text:
    PIONEER BANK AND TRUST COMPANY, Plaintiff-Appellee, v. SEIKO SPORTING GOODS, U.S.A. COMPANY, et al., Defendants (Continental Illinois National Bank and Trust Company of Chicago, Defendant-Appellant).
    First District (1st Division)
    No. 1—88—1625
    Opinion filed May 15, 1989.
    — Rehearing denied July 17, 1989.

      Richard H. Ferri, of Chicago, for appellant.
    Herbert Beigel and Leigh R. Lasky, both of Beigel & Sandler, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Continental Illinois National Bank and Trust Company of Chicago, appeals from a judgment entered by the circuit court of Cook County against Continental and in favor of plaintiff, Pioneer Bank and Trust Company, as a result of the court’s finding that Continental had improperly made payments under a letter of credit and had wrongfully charged Pioneer’s account for the amount of those payments. On appeal, Continental contends that: (1) Pioneer waived its right to object to Continental’s payment of the drafts; (2) Pioneer failed to mitigate its damages; (3) Pioneer’s damages were not caused by Continental; and (4) Continental met its burden of proof to establish that Pioneer had authorized payment of the drafts presented under the letter of credit. For the following reasons, we affirm the judgment of the circuit court.

The record sets forth the following facts relevant to this appeal. In March 1982, Seiko Sporting Goods, U.S.A. Company, an importer and distributor of sporting goods, requested a commercial letter of credit from Pioneer to guarantee payment of its purchase of tennis rackets from Li Mao Sports Company, Inc., located in Taiwan. Because Pioneer did not issue international letters of credit on its own, but only as a correspondent bank, Pioneer contacted Continental. As a result, Pioneer and Seiko, as coapplicants, applied for an irrevocable letter of credit from Continental and Pioneer opened an account at Continental on behalf of Seiko from which the drafts on the letter of credit would be paid. Seiko, in turn, signed a note with Pioneer to secure the account Pioneer had opened at Continental on Seiko’s behalf.

On March 30, 1982, Continental issued its irrevocable letter of credit with an expiration date of April 27, 1982. The expiration date was subsequently amended twice in writing to May 8, 1982, and then to June 10, 1982. The letter of credit contained, inter alia, the following terms:

(1) The goods were to be shipped to Chicago via Sealand Inland America Vessel Mariner-18 leaving on April 23, 1982;
(2) the goods were to be shipped FOB vessel from Keelung, Taiwan;
(3) the first negotiating bank was to send one original of each document directly by airmail to: C. Skierkiewicz, 3113 N. Central, Chicago, Illinois 60634.

On June 18, 1982, Chris Stoller, one of the owners of Seiko, telephoned Continental and informed Gary Muller, a letter of credit negotiator, that there were some documents coming in which contained discrepancies and Continental was not to pay them until it heard further from Seiko. At that time, Muller informed Stoller that because Pioneer, not Seiko, was Continental’s customer, authorization as to payment of any drafts with discrepancies would have to be given by Pioneer. As a result of this conversation, Muller called Mike Meyer of Pioneer a few days later and told him that the first set of documents had arrived and there were discrepancies on them. One of the drafts was timely presented, but contained a discrepancy as to the name of the shipping vessel. The other two drafts were not presented until after the letter of credit’s expiration date of June 10, 1982. Timeliness of presentment was determined by the date on which documents were delivered to the first negotiating bank in Taiwan.

Muller also told Meyer about his conversation with Chris Stoller. Meyer then told Muller that he would contact Stoller to find out how the matter was to be resolved and to temporarily keep the documents on hold. Several days later, Muller called Meyer again to find out how things were going. Meyer told him that the matter had not been resolved and it should be kept on hold. When Muller left for vacation on June 25, he still had not heard from Meyer. Muller left the file for Matt Quebbeman with a note stating that the matter was to remain on hold until Pioneer contacted them.

Subsequently, on either June 28 or June 30, Quebbeman called Terry Blaida, vice-president of commercial lending at Pioneer, and asked what Pioneer wanted Continental to do with the documents. Blaida told Quebbeman that he was in contact with Seiko and would get back to him. Quebbeman testified that when he called Blaida again to ask him about the discrepancies, Blaida told him that he did not foresee any problems paying the drafts and that he would get back to him later that day. Blaida did not tell Quebbeman to pay the drafts, nor did he tell him not to pay them. When Quebbeman did not hear anything further from Blaida, Quebbeman put the drafts through for payment on June 30. On cross-examination, Quebbeman stated that even though the original bills of lading were shipped directly to Seiko, if the documents received by Continental did not conform to the letter of credit terms, pursuant to standard policy, Continental was not to pay the drafts unless Pioneer waived the discrepancies. The trust receipts used by Continental provided for waiver of discrepancies on letter of credit documents by signature of the customer. Pioneer never signed the receipts.

On July 1, when Blaida called Quebbeman and inquired as to the status of the discrepancies, Quebbeman told him that he had processed the drafts the day before. As a result, Continental had debited Pioneer’s account for the amount of the payments on the drafts and had sent all documents to Pioneer.

Seiko never paid Pioneer on its note, and on April 21, 1983, Pioneer filed its cause of action against Seiko (counts I and II); Leo Stoller, guarantor of Seiko’s note (counts III and IV); and Continental (count V). Following a bench trial, the circuit court entered judgment as to count V in favor of Pioneer and against Continental. Thereafter, the circuit court denied Continental’s post-trial motion. Continental’s timely appeal followed.

Initially, Continental contends that Pioneer waived its right to object to Continental’s payment of the drafts because: (1) Pioneer allowed Seiko to accept the goods, and (2) Pioneer allowed documents of title to be consigned to Seiko. With respect to Seiko’s alleged acceptance of the goods, Continental argues that Pioneer is accountable for Seiko’s actions and that Seiko knew as early as June 18 that there were discrepancies in the documents, yet still picked up the goods. Continental offers no legal authority to support its theory of accountability. Further, Continental claims that at no time prior to June 30 did Pioneer ever advise Continental not to pay the drafts.

Section 5 — 103(l)(a) of the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1985, ch. 26, par. 5 — 103(l)(a)) defines a letter of credit as “an engagement by a bank or other person made at the request of a customer *** that the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the credit.” Generally, three separate agreements are involved in a letter of credit transaction: the contract between the issuer and its customer whereby the issuer agrees to issue the letter of credit to the beneficiary of the letter of credit; the contract between the customer and the beneficiary, which is the agreement underlying the letter of credit; and the letter of credit itself, whereby the bank agrees to pay the beneficiary the amount of the letter of credit, if the beneficiary complies with the terms of the letter of credit. (Mount Prospect State Bank v. Marine Midland Bank (1983), 121 Ill. App. 3d 295, 459 N.E.2d 979.) The letter of credit is independent of the underlying contract, and the obligations under the letter of credit have no relationship to compliance of the buyer or seller with the underlying contract. The issuer deals only with the documents, which must comply with the terms of the letter of credit. (Pastor v. National Republic Bank (1979), 76 111. 2d 139, 390 N.E.2d 894.) When the documents presented comply with the conditions specified in the letter of credit, the issuer is authorized and obligated to pay. Conversely, when the documents do not comply, the issuer is not authorized to pay until discrepancies are waived by its customer. (See Pastor v. National Republic Bank, 76 111. 2d 139, 390 N.E.2d 894.) Essentially, the issuer’s function regarding a letter of credit is ministerial. Mount Prospect State Bank v. Marine Midland Bank, 121 Ill. App. 3d 295, 459 N.E.2d 979.

Application of the general rules regarding a letter of credit transaction to the present case indicates that Seiko’s actions with respect to the goods themselves and with respect to the documents of title are independent of any obligation Continental has with respect to the letter of credit. If the documents seeking payment did not comply with the terms of the letter of credit, then Continental was not authorized to issue payments unless Pioneer waived the discrepancies. There is no indication in the record that Pioneer ever waived the discrepancies, either orally or in writing.

In addition, Continental’s statement that Pioneer never told it not to pay the drafts is equally unpersuasive. Matthew Quebbeman of Continental stated that if the documents received by Continental did not conform to the terms of the letter of credit, it was standard policy that Continental was not to pay unless the discrepancies were waived. Thus, even if Pioneer had not expressly told Continental not to pay the drafts, pursuant to Continental’s own policy, if discrepancies had not been waived, Continental had no authority to pay the drafts.

Further, although Continental has properly relied on North Valley Bank v. National Bank (N.D. Ill. 1977), 437 F. Supp. 70, Northern Trust Co. v. Oxford Speaker Co. (1982), 109 Ill. App. 3d 433, 440 N.E.2d 968, and Continental National Bank v. National City Bank (9th Cir. 1934), 69 F.2d 312, for its contention that waiver/ estoppel arguments are appropriate regarding letter of credit transactions, these cases do not support application of the waiver defense in the present case. First, the courts in North Valley Bank and Northern Trust Co. merely addressed the propriety of the defense regarding a letter of credit transaction and remanded the causes for consideration of the defense. As an additional point of distinction, in Northern Trust Co., Oxford Speaker Co. claimed that but for Northern’s assurances and expertise regarding compliance with the letter of credit requirements, it would never have entered into the sales transactions. This situation of detrimental reliance is not present in the case at bar. Finally, in Continental National Bank, the court recognized the application of waiver, but based its decision on other grounds. In fact, Continental National Bank supports the general rule that an issuing bank’s sole concern, unless otherwise specified in the letter of credit, is whether the draft conforms to the terms of the letter of credit, and this concern is independent of any claims made regarding the goods.

We also find Continental’s second ground for waiver unpersuasive, i.e., that Pioneer allowed documents of title to be consigned to Seiko. This argument fails for three reasons. First, as previously discussed, the letter of credit is independent of the underlying sale of goods or the passing of title. Second, Continental drafted the letter of credit with full knowledge of the provision that original bills of lading were to be sent to Seiko. Continental cannot now claim waiver based on instructions to which it knowingly acquiesced. (See Hansen v. Board of Education (1986), 150 Ill. App. 3d 979, 502 N.E.2d 467.) Third, at trial, Matthew Quebbeman, letter of credit negotiator for Continental, testified that even if original bills of lading were shipped directly to the buyer, if the documents received by Continental did not conform to the letter of credit terms, it was Continental’s policy not to pay unless the discrepancies were waived.

Finally, in its reply brief, Continental argues that under the principal/agent theory, Pioneer became bound by Seiko’s acceptance of the goods. Once again, Continental offers no legal authority to support this attenuated argument, and, accordingly, we decline to address it. See Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 457 N.E.2d 85.

Next, Continental contends that Pioneer failed to mitigate damages incurred by Seiko’s failure to pay the note due and owing Pioneer as security for the letter of credit. However, Continental neglects to explain what effect this alleged failure has on Pioneer’s right to a judgment against Continental. Based on the prayer for relief, we assume that Continental believes that Pioneer’s failure to mitigate is grounds for reversal of the entire judgment.

Specifically, Continental claims that because Pioneer knew that the drafts had been paid and that the goods, in which Pioneer had a security interest, were in Seiko’s possession, Pioneer should have made some reasonable effort to secure or to protect the goods. Continental further argues that Pioneer’s failure to take any action constitutes a failure to mitigate damages.

Preliminarily, although the duty to mitigate damages has been recognized by some courts (Wichita Eagle & Beacon Publishing Co. v. Pacific National Bank (N.D. Cal. 1971), 343 F. Supp. 332, rev’d on other grounds (9th Cir. 1974), 493 F.2d 1285; Maurice O’Meara Co. v. National Park Bank (1925), 239 N.Y. 386, 146 N.E. 636), the Code does not explicitly set forth this duty. Damages which may invoke the “duty to mitigate” have been defined as “ ‘damages which the plaintiff might have avoided with reasonable effort without undue risk, expense, or humiliation [and] are either not caused by the defendant’s wrong or need not have been ***.’ ” (Toyota Industrial Trucks U.S.A., Inc. v. Citizens National Bank (3d Cir. 1979), 611 F.2d 465, 471, quoting 11 Williston on Contracts §1353, at 274 (3d ed. 1968).) The burden of proof that the injured party has failed to mitigate damages is on the party who has breached the contract. (Toyota Industrial Trucks U.S.A., Inc. v. Citizens National Bank (3d Cir. 1979), 611 F.2d 465.) However, the duty to mitigate may not be invoked by one who has breached a contract as grounds for a hypercritical examination of the injured party’s conduct, or as evidence that the injured party might have taken steps which seemed wiser or would have been more advantageous to the breaching party. In re Kellett Aircraft Corp. (3d Cir. 1950), 186 F.2d 197.

In the present case, Continental claims that Pioneer failed to show that it had done anything to mitigate its damages. However, it is Continental’s burden to prove this affirmative defense, not Pioneer’s, and the record is void of any evidence that Continental has met this burden. In fact, the record refutes Continental’s allegation. For example, Pioneer’s complaint is evidence on its face that it took action against Seiko and Stoller, as guarantor of the note, to recover the amount wrongfully paid by Continental. Further, the complaint alleges that Pioneer had made repeated demands on Seiko and Stoller for payment. Moreover, because the damages caused to Pioneer were solely the result of Continental’s breach of its obligation not to pay drafts drawn on the letter of credit if there were discrepancies in the documents, Pioneer is under no duty to mitigate. (Toyota Industrial Trucks U.S.A., Inc. v. Citizens National Bank (3d Cir. 1979), 611 F.2d 465.) Although it would have been more advantageous to Continental if Pioneer had taken possession of the goods from Seiko and sold them to mitigate its losses, Pioneer had no legal obligation to incur the time or the expense of collecting the goods and arranging for their sale. Toyota Industrial Trucks U.S.A., Inc. v. Citizens National Bank (3d Cir. 1979), 611 F.2d 465.

Next, Continental claims that it did not cause Pioneer’s damages. Continental predicates this argument on section 2 — 319(4) of the Code, which it claims requires the buyer to make payment for goods shipped FOB vessel when the required documents are tendered to the buyer. Continental asserts that because the original bills of lading were sent directly to Seiko’s agent, Seiko had an obligation to pay. Thus, Continental’s payment of the drafts drawn on the letter of credit could not have resulted in any harm to Seiko or Pioneer.

Once again, Continental offers no legal authority to support its interpretation of section 2 — 319(4). In fact, Continental omits crucial language of that section which adds the caveat, “unless otherwise agreed.” In the present case, payment was not made directly by the buyer to the seller. Instead, payment was to be made pursuant to a letter of credit. Thus, the buyer and seller had “otherwise agreed” to the method of payment, and the provisions of section 2 — 319(4) are inapplicable. By virtue of the letter of credit, Continental’s obligations were independent of the buyer’s and seller’s mutual obligations. (Mount Prospect State Bank v. Marine Midland Bank (1983), 121 Ill. App. 3d 295, 459 N.E.2d 979.) Continental was obligated to pay only if the drafts conformed to the letter of credit or if any discrepancies in the draft were waived by Pioneer. Neither situation for payment occurred in the present case. Accordingly, we find that Continental wrongfully paid and charged the payment against Pioneer’s account, which action clearly resulted in damages to Pioneer.

Next, Continental asserts that it had established that Pioneer had authorized payment of the drafts presented under the letter of credit. Continental predicates this assertion on the testimony of Terry Blaida, vice-president of commercial lending at Pioneer, and claims that Blaida’s statement to Continental’s Matthew Quebbeman that if there were any problems, Blaida would get back to him that day, coupled with Blaida’s failure to call back, “raises the presumption that Pioneer authorized payment.” Further, “jb]ecause the presumption is unrebutted, Continental is entitled to prevail.” Once again, Continental offers no legal authority to support this theory.

Further, even if Continental had a viable legal theory, the facts do not support its conclusion. At best, it is unclear exactly what Blaida said to Quebbeman. In its brief, Continental chose excerpts from Blaida’s testimony during cross examination and during redirect, but neglected to include the following testimony given during direct:

“[Blaida]: Later in the day, Mr. Quebbeman called me from Continental.
[Counsel]: Do you recall when that conversation took place?
[Blaida]: It was later in the afternoon. And at that time, I conveyed to Mr. Quebbeman my conversations with Leo Stoller, in which, again, Leo Stoller said he wasn’t aware of any reason why it should not be paid out but that we should wait for a final decision until he heard from his brother, Chris Stoller.
[Counsel]: And what did Mr. Quebbeman say?
[Blaida]: Mr. Quebbeman responded that they needed to make a decision that working day, if possible, and to which I responded, ‘All we can go on is by the facts we have now, and the facts are that they are not authorizing payment of the letter of credit and I will attempt to contact them again and see if we have a decision.’
[Counsel]: Did you, in fact, try to contact Seiko again that day?
[Blaida]: Yes, I did.
[Counsel]: And did you speak to somebody?
[Blaida]: I spoke to Leo Stoller again.
[Counsel]: And what did Mr. Stoller have to say, if anything?
[Blaida]: He said that he had not been able to contact his brother Chris yet, but that he would continue trying to do so and that there was no change in decision from our previous conversation.
[Counsel]: Did you then call Continental back?
[Blaida]: No, I didn’t.”

Further, the record indicates that the procedure for waiving discrepancies in letter of credit transactions is to have the authorizing party sign the waiver portion on the trust receipts prepared by Continental. In the present case, this was never done even though all prior amendments to the letter of credit had been made in writing. Based on evidence in the record, we find that Continental had failed to establish that a verbal authorization, even if unequivocal, would have been sufficient under the terms of the letter of credit.

Finally, Continental argues that it had proved by a preponderance of the evidence that it had acted in good faith in honoring the drafts. Therefore, pursuant to paragraph 8 of the letter of credit agreement, which states that any actions taken by Continental in good faith are binding on Pioneer, Continental claims that it is not liable. Without supporting legal authority, Continental contends that the fact it had called Pioneer to obtain instructions is sufficient evidence of its good faith.

We find this argument to be without merit. Even assuming that Blaida’s conversation with Quebbeman was exactly as Continental would like this court to believe, it was still equivocal, and reliance on it in light of the notes in the file from Muller and Stoller that payment should not be made and the ramifications of wrongful payment is not evidence of good faith.

For the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.

      Continental claims that the call was made on June 28; Pioneer claims that it was made on June 30.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH PRESIDING JUSTICE BARRY,

license: Public Domain

text:
    SYLVIA FORTSON, Appellant, v. THE INDUSTRIAL COMMISSION et al. (University of Illinois Medical Center, Appellee).
    First District (Industrial Commission Division)
    No. 1—87—1963WC
    Opinion filed May 26, 1989.
    — Rehearing denied July 18, 1989.
    BARRY, P.J., dissenting.
    Sylvia Fortson, of Chicago, appellant pro se.

      Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

We consider here the question of subject-matter jurisdiction of the circuit court. On June 12, 1986, the Industrial Commission (Commission) affirmed an arbitrator’s award in favor of claimant for temporary total disability. The Commission order also recited that the probable cost of the record to be filed as part of any review of the decision of the Commission was $35. Claimant decided to seek review.

On July 1, 1986, claimant presented a handwritten request to the Commission asking that payment of the fee for preparation of the record be waived together with a notice setting the motion for hearing on July 10, 1986. Before receiving a ruling on that motion, however, on July 3, 1986, claimant filed an application to sue or defend as a poor person with the circuit court of Cook County requesting review of the Commission’s decision.

On the same day, the application to sue and defend as a poor person was considered ex parte and granted by a judge of the circuit court of Cook County, as evidenced by a check mark in the box labeled “application granted” on the face of the application, followed by the signature of the trial judge and a file stamp bearing the trial judge’s name also dated July 3, 1986. The record also reveals that summons issued and a certificate of mailing was made on July 3, 1986, although there is no written request for issuance of summons contained in the record.

Claimant’s motion before the Commission was heard and denied in a written order entered on August 4, 1986. Upon payment of the $35 fee, the Commission issued a receipt for payment of the probable cost of the record on August 19, 1986, which was subsequently filed with the circuit court on August 22,1986.

Respondent moved to dismiss the circuit court proceeding for lack of subject-matter jurisdiction. The trial court granted the motion and claimant filed a timely notice of appeal.

On appeal the parties raise the issue of whether the circuit court lacked subject-matter jurisdiction because summons was issued prior to verification by the circuit court clerk that the probable cost of the record had been paid. On our own motion, this court raised the issue of the effect, if any, of the circuit court’s order allowing claimant’s application to sue or defend as a poor person either prior to or simultaneous with the issuance of summons.

The cases are legion which state that failure to strictly comply with the provisions of section 19(f)(1) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1)) deprives the circuit court of subject-matter jurisdiction. (Malone v. Industrial Comm’n (1986), 141 Ill. App. 3d 116, 489 N.E.2d 1167.) Section 19(f)(1) of the Act provides in relevant part:

“[N]o summons shall issue unless the party seeking to review the decision of the Commission shall exhibit to the clerk of the Circuit Court proof of payment by filing a receipt showing payment or an affidavit of the attorney setting forth that payment has been made of the sums so determined to the Secretary or Assistant Secretary of the Commission, except as otherwise provided by Section 20 of this Act.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1).)

Strict compliance with the Act has been relaxed only to the extent a receipt need not actually be exhibited as long as the circuit clerk has assured himself the probable cost of the record has actually been paid prior to the issuance of summons. Malone, 141 Ill. App. 3d 116, 489 N.E.2d 1167.

It is conceded by claimant the requirements of section 19(f)(1) were not met. Claimant argues, however, her request to waive the fee for issuance of summons which was pending before the Commission when review to the circuit court was sought is sufficient to obviate the need to strictly comply with section 19(f)(1), since the 20-day statutory period for filing for review of the Commission decision was running and, according to claimant, no commissioner was immediately available to consider her motion to waive the fee.

Section 20 of the Act provides in pertinent part:

“If the Commission shall, before or after any hearing, proceeding, or review to any court, be satisfied that the employee is a poor person, and unable to pay the costs and expenses provided for by this Act, the Commission shall permit such poor person to have all the rights and remedies provided by this Act, including the issuance and service of subpoenas; a transcript of testimony and the record of proceedings at hearings before an Arbitrator or the Commission; the right to have the record of proceedings certified to the circuit court; the right to the filing of a written request for summons; and the right to the issuance of summons, without the filing of a bond for costs and without the payment of any of the costs provided for by this Act.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.20.)

The question is whether a pending motion seeking relief from payment of costs filed with the Commission relieves a party from complying with section 19(f)(1) before a petition for review in the circuit court may be filed and summons issue. We hold that it does not.

In Moweaqua Coal Mining & Manufacturing Co. v. Industrial Comm’n (1926), 322 Ill. 403, 153 N.E. 678, the supreme court stated:

“The statute says plainly that no praecipe for a writ of certiorari may be filed and no writ shall issue until the parties seeking the writ shall exhibit to the circuit clerk a receipt showing payment of the amount of the probable cost of the record to be filed as a return to the writ of certiorari. The purpose of the statute is to coerce the payment of an amount sufficient to cover the cost of the record which the Industrial Commission must prepare. The legislature has seen fit to make the payment of this amount a condition precedent to the issuance of the writ. The language of the statute is plain and there is no room for construction. The clerk had no authority to issue the writ and it was properly quashed on motion.” (322 Ill. at 405, 153 N.E. at 678-79.)

While it has been held, albeit in different circumstances, a circuit court order allowing a motion to “ ‘commence and prosecute’ ” a lawsuit as a poor person may relieve a claimant of the burden of exhibiting a receipt for payment of costs, “[i]f no such order is entered the clerk must observe the statute and decline to issue the writ [now summons], unless such receipt is exhibited.” (Visioni v. Industrial Comm’n (1942), 379 Ill. 608, 615, 42 N.E .2d 64, 67.) Since no order of the Commission waiving fees existed, the clerk of the circuit court was not authorized to issue summons in the absence of compliance with section 19(f)(1).

We now turn to consideration of the issue this court raised sua sponte as to the effect, if any, of the order waiving fees and costs in the circuit court entered by a trial judge on the same date claimant filed her application for leave to sue or defend as a poor person with the circuit clerk. While no cases are called to our attention which are directly on point, we find instructive the supreme court’s discussion in Visioni v. Industrial Comm’n (1942), 379 Ill. 608, 42 N.E .2d 64. That case arose under the Workmen’s Occupational Diseases Act (Ill. Rev. Stat. 1941, ch. 48, par. 172.1 et seq.). The employee filed a motion in the circuit court for leave to sue as a poor person simultaneous to the filing of the praecipe for writ of certiorari. The Industrial Commission had previously denied a request for leave to sue as a poor person because the Workmen’s Occupational Diseases Act in effect at the time did not contain a provision similar to section 20 of the present Workers’ Compensation Act (then section 19a of the Act (Ill. Rev. Stat. 1941, ch. 48, par. 156a)), which would have permitted the Commission to waive fees had the case arisen under the compensation law.

The trial court, on ex parte hearing, granted the request to sue as a poor person and directed the Commission to certify a transcript of its proceedings “without exhibiting the receipt showing payment” of the cost of preparing the record. The employer moved to quash the writ on the basis the court did not have jurisdiction which was denied. The supreme court affirmed, holding the trial court had authority to waive costs under the costs statute (Ill. Rev. Stat. 1941, ch. 33, par. 5, now Ill. Rev. Stat. 1985, ch. 110, par. 5 — 105). The supreme court concluded the costs statute was not limited to the costs of the court itself but might extend to those of the Commission, at least so long as the Commission did not refuse to respond to the writ. The court refused to answer the question of the right of a circuit court to require the Commission to make a return without first being paid its charges on the grounds such question was not before it. Visioni, 379 Ill. at 614, 42 N.E.2d at 67.

The supreme court has clearly indicated a circuit court does not lack subject-matter jurisdiction where the clerk of the circuit court accepts for filing Industrial Commission materials without payment of the circuit clerk’s charges in advance. In Elles v. Industrial Comm’n (1940), 375 Ill. 107, 30 N.E.2d 615, the supreme court held such circumstances constituted no grounds for quashing a writ of certiorari since payment of the circuit clerk’s costs was not jurisdictional and the costs statute which required payment of fees to the clerk in advance was merely directory. On the other hand, the supreme court has consistently held compliance with section 19(f)(1) is a condition precedent for issuance of the writ of certiorari which, if not met, does not confer subject-matter jurisdiction on the court. Arrington v. Industrial Comm’n (1983), 96 Ill. 2d 505, 508-09, 451 N.E.2d 866, 867.

Under the. facts of this case we conclude the trial court’s ex parte order did not extend to waiver of the fee associated with preparation of the Commission record. In the first instance, under Visioni, the compensation act provides the express authority by which the Commission is empowered to consider waiver of fees. The parties were proceeding before the Commission pursuant to that authority even after the trial court’s order was entered, conduct inconsistent with any claim the trial court’s order addressed this question. Moreover, sanctioning such a practice would undermine the strong legislative policy requiring compliance with section 19(f)(1) by allowing a party on an ex parte, perfunctory hearing, without notice to the opposing party, to avoid what has been determined to be a jurisdictional step in the review of compensation cases.

Under the circumstances present in this case, we conclude the circuit court properly dismissed the petition for review for lack of jurisdiction. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA, WOODWARD, and LEWIS, JJ., concur.

PRESIDING JUSTICE BARRY,

dissenting:

The majority acknowledges that factually this case is virtually identical to Visioni v. Industrial Comm’n (1942), 379 Ill. 608, 42 N.E.2d 64, but purports to give overriding significance to the fact that the statutory scheme then in effect is not what it now is. I respectfully disagree with the reasoning as well as the majority’s result. I would hold, consistent with Visioni and the modern trend to liberalize jurisdictional requirements (see, e.g., Barry v. Industrial Comm’n (1973), 55 Ill. 2d 274, 302 N.E.2d 277; Chadwick v. Industrial Comm’n (1987), 154 Ill. App. 3d 859, 507 N.E.2d 878; Sprinkman & Sons Corp. v. Industrial Comm’n (1987), 160 Ill. App. 3d 599, 513 N.E.2d 1188; Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1) (as revised by Pub. Act 84— 981, effective Sept. 25, 1985, to allow for affidavit of attorney to substitute for a receipt proving payment of probable costs to Commission)), that petitioner’s bona fide efforts to comply-with the letter of the Workers’ Compensation Act constitute substantial compliance with sections 19 and 20 of the statute sufficient to confer jurisdiction on the circuit court.

Because this is a section 20 case and petitioner had to proceed pro se to pursue her appeal, she understandably relied upon the advice and judgment of whoever in the office of the Industrial Commission accepted her July 1 handwritten request for waiver of costs and completed her notice of motion setting the hearing for July 10. Since it is apparent from this record that no commissioner was available to hear her motion before the expiration of the 20-day period for commencing action to review the Commission’s decision (section 19(f)(1)), petitioner was referred to the office of the clerk of the Cook County circuit court, where she obtained a form entitled “Application to Sue or Defend as a Poor Person.”

Then, on July 3 (still within the 20-day period) and, apparently again on the advice of personnel in the Commission’s office, petitioner took her previously filed, handwritten request and notice of motion, together with the completed and notorized application form, to the office of the clerk of the Cook County circuit court. There, she refiled the documents, and Judge Lester Foreman granted the application the same day. Summons issued, and a certificate of mailing was filed by the clerk, and all of the documents filed that day in the circuit court were stamped “no fee” “pauper plaintiff.”

Given these unique circumstances, it is little wonder that the pro se petitioner failed to appear before the Commission on July 10 for a hearing on her section 20 motion. To all appearances, petitioner had satisfied the appropriate jurisdiction of her then financial situation based on her notorized affidavit timely filed and approved by the circuit court on July 3. There was absolutely no notice given at that point that petitioner would be required to present further proof of her status as a poor person in order to proceed with her request for review in the circuit court.

In my opinion, the pro se petitioner should not be faulted for proceeding as she did. Her good faith is further exemplified by her compliance with the Commission’s belated order denying the section 20 motion and requiring that probable costs be paid. The fact that petitioner produced the $35 on August 19 in no way detracts from her position that she qualified as a poor person for purposes of appealing her cause to the circuit court on July 1. Even poor persons are allowed to own or borrow $35 in cash.

An analogous situation was recently presented in Wilson v. Regional Board of School Trustees (1989), 179 Ill. App. 3d 485, 534 N.E.2d 690, in the context of an appeal from an administrative school district annexation/detachment order. Because the county clerk issued a summons specifying that the school defendants had only 30 days to answer, instead of the statutorily authorized 35 days, the school defendants moved to dismiss the plaintiff homeowners’ petition for administrative review. The circuit court granted the motion, and plaintiffs appealed. The appellate court reversed. Justice Goldenhersh, writing for the court, offered concise reasoning which, in my opinion, merits repeating herein:

“It is well established that courts will ‘ “liberally construe a right to appeal so as to permit a case to be considered on its merits.” ’ (Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 403, 451 N.E.2d 842, 844 quoting Glaseo Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 351-52, 427 N.E.2d 90, 93.) That ‘right to review a final administrative decision is limited and circumscribed by the statute or statutes authorizing such review,’ and as such, a party seeking such review must do it in a timely manner, acting promptly and within the time prescribed by statute. Board of Education of North Boone Community Unit School District No. 200 v. Regional Board of School Trustees (1987), 156 Ill. App. 3d 504, 506, 509 N.E.2d 132,134.

The court will relax a mandatory requirement:

‘[W]hen a party has done all that he can to meet the statutory requirements, but there is failure to comply with the statute because of the action or inaction of a third person outside his control, [and] to deny him the right to pursue his administrative remedy would constitute a deprivation of due process.’ (City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill. 2d 378, 380, 454 N.E.2d 652, 654, citing Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148.)” (Wilson, 179 Ill. App. 3d at 486-87, 534 N.E.2d at 691.)

As previously noted in this case, petitioner’s July 1 request to proceed as a poor person was not set to be heard until July 10, a date outside the 20-day period for issuing summonses. Procedural due process demands that the opportunity for a party to be heard must be made available within the statutory limitation period.

The majority’s attempt to distinguish this case from Visioni by the fact that the Commission, as opposed to the circuit court, failed to enter an order waiving fees rings hollow when it is manifest that this petitioner was shuttled from the office of the Commission over to the office of the circuit clerk because no commissioner was available to hear her section 20 motion before the expiration of the 20-day period.

Moreover, I find nothing in section 20 requiring a full hearing on a motion to proceed as a poor person. In my opinion, the record establishes that the Commission erred in denying the section 20 motion. It should have been allowed on the basis of the affidavit petitioner filed with the circuit court on July 3. Petitioner therein states that she owns no real estate and the value of her personal property does not exceed $1,500. To all appearances, this document was never considered by the Commission.

The trial court’s dismissal of the appeal for lack of subject-matter jurisdiction merely compounded the comedy of administrative and judicial errors for which this petitioner must now pay. The majority approves. This is not justice. Based on the precedent of Visioni, the administrative rule of liberal construction as recently reiterated in Wilson and the principle of substantial compliance with the Workers’ Compensation Act, I would reverse.


author: JUSTICE SCARIANO

text:
    GUADALUPE DeLUNA, Indiv. and as Special Adm’r of the Estate of Alicia DeLuna, Deceased, Plaintiff-Appellant, v. ST. ELIZABETH’S HOSPITAL et al., Defendants-Appellees.
    First District (2nd Division)
    Nos. 1—86—2995,1—87—0831 cons.
    Opinion filed June 13, 1989.

      Barbara J. Clinite, of Chicago, for appellant.
    David L. Cwik, of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Michael A. Clarke, of counsel), for appellee St. Elizabeth’s Hospital.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Gary I. Black-man, of counsel), for appellee Michael Treister.
   JUSTICE SCARIANO

delivered the opinion of the court:

Section 2 — 622(a)(1) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622(a)(1)) provides that in any action for medical malpractice the plaintiff or his attorney must attach to the complaint an affidavit stating that he has consulted with a health professional in whose “determination” there is a “reasonable and meritorious cause” for the filing of the action. In addition, the plaintiff must also attach the written report of the health professional indicating the basis for his determination. Section 2 — 622(a)(2) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622(a)(2)) allows for a 90-day extension for the filing of the affidavit if the statute of limitations is near expiration, and section 2 — 622(a)(3) (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622(a)(3)) provides that if the plaintiff is having difficulty obtaining necessary medical records, he is given 90 days upon receipt of the medical records in which to file the affidavit. Section 2 — 622(g) (Ill. Rev. Stat. 1985, ch. 110, par. 2— 622(g)) provides that “failure to file a certificate required by this Section shall be grounds for dismissal under Section 2 — 619.”

Plaintiff brought an action for damages for professional and hospital negligence against the defendants but failed to attach to his complaint the written declarations required by the provisions of the statute set forth above. The trial court granted the defendant hospital’s motion to dismiss plaintiff’s complaint for failure to comply with section 2 — 622, specifying that such dismissal was without prejudice to refiling. Plaintiff filed his notice of appeal, but the appeal was stayed awaiting the result in McCastle v. Sheinkop, then pending in the Illinois Supreme Court. The trial court later granted with prejudice defendant Dr. Treister’s motion to dismiss plaintiff’s complaint for failure to conform with the provisions of section 2 — 622. Plaintiff filed a notice of appeal from this order as well. After the supreme court decided McCastle without having to reach the constitutional issues which had been presented therein (McCastle v. Sheinkop (1988), 121 Ill. 2d 188, 520 N.E.2d 293), the stay of the instant appeal was vacated.

Plaintiff raises the following issues on appeal: (1) whether section 2 — 622 unconstitutionally delegates judicial authority to health professionals, and invades the power of courts to hear and determine cases, in violation of the separation of powers mandated by article II, and section 1 of article VI of the Illinois Constitution; (2) whether section 2 — 622 unconstitutionally deprives victims of medical malpractice of access to courts and recovery of damages for injuries without an opportunity to be heard, in violation of the due process clause of article I, section 2, of the Illinois Constitution and the fourteenth amendment to the United States Constitution; (3) whether section 2 — 622 deprives victims of medical malpractice of the equal protection of the laws guaranteed in article I, section 2, of the Illinois Constitution and the fourteenth amendment to the United States Constitution; (4) whether section 2 — 622 unconstitutionally restricts free and open access to the courts for the vindication of rights by victims of medical malpractice, in violation of article I, section 12, of the Illinois Constitution and the first amendment to the United States Constitution; (5) whether section 2 — 622 is void for vagueness in delegating unguided authority in terms so vague and uncertain as to provide no standard for the exercise of that authority by a health professional; (6) whether the circuit court erred in the application of section 2 — 622; (7) whether the circuit court erred in entering an order dismissing the complaint against defendant Treister with prejudice; and (8) whether this court has jurisdiction to entertain an appeal from an express interlocutory dismissal order which was made expressly without prejudice and subject to refiling.

On April 16, 1986, plaintiff filed his complaint for medical malpractice, in counts I through III of which he alleged that decedent Alicia DeLuna underwent surgery as a patient of defendant hospital; that hospital employees were negligent in that they lacerated the common iliac artery during surgery; failed to properly monitor vital signs; failed to recognize the signs of massive internal bleeding and failed to promptly respond thereto. Count I was brought under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, pars. (1), (2)), count II under the Survival Act (Ill. Rev. Stat. 1985, ch. 110½, par. 27 — 6), and count III under the family expense act (Ill. Rev. Stat. 1985, ch. 40, par. 1015).

Counts IV through VI alleged that defendant Treister performed a lumbar laminectomy upon plaintiff’s decedent, during which he negligently lacerated the common iliac artery, and that he failed to promptly recognize the signs of massive internal bleeding, to identify the laceration and to promptly respond with treatment. Count IV was brought under the Wrongful Death Act, count V under the Survival Act, and count VI under the family expense act.

In all counts, plaintiff alleged that the negligent acts and omissions of the defendants were the proximate cause of the death of Alicia DeLuna. In the discharge summary contained in the records of defendant hospital for plaintiff’s decedent, Dr. Treister reported the “iatrogenic laceration of the common iliac artery” and his conclusion that the proximate cause of death was coagulopathy which resulted from bleeding from surgical laceration. A copy of the discharge summary was filed with plaintiff’s memoranda in opposition to defendants’ motion to dismiss.

I

Plaintiff contends that section 2 — 622 unconstitutionally delegates judicial authority to health professionals and invades the power of courts to hear and determine cases and, more specifically, that it delegates the function of reviewing the facts of a case and determining whether a claim has merit, in violation of article II and section 1 of article VI of the Illinois Constitution. The requirements of the statute, plaintiff reasons, preclude a court from making its own determination on the merits, and as such violate the separation of powers mandated by the Illinois Constitution.

Defendants respond that section 2 — 622 does not encroach on powers properly belonging to the judicial branch, nor does it vest in the medical profession “judicial power” properly reserved for the supreme court and its subordinate courts. They further point out that it is well settled under Illinois law that “a strong presumption of constitutionality attaches to any legislative enactment and that the burden rests upon the challenger to demonstrate its invalidity.” (People v. Joseph (1986), 113 Ill. 2d 36, 41, 495 N.E.2d 501.) Moreover, defendants note, it is equally well recognized that the wisdom of the legislation itself is not an issue to be addressed in assessing the constitutionality of a legislative enactment. People v. J.S. (1984), 103 Ill. 2d 395, 469 N.E.2d 1090.

The affidavit requirement as set forth in section 2 — 622, defendants assert, does not confer judicial power on a non-judicial body; rather, they urge, the statute merely requires plaintiff or his attorney to file an affidavit attached to the complaint declaring that the case was reviewed by a knowledgeable health professional who has determined in a written report that there is a reasonable and meritorious cause for filing the action. The health professional, they add, is asked only to render an advisory opinion as to whether there exists a factual basis for the filing of a suit. Defendants argue that these opinions have no evidentiary weight, are not binding as to either party, and do not in any way impinge on the judiciary’s role of applying the law and rendering a final judgment on the merits of the case.

Defendants cite Bloom v. Guth (1987), 164 Ill. App. 3d 475, 517 N.E.2d 1154, appeal denied (1988), 121 Ill. 2d 567, 526 N.E.2d 827, in which the Illinois Appellate Court for the Second District upheld the constitutionality of section 2 — 622 against a charge that it violated the separation of powers provision of our State Constitution, the court declaring that the statute does not involve the interpretation of law, and does not infringe upon the judicial function of applying the law, as it requires only a determination of fact by an expert in the medical field. We note that Bloom has been followed by the fourth district in Alford v. Phipps (1988), 169 Ill. App. 3d 845, 523 N.E.2d 563, and by the third district in Sakovich v. Dodt (1988), 174 Ill. App. 3d 649, 529 N.E.2d 258.

We respectfully disagree with the Bloom court; consequently, we decline to follow its holding in that case. Article II, section 1, of the Illinois Constitution provides:

“The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.”

Article VI, section 1, of the Illinois Constitution vests the judicial power in one supreme court and certain subordinate courts, and such grant is an exclusive one which exhausts the whole power. (People v. Cox (1980), 82 Ill. 2d 268, 274, 412 N.E.2d 541.) Judicial power has been defined as:

“The power which adjudicates upon and protects the rights and interests of individual citizens, and to that end construes and applies the law.” (Cox, 82 Ill. 2d at 274.)

Moreover, since the power is judicial in nature, it necessarily follows that the legislature is expressly prohibited from exercising it. People v. Jackson (1977), 69 Ill. 2d 252, 371 N.E.2d 602.

It is also well settled that the legislature has no constitutional authority to create a new court, or to alter the basic character of a court. (Bernier v. Burris (1986), 113 Ill. 2d 219, 497 N.E.2d 763; In re Contest of the Election for the Offices of Governor & Lieutenant Governor Held at the General Election on November 2, 1982 (1983), 93 Ill. 2d 463, 444 N.E.2d 170; People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353, 336 N.E.2d 1.) We agree with plaintiff that in section 2 — 622, the legislature unconstitutionally delegates to a professional group the function of deciding whether a plaintiff’s claim should proceed to a hearing, for it is the role of the court, applying the law concerning the sufficiency of allegations in a complaint, to determine whether there is any set of facts under which the plaintiff may state a cause of action in a particular case and move on in the judicial process. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615; Theodosakis v. Austin Bank (1981), 93 Ill. App. 3d 634, 417 N.E.2d 806.) Yet, under section 2 — 622, the court cannot reach the issue of whether or not a plaintiff has adequately stated a cause of action unless he or she has filed the required affidavit and the report of a health professional. Indeed, here, under section 2 — 622, the court was not allowed to consider important and perhaps even decisive admissions of fact in the defendant’s discharge summary for plaintiff’s decedent as demonstrating reasonable cause for filing the lawsuit, or to determine whether the complaint states cause of action in any of its various counts. Consequently, the court’s authority to exercise its inherent power to hear and determine a cause was effectively barred, because section 2 — 622 delegates that function to health professionals, and in determining whether an action may be maintained, the court’s role is confined initially to the purely formal and nominal one of finding whether the attorney’s affidavit and the required reports of health professionals have been filed, and it is mandated to dismiss the case if they are lacking. It is one thing to require a medical malpractice plaintiff to provide expert opinion testimony at trial supporting his claim, yet quite another to give control over the ability of our courts to hear and decide medical malpractice cases to those experts. And it is one thing to be required to obtain leave of court in order to advance in the judicial process; yet it is quite another to exact a litigant to obtain the leave of lay persons in order to pursue his suit at law.

Thus, section 2 — 622 impermissibly confers upon health professionals a judicial role. It requires a two-step analysis by health professionals; first, the professional is to review medical records and other materials and determine the facts relating to the actions complained of by a plaintiff. Second, he or she is to apply the law requiring “reasonable and meritorious cause” to those facts in order to determine whether a lawsuit may be filed. Indeed, unless the professional “has determined in a written report *** that there is a reasonable and meritorious cause for the filing of such action,” the very doors of the courthouse are closed to the plaintiff, for “failure to file a certificate required by this Section shall be grounds for dismissal under Section 2 — 619” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622), even before the judicial process, as we have known it since at least the reign of Henry II, can begin to take its course.

Only three short years ago, our supreme court in O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322, held unconstitutional a similar “undue infringement upon the judiciary as it seeks to discharge its duties fairly and expeditiously. [For] insofar as section 2 — 1009 [of our Code of Civil Procedure] directs the circuit court to dismiss a case, it unduly infringes upon the fundamental, exclusive authority of the judiciary to render judgments,” citing Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 150. (O’Connell, 112 Ill. 2d at 283.) Thus, it can be fairly said that the requirement of a “determination” that there is a “reasonable and meritorious cause for the filing of such action” springs out of section 2 — 622 as a three-dimensional term historically, indeed, umbilically related to the judicial process. (Emphasis added.) Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622.

It is said that “the purpose of section 2 — 622 is to eliminate frivolous lawsuits at the pleading stage.” (Bloom, 164 Ill. App. 3d at 478, citing Lyon v. Hasbro Industries, Inc. (1987), 156 Ill. App. 3d 649, 655, 509 N.E.2d 702.) But this is to overlook that although it was also the purpose of the statute in Bernier v. Burris (1986), 113 Ill. 2d 219, 497 N.E.2d 763, to weed out frivolous cases, it did not deter our supreme court from holding as contrary to the judicial article of our State Constitution the pretrial review of medical malpractice cases by panels consisting of a judge, an attorney, and a health-care professional. There the court declared that it was so holding even though the judge on such a panel had the sole authority to decide questions of law and evidence, since decisions were to be rendered by the panel as a whole and the judicial member was forced to share his authority with the non-judicial members. Bernier followed a similar ruling of the supreme court handed down in Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 347 N.E.2d 736, where the court considered section 401a of our Insurance Code (Ill. Rev. Stat. 1975, ch. 73, par. 1013a), the first attempt by the legislature to create medical review panels.

A comparison of section 2 — 622 with the medical review panel provisions invalidated in Bernier and Wright shows conclusively that section 2 — 622 goes even further. While it does not provide for the sharing of judicial authority, it takes away from the court altogether a vital decision-making function and confers it upon the members of a private professional group who hold in their hands the keys to the courtroom itself, into which no one may enter, not even the judge who ordinarily sits there, unless the pleading which traditionally initiates an action at law bears their imprimatur or their nihil obstat. And if the complaint does not so comport, the judge is mandated under the clear provisions of section 2 — 622 to dismiss the action, which, as we have already noted, is the very reason why our supreme court in O’Connell held a similar provision to be violative of the judicial article of our constitution. Thus, section 2 — 622 strikes at the very essence of judicial authority.

Moreover, although the medical review panel provisions stricken in Bernier and Wright gave non-judicial members a judicial role, the decision of the panel did not preclude the court from conducting a trial and making its own determination on the merits of a cause. Unless the parties agreed otherwise, “the matter is to proceed to trial, as in any other case.” (Bernier, 113 Ill. 2d at 231.) Section 2 — 622 goes further and makes the health professional’s determination a prerequisite to the court’s power to hear the evidence and determine the merits of the plaintiff’s claim. The court is not allowed to permit the matter to proceed to discovery and trial without the prior written determination of a health professional. Only the health professional is authorized to make the legal conclusion as to whether the plaintiff is entitled to advance beyond the filing of his complaint, and such conclusion will have to depend on the professional’s own understanding of what is required to file a suit. Thus, it becomes clear that section 2 — 622 confers upon the healing art profession the decision-making power heretofore exercised only by our courts as to whether a particular case has merit, and yet “the very purpose of a court of law is to determine whether an action filed by a party has merit.” (Emphasis added.) Berlin v. Nathan (1978), 64 Ill. App. 3d 940, 952, 381 N.E.2d 1367, cert, denied (1979), 444 U.S. 828, 62 L. Ed. 2d 36, 100 S. Ct. 53.

Further, the decision-making function is assigned to medical professionals who are untrained in the law, are not appointed through our' established judicial selection methods, are not made to answer to any judicial supervisory authority, and-are not bound by any precedent, legal principles, guides, or standards by which they are to evaluate claims. Indeed, there is no legal obligation imposed upon health professionals to review claims of malpractice and to provide reports thereon, nor could a court compel them to do so. In this connection, it is noteworthy that it was but a few short years ago that our supreme court decried the difficulty of getting “the doctors and nurses in attendance [at an anesthetized plaintiff's surgical operation to] voluntarily *** disclose the identity of the negligent person and the facts establishing liability” occurring during surgery, and applied the doctrine of res ipsa loquitur, expressly adopting the ruling and reasoning of the California Supreme Court in Ybarra v. Spangard (1944), 25 Cal. 2d 486, 490-92, 154 P.2d 687, 689-90. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397.) And notwithstanding that ours is a “fact pleading” State, as opposed to one permitting “notice pleading,” section 2 — 622 adds to those rigors that of requiring a plaintiff to make a showing to a layman of at least the essential elements of a prima facie case even before he reaches the office of the clerk of the court to plunk down his filing fee.

If a panel of three judges cannot operate constitutionally (In re Contest for Governor, 93 Ill. 2d 463, 444 N.E.2d 170), nor a panel consisting of one circuit judge and two laymen (Bernier, 113 Ill. 2d 219, 497 N.E.2d 763), we have not the organs to perceive how a solitary layman can be permitted under our State Constitution to “determine” what constitutes a “reasonable and meritorious cause” for the filing of a lawsuit. The unconstitutional invasion of the court’s authority in this case is all too disturbingly clear. The legislature has overstepped the bounds of constitutional authority; its delegation of judicial power is incongruous with the provisions of article II and section 1 of article VI of the Constitution of the State of Illinois. For the reasons indicated, we conclude that section 2 — 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 622) is unconstitutional. Given this result, we need not consider plaintiff’s remaining arguments against the provision, nor do we need to consider whether or not the trial court’s dismissal of the action against Dr. Treister was proper for having been entered with prejudice.

II

Defendant hospital argues that this court lacks jurisdiction to entertain this appeal because the order it was granted states on its face that plaintiff’s action was dismissed “without prejudice to refiling.” Defendant asserts that the jurisdiction of this court is limited to the review of final orders and certain interlocutory orders, and maintains that an order is not final where it leaves the cause of action pending. (Gutenkauf v. Gutenkauf (1979), 69 Ill. App. 3d 871, 387 N.E.2d 918.) To be final, according to defendant, an order dismissing plaintiff’s complaint must be with prejudice. (Bundy v. Church League of America (1984), 125 Ill. App. 3d 800, 466 N.E.2d 681.) Defendant cites Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480, as setting forth these same principles. In Flores, the supreme court held that an order containing the language “without prejudice to refile” was not final and appealable.

Plaintiff responds, and we agree, that the dismissal under section 2 — 622 in this case is unlike those discussed in the authorities cited by the defendant, because the dismissal here did not provide an absolute and unconditional right to refile the action and resulted in prejudice to plaintiff. The basis of the court’s order of dismissal was its determination that section 2 — 622 was constitutional, and that, accordingly, plaintiff had to file the affidavit and reports required by that provision. The right to refile the action, therefore, was impliedly conditioned upon complying with the statute, rather than being an absolute right to refile. Consequently, the right to refile the action conditioned upon conformity with section 2 — 622 is not the type of order which renders a dismissal nonfinal.

The rationale of Flores and other cases cited by defendant hospital involving dismissals for want of prosecution is that even if the court abuses its discretion in dismissing the case, plaintiff has an absolute right to refile and ultimately would not be prejudiced. (See Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 305, 472 N.E.2d 787.) In contrast, in the case at bar, plaintiff was prejudiced by the dismissal. Under section 2 — 622, plaintiff could not refile his action without the report of a health professional, and if he were to refile without it, the court would be required by the clear terms of the statute to dismiss the action once more, if, indeed, it would not look upon such conduct as being contumacious. The right to refile was not entirely within plaintiff's control, since he was dependent upon health professionals to provide the required report. On the other hand, if plaintiff had refiled with the mandated report, he would have waived his right ever to obtain a review of the constitutional validity of section 2 — 622 and the propriety of the dismissal of his action.

Where a party is prejudiced by an order dismissing a complaint and would have no opportunity for review of the order, except by immediate appeal, the Illinois Supreme Court has held that the order is final and appealable, even where there is a right to refile the case. (Kahle, 104 Ill. 2d 302.) Thus, the right to refile an action does not necessarily render the dismissal order nonfinal. (Burns v. Steelcase, Inc. (1985), 138 Ill. App. 3d 1039, 486 N.E.2d 1316.) It is also interesting to note that in Alford v. Phipps (1988), 169 Ill. App. 3d 845, 523 N.E.2d 563, one of the cases relied upon by both defendants for its sustaining the constitutionality of section 2 — 622, the appellate court proceeded to review an order which dismissed a complaint for failure to comply with the provisions of that statute, although the dismissal was with prejudice.

For all of the above-stated reasons, we reverse the judgment of the circuit court and remand this cause for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

BILANDIC, P.J., and FREEMAN, J., concur.


author: PRESIDING JUSTICE BILANDIC

text:
    MICHAEL J. BRIANTE et al., Plaintiffs-Appellees, v. JEFFREY LINK et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—88—0052
    Opinion filed June 13, 1989.
    — Rehearing denied July 11, 1989.
    D. Kendall Griffith and Joshua G. Vincent, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellants.
    Edmund J. Scanlan, of Scanlan & Hartigan, Ltd., of Chicago, for appellees.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Defendants appeal from an itemized jury verdict of $700,000 in favor of the plaintiffs. The jury also found that the plaintiff’s comparative fault was 50%, thereby reducing the award to $350,000. Defendants do not question the determination of liability and comparative fault.

It is undisputed that plaintiff sustained serious and permanent personal injuries as a result of the March 16, 1984, motor vehicle collision which gave rise to this action. Plaintiff was 50 years old and in good health at the time of the accident. He sustained comminuted fractures of the left tibia and fibula. A closed reduction under general anesthesia was performed at Northwestern Memorial Hospital. A long cast was applied. Plaintiff was given Tylenol and codeine to relieve his pain.

Plaintiff used a walker for several months, then his leg was recast and he used crutches. In November 1984, his leg was still unstable and the fracture was not healed so he was readmitted to Northwestern Memorial Hospital for bone graft surgery. In addition, two metal “ender” rods were inserted in the lower left leg to provide more stability. The cast was removed in July 1985.

Throughout his recovery, plaintiff complained of severe pain for which medication was prescribed. He still has pain and walks with a limp. His physical activities and lifestyle are restricted because of the injury.

Before the accident, plaintiff was employed as a service technician. Plaintiff presented expert evidence that the present value of his loss of income from the date of the accident until age 65 was $388,082. Defendants did not contest this evidence.

Plaintiff also presented evidence of medical bills in the sum of $15,763 and estimated future medical expenses of $6,000 to remove the rods, for a total of $21,763.

The total injury verdict was $700,000. It was itemized as follows:

Lost Income $515,200
Past and Future Medical 56,000
Expenses
Disability and Disfigurement 128,800
TOTAL $700,000

Although the verdict form had a space for “Pain and Suffering,” the jury did not award any amount for this element of damages.

Defendants do not dispute the award of $128,000 for disability and disfigurement. Nevertheless, they contend that the trial court erred in denying them the opportunity to present certain evidence that would question the extent of plaintiff’s disability. Defendants complain that the amount awarded for lost income and the amount awarded for past and future medical bills are not supported by the evidence. Defendants seek a remittitur or, in the alternative, a new trial on damages.

Plaintiff did not file a cross-appeal from the jury’s failure to award anything for pain and suffering.

I

Defendants seek a remittitur or, in the alternative, a new trial on damages because the itemized verdict awarded plaintiff $515,200 for lost income. Defendants did not contest plaintiff’s expert testimony that the. present value of plaintiff’s loss of income to age 65 was $388,082. However, defendants inquired about the annual reduction of that amount if the computation was made up to age 62. Plaintiff’s expert responded that there would be a reduction of $25,666 per year, or a total of $77,000 for three years. Conversely, the jury would also conclude from this evidence that $25,666 could be added for each year beyond age 65. A reasonable inference from the evidence is that the jury added $127,118 on the theory that plaintiff would have worked to age 70.

II

The itemized verdict awarded $56,000 for medical expenses. Plaintiff’s undisputed evidence showed that his past medical bills were $15,763.80 and that an additional sum of $6,000 would be incurred in the future to remove the ender rods, making a total of $21,763.80. Therefore, the award exceeds the expenses by $34,236.20.

Plaintiff justifies this excess on the theory that it represents the cost of future physical therapy. However, the record does not reveal evidence of a specific medical recommendation of a particular type of therapy and the cost and duration of the therapy. Since this type of damage is susceptible to medical opinion and mathematical computation, the additional award is not justified. Seward v. Griffin (1983), 116 Ill. App. 3d 749, 452 N.E.2d 558, appeal denied (1983), 96 Ill. 2d 565.

We therefore conclude that the medical expense award should be reduced by $34,236.20. This reduces the total verdict from $700,000 to $665,763.80. With plaintiff’s 50% comparative fault, the net verdict is reduced to $332,881.90.

Ill

Defendants do not allege or assign any error as to the propriety of the award of $128,800 for plaintiff’s disability and disfigurement.

James Maley was a claims specialist employed by CNA Insurance Company, which issued a liability insurance policy to defendant, Wallace Computer. He conducted settlement negotiations for defendants. He was not listed as a witness during pretrial discovery but was disclosed as a defense witness during the trial. Plaintiff moved to bar Mr. Maley from testifying. The motion was denied.

Defendants offered Maley’s testimony of his observations of plaintiff’s disability a week before trial. Since this would benefit Maley’s employer, CNA Insurance, plaintiff advised the court that evidence that Maley is the employee of a company with a financial interest in the outcome of the case. The trial court ruled that if Maley testified beyond identifying photographs he took of plaintiff a week before trial, the court would allow plaintiff to cross-examine Maley regarding his employer and the employer’s financial interest in the case.

Maley’s testimony was restricted to identification of the photographs. No cross-examination was conducted and the issue of insurance never reached the jury.

Defendants now complain that they were forced to abandon testimony about the extent of plaintiff’s disability. No offer of proof was made regarding what Maley would state. Defendants made a specific decision based on their trial strategy and, therefore, cannot complain at this time.

In addition, since no error is assigned as to the award for disability and disfigurement of the plaintiff, defendants cannot now complain that they were harmed because they did not present Maley’s testimony regarding plaintiff’s disability. See Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 492 N.E.2d 1364, appeal denied (1986), 112 Ill. 2d 577.

Accordingly, the judgment of the circuit court of Cook County is affirmed on the express condition that the plaintiffs enter a remittitur of $34,236.20 within 30 days from the date of this opinion. Upon the filing of such remittitur, the judgment will be affirmed; otherwise, the judgment will be reversed and the case remanded for a new trial on damages.

Judgment affirmed upon the filing of remittitur; otherwise, judgment reversed and cause remanded with directions.

HARTMAN and SCARIANO, JJ., concur.

      $25,666 per year for five years equals $128,330 additional loss of income from age 65 to age 70, making a total loss of $516,412 ($388,082 + $128,330).


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD ZUNKER et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—85—3035,1—85—3123 cons.
    Opinion filed June 14, 1989.

      Algis F. Baliunas, of Chicago, for appellant Joseph Nawrot.
    Thomas Long, of Chicago, for appellant Donald Zunker.
    Cecil A. Partee, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., and Kathleen A. Bom, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendants, Donald Zunker and Joseph Nawrot, were found guilty of murder, in separate, but contemporaneous bench trials. Each defendant was sentenced to serve 20 years in the Illinois Department of Corrections. On appeal, Zunker argues that the trial court erred in denying his motion to quash arrest and suppress evidence. Nawrot argues that he was not proven guilty of murder beyond a reasonable doubt. We affirm.

The following facts were revealed at the hearing on defendants’ motions to quash arrest and suppress evidence. On March 10, 1984, the victim, Michael DeMiere, was found dead in the second-floor apartment of a two-flat building located at 1426 West 50th Street, Chicago, Illinois. Chicago police detective Higgins was assigned to the investigation of DeMiere’s death. When Higgins entered the apartment, he found the victim lying in a bed in the living room. DeMiere’s body was bloody and bruised. In the bathroom, Higgins observed bloodstains on the bathtub, washstand, toilet and floor. There was also blood on the bathroom doorjamb and some loose pieces of plasterboard. The apartment, which was undergoing renovation, was owned by Loretta Howard. Mrs. Howard was allowing DeMiere, who was homeless, to live in the apartment until the renovation was completed and the unit leased.

While Higgins was talking with witnesses on the second-floor rear porch, defendant Nawrot, who lived in the first-floor apartment, came up the stairs, introduced himself and asked what was going on. Nawrot then told Higgins what was to become the first of three versions of the events of March 9, 1984. Nawrot initially told Higgins that he had known the victim for four years and that he last saw him alive at approximately 5 a.m. on March 9, 1984. Nawrot stated that he spent the previous evening drinking with defendant Zunker and returned home to his apartment between 4 and 5 a.m. After a while, Zunker expressed an interest in renting the second-floor apartment, so Nawrot and Zunker went upstairs to view the unit.

When they entered the apartment they saw DeMiere lying on a bed in the living room. Nawrot kicked the bed and woke DeMiere. De-Miere showed Zunker and Nawrot around the apartment and Nawrot noticed that DeMiere had apparently been involved in a fight. According to Nawrot, one of DeMiere’s eyes was swollen. After viewing the apartment, Nawrot and Zunker returned to the first floor and DeMiere joined them to have a beer. Nawrot stated that DeMiere began to stumble around and bang into things so he ordered him out of his apartment. Nawrot related that he heard the victim as he walked upstairs and returned to the second floor.

The next day, Higgins spoke with Doctor Dolz of the medical examiner’s office. The doctor informed him that an examination of the victim revealed that he had numerous injuries, including a cervical spine fracture. Dolz stated that the victim would not be able to walk or talk after sustaining the injury. Higgins testified that he returned to Nawrot’s apartment and asked him if he would accompany him to the Area 3 police station to answer some additional questions regrading DeMiere’s death. Nawrot agreed. After they arrived at the police station, Higgins informed Nawrot that the victim had a fractured spine and would not be able to walk or talk after his injury. Nawrot then told Higgins the second of three versions of the events of March 9, 1984. Nawrot told Higgins that after DeMiere entered his apartment, he became a nuisance, so he pushed him out of the door. Nawrot stated that DeMiere fell to the ground and he and Zunker picked him up and returned him to the second floor. Higgins then asked Nawrot to take a polygraph examination and he agreed. Higgins drove Nawrot to police headquarters at 11th and State Street. Higgins testified that he read Nawrot his Miranda rights and left him with the polygraph examiner. After a while, the examiner came into the waiting room and told Higgins that Nawrot was ready to tell everything that happened the previous day. Nawrot then gave.an oral statement in the presence of the polygraph examiner and Higgins. In his third version of the events of March 9, 1984, Nawrot admitted that he and Zunker beat Michael De-Miere.

Higgins returned with Nawrot to the Area 3 police station to obtain a written statement. After their arrival, Higgins observed defendant Zunker being interviewed by Chicago police detectives Kwilos and Lane. Higgins joined the interview with Zunker and noted that his story was the same version that Nawrot had told in their initial interview. Higgins interrupted Zunker and told him that he was just digging a hole for himself and that he should tell the truth. Zunker then agreed to tell the truth. After Lane read Zunker his Miranda warnings, he made an oral statement admitting his participation in the beating of DeMiere. The State’s Attorney’s office was contacted and court-reported statements were taken from Nawrot and Zunker.

Detective Lane and polygraph examiner Walsh also testified on behalf of the State. Lane and Walsh essentially corroborated Higgins’ testimony. Detective Lane also testified that he and his partner went to Zunker’s home and asked him to accompany them to the police station to answer some questions regarding DeMiere’s death. Lane stated that Zunker came voluntarily and that he was not under arrest at that time.

Assistant State’s Attorney Botti testified that he was assigned to the case and that he took court-reported statements from both Zunker and Nawrot. He further testified that each defendant read the typed statement, made corrections, initialed each page and signed his name on the last page. Botti testified that he did not promise or witness anyone promise Zunker anything in exchange for his statement. Botti further testified that Higgins told him that he did not make any promises to Zunker.

Defendant Nawrot testified on his own behalf. Nawrot testified that Higgins came to his home at approximately 10:30 a.m. on March 10, 1984, and asked him to come to the police station to make a final statement regarding the death of Michael DeMiere. Nawrot agreed, and Higgins drove him to the police station. Nawrot gave a court-reported statement of the third and final version of the events of March 9.

In his final version of the events of March 9, Nawrot stated that although DeMiere was uninvited, he followed him into his apartment and refused to leave. He stated that he pushed DeMiere onto the back porch and closed the door. After a moment, DeMiere reentered the apartment and asked for a beer. Nawrot refused, and DeMiere called him some names. Nawrot stated that he punched DeMiere in the jaw and pushed him out the door again. DeMiere entered a third time and Nawrot slapped him several times, grabbed him by the collar and walked him upstairs to his apartment. Nawrot stated that he continued to slap and hit DeMiere in the bathroom of his apartment. Nawrot stated that after DeMiere called Zunker a name, Zunker came into the bathroom and punched and kneed DeMiere several times. He stated that Zunker punched DeMiere and he fell to the floor. Nawrot stated that they placed DeMiere in the bed and covered him with a blanket. Later, he and Zunker attempted to wake DeMiere, but he was unresponsive.

Zunker also testified on his own behalf. He stated that two police officers came to his home at 12:30 p.m. on March 10, 1984. He stated that he had been out all night and was preparing for bed when the officers arrived. He testified that Detective Lane asked him if he would go to the police station to make a statement. Zunker stated that he asked if he had to go and Lane told him yes, pushed back his coat and showed him a gun. Zunker stated that he returned to his apartment, got dressed and joined Lane outside. He testified that Lane held his arm and escorted him to the car. Lane performed a pat down search of Zunker before he entered the car. Zunker then rode to the police station in the back seat of the car. He stated that Lane rode in the back seat with him while the other police officer drove.

Zunker testified that when they arrived at the Area 3 police station, he was taken into a room and photographed. He was then taken to the third floor and placed in a large room. Lane and Kwilos were questioning Zunker when another police officer came in and told Kwilos that he had a phone call. Kwilos left the room and returned about five minutes later. Lane and Kwilos continued to question Zunker for approximately 10 to 15 minutes, after which Higgins arrived. Zunker testified that after Higgins was in the room for a while, he told him, “[Yjou’ve already dug your grave, don’t bury yourself.” Zunker stated that Higgins told him that if he told the truth he would not be charged with murder, it would be either murder or involuntary manslaughter. Higgins then told Zunker the information he had regarding the death of DeMiere and told him to think about it. Zunker then admitted that he participated in the beating of Michael DeMiere.

Zunker testified that after asking some more questions, the officers handcuffed him to the wall and left him alone for about two hours. Zunker stated that he was then transferred to a smaller room where he was handcuffed for about an hour before Higgins and Botti came in. Zunker was later transferred to another room where he gave a court-reported statement. Zunker stated that he was not given his Miranda rights until after he made the court-reported statement. He testified that Higgins promised him that he would not be charged with murder if he told the truth.

Following argument, the court denied defendant Nawrot’s motion to quash arrest and suppress evidence. As to defendant Zunker, the court found that he voluntarily accompanied the officers to the Area 3 police station and the statement he made after being advised of his Miranda rights was voluntary. The court further found that Higgins did not make a promise to Zunker in exchange for his statement. Based on those findings, the court denied Zunker’s motion to quash arrest and suppress evidence.

The court granted the defendants’ motions for severance and conducted separate but contemporaneous bench trials. Doctor Hans Dolz, a board-certified forensic pathologist employed by the medical examiner’s office, testified regarding his autopsy of Michael DeMiere. Doctor Dolz stated that DeMiere had large bruises on the right side of his head, behind the right ear, on the right side of his face, and on both eyes. The victim also had lacerations on the front left forehead and a small bruise in the center of his forehead. An internal examination of the face and head revealed large areas of bleeding in the scalp and cranial cavity. Dr. Dolz determined that the cause of these injuries was blunt trauma and that the injury could have caused the victim’s death.

DeMiere’s external chest area had a bruise on the front which extended to the right side of his chest. Dr. Dolz opined that these injuries were also caused by blunt trauma. In total, the victim had 34 external injuries. An internal examination of the victim’s chest and abdomen revealed fractures of the front and back ribs on both sides of the chest, and a fracture of the sternum and breast bone. Dr. Dolz concluded that the multiple rib fractures, a condition referred to as flail chest, caused a loss of capacity to support breathing and was a factor which contributed to the victim’s death. Dr. Dolz opined that the rib fractures were caused by blunt trauma to the front of the chest. The victim also had a fracture of the cervical vertebrate or neck. Dr. Dolz concluded that the cause of Michael DeMiere’s death was multiple severe injuries caused by blunt trauma to the head and chest.

Following arguments, the court found both defendants guilty of murder and sentenced each defendant to serve 20 years in prison. This appeal followed.

Defendant Zunker argues that the trial court erred in denying his motion to quash arrest and suppress statements. It is defendant’s position that there was no probable cause for his arrest. Zunker further asserts that because (1) the arresting officers refrained from giving him his Miranda rights until after he agreed to make a statement and (2) the statement was given in response to a promise of leniency, it was involuntary. Thus, Zunker concludes that the arrest should be quashed and his subsequent statement suppressed. We disagree.

Probable cause to arrest exists where the facts and circumstances known to the arresting officer would lead a reasonable and prudent man to believe that a crime has been committed and the person arrested committed the crime. (People v. Kidd (1989), 180 Ill. App. 3d 1065, 1071.) The voluntariness of a statement is determined by a consideration of the totality of the circumstances and depends on whether the accused’s will was overcome at the time of the statement. (People v. Fuller (1986), 141 Ill. App. 3d 737, 744, 490 N.E.2d 977, 983.) A trial court’s finding of probable cause will not be disturbed on review unless it is against the manifest weight of the evidence. People v. Ocasio (1986), 148 Ill. App. 3d 418, 422, 499 N.E.2d 528, 535.

Zunker voluntarily accompanied Detectives Lane and Kwilos to the Area 3 police station to make a statement regarding the events of March 9, 1984. Meanwhile, at police headquarters defendant Nawrot told Detective Higgins that Zunker participated in the beating death of Michael DeMiere. After Nawrot made this statement, Higgins telephoned the Area 3 police station and informed Lane and Kwilos that Nawrot had implicated Zunker in the murder. According to Detective Lane, at this point Zunker was not free to go. The trial court found that Zunker was therefore “in custody” following the telephone call. Because it is not necessary that the information available to the police prove a defendant’s guilt beyond a reasonable doubt in order to justify an arrest, Lane and Kwilos had sufficient probable cause to detain Zunker after Nawrot implicated him in the murder. (People v. Wilson (1985), 132 Ill. App. 3d 862, 865, 478 N.E.2d 556, 559.) We therefore conclude that because the police had sufficient probable cause to arrest Zunker, the trial court’s denial of his motion to quash arrest is not against the manifest weight of the evidence.

Zunker testified that he was not informed of his Miranda rights until after he made the court-reported statement. Zunker also stated that Higgins told him that if he told the truth he would not be charged with murder. Higgins and Lane testified that Lane read Zunker his Miranda warnings before he gave his inculpatory oral statement. In addition, Assistant State’s Attorney Botti testified and the court-reported statement revealed that Zunker was informed of his Miranda rights prior to giving the statement. Higgins denied that he told Zunker that he would not be charged with murder if he told the truth. His testimony was corroborated by Lane and Botti, who stated that they did not witness Higgins make any promises to Zunker. It is up to the trier of fact to determine the credibility of witnesses and to resolve the conflicts in their testimonies. In addition, the court must be persuaded only by a preponderance of the evidence that the statement was voluntary and its findings will not be disturbed unless they are against the manifest weight of the evidence. (People v. Ocasio (1986), 148 Ill. App. 3d 418, 429, 499 N.E.2d 528, 533.) Here, the trial court found that Zunker’s statement was voluntarily given. Based on the foregoing, we do not believe that the trial court’s decision to deny defendant’s motion to suppress his statement was against the manifest weight of the evidence. We therefore conclude that the trial court did not err in denying defendant’s motion to suppress.

Defendant Nawrot argues that he was not proven guilty of murder beyond a reasonable doubt. Nawrot contends that the evidence was not sufficient to prove that he knew that his conduct would create a strong probability of death or great bodily harm to the victim. Nawrot also alleges that the victim’s death was caused by the acts of his codefendant. We disagree.

It is the responsibility of .the trier of fact to determine the credibility of witnesses, and a reviewing court will only substitute its judgment when the evidence is so unsatisfactory or improbable that it creates a reasonable doubt of the defendant’s guilt. (People v. Cooper (1987), 164 Ill. App. 3d 734, 737, 518 N.E.2d 260, 262.) Further, if two people conspire to do an unlawful act and death occurs as a result of their common action, both are guilty of the homicide. People v. Terry (1984), 99 Ill. 2d 508, 514, 460 N.E.2d 746, 749; People v. Kessler (1974), 57 Ill. 2d 493, 496, 315 N.E.2d 29, 32.

In the instant case, Assistant State’s Attorney Botti, Detectives Higgins and Lane, and polygraph examiner Walsh testified that defendant Nawrot confessed to beating DeMiere, providing them with a detailed account of the incident. Defendant’s statement was corroborated by codefendant Zunker. The medical examiner testified that the victim’s death resulted from multiple severe injuries caused by blunt trauma to the head and chest. The evidence revealed that both Nawrot and Zunker participated in the beating of DeMiere. Because Nawrot participated with Zunker in the beating of DeMiere, he is equally guilty of murder. Therefore, we conclude that based on the evidence adduced at trial, the trial court’s finding of guilt was not so improbable or unsatisfactory as to raise a reasonable doubt of defendant’s guilt.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

FREEMAN, P.J., and McNAMARA, J., concur.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.


text:
    MEDICAL CENTER CLINICAL LABORATORY et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—87—1692
    Opinion filed June 14, 1989.
    Neil F. Hartigan, Attorney General, of Springfield (David Adler and James C. O’Connell, Special Assistant Attorneys General, of Chicago, of counsel), for appellants.
    Gerald G. Goldberg and Donald A. Smith, both of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendants, Illinois Department of Public Aid (IDPA) and Gregory L. Coler, Director, IDEA, appeal from an order of the circuit court of Cook County reversing the administrative decision of IDEA which found plaintiff, Medical Center Clinical Laboratory (Medical Center), liable for repayment of $23,889.50 in fees to IDEA because of certain record-keeping discrepancies. The circuit court found that recoupment for $7,856.30 in payments made by IDEA to Medical Center was warranted, but that recoupment for the balance of payments was against the manifest weight of the evidence. We affirm.

Medical Center is a licensed Illinois clinical laboratory and Illinois Medical Assistance Program provider that performs laboratory tests for public aid recipients and bills IDPA for its services. IDPA conducts periodic audits of provider records to verify that the lab has performed the services for which payment has been made or requested. When discrepancies are discovered, IDPA seeks recoupment for payments made to providers for unauthorized or undocumented services. An audit of Medical Center records covering the period of August 1982 through January 1984 revealed numerous record-keeping discrepancies. At issue in the present case are Type 1 and Type 10 discrepancies. Type 1 discrepancies occur when the auditors do not find documentation to support the provider’s request of payment for services. Type 10 discrepancies involve requests of payment for services that the provider is not certified to perform.

The recoupment disallowed by the trial court involved 704 Type 1 and 252 Type 10 discrepancies in the documentation for tests performed at Augustana Nursing Home (Augustana). IDPA sought recoupment for the Type 1 discrepancies because it alleged that the lab requests submitted by Medical Center did not satisfy IDPA requirements. IDPA requires that providers produce lab requests for each test performed. The lab request must include the following: (1) name of patient; (2) date of test; (3) patient diagnosis; (4) type of test; and (5) name or signature of the requesting physician. Medical Center presented evidence which demonstrated that the information required by IDPA was provided via Augustana’s “monthly standing order stat sheet” and patient census sheets. The order sheet contains the lab tests to be performed on each patient and the census sheets contain the name of each patient’s physician.

IDPA also sought reimbursement for Type 10 discrepancies for the billing of ova and parasite tests allegedly performed without authorization. IDPA does not authorize payment for services that a provider is not certified to perform. It is undisputed that Medical Center is not certified to perform parasitology tests. Medical Center asserts that it was advised by IDPA to use an alternative test code because there was no pin worm test code at that time.

Following an administrative hearing, the hearing officer found Medical Center liable for repayment of $23,889.50 in fees to IDPA. IDPA, through Director Coler, issued an administrative decision which affirmed the hearing officer’s findings. Thereafter, Medical Center filed a complaint for administrative review in the trial court. The trial court reversed a portion of IDPA’s decision. The court found that (1) IDPA’s lab request requirements were fulfilled by Medical Center and Augustana’s documentation and (2) IDPA was estopped from asserting that Medical Center improperly used the parasitology test code where no pin worm test code was available and Medical Center provided documentation which demonstrated that the pin worm tests were performed. This appeal followed.

Initially, we note that this is not a case in which Medical Center did not produce any documentation at all. IDEA has simply interpreted its policy to find that request lists were not satisfactory because the name of the physician was not actually on the lab request itself. Also, there has been no evidence that Medical Center did not perform the Augustana tests for which IDEA is seeking recoupment. In fact, the parties entered into a stipulation that there is no evidence to indicate that the tests were not performed.

IDPA’s contention is that the trial court erred in reversing its decision because the monthly test lists submitted by Medical Center did not comply with IDEA regulations governing lab requests. We disagree. The pertinent regulations which govern Medical Assistance Program providers are set out as follows in the Illinois Administrative Code:

“Payment shall be made for only those laboratory services that have been ordered in writing by the referring practitioner as being essential to diagnosis and treatment. The practitioner must include the diagnosis or condition on the written request.” (89 Ill. Adm. Code §140.430(c) (1985).)

Other pertinent provisions of the Code provide:

“b) The basic records which must be retained include:
1) All original orders from practitioners for laboratory services ***.
* * *
c) In the absence of proper and complete records no payment will be made and/or payments previously made for which services are not documented will be recouped.” 89 Ill. Adm. Code §140.434 (1985).

The lab request sheets provided by Medical Center contained a list of each patient, the test to be performed and the month that the test was requested. Marilyn Manual, a supervising nurse at Augustana, testified that she prepared the sheets to replace individual lab requests because the patients, who had behavioral problems, would grab and tear the individual sheets during testing. Manual explained that the original lab requests were kept in the patient’s medical records. In addition, the IDPA auditor was provided with a patient census sheet which identified each patient’s physician. The two lists when viewed together provided the information required by IDPA. Based on this evidence, the court found that since the requested information was provided, the lab request requirements were fulfilled and recoupment of payments for those documented services was against the manifest weight of the evidence. Since an opposite conclusion from the IDPA decision granting recoupment was clearly apparent, we find no error in the trial court’s ruling.

IDPA next argues that it was not estopped from recouping payments for parasitology tests where Medical Center was not authorized to perform the test. We disagree.

The Illinois Administrative Code provides that “[pjayment shall not be made for any service a laboratory is not Medicare certified to provide.” (89 Ill. Adm. Code §140.431(a) (1985).) It is undisputed that Medical Center is not certified to perform the parasitology tests which were the subject of the Type 10 discrepancies. However, the evidence revealed that Medical Center performed pin worm, not parasitology, tests and merely used the parasitology code because no pin worm test code was available'. The court found that under these circumstances, IDPA was estopped from recouping payments made for pin worm tests which Medical Center was authorized to perform. In light of the facts of this case, we find no error in the trial court’s ruling.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA and WHITE, JJ., concur.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.