text:
    LULA MARIE BROOKS, Plaintiff-Appellant, v. MYRIAM LEONARDO et al., Defendants (Roseland Community Hospital, Defendant-Appellee).
    First District (4th Division)
    No. 1 — 89—1156
    Opinion filed September 20, 1990.

      Georgette Nabhani, of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (Chad M. Castro, Hugh C. Griffin, and Nancy Shaw, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Lula Marie Brooks, filed a medical malpractice action against defendants Roseland Community Hospital, Dr. Myriam Leonardo-Wilson, and George Perez for injuries resulting from their medical treatment of her in June and July 1979. The court entered default judgments against Leonardo and Perez in the amount of $250,000, but granted summary judgment in favor of Roseland Hospital. The default judgments entered against the individuals are not involved in this appeal. Brooks requests this court to reverse the summary judgment in favor of Roseland and remand this cause for trial on the merits.

We affirm.

Background

In March 1979 Brooks learned that she was pregnant and began consulting with Dr. Myriam Leonardo for prenatal care and the delivery of her child. One month earlier, Brooks had suffered the tragedy of losing five of her eight children in a house fire.

In May 1979 Brooks was involved in an automobile accident and was treated at Jackson Park Hospital for a broken left foot and a threatened miscarriage. She was released after a few days, when the vaginal bleeding had stopped and her leg was set. She was then examined at Dr. Leonardo’s office and told that her fetus was in “good condition.”

In June and July Brooks went to the emergency room at Roseland on three occasions because she was concerned about renewed bleeding, or “spotting.” After each visit, Dr. Leonardo or George Perez (apparently Leonardo’s brother) examined her and told her that everything was fine.

On July 7, Brooks again went to Roseland’s emergency room and was admitted to the obstetric ward for tests and observations. These tests, which included an ultrasound, revealed that the fetus was dead and had been dead for some time. On July 10, 1979, Dr. Leonardo told Brooks that labor would be induced and on the following day, the fetus and placenta were dispelled from Brooks’ uterus after the induction of labor. No medical complications occurred as a result of this procedure, but because Brooks requested that a tubal ligation be performed, she was sterilized the following day. Brooks admitted that she signed the consent form but alleges in her complaint that her consent was ineffective because of her extreme mental distress and fatigue.

In her complaint, Brooks charges the hospital with negligence in failing to provide proper patient care, in the following ways: failure to diagnose pregnancy complications during her visits to the emergency room; permitting her to undergo the labor induction without a doctor in attendance; failing to provide a house doctor when her own doctor, Leonardo, was absent; performing a tubal ligation when Brooks was mentally unable to give proper consent to the sterilization; and permitting Dr. Leonardo to perform labor induction when the hospital knew that the doctor negligently had attempted to abort the live fetus of another patient, Cora Bey.

After the parties took discovery and were scheduled for trial, Roseland presented a motion for summary judgment, challenging the sufficiency of Brooks’ expert witness on the key issue of the deviation from the standard of care that the hospital owed Brooks. In addition, Roseland asserted that its liability for negligent sterilization was precluded by the fact that Brooks had signed the surgical consent form.

The trial court granted Roseland’s motion, holding that there was insufficient evidence of record to establish that Roseland had deviated from the standard of care; that there was no evidence that Roseland knew of the incident involving Dr. Leonardo’s treatment of Cora Bey; and that Brooks’ signature on the consent form raised a presumption of consent. The trial court expressed great sympathy for the plaintiff, but nevertheless found, after thoroughly reviewing the record and arguments, “[T]his is perhaps the clearest case for summary judgment that I have ever seen in recent times.” The court noted that Brooks’ own expert, Dr. Friberg, removed any issue of the hospital’s liability because he did not find that the hospital had deviated from the appropriate standard of care.

On motion to reconsider, counsel for Brooks emphasized that the hospital did not follow its own rules and regulations regarding her care and also presented further evidence regarding the Cora Bey incident. Specifically, there was a showing that the Illinois Department of Registration and Education had filed a complaint against Dr. Leonardo over her treatment of Cora Bey. The trial court, again expressing sympathy, denied the motion to reconsider, reiterating its belief that the circumstances presented “a clear case where summary judgment does lie.”

Opinion

Brooks argues that summary judgment was improper in this case under these circumstances: (1) Roseland deviated from its own patient care procedures and policies as set forth in its rules and regulations, and (2) Roseland failed to properly supervise its staff doctor, Leonardo, after the Cora Bey incident.

I

Regarding the standard of care that the hospital owed in this case, Brooks cites several rules that the hospital allegedly violated in treating her. Specifically, she notes that these rules require the presence of a doctor when labor is induced with Pitocin, the intravenous drug used in the pending case. The rules also state that the nursing staff is to monitor and record vital signs every 30 minutes during the induction of labor and “provide the obstetrical patient with continuous quality nursing for her and unborn child in which the physical and psychological needs of the patient are met” and to execute the “attending physician’s orders.”

Brooks claims that, according to the hospital’s records, Dr. Leonardo was neither in the hospital nor available for supervision of the labor induction process. She also suggests that the nurses’ observations of her condition occurred less frequently than required, although her expert witness, Dr. Friberg stated that the nurses’ notes were written correctly, according to the regulations of the hospital. The records also indicate that Dr. Leonardo was unavailable after she authorized the labor induction procedure and that the hospital’s doctor on call would not attend the patient. Brooks further argues that she was not given medication at the intervals described in the doctor’s orders.

Brooks argues that her grief over the dead fetus and fear over the labor induction process caused severe mental distress that was aggravated by the absence of a doctor during the process. She cites to deposition testimony of Dr. Friberg (for plaintiff) and Dr. Charles (for defendant), which supports the general proposition that the patient’s physician is the person primarily responsible for the care of the patient undergoing induction. She further contends that her consent to the tubal ligation was ineffective because of her extremely agitated state and the fact that a nurse obtained her signature just 10 hours after her delivery of the dead fetus. She states that she did not recall signing the form and cites the lack of notation in hospital records that personnel discussed the risks and consequences of tubal ligation with her. The form had a signature line for her husband, but apparently she did not discuss it with him and the hospital did not obtain his consent. There was a notation in Dr. Leonardo’s records that Brooks “agreed to a tubal ligation because of the trauma she had just been through.” She admitted in her deposition, however, that she requested the operation and signed the consent forms.

It is true that in considering the standard of care to which a hospital should be held, the hospital’s rules and regulations are an appropriate, though not the sole, source of evidence. (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 332, 211 N.E.2d 253, cert. denied, (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204; Edelin v. Westlake Community Hospital (1987), 157 Ill. App. 3d 857, 510 N.E.2d 958) (unescorted patient’s fall in hospital lobby following her discharge violated hospital administrative policies; negligence action against hospital was based upon breach of an administrative duty, not medical malpractice requiring expert testimony on matters involving medical judgment).) In the pending case, however, both medical experts testified that Roseland’s medical care was appropriate. When deviation from the standard of care depends on expert testimony, as it does in this case, there must be a showing that defendant’s conduct was unacceptable in the medical community. It is insufficient to “establish a prima facie case merely to present testimony of another physician that he would have acted differently from the defendant, since medicine is not an exact science. It is rather a profession which involves the exercise of individual judgment within the framework of established procedures.” Walski v. Tiesenga (1978), 72 Ill. 2d 249, 261, 381 N.E.2d 279, 285.

In the pending case, the record contains substantial evidence regarding the standard of care, the most significant being the. opinion testimony of both parties’ expert witnesses. Dr. Friberg, Brooks’ witness, admitted that the fetus was dead, presumably at the time Brooks, was admitted to Roseland, and that any failure to diagnose the fetal demise at an earlier time had no effect on the cafe and treatment of Brooks. He was asked questions regarding each phase of the labor induction process and found no impropriety in (1) the manner in which the Pitocin was administered; (2) the dosages of medications administered; (3) the delivery of the fetus in the hospital bed rather than a delivery room; (4) the monitoring of the nursing staff (“adequate”); (5) or the overall delivery of the fetus and removal of the placenta. Regarding the need for the doctor’s presence while the labor was being induced, Dr. Friberg noted that rules regarding a doctor’s presence were related to a live birth and that he “would not directly say that [the physician’s presence was] absolutely mandatory under the present circumstances.”

The rules and regulations of the hospital, some of which appear of record, set out general policies and procedures to guide hospital staff on their department and patient care responsibilities. On the specific topic of induced labor, nothing in these rules expressly refers to situations in which the induction of labor is necessary because of fetal demise. While it is not our role to interpret the hospital’s internal policies and procedures in a general fashion, we find nothing from which to infer that the procedures for delivering a live fetus were intended to impose a particular standard of care for the removal of a fetus known to be dead at the time of labor induction. The requirement of a physician’s presence, while perhaps desirable in any induced labor situation, is more compelling when a live baby is being delivered. In the hospital’s written procedures regarding induced labor there are many references showing concern for the health of the fetus, such as the need for constant fetal monitoring and a directive to alert the physician in the presence of such conditions as “fetal bradycardia, tachycardia or heart irregularity.” While the mother’s well-being is certainly important also, the presence and attendance of a physician during induced labor is directly related to the imminent birth of a live fetus. While we are not implying that the availability of a doctor for the mother’s well-being is unimportant, we do not find that the hospital rules afford a basis for inferring that Roseland deviated from the standard of care in this case. This is particularly true in light of Dr. Friberg’s statement that the presence of a physician was not mandatory under the circumstances.

Moreover, there is no affirmative evidence in the record that the presence of Dr. Leonardo (or any other doctor) would have affected the treatment of the patient, her health, or the outcome of the medical procedures. That a patient may feel better with her doctor at her side does not rise to medical malpractice against the hospital. To Brooks, the emotional distress she suffered may have been as painful as any physical suffering. Nevertheless, a hospital is not generally responsible for the treating physician’s medical decisions. (See Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 714, 399 N.E.2d 198) (holding that the hospital could not be held liable for the acts of the emergency room doctor who was not employed or paid by the hospital; reversing summary judgment against hospital on other grounds).

It appears that much of Brooks’ emotional distress was related to her particular history, the tragic deaths of her other children, a sister’s death during labor, and the fact that Dr. Leonardo had not earlier discovered that her fetus had died. There is no evidence that Roseland knew of these facts, assuming their relevance to the legal issues, or that Roseland failed to provide Brooks with adequate nursing care during her stay.

Regarding the effectiveness of her consent to the tubal ligation, we do not find the existence of a legal duty under the circumstances. Brooks requested the elective surgery; it was not forced upon her. She signed the consent form, presumably aware of the permanency of sterilization. While there is nothing of record to indicate what discussions were had concerning the tubal ligation, it is uncontested that she was the one who initiated the surgery. Undoubtedly, Brooks was distraught over her ordeal. It would have been preferable if she had fully consulted with her husband or otherwise given herself some time to reconsider her decision. Nevertheless, we cannot infer from this record that she was acting in a hysterical manner or otherwise lacked the rational ability to put the hospital on notice that her request for the surgery and her signed consent should be questioned or disregarded. See Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 524, 513 N.E.2d 387, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077 (treating physician, rather than hospital, determines the extent of warnings to be issued to a patient regarding risks involved in treatment).

We conclude that Brooks has not sustained her burden of establishing a prima facie case of malpractice against Roseland for failing to earlier diagnose the fetal demise; for failure to ensure a doctor’s presence during the induction of her dead fetus; or for failure to prevent her from consenting to undergo a tubal ligation.

II

Brooks also raises a theory of negligent supervision, asserting that Roseland Hospital knew or should have known of Dr. Leonardo’s alleged mishandling of Cora Bey’s medical treatment. She alleges that Dr. Leonardo had negligently attempted to abort the live fetus of Cora Bey three months before the doctor ordered induction of labor for Brooks. According to Brooks, Roseland was thus on notice of Dr. Leonardo’s error. As part of her defense to the summary judgment proceedings, Brooks presented what is referred to in the record as “a certification from the Department of Professional Regulation” with “a complaint filed by the Department of Registration and Education *** against Doctor Myriam Wilson [Leonardo].” Accordingly, she argues that Roseland should be held liable for negligent supervision of Dr. Leonardo in the pending case.

Generally, the malpractice of a treating physician will not be imputed to the hospital, at least where there is no evidence that the doctor was acting as an agent of this hospital. (Pickle v. Curns (1982), 106 Ill. App. 3d 734, 435 N.E.2d 877; Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1014-15, 498 N.E.2d 867, appeal denied (1987), 113 Ill. 2d 573, 505 N.E.2d 352 (hospital may be negligent if it knowingly allows an incompetent doctor to practice).) In the pending case, Brooks not only presumes the malpractice of Dr. Leonardo in the Cora Bey incident but she further presumes Dr. Leonardo’s negligence in the pending case. She then asserts that because the Cora Bey incident occurred three months before her own treatment, the hospital was on notice of Dr. Leonardo’s negligence; therefore, Roseland was negligent in either allowing her to practice or in failing to closely supervise Dr. Leonardo’s treatment of Brooks.

We cannot agree that such a tenuous theory creates an issue of fact for the jury under the circumstances of this case. Roseland points out that the complaint filed against Dr. Leonardo was filed in 1981, two years after the incident involved in the pending lawsuit. Argument of counsel in the transcripts of record indicates that Cora Bey made the initial report to the Department of Registration and Education on June 4, 1979. Although the Department was thereby on notice in June, there is no evidence to establish that the hospital had been notified of any complaint or investigation at that time.

We do not find that the April 1979 occurrence of an alleged incidence of negligence on Dr. Leonardo’s part, without more, constitutes notice to the hospital that the doctor should have been disciplined or closely supervised. There is no evidence of record that Dr. Leonardo was suspended from practice or lost her hospital privileges. Nor is there support for the suggestion that Roseland was fully apprised of the facts involved in Cora Bey’s mishap in July 1979, when Brooks was being treated by Dr. Leonardo.

It is plaintiff’s burden to establish sufficient evidence on all elements of her case to survive a motion for summary judgment. We agree with the trial court in this case that Roseland Hospital is not liable in medical malpractice for the alleged injuries that Brooks suffered while a patient of Dr. Leonardo’s at the hospital. Accordingly, we affirm the trial court’s entry of summary judgment in favor of the hospital.

Affirmed.

McMORROW, P.J., and JIGANTI, J., concur.

      The actual complaint against Dr. Leonardo does not appear of record, nor can we locate Brooks’ response to Roseland’s motion for summary judgment and motion to reconsider, although they are listed in the table of contents to the supplemental record on appeal.


source: Caselaw Access Project

author: JUSTICE GORDON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAUL FERNANDEZ, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 89—1794
    Opinion filed September 21, 1990.

      George S. Pfeifer, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Walter P. Hehner, Renee Goldfarb, and Candace A. Williams, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant was found guilty of possession of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103(a)(1)) and sentenced to 30 months’ probation. In this appeal, defendant contends that his conviction must be reversed because the State failed to prove that the car allegedly in his possession was the one set forth in the indictment.

The record shows that defendant was charged with burglary and possession of a stolen motor vehicle, i.e., a “1984 Mazda *** the property of Susan Haerr knowing it to have been stolen and converted.” (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1; ch. 951/2, par. 4— 103(a)(1).) At trial, the parties stipulated that if Susan Haerr were called as a witness, she would testify that she owns a 1984 Mazda, vehicle identification number (VIN) JM1FB3324EQ83Q894, and, on March 18, 1988, had not given anyone permission to be in possession of it.

The further evidence presented by the State showed that Ann Basye rented one space in her two-car garage to Michael Meskin, whom she had known for some time. In early March 1988, she saw a red Mazda RX7 parked in his space, and, although she thought this was unusual, she was not unduly concerned about it until she noticed that the car was being dismantled day by day and that there were strangers in her garage. She expressed her concern over this situation to defendant and Meskin when they came to her home on March 18, 1988. On that occasion defendant told her that they were involved with “big time car thieves,” and that they would get the car out of the garage if she would not call the police. Later that evening, however, she saw several men, including defendant, taking objects out of the car into the alley. She suspected that these objects were pieces of the car since there was nothing else in the garage, and she called police. When they arrived, she accompanied them to the garage, where she observed that the car had been stripped to the chassis.

Defendant testified that he received a telephone call from Meskin asking for his help in getting a red Mazda out of a garage. After some discussion, defendant agreed to arrange a truck rental to remove the car, and admitted that when he made this arrangement he knew that the truck was going to be used to move a stolen car. Defendant also admitted that he accompanied Meskin to the designated area, where he talked to the owner of the garage and saw the completely stripped Mazda inside, but he denied any actual participation in the dismantling or physical removal of the car and stated that he left the area just after he drove Meskin’s car there.

At the close of the State’s case in chief, the court denied the defense motion for a directed finding based on the failure of the State to present evidence that the car owned by Ms. Haerr was the one in defendant’s possession. The court also denied defendant’s post-trial motion in which he asserted that the State failed to present evidence to show that Ms. Haerr’s car was stolen and not in her possession, then sentenced defendant on his conviction of possession of a stolen motor vehicle to 30 months’ probation.

In this appeal, defendant contests the sufficiency of the evidence to sustain his conviction contending solely that the State failed to present any evidence that the motor vehicle named in the indictment was the one recovered and allegedly in his possession. The State disputes that claim, asserting that all of the elements of the offense were proven to the requisite standard and that the identity of the car was established by the stipulation.

The crime of possession of a stolen motor vehicle occurs where a person who is not entitled to the possession of a vehicle or part thereof receives, possesses, conceals, sells, disposes or transfers it knowing it to have been stolen. (Ill. Rev. Stat. 1987, ch. 95V2, par. 4 — 103(a)(1).) To sustain a conviction for this offense the State must prove beyond a reasonable doubt that defendant was in possession of a motor vehicle, that the vehicle was stolen, and that defendant knew that the vehicle was stolen. (People v. Tucker (1989), 186 Ill. App. 3d 683, 542 N.E.2d 804.) Possession and knowledge are questions of fact to be resolved by the trier of fact, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the findings or so unreasonable, improbable or unsatisfactory that it raises a reasonable doubt of defendant’s guilt. People v. Santana (1987), 161 Ill. App. 3d 833, 515 N.E.2d 715.

In the case at bar, the court did not set out any specific findings of fact in announcing its decision; but as indicated in the brief synopsis above, the court twice rejected defendant’s assertions regarding the identity matter and finally concluded that the evidence was sufficient to establish the elements of the offense. We agree that there is ample evidence in the record to show that defendant was well aware of the stolen nature of the vehicle in Ms. Basye’s garage (see People v. Mijoskov (1986), 140 Ill. App. 3d 473, 488 N.E.2d 1374; People v. Williams (1976), 44 Ill. App. 3d 143, 358 N.E.2d 58) to establish the element of knowledge, and also that defendant at least shared “joint possession” of the vehicle with the others who played a more direct role in the enterprise. (People v. Santana, 161 Ill. App. 3d 833, 515 N.E.2d 715.) At issue, however, is whether the State’s evidence sufficiently established that the car in the garage was the one described in the indictment.

In support of his position that it did not, defendant cites People v. Hope (1979), 69 Ill. App. 3d 375, 387 N.E.2d 795, and People v. Stone (1979), 75 Ill. App. 3d 571, 394 N.E.2d 810, where defendants’ convictions were reversed because this nexus was not made. We find these cases distinguishable, however, since Stone was a theft prosecution, and in Hope, where defendant’s convictions for both theft and possession were reversed, it was not clear whether the appellate court had imposed a requirement of proof of ownership on the charge of possession of a stolen motor vehicle. (See discussion in People v. Balthazar (1989), 187 Ill. App. 3d 964, 967-68, 543 N.E.2d 994, 996-97.) Notwithstanding these distinctions, we find merit in defendant’s contention that the link between the two vehicles was not sufficiently established in this case to sustain his conviction.

In a prosecution for possession of a stolen motor vehicle, the State need not prove specific ownership of the vehicle, but only that someone other than defendant had a superior interest in the property, and this factor may be established by circumstantial evidence and the reasonable inferences therefrom. (People v. Tucker, 186 Ill. App. 3d 683, 542 N.E.2d 804.) In the case at bar defendant was charged with possession of a 1984 Mazda belonging to Susan Haerr. At trial, Ann Basye testified that she observed a red Mazda RX7 in her garage which was being stripped of its parts, and defendant testified to his observation of a red Mazda in the same place and condition when he responded to Meskin’s call for help in removing it. In addition, the parties stipulated that Ms. Haerr owned a 1984 Mazda with the particular VIN detailed above in the synopsis of facts, and that she had not given anyone permission to possess it on March 18, 1988. The State maintains that this stipulation established that the Mazda set forth in the indictment was the one in defendant’s possession. We agree with defendant that it does not.

Although our research indicates that the amount of proof required to establish a sufficient nexus has become less exacting (see, e.g., People v. Brown (1989), 184 Ill. App. 3d 277, 540 N.E.2d 782; People v. Williams (1986), 143 Ill. App. 3d 658, 493 N.E.2d 362), we find in this case that the identification evidence was too tenuous to support defendant’s conviction for possession of a stolen motor vehicle. It appears from the transcript that this link was inadvertently omitted; however, in the absence of sufficient evidence to identify the car in the indictment to the one in the garage, or some “chain of custody testimony” from which a proper inference of identification might be drawn (see People v. Balthazar, 187 Ill. App. 3d 964, 543 N.E.2d 994), we must conclude that the State failed to meet its burden in this case and therefore reverse the judgment entered by the circuit court of Cook County.

Judgment reversed.

COCCIA, P.J., and LORENZ, J., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISAAC SNULLIGAN, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 87—3653
    Opinion filed September 21, 1990.

      Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Kenneth T. MeCurry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Isaac Snulligan was convicted of delivery of a controlled substance after a bench trial. After a hearing in aggravation and mitigation, he was sentenced to seven years’ imprisonment with the Illinois Department of Corrections.

Isaac Snulligan (Isaac) appeals his conviction and seven-year sentence for the crime of delivery of less than 10 grams of cocaine. (Ill. Rev. Stat. 1983, ch. 56V2, par. 1401(c).) The crime occurred on January 30, 1986. ,The conviction was entered on January 30, 1987. Notice of appeal was not filed until December 1987. Final briefs were not filed until June 1990 with a request for oral argument.

Isaac claims due process violations and the failure of the State to prove its case against him beyond a reasonable doubt.

For the following reasons, we affirm Isaac’s conviction and sentence.

The facts surrounding the crime are best described in a Rule 23 order (107 Ill. 2d R. 23) entered by this court in an appeal taken by Isaac’s brother Bernard, who was tried simultaneously with Isaac. The facts as presented in People v. Snulligan, No. 1 — 87—1647, are as follows:

“On January 1, 1986, at approximately 7:00 p.m., police officer James Jones went to the third floor of an apartment building at 3549 West Madison in Chicago with other police officers in order to make a controlled purchase of narcotics. While standing in the dark third-floor hallway, Jones knocked on the apartment door. Isaac Snulligan responded by pulling up a flap in a 12-inch by five-inch slot in the front door. Jones asked for a ‘quarter bag of girl,’ and said that he saw the defendant give Isaac a blue plastic bag containing white powder later shown to contain cocaine. Jones then passed a prerecorded $20 bill, which had been dusted with tracing powder, through the door slot, but the defendant then told him the price was $25. Jones then pushed an additional dusted prerecorded $10 bill through the slot, and the defendant gave him $5 in change.
Upon receiving the plastic bag, Jones went outside the building to watch the apartment windows. On the way down, he saw other police officers ascending the stairs to the third floor. While downstairs, Jones saw Isaac throw another plastic bag containing three small packets out of the third-floor window. Jones recovered the bag when it hit the ground. The content of these packets also was cocaine. Jones testified that he dusted the purchase money with tracer powder, although he admitted that Officer Patricia Warner was near him at the time.
Officer Warner testified that she photographed and dusted the police money used in the narcotics sale, and said that she took it to the apartment building. She saw Officer Jones take the marked money into the building with him. After several minutes she saw Jones come out of the building with a clear plastic bag which contained a powdered substance.
While Jones waited outside the building, Officer Warner and other officers went to the third floor where she knocked on the apartment door. A person answered, but no one inside opened the door. Warner then announced their office, and Officer Sarpoleous used a sledge hammer to remove the burglar gates and lock from door. Upon entering they arrested Isaac Snulligan; however, they found more burglar gates inside barring them from the back of the apartment. When these gates were removed, she saw the defendant at the rear of the apartment with two other people. Warner said there were several sets of gates, but only two of them were locked. The officers recovered $460 from a couch, $30 of which was the prerecorded and dusted money from the police contingency fund. Traces of the dusting powder showed up on the hands and faces of the defendant and Isaac Snulligan.
Defendant’s younger brother, Canute Snulligan, testified that his girl friend, Elisha Davis, was the lessee of the apartment and had moved into it three months earlier when the apartment’s front door was practically new and there was no slot in it. Canute said that he and his two brothers were at the rear of the apartment when there was a knock at the door, and Elisha came back to ask for $5 change which he gave to her. Shortly thereafter, Elisha ran to the rear of the apartment saying that the police were at the door. Canute said that he stuffed all the money which had been on his person into a nearby couch, including the $30 he had gotten from Elisha a few moments earlier and opened the gates to the rear of the apartment to permit a search of the premises. Canute then said that since January 1, 1986, the apartment had not been repaired nor had anyone lived in it.”

Bernard was found guilty of delivery of the cocaine and sentenced to a term of five years.

Isaac does not dispute these basic facts but argues that his conviction for delivery of cocaine should be reversed because:

(1) The trial judge improperly took judicial notice of certain facts.
(2) The trial judge improperly placed the burden of proof.
(3) He was not proven guilty of delivery of a controlled substance beyond a reasonable doubt.

Isaac Snulligan alleges that the court repeatedly and improperly took judicial notice of alleged facts supporting the State’s theory of the case and as a result Isaac Snulligan was denied the fair trial he was entitled to under the due process clause of the fourteenth amendment. It is well established that courts in Illinois may take judicial notice of that which everyone knows to be true. People v. Cain (1973), 14 Ill. App. 3d 1003, 1006, 303 N.E.2d 756, 758.

Isaac claims that the comments of the trial judge concerning the light at the time of the event, tracing powder, and Isaac’s height made at trial denied him a fair trial as guaranteed by the due process clause. Isaac did not raise the issue of the judge’s comments when the judge made them or in a post-trial motion, but rather claims the comments were plain error, relying on the theory that the court improperly took judicial notice of facts contrary to the law of evidence. Isaac does not dispute the fact that he was involved in the illegal drug transaction. His argument and defense were that a third party was the actual deliverer of the drugs.

While Officer Jones was being questioned about the lighting, and the discrepancy between his testimony and Warner’s, the court stated the following:

“THE COURT: Seven o’clock, on January the 1st, I think they would have some light or they would be working in the dark. Okay.”

The following is the pertinent testimony concerning the substance referred to as tracing powder.

“MR. FRANKS: Judge, I am going to object at this time to calling it [is] tracing powder.
THE COURT: Well, I think the judge knows what it mean[s].
MR. FRANKS: I have no objection to saying powder, but to say it is a tracing powder—
THE COURT: We learned what that was, 40 years ago in the Army. Before then, I studied at the police lab. So I think we know what he is talking about.”

Defense counsel sought to establish the height of all the individuals arrested in the apartment. This was done in an attempt to show the improbability of the alleged door slot as having been placed as high as Officer Jones alleged it to have been. On cross-examination, Officer Jones stated that defendant was five feet three inches tall. Following this testimony the court examined the information file and announced, “I can take judicial notice of the court file. The court file states five foot five.”

The comments of the trial judge concerning the lighting on the date and time of the event as well as defendant’s height only went to whether the police officer’s identification of Isaac’s participation in the event was accurate. The judge’s comments on tracing powder only demonstrated the judge’s knowledge of what tracing powder was. The only issue concerning tracing powder appears to be which officer took the powder and placed it on the currency involved in the drug transaction which was the basis of the prosecution. Since the judge’s comments complained of did not prejudice the defendant, we can find no reason to reverse the trial judge on that account.

In fact, a trial judge or any judge should not make any comment during a trial unless the law compels him to if he aspires to be a supreme court judge or reelected. No judge was ever denied appointment, election, or even reversed by something he or she did not say. Many have gotten into serious problems by something they did say.

As a matter of law a judge’s comments constitute reversible error only if the remarks he or she made during the trial prejudice a party or a party was harmed by the remark. (People v. Wells (1982), 106 Ill. App. 3d 1077, 435 N.E.2d 688.) It is the defendant’s burden to show that he has been harmed by the remarks of the judge. (People v. Wells (1982), 106 Ill. App. 3d 1077, 436 N.E.2d 688.) Prejudice or harm can be shown where a trial court expresses a disbelief in the defense witness testimony or confidence in the credibility of the prosecution or an assumption of defendant’s guilt. (People v. Sprinkle (1963), 27 Ill. 2d 398, 189 N.E.2d 295.) Nothing in the trial judge’s comments now complained of indicate how the defendant was prejudiced.

The same conclusion must be reached with respect to Isaac’s contention that the trial judge improperly placed the burden of proof on the defendant, rather than the State. Isaac alleges that during closing arguments the court improperly placed the burden of proof on him by questioning his failure to produce the testimony of the actual individual who was selling narcotics in addition to his failure to produce diagrams and photographs of the premises and as a result Isaac was denied his basic fourteenth amendment right to be presumed innocent.

The defense attorney theory at trial was that others in the apartment where Isaac was arrested had sold drugs, but that Isaac had not. Specifically, the defense presented testimony that Elisha Davis, the tenant of the apartment, was the pusher. As defense counsel argued this theory, the following remarks were made:

“THE COURT: I was wondering what happened to Elisha?
MR. FRANKS: Judge, the State wanted to put on Elisha, they certainly could.
THE COURT: I thought that was your Defense?
MR. FRANKS: You want me to put on Elisha Davis to admit she committed this crime, is that what you want me to do?
THE COURT: That is your theory of the case.
MR. FRANKS: You are suggesting that I could put Elisha Davis on?
THE COURT: I didn’t hear from Elisha.
MR. FRANKS: She is the guilty party, Judge, that is why she did not testify.
THE COURT: If that is your argument, okay.”

Where a defendant injects into his case his activities with others for the purpose of proving his innocence, failure to produce such a person as a witness is a proper subject for consideration. (People v. Tervin (1974), 23 Ill. App. 3d 409, 318 N.E.2d 656.) A reading of the court’s statement as a whole does not indicate that the failure of Elisha Davis to testify was a substantial factor leading to Isaac’s conviction. The State produced Officer Jones, who testified as an eyewitness to the occurrence. Officer Warner corroborated many details of Officer Jones’ testimony.

During its case, the State had presented the testimony of Officer Jones that from outside the building he witnessed Isaac throw a bag of cocaine out of one of the windows into the front of the apartment. Officer Warner testified that when the police forced their way into the apartment, Isaac was by the front door. Canute Snulligan testified that Isaac was in the rear of the apartment behind locked burglar bars. Isaac contends that the following statements made by the trial judge during defense counsel’s closing argument impermissibly placed the burden of proof on the defendant.

“THE COURT: Well, we have the testimony of Officer Warner that when they kicked in the door, sledge hammered it, Isaac was next to door.
MR. FRANKS: That was her testimony.
THE COURT: They broke in the back and they found another Snulligan and a female, Bernard. Bernard, Canute and then Elisha were in the back but Isaac was standing by the door. That is Officer Warner’s testimony.
MR. FRANKS: Judge, I am standing approximately six feet from that wall. Again, I have been in that apartment. If you look from six feet away from that wall of that apartment — .
THE COURT: Why didn’t you take some pictures?
MR. FRANKS: Judge, all I am doing is arguing.
THE COURT: Or a diagram?”

The defendant, Isaac Snulligan, argues that the judge’s comments about the failure of defense counsel to produce a picture or a diagram of the apartment where the event occurred in effect imposed the burden of proof on Isaac rather than on the State. The preceding comments came during the final argument of Isaac’s counsel while the judge was questioning the lawyer. Had the comments been made before a jury there may be some merit to Isaac’s argument. However, this was a bench trial, not a jury trial. Nothing in the judge’s comments indicates that the trial judge had concluded defendant’s guilt or improperly imposed the burden of proof on the defendant.

In his last point Isaac Snulligan alleges that he was not proven guilty of delivery of a controlled substance beyond a reasonable doubt. Isaac asserts that the testimony offered by the State concerning the officer’s ability to identify him as the man who sold drugs was improbable and contradicted by the physical evidence.

Isaac contends that his presence during an.arrest in an apartment not his own where he was not in possession of marked money did not establish his guilt beyond a reasonable doubt. He maintains that Officer Jones’ testimony was contradictory and unworthy of belief, and therefore there is a reasonable doubt that he participated in the alleged controlled drug purchase.

It is the function of the trial court as the trier of fact to evaluate the credibility of the witnesses, and its finding of guilty will be disturbed only where the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to the defendant’s guilt. (People v. Durley (1972), 51 Ill. 2d 590, 593, 283 N.E.2d 882, 884.) In deciding whether the defendant abetted the commission of delivery of cocaine, the trial court is entitled to consider not only the defendant’s presence at the scene of the crime, but also his failure to oppose or disapprove its commission and his close affiliation with others known by him to be involved in the crime. People v. Schlig (1983), 120 Ill. App. 3d 561, 570, 458 N.E.2d 551, 554.

In a bench trial the judge has the duty of determining the credibility of the witnesses and the weight to be given their testimony, and a reviewing court will not substitute its judgment for that of the trial judge. (People v. Brisker (1988), 169 Ill. App. 3d 1007, 523 N.E.2d 1191, appeal denied (1988), 122 Ill. 2d 580, 530 N.E.2d 251.) A reviewing court is bound to consider all the evidence in a light most favorable to the prosecution and then it must determine whether any rational trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The credibility of the witnesses and the weight to be accorded their testimony are matters within the province of the trier of fact, and its determination is entitled to great weight. People v. Jones (1988), 174 Ill. App. 3d 737, 528 N.E.2d 1363.

Here, the discrepancies in the testimony of Officers Jones and Warner were not of major consideration where the evidence showed that these officers worked together in setting up a purchase of a controlled substance. Whether the hallway was lit or unlit, whether there was a slot in the hallway door or a hole where the doorknob had been, and whether the plastic bag of narcotics was blue or clear in color are not of significant importance where it is shown that there was a close affiliation between the persons in the apartment; that Officer Jones saw the defendant and his brother Bernard negotiate the sale at the apartment door; that when Officer Warner entered the premises, Isaac was behind the apartment door; and that both Isaac and Bernard were present at the scene of the crime which was corroborated by the presence of traces of tracer powder from the marked money on their hands and on their faces.

The testimony of one eyewitness is sufficient to support a conviction, provided the viewing of the accused was under such circumstances as would permit positive identification and the witness is credible; this is so even where the witnesses’ testimony is contradicted by the accused. (People v. Nightengale (1988), 168 Ill. App. 3d 968, 523 N.E.2d 136.) It is for the trier of fact to determine credibility of witnesses and to accept or reject as much of the witnesses’ testimony as it pleases, and a reviewing court will not substitute its judgment for that of the trier of fact on questions involving the credibility of witnesses. (People v. Thurman (1983), 120 Ill. App. 3d 975, 458 N.E.2d 1038, aff'd in part & rev’d in part (1984), 104 Ill. 2d 326, 472 N.E.2d 414.) During a bench trial it is the duty of the trial judge to determine the credibility of witnesses and the weight to be given their testimony, and where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact who heard the evidence. (People v. Davenport (1988), 176 Ill. App. 3d 142, 530 N.E.2d 1118.) Here, the trial judge concluded that Officers Jones and Warner were the more credible witnesses. We find that there is ample evidence to establish the defendant’s guilt.

For the foregoing reasons, we affirm the judgment of the circuit court.

Judgment affirmed.

COCCIA, P.J., and GORDON, J., concur.


author: JUSTICE WOODWARD

text:
    SQUARE D COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Doris Durso, Appellee).
    First District (Industrial Commission Division)
    No. 1 — 89—2197WC
    Opinion filed September 21, 1990.

      Roddy, Power & Leahy, Ltd., of Chicago (John H. Guill and Robert J. Doherty, Jr., of counsel), for appellant.
    Cohn, Lambert, Ryan, Schneider & Harman, Ltd., of Chicago (Stanford L. Lambert, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Respondent, Square D Company, appeals from an order of the circuit court of Cook County which confirmed the Industrial Commission’s (Commission’s) award to claimant, Doris Durso. Employer raises one issue on appeal, namely, the Commission’s decision contained no specific findings of fact and conclusions of law as required by section 19(e) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(e)).

In claimant’s application for adjustment of claim she alleged that while working for employer on April 10, 1985, she suffered injuries to her lower back and leg, assembling an APA panel. On September 22, 1986, this case was heard before an arbitrator. After hearing all of the testimony and reviewing all of the evidence presented at arbitration, the arbitrator found that an employee-employer relationship existed between respondent and claimant and that respondent was operating under and subject to the provisions of the Act; that claimant was entitled to medical expenses of $18,293.78 based upon the testimony of Dr. Carson and the records of Humana Hospital; that petitioner was temporarily totally disabled from April 10, 1985, to September 26, 1986, based upon the testimony of claimant and Dr. Carson; that claimant was not entitled to penalties and attorney fees based upon the testimony of Cheryl Hoiseth, respondent’s rehabilitation counselor, and Dr. Wasserman. The arbitrator found that claimant was entitled to a period of 75eh weeks of temporary total disability (TTD) payments.

The Commission issued a preliminary decision on review wherein it stated that “the Decision of the Arbitrator is Modified: T.T.D. on Review from 9-23-86 to 8-27-87.” The remainder of the arbitrator’s decision was affirmed. Respondent filed a request for full written decision, which the Commission issued on August 18, 1988. In this decision, the Commission entered an order for temporary total compensation of 123 weeks at $256.01 and medical bills of $18,293.78. It remanded the cause to the arbitrator for further proceedings. As the basis of its reasoning in this decision, the Commission stated that it had “considered the entire record.” Respondent filed its appeal to the circuit court of Cook County, which confirmed the Commission’s award, and this appeal followed.

Respondent argues that section 19(e) of the Act compels the Commission to set forth specific findings of fact and conclusions of law. The statute reads in relevant part:

“At the request of either party or on its own motion, the Commission shall set forth in writing the reasons for the decision, including findings of fact and conclusions of law separately stated. *** The Commission may adopt in whole or in part, the decision of the arbitrator as the decision of the Commission. When the Commission does so adopt the decision of the arbitrator, it shall do so by order. Whenever the Commission adopts part of the arbitrator’s decision, but not all, it shall include in the order the reasons for not adopting all of the arbitrator’s decision.” Ill. Rev. Stat. 1987, ch. 48, par. 138.19(e).

A number of cases, while not directly on point, indicate how courts of review have dealt with similar issues. In Guardian Electric Manufacturing Co. v. Industrial Comm’n (1973), 53 Ill. 2d 530, employer argued that the circuit court erred in refusing to hold the Commission’s failure to find specifically on all questions of law and fact was an abuse of discretion and a violation of employer’s due process and equal-protection rights. At the time Guardian was decided, section 19(e) provided that the Commission could, in its discretion, find specifically upon questions of fact and law submitted to it. The Guardian court held that the Commission had not abused its discretion in failing to find specific questions of law and fact, the court reasoned that the arbitrator, whose decision was confirmed by the Commission and constituted its decision, in effect, had made findings sufficient to support the Commission’s decision.

In Great Plains Gas Co. v. Industrial Comm’n (1984), 101 Ill. 2d 122, respondent contended that the Commission’s omission of any conclusions of law in its decision amounted to a failure to comply with its statutory duty. Claimant responded by asserting that the Commission might have determined that there were no questions of law to be decided other than those answered implicitly by the Commission’s decision that petitioner’s injuries were compensable under section 8(d)(2). (Great Plains, 101 Ill. 2d at 127-28.) The Great Plains court found that, on the record before it, the failure of the Commission to state a separate conclusion of law did not require the decision to be set aside. Both Great Plains and Guardian Electric Manufacturing lend support to the proposition that the Commission’s failure to state specific findings of fact and conclusions of law does not always necessitate the setting aside of its decision.

Further, claimant argues that the arbitrator cited specific testimony to support each of her conclusions. Claimant points out that the Commission’s decision, which affirmed most of the arbitrator’s decision, provides an explanation for the single change, namely, the extension of TTD benefits from lbeh weeks to 123 weeks (April 10, 1985, to August 21, 1987). This change was based on progress notes written by Dr. Irwin Carlson, claimant’s orthopedic surgeon, submitted at the hearing in review. Dr. Carlson had last seen claimant on August 21, 1987, at which time he found her still disabled.

On the record before us, we find that the Commission implicitly adopted the arbitrator’s findings of fact and conclusions of law. The arbitrator addressed each of the issues, namely, causal relation, TTD, medical expenses, and penalties. The arbitrator made findings of fact and conclusions of law with regard to each issue, with the exception of the penalties and attorney fees issue, which did not require a conclusion of law due to the finding of fact which found that claimant was entitled to neither. The Commission’s statement, that it had considered the entire record before it, implies that it adopted the arbitrator’s findings of fact and conclusions of law, with the exception of extending the TTD benefit period from 756/7 weeks to 123 weeks, based upon Dr. Carlson’s progress note dated August 21, 1987.

We conclude that the Commission met the statutory requirements delineated in section 19(e) of the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(e).) In so holding, we suggest that in the future, the Commission, when adopting the arbitrator’s findings of fact and conclusions of law, explicitly state as much in order to obviate the need for this type of appeal.

We affirm the circuit court’s order confirming the Commission’s decision.

Affirmed.

BARRY, P.J., and McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD GORDON, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 87—1336
    Opinion filed September 24, 1990.

      Michael J. Pelletier and Nan Ellen Foley, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Peter T. Petrakis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Gerald Gordon was charged, along with his friend, Chris Jackson, by indictment with the possession of a stolen motor vehicle. (Ill. Rev. Stat. 1985, ch. 95V2, par. 4 — 103.) Gordon was tried by a jury while Jackson selected a bench trial. The trials were heard simultaneously. The jury returned a verdict of guilty against Gordon, but the court found Jackson not guilty. Gordon appeals from the conviction, contending that: (1) the acquittal of Jackson raises a reasonable doubt as to his guilt; (2) he was not proven guilty beyond a reasonable doubt; (3) Christopher Jackson’s testimony is newly discovered evidence, entitling him to a new trial; (4) the court erred when it granted the State’s motion in limine which significantly impaired defendant’s defense; (5) he was deprived of his constitutional right to due process and proportionate penalties; (6) the prosecutor’s improper closing argument constituted reversible error; and (7) he was denied his constitutional right to the effective assistance of counsel.

During the trial the testimony of the witnesses established the following facts. Edmund Nickerson, the owner of the vehicle, testified that while he was very close to Chris Jackson and had often given the keys to Jackson allowing him to drive the car, on the particular date and time, he did not authorize the use of his car by Jackson or anyone else. He testified that he parked the car at 2 a.m. in front of his home, and at approximately 9 a.m., after being informed by his mother that the car was gone, he called the police and reported it stolen. Nickerson stated that had he known it was Jackson who had taken the car he would not have reported it stolen. He would, however, have reported it stolen if he had known that Gordon was in possession of the car. Upon recovering his car, Nickerson discovered that the new radio had been replaced -with the original factory model radio. He stated that he did not grant Jackson permission to use his car on March 26, 1986, nor had he sold his car to Jackson.

Police officer Wayne Conley testified that on March 26, 1986, he observed a vehicle parked in a grocery/liquor store parking lot. He noticed that the car had no front license plate. Upon running a computer check of the rear license plate number, he discovered that a car bearing that number had been stolen on March 21, 1986. He approached the vehicle in which Gordon sat at the driver’s seat, Jackson was in the front passenger seat and a third individual was in the rear of the vehicle. Officer Conley and his partner required all three men to alight from the car. They were all arrested, handcuffed and given Miranda warnings, and questioned. Officer Conley testified that Gordon told him he had been hired to install a radio, that he was driving the car to test the radio, but he was not sure who the owner was. Officer Conley observed that the radio was not attached to the dashboard. At this juncture in the trial, the jury was excused, at which time Officer Conley testified that Jackson stated that he had stolen the car a week earlier.

At the conclusion of Officer Conley’s testimony, the State moved in limine to bar any reference by defense witnesses to statements made by Jackson on the basis that such statements would be hearsay. Jackson invoked his fifth amendment right to remain silent and declined to testify. The court granted the State’s motion in limine, barring any reference to Jackson’s previous statements.

The following facts were elicited in Gordon’s case in chief. Kimberly Butler and Calvin Ward testified that they had previously seen Jackson drive the vehicle in question, and Alice Perkins testified that Gordon had previously worked on her car. Gordon was advised by both defense counsel and the court that if he testified, his prior conviction for possession of a stolen motor vehicle could be used to impeach his testimony. Contrary to the advice and admonitions he received, Gordon chose to testify. He stated that on March 26, 1986, he, Jackson and a third individual went for a test ride in a 1978 Oldsmobile Cutlass which he had in the past seen Jackson drive and also in which he had previously ridden with Jackson. He further testified that on March 26, 1986, while riding in the car, Jackson asked him to fix the radio. After arriving at the store, two policemen approached them, placed them under arrest and questioned them. Gordon admitted to them that he was driving the car, but that it was owned by Jackson. He was advised at that time that the car had been reported stolen.

We turn our attention to Gordon’s claim that the State’s evidence failed to prove the essential elements of the offense beyond a reasonable doubt. While we agree with Gordon’s claim, we do not reach our conclusion on the basis that because the evidence against Jackson was at least as strong as that on which Gordon was convicted, there exists a reasonable doubt as to his guilt; instead, we reverse Gordon’s conviction on the ground that the evidence presented against him is insufficient of proof and so improbable as to raise a reasonable doubt of guilt. See People v. Stringer (1972), 52 Ill. 2d 564, 568, 289 N.E.2d 631.

The fourteenth amendment of our United States Constitution mandates that a conviction be based upon proof beyond a reasonable doubt. In re Winship (1970), 397 U.S. 358, 361, 25 L. Ed. 2d 368, 373, 90 S. Ct. 1068, 1071.

“After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be *** to determine whether the record evidence could reasonably' support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” (Emphasis in original.) Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.

In Illinois,.the right of defendants to conviction only upon proof beyond a reasonable doubt (see People v. Perroni (1958), 14 Ill. 2d 581, 153 N.E.2d 578) is well settled, and where the State’s evidence is improbable, unconvincing and contrary to human experience, judgments of conviction should be reversed. (See People v. Molstad (1984), 101 Ill. 2d 128, 461 N.E.2d 398; People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631; People v. Catlett (1971), 48 Ill. 2d 56, 268 N.E.2d 378.) Moreover, the burden is always upon the State to prove the defendant’s guilt beyond a reasonable doubt (see People v. Daw son (1961), 22 Ill. 2d 260, 174 N.E.2d 817), and to prove each and every element of the crime (see People v. Benson (1956), 9 Ill. 2d 169, 137 N.E.2d 256), as it is a fundamental principle of our system of criminal jurisprudence that the law presumes the innocence of an accused until he is proved guilty beyond a reasonable doubt of the crime charged. People v. Magnafichi (1956), 9 Ill. 2d 169, 137 N.E.2d 256; see also People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432.

Gordon was convicted of violating section 4 — 103(a)(1) of the Illinois Vehicle Code (Code), which makes it unlawful for “[a] person not entitled to the possession of a vehicle or part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 951/2, par. 4 — 103(a)(1).) Gordon urges that the evidence failed to prove that he had knowledge that the car was stolen; rather, the evidence shows that Jackson gave him permission to drive the car for the purpose of installing a radio. The State argues that knowledge can be inferred on Gordon’s part simply because he exercised control over a vehicle which had been recently reported stolen, citing to that part of section 4 — 103(a)(1) of the Code which states:

“It may be inferred, therefore that a person exercising exclusive unexplained possession over a stolen or converted vehicle *** has knowledge that such vehicle *** is stolen ***.” Ill. Rev. Stat. 1985, ch. 95V2, par. 4 — 103(a)(1).

In the case of In re T.A.B. (1989), 181 Ill. App. 3d 581, 537 N.E.2d 419, where the respondent was charged with violating section 4 — 103(a)(1), this court held that the State had the burden to prove knowledge on defendant’s part that the vehicle was stolen. (In re T.A.B., 181 Ill. App. 3d at 586.) “Stolen property is statutorily defined as ‘property over which control has been obtained by theft.’ [Citation.] *** [T]he State [is] obliged to prove that defendant knowingly exerted control over the car in such a manner as to permanently deprive the owner of its use, or, in effect, prove that defendant committed theft [citation].” (Emphasis added.) (In re T.A.B., 181 Ill. App. 3d at 586, citing People v. Bivens (1987), 156 Ill. App. 3d 222, 230, 509 N.E.2d 640.) In In re T.A.B., the court there found that the State failed to prove respondent committed, a theft where the evidence merely revealed that he took his foster father’s car without permission and drove it around for awhile in a joyriding escapade.

In the case at bar, the State failed to prove that Gordon committed a theft. The testimony established that Jackson gave Gordon permission to drive the car, in broad daylight, in a public area where the car was known and the keys were in the ignition. Moreover, the evidence revealed that Jackson asked Gordon to repair the radio and when the police approached the individuals in the car they made no attempt to flee. The evidence established that Nickerson, one of the owners of the vehicle, often gave Jackson permission to drive the vehicle and would not have reported it stolen if he had known Jackson was in possession of the car. The evidence also revealed that Gordon worked on cars and had ridden in Nickerson’s car with Jackson on at least one previous occasion. There were no signs of unauthorized entry into the vehicle.

While the State presented testimony from Nickerson that he had not given anyone permission to drive his car on that date and testimony from Officer Conley that he discovered Gordon in the driver’s seat of the car, such evidence alone does not prove or infer knowledge on Gordon’s part that the vehicle was stolen. To the contrary, based upon our review of the record evidence in the light most favorable to the prosecution, we conclude that the State failed to prove beyond a reasonable doubt each of the essential elements of the crime in general, and in particular, we find that the evidence was so unsatisfactory as to leave a reasonable doubt whether Gordon was in possession of the car knowing it to be stolen. We concede that Gordon’s own testimony may have substantially damaged his case before the trier of fact; however, we are mindful that the burden remains upon the State to prove the crime against the defendant, and a conviction may not stand based upon weaknesses in the defendant’s case. See People v. Coulson (1958), 13 Ill. 2d 290, 149 N.E.2d 96.

Accordingly, we reverse Gordon’s conviction. Because of our disposition of this case, we deem it unnecessary to consider the remaining questions raised by Gordon on appeal.

Reversed.

CAMPBELL and O’CONNOR, JJ., concur.


text:
    URILLA REESE, Plaintiff-Appellant, v. THE VILLAGE OF ARLINGTON HEIGHTS, Defendant-Appellee.
    First District (1st Division)
    No. 1 — 88—1665
    Opinion filed September 24, 1990.
    John M. Falasz, Jr., Ltd., of Chicago (Garth J. Unke, of counsel), for appellant.

      Dowd & Dowd, Ltd., of Chicago (Robert C. Yelton III, and Joel S. Ostrow, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

Plaintiff, Urilla Reese, appeals from an order of the trial court dismissing her complaint against defendant, the Village of Arlington Heights, for plaintiffs failure to comply with the notice provision of section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102). The issues raised on appeal are: (1) whether the trial court properly dismissed plaintiffs cause of action due to the incorrect date in the notice of injury; and (2) whether the defendant’s conduct pertaining to settlement negotiations served as a waiver of its right to assert noncompliance with the notice requirements.

On July 8, 1985, the plaintiff sustained injuries when she “tripped and fell” on an alleged defective sidewalk in the Village of Arlington Heights (Village). Immediately after the accident occurred, the Arlington Heights police department’s reporting officer and the Arlington Heights fire department paramedic and ambulance personnel arrived on the scene. The fire department prepared an ambulance report, and the police department prepared a casualty report. On July 18, 1985, plaintiff sent a letter to the Arlington Heights police department which listed the accident as July 8, 1985, requesting a copy of their casualty report. On July 23, 1985, plaintiff sent a letter to the fire department which also listed the date of injury as July 8, 1985, requesting a copy of their ambulance report. The Arlington Heights police department responded with a letter describing the casualty report. The letter indicated the date of the report as July 8, 1985, the type of offense, a description of what occurred, the nature of the injuries and the hospital that treated the plaintiff.

On July 7, 1986, the Village received plaintiff’s formal notice of injury and notice of attorney’s lien. The notice of attorney’s lien correctly stated the date of the accident as July 8, 1985. However, the notice of injury erroneously stated the date of accident as July 7, 1985. Upon receipt of plaintiff’s notices, the defendant submitted these documents to Gallagher Basset Services, Inc., which administered the Village’s self-insurance plan. On April 8, 1987, plaintiff filed her complaint. Thereafter, plaintiff’s attorney began discussing settlement of the case with Thomas Scott, an adjuster for Gallagher Basset Services. Mr. Scott requested of plaintiff’s attorney several extensions of time in which to file the defendant’s appearance in this matter in order to effectuate settlement negotiations. On June 22, 1987, Mr. Scott offered $2,000 to settle the case, which was not accepted by the plaintiff due to her outstanding medical bills.

On November 17, 1987, the attorneys representing the Village filed an appearance on behalf of the Village, and on that same date presented a motion to dismiss plaintiffs complaint alleging a defective notice of injury. The notice of injury incorrectly stated the date of injury as July 7, 1985, instead of July 8, 1985. On May 10, 1988, the trial judge granted defendant’s motion to dismiss, concluding that the improper date on the plaintiff’s notice of injury was a fatal defect.

Plaintiff argues that the trial court erred in dismissing her complaint since the Tort Immunity Act only requires substantial compliance with the statutory notice requirement. At the time that plaintiff’s cause of action arose, section 8 — 102 of the Tort Immunity Act provided:

“Within 1 year from the date that the injury or cause of action, referred to in Sections 8 — 101, 8 — 102 and 8 — 103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must serve, either by personal service or by registered or certified mail, return receipt requested, a written notice on the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, signed by himself, his agent or attorney, giving in substance the following information: the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.” (Ill. Rev. Stat. 1985, ch. 85, par. 8— 102.) (Repealed by Pub. Act 84 — 1431, art. 1, section 3, eff. November 25,1986.)

Section 8 — 103 of the Tort Immunity Act provides that if notice is not served on the local public entity as provided by section 8 — 102, the plaintiff’s cause of action shall be dismissed and forever barred. Ill. Rev. Stat. 1985, ch. 85, par. 8 — 103.

It is well settled that the primary purpose of these two notice provisions is to encourage an early investigation into the claim asserted against the local government while witnesses remain available, the matter is still fresh and the conditions have not materially-changed. (Rio v. Edward Hospital (1984), 104 Ill. 2d 354, 364, 472 N.E.2d 421; Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 292-93, 348 N.E.2d 176; Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 342, 270 N.E.2d 415; Helle v. Brush (1973), 53 Ill. 2d 405, 407-08, 292 N.E.2d 372.) The notice requirement was designed to inform the local government that a person was about to file a civil action for damages arising out of an injury suffered. (Whitney v. City of Chicago (1987), 155 Ill. App. 3d 714, 718, 508 N.E.2d 293; Dunbar v. Reiser (1976), 64 Ill. 2d 230, 235, 356 N.E.2d 89.) Therefore, a further purpose of the notice provisions is to provide the local government with timely notice of the alleged liability so that the potential liability may be taken into consideration in planning their budget. Lane v. Chicago Housing Authority (1986), 147 Ill. App. 3d 876, 877, 498 N.E.2d 604; Whitney, 155 Ill. App. 3d at 718.

Our supreme court has frequently held that since the Tort Immunity Act is in derogation of the common law action against local public entities, the Tort Immunity Act must be strictly construed against public entities. (Rio, 104 Ill. 2d at 362; Reynolds, 48 Ill. 2d at 342.) Our supreme court has also held that because of the Tort Immunity Act’s position in relation to the common law, a liberal interpretation of that Act is necessary, since a more restrictive interpretation could lead to absurd, inconvenient or unjust consequences. (Reynolds, 48 Ill. 2d at 343.) It would be unreasonable to presume that the legislature intended an absurd or unjust result. Therefore, the Reynolds court ruled that it would adopt a construction which it reasonably presumed was contemplated by the legislature. Reynolds, 48 Ill. 2d at 342.

There is a continual trend in Illinois courts that strongly illustrates that justice would be best served by a liberal interpretation of the Tort Immunity Act requiring only substantial compliance with the Act. Furthermore, section 8 — 102 was amended by the General Assembly in 1973, increasing the notice period from six months to one year. (Pub. Act 78 — 201, eff. Oct. 1, 1973.) In amending section 8— 102 in 1973, the General Assembly added the words “in substance” in order to “ameliorate the harshness caused by the rigid application” of section 8 — 102. (Rio, 104 Ill. 2d at 366.) In order to substantially comply with section 8 — 102 of the Tort Immunity Act, each element required under the Act must be included in the written notice and each element must be sufficiently clear and accurate so as not to mislead or prejudice the public entity. (Lando v. City of Chicago (1984), 128 Ill. App. 3d 597, 600, 470 N.E.2d 1172.) In Reynolds (48 Ill. 2d at 340), our supreme court used a liberal interpretation of the statute when it concluded that service by registered mail, return receipt requested, satisfied the notice requirement of personally serving in the office of the secretary or clerk a written statement.

In Saragusa (63 Ill. 2d 288) and Dunbar (64 Ill. 2d 230), the plaintiffs’ complaints were dismissed for failure to serve the respective local public entities with proper notice pursuant to section 8 — 102 of the Tort Immunity Act. Our supreme court held that although plaintiffs failed to comply with section 8 — 102, dismissal was not warranted since the complaints were filed within six months of the injury. Saragusa, 63 Ill. 2d at 292; Dunbar, 64 Ill. 2d at 237. See also Oliver v. City of Chicago (1985), 137 Ill. App. 3d 958, 960, 485 N.E.2d 428.

In Rio (104 Ill. 2d at 366), the court concluded that substantial compliance with section 8 — 102 of the Tort Immunity Act was sufficient where the complaint was filed within one year of the injury even though the complaint failed to include the claimant’s address. The court reasoned that the purpose of requiring the address of the claimant in the notice is to serve as a means for the defendant to contact the claimant, and since the complaint included the name and address of plaintiff's attorney, substantially all of the required information was set forth and the plaintiff’s attorney could be contacted regarding the case. Rio, 104 Ill. 2d at 367.

In Thomas v. Davenport (1990), 196 Ill. App. 3d 1042, plaintiff’s complaint was dismissed for failure to file the notice within the one-year statutory notice period pursuant to section 8 — 102 of the Tort Immunity Act. In that case we concluded that the notice filed six months after plaintiff discovered his injury was timely. Thomas, 196 Ill. App. 3d at 1045.

We recently addressed the issue presently before this court in Stewart v. County of Cook (1989), 192 Ill. App. 3d 848, 549 N.E.2d 674. In Stewart, the defendant alleged that the notice failed to meet the date requirement of section 8 — 102 of the Tort Immunity Act where the notice stated that plaintiff’s surgery occurred on September 24, 1983, when it actually occurred on September 30, 1983. In that case we reasoned that an inaccuracy regarding certain elements required by section 8 — 102 would invalidate the notice when the public entity is misled or prejudiced by the misstatement of the element. (Stewart, 192 Ill. App. 3d at 854. See also Lando, 128 Ill. App. 3d at 600.) However, the record in that case did not reveal that the defendants were prejudiced or misled by the plaintiff’s misstatement of the date of the surgery in his notice by six days. Therefore, we concluded that plaintiff’s notice substantially complied with the requirements of section 8 — 102 of the Tort Immunity Act. Stewart, 192 Ill. App. 3d at 855.

It is clear from the aforementioned case law that there has been an erosion of the strict compliance with the notice requirements set forth in Ouimette v. City of Chicago (1909), 242 Ill. 501. In addition to the amendment of 1973, the legislature completely repealed section 8 — 102 effective September 26, 1986. (Pub. Act 84 — 1431, eff. November 25, 1986.) However, prior to the repeal of section 8 — 102, we concluded that the statute was to be liberally construed in determining whether an element as set forth is reasonably sufficient to satisfy the statutory requirement so that the public entity has not been misled or prejudiced. (Whitney, 155 Ill. App. 3d at 717; Lando, 128 Ill. App. 3d at 600.) We further concluded that where no prejudice has occurred the notice is sufficient. (Whitney, 155 Ill. App. 3d at 717; Lando, 128 Ill. App. 3d at 600.) In the present case, there was nothing in the record to suggest that the Village of Arlington Heights was misled or prejudiced by the use of the July 7, 1985, date in its notice as opposed to the July 8, 1985, date. To the contrary, the record reveals that defendant was not misled or prejudiced by the erroneous date because the defendant had knowledge of the correct date prior to receipt of the notice. Specifically, the correct date was included in documented reports of the Arlington Heights police and fire departments, which arrived at the accident scene immediately following the accident. Moreover, the correct date of injury was included in the plaintiff’s notice of attorney’s lien which was attached to plaintiff’s notice of injury.

The record in this case does not support the granting of defendant’s motion to dismiss, and under the facts of this case we cannot conclude that the one-day error listed in the plaintiff’s notice of injury violates the purpose of the notice requirement of the Tort Immunity Act. Moreover, the defendant has failed to show any prejudice.

Plaintiff also argues that the Village waived its right to assert noncompliance with the notice requirements. Because of our disposition of the issue discussed, we -will not address this issue. For the foregoing reasons, the judgment of the circuit court of Cook County dismissing plaintiff’s complaint is reversed and the matter remanded for further proceedings.

Reversed and remanded.

BUCKLEY, P.J, and O’CONNOR, J., concur.


author: JUSTICE CAMPBELL

text:
    DONALD BOWERS, Plaintiff-Appellant, v. THE VILLAGE OF PALATINE et al., Defendants-Appellees.
    First District (1st Division)
    No. 1 — 88—2545
    Opinion filed September 24, 1990.
    Goldberg & Goldberg, of Chicago (David A. Novoselsky, of counsel), for appellant.
    Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago (Thomas G. Di Cianni, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Donald Bowers, appeals from an order of the circuit court of Cook County granting the motion of defendants Village of Palatine and Officer Languth to dismiss plaintiff’s personal injury action. On appeal, plaintiff contends that the trial court erred in granting defendants’ motion. For the following reasons, we reverse and remand.

The facts giving rise to this appeal are as follows.

Plaintiff filed his original complaint after he was allegedly injured in May 1980. The record does not contain the exact filing date. The complaint was dismissed for want of prosecution (DWP) on May 2, 1985. Plaintiff then filed a timely motion to vacate the DWP order on May 29, 1985. This motion was not heard until February 4, 1987.

At the hearing, the motion judge questioned plaintiff’s counsel regarding the 20-month time period between the filing of the motion and the hearing. Plaintiff’s counsel explained that the attorney who had been assigned to the plaintiff’s file had left the firm, causing a communication breakdown regarding the status of the case. No other attorney followed up on the case. The trial court found this explanation to be insufficient and denied plaintiff’s motion to vacate pursuant to Circuit Court Rule 2.3 (Cook Co. Cir. Ct. R. 2.3).

On February 18, 1987, plaintiff refiled his complaint pursuant to section 13 — 217 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217.) Defendants then filed a motion to dismiss the complaint, contending that it was barred by the two-year statute of limitations established in section 13 — 202 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 202.) Plaintiff responded to the motion to dismiss, arguing that defendants’ general appearance for the motion to vacate served to revest the court with jurisdiction over the case. Plaintiff concluded that the refiling was proper because it took place within one year of the denial of the motion to vacate the DWP order. Defendants replied that the plain language of section 13 — 217 establishes that the one-year refiling period began to run when the suit was dismissed, not when the motion to vacate was denied.

A hearing was held on defendants’ motion to dismiss on July 22, 1988. The trial court stated that the revesting of jurisdiction was not the issue which needed to be decided, for the timely filing of the motion to vacate continued the court’s initial jurisdiction. The court then addressed the issue of whether the statute of limitations on personal injury actions barred plaintiff’s refiled complaint. The court decided that the refiling period began to run from the date of the DWP order, rather than the date that the motion to vacate that order was denied. Consequently, the refiled action was time barred.

The question presented is whether the trial court erred in granting defendants’ motion to dismiss plaintiff’s refiled complaint. Plaintiff contends that he properly refiled his complaint pursuant to section 13 — 217 of the Illinois Code of Civil Procedure.

Plaintiff devotes much of his argument to the issue of whether the trial court was revested with jurisdiction, citing a number of cases in support of revesting. People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11; Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 97 N.E.2d 817; Gentile v. Hansen (1984), 131 Ill. App. 3d 250, 475 N.E.2d 894; Slavick v. Michael Reese Hospital & Medical Center (1980), 92 Ill. App. 3d 161, 415 N.E.2d 1060; Faust v. Michael Reese Hospital & Medical Center (1979), 79 Ill. App. 3d 69, 398 N.E.2d 287; Asumendi v. Fortman (1978), 58 Ill. App. 3d 186, 374 N.E.2d 20.

On this question, we agree with the trial court that revestment was not at issue. It is sufficient to note that, generally, a trial court relinquishes jurisdiction over a matter when: (1) 30 days have passed following the entry of a final and appealable order concerning that matter; and (2) during that time, neither party has taken any legally proper action to delay the 30-day period. (Slavick v. Michael Reese Hospital & Medical Center (1980), 92 Ill. App. 3d 161, 166, 415 N.E.2d 1060, 1063.) A dismissal for want of prosecution is not a final and appealable order. (Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, 449 N.E.2d 112, cert. denied (1983), 464 U.S. 936, 78 L. Ed. 2d 311, 104 S. Ct. 345; Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480.) The trial court thus retained jurisdiction over the instant matter during the pendency of the motion to vacate the DWP order.

The only issue for decision, therefore, is whether the refiled complaint is barred by the statute of limitations. Section 13 — 217 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217) provides in relevant part:

«[!]£ *** ^ aC£ion }s dismissed for want of prosecution ***, the plaintiff *** may commence a new action within one year *** after such judgment *** is dismissed for want of prosecution.”

In Valdez v. Pappas (1985), 139 Ill. App. 3d 1, 486 N.E.2d 1389, this court was confronted with a similar problem. In Valdez, the trial court entered an order dismissing a case for want of prosecution and in the same order scheduled a hearing to vacate the order. At the later hearing, the case was dismissed for want of prosecution. Later, Valdez refiled the action under section 13 — 217. Pappas moved to dismiss the action on the grounds that the applicable statute of limitations had run and the complaint had not been refiled within one year of the first DWP order. The trial court held that the one-year time period for refiling a complaint established in section 13 — 217 began to run from the date of the second order. In affirming that decision, this court noted that the trial court retained authority to rule further in the matter by the terms of its initial order, thus preventing the initial order from becoming final. Valdez, 139 Ill. App. 3d at 4, 486 N.E.2d at 1391.

The sole distinction between Valdez and the present case is that the trial court in Valdez retained authority by its own order, whereas the trial court’s authority in this case was retained by plaintiff’s timely filing of the motion to vacate the DWP. We therefore hold that the time period for refiling a complaint specified by section 13— 217 did not begin to run until the motion to vacate was denied, and the refiling on February 18,1987, was proper.

Defendants cite Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211, and Hapeniewski v. City of Chicago Heights (1985), 147 Ill. App. 3d 528, 497 N.E.2d 97, vacated & remanded (1987), 484 U.S. 806, 98 L. Ed. 2d 17, 108 S. Ct. 53, in support of their contention that the time specified by section 13 — 217 begins to run from the date of the DWP order. Both are distinguishable from the present case. Hupp held that the refiling period began to run from the date of a nonsuit, not the affirmance of that nonsuit on appeal. Hapeniewski held that the refiling period began to run from the date plaintiff sought a voluntary dismissal, rather than the date the entire case was dismissed. A voluntary dismissal is final and appealable by the defendant. (Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 305, 472 N.E.2d 787, 788.) In contrast, the present case involves a DWP which is not final or appealable. Wold v. Bull Valley Management Co. (1983), 96 Ill. 2d 110, 449 N.E.2d 112; Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480.

Defendants also contend that running the refiling period from the date the motion to vacate was denied would nullify the one-year limitation specified in section 13 — 217. The argument is that if the refiling period does not begin to run until the order is final, and the DWP is not a final order, the refiling period would never run. This argument is unpersuasive. In the absence of a timely filed motion to vacate, the refiling period would begin to run and would expire after one year. However, if a motion to vacate is pending before the court, the refiling period will not begin to run until the motion is decided. See Belluomini v. Lancome (1st Dist. Sept. 13, 1990), No. 1-89-1759, slip op. at 5.

For the aforementioned reasons, we reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

O’CONNOR and MANNING, JJ., concur.