author: PRESIDING JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRED BRADLEY, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—0630
    Opinion filed October 11, 1991.

      Martha Conrad, of Chicago, and McNally & Robinson, of Frankfort, Kentucky (Kevin McNally and Gail Robinson, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Judith Pietrucha, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

After a jury found defendant-appellant Fred Bradley guilty of the murder of his wife, Mary Lou Bradley, the trial judge granted defendant’s amended motion for a new trial. However, some six months after the granting of defendant’s new trial motion, the trial court set aside its order granting defendant a new trial, reinstated defendant’s conviction, and sentenced defendant to a term of 25 years’ imprisonment.

The following testimony was elicited at the hearing on defendant’s motions to suppress evidence. Arlington Heights police investigator William Martin testified that on December 23, 1986, defendant was brought to Martin’s office. Defendant told Martin that he (defendant) had just killed his (defendant’s) wife. Defendant gave Martin the address of where the victim was. According to Investigator Martin, defendant again stated that he had killed his wife, adding that he had choked her until she did not move. Defendant was placed in an interview room while Martin and three other police officers proceeded to the address where defendant indicated the victim could be found.

Upon entering the residence located at 838 S. Vail, the officers found the victim lying on the floor between the kitchen and living room. The officers stayed at the scene for some 30 minutes, securing the scene for the evidence technicians. Investigator Martin did not touch anything, although he was aware that the evidence technicians collected evidence, including some guns and some papers. Also, according to Martin, a videotape of the scene was made.

Defendant related to the investigators that he had not lived at the Vail Street home during the last six months, as defendant and the victim were in the process of a divorce. Defendant had previously been ordered by a court to stay away from the residence (although at the time of the occurrence that court order had expired). The residence was owned jointly by defendant and the victim.

Arlington Heights police evidence technician Michael Miljan testified that he had responded to an investigation of a death at the Vail address. After a short briefing, Miljan entered the house and viewed the body of the victim. He checked the interior of the house, walking through all the rooms and looking for evidence of a struggle. Miljan observed no evidence of a struggle. Miljan continued with his routine, which included three walk-throughs. During his investigation of the scene, he observed several guns. Also, as Miljan investigated, he collected a calender and some papers.

Another police officer videotaped the scene of the occurrence. No search warrant had been obtained. The calendar which was seized detailed instances when defendant had physically beaten the victim. The papers which were seized related to the couple’s divorce proceedings.

The following testimony was elicited at trial. Arlington Heights police sergeant Chisholm testified that defendant appeared in the lobby of the Arlington Heights police station on the morning of December 23, 1986, appropriately dressed for the cold weather. According to Chisholm, defendant stated “I just killed my wife.” Defendant repeated this phrase as he was led to the detectives’ office. As information regarding defendant’s name, address and the like was taken from defendant, defendant spoke in a normal tone of voice.

Investigator Martin again testified at trial. Martin recounted the conversation he had with defendant in his office. Defendant demonstrated with his hands how he had choked his wife. Martin testified that defendant was dressed normally, had no visible injuries and required no medical assistance. Martin further recounted his activities at the Vail Street residence.

Martin also testified that after he returned to the station, he interviewed defendant again. Martin read defendant his Miranda rights, and defendant waived his rights. Defendant said that he was separated from his wife, who was seeking a divorce, and that he resided in Cary, Illinois. Defendant told Martin that he had looked for his wife the previous night and had driven to her house and waited in his truck until dawn. He went to the front door and was allowed in the house by the victim. The two sat at the kitchen table and talked. An argument ensued. The defendant related to Martin that he (defendant) then grabbed his wife around her neck, and as they struggled, she fell to the floor. He sat on top of her, choking her until she did not respond. Defendant left the house and headed to the police station.

An assistant State’s Attorney arrived to interview defendant, according to Martin. Defendant was again advised of his Miranda rights, waived those rights, and repeated his statement. Martin further testified that defendant answered all questions clearly and directly. Defendant did not reveal exactly what the argument he and the victim had was about.

Dr. Tae An, a licensed pathologist working for the medical examiner’s office, testified. Dr. An autopsied the victim’s body and related some of the details pertaining to the condition of the body. An determined that the cause of death was strangulation.

Defendant’s son, Todd Bradley, testified next. Todd Bradley had moved out of his parents’ house two years prior to the death of his mother. He related that the evening before his mother’s death, he and his sister Dawn saw their mother driving down the street. As the two children spoke with their mother, defendant drove up. Defendant asked the victim where she had been and where she was going. Defendant was angry, and according to Todd, said to the victim “I ought to kill you.” Defendant then left.

Evidence technician Miljan again testified at the trial, relating his procedures for the gathering of evidence. Miljan related that he found an ashtray with a particular brand of cigarette butts in it and a warm pot of coffee. There were no signs of a struggle. The videotape of the scene, which had been taken by a fellow officer, was played for the jury. Also, photographs of the victim were admitted into evidence. After the testimony of Miljan, the State rested.

Defendant’s first witness was Dr. Richard Abrams, a psychiatrist. Dr. Abrams testified that he first saw defendant on May 21, 1986, when he treated defendant at the psychiatric unit of Northwest Community Hospital. Defendant was recovering from alcohol and possibly drug abuse and expressed anger and disappointment over his failing marriage. Dr. Abrams had subsequent conferences with both defendant and defendant’s wife. During these conferences, defendant’s wife made certain remarks which Abrams felt to be inappropriate, namely, regarding picking up men at bars and sleeping with them. Abrams testified that he sought to treat the couple’s “marital relationship.”

Dr. Abrams testified further as to the mental condition of the victim. He described the victim as sadistic and suicidal, which Abrams attributed to the victim’s violent childhood, which included suicides in the immediate family. Likewise, defendant’s childhood was also violent, and Abrams believed that defendant suffered from a lack of self-esteem. Abrams recommended that the couple separate and both continue counselling. He diagnosed defendant to be an alcoholic although defendant denied drinking prior to 1986. In Abrams’ opinion, defendant was suffering from a mental disease at the time defendant killed his wife, which caused defendant to lose control. Abrams’ formal diagnosis of defendant in May of 1986 was major affective depression together with alcohol abuse and mixed personality disorder. Since this diagnosis, defendant had been treated with medication and had responded well.

Abrams stated that the legal definition of sanity is someone who can control his or her behavior so that he or she does not run afoul of the law. Abrams believed that defendant knew he had done wrong after defendant strangled his wife. Abrams stated, however, that defendant’s behavior was impossible to control at the time of the occurrence and that at that time defendant had been unable to conform his conduct to the law. Abrams had been aware of physical violence on the part of defendant to his wife, prior to the wife’s death. Abrams had spoken to the police about the incidents and the police reports indicated that defendant was the attacker. Abrams believed the victim to be in danger, and noted that during counselling sessions with the pair, when the wife would discuss sexual liaisons with other men, defendant would become upset but was able to control his behavior. Defendant told Abrams that at the time of the incident, he was in a drunken stupor; Abrams believed, however, that defendant would have killed his wife whether defendant was drunk or sober at the time of the occurrence.

Abrams further testified that psychosis or thought disorder in an individual can come and go very quickly, from one hour to the next.

Defendant’s half-brother, Wilbur Heinemann, testified next. He stated that he rarely saw defendant drink at family functions. Heinemann was unaware that defendant had a drinking problem until defendant had been hospitalized. Adelle Weinrich, a neighbor of defendant’s at the Vail Street residence, testified that defendant was always helpful around the neighborhood. Defendant had a good reputation for sobriety and peacefulness. Weinrich was not aware that defendant had moved out of the Vail Street residence or that the police had been summoned to the residence numerous times in response to domestic disturbances. A close friend of defendant’s and defendant’s boss also testified on defendant’s behalf.

Defendant testified as well. He related the history of his marriage to his wife. He said that the victim had begun psychiatric treatment for mental problems in the early 1960’s. His wife often threatened suicide, although she had never really attempted to kill herself. Defendant became an alcoholic in 1986, and had several encounters with the police. According to defendant, one time in 1986, his wife held one of his guns (from a gun collection) to his head, laughed and then left. When he and his wife were separated, she still called him often, once threatening suicide. As recently as three days before the occurrence, defendant had spent the night at the family residence.

Defendant testified that the night of December 22, 1986, he drove around looking for his wife. When he drove to the residence the morning of the 23rd, his wife came outside and invited him in the house. They sat in the kitchen and talked. They were both smoking cigarettes; he smoked Marlboros and she smoked Mores. She told him that she had spent the night with a man called Wally. The next thing defendant recalled was that she was dead, with his hands around her neck. Defendant denied coming to the house with the intent to do the victim harm.

Defendant further testified that his wife began having affairs with other men after defendant voluntarily told her that he had had an affair with another woman. He acknowledged that when the police were called to the home it was because he was drunk and beating on his wife. Although she had received an order of protection which was to keep him away from her and the house, he had ignored the order.

In rebuttal, the State presented the testimony of Dr. Gerson Kaplan, a licensed psychiatrist on the staff of Michael Reese Hospital and employed by the Cook County Psychiatric Institute. Kaplan has performed some 1,000 sanity examinations, half of which involved individuals charged with murder. Kaplan examined defendant on October 7, 1988, pursuant to court order. Prior to interviewing defendant, Kaplan looked at psychological tests performed on defendant, a social service history and the police reports concerning the incident. At the time of Kaplan’s examination, defendant was coherent and oriented. Defendant did appear to be depressed and cried several times while discussing his wife. Dr. Kaplan offered a three-part diagnosis of defendant’s mental condition. He found defendant to suffer from a neurotic behavior/depressive disorder, which had lasted over two years but was not severe. Further, defendant suffered from alcohol dependency. Finally, Kaplan found that the defendant had a history of substance abuse, although defendant denied a current problem. Kaplan found no evidence of psychosis, which Kaplan described as a break with reality as evidenced by delusions or hallucinations. He determined that defendant’s previous hospitalizations were related to alcohol abuse, and not related to psychosis. In Kaplan’s opinion, defendant was not suffering from a mental disease on the day of the occurrence such that defendant could not tell the difference between right and wrong. He believed that defendant could have conformed his actions to the law.

This opinion was based on the fact that defendant went to the police station and confessed shortly after the occurrence. This indicated that defendant understood that he had done wrong. Further, there was no evidence that defendant was psychotic at the time of the occurrence. Kaplan also noted the explanation for the crime, namely, defendant’s long history of anger toward the victim and the fact that defendant had struck the victim before. The pattern of violence negated a finding of insanity. Kaplan did not equate depression with insanity, however.

Kaplan testified that it would not be possible for the defendant to simply go in and out of psychosis for a short period such as the time defendant choked his wife.

During deliberations, the jury requested to see certain police reports that had been referred to during trial. The trial court denied the request. Later in deliberations, the jury requested a further definition of the term “mental illness.” The trial court refused this request. Thereafter, the jury reached a verdict, finding the defendant guilty but mentally ill in the murder of his wife.

Defendant filed a motion for a new trial on March 1, 1989. This motion was denied after a hearing. Defendant filed a second post-trial motion on March 31, 1989, arguing that defendant’s conviction should be reversed due to the jury’s having received an improper manslaughter instruction. On April 18, 1989, the trial court granted the motion, despite the trial court’s prior finding that the provocation was inadequate. A new trial was ordered. On October 3, 1989, the State filed a motion to reconsider the granting of a new trial. After briefing and argument, the trial court granted the State’s request and reinstated defendant’s conviction.

The first issue we address is whether the trial court was without authority to reinstate defendant’s murder conviction nearly nine months after granting defendant a new trial. Defendant argues that the trial court was without authority to reinstate his murder conviction, arguing that the trial court had no jurisdiction over the matter once a new trial had been granted defendant. Defendant implicates constitutional guarantees, although none of the authority defendant cites, whether foreign or Illinois, suggests that the issue is one involving either the Federal or State constitution. Defendant argues that a double standard is unfairly imposed, whereby the State can ad infinitum move to reinstate a judgment. Defendant urges that to permit the procedure employed below results in the “undermining of any finality concerning orders granting new trials.”

The reasons the conviction was reinstated at the trial level are as follows. On defendant’s initial motion for a new trial, defendant did not raise the issue upon which the trial court in fact later granted a new trial. The issue was only raised in defendant’s “Addendum to Motion for New Trial,” which was filed outside of the 30-day time period set forth in section 116—1 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 116—1). The issue defendant raised at that time was that the voluntary manslaughter instruction which was given to the jury was error under People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, a case which was handed down months before defendant’s trial. When the State filed its motion to vacate the order granting defendant a new trial, it did so upon the authority of the just-released People v. Chevalier (1989), 131 Ill. 2d 66, 544 N.E.2d 942. This case’s holding, as will be discussed, mandates that the provocation which occurred in this case was insufficient to warrant the giving of the voluntary manslaughter instruction in the first instance. Thus, the giving of the instruction invalid under Reddick was deemed harmless by the trial court, and defendant’s conviction reinstated.

As to the first issue, the trial court determined that it had authority to vacate the order granting a new trial and to reinstate defendant’s conviction pursuant to People v. Thompson (1976), 38 Ill. App. 3d 101, 347 N.E.2d 481. In Thompson, the defendants were found guilty on January 4, 1974, and the matter was continued to March 4, 1974. On that date, the trial court sua sponte vacated the earlier finding of guilt and granted defendants a new trial due to the court’s finding that there was not a valid execution of jury waiver by defendants. In June of 1974, the State moved to vacate the order granting defendants a new trial, presenting the trial court with a previously unavailable transcript which clearly showed a valid jury waiver by the defendants. The trial court then sustained the State’s motion to vacate the new trial order. The Thompson court reiterated the settled principle that “a trial judge is without authority to alter a final judgment more than 30 days after entry.” (38 Ill. App. 3d at 103.) However, a trial judge does retain jurisdiction to modify an interlocutory order. (38 Ill. App. 3d at 103.) The issue for the Thompson court thus boiled down to whether the order granting a new trial was a final order or not. The court held that it was not, as “the judgment of the court is the sentence [citations], and it has been held that an adjudication of guilt absent a sentence is not a final judgment [citation].” (38 Ill. App. 3d at 104.) As a result, the trial court in Thomp son had the authority to vacate the new trial order and reinstate defendants’ convictions.

Also standing for the proposition that the final judgment in a criminal case is the sentence is People v. Griffin (1977), 56 Ill. App. 3d 255, 371 N.E.2d 1160. As recently as this year, in People v. Mink (1990), 141 Ill. 2d 163, 171, 565 N.E.2d 975, the Illinois Supreme Court observed that an order granting a defendant a new trial is interlocutory in nature and a court retains jurisdiction over such a defendant. In this case, it is clear that sentencing had not occurred, and under the authority of Thompson and Mink, notwithstanding defendant’s reliance on foreign authority, we hold that the trial court had the authority to vacate the new trial order and reinstate defendant’s conviction.

The next issue we address is whether the trial court abused its discretion by reinstating defendant’s conviction after vacating its order granting defendant a new trial.

Defendant’s argument on this issue concedes that the trial court had authority to vacate the new trial order and reinstate the conviction, but contends that under the facts of this case, the trial court abused its discretion in doing so. In so arguing, defendant again implicates constitutional guarantees, yet again relies on no case law or other authority discussing either the Federal or State constitution with regard to this issue. In making this contention, defendant’s argument essentially amounts to the claim that it is unfair to have allowed defendant to remain in a “state of limbo” after conviction but before appeal.

It was in April of 1989 that the new trial was initially ordered. The State filed its motion to vacate the new trial order in October of 1989 — a period of some six months. The parties have not discussed whether the new trial had received a date certain. The State’s motion followed closely upon the heels of the Chevalier decision. In the absence of an argument relying on specific instances of prejudice to defendant, it is hard to see why the trial court abused its discretion in allowing the State’s motion and reinstating the case. Assuming the trial court had correct grounds for doing so (which will be discussed), the State’s argument on this issue that judicial economy is better served by the allowance of such a motion is a factor that deserves consideration. In Thompson, the vacature of the new trial order and reinstatement of convictions occurred more than three months after the granting of the new trials, and there was no hint that the time period was excessively prejudicial. Accordingly, we reject defendant’s argument on this issue.

The third issue we address is whether defendant was denied a fair trial by the jury receiving the erroneous manslaughter instruction.

The parties do not dispute that the manslaughter instruction which the jury received was improper under Reddick. Defendant’s argument on this issue amounts to an appeal that we reject the Chevalier decision in the context of a mentally ill defendant, thus entitling defendant to a new trial with a proper instruction on voluntary manslaughter.

In Chevalier, the court reaffirmed the long-standing rule of law that mere words are not sufficient provocation for voluntary manslaughter, regardless of how insulting or aggravating the words are. (Chevalier, 131 Ill. 2d at 71-72.) More specifically, the court held that a “verbal communication that adultery has occurred or will occur falls within the rule that mere words are insufficient provocation.” (131 Ill. 2d at 72.) In so holding, the court observed that a number of cases which eroded at this rule in the revelations of adultery/marital discord context represented “an incorrect statement of Illinois law.” (131 Ill. 2d at 75-76.) Defendant argues that we should not apply Chevalier “retroactively,” as he relied on these cases. In fact, the record reveals that defendant did not request the instruction on voluntary manslaughter initially, but rather that the trial court decided to give the instruction, over State objection. Also, defense counsel did not argue to the jury that the jury should rely on the manslaughter instruction, but rather insisted that defendant’s theory of the case was insanity. Chevalier, in our opinion, represents a clarification of the law rather than “new” law. The facts of this case are well within the Chevalier holding, and Chevalier compels the result that defendant was not entitled to the voluntary instruction in the first instance, and thus could not have been prejudiced by an erroneous voluntary instruction.

Defendant argues, relying not on Illinois authority but on foreign authority, that we should not apply Chevalier to a defendant who has been found mentally ill, and that we should apply a “subjective,” as opposed to or in addition to an “objective,” standard to the determination of whether a voluntary manslaughter instruction should be given. The law in Illinois, however, requires that the provocation must be sufficiently serious to incite intense passion on the part of a reasonable person. (See People v. Hood (1989), 191 Ill. App. 3d 129, 547 N.E.2d 637.) For the foregoing reasons, we decline to change the law in this respect by imposing a subjective standard on whether provocation is sufficient to entitle a defendant in Illinois to a voluntary manslaughter instruction.

Next, we address whether defendant was deprived of his right to a fair and impartial jury due to the trial court’s refusal to allow the jury to examine police reports which had not been entered into evidence.

Defendant argues that the police reports, which related to incidences of domestic violence prior to the occurrence, should have been sent to the jury when the jury asked for them during deliberations. While these reports, which were used during the testimony of both witness-doctors, were marked as State exhibits, and were referred to by both parties during closing argument, they were not introduced into evidence. Defendant on his part never made a request that they be put into evidence. Defendant thus ascribes as error the trial court’s failure to send the reports to the jury room even though defendant had not argued that they should be introduced as evidence — an occurrence which defendant says is a “technicality” that “should not have ended [the trial court’s] consideration of the matter.” The record, moreover, reveals no objection on the part of defense counsel to the prosecutor’s reference to the nonadmitted reports during closing argument, a single reference which was only inferential in nature. Defendant, the record reveals, referred to the nonadmitted police reports in argument, as well. In making his argument on this issue, defendant relies on cases which are distinguishable as they involve questions of whether previously and properly introduced evidence should have gone to the jury.

Completely absent from defendant’s argument on this issue is any rationale under which the reports themselves could have been admitted as substantive evidence. Section 115—5(c)(2) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 115—5(c)(2)) would mandate the general inadmissibility of the reports. (See also 134 Ill. 2d R. 236(b); Moore v. Daydif (1955), 7 Ill. App. 2d 534, 130 N.E.2d 119.) Defendant not only failed to move for the introduction into evidence of the reports, but did not lay a foundation for the reports themselves to be admitted into evidence. Despite defendant’s references to Federal Rule of Evidence 703, defendant’s doctor testified that he did not use the reports in forming his opinion. The record reveals that defendant’s purpose in seeking to have the reports sent to the jury, and the purpose of defendant’s references to the reports during his doctor’s testimony, was to have the jury know that the reports indicated that defendant had mental problems or illness. In short, defendant wanted the jury to accept the truth of the matter asserted. Defendant did not argue an exception to the hearsay rule below, nor does he argue a hearsay exception in his brief. Assuming, arguendo, that the reports were admissible in the first place, the fact remains that defendant never sought to have them admitted into evidence. We refuse to create a rule whereby either the State or defendant can have evidence sent to the jury during deliberations when the evidence has not been introduced into evidence during trial. Any other resolution of the issue would lead to the encouragement of confusing procedures at the trial level.

The next issue is whether defendant’s conviction must be reversed due to the seizure of prejudicial evidence during the warrantless search of defendant’s home — particularly the introduction into evidence of photographs of the victim’s body and the playing of the videotape of the scene.

The initial issue the parties focus on is whether defendant has the necessary standing to argue that his rights were violated during an illegal, warrantless search of the residence and by the “seizure” of evidence during this search. An important point that the parties agree upon is that the initial entry and cursory check of the premises were legal and proper due to the recent confession on the part of defendant. Due to the manner in which we resolve this issue, we will assume that defendant has the requisite standing.

The record reveals that defendant filed a “Motion to Suppress Evidence” on September 17, 1987. Defendant moved the court to “suppress certain evidence unlawfully seized” and specified only that this evidence consisted of “certain papers, property, statements and/or evidence which might tend to incriminate” defendant. The motion argued that the seizure was constitutionally infirm because it was made without warrant or authority, no consent was given, and the seizure did not occur incident to a lawful arrest. As can be seen, the motion did not specify that any specific property be suppressed, but rather sought to suppress all evidence seized.

The evidence which defendant claims is prejudicial to him includes a videotape made by police personnel and photographs of the victim, both of these items being introduced into evidence. Defendant also appears to include in his argument claimed prejudice from testimony relating to the presence of several guns on the premises. The guns were not introduced into evidence, and any error from the description of them on the premises, which was included in the videotape of the scene, seems to have been cured by defendant’s testimony suggesting that they were part of a collection. Defendant, in fact, testified that his wife had threatened him with a gun from his collection. The record reveals no testimony or argument insinuating that the presence of the guns was indicative of criminal activity on the part of defendant. We therefore hold that any error in the reference to the guns was sufficiently minimal and cured so as not to require reversal.

As to the photographs of the victim’s body, the State correctly observes that the Illinois Supreme Court has stated that the taking of a photograph does not amount to a seizure. (See People v. Gacy (1984), 103 Ill. 2d 1, 468 N.E.2d 1171.) The body clearly was in plain view of a justifiable entry, and defendant has not cited a case indicating that photographs of the victim cannot be entered into evidence and shown to the jury. Nor has defendant cited a case which would indicate that the trial court abused its discretion in allowing the introduction of the photographs in this case. People v. Matteo (1985), 127 Misc. 2d 112, 485 N.Y.S.2d 446, upon which defendant relies, is distinguishable in that that case involved photographs taken during the search of premises supported by warrant, only the warrant’s affidavit did not so authorize. Here, there was a valid entry to the residence and the body was clearly in plain view.

As to the videotape of the scene, while we have reservations as to the use of the video in this case, it is hard to see how any prejudice to defendant occurred. The testimony accompanying the presentation of the video was all testimony which could have occurred absent the playing of the video. The testimony defendant complains of involved the absence of signals of a struggle, the fact that none of defendant’s brand of cigarettes were in an ashtray, the presence of a warm cup of coffee, and the seizure of papers. In the absence of any demonstrated prejudice to defendant, we hold that no reversible error occurred in the taking of and presentation of the video.

The next issue to be resolved is whether there was insufficient evidence upon which a finding of sanity could have been made by the jury. A person is not criminally responsible for his conduct if at the time of the conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. (Ill. Rev. Stat. 1987, ch. 38, par. 6—2.) The law presumes that people are sane, and the burden of proving the defense of insanity by a preponderance of the evidence is on the defendant. (People v. Bouchard (1989), 180 Ill. App. 3d 26, 33, 535 N.E.2d 1001.) As the court observed in People v. Williams (1990), 201 Ill. App. 3d 207, 216, 558 N.E.2d 1258:

“If the opinions of the expert witnesses on the issue of insanity conflict, the trier of fact may accept one expert’s opinion over another. [Citations.] The weight to be given an expert’s opinion depends upon the reasoning and factual details used to support that opinion. [Citations.]”

Further, the jury may reject all expert testimony and conclude that defendant was sane based solely on lay testimony (see People v. Bouchard, 180 Ill. App. 3d 26), and lay observations are especially relevant on the issue of defendant’s sanity if they are based on observations made shortly before or after the crime was committed. People v. Williams, 201 Ill. App. 3d at 219.

In this case, the testimony of the experts was clearly in conflict as to defendant’s sanity. Defendant argues that his expert, Dr. Abrams, knew defendant much better, both before and after the commission of the crime, and spent more time with defendant, given that defendant’s expert was defendant’s treating psychologist. As the State points out, however, the fact that defendant’s expert knew defendant personally, as evidenced by the fact that Dr. Abrams had defendant do some work at Abrams’ house after the crime, could cut either way with the jury. Defendant has not undermined the qualifications or credibility of the State’s expert, Dr. Kaplan. Moreover, there was substantial testimony from the testifying officers that defendant appeared normal shortly after the crime. A consideration of the above leads us to the conclusion that it was not unreasonable for the jury to conclude that defendant failed to prove the defense of insanity by a preponderance of the evidence. Accordingly, we refuse to overturn the jury’s finding on this factual issue.

Defendant has also requested that we reexamine the constitutionality of section 6—2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 6—2). This we refuse to do in light of the settled precedent establishing the constitutionality of the statute. See People v. McDarrah (1988), 175 Ill. App. 3d 284, 529 N.E.2d 808; People v. Hightower (1988), 172 Ill. App. 3d 678, 526 N.E.2d 1129; People v. Martin (1988), 166 Ill. App. 3d 428, 519 N.E.2d 1085.

Defendant also argues that he was denied his right to present a defense, equal protection of the law and due process of the law by the trial court instructing the jury on guilty but mentally ill. Again with respect to this argument, defendant acknowledges that settled precedent has upheld the constitutionality of the “guilty but mentally ill” statute (see People v. Smith (1984), 124 Ill. App. 3d 805, 465 N.E.2d 101; People v. Carter (1985), 135 Ill. App. 3d 403, 481 N.E.2d 1012; People v. Seaman (1990), 203 Ill. App. 3d 871, 561 N.E.2d 188).

Last, defendant raises the issue of whether his conviction must be reversed due to the cumulative errors which occurred at trial. Given our resolution that few errors occurred at trial, and given the lack of prejudice resulting therefrom, we hold that the doctrine of cumulative error does not apply to this case.

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

Affirmed.

EGAN and LaPORTA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SUSAN D’AQUILA, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—0989
    Rehearing denied November 18, 1991.
    Opinion filed October 16, 1991.

      Randolph N. Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter Hehner, and Edward J. Maloney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant Susan D’Aquila was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9—1) in a jury trial and sentenced to 60 years’ imprisonment. On appeal, defendant contends that (1) the trial court violated defendant’s right to due process when it issued too severe a sanction for defense counsel’s failure to turn over discovery material; (2) the trial court committed reversible error when it failed to allow the jury to review trial transcripts of defendant and another witness’ trial testimony during jury deliberations; and (3) the extended-term sentence imposed by the trial court is excessive and should be vacated. We affirm.

On November 2, 1985, defendant married the victim, Anthony D’Aquila (Anthony), who suffered from club feet, scoliosis and arthritis of the hands. On the evening of May 29, 1986, Kimberly Kandle, Austin Stevenson, David Heard and James Johns drove to an area along the embankment of the Des Plaines River. Upon arriving at the embankment, defendant and Johns partially disrobed Anthony and pushed him into the shallow water. After Anthony walked out of the water, Kandle and Stevenson left the group to get beer. Anthony was seated on a concrete embankment adjacent to the river. Johns walked behind Anthony while defendant was holding Anthony’s hand. Suddenly, defendant pulled Anthony forward while Johns pushed him from behind into the deep water. Anthony submerged, came up once and yelled, “Save me!” He then submerged again and did not resurface.

When Kandle and Stevenson returned to the embankment with beer, they saw Johns, Heard and defendant running toward the street with Anthony’s pants and belt. Johns gave Kandle and Stevenson the victim’s pants and belt and instructed Kandle and Stevenson to bum them. Kandle and Stevenson testified that they burned the pants, but hid the belt in case “[defendant] did something to them.” The group immediately left the embankment and met at the Cyprus Lounge, where the group stayed that night until the lounge closed.

On May 31, 1986, Anthony’s body was discovered floating in the Des Plaines River. The following day, Riverside police sergeant John Augustine went to the D’Aquila’s home to talk with defendant. When Sergeant Augustine told defendant that the police found a body that they believed to be Anthony, defendant pretended to be surprised and told Sergeant Augustine that she was expecting Anthony to arrive for a barbecue in a few minutes. Sergeant Augustine asked defendant to go to the morgue to make an identification of the body. Defendant stated that she would, but she never went to the morgue to make a positive identification of her husband’s body.

On June 5, 1986, defendant and Johns were arrested and charged with murder and concealment of a homicide. Kandle, Stevenson and Heard were also arrested and charged with concealing a homicide. The charges were subsequently dropped against Kandle, Stevenson and Heard. They each testified at the trial of the defendant.

Prior to defendant’s marriage to Anthony, defendant told a witness that she was going to marry Anthony for his money, “hustle him” and then kill him. On numerous occasions during their seven-month marriage, defendant told several witnesses that she was going to kill Anthony, stating to one witness that she was going to push her husband down a flight of stairs so that it would look like an accident.

Defendant was named as the sole beneficiary of a $19,500 life insurance policy issued on her husband’s life. Additionally, defendant was the sole beneficiary of Anthony’s pension, which amounted to a lump sum payment of $16,454 or $150 per month for 36 years, and was the beneficiary of a trust fund involving Anthony, the benefits and conditions of which are unknown to the court.

Following her arrest, defendant initially told the police that she had been out eating tacos with the group in Riverside, Illinois, and had not been anywhere near the Des Plaines River embankment on May 29, 1986. After being told by the police that two parking tickets were issued to her automobile at or near the Des Plaines River embankment at 10:15 p.m. on May 29, 1986, defendant admitted that the group went to the river embankment for a while that evening, but refused to admit any involvement in Anthony’s death.

At trial, defendant testified that she witnessed either Heard or Johns push Anthony into the water and that she attempted to save her husband’s life but was knocked to the ground by Heard. Defendant further testified that Johns threatened to kill her daughter if she implicated him in the killing, and it was for this reason that she did not cooperate with the police.

The trial court ruled that the murder was accompanied by exceptionally brutal and heinous behavior and sentenced defendant to serve an extended term of 60 years’ imprisonment in the Illinois Department of Corrections.

Defendant first argues that the trial court violated defendant’s right to due process when it issued too severe a sanction for defense counsel’s failure to turn over discovery material. We disagree.

During cross-examination of Heard, defense counsel sought to question him regarding the existence and contents of two letters he had written to defendant. The two handwritten letters from Heard to defendant, written from prison shortly after their arrests, contain statements of Heard’s affection for defendant, poetry, and various proclamations of Heard’s belief that defendant would be acquitted of the crimes for which she was charged. Defendant contends that the trial court abused its discretion when it precluded defense counsel from questioning Heard regarding the contents of the letters because defense counsel had not disclosed the existence of the letters to the prosecution prior to trial. This contention is without merit.

A defendant is obligated to furnish the prosecution any tangible objects he intends to use as evidence or for impeachment at a hearing or trial. (107 Ill. 2d R. 413(d)(ii)-) In the event a defendant fails to comply, the trial court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances. 107 Ill. 2d R. 415(g).

In precluding the use of the letters during cross-examination, the trial court stated that “this case fits into the category of willful misconduct for which the severe sanction of preclusion is justified to protect the integrity of the judicial process.” We agree. Accordingly, we hold that the trial court did not abuse its discretion. People v. Morgan (1991), 142 Ill. 2d 410, 568 N.E.2d 755; Taylor v. Illinois (1988), 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646.

Defendant’s next argument concerns two notes the jury sent the trial court while it was deliberating. In its notes, the jury asked the trial court for the transcripts of the testimony of defendant and Heard. The trial court responded to each of the notes: “The transcripts are not available. You have all the evidence.”

The decision to furnish the jury with transcripts of testimony rests within the discretion of the trial court. Absent an abuse of discretion, the trial court’s decision will not be disturbed on review. (People v. Franklin (1990), 135 Ill. 2d 78, 105, 552 N.E.2d 743, 755; see also People v. Olinger (1986), 112 Ill. 2d 324, 493 N.E.2d 579; People v. Pierce (1974), 56 Ill. 2d 361, 308 N.E.2d 577.) There is nothing to demonstrate that the trial court abused its discretion in the present case. As a result, defendant’s argument is without merit.

In addition, we conclude that any error that may have been committed by the trial court would be harmless error. The State presented overwhelming evidence of defendant’s guilt. The State presented four witnesses who testified that they heard defendant say that she planned or wanted to kill Anthony. Also, Heard described the events that transpired at the river embankment, and testified that defendant stated to him after the incident, “Thank god it’s over.” Moreover, defendant’s own statements demonstrate that any error by the trial court would have been harmless beyond a reasonable doubt. See People v. Schriner (1990), 198 Ill. App. 3d 748, 555 N.E.2d 1257.

Defendant’s final argument is that the extended-term sentence is excessive and should be vacated. We disagree. Defendant is eligible for an extended-term sentence based on section 5—8—2 of the Unified Code of Corrections, which permits the trial court to sentence a defendant to an extended term of between 40 to 80 years’ imprisonment if it determines that certain aggravating factors are present. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—2.) Aggravating factors applicable to the present case include exceptionally brutal or heinous behavior indicative of wanton cruelty and the victim’s physical handicap at the time of the offense. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005—5—3.2(b)(2), (b)(3).) During the sentencing hearing, the trial court found that the crime was “a cold, cruel, calculated, premeditated crime based on avarice and greed” committed against a man who was “badly physically handicapped.” Our review of the record reveals that the trial court’s finding is consistent with the evidence presented. We therefore hold that the extended-term sentence imposed by the trial court was not an abuse of discretion. See People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

CERDA, P.J., and GREIMAN, J., concur.


author: JUSTICE McMORROW

text:
    ROBERT BOLANOWSKI et al., d/b/a Back Trax, Plaintiffs-Appellees, v. ROBERT McKINNEY et al., Indiv. and d/b/a Sunset Lounge, Defendants (Western World Insurance Company, Inc., Garnishee-Appellant).
    First District (4th Division)
    No. 1—90—2290
    Opinion filed October 17, 1991.

      Robert Marc Chemers, Scott O. Reed, and Andrew G. Witik, all of Pretzel & Stouffer, Chartered, of Chicago, for appellant.
    David J. Cifelli, of Cifelli & Scrementi, Ltd., of Chicago Heights, for appellees.
   JUSTICE McMORROW

delivered the opinion of the court;

Plaintiffs Robert Bolanowski and Frank Paul, doing business as Back Trax (plaintiffs), filed suit against Robert and Gladys McKinney, individually and doing business as Sunset Lounge (defendants), for property damage and related lost wages allegedly caused by a fire at defendants’ place of business. The trial court entered judgment for the plaintiffs, and plaintiffs instituted a garnishment action to recover the judgment amount from the defendants’ insurer, Western World Insurance Company, Inc. (garnishee). The trial court entered judgment in favor of plaintiffs in the garnishment action, and garnishee appeals. On review, garnishee argues that it was not obligated to indemnify its insured because (1) the insurance policy excluded coverage for damage to the plaintiffs’ property, since the policy provided that it did not apply where damaged property was in the “care, custody and control” of its insureds, the defendants; and (2) the policy could not apply to the damages sustained by plaintiffs, because the defendants’ liability in the underlying suit was predicated on the trial court’s determination that defendants misrepresented to plaintiffs that defendants’ insurance policy would govern any damage to property plaintiffs left on the defendants’ premises. Garnishee also contends that the trial court’s judgment should be reversed because the amount of damages awarded to the plaintiffs in the underlying suit against defendants was excessive. We affirm the trial court’s determination that garnishee was obligated to indemnify its insureds, the defendants. However, we reverse and remand for further proceedings on the question of the amount of damages for which the garnishee must indemnify its insureds.

The record reveals that plaintiffs filed a complaint against defendants which, as ultimately amended, consisted of the following pertinent allegations. In October 1985, plaintiffs entered into a contract to provide musical entertainment, on a specific weekend, at defendants’ lounge in Lansing, Illinois. Thereafter, plaintiffs orally agreed to perform from week to week on both Friday and Saturday nights at the lounge. Plaintiffs alleged that, at some point while the plaintiffs were performing at the lounge, “someone suggested that the [plaintiffs’ musical] equipment be left in the bar between shows.” Thereafter, the plaintiffs’ equipment was apparently left on the premises while not in use during plaintiffs’ weekend engagements. In May 1986, the establishment, and the plaintiffs’ equipment, was destroyed by fire.

Plaintiffs’ suit sought recovery for damage to their musical instruments and equipment, as well as lost wages during the time that the plaintiffs could not perform because their equipment had been destroyed in the fire. Plaintiffs alleged that defendants had negligently misrepresented that defendants’ insurance would cover any damage to the plaintiffs’ equipment “so long as it remained” on defendants’ premises. Plaintiffs also alleged that defendants had negligently maintained the premises, thereby proximately causing the fire and resulting destruction of plaintiffs’ equipment.

Defendants filed an answer to the plaintiffs’ complaint, denying the material allegations therein. According to the record, the garnishee was tendered defense of plaintiffs’ claims. Garnishee refused to defend defendants, however, claiming that plaintiffs’ property damage was not governed by the insurance policy it had issued to the defendants. Following a hearing on the plaintiffs’ complaint, the trial court determined that the defendants “negligently misrepresented insurance coverage to the plaintiffs and the plaintiffs relied upon same to their detriment.” The trial court entered judgment against defendants in the amount of $80,000, representing the replacement cost of plaintiffs’ musical equipment, their lost wages in band earnings, and the costs incurred by plaintiffs to rent replacement equipment.

Thereafter, plaintiffs filed their affidavits for nonwage garnishment against the defendants’ insurer, the garnishee, which filed an answer and defenses thereto. Garnishee argued, inter alia, that its insurance policy did not cover plaintiffs’ loss, and that the amount of damages awarded was unreasonable. Later, garnishee also filed a motion for summary judgment. Garnishee argued, in pertinent part, that its insurance policy excluded coverage for damage to plaintiffs’ musical equipment. In particular, garnishee relied upon the provision in the insurance policy which stated that it did not apply to damage “to *** property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control.”

Following briefing and argument, the trial court denied garnishee’s motion for summary judgment. In its order, the court determined that garnishee had wrongfully refused “to defend the case in chief, under a reservation of rights or otherwise, or to seek a declaratory judgement [sic] prior to entry of judgement [sic].” The trial court “specifically finds that there was potential for coverage under the totality of the circumstances presented by the language of this complaint and that the insurer can’t come in to the garnishment action and allege the absence of a duty to defend or indemnify under the principle of equittable [sic] estoppel.” The court also determined that “in any event coverage for the damage incurred by the plaintiffs was provided under” garnishee’s insurance policy “because the exclusion *** does not apply.” The court concluded that garnishee “has a duty to indemnify the judgement [sic] debtors for the underlying judgement [sic], interest due thereon until the date of collection, and for costs of suit” as specified in the order. Garnishee’s timely appeal followed.

Garnishee argues that plaintiffs’ complaint against defendants in the underlying suit fell within the policy’s exclusion for damage to “property in the care, custody or control of the insured.” On this basis, garnishee asserts that it had no duty to defend its insureds with respect to plaintiffs’ negligence claims. We disagree.

The Illinois Supreme Court has set forth the principles applicable to an insurance company’s duty to defend or indemnify its insured in an underlying suit against the insured:

“To determine an insurer’s duty to defend its insured, the court must look to the allegations of the underlying complaints. If the underlying complaints allege facts within or potentially within policy coverage, the insurer is obliged to defend its insured even if the allegations are groundless, false, or fraudulent. [Citation.] An insurer may not justifiably refuse to defend an action against its insured unless it is dear from the face of the underlying complaints that the allegations fail to state facts which bring the case within, or potentially within, the policy’s coverage. [Citation.] Moreover, if the underlying complaints allege several theories of recovery against the insured, the duty to defend arises even if only one such theory is within the potential coverage of the policy. [Citation.]
The underlying complaints and the insurance policies must be liberally construed in favor of the insured. *** All doubts and ambiguities must be resolved in favor of the insured. [Citations.]” (Emphasis in original.) United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64, 73-74.

Based upon these principles, we must determine whether it is clear from the face of plaintiff’s complaint that the allegations therein state facts that fall within the policy exclusion for damage to property “within the care, custody, or control” of the defendants.

A “care, custody, or control” exclusion is not uncommon in liability insurance policies such as that at issue herein. (See generally 12 Couch on Insurance §44A:13 et seq. (rev. 1981).) Courts have devised a two-part test to determine whether an insured had “care, custody, or control” of another’s property for purposes of the exclusion: (1) whether the property was in the possessory control of the insured at the time of the loss; and (2) whether the property was a necessary element of the work. Bituminous Casualty Corp. v. Fulkerson (1991), 212 Ill. App. 3d 556, 564, 571 N.E.2d 256; Insurance Co. of North America v. Adkisson (1984), 121 Ill. App. 3d 224, 459 N.E.2d 310; Country Mutual Insurance Co. v. Waldman Mercantile Co. (1981), 103 Ill. App. 3d 39, 430 N.E.2d 606; Stewart Warner Corp. v. Burns International Security Services, Inc. (7th Cir. 1975), 527 F.2d 1025.

With respect to whether an insured had possessory control of the property at the time of the loss, it has been noted that, “[w]hile the control exercised by the insured must be exclusive, it need not be continuous, and if the insured has possessory control at the time the property is damaged, the exclusion clause will apply.” (Country Mutual, 103 Ill. App. 3d at 42.) It has also been held that an insured does not have “care, custody, or control” of another’s property when the insured has “temporary or incidental access to the property or limited possession of an area of the property rather than care, custody or control of the property itself.” Leiter Electric Co. v. Bituminous Casualty Corp. (1968), 99 Ill. App. 2d 386, 389, 241 N.E.2d 325; see also Bituminous Casualty Corp. v. Chicago, Rock Island & Pacific Railroad Co. (1972), 8 Ill. App. 3d 172, 289 N.E.2d 464; Baldwin v. Auto-Owners Insurance Co. (1972), 5 Ill. App. 3d 300, 282 N.E.2d 204; see generally Annot., 8 A.L.R.4th 563 (1981).

Applying these guidelines to the allegations of plaintiffs’ complaint in the underlying suit against defendants, we cannot say that the record demonstrates that defendants clearly had possessory control of plaintiffs’ equipment at the time of the fire. According to plaintiffs’ complaint, plaintiffs were engaged to provide musical entertainment on weekends at defendants’ establishment. At some point, “someone suggested that the [plaintiffs’ musical] equipment be left in the bar between shows.” Thereafter, the equipment was left at the establishment when not in use for plaintiffs’ weekend shows.

The complaint contains no further allegations regarding the circumstances under which plaintiffs’ equipment remained on defendants’ premises. The complaint does not reveal whether defendants were granted or exercised the right of access to the equipment in order to maintain, move, or protect the equipment. The complaint fails to allege that defendants were accorded or exercised the prerogative to do anything with or to the plaintiffs’ equipment. Thus, the complaint does not indicate that defendants had any type of possessory control over the equipment. Rather, the complaint merely alleges that the plaintiffs’ equipment was left on the defendants’ premises, apparently “in the bar between shows.” Absent allegations showing that defendants were accorded the right or duty to exercise some type of possessory control over the equipment, we must conclude that the record does not clearly show that defendants had “care, custody, or control” over plaintiffs’ equipment at the time of the fire.

Garnishee also argues that the plaintiffs’ complaint necessarily infers that the defendants were granted possessory control over the equipment, because such possessory control was a predicate to defendants’ liability for any alleged negligent act in maintaining the premises. We are unable to accept this argument.

Plaintiffs’ complaint alleged that defendants had the duty to “equip, maintain, control and operate their premises with caution and diligence and to have due regard for the rights and safety of all persons and property lawfully and rightfully therein and thereupon.” Plaintiffs alleged that “the premises were under the control of” the defendants at the time of the fire, and that defendants had “negligently maintained, operated and controlled” the premises. Specifically, plaintiffs alleged that defendants had carelessly, negligently and improperly: (1) operated and controlled the grill, (2) maintained the wiring in the premises, (3) left oily rags or other articles within the premises, or (4) failed to lock the doors upon leaving or otherwise secure the premises from the entry of vandals. Plaintiffs alleged that defendants had “otherwise so carelessly, negligently and improperly operated and controlled the premises that it burned to the ground with the plaintiffs’ equipment located therein.”

None of these allegations indicated that defendants had possessory control over plaintiffs’ equipment, nor did any of these allegations claim that defendants had negligently or carelessly exercised possessory control of plaintiffs’ equipment at the time of the fire. Garnishee notes that plaintiffs’ complaint alleged that defendants controlled the premises, and that defendants had a duty to exercise such control with due regard for the safety of property on the premises. However, these allegations do not reveal or indicate that defendants exercised possessory control over the plaintiffs’ equipment on the premises. The circumstance that defendants controlled the premises does not dictate the conclusion that the defendants also necessarily had possessory control of plaintiffs’ equipment while it was left on the premises.

The case of Country Mutual Insurance Co. v. Waldman Mercantile Co. (1981), 103 Ill. App. 3d 39, 430 N.E.2d 606, upon which garnishee relies, is factually distinguishable from the instant cause. In that case, the insured’s employees “were, for all practical purposes, in full charge of the property. It was [the insured’s] employees who were on duty at the time the fire began and it was [the insured] which was primarily responsible for protecting the merchandise while on the premises.” (103 Ill. App. 3d at 43.) There is nothing in the record of the instant cause to clearly demonstrate that defendants were “primarily responsible for protecting” the plaintiffs’ equipment while it was left on the defendants’ premises.

The case at bar is analogous to Shankle v. VIP Lounge, Inc. (Fla. App. 1985), 468 So. 2d 548. In Shankle, the plaintiff was engaged to provide nightly musical entertainment at defendant’s lounge. The plaintiff “routinely left” his band instruments “in the lounge overnight.” (468 So. 2d at 549.) The equipment was destroyed in a fire at the lounge, and the defendant’s insurer claimed the exclusion in its insurance policy for property “in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control” (468 So. 2d at 549), i.e., the identical exclusion to that asserted by the garnishee herein. The court determined that the defendant did not clearly have “care, custody or control” of the plaintiff’s equipment at the time of the fire. In so concluding, the court reasoned:

“There is absolutely no evidence in the record that [defendant] ‘could do’ anything with the equipment. There were no facts established on which the court could conclude that the equipment was under the care, custody or control of [defendant]. It does not follow that simply because equipment is left on the premises, the requisite elements of care, custody or control are established.” (Emphasis added.) 468 So. 2d at 549.

Garnishee also submits that the trial court’s determination was in error because it contradicted the factual determination, made with respect to plaintiffs’ suit against defendants, that defendants were liable because they had negligently misrepresented that their insurance policy would cover plaintiffs’ equipment while the equipment was left on the premises. Garnishee claims that since the defendants’ liability was founded on negligent misrepresentation regarding the scope of insurance coverage, garnishee’s insurance policy necessarily could not apply to plaintiffs’ loss. We disagree.

Garnishee’s obligation to defend or indemnify is not governed by the eventual factual determination of its insureds’ liability, but rather by the scope of the allegations originally made in plaintiffs’ complaint against defendants. “To determine an insurer’s duty to defend its insured, the court must look to the allegations of the underlying complaints. If the underlying complaints allege facts within or potentially within policy coverage, the insurer is obliged to defend its insured even if the allegations are groundless, false, or fraudulent. [Citation.]” (Emphasis in original.) (United States Fidelity, 144 Ill. 2d at 73.) “Moreover, if the underlying complaints allege several theories of recovery against the insured, the duty to defend arises even if only one such theory is within the potential coverage of the policy. [Citation.]” (United States Fidelity, 144 Ill. 2d 73.) As stated more fully above, we cannot say, on this record, that plaintiffs’ allegations clearly fell outside the scope of potential coverage under the garnishee’s insurance policy.

Based on the foregoing, we find no error in the trial court’s determination that garnishee must indemnify its insureds, the defendants, with respect to the judgment entered in plaintiffs’ favor in the underlying suit, on the ground that the plaintiffs’ suit did not clearly fall within the policy exclusion regarding damage to property in the care, custody, or control of the defendants.

The remaining question pertains to the amount for which the garnishee must indemnify its insureds. Garnishee argues it should not be obligated to indemnify for the full amount of judgment entered against the defendants in the underlying suit, because the amount of damages awarded to plaintiffs was excessive. Garnishee asserts that plaintiffs are not entitled to “lost earnings” for the period of time that plaintiffs allegedly could not work as a band for lack of the equipment destroyed in the fire. On this basis, garnishee contends that the amount of judgment should be reduced, by remittitur, to the replacement value of plaintiffs’ equipment and the costs incurred by plaintiffs to rent other equipment. Plaintiff contends that the amount of damages awarded in the underlying suit is not excessive, and should not be disturbed on appeal.

We decline garnishee’s invitation to reduce by remittitur the amount awarded in the underlying judgment entered against defendants. Although not specifically argued by plaintiff, we note that there is case law for the proposition that an insurer that has improperly refused to defend in the underlying action against its insured “ ‘is estopped from later raising policy defenses to coverage and is liable for the award against the insured and the costs of the suit, because the duty to defend is broader than the duty to pay.’ ” M/A Com, Inc. v. Perricone (1989), 187 Ill. App. 3d 358, 360-61, 543 N.E.2d 228, quoting Murphy v. Urso (1981), 88 Ill. 2d 444, 451, 430 N.E.2d 1079; see also Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 430 N.E.2d 1104; First National Bank v. Hahnemann Institutions of Chicago, Inc. (1934), 356 Ill. 366, 190 N.E. 707; Thompson v. Glover (1969), 115 Ill. App. 2d 253, 253 N.E.2d 132.

However, we observe that the record does not clearly disclose whether the insurance policy’s coverage for “damage to property” includes lost profits associated with “loss of use” of the damaged property, and that the parties present no arguments with respect to this latter question. We believe that these issues should be addressed by the parties. Accordingly, pursuant to Illinois Supreme Court Rule 366(a)(5) (134 Ill. 2d R. 366(a)(5)), we reverse the trial court’s determination with respect to the amount of damages for which the garnishee must indemnify its insureds and remand the matter for further proceedings.

For the reasons stated, the order of the circuit court of Cook County is affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

Affirmed in part; reversed in part and remanded.

LINN and JOHNSON, JJ., concur.


author: JUSTICE LINN

text:
    TIMOTHY T. CLARK, Plaintiff-Appellant, v. HAJACK EQUIPMENT COMPANY, Defendant-Appellee (White Materials Handling Company, a Subsidiary of White Motor Corporation, et al., Defendants).
    First District (4th Division)
    No. 1—90—3319
    Opinion filed October 17, 1991.

      Bresler, Brenner, Moltzen & Harvick, of Chicago (Edward W. Moltzen, Sheldon A. Brenner, and Theodore J. Castanes, of counsel), for appellant.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James R DeNardo, Perry C. Rocco, and Christine L. Olson, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Timothy T. Clark, filed suit against four defendants, seeking damages for injuries he sustained when he was driving a forklift truck that rolled backward off of a dock-leveling platform. Defendant Hajack Equipment Company was dismissed from the lawsuit upon summary judgment, and it is from this judgment that Clark appeals.

Clark contends that the trial court abused its discretion in granting summary judgment because there are genuine issues of material fact and that the court erred in holding that Hajack’s actions or inactions did not proximately cause Clark’s injuries.

We affirm.

Background

In October 1984 Clark was operating a forklift truck manufactured by defendant White Materials Handling Company. Clark was an employee of Lithotype/Midwest Community Press (Midwest). As he backed the forklift onto a dock-leveling platform or ramp, the ramp suddenly descended, which caused the forklift to slide off and fall to the ground. Clark attempted to jump clear but the forklift fell on his right arm, causing serious injuries.

Clark filed a four-count personal injury complaint against the defendants, alleging theories of strict liability and negligence. Counts III and IV were directed at Kelley Company, the manufacturer of the dock leveler, and Hajack, as installer and servicer of the dock leveler. The trial court granted summary judgment in favor of Hajack as to count III, which alleged that the device was defectively designed, and no appeal was taken from that judgment.

Count IV was directed at Hajack only, and alleged that Hajack was at fault because it:

“(a) Carelessly and negligently failed to service, inspect and/ or repair the hold down bracket.
(b) Carelessly and negligently failed to test the dockleveler after servicing and/or repair.
(c) Carelessly and negligently repaired and serviced the dockleveler.”

The dock leveler allows workers to load and unload trucks to and from loading docks, and bridges unequal heights by the operation of the dock-leveling platform or ramp. When the dock leveler is in use, the lip of the ramp extends out and rests on the truck bed. When it is not being used for loading, the lip can be returned to a vertical position, which causes cross-traffic legs to swing down to support the ramp and keep it horizontal and rigid. The legs rest on stops built into the frame of the dock leveler below the ramp.

Plaintiff’s expert witness, Dr. Terrence Willis, testified in his deposition that the only defect in the dock leveler was in the clevis, which is an integral part of the interconnection between the cross-traffic legs and the lip of the dock leveler ramp. This interconnected system allows the dock leveler to “float” above or below dock level when in use. According to Willis, the clevis in the dock leveler was defective because “the clevis unit was not sliding properly past the push bar, because the bolts were too long, there were no spacers in there, alignment was off, members of the mechanism were getting twisted, and, simply stated, binding would occur and you would not get the lip to come all the way down every time, in which case the legs, cross-traffic legs, did not swing back into their position as they should do according to the manual given to us by Kelley.”

Hajack had installed the dock leveler in 1979, but the only repair it performed was one made in April 1984, approximately six months before the occurrence. Midwest, Clark’s employer, had requested Ha-jack to repair a cross-traffic leg chain on the dock leveler, and it is undisputed that Hajack did not repair the clevis or any other part of the dock leveler. Instead, a Hajack employee replaced the cross-traffic leg chain, which was missing, installed a new gas spring to replace a broken one, and lubricated the dock leveler. The Hajack employee also performed a general inspection of the dock leveler and tested its operation.

Midwest, plaintiff’s employer, did not have a maintenance contract for the dock leveler. Instead, an employee of Midwest, Glenn Thompson, repaired it as necessary. In 1982 or 1983, Thompson replaced certain parts in the clevis assembly of the dock leveler. In 1984, he called Hajack to replace the cross-traffic leg chain and grease the dock leveler. According to Thompson, the equipment operated properly after Hajack made the repair and also operated properly the day after Clark’s accident.

Clark’s expert, Dr. Willis, testified that in his opinion Midwest’s modification of the clevis assembly contributed to the accident and the only defective condition in the dock leveler was the clevis assembly. There was no evidence suggesting that Hajack ever repaired the clevis assembly or its component parts.

Hajack filed its motion for summary judgment on count IV of the complaint, denying that it had negligently repaired the clevis assembly and arguing that it was not liable to Clark for his injuries. In response, Clark filed an affidavit of Dr. Willis, who stated that the Ha-jack employee who repaired the cross-traffic leg chain should have known that the earlier replacement of the clevis assembly created a dangerous condition. Hajack replied that as an independent contractor of Midwest, it had no duty to do more than it was requested to do in repairing a portion of the dock leveler. The trial court entered judgment in favor of Hajack, finding, among other things, that Clark had failed to establish a causal link between Hajack’s actions and Clark’s injuries.

Opinion

In essence, Clark’s theory would hold Hajack liable in negligence for Hajack’s failure to discover or report the allegedly dangerous condition of the clevis assembly. Clark argues that Hajack is a dock leveler equipment specialist that performed an inspection of the machinery as part of its repair and therefore owed a duty to act with reasonable care in making the inspection.

Hajack responds by first arguing that its obligation was limited to the terms of the contract to repair, which did not include any repair to the clevis assembly. Hajack contends that if a defendant’s negligence is based upon a breach of contract, the scope of the defendant’s duty is determined by the terms of the contract. E.g., Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472 (security service that guarded Chicago Housing Authority (CHA) premises from 9 a.m. to 1 a.m. and was also charged with evaluating security needs of the CHA on a continuing basis was held to have no duty in negligence to tenant who was injured after 1 a.m.; court held that there was no duty to evaluate security needs for periods after its contractually obligated schedule or to inform CHA that additional security should be obtained for those periods); Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill. App. 3d 127, 488 N.E.2d 623 (defendant league held to have no duty in negligence to injured rugby player who sued under theory that league failed to regulate the play of the games pursuant to defendant’s constitution and bylaws; court held that the bylaws did not regulate rugby).

The record in this case reveals that Hajaek performed the particular repair it was hired to do. Hajaek tested the dock leveler’s operation and found it satisfactory at that time. Several months later, Clark was injured under circumstances that suggest a possible defect in the clevis assembly. There is nothing of record to show that Hajaek was requested to conduct a complete safety inspection of the dock leveler to ascertain whether any part of it might pose a danger.

We do not believe that Hajaek became an insurer of the future safety of the dock leveler merely by its general inspection of the machinery pursuant to its repair of the cross-traffic leg chain and lubrication of the machine. Hajack’s contractual duties cannot be expanded to include a duty to detect and warn against possibly dangerous conditions to a portion of the dock leveler that was not part of the repair contract.

Clark asserts that even if Hajack had no duty under the repair contract to inspect for and report the existence of dangerous conditions, once it set out to inspect the dock leveler it was required to do so with reasonable care. In support of this theory, Clark cites Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769, and the Restatement (Second) of Torts section 324A, at 142 (1965). Section 324A provides:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person ***, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

Clark does not claim that Hajack’s conduct increased the risk of harm, but he does argue that Hajack undertook a duty owed by Midwest and that Midwest relied on Hajack’s inspection. Clark relies on Nelson Wire, which applied Florida’s doctrine of negligent performance of a voluntary undertaking. In Nelson Wire employees were injured when a construction hoist collapsed. They sued their employer’s worker’s compensation carrier, alleging that the insurer’s safety engineers periodically inspected the work site to oversee the employer’s practices and equipment. The supreme court held that the insurance carrier gratuitously undertook to provide safety services and had a duty to perform them with reasonable care.

We believe that Clark’s theory is unsupported by the facts of the pending case. Unlike the situation in Nelson Wire, Hajack had no periodic, deliberate presence at the work site and had not undertaken any responsibility for job safety. Had Hajack negligently repaired the cross-traffic leg chain, proximately causing an injury, it would be responsible for its own negligence. But the one-time repair job cannot, in our opinion, become the basis of a negligent undertaking theory of liability where there is no evidence that Hajack voluntarily undertook Midwest’s responsibility for the ongoing and future safety of the dock leveler. A Midwest employee had modified the clevis chain assembly on several occasions in the past. Even assuming that the modification created a dangerous condition, there are no facts in the record to create an inference that Hajack negligently undertook a gratuitous duty to discover and report such condition to the party that created the condition. Nor is there any evidence that Midwest depended on such an inspection.

Dr. Willis’ affidavit states his opinion that Hajack knew or should have known that the replacement of the clevis assembly created a dangerous condition, but the evidentiary facts in support of such opinion are not set out. Instead, the affidavit simply lists the materials Dr. Willis examined, such as photographs of the scene, safety engineering literature, and the depositions of two people. From these materials, the witness concludes:

“[T]he Hajack service person, Van Bailey, who repaired, tested and inspected the Kelly dockleveler on April 18, 1984, knew or should have known in the exercise of the skill and knowledge normally possessed by dockleveler service personnel in the community, that the replacement of the clevis mechanism, and the replacement of pins holding the clevis mechanism assembly with a bolt, created a dangerous condition wherein said replacement parts could cause the dockleveler to bind up, thereby causing the dockleveler to suddenly drop from a horizontal position to an incline while being used by employees of Midwest Litho-Type.”

It is the plaintiff’s responsibility to establish a sufficient factual basis to defeat a motion for summary judgment. (See, e.g., Carter v. Dunlop (1985), 138 Ill. App. 3d 58, 69, 484 N.E.2d 1273.) The mere listing of all documents reviewed by an expert is no substitute for summarizing the facts relied upon, with citations to the pertinent passages in depositions and other documents. Otherwise, the court is compelled to scour the record to ascertain whether the expert’s conclusory opinion is premised on evidentiary facts. Nevertheless, even if we assume that the expert’s opinion is admissible, that Hajack owed a duty, and that there is a factual issue as to what Hajack’s personnel knew or should have known as to the significance of the modified clevis assembly, we agree with the trial court that Hajack’s acts or omissions with respect to its one repair did not proximately cause Clark’s injuries.

The clevis assembly of the dock leveler was functioning properly after Hajack’s repair to the cross-traffic leg chain. The machine that had been installed in 1979 and modified by Midwest continued to operate properly for six months after Hajack’s repair, and the record indicates that it functioned properly the day after the accident. Although the expert witness tried to establish that the dangerous condition was (Midwest’s) replacement of a pin in the clevis assembly with a bolt, and that Hajack should have known of this danger, we find the opinion speculative in its conclusion that the modification would cause “binding,” resulting in the malfunction. As long as the clevis assembly was operating and the “defective” condition was not apparent except by the mere fact of the modification, Hajack could not be liable unless we hold it to a duty going far beyond ordinary repairs and attendant inspection. The trial court held that there was no proximate cause, finding causation “remote” and noting that there was no evidence “that there was anything wrong with it at the time (of Hajack’s repair).”

We agree that the element of proximate cause is lacking in this case. Moreover, we find it fair to say that Clark has not established the existence of a legal duty under the facts. As the trial court noted, holding a service person liable for the modifications that the owner makes “is a burden that [the court] can hardly imagine would be fair to place on the service people.”

In opposing a motion for summary judgment, plaintiff has “an affirmative duty to bring forth all facts and evidence of a cognizable cause of action” to show a factual basis that would “arguably entitle [him] to judgment.” (Carter v. Dunlop (1985), 138 Ill. App. 3d 58, 69, 484 N.E.2d 1273, 1281.) We conclude that Clark has failed to do so. Accordingly, we affirm the trial court’s entry of summary judgment in favor of Hajack.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE GORDON

text:
    LA SALLE NATIONAL BANK, as Trustee, et al., Plaintiffs-Appellants, v. HARRIS TRUST AND SAVINGS BANK, as Trustee, et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—89—1732
    Opinion filed October 18, 1991.

      H. Reed Harris, of Chicago, for appellants.
    Stephen Richek, of Chicago, for appellees.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Lynn K. Mitchell, Assistant Corporation Counsel, of counsel), for amicus curiae City of Chicago.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiffs La Salle National Bank, as trustee under trust No. 104471, and H. Reed Harris appeal from a circuit court order dismissing their private cause of action against defendants Harris Trust and Savings Bank, as trustee under trust No. 40575, Chicago Cooperative Productions, Inc., James Petrozzini and American National Bank and Trust Company of Chicago, trustee under trust No. 104587 — 01, which sought to enforce a local zoning ordinance pursuant to section 11—13—15 of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 11—13—15). The trial court dismissed plaintiffs’ complaint, pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), for the reason that section 11—13—15 does not apply to home rule units. On appeal, plaintiffs contend that an amendatory provision which purports to render the relevant statute inapplicable to home rule units is unconstitutional and void. The City of Chicago filed an amicus brief in support of plaintiffs’ position.

Plaintiffs filed a second amended complaint in this action on March 21, 1988. The complaint alleged plaintiffs are owners of residential property located within 1,200 feet of residentially zoned property (the property) in Chicago. In 1954, the Chicago Zoning Board of Appeals granted a special use authorizing use of the property as a parking lot for private passenger automobiles for a nearby real estate business, with a seven-foot strip to be landscaped, and with bumper guards erected around the blacktopped area of the property. The complaint alleged further that on June 26, 1985, plaintiffs filed a complaint with the Chicago Department of Inspectional Services alleging improper use of the property, but the city took no action.

Count I alleged violations of this special use, including use of the property for commercial vehicles; use of the property for repair and washing of automobiles; failure to landscape a seven-foot strip; failure to erect bumper guards; and extension of the parking lot by eight feet. Count II alleged violations of zoning ordinances. Count III alleged additional violations of the 1954 special use decision. Count IV alleged discontinuance of the special use decision for more than six months, thus rendering it void pursuant to a Chicago zoning ordinance. Plaintiffs sought temporary and permanent injunctions, costs, and attorney fees.

Petrozzini and American National Bank subsequently filed a section 2—615 motion to dismiss. On August 31, 1988, the court granted the motion to dismiss, finding that section 11—13—15 of the Municipal Code “is inapplicable for the reason that the City of Chicago Zoning Ordinance is an exercise of the City's Constitutional home-rule power and is not an ordinance adopted under ch. 24, sec. 11—13—1.” The order also states that “plaintiffs’ second amended complaint fails to allege sufficient facts to confer standing to sue on plaintiffs.” On January 18, 1989, the trial court granted the city’s motion to file a memorandum in support of plaintiff’s motion for reconsideration. On June 1, 1989, the court denied plaintiffs’ motion for reconsideration. On June 30,1989, plaintiffs filed a notice of appeal.

Opinion

Defendants maintain that Chicago is a home rule unit, and that section 11—13—15 of the Illinois Municipal Code does not apply to home rule units. We disagree.

Section 11—13—15 authorizes “the proper local authorities of the municipality, or any owner or tenant of real property, within 1,200 feet in any direction of the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation *** may institute any appropriate action” to enforce ordinance or other regulations. Ill. Rev. Stat. 1989, ch. 24, par. 11—13—15.

Section 11—13—1 of the Illinois Municipal Code provides that any grant of authority under Division 13, entitled “Zoning,” does not apply to home rule units. (Ill. Rev. Stat. 1989, ch. 24, par. 11—13—1 (“This amendatory Act of 1971 does not apply to any municipality which is a home rule unit”).) Our supreme court, however, has held that similar language in Division 13 of the Municipal Code cannot be construed so as to deprive a home rule unit of power.

In City of Urbana v. Houser (1977), 67 Ill. 2d 268, 367 N.E.2d 692, a home rule unit instituted demolition proceedings under a Division 13 power. The statute’s final sentence read: “This amendatory Act of 1971 does not apply within the jurisdiction of any home rule unit.” (Ill. Rev. Stat. 1971, ch. 24, par. 11—31—1.) The court held that this language could not “be construed as amending the statute so as to deny a home rule unit powers given it by the Constitution of 1970.” City of Urbana v. Houser, 67 Ill. 2d at 272.

To hold otherwise “would authorize a non-home-rule unit to exercise a power prohibited to home rule units. *** [T]he framers intended home rule units to have greater powers than those of non-home-rule units.” (Isberian v. Village of Gurnee (1983), 116 Ill. App. 3d 146, 150, 452 N.E.2d 10, citing City of Urbana v. Houser, 67 Ill. 2d 268, 367 N.E.2d 692).) Such a classification would be “meaningless” and therefore unconstitutional. City of Urbana v. Houser, 67 Ill. 2d at 275.

Moreover, in City of Urbana v. Houser, the court held that, notwithstanding the possibility of the city’s obtaining demolition authority by ordinance (“[t]o empower itself, an ordinance would be necessary” (67 Ill. 2d at 271)), to grant non-home-rule units statutory demolition authority and deny that same statutory authority to home rule units “would establish an unconstitutional classification and is meaningless.” City of Urbana v. Houser, 67 Ill. 2d at 275 (construing Ill. Rev. Stat. 1975, ch. 24, par. 11-31-1).

In Wellington v. City of Chicago (1986), 144 Ill. App. 3d 774, 782, 494 N.E.2d 603, the court found that a pre-1970 statute granting authority to municipalities to impose taxes upon cab drivers remained effective even after the municipality became a home rule unit under the 1970 Constitution, and the court thereby rejected plaintiffs’ argument that such authority did not apply to home rule units.

“There is *** no apparent reason to find that the 1970 Constitution revoked pre-1970 municipal powers expressly granted by the General Assembly. Non-home-rule units have retained those pre-1970 powers [citations] and allowing for the ‘liberal construction’ mandated by the home rule section (Ill. Const. 1970, art. VII, sec. 6(m); [citation]) and the goal of granting greater power and autonomy to home rule units [citation], home rule units should not be denied pre-1970 municipal powers.” Wellington, 144 Ill. App. 3d at 783.

Similarly, in City of Carbondale v. Van Natta (1975), 61 Ill. 2d 483, 338 N.E.2d 19, the court held that the 1971 amendatory provision, which contained language identical to the section 11—13—15 language purporting to disclaim the applicability of the statute to home rule units, did not revoke a home rule unit’s extraterritorial zoning powers. “We can see no reasonable basis for differentiating between non-home-rule units so far as the power to zone extraterritorially is concerned.” 61 Ill. 2d at 490.

Furthermore, “[a]bsent this offensively unconstitutional classification, the remnant of the statute is independent. So long as the unconstitutional portion can be severed, the remainder may stand unless it can be said that the General Assembly would not have passed the statute without the invalid portion.” (City of Urbana v. Houser, 67 Ill. 2d at 275.) Here, section 11—13—15 was enacted prior to the 1971 amendment, which “dissipates any contention that the legislature would not have passed this statute without the sentence which we now strike.” City of Urbana v. Houser, 67 Ill. 2d at 275, citing City of Carbondale v. Van Natta, 61 Ill. 2d at 491.

In addition, section 11—13—15 was amended in 1953 to enlarge the class of plaintiffs and increase allowable costs; amended in 1969 to enlarge the types of ordinance violations encompassed therein; and amended in 1977 to enlarge the area within which private plaintiffs were required to reside in order to bring suit. (City of Chicago v. Westphalen (1981), 93 Ill. App. 3d 1110, 1130, 418 N.E.2d 63.) The legislature clearly intended to expand the statute’s scope. (Westphalen, 93 Ill. App. 3d at 1130.) It would be inconsistent with this legislative intent for us to find that no private actions under section 11—13—15 may be brought in municipalities functioning as home rule units.

Accordingly, we find that the City of Chicago’s status as a home rule unit does not deprive plaintiffs of the statutory authority conferred upon them by section 11—13—15. Thus, section 11—13—15’s grant of authority to adjacent landowners to sue for zoning violations remains in effect for property located in Chicago, notwithstanding Chicago’s status as a home rule unit.

Defendants also maintain that plaintiffs have failed to comply with section 11—13—15 by alleging that plaintiffs’ “property or person will be substantially affected by the alleged violation.” (Ill. Rev. Stat. 1989, ch. 24, par. 11—13—15.) We disagree. That same section explicitly provides: “An owner or tenant need not prove any specific, special or unique damages to himself or his property or any adverse effect upon his property from the alleged violation in order to maintain a suit under the foregoing provisions.” (Ill. Rev. Stat. 1989, ch. 24, par. 11—13—15.) Moreover, generally “it is the nature of the zoning violation itself that establishes the ‘substantial effect’ sufficient to enable an owner or tenant *** to maintain an action.” (Greer v. Illinois Housing Development Authority (1986), 150 Ill. App. 3d 357, 390, 501 N.E.2d 723, aff’d (1988), 122 Ill. 2d 462, 524 N.E.2d 561 (factual allegation that zoning ordinance violation “poses a substantial safety hazard” was found to be sufficient to withstand a motion to dismiss).) In the present case, plaintiffs have included very detailed factual allegations of the special use violations, e.g.:

“A. It is not used solely for the parking of private passenger automobiles.
B. It is being used by commercial ‘for hire’ vehicles engaged in the food delivery business.
C. A strip of land seven feet wide along the East property line was never landscaped, and
D. Bumper guards were not erected around the blacktopped area of the lot.”

Consequently, as in Greer, plaintiffs’ factual allegations setting forth the violations are sufficient to support plaintiffs’ cause of action.

Finally, defendants ask this court to “dismiss this case as being moot” on the basis that on June 29, 1989, the City of Chicago filed its own complaint for equitable and other relief, asking that defendants be restrained from using the property in question for the storage of automobiles.

The only relevant document in the record is a half-sheet which plaintiffs filed as a supplemental record pursuant to agreement of the parties. The half-sheet recites that the city “voluntarily dismissed” its action “with prejudice pursuant to compliance.”

In City of Chicago v. Westphalen, the court acknowledged the distinctive interests of private landowners apart from municipalities in having rights to enforce zoning ordinances. In Westphalen, both the city and private property owners brought suit to enforce building and zoning codes pursuant to section 11—13—15 of the Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 11—13—15). The appellate court rejected defendant’s assertion that in a 1971 case the trial court found defendant had complied with the applicable ordinance requirements. (Westphalen, 93 Ill. App. 3d at 1119-20.) The court held that the 1971 order merely dismissed the city’s earlier suit against defendant, which had also charged him with building violations. The court found that the earlier dismissal order did “not reflect a finding of specific fact or a determination of the issues,” and that nothing was “disclosed as to the substance of the dismissal,” and therefore concluded that there was no collateral estoppel effect. Westphalen, 93 Ill. App. 3d at 1120.

Furthermore, nothing in the statute indicates that the city and private individuals may only use their enforcement rights alternatively under section 11—13—15. “[W]e cannot adopt the defendant’s theory that the [plaintiffs] should be precluded from the judicial process because the [c]ity has also acted to enforce its ordinances,” since the interests of private parties are not necessarily coextensive with those of the city. (City of Chicago v. Westphalen, 93 Ill. App. 3d at 1130.) Thus, the filing of the city’s suit should not preclude suits by the neighboring landowners. See City of Chicago v. Westphalen, 93 Ill. App. 3d 1110, 418 N.E.2d 63.

Moreover, there is nothing in the record to indicate the basis upon which the city sought to voluntarily dismiss its suit with prejudice. The record fails to indicate whether the dismissal was based on full compliance, which might render the action by the private parties moot, or simply compliance with factors of paramount interest to the city.

The mootness issue was not considered in the trial court. There is little argued here by the parties or supported in the record to permit this issue to be determined in this appeal. Consequently, our decision here does not preclude the trial court on remand from determining whether the property is now in full compliance with all violations alleged in plaintiffs’ complaint.

Accordingly, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for further proceedings consistent with the holdings contained herein.

Reversed and remanded.

LORENZ, P.J., and McNULTY, J., concur.