author: JUSTICE NICKELS

text:
      In re M.L., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. M.L., Respondent-Appellant).
    Second District
    No. 2—91—0105
    Opinion filed July 30, 1992.

      Bruce E. Keller, of Keller & Latheler & Associates, of Dixon, for appellant.
    Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

Respondent, M.L., was charged by a petition for adjudication of wardship with the offense of criminal damage to property (Ill. Rev. Stat. 1989, ch. 38, par. 21 — 1(a)). The court found respondent guilty of the offense and placed him on two years’ probation. Respondent appeals, contending that the State failed to prove him guilty beyond a reasonable doubt.

At the hearing, Joseph Gaska testified that he lived at Woodhaven Lakes. On August 29, 1990, he stopped his car near his lot and stepped out of his car. He heard banging noises on the wall of a nearby bathhouse or “comfort station” and heard a “metal jingle” as something hit the floor of the comfort station. The men’s portion of the comfort stations at Woodhaven Lakes consists of three bathrooms, four wash basins and four showers; there is a similar arrangement for women on the opposite side.

Gaska ran the 100 feet from his car and went into the comfort station. Respondent and his brother were the only people in the comfort station when he arrived. Gaska asked, “what’s going on here?” The minors did not respond, but ran past him and locked themselves in a shower stall. Gaska then went outside to have a friend call security.

When Gaska entered the comfort station, he noticed that the legs of the wash basins had been ripped off and two of the sinks were twisted. The boys had nothing in their hands when he opened the door, and he did not see them do any damage.

Lee Lewis testified that he was a security officer at Woodhaven Lakes. He was on duty when he was notified of the damage to the comfort station. He stated that a maintenance crew cleans the comfort stations every day, and repairs are done right away.

Gaska and Lewis were the only witnesses. Respondent presented no evidence. The court found respondent guilty and placed him on two years’ probation. Respondent filed a timely notice of appeal.

Respondent’s sole contention on appeal is that the State failed to prove him guilty beyond a reasonable doubt. Specifically, respondent contends that there was no evidence of the condition of the bathhouse prior to the time he entered it. Therefore, he asserts that it is impossible to conclude that he, as opposed to someone else, did the damage, because Gaska did not see him damage anything and because he did not have anything in his hands when Gaska entered the comfort station. Respondent also contends that the fact that he hid in a shower stall when Gaska confronted him could not be considered evidence of guilt because he did not flee from the scene. Finally, respondent contends that we must reverse his conviction outright, rather than remand the cause to the trial court, because the record shows that no additional witnesses would be able to testify.

As in a criminal prosecution, the State must prove the commission of an offense beyond a reasonable doubt in order to support a finding of delinquency pursuant to the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 801—1 et seq.). (In re N.W. (1984), 125 Ill. App. 3d 367, 372.) When presented with a challenge to the sufficiency of the evidence, it is not the function of the reviewing court to retry respondent. The question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 261.

The evidence was sufficient to prove respondent guilty beyond a reasonable doubt. Gaska testified that he heard banging noises coming from the wall of the comfort station and metal jingling as something hit the floor. When he entered, only respondent and his brother were inside. When he asked them what was going on, they did not answer, but fled to a shower stall in which they locked themselves. From this, the court could infer that the noises were the sound of the sinks being broken and that respondent’s conduct in hiding and failing to respond to Gaska’s question evidenced his guilty knowledge.

Respondent points out, however, that Lewis testified that the comfort stations were inspected only once per day and that respondent was found in the bathhouse at 7:15 p.m. He speculates that the cleaning could have occurred early in the morning, which would have allowed ample time for someone else to have damaged the sinks prior to respondent’s arrival.

Defendant’s argument is reminiscent of the “reasonable hypothesis of innocence” test that the supreme court has rejected. (See People v. Pintos (1989), 133 Ill. 2d 286, 291.) The court was not required to acquit respondent solely on the basis of respondent’s speculation that some other person might have had an opportunity to commit the crime. See People v. Eyler (1989), 133 Ill. 2d 173, 191-92.

Respondent complains that the trial judge considered his silence and flight into the shower stall as evidence of guilt. Respondent notes that he did not flee from the scene, but rather remained in the building. Other than footnotes that distinguish three cases in which evidence of flight was found to have been properly admitted, respondent cites no authority for this contention.

Generally, flight is a circumstance that can be considered as bearing upon guilt (People v. Ocasio (1990), 205 Ill. App. 3d 157, 162; People v. Nightengale (1988), 168 Ill. App. 3d 968, 972), as evidence of a consciousness of guilt or circumstantial evidence that tends to show a defendant’s guilt. (People v. McDonald (1992), 227 Ill. App. 3d 92, 97-98.) The critical fact in this case was that respondent fled from the immediate presence of his accuser and failed to answer Gaska’s question. Respondent’s conduct was circumstantial evidence that he had consciousness of guilt, and respondent’s ultimate distinction is irrelevant.

Since we hold the evidence was sufficient, we need not consider respondent’s final contention regarding the propriety of a remand.

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

Affirmed.

BOWMAN and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY HOUSE, Defendant-Appellant.
    Second District
    No. 2—90—1194
    Opinion filed July 29, 1992.
    G. Joseph Weller and Anne S. Quincy, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Larry House, was convicted, following a bench trial, of the offense of burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19 — 1(a)) and was sentenced to a four-year term of imprisonment. Defendant challenges the sufficiency of the evidence to support his conviction and the trial court’s refusal to find him eligible for the Treatment Alternatives to Street Crime (TASC) program.

First, defendant contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt on an accountability theory. When a defendant challenges the sufficiency of the evidence to support his conviction, the reviewing court will consider all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Frieberg (1992), 147 Ill. 2d 326, 360.) This standard applies in all criminal cases, including those where the evidence is circumstantial. (People v. Pintos (1989), 133 Ill. 2d 286, 291.) The reviewing court will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of the defendant’s guilt. (People v. Eyler (1989), 133 Ill. 2d 173, 191.) We will not substitute our judgment for that of the trial court on questions of the weight of the evidence or the credibility of the witnesses. People v. Young (1989), 128 Ill. 2d 1, 51.

The undisputed facts are that defendant was walking to the Eagle grocery store in Aurora when his friend Leo Beamon drove up. Defendant got into Beamon’s car and they went to the store. At the Eagle, defendant purchased cereal, sausage, milk and eggs, while Beamon waited in the car. Beamon and defendant then drove to another grocery store, the Bread Box. Beamon went around to the back of the building and entered through a service entrance. The owner of the store confronted Beamon, who was throwing things around and rummaging through boxes. Beamon grabbed two cases of Perrier water, which he mistakenly believed contained liquor, and fled through the back door. An Aurora police officer noticed defendant and Beamon near a parked car. The officer parked his squad car behind Beamon’s car. When they noticed the police officer in the squad car, defendant fled from the car, and Beamon casually walked away. The police found defendant hiding under a car a few blocks away. From Beamon’s car, the police recovered two cartons containing Perrier water and a grocery bag.

According to the State’s version of the facts, the passenger door of the car was open, and defendant was placing a case of what appeared to be beer into the car. Beamon was not holding anything.

According to defendant’s version, Beamon drove with defendant to the Bread Box so that defendant could buy pop there. Beamon told defendant that he would wait in the car. Defendant bought four cans of pop, cigarettes and candy. When defendant came back to the car, Beamon was gone. Defendant looked for him and then waited by the car. Beamon came running out of the store carrying two cartons of Perrier. Defendant was putting his cans of pop in the Eagle bag when Beamon informed him that there was a police car behind defendant. Defendant panicked and fled.

The accomplice, Beamon, had pleaded guilty and was sentenced to probation prior to defendant’s trial. He testified that defendant had no knowledge of Beamon’s plan to rob the grocery store. According to Beamon, they went to the Bread Box because Beamon wanted pop and cigarettes. Beamon gave defendant $3 to purchase the items. After defendant went into the store, Beamon walked around to the back of the grocery store and broke in. Defendant was walking back to the car when Beamon returned with the two cartons. Beamon denied that he handed the boxes to defendant. Beamon testified that defendant was holding one can of pop and one pack of cigarettes.

The trial court determined that Beamon and defendant were not credible. First, the court found that Beamon had a motive to lie, namely, to protect defendant. Second, the court found defendant’s and Beamon’s story improbable. The court believed the testimony of the police officers.

Defendant was convicted of burglary based on his accountability for Beamon’s actions. Under an accountability theory, the State must prove that the defendant solicited, aided or attempted to aid, abetted, or agreed with another person in the planning or commission of an offense; that the defendant’s participation occurred either before or during the commission of the offense; and that the participation must have been with the concurrent, specific intent to promote or facilitate the commission of the offense. (People v. Saunders (1990), 206 Ill. App. 3d 1008, 1014; Ill. Rev. Stat. 1991, ch. 38, par. 5-2(c).) The State does not have to prove that the defendant’s participation was a part of the conduct which constituted the offense. (Saunders, 206 Ill. App. 3d at 1014.) Thus, the State had to prove that defendant intended to help Beamon commit the burglary and did some act, before or during the offense, in furtherance of it.

Defendant argues that his presence while Beamon was committing a burglary does not render him accountable for Beamon’s conduct, nor does his knowledge that Beamon committed a crime. We agree with defendant that, if the evidence merely showed that defendant was present and was aware that Beamon was committing a burglary, defendant’s conviction would have to be reversed. (People v. Taylor (1991), 219 Ill. App. 3d 47, 49.) However, other evidence refutes this argument.

As the court found, defendant loaded the stolen cartons into the car. We reject defendant’s attempt to minimize the significance of the police officer’s testimony that he saw defendant holding a “package.” The officer testified that the “package” was not a bag. The State presented evidence from which the trial court could find that defendant took the cartons from Beamon and loaded them into the car. The trial court assessed the credibility of the witnesses, and it is the final arbiter of the facts. We will not disturb the factual determination that defendant put the cartons, not the Eagle bag, into Beamon’s car.

That evidence is sufficient to establish the element that defendant aided or facilitated the commission of the offense. Defendant’s assertion that there was insufficient evidence to show he participated in planning the burglary is irrelevant. Even if defendant was unaware, when he entered the store, that Beamon was going to burgle it, defendant’s act of loading the booty which, by his own admission, he knew was stolen, is sufficient to show that he intended to aid in the commission of a burglary. The community of purpose or common design does not have to be based on prior deliberation, since such intent may arise by spontaneous participation. People v. Brown (1990), 197 Ill. App. 3d 907, 916.

These facts are similar to those in People v. Clark (1991), 221 Ill. App. 3d 303, in which the defendant denied any knowledge of a plan to steal a tile saw. The defendant was convicted on an accountability theory because he aided the perpetrator by “unsnagging” the saw so that the perpetrator could remove it from the defendant’s delivery truck and by assisting in placing the saw in a dumpster. In affirming the conviction, this court found that, although the defendant did not have prior knowledge of the theft, his act of helping during the commission of the offense which he knew would help the perpetrator complete the offense was sufficient to satisfy the knowledge requirement. (Clark, 221 Ill. App. 3d at 309.) Here, defendant’s assistance clearly occurred during the commission of the offense, as “the crime is not completed until the offender has escaped from the scene” (People v. Johnson (1991), 220 Ill. App. 3d 550, 555). We therefore conclude that defendant was proved guilty of the offense beyond a reasonable doubt.

Defendant next contends that the trial court erred in denying him placement in the TASC program. A defendant is eligible for TASC if he is an addict “who is charged with or convicted of a crime” unless, among other things, that crime is a crime of violence; the defendant has a record of two or more convictions of a crime of violence; another felony proceeding is pending against him; the defendant is on probation or parole and the authority does not consent; or the defendant was placed in TASC on two prior occasions within a two-year period. (Ill. Rev. Stat. 1991, ch. 111½, par. 6360 — 1.) According to defendant, he was eligible for TASC, and the trial court erred in finding him ineligible because he denied that he committed the offense. When an eligible defendant elects to undergo treatment and the trial court finds the defendant is an addict or alcoholic and is likely to be rehabilitated, the defendant:

“shall be placed on probation and under the supervision of a designated program for treatment *** unless, giving consideration to the nature and circumstances of the offense and to the history, character and condition of the individual, the court is of the opinion that no significant relationship exists between the addiction or alcoholism of the [defendant] and the crime committed, or that his imprisonment *** is necessary for the protection of the public.” (Ill. Rev. Stat. 1991, ch. HV-lz, par. 6360-2.)

Defendant argues that the court erred in finding there was no significant relationship between the offense and defendant’s addiction because defendant maintained his innocence.

In People v. Otis (1985), 135 Ill. App. 3d 718, the court decided the issue whether a defendant who has not pleaded guilty to the offense could be placed on TASC. After considering the statutory language and case law, the Otis court concluded that a defendant who has been convicted of an offense after a trial may elect treatment under TASC. Otis, 135 Ill. App. 3d at 720-21.

The State responds that the trial court denied defendant’s TASC request because it found no significant relationship between the addiction and the offense and that defendant’s imprisonment was necessary for the protection of the public. We disagree.

From our review of the record, it is evident that the trial court found that defendant was an addict and that he was eligible for TASC. At a preliminary hearing in April 1990, the court and defense counsel discussed the pending TASC evaluation:

“MS. DIXON [defense counsel]: Well, Judge, you were the presiding Judge in a hearing last Thursday that I had with another defendant.
The Statute was changed to include the language, as you know, convicted or charged with, so that enabled the defendant to have right to know, prior to pleading or setting the cases for trial, whether you’d be amenable to placing him on T.A.S.C.
However, in terms of the nexus issue, one of the statutory requirements, you have indicated that you would be wanting what amounts to, essentially, an admission of the offense.
*** Mr. House would not be admitting to the burglary, and I don’t want to place him into a position of having that admission attempt to be elicited by my question or State’s Attorney’s question, and we would rather be asking for T.A.S.C. if he’s found guilty of that case at a sentencing hearing.
THE COURT: There’s a problem. I give everybody T.A.S.C. if there’s a nexus. If I don’t know there’s a nexus, how can I give him T.A.S.C.?”

Several months later, after defendant was found guilty of the offense, the following colloquy ensued:

“MR. O’NEIL [prosecutor]: *** I don’t think he is eligible in that he denied the offense, in that he can’t prove up the cause of nexus between an offense and an addiction of—
MISS DIXON: If you look at that provision, lll1^, 6360, I believe it permits you to sentence to TASC after conviction. Or when the person is charged with it. And so you now have found him guilty. The nexus is proven up through questions of what you have heard here about his addiction. And, in fact, with Mr. House, Judge, you could even take judicial notice of his track marks in his arm. But we will get to that issue.
THE COURT: I have a problem there. How are you going to prove the nexus? He said he doesn’t — didn’t do this?
MISS DIXON: Judge, the questions have not been elicited in the course of trial about what, if anything he was under the influence of that day.
THE COURT: Okay. Let’s say he was under the influence of everything in the world, right? He said he didn’t do this.
MISS DIXON: That’s right, Judge, but you — you found according to the facts that he had done so. The person certainly has a right to a trial, Judge.
THE COURT: Well, we will *** face that matter of the nexus when we have the TASC hearing. He may not be eligible for TASC.”

At the TASC hearing on October 19, 1990, the court heard evidence that defendant was a cocaine and heroin addict and that defendant used cocaine the morning of the burglary. The TASC representative found that defendant had a likelihood of rehabilitation. Defendant testified that he stole to get money to support his addiction. In an unrelated incident, defendant stole liquor which he intended to sell. However, defendant denied that he committed the burglary. Regarding the burglary conviction, the court stated, “I would say he’s not eligible for T.A.S.C. because there’s no significant connection between his addiction and the charge because he says he didn’t do it.” The assistant State’s Attorney then nol-prossed the unrelated pending charges. The court then explained its ruling:

“[I]t raises the interesting, and as public defender has said and I don’t know that there is or is not a case on point, the interesting proposition that if a person who has clearly been shown to be an addict, and that has appeared here, and the person who has been shown to be likely to be rehabilitated, which was testified to here, and that the person is appropriate for placement, which has been testified to here, if all this is there, but we have a situation where the defendant has been found guilty rather than having pled guilty, whether they’re eligible when they have said they haven’t done it; it would appear to me, and I guess I’m going to rule this way so that the appellate court can have a clear shot at writing an opinion on this, that if a person pleads not guilty, then they are more or less saying they didn’t do it; therefore there is no significant relationship existing between the addiction of the individual and the crime charged.
I have changed one word. Instead of ‘committed,’ I’m saying ‘charged.’ Interesting proposition.
So, his T.A.S.C. petition, the motion the state has made that I deny will now be granted since the situation has changed. He’s not eligible.”

As the above-quoted portions of the record demonstrate, the only reason the court denied defendant’s request was the court’s belief that if a defendant maintains his innocence of the offense, there can be no significant relationship between it and the addiction. We emphasize that this was not a situation where the decision to deny a TASC request was made at a sentencing hearing. (See, e.g., People v. Moore (1990), 206 Ill. App. 3d 769; People v. Douglas (1990), 200 Ill. App. 3d 186; People v. Brown (1989), 194 Ill. App. 3d 958.) The court held a bifurcated proceeding and did not consider any of the sentencing evidence or issues during the TASC hearing. The court did not find that imprisonment was more appropriate for defendant; but, rather, the court found defendant was ineligible.

We agree with the reasoning in Otis and find that the statute did not envision a Hobson’s choice for defendants whereby they would have to admit guilt and forgo an appeal of a conviction to be entitled to TASC, or require the State to prove the charge beyond a reasonable doubt and lose any possibility of treatment. We note parenthetically that the State concedes that a defendant may not be denied TASC merely because he pleaded not guilty to the offense.

The trial court has broad discretion to deny or grant a defendant’s request for treatment. (Moore, 206 Ill. App. 3d at 775.) Where the trial court refused to exercise its discretion due to a misunderstanding of the law, remand of the matter to the trial court is proper. (People v. Fiorini (1991), 143 Ill. 2d 318, 344; People v. Rivera (1991), 212 Ill. App. 3d 519, 529.) Therefore, we remand the cause to the trial court for a new sentencing hearing in accordance with the views expressed herein.

Defendant’s conviction is affirmed; the sentence is vacated, and the cause is remanded.

Affirmed in part; vacated in part and remanded.

WOODWARD and GEIGER, JJ., concur.


text:
      In re PERSON AND ESTATE OF EVA MARIE BARNHART, a Minor (Wayne Starr, Sr., et al., Petitioners-Appellants, v. Michael Barnhart, Sr., et al., Respondents-Appellees).
    Second District
    No. 2—91—1225
    Opinion filed July 30, 1992.
    Al Henry Williams, of Dixon, for appellants.
    Susan L. Bursztynsky and Bernard H. Shapiro, both of Prairie State Legal Services, Inc., of Ottawa, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Petitioners Wayne Starr, Sr., and Gladys M. Starr appeal from the dismissal of their petition for guardianship of their minor granddaughter, Eva Marie Barnhart (Eva). The sole issue raised on appeal is whether the trial court erred in granting the motion to dismiss filed by respondents Michael Barnhart, Sr., and Jeannette Barnhart, Eva’s parents, based upon the court’s determination that petitioners lacked standing to bring the guardianship action. We affirm.

On May 1, 1991, petitioners filed their petition seeking guardianship of Eva. The petition was filed as a probate action and stated that Eva’s birth date was March 24, 1975. Eva’s address was listed as 1516 West River Street, Dixon, Illinois, which was also the address listed for Eva’s parents. The petition further stated that petitioners were Eva’s maternal grandparents and that:

“It is necessary or convenient that a Guardian of the person of the minor be appointed *** because it is in the best interests of the minor that said minor reside with Petitioners due to the fact that said minor’s present environment is detrimental to the mental and physical well-being of said minor child.”

Petitioners asked that they be appointed Eva’s guardians.

A guardian ad litem was appointed to represent Eva on May 13, 1991. On June 10, 1991, the court awarded temporary guardianship of Eva to petitioners. On June 12, 1991, respondents filed their motion to dismiss the petition. They alleged that Eva, who was living with respondents, failed to return home after school on April 30, 1991. Respondents were notified later that day that Eva had gone to petitioners’ house and that petitioners planned to seek custody of Eva. Respondents further alleged that they had not voluntarily relinquished custody of Eva and that petitioners therefore lacked standing to file the action under article XI of the Probate Act of 1975 (Probate Act) (Ill. Rev. Stat. 1991, ch. llO1^, pars. 11 — 1 through 11 — 18). Respondents also filed a memorandum of law in support of the motion.

Petitioners filed a response and alleged that, under the Probate Act, the standard to apply in determining guardianship is the best interests of the child. They also argued that, under the Probate Act, a minor who is 14 years of age or more may nominate the guardian of her person or estate, subject to the approval of the court.

A hearing was held regarding the motion to dismiss, and, on August 15, 1991, the court issued a memorandum opinion and order. The court relied on In re Person & Estate of Newsome (1988), 173 Ill. App. 3d 376, 379, which held that the standing requirement set out in section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1991, ch. 40, par. 601(bX2)) applies to guardianship proceedings under the Probate Act. The court therefore granted the motion to dismiss and stated that, in order to have standing, petitioners had to meet the requirement set out in section 601(bX2) of the Marriage Act and “must allege and prove that the child was ‘not in the physical custody of one of (her) parents’ at the time the petition was filed.” The court did state that it did not believe that Newsome was correctly decided. It also granted petitioners leave to amend the petition within 14 days.

On August 21, 1991, petitioners filed an amended petition which still listed Eva’s address as that of her parents but included an allegation that, at the time of filing the petition, Eva was in the physical custody of petitioners and was not in the physical custody of one or both of her parents. On August 28, 1991, petitioners filed a second amended petition which stated that Eva resided at 407 Jackson Avenue, Dixon, Illinois, which was petitioners’ address.

Respondents filed another motion to dismiss on September 12, 1991, again arguing that petitioners lacked standing because respondents had not voluntarily relinquished custody of the child. Respondents’ motion was granted on September 24, 1991. Petitioners filed a timely notice of appeal on October 24, 1991.

Following the trial court’s order, respondents filed a petition for rule to show cause alleging that petitioners had willfully refused or failed to comply with the court’s order by failing to return the minor child to her parents. The trial court dismissed the petition in a memorandum opinion on December 4, 1991. The court concluded that the cause had terminated and that it did not have the authority to order any party to do anything.

On appeal, petitioners argue that they had standing to petition for the guardianship of Eva under the Probate Act. They contend that Newsome was wrongly decided, arguing that the Probate Act does not require that a minor child “not be in the physical custody of either of his parents” in order for a nonparent to seek guardianship. They further assert that the “superior rights of parents language was not and should not be part of the Probate Act unless legislatively adopted through the legal process.” They contend that the correct standard for determining standing under the Probate Act, the best interests of the child, is set out in In re Estate of Brown (1990), 207 Ill. App. 3d 139. They finally argue that, as Eva is over 14, she had the right, under the Probate Act, to choose her guardians.

In Newsome, the grandparents of the minor children filed a petition under the Probate Act seeking to be appointed guardians of the children. The court held that the grandparents had to meet the standing requirement set out in the Marriage Act in order to proceed under the Probate Act. Newsome, 173 Ill. App. 3d at 379.

The Newsome court first discussed the “superior rights doctrine.” (Newsome, 173 Ill. App. 3d at 379.) This doctrine provides that “ ‘[i]n child-custody disputes it is an accepted presumption that the right or interest of a natural parent in the care, custody and control of a child is superior to the claim of a third person.’ ” (In re Custody of Peterson (1986), 112 Ill. 2d 48, 51, quoting In re Custody of Townsend (1981), 86 Ill. 2d 502, 508.) The Newsome court then noted that the superior rights doctrine is incorporated into the Marriage Act through the standing requirement of section 601(b)(2) which provides that, in order for a nonparent to have standing to seek custody of a child, the child must not be “ ‘in the physical custody of one of his parents.’ ” (Newsome, 173 Ill. App. 3d at 378, quoting section 601(b)(2) of the Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2))-) The court recognized that the superior rights doctrine has also been made part of the Probate Act (Ill. Rev. Stat. 1991, ch. 110x/2, par. 11 — 7) and concluded:

“Because of the statutory adoption of the superior rights doctrine into the Probate Act, we find the standing requirement of the Marriage Act applies equally to the guardianship proceedings of the Probate Act.” Newsome, 173 Ill. App. 3d at 379.

Section 11 — 7 of the Probate Act provides, in relevant part:

“If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education.” (Ill. Rev. Stat. 1991, ch. TMPlz, par. 11 — 7.)

This section has been recognized as a codification of the superior rights doctrine. (In re Estate of Brown (1990), 207 Ill. App. 3d 139, 144.) We therefore must agree with the Newsome court that the superior rights doctrine has been incorporated into the Probate Act. Petitioners’ argument that Newsome was incorrectly decided because the superior rights of parents language was not part of the Probate Act must fail.

We also conclude that Newsome correctly sets out the standing requirement for a petition for guardianship brought under the Probate Act. We recently cited the holding of Newsome with favor in Hanson v. McGowan (1990), 197 Ill. App. 3d 708, 713, and in In re Marriage of Carey (1989), 188 Ill. App. 3d 1040, 1046-47. Thus, we conclude that petitioners had to allege and prove that Eva was not in the physical custody of one of her parents in order to have standing to bring their petition.

The case cited by petitioners, In re Estate of Brown (1990), 207 Ill. App. 3d 139, does not support their argument and, in fact, provides additional support for our conclusion. In Brown, the appellate court held that the trial court properly granted the petition of the grandparents for guardianship of the minor child based upon the best interests of the child. However, the court first noted that the child’s mother waived the issue of the grandparents’ standing to bring the petition under the Probate Act by failing to raise it in the trial court. (Brown, 207 Ill. App. 3d at 146.) The court went on to state, however, that, if it did consider the standing issue, it would find that standing existed. Brown, 207 Ill. App. 3d at 146.

The Brown court cited Newsome and section 601(b)(2) of the Marriage Act and determined that, for the grandparents to satisfy the limited standing requirement to file their petition for guardianship, the minor child could not be in the physical custody of one of his parents. (Brown, 207 Ill. App. 3d at 146.) The court stated that “the standing requirement is satisfied when the petitioners depend on the voluntary, not fortuitous, relinquishment of child custody.” (Brown, 207 Ill. App. 3d at 146, citing Peterson, 112 Ill. 2d at 53-55.) The court then determined that the mother in that case “voluntarily relinquished some degree of control of the minor child to the petitioners” and that the grandparents thus had standing to file their guardianship petition. Brown, 207 Ill. App. 3d at 146-47.

Therefore, while the court in Brown ultimately addressed the issue of the best interests of the child, it was only after it addressed the issue of standing and determined that the grandparents had standing based upon the mother’s waiver of the issue and based upon the standing requirement set out in Newsome. Petitioners’ argument that they have standing based upon the best interests of the child puts the cart before the horse. It is only after a nonparent has established standing that the court determines custody or guardianship using the best interests of the child standard. See Brown, 207 Ill. App. 3d at 146; In re Marriage of Sechrest (1990), 202 Ill. App. 3d 865, 870; Hanson v. McGowan (1990), 197 Ill. App. 3d 708, 711.

Relying upon section 11 — 5 of the Probate Act (Ill. Rev. Stat. 1991, ch. llObk, par. 11 — 5), petitioners have also argued that Eva could choose her guardian as she is over 14. Petitioners are apparently arguing that this provision gives them standing to file a guardianship petition as Eva has chosen them to be her guardians. This argument, too, must fail.

Section 11 — -5(c) provides, in pertinent part:

“If the minor is 14 years of age or more, he may nominate the guardian of his person and of his estate, subject to approval of the court.” (Ill. Rev. Stat. 1991, ch. llO1^, par. 11 — 5(c).)

This provision does not affect the superior rights doctrine incorporated into the Probate Act and cannot be read to confer upon a non-parent the necessary standing to bring a guardianship petition. It is apparent that the provision gives a minor who is 14 or over a say in determining the guardian once a valid petition is filed by someone with standing to bring the petition. We agree with respondents that petitioners’ broad interpretation of this provision is flawed because, under petitioners’ reasoning, any child 14 years of age or older could choose with whom he or she wished to live, regardless of the parents’ desires. That is clearly not permissible based upon section 11 — 7 of the Probate Act, which recognizes that “fit” parents “are entitled to the custody of the person of the minor.” Ill. Rev. Stat. 1991, ch. IIOV2, par. 11-7.

Petitioners have not argued on appeal that their petition adequately alleged that Eva was not in the physical custody of her parents, but have merely maintained that this standing requirement did not apply to their petition. As we have concluded that the trial court correctly determined that the standing requirement did have to be met by petitioners, we also conclude that the petition was properly dismissed.

Petitioners, in their brief, make numerous allegations regarding the inadequacies of Eva’s parents’ home environment. These statements are totally unsupported by the record and have not been considered in this appeal. However, we note that, if the unfitness of Eva’s parents is an issue, petitioners could challenge custody under the Adoption Act (Dl. Rev. Stat. 1991, ch. 40, par. 1500 et seq.) or the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1991, ch. 37, par. 801 — 1 et seq.). See Peterson, 112 Ill. 2d at 55; Sechrest, 202 Ill. App. 3d at 870.

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

Affirmed.

WOODWARD and GEIGER, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    JAMES WUJCIK et al., Plaintiffs-Appellants, v. GALLAGHER AND HENRY CONTRACTORS, d/b/a Orchard Hill Building Company, et al., Defendants-Appellees.
    Second District
    No. 2—91—1143
    Opinion filed July 9, 1992.
    Bruce M. Bozich and Mark G. Patricoski, both of Law Offices of Bruce M. Bozich, of Palos Heights, for appellants.

      Gary L. Taylor, of Rathje, Woodward, Dyer & Burt, of Wheaton, for ap-pellees.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, James and Beverly Wujcik, appeal after the trial judge, in a bench trial, granted a motion for judgment at the close of plaintiffs’ case for defendants, Gallagher & Henry Contractors, doing business as Orchard Hill Building Company, and Robert E. Gallagher (Orchard Hill). The Wujciks were seeking monetary damages for the loss of lateral and subjacent support due to Orchard Hill’s excavation of adjoining property. The sole issue presented by the Wujciks is whether the measure of damages should be the replacement cost for the trees lost from lack of support, instead of the diminution in value of the property. We reverse and remand.

The Wujciks own a five-acre tract of residential real estate in Downers Grove, Illinois. They have lived there for over 18 years. Sometime in the summer of 1986, Orchard Hill began excavating the undeveloped land west of the Wujciks’ property. After the excavation began, the Wujciks noticed that water would accumulate on the west edge of their property, which is lined with trees. Both James and Beverly Wujcik testified that water never accumulated in that area before the excavation project. Beverly further testified that the water would reach the depth of one to two feet.

James testified as to the topography of their property. At the north or front end of the property, the land is approximately 10 feet higher than at the south or back end of the lot. The slope is gradually downward from north to south. The western boundary of the property is lined with approximately 100 tall, mature trees. From the middle of the tree line to the south end of the tree line, the trees sit in a trench which existed even before the excavation.

When the Wujciks built their home on the lot, the adjoining lot to the west was a vacant farm. The elevation of the farm adjacent to the north portion of the Wujcik property was very similar, while at the south end the Wujcik property was higher than the farm. James claimed that Orchard Hill took 15 to 20 feet of soil from the north end and placed it on the south end, elevating part of the south end three to four feet higher than the Wujcik property. The excavation occurred within three feet of the property line and as far away as nine feet from the property line.

In the area of the excavation, the Wujeiks noticed that some trees were losing leaves. Eventually, four or five trees fell from loss of soil around the roots. This occurred about two years after the project began. Also, at the tree line in the southwestern portion of the property, water accumulated in the trench in which the trees sat and caused some trees to die from flooding.

The Wujeiks relied on the testimony of two expert witnesses at trial. Michael Hughes, a civil engineer specializing in storm drainage, testified that a topographical survey was done on the Wujcik property to determine drainage patterns. The survey showed that the Wujcik property has a depression area in the middle of the back portion of the lot which gathers water flowing from the north, south and east. The drainage pattern of the accumulated water is westward toward the newly developed area, referred to as the Peter’s Court area. Hughes opined that field tiles existed which carried water from the depression area through what is now the cul-de-sac on Peter’s Court. Hughes’ investigation also revealed that Orchard Hill had elevated the property south of Peter’s Court up to eight feet. Hughes opined that this change in elevation “significantly reduced” the southwesterly flow of water on the Wujcik property.

Hughes did acknowledge that Orchard Hill made some accommodations for drainage by constructing a storm sewer and extending the trench that runs along the Wujcik property line. However, the drainage capacity was still less than the natural drainage pattern that existed before the excavation. Hughes stated that the Wujeiks’ drainage problem could be solved if the drainage tiles were reconnected to another subsurface system, the likeliest candidate being the new development’s sewer system.

On cross-examination, Hughes admitted that his crew did not dig down to the drain tile to see at what point it had been disturbed. Hughes also stated that it was possible that tree roots from the Wu-jeiks’ trees might be interfering with the tiles.

Carl Quanstrom, the owner of Monee Nursery, testified that he examined the tree line on the western boundary of the Wujcik property. The average height of the trees was 35 to 45 feet, with trunk diameters ranging from 2 to 22 inches. Quanstrom observed about 10 dead trees in the southern portion of the tree line, which were lying in water and uprooted. He opined that the trees died from excess water and/or the compaction of roots. Also, some trees may have fallen because of soil erosion. The dead trees consisted of black locust, maple, poplar, ash, and osage orange.

Quanstrom then began testifying as to the extent of the monetary damages suffered by the Wujciks. Orchard Hill’s attorney objected as this testimony was beyond that disclosed to the defendant pursuant to Supreme Court Rule 220 (134 Ill. 2d R. 220). The trial court allowed the testimony as an offer of proof. Quanstrom stated that the cost to remove the dead trees and to replace them with locust trees of similar height and diameter was $9,000. The locust was being used because it is a fast-growing tree. After this testimony, the trial court revised its ruling and allowed the testimony as substantive evidence.

After Quanstrom’s testimony, the plaintiffs concluded their case. Orchard Hill made a motion for judgment pursuant to section 2 — 1110 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1110), arguing that there was no proof that Orchard Hill had done anything to injure the Wujciks. Orchard Hill also argued that the Wujciks failed to prove damages with testimony as to the replacement value of the trees. Orchard Hill claimed that the replacement cost is not the proper measure of damages in this situation. Orchard Hill concluded that because the Wujciks failed to show a diminution in their property value, they failed to prove the essential element of damages. The Wu-jciks countered by urging the court to adopt the replacement cost as the proper measure of damages.

The trial court defined its duty in a nonjury case when a motion for judgment is presented. Particularly, the trial court stated that the Wujciks had to prove that their drainage problems were the exclusive result of Orchard Hill’s actions. On this point the court stated:

“Under the standard required by the Code of Civil Procedure, the Court must examine the record to see [if] some evidence on this point [exists] or, if the Court finds there is sufficient evidence on this point to withstand the motion for [a] directed finding, the next step is for the Court to determine [from] the record to see [if] there is competent evidence of damage in the record, which would allow the case to stand in the event that the defendant put on no evidence. And that’s really the crux of the problem and that’s where counsels’ arguments have brought us.”

Implicitly, the trial court ruled that the Wujciks proved that Orchard Hill’s actions caused the drainage problem. The trial court then focused on the element of damages. The leading second district case on monetary damages for the loss of trees is First National Bank v. Amco Engineering Co. (1975), 32 Ill. App. 3d 451, in which this court stated that the proper measure of damages was the diminution in value of the realty. Justice Moran, then an appellate court judge, followed this rule with some reluctance. The trial court here also expressed reservations:

“I share Justice Moran’s feeling in this area, after reading *** the other cases in the area. I feel that the appropriate standard would be other than that expressed in the First National Bank versus Amco; but I am compelled to follow the case that is a law for this particular appellate district.
I hereby find the law in the Second District, in the State of Illinois, is as cited in the First National Bank versus Amco. When taking that to be the standard, I must find there is no competent evidence of damages in this case. Therefore, the requisite element of proof is missing and I am required to grant the motion. Motion for directed finding at the close of the plaintiffs’ case is granted. And I think the record is pretty clear as to the basis.”

The Wujciks filed a timely appeal after the order granting the motion for judgment was entered.

The Wujciks ask this court to abandon the “diminution approach” as the proper measure of damages here and adopt the “replacement cost approach.” They cite cases from outside the second district in which the replacement cost was the measure of damages employed. (Rodrian v. Seiber (1990), 194 Ill. App. 3d 504; Myers v. Arnold (1980), 83 Ill. App. 3d 1; Arras v. Columbia Quarry Co. (1977), 52 Ill. App. 3d 560.) If the replacement cost was the proper measure of damages, the Wujciks claim that they have proven damages and the motion for judgment should be reversed.

Orchard Hill contends that the trial court did not err in applying the measure of damages pursuant to Amco. Orchard Hill claims that the proper measure of damages for loss of lateral and subjacent support is the diminution in the value of the realty.

Orchard Hill also contends that Quanstrom’s expert testimony should be stricken for failure to comply with Supreme Court Rule 220 (134 Ill. 2d R. 220) and that Orchard Hill had the right to remove roots from the Wujciks’ trees that encroached on its property. These final two contentions are beyond the scope of responding to the Wu-jciks’ contentions. “[A] court of review is confined to the issues raised by appellant and will not consider those urged by appellee except where they are related to appellant’s issues.” (Cleys v. Village of Palatine (1980), 89 Ill. App. 3d 630, 635.) Orchard Hill having failed to raise these issues in a cross-appeal, we find that they are not properly before this court.

Under section 2 — 1110 of the Civil Practice Law, in a bench trial, the defendant may move for a judgment in his or her favor at the close of the plaintiff’s case. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1110.) The trial court applies a two-part analysis in ruling on the motion. First, the trial court determines whether the plaintiff has presented a prima facie case. If so, then the court must weigh the evidence, pass on the credibility of the witnesses, draw reasonable inferences and generally consider the weight and quality of the evidence. (Dyduch v. Crystal Green Corp. (1991), 221 Ill. App. 3d 474, 477.) The trial court’s decision to grant a defendant’s motion for judgment will not be reversed unless it is against the manifest weight of the evidence. Dyduch, 221 Ill. App. 3d at 477.

We agree with the Wujciks that the diminution in value is an inequitable measure of damages in this situation and adopt the replacement value as the proper measure of damages. We begin our analysis in support of this holding with the Amco case. There, Amco employed a tree cutter to remove some trees from its property. The tree cutter mistakenly cut some trees on another property owner’s land. That owner, the First National Bank, brought suit to recover the value of the trees prior to their removal. (Amco, 32 Ill. App. 3d at 453.) This court ruled that the proper measure of damages for loss of trees is the depreciation of the value of the realty caused by the tree removal or the value of the trees in their severed condition. (Amco, 32 Ill. App. 3d at 454.) This court refused to deviate from the existing law of Illinois, stating:

“Other jurisdictions, in dispensing justice between the parties, allow the reasonable cost of replacing the trees or for the reasonable cost of restoring the property to approximate, as near as possible, its original condition. [Citation.] This, it would seem, is the more equitable rule, but Illinois law has not, to date, recognized such [a] rule.” Amco, 32 Ill. App. 3d at 454.

Subsequently, the Illinois General Assembly apparently recognized the inequity of this rule and adopted the Wrongful Tree Cutting Act (Tree Act) (Ill. Rev. Stat. 1991, ch. 961/2, par. 9400 et seq.). (Aaron v. Hendrickson (1991), 221 Ill. App. 3d 842, 854.) Section 4 of the Tree Act directs the court to assess damages by taking the average of three independent appraisals of stumpage value, meaning the value as a “standing tree” (see Ill. Rev. Stat. 1991, ch. 96x/2, par. 9401(a)), and awarding triple the average appraisal. (Ill. Rev. Stat. 1991, ch. 96x/2, par. 9404.) However, the Tree Act is inapplicable in our situation as Orchard Hill did not cut the Wujciks’ trees.

Although the Tree Act is not applicable here, it shows the intent of the General Assembly to protect trees on private property through the mandatory issuance of treble damages for wrongfully cutting a tree. We believe that we are expounding on the spirit of the Tree Act with our decision. Our society has become more environmentally conscious, and the law should respond to these concerns by acknowledging environmental injuries and holding wrongdoers accountable for actual damages.

Further, cases from the other appellate districts support our decision. In Myers v. Arnold (1980), 83 Ill. App. 3d 1, the Appellate Court, Fourth District, allowed the plaintiffs to seek the cost to repair their property instead of the difference in value before and after the injury. The plaintiffs asked the defendant construction company to dump two truckloads of concrete on their property. Instead, the defendant dumped between 60 and 70 loads of concrete. (Myers, 83 Ill. App. 3d at 3-4.) The court first recognized the purpose of the tort law:

“The law of torts attempts primarily to restore the injured party to as good a position as he held prior to the tort. [Citation.] In accomplishing that result, courts must be mindful of the fact that rules governing the proper measure of damages in a particular case are guides only and should not be applied in an arbitrary, formulaic, or inflexible manner, particularly where to do so would not do substantial justice.” Myers, 83 Ill. App. 3d at 7.

The Myers court then distinguished the appropriate measure of damages when land is held for only financial interests versus land held for personal use:

“Allowing a plaintiff to recover the lesser of the cost of repair or the diminution in market value may be appropriate where the interest which has been harmed is purely financial, as where the land was purchased as a business investment with an eye towards speculation or where it is held solely for the production of income. However, the same measure of damages may be painfully inadequate when the land is held for a personal use such as a family residence and the harm may be corrected with a reasonable expenditure even though the expenditure exceeds the amount the land has diminished in value. In the latter case, the full repair cost will come much closer to restoring what was actually lost and will not require the injured party to correct the harm with funds from his own pocket.” Myers, 83 Ill. App. 3d at 7.

Although we are not advocating the commercial/residential dichotomy, we agree with the reasoning that the diminution in value may be an inadequate measure of damages when land is damaged, even with commercial property. Nowadays, many commercial buildings are purposely surrounded by an aesthetically pleasing natural environment. As such, the diminution in value may also be an inadequate measure of damages if commercial realty is damaged.

We recognize that some injuries to land may not be replaceable or repairable for a reasonable cost, that being a cost reasonably related to the overall value of the land. The Wujciks cite a case that is instructive on this point. In Arras v. Columbia Quarry Co. (1977), 52 Ill. App. 3d 560, the court distinguished permanent and nonperma-nent injuries, allowing the replacement cost as the measure of damages when the injury is nonpermanent. (Arras, 52 Ill. App. 3d at 564-65.) The Arras court relied on the reasoning of this court in Kremeyer v. Shumate (1959), 20 Ill. App. 2d 542, in which we stated:

“Where the thing which is destroyed or injured, though affixed to the realty, has a distinct value without reference to the real estate upon which it stands, the measure of recovery is for the value or depreciation of value of the thing destroyed or injured, and not for the difference of the value of the land before and after the destruction. Under some circumstances, the proper measure of damages may be the cost of restoration of the property to its condition before the injury occurred, as where the injury is susceptible to be repaired at moderate expense and the cost of restoration may be shown with reasonable certainty.” (Kremeyer, 20 Ill. App. 2d at 546.)

Further, the Arras rationale has been applied by this court. See Frisch Contracting Service Corp. v. Northern Illinois Gas Co. (1981), 93 Ill. App. 3d 799, 806.

We find that the loss of trees here is the type of nonperma-nent injury contemplated in Arras. Further, the injury can be repaired at moderate expense in relation to the value of the entire parcel, thus conforming with the rationale in Kremeyer. We hold that the Wujciks presented sufficient evidence of damages to their property to survive a motion for judgment.

We also mention two other cases that are factually related and are consistent with this holding. In Rodrian v. Seiber (1990), 194 Ill. App. 3d 504, the plaintiff owned land adjacent to the defendant. The defendant built a road along the property line and bulldozed across the corner of the plaintiff’s property, destroying some trees. (Rodrian, 194 Ill. App. 3d at 506-07.) The Appellate Court, Fifth District, upheld a jury award for $20,000 in actual damages even though the entire 15-acre tract was worth approximately $42,000, stating:

“To restore the damaged land to its original contours alone will cost some $18,000, to say nothing of ‘replacing’ all of the trees and vegetation. An award of $20,000 is not so unreasonable or so disproportionate to the value of the land in light of the harm done to justify reversal in this instance.” Rodrian. 194 Ill. App. 3d at 509.

In Pierce v. DeJong (1973), 13 Ill. App. 3d 889, a second district case, the plaintiffs brought suit to recover for the neighbors’ obstruction of the natural flow of surface water. This obstruction caused the plaintiffs’ land to flood, destroying trees and shrubs on their property. (Pierce, 13 Ill. App. 3d at 890.) The trial court awarded, among other damages, $1,470 to replace the trees, shrubs and bushes damaged by the surface water. (Pierce, 13 Ill. App. 3d at 890.) Although this court found that the trial court erred in awarding certain damages to the plaintiffs, the award for the replacement cost of the vegetation was upheld. Pierce, 13 Ill. App. 3d at 892.

Orchard Hill argues that the measure of damages in loss of lateral support cases is the diminution in value, citing Sperry v. Punke (1973), 13 Ill. App. 3d 58.) However, a different measure of damages is suggested by the Adjacent Landowner Excavation Protection Act (Excavation Act) (Ill. Rev. Stat. 1991, ch. HV-k, par. 3300 et seg.). Section 1(2) of the Excavation Act states:

“Any owner or possessor of land upon which an excavation is made, who does not comply with the provisions of subpara-graph 1, when so required, is liable to the owner of adjacent property for any damage to the land or to any buildings or other structure thereon arising from such excavation ***.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. lll1^, par. 3301(2).

The Excavation Act does not mention using a diminution in value criterion, but only states that the wrongdoer is liable for the damage to the land, buildings or other structures. “The cost of repairs or restoration is frequently the proper measure of damages where the injuries are small and full repair or restoration can readily be made.” (1 Am. Jur. 2d Adjoining Landowners §75 (1962).) Although we make no determination as to Orchard Hill’s liability under the Excavation Act, its statement of damages, along with the other case law and secondary sources cited, lead us to conclude that the replacement cost is the proper measure of damages here.

The purpose of tort law is to place the injured party in the position he or she was in before the injury. The failure to recognize the aesthetic and overall environmental value the trees had to the Wujciks is a failure to view the entire picture when assessing damages. Our decision is a recognition of the true value that natural, tangible property inherently possesses.

For the foregoing reasons, the order of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

McLAREN and DUNN, JJ., concur.


author: JUSTICE DOYLE

text:
    SHEILA LEASK, Indiv. and as Special Adm’r of the Estate of Barbara Andrews, Deceased, Plaintiff-Appellant, v. RANDALL L. HINRICHS et al., Defendants (Anthony F. Altimari, Defendant-Appellee).
    Second District
    No. 2—91—0671
    Opinion filed July 7, 1992.

      Lee Phillip Forman, of Lee Phillip Forman, Ltd., of Chicago, for appellant.
    James T. Ferrini and Susan Condon, both of Clausen, Miller, Gorman, Caffrey & Witous, P.C., and Greenberger, Krauss & Jacobs, Ltd., both of Chicago, Clausen, Miller, Gorman, Caffrey & Witous, O’Reilly, Cunningham, Norton & Mancini, and Wildman, Harrold, Allen & Dixon, all of Wheaton, and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, for appel-lees.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Sheila Leask, individually and as special administrator of the estate of Barbara Andrews, appeals the dismissal with prejudice of Dr. Anthony F. Altimari (Dr. Altimari) as a party defendant to her negligence suit. The trial court held that plaintiff’s third amended complaint failed to comply with the requirements of section 2 — 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622). The court also denied plaintiff leave to amend the complaint. Plaintiff appeals pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) and argues that the trial court abused its discretion in dismissing Dr. Altimari with prejudice. Plaintiff also asks us to hold that section 2— 622 violates the constitutional separation of legislative and judicial powers.

On January 17, 1989, after alighting from a bus driven by defendant Ivor Jackson, Barbara Andrews was struck and severely injured by a car driven by defendant Randall L. Hinrichs. Andrews was taken to Edward Hospital, where Dr. Altimari performed emergency surgery on her. Dr. Altimari was Andrews’ attending physician at the hospital until her death from cardiac arrest on February 9,1989.

Plaintiff’s original complaint and her first and second amended complaints named defendants other than Dr. Altimari. On March 30, 1990, the court granted leave to take the discovery deposition of Dr. Altimari, who at that time was not a party. On June 20, 1990, plaintiff took Dr. Altimari’s discovery deposition. In the deposition, Dr. Al-timari stated that he was a physician and a board-certified general surgeon. He was the trauma surgeon on call at Edward Hospital on the evening that Barbara Andrews was injured. He first met Andrews in the emergency room that evening. Dr. Altimari assumed the role of Andrews’ attending physician for as long as she was in the hospital.

Dr. Altimari testified in detail to the surgery and subsequent tests performed on Andrews. He opined that her death, though ultimately related to her injuries of January 17, 1989, was the immediate result of a specific embolic event of February 9, 1990, that brought on acute cardiac arrest or pulmonary embolism. Andrews was being transported on a medical cart when she suddenly complained of shortness of breath, went into apparent cardiac arrest, and died.

Dr. Altimari acknowledged that tests performed on Andrews through February 4, 1989, revealed that her red blood cell count, hemoglobin count, and hematocrit levels all decreased to abnormally low levels during this period. There was also evidence of hematuria (blood in the urine). Urinalysis further suggested the possibility of a urinary tract infection. Dr. Altimari admitted that Andrews told him several times that she was experiencing difficulty urinating. No urine or blood tests were performed on Andrews after February 4,1989.

Dr. Altimari agreed that the autopsy report showed a laceration of Andrews’ bladder, a fact not revealed by any hospital examinations. Dr. Altimari conceded that the bladder laceration could have resulted from Andrews’ initial injuries and may have caused the hema-turia. However, he agreed with the autopsy report that the exact mechanism of Andrews’ death could not be demonstrated.

On December 13, 1990, plaintiff filed her third amended complaint, adding Edward Hospital, Dr. Altimari, and Naperville Surgical Associates (for whom Dr. Altimari worked) as defendants. Counts X through XV sought recovery against all three of the newly added defendants under the Wrongful Death Act (Ill. Rev. Stat. 1989, ch. 70, par. 1 et seq.), the Survival Act (Ill. Rev. Stat. 1989, ch. llOVa, par. 27 — 6), and the family expense act (Ill. Rev. Stat. 1989, ch. 40, par. 1015). It appears that Naperville Surgical Associates, for whom Dr. Altimari worked, has never been served with process. Count XIII alleged that Dr. Altimari and Naperville Surgical Associates were guilty of negligence that proximately caused Andrews’ death. Specifically, plaintiff alleged, in part, that each was negligent for not performing a complete and proper examination of Andrews; for not diagnosing her bladder rupture; for not assigning Andrews to a competent board-certified urologist or nephrologist; and for failing to perform follow-up urine and blood tests that could have alerted the defendants to the condition that ultimately caused Andrews’ death from cardiac arrest.

Plaintiff’s attorney appended an affidavit to the third amended complaint (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 622(a)(1)) stating that he had consulted and reviewed the facts of the case with a physician licensed to practice medicine in all its branches; that plaintiff’s attorney believed the consulting physician was knowledgeable in the issues relevant to the case; that the reviewing physician had determined that there was a reasonable and meritorious cause for filing this action; and that plaintiff’s attorney thereby concluded that there was a reasonable and meritorious cause for the action.

In his report of December 12, 1990, the consulting physician, Dr. Neil Kramer, stated that because he was a board-certified cardiologist, his report would be directed to the “cardiac aspects of [Andrews’] care.” Dr. Kramer’s report concluded that, in his opinion, “no defí-nate [sic] cardiac cause exists for this patient’s demise. However, in the presence of a patient who has sustained pelvic injury with ongoing hematuria and changes in kidney function blood tests, failure to obtain consultation for further urological investigation and/or follow-up of abnormal laboratory data would be considered substandard care and may have contributed to this patient’s demise.”

On February 14, 1991, Edward Hospital moved pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) to dismiss the complaint with prejudice for failure to comply with section 2 — 622. Edward Hospital argued that Dr. Kramer’s report was fatally deficient because it did not distinguish between the actions of the defendant physicians and the defendant hospital. The record does not show that plaintiff responded to this specific motion.

On March 21, 1991, Dr. Altimari also moved to dismiss the complaint with prejudice for failure to follow section 2 — 622. Dr. Altimari argued that the area of medicine at issue in this case was the surgical and post-surgical care of a trauma patient and that Dr. Kramer, a cardiologist, was not an appropriate specialist to file the required report. Dr. Altimari further stated that plaintiff had been aware of Dr. Alti-mari’s extensive deposition testimony since June 20, 1990, giving her ample time to find an appropriate specialist to file the necessary report.

On April 15, 1991, plaintiff filed her response to Dr. Altimari’s motion to dismiss. The response requested that plaintiff be allowed to file an “amendment” that would “cure the defect complained of” in Dr. Altimari’s motion to dismiss.

The proposed amendment was a report dated April 4, 1991, from Dr. Mordehai Sela, a surgeon and urologist. The report discussed the facts of the case in detail and concluded that Dr. Altimari had failed to correctly interpret signs of urine leakage from Andrews’ urethra or bladder. Dr. Sela opined that seepage of urine into the patient’s pelvic area, combined with other mistakes in treatment, resulted in Andrews’ death. Dr. Sela specifically concluded that the outcome of the treatment could have been different had there been an adequate initial evaluation of the patient and a consultation with a urological surgeon. Therefore, according to Dr. Sela, there was reason to blame the negligence of Dr. Altimari and others for Andrews’ death and reasonable cause for filing the action against Dr. Altimari.

On April 18, 1991, Dr. Altimari responded in writing to the proposed amendment. Dr. Altimari argued that by moving to substitute Dr. Sela’s report plaintiff was conceding that Dr. Kramer’s report was inadequate. Thus, Dr. Altimari argued, plaintiff had violated section 2 — 622 because she had failed to file a proper physician’s report at the time her complaint added Dr. Altimari as a defendant.

On April 24, 1991, the trial court dismissed Edward Hospital as a defendant. The dismissal was with prejudice, although plaintiff had orally moved for a voluntary dismissal. Plaintiff at no point challenged this order.

On May 17, 1991, plaintiff filed a written reply to Dr. Altimari’s response to her proposed amendment. Plaintiff argued that the report by Dr. Kramer was adequate because it stated that the failure to obtain further urological consultations was a breach of the applicable standard of care. Plaintiff also denied that the motion to add Dr. Se-la’s report was an admission that Dr. Kramer’s report was inadequate.

On May 17, 1991, the court heard argument on Dr. Altimari’s motion. Addressing plaintiff’s attorney, the trial judge said, “you seem to agree that [Dr. Kramer’s] report is deficient. And you wish to substitute another doctor?” Plaintiff’s attorney replied, “That’s correct, your Honor.” Counsel for plaintiff and for Dr. Altimari then argued whether Dr. Sela’s report satisfied section 2 — 622.

The trial judge concluded that Dr. Kramer’s report was inadequate because it did not distinguish between the conduct of the doctor and the hospital and did not “contain the words, that there was a good and meritorious cause of action.” The judge found that Dr. Sela, as a urologist and a medical doctor, was qualified to make the report. The judge found no fault with Dr. Sela’s report.

The court nonetheless refused the proposed amendment and dismissed the case against Dr. Altimari with prejudice. The judge referred to the delay between Dr. Altimari’s deposition and the filing of the third amended complaint, noting that in all this time plaintiff had failed to submit a proper report with the complaint. Plaintiff had not asked for extra time to file the required medical report. The court entered a written order dismissing the case and specifically finding that there was no just reason to delay enforcement or appeal of the order. (See 134 El. 2d R. 304(a).) Plaintiff filed this timely appeal.

Plaintiff argues that the trial court erred in dismissing the complaint for failure to comply with section 2 — 622(a)(1). The first contention in this regard is that the trial court erred in holding that Dr. Kramer’s report did not satisfy section 2 — 622(a)(1).

We conclude that plaintiff has waived this argument. Her original response to Dr. Altimari’s motion to dismiss did not defend Dr. Kramer’s report but submitted an amendment to “cure the defect complained of” in Dr. Altimari’s motion. Plaintiff later filed an argument defending Dr. Kramer’s report. However, at the hearing on the motion, her attorney stated unequivocally that plaintiff wished to substitute Dr. Sela’s report for Dr. Kramer’s report. Plaintiff’s attorney did not thereafter attempt to defend Dr. Kramer’s report. Rather, he argued that Dr. Sela’s report was adequate and that the amendment should be allowed.

A reviewing court will recognize the principle of waiver whenever a party intentionally relinquishes a known right or acts in such a manner as to warrant an inference of such relinquishment. (In re Estate of Trahey (1975), 25 Ill. App. 3d 727, 731.) Issues not raised in the trial court are deemed waived and may not be raised on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500-01.) Having acknowledged that she wanted to amend her complaint by substituting a new medical report for the original one, plaintiff waived the right to rely on the original medical report. She therefore waived the argument that her third amended complaint, as originally filed, met the requirements of section 2 — 622(a)(1). We believe, however, that the question of the sufficiency of Dr. Kramer’s report is relevant to our consideration of whether the trial court abused its discretion in dismissing plaintiff’s complaint and denying her leave to amend the complaint with Dr. Sela's report.

Plaintiff argues next that the trial court lacked the authority to dismiss the complaint with prejudice solely because the medical report filed with the complaint was insufficient. Plaintiff points to Huff v. Hadden (1987), 160 Ill. App. 3d 530. There the Appellate Court, Fourth District, held that, although section 2 — 622(a)(1) requires the filing of both a consultation affidavit and a medical report with the complaint, section 2 — 622(g) provides for dismissal only for the failure to file the “certificate,” i.e., the consultation affidavit. This court also has held that the term “certificate” as used in section 2 — 622 refers specifically to the consultation affidavit. Premo v. Falcone (1990), 197 Ill. App. 3d 625, 629; Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 948.

Plaintiff did not raise this argument at the trial level, and we may therefore consider it waived. (Barkei v. Delnor Hospital (1990), 207 Ill. App. 3d 255, 263.) Further, even if we were to disregard the waiver rule, we find it unnecessary to resolve the issue here, as it would not affect the result. Assuming arguendo that the trial court had the discretion to dismiss Dr. Altimari and to deny plaintiff leave to amend based solely on an insufficient medical report, we hold that under the circumstances of this case the court abused that discretion.

The trial court’s discretion must be viewed in relation to the basic purpose of section 2 — 622. This purpose is to deter frivolous medical malpractice suits at an early stage. (DeLuna v. St. Elizabeth’s Hospital (1992), 147 Ill. 2d 57, 65; McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 193.) Ensuring that the plaintiff has a meritorious claim is the touchstone of section 2 — 622. (Wasielewski v. Gilligan (1989), 189 Ill. App. 3d 945, 949; Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 1037.) The technical pleading requirements imposed by section 2 — 622 should not be utilized to deprive a plaintiff of a trial on the merits of a medical malpractice claim. (Simpson v. Illinois Health Care Services, Inc. (1992), 225 Ill. App. 3d 685, 689; Requena v. Franciscan Sisters Health Care Corp. (1991), 212 Ill. App. 3d 328, 333.) Amendments to medical malpractice pleadings should be liberally allowed so that the case may be decided on its merits. Cato v. Attar (1991), 210 Ill. App. 3d 996, 999; Moss v. Gibbons (1989), 180 Ill. App. 3d 632, 638.

Under the facts of this case, involuntary dismissal with prejudice of the malpractice claim against Dr. Altimari does not appear to have served the purpose of section 2 — 622. Nothing in the record demonstrates that plaintiff is bringing a frivolous claim, and it appears that plaintiff acted in good faith to secure the required medical opinion to support the claim. Moreover, any undue prejudice to Dr. Altimari from allowing plaintiff to amend her complaint is unclear at best.

Plaintiff timely filed both the required consulting affidavit and the required medical report. Although plaintiff apparently conceded that Dr. Kramer’s report was inadequate, any inadequacies in that report are not so glaring as to suggest bad faith or abuse of the legal process on plaintiff’s part.

The trial judge specifically found that Dr. Kramer’s report was defective in that (1) it did not “distinguish between the doctor and the hospital” and (2) it did not contain the words “that there was a good and meritorious cause of action.” However, the medical report need not contain the specific words “good and meritorious cause of action”; it is sufficient that the consulting health care professional has given reasons for his conclusion that the cause has merit. Hagood v. O’Conner (1988), 165 Ill. App. 3d 367, 373.

Dr. Kramer’s report did not explicitly distinguish between the involvement of Dr. Altimari and the hospital. A single medical report in a suit against multiple defendants (the situation at the time Dr. Kramer made his report) should be broad enough to cover all the defendants and should adequately discuss deficiencies in the medical care given by the defendants. (Premo v. Falcone (1990), 197 Ill. App. 3d 625, 632.) The report should discuss the involvement of each defendant. (Moss, 180 III. App. 3d at 638.) Although the report did not specifically delineate the negligence of Dr. Altimari (as opposed to that of the hospital), this shortcoming appears unlikely to have caused significant confusion or prejudice.

Dr. Kramer’s statement that the failure to obtain consultation for further urological investigation or follow-up of abnormal laboratory data was substandard care was an implicit conclusion that Dr. Alti-mari, as the attending physician for Barbara Andrews, was negligent in determining what tests should be performed. Because prejudicial confusion was unlikely under these circumstances (see Alford v. Phipps (1988), 169 Ill. App. 3d 845, 855), vagueness in Dr. Kramer’s report is a relatively minor shortcoming which does not necessarily suggest a lack of diligence on plaintiff’s part or prejudice to Dr. Alti-mari therefrom.

Dr. Altimari did not challenge Dr. Kramer’s report until March 21, 1991. Within a month thereafter, plaintiff moved to amend the complaint by adding a detailed and apparently satisfactory medical report. This report was dated April 4, 1991, about two weeks after Dr. Altimari’s motion to dismiss.

Considering all of these circumstances, we are compelled to hold that the trial court abused its discretion in dismissing Dr. Alti-mari with prejudice rather than allowing plaintiff to amend the complaint. Plaintiff provided a satisfactory medical report less than a month after the original report (which was not grossly deficient) was challenged. Although some inconvenience to Dr. Altimari may have resulted from plaintiff’s delay, such inconvenience or delay is insufficient in itself to deny a medical malpractice plaintiff leave to amend. (Moss, 180 Ill. App. 3d at 639, citing Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 591.) The trial court never implied that plaintiff’s claim against Dr. Altimari was frivolous and found no fault with the report of Dr. Sela which stated that the suit had merit.

In Cato v. Attar (1991), 210 Ill. App. 3d 996, this court reversed the denial of the plaintiff’s motion to amend her medical malpractice claim and the dismissal of that claim with prejudice. The plaintiff did not attach a consultation affidavit or a written medical report with her complaint. She forewent the requirements of section 2 — 622 in reliance on the holding of the Appellate Court, First District, in DeLuna v. St. Elizabeth’s Hospital (1989), 184 Ill. App. 3d 802, rev’d (1992), 147 Ill. 2d 57, that section 2 — 622 was unconstitutional. We noted that before the first district’s decision this court had already upheld the constitutionality of the statute in Bloom v. Guth (1987), 164 Ill. App. 3d 475, 478-79. In holding in Cato that the trial court should have granted the plaintiff’s prompt motion to amend her complaint, we reasoned that, despite the plaintiff’s poor legal research, there was no indication of bad faith or an intent to frustrate justice by the plaintiff and no showing that defendant would have been prejudiced had the amendment been allowed or the complaint been dismissed without prejudice.

Such considerations apply with at least equal force here, where plaintiff timely filed both the consultation affidavit and the report required by statute and moved promptly to amend the complaint upon the motion to dismiss. Plaintiff’s conduct here seems neither less reasonable, nor more indicative of a frivolous lawsuit, than that of the plaintiff in Cato. (See also Simpson v. Illinois Health Care Services, Inc. (1992), 225 Ill. App. 3d 685 (dismissal with prejudice was abuse of discretion where plaintiff filed required affidavit and report late but was diligent in attempting to submit the report on time).) Accordingly, we hold that the trial court abused its discretion in dismissing plaintiff’s complaint with prejudice and denying plaintiff leave to amend ■with the medical report of Dr. Sela.

Cases on which Dr. Altimari relies all involve conduct far more indicative of the plaintiffs’ irresponsibility or the lack of a meritorious suit than plaintiff’s conduct here. In Premo v. Falcone (1990), 197 Ill. App. 3d 625, the plaintiffs filed no consultation affidavit at all until they moved to reconsider the trial court’s grant of involuntary dismissal. The plaintiffs were also late in filing their written medical reports. The original medical report was grossly insufficient, and the report submitted with the motion for reconsideration was only somewhat better. In Batten v. Retz (1989), 182 Ill. App. 3d 425, both the consultation affidavit and the medical report were filed late, and the documents were grossly deficient in several respects. Moreover, the plaintiff’s motion to amend did not include a proposed complaint with certificates and reports in compliance with section 2 — 622. Thus, the plaintiff had done nothing to demonstrate that the complaint was not frivolous. In Moss v. Gibbons (1989), 180 Ill. App. 3d 632, the plaintiff filed both the certificate and the medical report late and without leave of court. The medical report was seriously deficient. The consultation affidavit predated the report and thus violated the requirement that it be based on a review of the report. Finally, the plaintiff did not submit any proposed amendments when seeking leave to amend the complaint.

Plaintiff also asks this court to declare that section 2 — 622 is an unconstitutional breach of the separation of powers. However, we must follow the supreme court’s recent holding that section 2 — 622 is valid. See DeLuna v. St. Elizabeth’s Hospital (1992), 147 Ill. 2d 57.

The judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and McLAREN, J., concur.