings.” Ill. Rev. Stat. 1987, ch. 24, par. 11 — 63—3.

The City argues that it is authorized to condemn the property by section 11 — 63—5, which states:

“The corporate authorities may acquire a site or sites for a community building or buildings by condemnation in the name of the municipality in the manner provided for the exercise of the right of eminent domain under Article VII of the Code of Civil Procedure ***.” (Ill. Rev. Stat. 1987, ch. 24, par. 11— 63-5.)

The City p.oints out that nowhere in article VII of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 7 — 101 et seq.) does the legislature impose the requirement of a referendum as a precondition to the exercise of the power of eminent domain.

Keller maintains that the City was not authorized to condemn the property because “municipalities are creatures of the statute and have only those powers which are expressly granted or necessarily implied.” According to Keller, the City did not comply with section 11 — 63—2 and, therefore, was not empowered under the statute to condemn the property.

When Keller filed the traverse and motion to dismiss, the City was required to make a prima facie case of the disputed allegations. (Department of Public Works & Buildings v. Keller (1975), 61 Ill. 2d 320, 324, 335 N.E.2d 443, 447; Lake County Forest Preserve District v. First National Bank (1987), 154 Ill. App. 3d 45, 51, 506 N.E.2d 424, 428.) When the condemnor establishes a prima facie case, the burden shifts to the landowner to show that the governing board of the municipality abused its discretion. Deerfield Park District v. Progress Development Corp. (1961), 22 Ill. 2d 132, 139, 174 N.E.2d 850, 854; Lake County Forest Preserve, 154 Ill. App. 3d at 51, 506 N.E.2d at 428.

A municipality can only exercise the power of eminent domain when it has been specifically conferred by legislative enactment. (Village of Long Grove v. First National Bank (1987), 164 Ill. App. 3d 253, 255, 517 N.E.2d 729, 731.) In determining whether a statute grants a municipality the authority to condemn, the court must construe the eminent domain statute strictly, to protect the rights of property owners. People ex rel. Director of Finance v. YWCA (1981), 86 Ill. 2d 219, 232-33, 427 N.E.2d 70, 76; Long Grove, 164 Ill. App. 3d at 255, 517 N.E.2d at 731.

We must examine section 11 — 63—5 to determine if the City had the authority to condemn the property in this case. While eminent domain statutes are to be construed in favor of the property owner (YWCA, 86 Ill. 2d at 233, 427 N.E.2d at 76), it must be noted that rules of construction are used only for resolving ambiguities (Radloff v. Village of West Dundee (1986), 140 Ill. App. 3d 338, 340, 489 N.E.2d 356, 357). Where the language is clear and unambiguous, courts must enforce the statute as enacted without considering other aids. County of DuPage v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143,151, 485 N.E.2d 1076, 1079.

The focus in a traverse and motion to dismiss is whether the municipality had a right to condemn the property (Lake County Forest Preserve District, 154 Ill. App. 3d at 51, 506 N.E.2d at 428) for a statutorily authorized purpose (Long Grove, 164 Ill. App. 3d at 255, 517 N.E.2d at 731). Section 11 — 63—5 specifically authorizes municipalities to acquire by condemnation property for a community building. (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 63—5.) Since that section specifically authorizes the eminent domain power, reference to other statutory sections is unnecessary. Cf. Long Grove, 164 Ill. App. 3d 253, 517 N.E.2d 729.

The language of section 11 — 63—5 is clear and unambiguous; municipalities may condemn property for a community building in the manner provided by article VII of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 7 — 101 et seq.). (Ill. Rev. Stat. 1987, ch. 24, par. 11 — 63—5.) To condemn property under article VII, a municipality needs only to file a complaint setting forth its authority in the premises; the purpose for which the property is to be taken; a description of the property; and the names of all persons interested in the property, after the parties have failed to agree on the compensation. (Ill. Rev. Stat. 1987, ch. 110, par. 7 — 102.) Since neither article VII nor section 11 — 63—5 requires a referendum as a condition precedent to condemnation, it was error for the court to dismiss the complaint on the basis that the City lacked the statutory power to condemn.

We do not reach the question of whether the City may be required to hold a referendum at some point after filing the condemnation complaint, as that issue is not before us.

Keller argues that even if a referendum is not necessary, the City was still not authorized to take the property because the ordinance authorizing the condemnation was legally insufficient. According to Keller, the City was required to proceed under the statutory section for condemning property for a historic site (see Ill. Rev. Stat. 1987, ch. 24, par. 11 — 48.2—1 et seq.) because the ordinance stated:

“It is hereby determined that an Historic and Municipal building be established, constructed and maintained on the property.”

Keller cites three cases which state that a valid enabling ordinance lies at the foundation of condemnation proceedings instituted by municipalities. (See Goldman v. Moore (1966), 35 Ill. 2d 450, 220 N.E.2d 466; City of Rockford v. Rockford Life Insurance Co. (1959), 16 Ill. 2d 287, 157 N.E.2d 21; Village of Depue v. Banschbach (1916), 273 Ill. 574, 113 N.E. 156.) Keller’s reliance on these cases is misplaced, as none of them support his proposition that the enabling ordinance must mirror the language of the statute under which the municipality intends to proceed.

Goldman clarified the requirement under article VII, section 7 — 102, of a statement of authority in a condemnation complaint in the following manner:

“The ‘authority’ to which this section refers means the condemnor’s statutory authority, and not a resolution adopted by the condemnor. [Citations.] There is thus no explicit statutory requirement that the board make a formal finding with respect to the necessity of acquiring land which it seeks to acquire by eminent domain.
Although the statute does not specifically require formal action by the condemnor, such a requirement necessarily follows from the effect that is given to the condemnor’s determination of the necessity for the taking.” (Goldman, 35 Ill. 2d at 452-53, 220 N.E.2d at 468.)

Under Goldman, it is evident that the purpose of the enabling ordinance is to show the necessity for the taking, not the statutory section under which the municipality will proceed.

Necessity is inherently bound up with the purpose of the taking. Yet recent cases suggest that a legislative finding of necessity by a city council is not required to defeat a traverse. As long as the ordinance or resolution states that the property will be taken for a public purpose, an eminent domain action may be maintained even though the ultimate use of the condemned property has not yet been determined. (State of Illinois Medical Center Comm’n v. United Church of the Medical Center (1986), 142 Ill. App. 3d 498, 503, 491 N.E.2d 1327, 1331.) Our supreme court noted that failure to make a finding of necessity in an ordinance or resolution is not fatal if the condemnor can make a showing of necessity at the hearing on the traverse. YWCA, 86 Ill. 2d at 240, 427 N.E.2d at 80.

In the present case, the ordinance stated that the property was necessary for the purpose of erecting a “Historic and Municipal Building.” The nomenclature ascribed to the building by the city council is irrelevant to the question of whether the ordinance established the need to take the property for a public purpose. The statutory authority for the action was properly alleged in the complaint. The ordinance established that it was necessary for the City to acquire the property for the purpose of establishing a public building. That was sufficient to establish a prima facie case for the necessity of the condemnation and the City’s authority to exercise the right of eminent domain. (See City of De Kalb v. Anderson (1976), 43 Ill. App. 3d 915, 917, 357 N.E.2d 837, 839.) The burden then shifted to Keller to proceed with evidence that the City abused its discretion or lacked the authority to condemn. City of De Kalb, 43 Ill. App. 3d at 917, 357 N.E.2d at 839.

The City’s final appellate contention is that the court erred in ruling that the City had not made a sufficient attempt to reach an agreement with Keller on the amount of compensation before filing the complaint to condemn. A condition precedent to the exercise of eminent domain power is an attempt to reach an agreement with the property owner on the amount of compensation. (Department of Transportation v. Marsh (1977), 54 Ill. App. 3d 890, 891, 368 N.E.2d 172, 173.) The City argues that it made a sufficient attempt to agree with Keller on a price, but Keller insisted on $382,500, while the City limited its offer to the appraised value, $80,000.

The City compares this situation to County Board of School Trustees v. Batchelder, in which the supreme court stated:

“Defendants’ contention that there was a failure to prove inability to agree on compensation before the petition was filed must likewise be rejected. By letter addressed to defendants they were offered the sum of $500 for their land, and no reply was made to the letter. Under such circumstances no further attempt to negotiate was necessary.” (County Board of School Trustees v. Batchelder (1955), 7 Ill. 2d 178, 182, 130 N.E.2d 175,178.)

In the present case, the City sent an offer of $80,000 to Keller on September 2, 1987. The letter advised Keller that if he did not respond within 14 days of September 2, the City would assume that he rejected the offer. Keller never responded to the letter.

The City also compares this cause to Waukegan Port District v. Booras (1977), 55 Ill. App. 3d 790, 371 N.E.2d 321. In Booras, the port district offered the defendants $100,000 for their property, and the defendants did not respond. This court found:

“[I]n light of the defendants’ earlier demand of $225,000 for their property and their contention that they ought to be compensated for the incomplete remodeling, it is clear that the defendants and the port district had differing theories on how to value the property, thereby leading to a wide disparity in the value they placed on the real estate. Under such circumstances it is clear that no practical solution could have been reached by further negotiations, and, therefore, none were needed.” (Booras, 55 Ill. App. 3d at 793-94, 371 N.E.2d at 325.)

The disparity between the offer and the demand in the present case is greater than that in Booras. It would appear, then, that after the September 2, 1987, offer, any further negotiations would have been futile. Consequently, no further negotiations were necessary.

Keller argues, however, that the City’s attempt to agree was not a bona fide offer because the first formal action taken by the City was the enactment of the ordinance on October 27, 1987. Since the ordinance authorized and directed the city attorney to undertake negotiations with Keller, and none were made after October 27, 1987, then it follows that the City did not make any attempt to reach an agreement on compensation. We disagree.

Keller has cited no authority for the proposition that negotiations must be pursued only after enactment of the enabling ordinance. Such a requirement would involve unnecessary action by the city council if the parties could reach an agreement. By negotiating prior to enacting an ordinance, the parties could determine whether condemnation (and an ordinance authorizing it) is necessary. If the parties agree on compensation, such an ordinance is superfluous.

The record reveals that Keller contacted the mayor in May 1987 and offered to sell the property for $17 per square foot, or $382,500. The appraiser hired by the City appraised the property at $80,000 on July 7, 1987. At the July 28, 1987, city council meeting, the city council authorized the city attorney to make an offer of $80,000 to Keller. The city attorney sent the offer to Keller, and Keller never responded. Based on these facts, we conclude that the City made a sufficient effort to reach an agreement on compensation prior to filing the condemnation complaint.

Thus, the trial court erred in dismissing the condemnation complaint and granting the traverse.

The order of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

DUNN and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL A. PHILIPPI, Defendant-Appellee.
    Second District
    No. 2—88—0752
    Opinion filed July 28, 1989.
    James E. Ryan, State’s Attorney, of ’Wheaton (William L. Browers and Colleen Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Donald J. Ramsell, of Ramsell & Associates, of Schaumburg, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

In this appeal, the State raises one issue, namely, that the trial court’s decision to take judicial notice of the testimony of two non-party witnesses given in an unrelated case was manifestly erroneous.

On February 26, 1988, defendant Michael Philippi was charged with the offense of driving under the influence of alcohol in violation of sections 11 — 501(a)(1) and 11 — 501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, pars. 11 — 501(a)(1), (a)(2)). Defendant submitted to breathalyzer testing which disclosed a blood-alcohol concentration of .21. Defendant filed a petition to rescind the revocation of his driver’s license, and at the hearing on said petition, defendant’s attorney sought to introduce evidence that the results of the breathalyzer test did not comply with the standards and procedures for testing alcohol and other drugs promulgated by the Illinois Department of Public Health (Department) and that the simulator solution in this case was improperly assayed (tested).

At the hearing on the petition to rescind, defendant filed a motion in limine, and in support of said motion, defendant sought to introduce several exhibits into evidence. Defendant’s exhibit No. 1 was a certified public record of the Department for the February 10, 1988, accuracy check by the Department’s inspector John Dorko of Intoxylizer 3000, serial No. 4073, the breathalyzer used by the Bloomingdale police department in the instant case. Defendant’s exhibit No. 2 was a copy of an accuracy check performed by the same inspector on the same instrument performed on March 3, 1988. Defendant’s exhibit No. 3 was the the Department’s certificate of analysis for testing solution lot No. 87 — 134, which was used to test the instant breathalyzer on February 10, 1988, and March 3, 1988. Defendant’s exhibit No. 4 was the transcript of the testimony of two witnesses, John Dorko and Dr. Daniel Brown, given on May 24, 1988, in the case of People v. Hurmuz, No. 88 — TR—39055 (Cir. Ct. DuPage County). Defendant’s exhibit No. 5 was a photocopy of the breath ticket issued by the Bloomingdale police department to the instant defendant on February 26, 1988.

In People v. Hurmuz, following an order of summary suspension, the defendant therein, at a hearing on summary suspension, called two witnesses, Mr. John Dorko and Dr. Daniel Brown. (It should be noted here that the same judge presided over both People v. Hurmuz and the instant case. Also, the prosecuting attorney and defense counsel were the same in both cases.) Defendant’s exhibit No. 4 was a certified copy of the transcript of the testimony of John Dorko and Dr. David Brown, given in People v. Hurmuz. Mr. Dorko, an inspector with the Department, testified that on March 17, 1988, and April 14, 1988, he certified the Glendale Heights Breathalyzer 2000 using as the simulator solution, batch 87 — 134 (the same solution used to certify the instant breathalyzer). Mr. Dorko testified that he obtained simulator solution batch 87 — 134 from the Department in Chicago. He then stated that in certifying the Glendale Heights breathalyzer, he placed the solution in the simulator (a component of the breathalyzer) at a controlled temperature. The simulator solution was then blown through the machine in order to obtain a reading of .10, plus or minus a hundredth. Mr. Dorko also testified that if the simulator solution he used to test the machine was not accurate, the machine could not be appropriately certified.

Dr. Daniel Brown testified in People v. Hurmuz that he is the acting chief toxicologist for the Illinois State Police, Bureau of Forensic Sciences. He stated that he has been involved in the testing of alcohol for over 20 years, and that he is certified by the Department to analyze blood and urine for the presence of alcohol and other drugs. Dr. Brown testified that his department is currently involved in doing chemical analysis of blood and urine specimens for the presence of drugs and alcohol. Dr. Brown stated that the simulator is a device used to create an alcohol and air solution of known concentration. A solution is placed inside the simulator, and said solution is used to produce an alcohol air volume of known alcohol concentration for calibrating the breathalyzer.

Dr. Brown further testified in People v. Hurmuz that a gas chromatograph (otherwise known as a breathalyzer) is an electronic instrument that is used to do analysis on a variety of substances, including measuring the alcohol in blood. He testified that if the gas chromatograph were properly calibrated, the simulator solution would register a reading of .121 grams of alcohol on the gas chromatograph. He admitted that the Department’s certificate of analysis for batch 87 — 134 stated that the alcohol concentration was .10 rather than .121. Later in Dr. Brown’s direct examination, the following colloquy took place.

“Q. In your opinion, is a gas chromatograph designed to estimate or is it designed to read accurately?
A. It’s designed to read accurately.
Q. And in your opinion, as the document [certificate of analysis] reads, isn’t it in fact true that scientifically it’s incorrect.
A. Yes, sir. That’s correct.”

In defendant’s redirect, the following colloquy took place.

“Q. So that document [certificate of analysis] does not have the proper number in it that a gas chromatograph would record on a .10 simulator solution, correct?
A. If the instrument was properly calibrated, that is correct, sir. It is not proper.
Q. And it’s your testimony that the Department of Public Health put down a number different than what the gas chromatograph in fact should have recorded in this case, correct?
A. Either that or the instrument was not properly calibrated, sir.”

The court in People v. Hurmuz found that defendant met his burden of demonstrating a defect in the breathalyzer evidence presented by the State as to batch 87 — 134 and vacated the order granting summary suspension.

In the proceeding in this case, by using the People v. Hurmuz testimony of Dr. Daniel Brown and John Dorko and the other defense exhibits, defendant sought to show that: (1) the same simulator solution (batch 87 — 134) was used both here and in the Hurmuz case, (2) the simulator solution used to test the breathalyzer which measured defendant’s blood-alcohol level was defective, and (3) the breathalyzer was tested improperly in violation of the standards and procedures by the instant Department. Thus, defendant argued that the results of the breathalyzer test should be excluded.

The defendant first contends that the State failed to properly object to defendant’s exhibit No. 4 and failed to specify particular grounds of objection thereto. In reference to the foregoing, the record at the time defendant’s exhibit No. 4 was offered in evidence contains approximately six pages, portions of which show the following statements made by the assistant State’s Attorney:

“Technically, we have no objection to entering Exhibit No. 4 in evidence. However, we wish to reserve our right to argue for what purpose its introduction would be proper or improper.” (Emphasis added.)
“Here, Dr. Brown’s testimony was in the nature of opinion testimony and I don’t believe it’s proper for this court to take judicial notice of opinion testimony, your Honor.”

Thereafter, a part of page 20 of defendant’s exhibit No. 4 was read, and thereafter, the assistant State’s Attorney said:

“Both those questions are, by design of the question themselves, they are eliciting opinion testimony. I don’t believe that’s proper.”
“I cannot at this point in time represent how the testimony may or may not be different than it was on the previous occasion, Judge, but as I think you have made reference to in your comments, I think we are entitled to do that, your Honor, just as much as the State is not allowed to ask the Court to take judicial notice of certifications and other things just because they have been litigated in other cases, similar cases.
I don’t think the defense has that ability to either and I don’t think the State has to be required to forfeit the right to have live testimony in these cases, your Honor.”

Also, it is noted that the court made certain remarks in reference to defendant’s exhibit No. 4 during the discussion with counsel as follows:

“THE COURT: Mr. State’s Attorney, I agree with your argument that these were opinions of the witness and they are not in the realm of, you know, me taking judicial notice about the sun and moon and stars and other scientific things, but to me, I don’t understand why the State’s Attorney would want to pursue something and cause the defendant to subpoena in these witnesses again and take up the time of public officials.
If we go in and have these witnesses appear before the Court again, I just don’t see the fairness of the State in requiring the defendant to maybe meet the technicality of the criminal court rules, where the facts apparently are not in dispute.
* * *
THE COURT: All right. It’s defendant’s motion and I look upon the Exhibit 4 as being sworn testimony that was taken before this Court in this courtroom before the same two attorneys that are before me now. So it just strikes me that even though we have a technical non-compliance with some of the court rules, we live in a world of change and maybe it’s time to test this, so the documents will be admitted.
THE COURT: In light of the foregoing parts of the record, this Court holds that proper objection was made by the State to the admissions of the defendant’s Exhibit No. 4.”

The court below took judicial notice of the testimony of John Dorko and Dr. Daniel Brown in People v. Hurmuz and admitted defendant’s other exhibits into evidence and granted defendant’s motion in limine to exclude the results of the breathalyzer test. Thereafter, the court granted the relief defendant sought, namely, revocation of the suspension of his license on the basis that the breathalyzer evidence was defective.

In light of the parts of the record quoted above, this court holds that proper objection was made by the State to the admission of defendant’s exhibit No. 4. (See Dear v. Chicago Transit Authority (1979), 72 Ill. App. 3d 729, 734.) Therefore, the issue as heretofore stated is whether or not the court may take judicial notice of testimony of nonparty witnesses given in an unrelated case.

The law applicable in this case is succinctly stated in George v. Moorhead (1948), 399 Ill. 497, 500, as follows:

“The general rule, which seems to be supported by all of the authorities, is that the evidence given by a witness in a previous action is relevant for the purpose of proving the matters stated in a subsequent proceeding, or in a later stage of the same proceeding, when the witness is dead, or is insane, or is so ill that he will probably never be able to travel, or is kept out of the way by the adverse party, and in some States when he is out of the jurisdiction of this court, provided there be identity of parties and issues in the former proceeding and the later.” (Emphasis added.)

The court stated further:

“The rule would, of course, exclude the former testimony of a witness still alive and capable of being subpoenaed as a witness ***.” (Emphasis added.) George, 399 Ill. at 501.

In People v. Brown (1988), 177 Ill. App. 3d 671, the defendant was charged with DUI. The arresting officer testified at a hearing to rescind the summary suspension of defendant’s driver’s license. After this hearing, the defendant moved to suppress the evidence at the DUI hearing, and the court took judicial notice of the arresting officer’s testimony given in the hearing for summary suspension of license. On appeal, the court held it was error to take judicial notice of the testimony if there was no showing that the officer could not have been subpoenaed. The following portion of the court’s decision quoting from In re Gonder (1986), 149 Ill. App. 3d 627, addresses the concerns of the trial judge in this case in reference to his remarks about recalling witnesses:

“In taking judicial notice of the record of prior proceedings in this cause, the circuit court apparently sought to expedite matters and eliminate the need to recall nonparty witnesses. However, this procedure also skirted the normal rule that prior testimony is hearsay that may be used as substantive evidence only when the witness is unavailable by death, illness or other such cause.” 149 Ill. App. 3d at 629.

Since defendant’s exhibit No. 4 should not have been admitted in evidence on the basis of judicial notice, the order of the circuit court must be vacated. This cause is remanded for further proceedings including the presentation of such further evidence as may properly be admissible.

Judgment vacated and remanded with directions.

LINDBERG and DUNN, JJ., concur.


author: JUSTICE INGLIS

text:
    DAVID W. BENO, Plaintiff-Appellee, v. RAYMOND L. McNEW, Defendant-Appellant (La Salle National Bank Trust No. 14790-09 et al., Defendants).
    Second District
    No. 2—89—0015
    Opinion filed July 28, 1989.

      Richard W. Husted, of Dundee, for appellant.
    Rita Farrell Sullivan, of Early, Collison, Tousey, Regan & Sullivan, of Elgin, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Raymond L. McNew, appeals from an order of the circuit court of Kane County denying his motion for attorney fees and costs pursuant to section 2 — 611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). Defendant contends that the trial court abused its discretion when it denied his motion for attorney fees and costs without conducting an evidentiary hearing. We reverse and remand this cause for further proceedings.

On July 30, 1985, plaintiff, David W. Beno, an investigator with the United States Environmental Protection Agency, was inspecting property allegedly being used as an “unauthorized landfill.” Plaintiff was injured when he fell on various materials deposited on property belonging to defendant, J.S. Reimer, Inc. On June 1, 1987, plaintiff brought this action seeking damages for his personal injuries against J.S. Reimer, Inc., and four other defendants who owned property adjacent to the “landfill.” Count IV of plaintiff’s complaint was directed against defendant McNew and alleged that McNew owned a portion of the property on which the “landfill” was located. Plaintiff’s complaint against McNew further alleged that McNew breached a duty to exercise care in the operation, control, and maintenance of the property. McNew filed a motion to strike and dismiss count IV of plaintiff’s complaint for failure to state a cause of action. McNew’s motion alleged that plaintiff’s complaint failed to specify the location of his injury and that, as a matter of law, McNew had no obligation or duty to maintain the “landfill” since he was only obligated to a duty of care with respect to property he owned or operated. McNew did not schedule this motion for a hearing.

On December 2, 1987, plaintiff and his counsel, together with all of the defendants and their attorneys except McNew and his counsel, met at the “landfill” site to ascertain where plaintiff’s injury took place. Subsequently, on December 30, 1987, plaintiff filed a response to admit facts stating:

“Based upon the inspection of the premises on December 2, 1987, it is Plaintiffs [sic] belief that the fall that occurred on July 30, 1985, occurred on the property owned by J.S. Reimer, Inc.”

On January 6, 1988, plaintiff filed an amended complaint. Count IV of plaintiff’s amended complaint was again directed against McNew and realleged that McNew owned a portion of the property on which the ‘'landfill” was located and breached a duty of care in the maintenance of that property. McNew subsequently filed a motion to strike and dismiss count IV of the amended complaint on the basis that McNew did not have a duty to maintain property belonging to another. McNew did not schedule this motion for a hearing. On August 8, 1988, plaintiff voluntarily dismissed McNew as a party defendant in this action.

On August 19, 1988, McNew filed a motion for attorney fees and costs pursuant to section 2 — 611 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). McNew’s motion alleged that both the original complaint and count IV of the amended complaint were replete with untrue averments of fact and conclusions of law. Specifically, McNew alleged that in the two years prior to filing the initial complaint, and prior to filing the amended complaint, plaintiff had not ascertained the location of his fall but nonetheless pleaded that McNew owned a portion of the “landfill” and was obligated to maintain that property in a safe condition. McNew further alleged that he did not have any maintenance responsibility for the Reimer property on which plaintiff sustained his injuries. McNew stated that he incurred attorney fees of $2,300 based on 23 hours of work at $100 per hour. McNew further sought compensation for his personal expenses which he valued at $50 per hour multiplied by 50 hours.

On September 21, 1988, plaintiff filed a response to McNew’s motion for attorney fees alleging that McNew failed to meet the burden of proof imposed by section 2 — 611. Plaintiff stated that at the time of his fall there were no markings on the property to delineate ownership and there was a question as to whether the adjoining property owners had placed materials in the “landfill” which created the dangerous condition that caused plaintiff’s injuries. Plaintiff’s response also charged that McNew’s attorney accumulated the attorney fees in this action by failing to notice his motions to dismiss plaintiff’s complaint and amended complaint and by failing to participate in the on-site conference with plaintiff and the other parties. In addition, plaintiff alleged that McNew’s motion for attorney fees was insufficient in that it failed to substantiate his claim for attorney fees with any documentation. Plaintiff also argued that there was no basis in Illinois law allowing McNew to recover an award of fees for his own time.

The trial court subsequently entered an order granting McNew leave to file a reply to plaintiff’s response to his motion for attorney fees and costs and further setting McNew’s motion for “presentation of evidence and argument” on October 18, 1988. McNew’s reply alleged that plaintiff’s action was baseless in law and further alleged that plaintiff knew that he was on the Reimer property at the time of his fall based on documents plaintiff prepared shortly after the incident. With respect to his claim for personal expenses, McNew argued that section 2 — 611 provides for the payment of attorney fees as part of all “reasonable expenses incurred” from an improper pleading and therefore entitles him to his personal expenses in addition to attorney fees. McNew did not respond to plaintiff’s allegation that his motion was insufficient in that it failed to support his claim for attorney fees with any documentation.

On October 18, 1988, the trial court denied McNew’s motion for attorney fees “after having heard arguments of counsel,” but without conducting an evidentiary hearing. The written order denying McNew’s motion states that his motion and request to support the motion with the testimony of himself and his attorney were denied on the basis of the court’s holding in Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11. The trial court subsequently denied McNew’s motion for reconsideration, and McNew brought this appeal.

Before reaching the merits of this appeal, we must first address plaintiff’s motion to strike certain portions of McNew’s appellate brief. Plaintiff asserts that McNew’s brief contains numerous references to facts that are not part of the record on appeal. McNew responds that plaintiff’s motion to strike is neither authorized by the supreme court rules “nor appropriate in appellate practice.” We ordered plaintiff’s motion taken with the case. On that same date, we entered an order requiring McNew to file an amended statement of facts with appropriate citations to the record. McNew subsequently filed a “Revised Statement of Facts” in compliance with our order. Thereafter, plaintiff filed his appellee’s brief and did not challenge the accuracy of the facts set forth in McNew’s revised statement of facts. Given McNew’s subsequent compliance with our order compelling him to file a revised statement of facts with appropriate citations to the record, we deny plaintiff’s motion to strike. However, additional commentary is necessary to correct certain misconceptions McNew fosters about appellate practice.

McNew has incorrectly asserted that plaintiff’s motion to strike is neither authorized by supreme court rules nor appropriate in appellate practice. On the contrary, this court has frequently entertained motions to dismiss an appeal or strike portions of a brief for violation of supreme court rules. (See Crabtree v. Department of Agriculture (1988), 170 Ill. App. 3d 387, 389-90; Brazinski v. Transport Service Co. (1987), 159 Ill. App. 3d 1061, 1069; James v. Yasunaga (1987), 157 Ill. App. 3d 450, 452; Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1986), 149 Ill. App. 3d 53, 57-58.) Brazinski is particularly significant in that the court in that case granted the appellee’s motion to strike the appellant’s statement of facts because certain facts were not supported by the record. Brazinski, 159 Ill. App. 3d at 1069.

In reviewing McNew;s original brief in the instant action, we note several violations of the supreme court rules governing preparation of briefs on appeal. Most significant is the dearth of citation to the record in McNew’s statement of facts and argument in violation of Supreme Court Rules 341(e)(6) and 341(e)(7) (113 Ill. 2d Rules 341(e)(6), (e)(7)). Clearly, plaintiff may request that this court strike the noncomplying portions of McNew’s brief, and this court would be entitled to grant that relief if it were so disposed. (See Midland Hotel Corp., 149 Ill. App. 3d at 58.) We further direct McNew’s attention to the new Supreme Court Rule 375 (128 Ill. 2d R. 375) which took effect on August 1, 1989. Rule 375(a) expressly authorizes this court to impose sanctions against a party or an attorney for failing to comply with the rules governing appeals. (128 Ill. 2d R. 375(a).) Such sanctions may include striking any portion of an offending party’s brief or ordering the offending party to pay a fine. (128 Ill. 2d R. 375(a).) In the past, we have directed practitioners’ attention to frequent violations of the supreme court rules governing appeals. These comments were not made in the spirit of criticism, but rather as a means to emphasize that the nature of appellate review requires that a reviewing court be furnished with adequate citation to the record and legal authority. The supreme court recognized this when it invoked Supreme Court Rule 341 (113 Ill. 2d R. 341), and has now formally acknowledged that sanctions are appropriate to enforce the provisions of that rule. While we would rather decide cases on their merits, we will impose sanctions in the future if necessary to compel adherence (to these provisions. As a final matter, we are compelled to note the irony of McNew’s counsel’s failure to adhere to the supreme court rules in preparing a brief which, on its merits, criticizes another attorney’s conduct.

Turning to the merits, McNew contends that the trial court erred in denying his motion without conducting an evidentiary hearing. We agree.

Section 2 — 611 of the Code requires that an attorney sign pleadings and other papers filed with the court as a certification that the attorney has read the document, made a reasonable inquiry into its basis, and believes that it is well grounded in fact and law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611; see Prevendar v. Thonn (1988), 166 Ill. App. 3d 30, 37.) Pleadings and other papers filed in violation of section 2 — 611 shall subject the party, the party’s attorney, or both to an appropriate sanction which may include an order to pay the other party the amount of reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611; Prevendar, 166 Ill. App. 3d at 38.) The purpose of section 2 — 611 is to prevent a litigant from abusing the judicial process by penalizing the party who brings a vexatious or harassing action without legal foundation or an action that is based on false statements. (Wollschlager v. Sundstrand Corp. (1986), 143 Ill. App. 3d 347, 351.) The party seeking relief has the burden of proof and must establish both that the challenged allegations were untrue and that they were made without reasonable cause. (Wollschlager, 143 Ill. App. 3d at 351.) The petition for fees must specifically identify both the statements falsely made and the fees that resulted from those false statements. (Plainfield Community Consolidated School District No. 202 v. Lindblad Construction Co. (1988), 174 Ill. App. 3d 149, 154; Brandel Realty Co. v. Olson (1987), 159 Ill. App. 3d 230, 236.) The trial court’s decision regarding the assessment of attorney fees is entitled to great weight, and a court of review will not disturb that determination unless there is a clear showing that the trial court abused its discretion. Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 184-85; Wollschlager, 143 Ill. App. 3d at 352.

In the instant action, McNew’s petition alleged that plaintiff falsely pleaded that he fell on property owned and controlled by McNew and that plaintiff knew or should have known at the time of making those statements that they were false. McNew’s petition further stated the hours and hourly fee of his attorney in defending the false allegations. Although the court scheduled McNew’s motion for “presentation of evidence and argument,” it nonetheless denied McNew’s motion without permitting McNew to call any witnesses. McNew now argues that the court was required to hold a hearing on his motion.

The manner in which the requirements of section 2 — 611 must be met has been the subject of varying interpretations. (See Grover v. Commonwealth Plaza Condominium Association (1980), 76 Ill. App. 3d 500, 512.) Whether a hearing must be held to determine if the allegations within a pleading are untrue and made without reasonable cause depends upon the circumstances presented in each case. (In re Application of Cook County Collector (1986), 144 Ill. App. 3d 604, 610; Launius v. Najman (1984), 129 Ill. App. 3d 498, 504.) Generally, a hearing on both the merits and the amount is required before an award can be made. (Launius, 129 Ill. App. 3d at 504; see Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 185 (wherein court reversed lower court’s denial of motion for fees holding that movant was entitled to a hearing on its motion prior to the court’s ruling).) Indeed, one court interpreting the predecessor statute to section 2 — 611 noted the existence of a judiciahmandate requiring a hearing, stating:

“If the movant must establish his entitlement to the relief sought and the party moved against is entitled to be heard, the only logical conclusion to be drawn is that a hearing must be held.” (Malone v. Checker Taxi Co. (1972), 3 Ill. App. 3d 1040, 1041.)

However, recent decisions have endorsed summary dismissal noting that, while a hearing is dictated when one is necessary to determine whether the requirements of section 2 — 611 have been met, no such hearing is necessary if the requirements can be satisfied by looking at the pleadings, trial evidence, or other matters appearing in the record. Aroonsakul v. Flanagan (1987), 155 Ill. App. 3d 223, 228-29; Grover, 76 Ill. App. 3d at 512; see In re Application of Cook County Collector, 144 Ill. App. 3d at 610; Luanius, 129 Ill. App. 3d at 504-05.

In the instant action, the trial court refused to allow McNew to call any witnesses in support of his motion for attorney fees and summarily denied his motion on the basis of the court’s holding in Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11. In Dayan, the trial court awarded the defendant attorney fees after a trial and separate hearing to determine the amount of fees. (126 Ill. App. 3d at 13.) In affirming the trial court’s award, the court noted that a hearing on a fee petition is dictated where one is necessary to determine whether the statutory requirements of section 2 — 611 have been met. (126 Ill. App. 3d at 16.) The trial court in that case was able to make a summary disposition on the merits of the fee petition based on the evidence taken from the underlying trial, and a separate hearing was held only to determine the amount of the award. 126 Ill. App. 3d at 22-23.

The court’s reliance in Dayan in the instant action is not explained. Perhaps the court concluded from the pleadings that McNew’s petition did not meet the requirements of section 2 — 611. If that was the court’s determination, it was not expressly stated, and we will not make such a finding for it. Based on the record before us, we conclude that the trial court erred in summarily disposing of McNew’s petition.

Accordingly, the order denying McNew’s motion is reversed and this cause is remanded to the trial court with instructions to conduct a hearing on the merits of the motion. In so ruling, we express no opinion on the merits of the motion.

Reversed and remanded.

UNVERZAGT, P.J., and NASH, J., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBY JOE CAPERS, Defendant-Appellant.
    Fourth District
    No. 4—88—0555
    Opinion filed July 27, 1989.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Monroe D. Me Ward, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

The defendant, Bobby Joe Capers, appeals alleging the denial of his motion for a continuance to retain private counsel in the probation revocation proceeding was error. We affirm.

On November 21, 1986, the defendant was charged by information in Macon County with theft of property (over $300) (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(a)(1)), forgery (Ill. Rev. Stat. 1985, ch. 38, par. 17 — 3(a)(2)), and obstructing justice (Ill. Rev. Stat. 1985, ch. 38, par. 31 — 4(a)). Pursuant to a plea agreement, the defendant pleaded guilty to the theft of property charge and the State dismissed the forgery charge and the obstructing justice charge. On March 6, 1987, the circuit court sentenced the defendant to an 18-month term of probation. On March 18, 1988, due to the arrest of the defendant for controlled substance offenses (Ill. Rev. Stat. 1987, ch. 561/2, pars. 1401(b)(2), (c), 1402(b)), the State filed a petition for revocation of probation. On June 3, 1988, the circuit court found the State had proved its petition (Ill. Rev. Stat. 1987, ch. 561/2, par. 1402(b)) by a preponderance of the evidence. On June 24, 1988, the circuit court sentenced the defendant to a five-year term of imprisonment.

The sole issue on appeal is whether the circuit court abused its discretion in denying the motion of the defendant for a continuance to retain private counsel in the probation revocation proceeding.

At the outset of the probation revocation proceeding on June 3, 1988, the appointed counsel for the defendant made an oral motion for a continuance. The stated purpose of the continuance was to allow the defendant to retain private counsel. After argument, the circuit court denied the motion of the defendant as dilatory. In support of its ruling, the circuit court offered the following three reasons: (1) the defendant had not expressed any earlier dissatisfaction with the legal representation of his appointed counsel; (2) the two previous continuances in the case (i.e., on March 31, 1988, and May 4, 1988) had accorded the defendant a reasonable period of time in which to have retained private counsel; and (3) the private counsel mentioned by defendant had members of his firm present in the judge’s courtroom during the course of the day and yet no one entered an appearance.

In a criminal action, the accused has a constitutional right to the assistance of legal counsel and the preparation of his defense. (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8; Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.) The right to assistance of counsel includes the right to be represented by counsel of one’s own choice. (Powell v. Alabama (1932), 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55; People v. Green (1969), 42 Ill. 2d 555, 248 N.E.2d 116.) The former right is absolute; the latter right is limited. (People v. Spurlark (1978), 67 Ill. App. 3d 186, 196, 384 N.E.2d 767, 774.) The right to counsel of one’s own choice “may not be employed as a weapon to indefinitely thwart the administration of justice, or to otherwise embarrass the effective prosecution of crime.” People v. Solomon (1962), 24 Ill. 2d 586, 590,182 N.E.2d 736, 739.

The point at which the right to counsel of one’s own choice may unreasonably interfere with the administration of justice necessarily depends on the particular circumstances of the case. (Spurlark, 67 Ill. App. 3d at 197, 384 N.E.2d at 774.) As a result, the granting or the denial of a motion for a continuance to retain private counsel rests with the discretion of the circuit court. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 4(e); see People v. Friedman (1980), 79 Ill. 2d 341, 347, 403 N.E.2d 229, 233.) Absent an abuse of discretion, the determination of the circuit court will not be altered on review. Solomon, 24 Ill. 2d at 589-90,182 N.E.2d at 738.

In the present case, the predicate offenses for revocation of probation occurred in mid-March of 1988. At that time, the defendant was taken into custody. On March 22, 1988, the circuit court appointed counsel to represent the defendant at the scheduled probation revocation hearing. On March 31, 1988, the circuit court granted the prosecution a continuance to allow completion of the evidentiary analyses in the case. On May 4, 1988, the circuit court granted the defense a continuance on the same grounds. The evidentiary analyses were finally completed with delivery to the defense on June 2, 1988. On June 3, 1988, the date of the rescheduled probation revocation hearing, the defense moved for the instant continuance to retain private counsel. This interim period, from mid-March to early June, accorded the defendant sufficient time in which to have retained private counsel. Accordingly, we agree with the circuit court the motion of the defendant for a continuance to retain private counsel was dilatory.

Given the procedural chronology of the case, the circuit court could properly grant a continuance to retain private counsel only if the defendant had offered adequate information in support of the motion. The trial court was not faced with a defendant who specifically identified retained private counsel as “[standing] ready, willing and able to make an [instant] unconditional entry of appearance” in the case. (People v. Koss (1977), 52 Ill. App. 3d 605, 607-08, 367 N.E.2d 1040, 1041.) Instead, at the probation revocation hearing, the defense only identified the desired private counsel as being “expected” to make an entry of appearance in the case. The circuit court did not err in denying the defendant a continuance to retain private counsel in the probation revocation proceeding.

Affirmed.

McCULLOUGH, P.J., and LUND, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND N. MILES, Defendant-Appellant.
    Fourth District
    No. 4—88—0534
    Opinion filed July 27, 1989.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People. j
   JUSTICE KNECHT

delivered the opinion of the court;

On December 30, 1987, defendant Raymond N. Miles and his co-defendant Heldrus Hancock were charged by information with the offense of attempt (residential burglary) (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(a)). Following a jury trial in the circuit court of Vermilion County, both defendants were convicted of the included offense of attempt (criminal trespass to residence). The trial court sentenced Miles to 364 days in the county jail. Defendant appeals and we affirm.

Prior to trial defendant filed a motion in limine requesting the State be precluded from impeaching defendant’s credibility with his prior convictions for aggravated battery in 1981, burglary in 1982, retail theft in 1983, and forgery in 1985. The motion was denied.

At the jury trial, Ken Hillard testified he saw two black men pull into the driveway of his neighbors’ house in Danville, Illinois. The owners of the house, Michael and Mary Eberly, were on vacation. One of the men got out of the car and knocked on the front door. No one answered the knock and the man returned to the car. The two men then parked the car one block north of the house and returned on foot. Hillard made a call to the police. While he was waiting for them to arrive, he observed one of the men beat on the front door while the other man stood in the driveway. Both men then walked to the back of the house. A few seconds later they returned to the front door and began beating on it again. One of the men hit the door with his hip several times.

When the police arrived shortly thereafter, the two men were found standing on the front porch of the Eberly house and were identified as the defendant and Hancock. Two gloves and a six-inch screwdriver were found on defendant’s person. The police also discovered a 15-inch-long screwdriver in a flower bed located five feet from the front porch of the house.

An inspection of the Eberly house revealed a loose latch plate on the front door and fresh marks, apparently made by a screwdriver, above and below the latch on the back door. Mr. Eberly’s sister testified she had been watching the Eberly’s house while they were on vacation and no damage had been done to the back door since she last checked it the morning of the burglary attempt.

Defendant’s motion for a directed verdict at the close of the State’s case was denied. The defense rested without presenting any evidence.

Defendant argues the trial court erred in denying his motion in limine requesting the court to preclude the State from introducing defendant’s prior convictions for impeachment purposes. The State maintains defendant’s argument was not properly preserved for review because defendant failed to testify. We agree.

The State cites the decisions of this court in People v. Redman (1986), 141 Ill. App. 3d 691, 490 N.E.2d 958, and People v. Henne (1988), 165 Ill. App. 3d 315, 518 N.E.2d 1276, to support its waiver argument. Both cases relied on the holding in Luce v. United States (1984), 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460.

In Luce, the Supreme Court held a defendant who fails to testify cannot challenge on appeal the trial court’s adverse ruling on his motion in limine requesting that use of his prior convictions for impeachment purposes be forbidden. The Court noted any possible harm resulting from the trial court’s ruling is wholly speculative. Also, because an accused’s decision whether to testify seldom turns on the resolution of one factor, a reviewing court cannot assume an adverse ruling on the motion motivated defendant to refrain from testifying. Moreover, even if the Court’s ruling is determined erroneous on review, it would be impossible to determine if the error was harmless without benefit of the defendant’s testimony in the record. Any error would thus result in the windfall of automatic reversal. Therefore, the court noted that requiring the defendant to testify would solve these problems and discourage the making of motions in limine for the sole purpose of “planting” reversible error in the event of conviction. Luce, 469 U.S. at 42, 83 L. Ed. 2d at 448, 105 S. Ct. at 463-64.

This court in Redman adopted the reasoning in Luce and held that since defendant failed to testify, he could not challenge on appeal the trial court’s adverse ruling with respect to his motion in limine which, as in this case, sought to preclude the State from introducing defendant’s prior convictions for impeachment purposes. In Henne, we refused to consider defendant’s argument the trial court improperly denied his motion to exclude a prior statement the State intended to use for impeachment purposes. Based on the rationale of Luce and Redman, we applied the waiver doctrine because the defendant did not testify.

We continue to follow Luce and its progeny in Illinois. Accordingly, we hold defendant’s objection on appeal to the trial court’s ruling on his motion in limine was waived by his failure to testify at trial. Moreover, had defendant properly preserved the issue for review, it would have failed on the merits.

In deciding whether to allow the use of a defendant’s prior convictions for impeachment purposes, the trial court must balance their probative value with the danger of unfair prejudice to defendant. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) When making1 such a determination, the court must examine the following factors as set forth in Montgomery: (1) whether the prior conviction is veracity-related; (2) the recency of the prior conviction as it relates to the degree of defendant’s rehabilitation; (3) the length of the witness’ criminal record; and (4) the similarity of the prior offenses to the instant offense, thus increasing the danger of prejudice.

Defendant concedes that with the exception of his conviction for aggravated battery, his convictions for burglary, forgery and theft all involve dishonesty and, therefore, relate to his veracity. However, defendant argues impeachment evidence as to those convictions would have created a danger of prejudice, because they are substantially similar to the crime of attempt (residential burglary). Defendant maintains such similarity often invites an improper inference of guilt by the jury, rather than to direct their attention to the defendant’s credibility. See Gordon v. United States (D.C. Cir. 1967), 383 F.2d 936.

The State argues, and we agree, that while similarity between the previous convictions and the current charge may increase the risk of prejudice to the accused, it is not mandatory they be disallowed. (People v. Marron (1986), 145 Ill. App. 3d 975, 496 N.E.2d 297.) Illinois courts have frequently allowed impeachment by use of same or similar crimes. See, e.g., People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563; People v. Blair (1981), 102 Ill. App. 3d 1018, 429 N.E.2d 1375.

Although the crimes of burglary, forgery, and theft are similar to the offense charged in this case, we give greater weight to the fact defendant’s extensive criminal record is composed primarily of veracity-related crimes committed within five to seven years of the present trial. Certainly defendant’s record does not indicate he has been rehabilitated in the interim. After balancing the Montgomery factors, we find no abuse of discretion in the trial court’s denial of defendant’s motion in limine seeking to forbid the use of his prior convictions for impeachment purposes.

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

Affirmed.

SPITZ and GREEN, JJ., concur.


text:
      In re MARRIAGE OF DIANE LACQUEMENT ELEOPOULOS, Petitioner-Appellee, and MICHAEL L. LACQUEMENT, Respondent-Appellant.
    Fourth District
    No. 4—88—0821
    Opinion filed July 27, 1989.

      Michael W. Atkins, of Springfield, for appellant.
    Thomas R. Appleton, of Morse, Giganti & Appleton, of Springfield, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Respondent Michael L. Lacquement appeals from an order entered by the circuit court of Sangamon County on April 21, 1988, granting a change of custody of his minor daughter Maresa to the child’s mother, Diane Lacquement Eleopoulos, pursuant to her petition of December 23,1987. We affirm.

The record reveals the parties’ marriage was dissolved on November 19, 1984, and custody of their two children, Karma, age 10, and Maresa, age 2, was awarded to respondent. On January 28, 1986, petitioner filed a petition to modify the judgment of dissolution of marriage, requesting custody of both girls. The petition alleged changes in the environment of the two minor children seriously endangered their physical, mental, moral, and environmental health. Petitioner requested a transfer of custody of the girls in order to serve their best interests. An attached affidavit by petitioner stated Karma had reported that on January 21, 1986, respondent had severely beaten her with a belt. Karma stated she was afraid of her father and did not want to return to his custody. Petitioner had observed numerous bruises on Karma’s body.

No hearing on the motion was heard, but by stipulation of the parties, an order was entered on March 3, 1987, which granted custody of Karma to petitioner and ordered that custody of Maresa remain with respondent. The order also provided amended visitation schedules.

On December 1, 1987, respondent witnessed Maresa fall on the steps of her day-care center. Later that evening respondent disciplined Maresa by “popping” her several times with a belt. Respondent testified he continued to “pop” his daughter until he was sure the blows hurt her. Respondent said there were tears in Maresa’s eyes. While bathing Maresa the next evening, respondent noticed a large bruise on the right side of Maresa’s buttocks. Maresa did not know the bruise was there or how she had received it. She did not complain of tenderness.

Believing petitioner would file abuse charges, respondent telephoned the Department of Children and Family Services (DCFS) to advise them of the bruise. Later in the week, Don Boltz, a DCFS social worker, interviewed Maresa at her day-care center, at which time she said she did not know how she had received the bruise. After petitioner arrived at the center and talked to her daughter, Maresa said she was bruised because her father had spanked her with a belt.

On December 7, 1987, petitioner filed a petition for an order of protection on behalf of Maresa, alleging respondent had beat Maresa and caused her to suffer a large bruise to her buttocks. In response to the petition, the court issued an emergency order of protection finding “[t]here is reason to believe the child’s present environment seriously endangers her physical, mental, moral and emotional health.” Maresa was placed in the physical custody of her mother.

On December 23, 1987, petitioner filed a petition to modify the judgment of dissolution of marriage, which alleged the following:

“That since the time of the entry of the Order entered March 3, 1987, changes have occurred in the environment of MARESA *** which seriously endangers her physical, mental, moral and emotional health. A transfer of her custody to the Plaintiff is necessary to serve the best interest of MARESA *** yy

The attached affidavit of petitioner stated that on December 4, 1987, she “observed a large, deep bruise on the right buttocks, which Maresa advised she had gotten when her father hit her with a belt. *** Maresa further advised that her father had struck her in the face on more than one occasion.” On December 24, 1987, the court issued an interim order of protection awarding petitioner temporary legal custody of Maresa.

On January 19, 1988, respondent filed a petition to dismiss petitioner’s request for modification of the judgment of dissolution of marriage. Respondent alleged the affidavit filed by petitioner did not comply with the statutory requirements of section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), because it did not specifically state “there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.” Ill. Rev. Stat. 1987, ch. 40, par. 610(a).

After hearing arguments on the parties’ respective petitions, the court issued an order and memorandum opinion on April 21, 1988. The court found the March 3, 1987, order did not modify the original custody judgment as it pertained to Maresa. The order merely modified petitioner’s visitation rights while Maresa remained in the custody of respondent. Furthermore, the court stated the following:

“[T]his court finds that on the basis of testimony in a hearing on the Order of Protection, in the verified Petition for an Order of Protection, and the verified Petition for Modification of Custody, as well as the testimony in the hearing on the Petition to Modify Custody filed December 23, 1987, that there is reason to believe the child’s present environment may endanger seriously her physical, mental, moral, and emotional health.”

The court ultimately found by clear and convincing evidence that a change had occurred in the circumstances of Maresa and her parents since the original judgment was entered. Those changes were listed as follows:

“1) Maresa was severely bruised near the buttocks while in the care of Michael Lacquement.
2) Maresa has stated to the Court *** that Maresa was hit by her father on the back with a belt with a large buckle resembling a space shuttle.
3) The elder sister, Karma, states that she has previously been hit with that belt by her father.
4) Michael Lacquement’s former stepson, Benjamin Whitnall, testifies that he has been abused by Michael Lacquement with that same belt.
5) Mr. Lacquement admits having spanked Karma.
6) Mr. Lacquement admits having spanked Maresa around the time that her bruises were noticed *** and he admits to having used that belt to ‘pop’ Maresa ***.
7) Michael Lacquement did not call Mrs. Eleopoulos to inform her of Maresa’s bruise when he discovered it.
8) Maresa expressed her preference that she live with Diane Eleopoulos and her elder sister, Karma.
9) Diane Eleopoulos has remarried and has established a home with an environment suitable for raising two daughters.
10) Michael Lacquement remarried since the previous custody award and was divorced within a very short period of time since his divorce from Diane Eleopoulos.
11) Michael Lacquement, according to his daughters, Karma and Maresa, spent little time with his daughters when they were in his custody or visiting him, but rather retires to his basement and requires his daughter to clean the home, do the laundry, and cook dinner.
12) Michael Lacquement has a violent temper which he has displayed on several occasions to Mrs. Eleopoulos, Karma, Maresa, and his former stepson.”

The court concluded it was in the best interest of Maresa that her custody be awarded to petitioner.

Respondent appeals the order of April 21, 1988, maintaining that: (1) the March 3, 1987, order of the court, which awarded custody of Karma to petitioner and provided that custody of Maresa would remain with respondent, was a “custody judgment” under the custody modification section of the IMDMA (Ill. Rev. Stat. 1987, ch. 40, par. 610); (2) the December 23, 1987, petition to modify was not sufficiently supported by affidavit as required by section 610(a) of the IM-DMA (Ill. Rev. Stat. 1987, ch. 40, par. 610(a)) to entitle petitioner to seek a modification of custody prior to two years after the entry of the prior custody judgment; and (3) the April 21, 1988, order of the trial court modifying custody of Maresa was against the manifest weight of the evidence.

Section 610 of the IMDMA states in part:

“Modification, (a) Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.
(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, *** and that the modification is necessary to serve the best interest of the child.” 111. Rev. Stat. 1987, ch. 40, pars. 610(a), (b).

The original custody judgment was entered in this case when the parties’ marriage was dissolved on November 19, 1984. Custody of both girls was awarded to respondent. The court entered a subsequent order on March 3, 1987, modifying the custody of Karma and providing that the custody of Maresa remain with respondent. Although the custody of Maresa did not change, the March 3, 1987, order constituted a new custody judgment based on stipulation of the parties. (See In re Marriage of Spangler (1984), 124 Ill. App. 3d 1023, 1026, 464 N.E.2d 1120, 1122.) Specifically, custody of the two children was split and visitation schedules were changed. Accordingly, we find the section 610 determinations by the trial court in this case should have been based on facts occurring since the entry of the March 3, 1987, order, and not since the date the decree of the divorce and original custody order was entered. See Applegate v. Applegate (1980), 80 Ill. App. 3d 81, 84, 399 N.E.2d 330, 333.

Since petitioner’s December 23, 1987, verified petition to modify the custody judgment was filed within two years of the March 3, 1987, order, petitioner was clearly required to comply with the affidavit requirement of section 610(a). (Ill. Rev. Stat. 1987, ch. 40, par. 610(a).) The record reflects petitioner in fact filed the requisite affidavit. The question becomes whether the affidavit was sufficient to satisfy the statutory requirements.

The verified petition for modification of custody was filed by petitioner on December 23, 1987. The petition alleged that since the custody order of March 3, 1987, changes had occurred in the environment of Maresa that “seriously endangered] her physical, mental, moral and emotional health.” The attached affidavit by petitioner stated (1) petitioner observed a large bruise on the right buttocks of Maresa; (2) Maresa advised petitioner the bruise was the result of blows inflicted by respondent with a belt; and (3) Maresa further advised that respondent had also struck her on the face on more than one occasion. On appeal, respondent again argues the affidavit was insufficient because it did not contain the language required by section 610(a). Ill. Rev. Stat. 1987, ch. 40, par. 610(a).

A party requesting that the court modify a prior custody order within two years of its enactment must comply through the procedural requirements of section 610(a). The court must be informed by affidavit there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health. (Ill. Rev. Stat. 1987, ch. 40, par. 610(a); see In re Marriage of Farris (1979), 69 Ill. App. 3d 1042, 1044, 388 N.E.2d 232, 234.) Generally, an affidavit is sufficient to so inform the court if it is attached to and supports the petition requesting modification of a prior custody judgment. Perfect specificity is desired, but is not always required. Boggs v. Boggs (1978), 65 Ill. App. 3d 965, 383 N.E. 2d 9.

Here, the verified petition contained the exact statutory language of section 610(a), as did the domestic violence order of protection issued by the court prior to the date the petition for modification was filed. The attached affidavit reported a specific instance wherein the respondent struck his daughter with a belt, causing her to suffer a large bruise on her buttocks. This was the same alleged conduct that caused the court to issue the order of protection. Therefore, even though the affidavit did not repeat the statutory language, it was sufficient to inform the court and parties of the facts relied upon for a custody change. (See In re Custody of Sexton (1981), 84 Ill. 2d 312, 322, 418 N.E.2d 729, 734 (affidavit requirement considered waived when the facts not sworn to in an affidavit were testified to in open court and the factor of endangerment was alleged in the petition by means of specific incidents on specific dates).) When considered as a whole, we conclude the documents filed by petitioner satisfied the spirit of the affidavit requirement.

Finally, we consider respondent’s argument the April 21, 1988, order of trial court modifying the custody of Maresa was against the manifest weight of the evidence.

A trial court must not modify a custody judgment unless (1) clear and convincing evidence shows a material change of circumstances has taken place and (2) modification is in the best interest of the child. (In re Marriage of Weehselberger (1983), 115 Ill. App. 3d 779, 450 N.E.2d 1385.) Once the trial court has judged the credibility of the witness and determined the needs of the child have overcome the presumption in favor of the present custodian, a court of review will not overturn that decision unless it is contrary to the manifest weight of the evidence. In re Marriage of Richmond, (1988), 171 Ill. App. 3d 506, 525 N.E.2d 1226.

The findings of fact by the trial court in support of the modification of custody listed several changed circumstances surrounding the parties since the March 3, 1987, custody judgment. Without commenting on the propriety of each factor, we find it sufficient the court found respondent had beat his daughter with a belt since the prior custody judgment, causing her to bruise and to fear him. It is significant the court found such circumstances warranted an order of protection be issued pending a final custody determination. Ultimately the trial court determined such a change in circumstance was in the best interest of Maresa.

Respondent relies on the June 15, 1988, in camera testimony of Maresa wherein she recanted her prior allegation that respondent gave her a large bruise to her buttocks when he beat her with a belt. The child said petitioner told her to say respondent caused the bruise when in fact she got it when she fell down the steps at her day-care center. At the June 15 hearing, Maresa indicated she wished to return to live with her father. However, the trial court gave little weight to Maresa’s testimony, stating: “[I]n the in camera interview, Maresa was very, very upset. She was very confused. In my opinion, I don’t know that it is completely clear from the transcript, but she contradicted herself in response to my questions.” The court refused to reopen the case and reaffirmed the prior judgment that it was in the best interest of Maresa for her to be in the custody of petitioner.

Other than the testimony of Maresa given after the modified custody order was entered on April 21, 1988, the record in this case justifies that order. Since the trial court heard the many hours of testimony and was in the best position to observe the witnesses and judge their credibility, we will not disturb its decision to modify the prior custody judgment.

The judgment of the circuit court of Sangamon County placing Maresa in the custody of petitioner is affirmed.

Affirmed.

LUND and SPITZ, JJ., concur.


text:
    MARK D. LAND, Plaintiff-Appellant, v. ROBERT I. AULER et al., Defendants-Appellees.
    Fourth District
    No. 4—89—0064
    Opinion filed July 27, 1989.

      James W. Yoder and J. Stephen Yoder, both of Yoder Law Firm, of Bloomington, for appellant.
    Richard C. Hayden and Paul G. Prendergast, both of Craig & Craig, of Mattoon, for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

This is an appeal from the dismissal with prejudice of an action for legal malpractice based on the retroactive application of O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322. We reverse.

The facts of this action are not in dispute: In June of 1980, the plaintiff, Mark D. Land, came in contact with an electric transmission line. The plaintiff subsequently retained Craig H. Greenwood (Greenwood), the original counsel, to represent him in legal action to recover for his resulting injuries.

On June 9, 1982, one day prior to the running of the applicable statute of limitations (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 202), Greenwood filed the underlying personal injury action in the circuit court of Champaign County. (Land v. Illinois Power Co. (Cir. Ct. Champaign Co.), No. 82 — L—652.) Greenwood initiated service of process on the first defendant in June of 1982. In December of 1982 or January of 1983, prior to the completion of service of process in the action, the plaintiff discharged Greenwood. In February of 1983, the plaintiff retained the instant defendant, Robert I. Auler (Auler). Auler completed service of process on the last defendant in June 1983. On August 31, 1983, the circuit court dismissed the personal injury action with prejudice for the failure to obtain timely service of process. 87 Ill. 2d R. 103(b).

The plaintiff thereafter filed a legal malpractice action against Greenwood for his failure to obtain timely service of process in the underlying personal injury action. (Land v. Greenwood (Cir. Ct. Champaign Co.), No. 84 — L—293.) As an affirmative defense, Greenwood alleged any problems with the service of process in that action could have been corrected at the time of his discharge had the plaintiff exercised the option to voluntarily dismiss the action without prejudice (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1009) and to subsequently refile the action within one year (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 217). The circuit court ruled in favor of Greenwood on the affirmative defense and dismissed the legal malpractice action with prejudice. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619(a)(9).) On May 30, 1985, the appellate court affirmed the dismissal of that action. Land v. Greenwood (1985), 133 Ill. App. 3d 537, 478 N.E.2d 1203.

On March 10, 1988, the plaintiff filed the instant legal malpractice action against Auler. The plaintiff contends Auler negligently failed to preserve the underlying personal injury action in not exercising the option of a voluntary nonsuit with subsequent refiling of the action. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1009, 13 — 217.) On June 20, 1988, Auler responded with a motion to dismiss the legal malpractice complaint of the plaintiff with prejudice. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9).) As an affirmative defense herein, Auler contends the exercise of the nonsuit option was proscribed during his period of legal representation to the plaintiff based on the retroactive application of O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322. On December 21, 1988, after argument on the motion, the circuit court dismissed the legal malpractice complaint of the plaintiff with prejudice. The plaintiff now appeals.

The issue on appeal is whether the circuit court erred in dismissing the legal malpractice complaint of the plaintiff with prejudice.

In Illinois, “[a]n attorney is not liable for matters resting within his judgment, notwithstanding that the exercise of that judgment may have occasioned an unfavorable result for the client.” (York v. Stiefel (1982), 109 Ill. App. 3d 342, 350, 440 N.E.2d 440, 446.) Nor does Illinois law obligate an attorney to guarantee that his judgments and opinions are infallible. (Gruse v. Belline (1985), 138 Ill. App. 3d 689, 695, 486 N.E.2d 398, 402-03.) Rather, an attorney may be liable for malpractice only where he fails to exercise a reasonable degree of care and skill in the legal representation of his client. (Smiley v. Manchester Insurance & Indemnity Co. (1978), 71 Ill. 2d 306, 313, 375 N.E.2d 118, 122.) Such a factual determination rests with the state of the law during the period of the disputed legal representation. O’Brien v. Noble (1982), 106 Ill. App. 3d 126,130, 435 N.E.2d 554, 557.

In terms of pleading, an action for legal malpractice consists of the following elements: (1) an attorney-client relationship; (2) a duty arising out of that relationship; (3) a breach of that duty; (4) causation; and (5) actual damages. (Cook v. Gould (1982), 109 Ill. App. 3d 311, 314, 440 N.E.2d 448, 450.) It is not disputed the cause of action alleged in the instant malpractice pleading is facially proper in form. Absent procedural grounds for attack, dismissal of the pleading rests with the assertion of an affirmative defense. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9).) Where an affirmative defense negates the alleged cause of action, the circuit court may properly dismiss the pleading with prejudice. See Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 655, 422 N.E.2d 907, 911.

During the period of the disputed legal representation, the law in Illinois accorded the plaintiff an absolute right to voluntarily dismiss his action without prejudice (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1009) and to subsequently refile the same action within one year (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 217). (LaBarge, Inc. v. Corn Belt Bank (1981), 101 Ill. App. 3d 741, 428 N.E.2d 711.) Given the nature of this right, the plaintiff could refile his action notwithstanding the running of the statute of limitations (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 217) or the failure to obtain timely service of process (87 Ill. 2d R. 103(b)). (See also Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616, 363 N.E.2d 796; Franzese v. Trinko (1977), 66 Ill. 2d 136, 361 N.E.2d 585.) Accordingly, Auler could have legally exercised the aforementioned nonsuit option (Ill. Rev. Stat. 1983, ch. 110, pars. 2 — 1009, 13 — 217) in the underlying personal injury action.

At the time of the instant action, however, Illinois law no longer accorded the plaintiff an absolute right to nonsuit and refile his action. In O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 283, 492 N.E.2d 1322, 1327, the supreme court held the right of the plaintiff to voluntarily dismiss his action (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1009) and to subsequently refile the same action within one year (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 217) should initially be subject to any pending challenge for the failure to obtain timely service of process (87 Ill. 2d R. 103(b)). This procedural change in the law, given retroactive application, would arguably undercut the plaintiff's claim of legal malpractice against Auler in the underlying personal injury action.

A retroactive application of O’Connell, though permissible, is not appropriate in the instant action. (See Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 586; Muskat v. Sternberg (1988), 122 Ill. 2d 41, 521 N.E.2d 932; Martinez v. Erickson (1989), 127 Ill. 2d 112, 535 N.E.2d 853.) O’Connell only applies in actions where there is a pending challenge for the failure to obtain timely service of process. (87 Ill. 2d R. 103(b).) In the underlying action, however, there was no such challenge (87 Ill. 2d R. 103(b)) pending when Auler succeeded Greenwood as counsel in February of 1983. Indeed, a period of several months elapsed until such a challenge (87 Ill. 2d R. 103(b)) was filed in that action. In this interim period of time, Auler could have exercised the nonsuit option (Ill. Rev. Stat. 1983, ch. 110, pars. 2 — 1009, 13 — 217) to correct any problems with the service of process in the underlying personal injury action.

Given the state of law in Illinois during the period of the disputed legal representation, the affirmative defense asserted by Auler does not negate ■ the cause of action alleged in the instant malpractice pleading. The circuit court therefore erred in dismissing the legal malpractice complaint of the plaintiff with prejudice. Accordingly, we reverse the dismissal order of the circuit court.

Reversed.

LUND and SPITZ, JJ., concur.