author: Mr. JUSTICE CRAVEN SIMKINS, J.,

text:
    Board of Education of Riverview Community Consolidated School District, Plaintiff-Appellant, v. The County of Woodford et al., Defendants-Appellees.
    (No. 12170;
    Fourth District
    June 3, 1974.

      Rehearing denied July 3, 1974.

    SIMKINS, J., dissenting.

      James S. Dixon, of Peoria, for appellant.
    Samuel G. Harrod, of Eureka, for appellees.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The plaintiff, Board of Education of Riverview Community Consolidated School District No. 2 of Woodford County, filed a complaint for declaratory judgment naming as defendants the county of Woodford, the county clerk, the county zoning enforcing officer, and the owner and!, proposed purchaser of certain real estate located both in the county and in the school district. By its complaint, the Board of Education sought a declaration that the approval by the county board of supervisors of a special use of certain described real estate was illegal and void and sought a declaration to that effect. The complaint further sought to have a declaration that the real estate involved revert to its prior zoning classification — agricultural district — and that the county zoning officer be restrained from issuing any use permits pursuant to the special use authorization.

The complaint for declaratory judgment attacked as illegal and contrary to public policy the action taken at a special meeting of the board of supervisors of the defendant county at which time the special use was approved. It is alleged that the county clerk sent an itemized bill for expenses of this special meeting, amounting to $400.65 which included a per diem salary of all the board members present, to the attorney for the petitioners seeking tire special use change and that the bill was paid in full. Further it is alleged that the special meeting was held only after the petitioners in the zoning matter agreed to pay the expenses of the meeting which said agreement is alleged to be contrary to public policy and the ordinance granting the special use under such circumstance is alleged to be void. Count II of the complaint for declaratory judgment attacked the jurisdiction of the county board to grant the special use and sought like relief as that requested in Count I. Among the exhibits attached to the complaint was a bill from the county cleric to the attorney for Peoria Concrete Construction Company indicating the expenses of the meeting together with the per diem expense of each member present. It is indicated on the bill that the same was paid on March 14, 1972. The defendants filed a motion to dismiss the complaint and in that motion asserted that the plaintiff Board of Education was without authority to commence an action challenging the validity of the zoning change. The trial court sustained the motion and dismissed the cause, This appeal is from the final judgment thus entered.

The trial court in its memorandum opinion found that the school board had standing to bring the suit as a local governmental unit since zoning controls the uses of land and the exercise of the zoning power would determine the density of population and hence the number of school age children in the district, but concluded that it was compelled under the case of Dato v. Village of Vernon Hills, 62 Ill.App.2d 274, 210 N.E.2d 626, to conclude that the Board of Education lacked statutory authorization to institute this proceeding and thus the action had to be dismissed. In so holding, the trial court noted that if this were a case of first impression, the court would be persuaded that the School Code gave authority to the Board of Education to institute and pursue this litigation, but that tire Dato case compelled the court to reach a different result.

In Dato, the school board sought to intervene in a pending zoning case. The trial court denied it the right to intervene and the appellate court affirmed. The specific holding there was to the effect that section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1985, ch. 110, par. 26.1), being the section of the Civil Practice Act relating to intervention did not permit of intervention by the school board as a matter of right. The school board did not bring itself within any of the three circumstances set forth in the relevant provision of the Practice Act. In the course of its opinion, by dictum, the appellate court did state that a school district derived its existence and powers wholly from the General Assembly and that absent specific legislative authorization, the Board of Education could not engage in litigation resulting from zoning disputes, even though the Board had an interest in the outcome of that litigation. The court noted that section 11 — 13—20 of the Municipal Code (Ill. Rev. Stat. 1963, ch. 24, par. 11 — 13—20), then authorized — and still does authorize — a school district to appear and present evidence before a zoning commission board of appeals or commission or committee designated to hear zoning matters. The absence of statutory authorization to pursue the matter further was thought to preclude the school board from intervention in the Dato case.

The appellate court in the course of its opinion did not discuss that portion of the School Code that permits the directors of each school district as a body politic and corporate to sue and be sued in all courts and places where judicial proceedings are had. Ill. Rev. Stat. 1971, ch. 122, par. 10 — 2.

We agree with the trial court in its determination that the nature and extent of the interest here involved are worthy of concern to and protection by the school board. We are aware of the cases that hold that a school board is without authority to institute suits to recover unpaid taxes. Board of Education v. Home Real Estate Improvement Corp., 378 Ill. 298, 38 N.E.2d 17.

Our study of Dato leads us to the conclusion that the court was there concerned specifically with the right of the school board to intervene in existing zoning litigation as a matter of right within the purview of the Civil Practice Act. Furthermore, the court there did not specifically discuss the general grant of authority to the Board of Education to sue and be sued. In this connection there is necessarily a distinction between capacity to bring the lawsuit and a direct interest sufficient to establish a right to a remedy. The plaintiff can have capacity to sue but have an interest so remote as to preclude relief. The sufficiency of the interest here sought to be vindicated must await a determination upon the merits. We hold only that the Board of Education had capacity to initiate the proceedings.

In this case, the school board through declaratory judgment seeks to attack the validity of the special use under various alleged limitations of power as to the county board. It seeks to have the special use declared to be invalid because of the peculiar circumstances as set forth above with reference to payment of the costs of the special meeting. In our opinion the grant of power to a school board as a body politic and corporate to sue and be sued in all courts and places where judicial proceedings are had is broad enough to encompass authorization to institute and pursue this litigation. The interests that the school board seeks to vindicate were, as the trial court found, direct and substantial and necessarily relate directly to the duties and responsibilities of the Board of Education. We can perceive of no distinction with reference to the authority to sue between the interest here sought to be protected and the usual interest that would be protected by way of a contract action against a supplier of goods or services to the school board. Accordingly, the judgment of the circuit court of Woodford County dismissing the complaint for declaratory judgment is reversed and this cause is remanded to that court with directions to overrule the motion to dismiss and for further proceedings.

Reversed and remanded with directions.

TRAPP, P. J., concurs.

SIMKINS, J.,

dissenting:

I dissent. I read Dato v. Village of Vernon Hills, 62 Ill.App.2d 274, 210 N.E.2d 626, to hold that a school district, absent specific legislative grant, is without authority to engage in litigation relating to zoning. Counsel presented no other opinions of any reviewing court which bear directly on the point nor has our research yielded additional authority. The trial judge, under the mandate of U.M.W. Union Hospital v. District No. 50, U.M.W., 52 Ill.2d 496, 288 N.E.2d 455, was bound to follow Dato, and this court is similarly obliged to affirm even though we might be in disagreement with Dato.

Even if the trial judge and this court were not bound by Dato I would affirm. The majority interprets section 10 — 2 of the School Code (Ill. Rev. Stat. 1971, ch. 122, par. 10 — 2), as a general, unrestricted grant of authority to school districts to engage in litigation concerning zoning, yet this opens the door for a school district to intervene in any zoning matter which concerns property lying within its boundaries. The majority opinion states, “We agree with the trial court in its determination that the nature and extent of the interest here involved are worthy of concern to and protection by the school board. * * * The interests that the school board seeks to vindicate were, as the trial court found, direct and substantial and necessarily relate directly to the duties and responsibilities of the Board of Education.” My difficulty with this statement is that I find it impossible to discern from a reading of the complaint, what interests the school district is seeking to vindicate and precisely what duties and responsibilities are involved. Count I of the complaint simply alleges that Peoria Concrete Products, during a meeting of the Board of Supervisors, offered to, and subsequently did through their attorney, pay to the county treasurer the costs of a special meeting of the Board held February 28, 1972. Count I further alleges that the meeting, under these circumstances, constituted “* * * a procedure not recognized or called for in any rule or regulation of the County Board, but contrary to all motions of public policy, the said ordinance granting the Special Use is void and illegal as against public policy.” Count II of the complaint alleges that application for the special use was insufficient under the provisions of the County Zoning Ordinance; that the Board of Supervisors, at the time of granting the special use failed to make certain findings as required by the ordinance; and that other requirements of the ordinance were not met and that the Board of Supervisors was consequently without jurisdiction to consider the application for special use or to grant the same. In neither count is there a single reference to any interest, duty or responsibility of the school district. There is not a single allegation that the school district is affected in any way whatsoever by the granting of the special use. I am consequently unable to determine the nature of the direct, substantial interest which “necessarily” relates to the duties and responsibilities of the Board of Education which the majority somehow discerns. It also states, “We can perceive of no distinction with reference to the authority to sue between the interest here sought to be protected and the usual interest that would be protected by way of a contract action against a supplier of goods or services to the school board.” I see no similarity. To analogize the right of the school district to sue for breach of a contract to which it is a party, to a right to seek declaratory judgment in a zoning case employs a logic which escapes me.

For the foregoing reasons, I would affirm the judgment of the trial cohrt.


source: Caselaw Access Project

author: Mr. JUSTICE CARTER

license: Public Domain

text:
    The Department of Public Works and Buildings, Petitioner-Appellee, v. John M. Mitchell et al., Defendants-Appellants.
    (No. 71-263;
    Fifth District
    May 17, 1974.

      Rehearing denied July 3, 1974.

    Harris and Lambert, of Marion, for appellants.
    William J. Scott, Attorney General, of Chicago (James W. Sanders, Assistant Attorney General, of counsel), for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The Department of Public Works and Buildings filed a petition for condemnation of 3.34 acres in Williamson County. The land involved is located approximately halfway between the intersection of Illinois Routes 148 and 13 and the Carterville crossroads. This route is a much-travelled highway going east and west across southern Illinois. On September 26, 1969, the trial court found the amount of $10,000 to be preliminary just compensation for the acreage and ordered immediate vesting of title to tire petitioner.

After a 2-day trial in March, 1971, the jury brought in a verdict for $10,000 for the defendants, and the post-trial motion was denied. The appellants’ brief was filed in January, 1973, and the appellee’s brief in December, 1973. A motion to strike the appellants’ reply brief, which had been filed on February 4, 1974, was filed by appellee on February 25, 1974. This motion to strike is denied.

The impetus of defendants’ appeal is directed towards opposing counsel’s remarks made on four separate occasions during his closing argument to the jury. The fifth so-called prejudicial remark mentioned in defendants’ brief took place on the second redirect examination of an expert witness. Twice in the closing argument the attorney for the defendants failed to object to statements of opposing counsel which he now considers objectionable. On the other two occasions the trial judge sustained the objections made by defendants’ counsel to portions of the closing argument of the petitioner.

During the second redirect examination of petitioner’s expert witness, counsel for petitioner asked the witness if he had done an appraisal for the defendants, would he expect to be paid? The objection to this was sustained and counsel asked another question: “Do you always get paid for appraisals?” This was also objected to and the court sustained the objection. Defendants could not possibly be prejudiced by this rule of the trial court in their favor.

We will now consider the two remarks made by appellee’s counsel in his closing argument, which were not objected to by opposing counsel. The court is well aware of the rule that alleged error in the closing argument to the jury will not be considered on appeal in the absence of a ruling by the trial court as to the propriety of the argument. (Pike v. City of Chicago, 155 Ill. 656; Hedge v. Midwest Contractors’ Equipment, 53 Ill.App.2d 365; County of Cook v. Colonial Oil Corp., 15 Ill.2d 67.) However, appellants cite the two instances as being so damaging to their case that they should be considered despite counsel’s failure to make an objection. Near the opening of his closing argument, counsel for petitioner said:

“That is the only reason we are here is because we could not agree. The people of the State of Illinois, through the Highway Department, could not agree with the landowners as to what they should receive for this land.”

This statement at best is part of a general introduction given by counsel. It must be considered and examined in its context with the language before and after it. The cases cited by appellants concern the question of introducing direct evidence as to what the condemning authority paid for other property. It is fundamental that this type of evidence is inadmissible. There is no instance in this record where counsel for appellee referred to actual costs of obtaining other parcels of land. The above two sentences are simple statements of fact and had no overtones or undertones as to the real issue before the jury.

A few minutes later appellee’s counsel said: “Now I am quite sure that Robert Hall, J. C. Penney, and every motel along there has water and sewer in it.” There was a question as to the best use of the land at the time the petition was filed, and the witness for the petitioner stated that the best use was residential while the defendants’ three witnesses claimed the best use was commercial. Counsel’s statement was indeed a fair comment on this issue and in no way could be considered detrimental to the appellants. Taken in connection with the sentences before and after this remark, this reference to sewer and water was logical. Appellants cite no case to support their contention and do not pursue it in their brief, except for the cumulative effect it has with the other remarks objected to.

Near the finish of the closing argument, there were two separate occasions when counsel for appellants objected to the remarks made by petitioner’s attorney. The trial court sustained both objections; therefore, this cannot be considered detrimental to the appellants’ position.

Considering the complete closing argument of petitioner’s counsel, it cannot be said that it was of such a nature that it jeopardized the defendants from getting a fair trial. Appellants cite the cases of Jacobson v. National Dairy Products Corp., 32 Ill.App.2d 37, and Underwood v. Pennsylvania R.R. Co., 34 Ill.2d 367. These cases were instances where the trial court was reversed for the following reasons: numerous prejudicial remarks of counsel during the trial, many instances of prejudicial remarks in the closing argument, the general misconduct of counsel which prevented the litigants from receiving a fair trial, and attempts to introduce improper evidence. In no way can the conduct of appellee’s counsel in this case be compared to the conduct of counsel in the above cases or, as a matter of fact, most of the other cases cited by counsel for appellants. The attorneys in those cases engaged in a regular course of misconduct and were consistently guilty of prejudicial remarks. These cases also reflect the failure of the trial court to protect the rights of the litigants.

The jury was picked in the morning of the first day of the trial and one witness, an employee of the State of Illinois, testified. The property was viewed by the jury in the afternoon. Three appraisal witnesses testified for the appellants the morning of the second day, and their testimony was that value of the land in question was worth $20,400, $21,500 and $22,000, respectively. After the appellants rested their case, the petitioner called one of the appellants under section 60 of the Civil Practice Act and one other witness, who testified that his appraisal of the land was $7,750. After the noon recess, closing arguments of counsel were presented, followed by the court instructions to the jury. The jury reached its verdict in the afternoon of the second day.

Where the jury has viewed the premises and the amount fixed by the verdict is within the range of the evidence, the verdict will not be disturbed unless it is clearly the result of passion or prejudice or unless there was a clear mistake. (Housing Authority v. Kosydor, 17 Ill.2d 602; City of Chicago v. Harrison-Halsted Building Corp., 11 Ill.2d 431; Department of Public Works is Buildings v. Pellini, 7 Ill.2d 367; City of Chicago v. Vaccarro, 408 Ill. 587.) The jury listened to the testimony of four appraisal witnesses and the verdict was within the range of their testimony. An examination of the entire record does not indicate that the jury was motivated by passion or prejudice, or that they were mistaken. The jury’s verdict was fair and just.

The judgment of the Circuit Court of Williamson County is affirmed.

Judgment affirmed.

CREES and EBERSPACHER, JJ., concur.


author: Mr. JUSTICE EBERSPACHER

text:
    Russell A. Stamm, Plaintiff-Appellee, v. Jack Lucas et al., Defendants-Appellants.
    (No. 73-322;
    Fifth District
    May 22, 1974.

      Rehearing denied June 25, 1974.

      R. Michael Fischer, of Alton, for appellants.
    Stobbs Law Office, Ltd., of Alton (John Dale Stobbs, of counsel), for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from the summary judgment entered on behalf of plaintiff in an action for forcible entry and detainer, by the circuit court of Madison County.

The plaintiff, Russell A. Stamm, brought this suit as the third of a series of actions all concerned with the same real estate transaction. The defendants, Jack and Sandra D. Lucas, purchased under a contract for deed, a certain residence dwelling located in the town of Moro, County of Madison, State of Illinois.

The plaintiff, alleging that the defendants were in default in the contract for deed, filed a complaint asking for possession and damages in the amount of $4834. The complaint was filed on July 16, 1973. It was supported by sworn affidavit of rent due, demand for possession, notice of cancellation and termination of contract for deed and intention to proceed against purchaser (the defendants) and, finally, the agreement for deed.

The agreement for deed was signed by the parties hereto on the 18th of February, 1971; this document provided, among other things, for the payment by the defendants of $1000 towards the purchase price of $36,000 at the time of execution, for the payment of an additional $1000 on or before February 15, 1972, and for the payment of $175 per month thereafter until fully paid. The stated intention of the contract was to allow for and to have the defendants obtain financing sometime within 5 years of the date of the agreement. Then, at the time of their obtaining financing, the plaintiff-vendor was to deliver a deed to the defendants-purchasers.

Obviously, something has gone amiss in the stated desires of the parties. The plaintiff has filed one lawsuit on April 13, 1972, being case i£72-E-82 in the circuit court of Madison County. The plaintiff, on September 26, 1972, next filed case #72-SED-571 also in the circuit court of Madison County. These two cases have been consolidated. From the judgment order, minute record and the parties’ briefs, it appears that these cases involve the same transaction as the present case. Indeed, the present case has in part been consolidated with those two preceding lawsuits.

As noted earlier, this lawsuit was filed on July 16, 1973. On July 30, 1973, the defendants filed a “Motion to Dismiss and Petition for Attorney’s Fees”. The motion stated the defendants were being harassed by the filing of this present lawsuit and noted the existence of the other two prior lawsuits.

The plaintiff next on August 2, 1973, filed a motion for summary judgment stating:

“1. Plaintiff is the owner of the premises and entitled to possession pursuant to Notice to Quit, Demand for Possession and Forfeiture Notice, which is not denied;
2. Plaintiff is entitled to immediate possession, regardless of any pending litigation. There is no material issue of fact.
3. Defendants have withheld possession for over 18 months without payment of contract installments or payment of rent and without any excuse from such payments by any competent or authorized authority.
WHEREFORE, Plaintiff prays for immediate Summary Judgment based on the uncontradicted allegations of the verified Complaint.”

Defendants filed on August 6, 1973, a pleading entitled “Suggestions in Opposition to Plaintiff’s Motion for Summary Judgment” stating therein, among other things, that the motion for summary judgment is premature because the defendant’s motion to dismiss was still pending.

The motion to dismiss, plaintiff’s motion for summary judgment, and defendants’ suggestions in opposition to plaintiff’s motion for summary judgment were set for argument on August 9, 1973.

On August 9, 1973, the court, after hearing arguments, entered its judgment order finding, stating in part:

“That there are presently pending between the same parties herein Cases 72-E-82 and 72-SED-571, which, as recited by counsel for the defendants in his motion, have been consolidated by agreement;
That each of the aforesaid cases seek, among other things, possession of the premises by the plaintiff and each is predicated upon an agreement for deed entered into on February 18, 1871, between Russell A. Stamm, plaintiff herein, party of the first part, and Jack and Sandra D. Lucas, in joint tenancy, parties of the second part;
That case No. 72-E-82, above referred to, was filed in this Court on April 13, 1972, and that Cause No. 72-SED-571 was filed herein September 26, 1972;
That the case now under consideration, 73-LM-455, was initiated by plaintiff’s present counsel by Complaint in Forcible Entry and Detainer, on July 18, 1973 (sic), and seeks possession of the premises, which are the subject matter of this suit, and $4,834.00 and costs in addition thereto;
That as stated in defendant’s Motion to Dismiss and Petition for Attorneys’ Fees, plaintiff in his suit does, in fact, add to the multitude of lawsuits relative to the same transaction, and, in fact, this suit should be consolidated with the two prior lawsuits aforementioned. However, the fact that this is an additional suit between the parties does not, in itself, justify its dismissal as prayed by the defendants;
That the plaintiff’s Motion for Summary Judgment predicated upon the verified complaint of plaintiff, and the documents attached thereto, stands uncontradicted by answer, affidavit, or otherwise, and should be allowed.” (Emphasis Added.)

The court then proceeded to order that the defendants surrender possession and vacate the premises instanter. The writ of restitution was ordered stayed for 20 days, and that the remaining issues of the present cause be consolidated with the previous two cases.

From this judgment order, the defendants have brought this appeal.

The defendants assert that the court erred in entertaining plaintiff’s motion for summary judgment while the defendants’ motion to dismiss plaintiff’s complaint was pending and also that it was error for the court not to give the defendants an opportunity to oppose the plaintiffs motion for summary judgment by counter-affidavits after denying the defendants’ motion to dismiss. The defendants also assert that the motion for summary judgment was inadequate in failing to set forth, with particularity, the facts upon which it was based and that it was not verified.

We shall first consider the contention that the court erred in granting the summary judgment while the motion to dismiss was pending. Supreme Court Rule 181(b)(2) (Ill. Rev. Stat, ch. 110A, par. 181(b)(2)) provides:

“Forcible Detainer Actions. In actions for forcible detainer (see Rule 101(b)), the defendant must appear at the time and place specified in the summons. If the defendant appears, he need not file an answer unless ordered by the court; and when no answer is ordered, the allegations of the complaint will be deemed denied, and any defense may be provided as if it were specifically pleaded.”

The defendants appeared at the time specified, i.e., August 6, 1973, no answer was ordered; therefore, the allegations as set forth in the plaintiffs complaint were deemed denied as of August 6, 1973. The motions were then heard on August 9, 1973, at which time only 3 days after the complaint was "answered” the court entered summary judgment on the possession issue of the lawsuit.

As this court recently pronounced in the abstracted opinion of Housing Authority v. Collier, 13 Ill.App.3d 1088, 302 N.E.2d 365, "This case had not been pending for a long time nor did it contain a number of granted continuances. On the contrary, less than three months had passed since the original complaint was filed and there had been but two continuances, one by agreement of the parties * * *. The Court zealously guards the right of a litigant to receive his day in court where it has been conscientiously sought.”

The plaintiff would have us believe that the defendants were attempting to forever forestall the plaintiff from obtaining his day in court by continuaUy thwarting the plaintiff’s desire for a termination of this dispute. We do not have the benefit of the complete record of the two other cases pending and therefore may not and will not make any determination of the plaintiff’s contention with regard thereto. We do not, however, glean such from the records of the present case. Indeed, the contrary impression appears. The defendants filed their motions in a prompt and timely manner, appeared for aU hearings and requested no continuances.

“A summary judgment is a drastic method of disposing of litigation and the right of a party to invoke the remedy must be free from doubt.” Equilease Corp. v. Cattlemen’s Freezer Meats, Inc., 13 Ill.App.3d 1, 3, 299 N.E.2d 419, 420.

In the abstracted opinion of Krzyzanowski v. Makowski, 1 Ill.App.2d 219, 117 N.E.2d 328, the court stated:

“Plaintiff by its motion to strike raised only the question of the legal sufficiency of defendants’ motion. We are aware that there is some question in the trial courts as to whether it is proper for respondent to a motion for summary judgment to do other than join issue at once on both the law and the facts. Still, where such a motion to strike is entertained by the court, respondent should not be precluded from being given an opportunity to set up a defense on the merits when his point of law is over ruled.”

We are mindful that in the present case the defendants had not filed a motion to strike the motion for summary judgment but in lieu thereof, had on file a “Motion to Dismiss” the original complaint and “Suggestions in Opposition to the Motion for Summary Judgment.”

The plaintiff would have us believe by his statements in his brief that the defendants have no defense to his claim. We cannot so determine or conclude from the record. The defendants have denied the claims of the plaintiff, by operation of the statute.

We do not determine the sufficiency of the “Motion for Summary Judgment” but do determine that its granting under the circumstances of the case at bar was improper. See Giova v. Carrol, 109 Ill.App.2d 259, 248 N.E.2d 836; Lumbermen’s Mutual Casualty Co. v. Poths, 104 Ill.App. 2d 80, 243 N.E.2d 40.

The summary judgment statute (Ill. Rev. Stat, ch. 110, par. 57) contemplates that the opposing party shall have a reasonable time to prepare a response. Deaton v. Lloyd’s Jewelry Co., 7 Ill.App.3d 926, 289 N.E.2d 123.

We reverse the court’s order as it pertains to the granting of the motion for summary judgment and remand the cause to the circuit court of Madison County for further proceedings.

Reversed and remanded.

G. MORAN, P. J., and CREBS, J., concur.


author: Mr. JUSTICE CREBS

text:
    Sue Jewell, Plaintiff-Appellee, v. Board of Education, Du Quoin Community Unit Schools, District No. 300, et al., Defendants-Appellants.
    (No. 72-359;
    Fifth District
    May 27, 1974.

      Jerry B. Smith and Don Johnson, of Hohlt, House, DeMoss & Johnson, of Du Quoin, for appellants.
    R. N. Gandy and R. K. Peek, both of Du Quoin, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The plaintiff, Sue Jewell, was employed by defendant, Board of Education of Community Unit School District No. 300, Perry County, Illinois, as a guidance counselor on October 15, 1969. At a regular meeting on March 18, 1971, a hearing was held by defendant to consider the dis-employment of plaintiff as a non-tenure teacher. Plaintiff’s attorney, Robert N. Gandy, spoke on behalf of plaintiff at the hearing.

Thereafter, a general discussion occurred concerning the reasons given for dismissal. Following this discussion, defendant decided that the high school principal, Hewey Tweedy, should appear at a subsequent hearing to discuss plaintiff’s dismissal. Plaintiff and her attorney requested and were granted permission to attend the hearing.

On March 25, 1971, the hearing was held at. which plaintiff and her attorney spoke and a general discussion followed concerning plaintiff’s employment. Thereafter, defendant voted to go into executive session to discuss plaintiff’s case. The Board was polled and indicated unanimously that plaintiff should not be rehired. A motion was then made by one member and seconded by another to dismiss plaintiff and send her notice of said dismissal by registered mail with reasons set forth therein for tire dismissal. This motion was prepared in writing by the secretary. The defendant then went from executive session into open session. The written motion was read by the secretary giving the names of the members who made and seconded tire motion. This reading was followed by a roll call vote which vote was unanimously in favor of the motion.

On April 29, 1971, plaintiff filed a complaint in the Circuit Court of Perry County. Subsequently, the defendant filed several motions for summary judgment along with a motion to amend the minutes so that the minutes would reveal what actually occurred. The trial court held several hearings and to summarize the results the court allowed the amendments to the minutes; however, the court determined that the procedure utilized by the defendant in dismissing the plaintiff did not constitute compliance with the open meeting law. The court awarded the plaintiff damages in the amount of $11,600 and tenure. After defendant’s post trial motion was denied this appeal followed.

The initial question to be answered is what exactly happened at the March 25, 1971, meeting of the Board of Education. It appears that the minutes of the meeting were amended by the secretary and the amended minutes attested to by the Board several months after the meeting took place. The Board members stated that the amendment was necessary to reflect what actuaHy happened at that meeting. The plaintiff presented several witnesses who testified that there was no roU caU vote taken after the Board returned from executive session but that the secretary merely read the motion and announced the vote was taken in executive session. The plaintiff maintains that these witnesses were disinterested and thus their testimony should be believed over that of the members of the Board who testified to the contrary. An examination of the record reveals that all of the witnesses called by the plaintiff, who are allegedly disinterested, were at the meeting, at least in part, because of their positions in either the Du Quoin Educational Association or the IUinois Education Association.

The trial court found the facts to be as we have previously stated. A reviewing court will not reverse a ruling on a factual question unless there has been a clear abuse of discretion by the trial court. (Lukich v. Angeli, 31 Ill.App.2d 20, 175 N.E.2d 796.) The credibility of witnesses is for the trial court, and the findings of the trial judge in non-jury cases will not be disturbed unless they are manifestly against the weight of the evidence. (Brown v. Zimmerman, 18 Ill.2d 94, 163 N.E.2d 518; Arakie v. Hatoff, 5 Ill.App.3d 1073, 284 N.E.2d 703.) After considering the argument of the plaintiff we cannot say that the trial judge’s finding on this issue was erroneous or that it was manifestly against the weight of the evidence. We therefore must reject the argument of the plaintiff that the Board of Education amended their records to suit their pleasure, or convenience, or to set up a state of facts which never existed.

The question then becomes whether or not tire Board of Education complied with the open meeting law which provides:

“All meetings of any legislative, executive, administrative or advisory bodies of the State, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees or commissions of this State, and any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees which are supported in whole or in part by tax revenue, or which expend tax revenue, shall be public meetings * * *.
This Section does not prevent any body covered by this Act from holding closed sessions to consider information regarding appointment, employment or dismissal of an employee or officer or to hear testimony on a complaint lodged against an employee or officer to determine its validity, but no final action may be taken at a closed session.” Ill. Rev. Stat. 1971, ch. 102, par. 42.

The open meeting law thus prohibits final action at a closed session. We therefore must determine whether the act of dismissing the plaintiff occurred at a closed session. The trial court found that the act of dismissing Sue Jewell did occur at a closed session, and ordered that she be given tenure with all back pay due her.

In order to determine what “final action” means we shall use the following rule of construction to aid us in the interpretation of the open meeting law. (Ill. Rev. Stat. 1971, ch. 102, par. 42.)

“All general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the General Assembly may be fully carried out.” Ill. Rev. Stat. 1971, ch. 131, par. 1.01.

The defendant suggests “final action”, as this term is used in the open meeting law and as applied to the facts of this case, must be interpreted to mean either the vote to dismiss or the mailing of the written notice of dismissal. When the employment of a probationary teacher is terminated, it is done as through a notification that the contract of employment will not be renewed or in effect that the teacher will not be re-employed for the subsequent school term. The teacher is not dismissed currently, but is merely notified that she will not be re-employed. Therefore, the Board of Education in effect is voting to send notice to the teacher that her contract wiH not be renewed. After receiving this notice, the teacher remains employed through the end of the current school term and thereafter is not contracted for employment for the following school term. Upon these facts and the procedure employed, defendant maintains that the final action of the school board is not voting upon the motion not to re-employ, but in effect is the sending of a statutory notice called for by the motion and the statutory requirements of section 24 — 11 of the School Code.

The plaintiff maintains that the Board of Education cannot take any final action in dismissing a non-tenure teacher at an executive session.

The question of what constitutes “final action” under the facts here present is a question of law and we are not bound by the opinion of the trial judge on a matter of law. Since a public roll call vote allows the people to know the positions taken by the individual members of the Board, so such members can be held accountable for their actions, we feel that the “final action” is the roll call vote.

We are not persuaded by the argument that the motion to dismiss was already prepared and read by the secretary instead of being made spontaneously by another Board member at the open session as being a violation of the open meeting statute. Such a suggestion would require us to base our decision upon who read a previously prepared motion, the secretary or another Board member. We do not feel that the legislature intended who reads the prepared motion to be determinative in a case such as this.

The statute does not prohibit the Board from polling its members at a closed session. Thus the fact that there were two votes taken, one at the closed and one at the open session, should not be considered a violation of the open meeting law. The crucial fact is that the final vote was taken at an open session.

We therefore find that the Board of Education substantially complied with the open meeting law when it chose not to retain the plaintiff as a guidance counselor. So finding we must reverse the decision of the Circuit Court of Perry County.

Judgment reversed and plaintiff’s suit dismissed at plaintiffs cost.

G. MORAN, P. J., and JONES, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH KING, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—1362
    Opinion filed October 4, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Vicki Rogers, Assistant . Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Jerry D. Bischoff, and Sally J. Bray, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant Keith King was found guilty of delivery of a controlled substance in a bench trial and sentenced in absentia, to four years in the Illinois Department of Corrections. On appeal, defendant argues that (1) the trial court erred in denying his motion to amend his answer to discovery to add an additional witness; (2) the State failed to prove him guilty beyond a reasonable doubt; and (3) the trial court erred in sentencing him in absentia. We affirm.

The following facts were revealed at trial. On March 14, 1985, at approximately 1:30 p.m., Chicago police officers Stanley Turner, Abraham Taylor and Sergeant Ralph DeWitt conducted an undercover surveillance near the corner of 79th Street and Western Avenue in Chicago. The officers were assigned because of reports of cocaine and heroin sales on the street in that area. All three officers were dressed in plainclothes and travelling in an unmarked automobile. After the officers arrived at the scene, they remained in the car and observed the area activity. The officers observed defendant and another man standing near the corner. Turner testified that he observed people approach defendant as well as defendant approach automobiles, converse briefly, and exchange unidentified items. After the officers observed this activity for approximately 15 minutes, they moved their car to the corner and positioned it directly across from defendant and the other man.

Turner exited the car and walked toward defendant and a nearby store. When Turner reached the sidewalk, he turned and observed defendant approaching the undercover police car where his partners were seated. Turner began to walk back towards the undercover police car and heard defendant’s companion shout to defendant something like, “this next one” or “this is the next person.” Turner and defendant met at the undercover police car. Turner testified that defendant asked him how many or how much did he want and he responded three bags and suggested they move out of the street. Turner stated that they walked to the passenger side of the auto, and as defendant removed a small bag from his pocket, he removed $30 from his pocket. When defendant handed him the three foil packets, he announced that he was a police officer and attempted to grab defendant and the bag. Defendant and Turner struggled, the bag fell to the ground and an unidentified man ran by, grabbed the bag and some loose packets and ran eastbound on 79th Street. After Turner and defendant moved away from the passenger side of the undercover car, Officer Taylor was able to exit the car and help Turner apprehend defendant. Other officers arrived at the scene and defendant’s companion was also apprehended. The man who grabbed the bag escaped. After defendant’s arrest, Turner recovered two of the three foil packets, which tested positive for .55 grams of heroin. Defendant was searched, but no drugs or money were recovered from his person.

Officer Taylor testified that he was a passenger in the undercover police car on the date in question. Taylor also testified that he observed defendant give Turner three foil packets which he removed from a bag in his pocket.

Defendant testified on his own behalf and stated that on the date and time in question he was walking to the bus stop on 79th Street. Defendant stated that he spoke briefly with a friend named Carl Jones. Defendant further testified that as he crossed the street, Turner approached him and asked him who was the guy that ran down the street. Defendant stated that when he responded that he did not know, Turner told him that he should know and threw him against a blue car parked at the corner. He stated that he was then arrested. Defendant denied that he ever possessed a brown bag or gave Turner foil packets containing heroin.

After the cross-examination of defendant was complete, defense counsel made a motion to amend her answer to discovery to add the name of Carl Jones as a witness. The court denied the motion. Following closing arguments, defendant was found guilty of delivery of a controlled substance.

The sentencing hearing was set for March 17, 1986, but on that date defense counsel requested and was granted a continuance until April 28 so that defendant could be evaluated by the TASC drug treatment program. On April 28, defendant failed to appear in court. A bond forfeiture warrant was issued and a warrant judgment date of May 5 was set. On April 29, defendant appeared in court with counsel. The bond forfeiture was vacated, the warrant recalled and the matter set for May 5. On May 5, defendant failed to appear, and after hearing argument in aggravation and mitigation, the court sentenced defendant in absentia to four years in the Illinois Department of Corrections. On May 28, defendant, by his attorney, the public defender of Cook County, filed the notice of appeal in this matter.

Defendant first argues that the trial court erred in denying his motion to amend his answer to discovery to include an additional witness, after the cross and redirect examination of defendant was complete. We disagree.

The Illinois Supreme Court rules require a defendant to respond to the State’s motion for discovery by providing a list of intended witnesses within a reasonable time after the filing of the motion. (107 Ill. 2d R. 413(d)(i).) Failure to comply with this disclosure requirement subjects a defendant to possible sanctions, including ex-elusion of the undisclosed witness. (People v. Nevitt (1988), 174 Ill. App. 3d 326, 344, 528 N.E.2d 307, 321.) Whether or not to impose such sanction is a matter within the court’s discretion, and the court's decision will not be disturbed absent a showing by defendant of prejudice or surprise. (People v. McKinney (1983), 117 Ill. App. 3d 591, 596, 453 N.E.2d 926, 929.) An abuse of discretion has been found where the defendant made the motion prior to trial and the excluded witness was material; or prior to the presentation of his case in chief where defendant’s answer to discovery reserved the right to call any witness listed in the police reports, and the excluded witness was so listed. See People v. Foster (1986), 145 Ill. App. 3d 477, 481, 495 N.E.2d 1141, 1142; People v. Echols (1986), 146 Ill. App. 3d 965, 972, 497 N.E.2d 321, 326.

In the present case, during the direct examination of defendant the following colloquy occurred:

“DEFENSE ATTORNEY: Who — who else was present while you had that conversation with Officer Turner?
DEFENDANT: It was just him. My friend, he had walked down, maybe, about — he was about — about eight feet, maybe, 12 feet away.
DEFENSE ATTORNEY: Have you looked for that friend since this case started going on?
DEFENDANT: Yeah, I know where he is now. I know where he is now. He stay at 7914 South Essex.”

Later, after the cross and redirect examination of defendant was complete, the following occurred:

“DEFENSE ATTORNEY: Judge, if I could have a moment?
Judge, I am going to ask leave of Court to amend my answer to include Mr. Carl Jones. I don’t have him on — .
STATE’S ATTORNEY: I object, Judge, to putting a witness on her answer, at this point in the case, when it is untimely, your Honor. I mean — .
THE COURT: You can make an offer of proof.
DEFENSE ATTORNEY: Judge, I was somewhat taken by surprise.
* * *
DEFENSE ATTORNEY: I haven’t had an opportunity to speak with Mr. Jones, but I would assume that if he was called to testify, he would corroborate the initial conversation with my client and Officer Turner.
THE COURT: Well, when were you first advised of Mr. Jones?
DEFENSE ATTORNEY: Judge, approximately, ten minutes ago.
* * *
THE COURT: Aside from assuming that he would corroborate what your client says pertaining to some aspect of this, the testimony of Mr. King, — was it — what is it that Mr. Jones would testify to?
DEFENSE ATTORNEY: Judge, I believe my client testified that he was talking to a Carl Jones when Officer Turner came up and asked him if he had seen someone running. I believe that would be the only thing that Mr. Jones would be able to say.”

The court thereafter denied defendant’s motion.

As the above-quoted portions of the record indicate, defendant testified that the excluded witness was 8 to 12 feet away from him and Officer Turner when the conversation between them occurred. In addition, defendant testified that the excluded witness was a friend and that he knew where he resided. Further, the motion was untimely, made just prior to closing arguments in the case. Defendant’s allegations of prejudice and surprise are unsupported by the record. Aside from any hearsay problems involved in admission of the excluded testimony, defendant’s testimony and defense counsel’s offer of proof indicate that Carl Jones’ testimony was not material to his case. Under these circumstances, we find no error in the trial court’s exclusion of the testimony of Carl Jones.

Defendant next argues that he was not proven guilty of delivery of a controlled substance beyond a reasonable doubt. We disagree.

It is the responsibility of the trier of fact to determine the credibility of witnesses and the weight that should be given their testimony; 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.

Here, both Officers Turner and Taylor testified that they observed defendant remove three foil packets, which were later determined to contain heroin, from his pocket and give them to Officer Turner. Any inconsistencies in their testimony were resolved by the trier of fact, and the evidence adduced at trial was not so improbable that it creates a reasonable doubt of defendant’s guilt. We therefore find that the trial court’s decision finding defendant guilty of delivery of a controlled substance was proper.

Finally, defendant argues that the trial court erred in sentencing him in absentia. It is his position that the case should be remanded for a hearing where he can demonstrate that his failure to appear in court at the time of sentencing was not his fault and due to circumstances beyond his control. We disagree.

Section 115 — 4.1 of the Code of Criminal Procedure of 1963 creates a mechanism for the trial and sentencing of a defendant in absentia. The statute provides in pertinent part:

“(e) When a defendant who in his absence has been either convicted or sentenced or both convicted and sentenced appears before the court, he must be granted a new trial or a new sentencing hearing if the defendant can establish that his failure to appear in court was both without his fault and due to circumstances beyond his control. A hearing with notice to the State’s Attorney on the defendant’s request for a new trial or a new sentencing hearing must be held before any such request may be granted. At any such hearing both the defendant and the State may present evidence.” Ill. Rev. Stat. 1985, ch. 38, par. 115 — 4.1(e).

A section 115 — 4.1(e) motion to vacate a judgment is like a collateral attack upon a final judgment rather than a procedural step in a direct appeal of that judgment. (People v. Partee (1988), 125 Ill. 2d 24, 35, 530 N.E.2d 460, 465.) Therefore, the pendency or availability of the collateral remedy will not affect the jurisdiction of the appellate court over the direct appeal. (Partee, 125 Ill. 2d at 36.) In the present case, neither the record nor defendant’s brief in this matter indicates that defendant has requested a section 115 — 4.1(e) hearing in the circuit court. Since the statute clearly indicates that the defendant must request a hearing to determine whether he is entitled to the remedy of a new sentencing hearing, in the absence of such a request, we decline to address the issue of his entitlement to a new sentencing hearing.

Defendant relies on People v. Brown (1984), 121 Ill. App. 3d 776, 459 N.E.2d 1175, to support his position that under section 115— 4.1(e), a defendant is entitled to a hearing even though his attorney has filed a “premature” notice of appeal in his case. However, the decision of People v. Brown which held that a section 115 — 4.1(e) motion is a prerequisite to the appeal of a judgment in absentia has been disavowed by the Illinois Supreme Court. (People v. Partee (1988), 125 Ill. 2d 24, 35-37, 503 N.E.2d 460, 465.) Therefore, under the holding in Partee, defendant’s right to a section 115 — 4.1(e) hearing was not waived by the filing of his notice of appeal in this matter. Accordingly, defendant is entitled to request a section 115 — 4.1(e) hearing in the circuit court. Further, defendant does not allege, nor do we find any error in the trial court’s handling of the sentencing hearing. We therefore find that the trial court did not err in sentencing defendant in absentia.

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

Affirmed.

WHITE and CERDA, JJ., concur.


author: PRESIDING JUSTICE FREEMAN

text:
    YOLANDA KIRBY, Plaintiff-Appellant, v. THEODORE JARRETT, Defendant-Appellee.
    First District (3rd Division)
    No. 1—87—1598
    Opinion filed October 4, 1989.

      Gerald M. Sachs & Associates, Ltd., of Chicago (Richard J. Aronson, of counsel), for appellant.
    Gessler, Flynn, Laswell, Fleischmann, Hughes & Socol, Ltd., of Chicago (John K. Hughes, William R Jones, and Patricia A. Felch, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Yolanda Kirby (Kirby), appeals from orders of the trial court granting the motion of defendant, Theodore Jarrett, M.D. (Jarrett), to dismiss count II of plaintiff’s amended complaint based on a statute of limitations defense; and denying plaintiff’s motion for reconsideration. Plaintiff’s amended complaint sounds in medical negligence against Jarrett and other defendants and alleges that plaintiff sustained a perforated uterus as a result of an abortion performed upon her. On appeal plaintiff asserts that dismissal of count II was improper since a question of fact exists regarding when she knew or should have known of the injury and its wrongful cause.

For the reasons stated below, we reverse the judgment of the circuit court and remand this matter for further proceedings.

Plaintiff’s original two-count complaint named Carlos Baldoceda, M.D. (Baldoceda) and Biogenetics, Ltd. (Biogenetics), as defendants. Count I alleged that Biogenetics negligently provided medical services to plaintiff when she underwent the abortion at defendant’s clinic on October 23, 1982. Allegedly, Biogenetics failed to provide proper treatment when it knew or should have known that plaintiff had suffered a perforated uterus. Count II alleged that Baldoceda negligently performed the abortion procedure and failed to provide proper postoperative care.

Defendant Baldoceda proposed written interrogatories upon plaintiff. Plaintiff’s answers to two of the interrogatories are at issue in this appeal. Interrogatory number 5 provides, “State, in lay terms, the nature of your injury as you saw it and when you first became aware of it.” Plaintiff responded, “Incomplete abortion and perforated uterus.” Interrogatory number 6 states, “If anyone ever advised you that you were injured in this incident and/or that the injury was wrongfully caused, state who told you this and when it was told to you.” Plaintiff answered, “Dr. C. Wong [sic] at South Shore Hospital. Told this when admitted to South Shore Hospital on 10/23/82.”

Baldoceda subsequently was dismissed from the action upon his motion for summary judgment, since he did not perform the abortion procedure. Plaintiff filed an amended complaint, naming Biogenetics, in count I, and appellee Jarrett, in count II, as defendants. The amended complaint alleges that Jarrett negligently performed the abortion on plaintiff. Specifically, plaintiff alleges that Jarrett, among other things, negligently perforated plaintiff’s uterus and failed to provide proper post-operative care when he knew or should have known that he perforated the uterus and caused uncontrolled hemorrhaging.

Jarrett filed a motion to dismiss count II, asserting that the amended complaint was not timely filed. Jarrett asserted that the amended complaint alleges that plaintiff received the medical treatment on October 23, 1982. Further, plaintiff’s answers to the interrogatories of Baldoceda indicate that plaintiff knew of the alleged injury on October 23, 1982. Yet, plaintiff failed to file the amended complaint, in which she named for the first time Jarrett as a defendant, until October 24, 1984, one day after the expiration of the limitations period set forth in section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212).

Plaintiff filed an affidavit in response, indicating that she lacked knowledge of a perforated uterus until October 26, 1982. The affidavit states that on October 23, 1982, plaintiff went to Biogenetics for an abortion. Later that day she went to South Shore Hospital complaining of severe pain. After being examined, she was advised that she possibly had an incomplete abortion. Dr. Wang told her on October 26, 1982, after surgery, that she had a perforated uterus that had occurred during the abortion. The affidavit also states that plaintiff’s answers to the interrogatories of Baldoceda indicate that she understood the interrogatory language “injured in this incident” to mean her possible incomplete abortion.

Plaintiff’s counsel filed an affidavit, in which he stated that he received a true and correct copy of the record from South Shore Hospital regarding plaintiff, and that attached to the affidavit are true and correct copies of the emergency room/out-patient record of October 23, 1982; a history and impression of Dr. Wang of October 25, 1982; and Wang’s report of surgery of October 26, 1982.

The trial court granted the motion to dismiss with prejudice. Plaintiff filed a motion for reconsideration and an affidavit of Wang. Wang’s affidavit states that on October 23, 1982, he made an initial diagnosis of “possible incomplete abortion.” On October 26, 1982, Wang discovered a perforated uterus while performing exploratory surgery. After October 26, 1982, Wang informed plaintiff that she had suffered a perforated uterus during the abortion. In addition to filing a motion to reconsider, plaintiff requested leave to file a second amended complaint to allege a “discovery” date of the injury and its wrongful cause, pursuant to section 13 — 212 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212). On April 16, 1987, the trial court denied plaintiff’s motion to reconsider.

On appeal plaintiff initially asserts that the trial court improperly granted the motion to dismiss since a fact question exists regarding the date on which plaintiff knew or should have known of the injury and its wrongful cause. The trial court allegedly relied solely on plaintiff’s answers to Baldoceda’s interrogatories in granting appellee’s motion. Plaintiff asserts that the interrogatory regarding when plaintiff learned of the injury and/or its wrongful cause is confusing in that it is stated in the alternative (and/or). Plaintiff contends that the interrogatory and answer are unclear whether, on October 23, 1982, plaintiff was told only of the injury; only of a wrongful cause; or of both the injury and its wrongful cause. Plaintiff contends that she could not have known of the wrongful cause of the injury until she learned of the perforated' uterus after the surgery of October 26, 1982.

Although the motion to dismiss does not cite specifically to the Code of Civil Procedure, the parties agree that the motion was properly filed pursuant to section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). With regard to a section 2 — 619 motion, the parties may file affidavits, counteraffidavits, interrogatories, documents and deposition transcripts, and may call witnesses at a hearing before the trial judge. (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 387 N.E.2d 878.) The defendant has the burden of proving the affirmative defense relied upon in the motion to dismiss. (Meyer, 70 Ill. App. 3d at 114.) Where, however, the plaintiff is seeking to come within the “discovery” exception to the statute of limitations, plaintiff has the burden of proving the date of discovery. Blair v. Blondis (1987), 160 Ill. App. 3d 184, 513 N.E.2d 157.

Section 13 — 212 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212) sets forth the “discovery” rule. That section provides that a medical malpractice action must be brought within “2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known *** of the injury.” See also Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 262 N.E.2d 450.

Plaintiff asserts that the amended complaint contains facts from which it can reasonably be inferred that plaintiff could not have “discovered” the injury or its wrongful cause until Dr. Wang performed exploratory surgery on October 26, 1982. Plaintiff cites Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 391 N.E.2d 177, in which the court held that a complaint containing no express allegations that the alleged medical negligence could not have been discovered during the limitations period, nevertheless supported such a conclusion based on a reasonable inference regarding the nature of the plaintiff’s injury. (Cutsinger, 72 Ill. App. 3d at 532.) Defendant responds that in the instant case, plaintiff failed properly to invoke the “discovery rule” of section 13 — 212. Plaintiff replies that, in any event, defendant waived any argument regarding a pleading defect — such as that plaintiff failed to allege the discovery rule — by failing to raise the issue in the trial court.

For purposes of a section 2 — 619 motion, all well-pleaded facts and reasonable inferences are taken as true. (Etten v. Lane (1985), 138 Ill. App. 3d 439, 485 N.E.2d 1177.) Conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest may not be admitted. (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 387 N.E.2d 878.) Generally, the trial court should grant the motion where the record establishes that a genuine and material question of fact does not exist. Meyer, 70 Ill. App. 3d at 114.

Where a section 2 — 619 motion has been filed and there is no jury issue or demand involved, and genuine disputed questions of fact are present, the court may either: (1) deny the motion without prejudice to the right to raise the subject matter of the motion by answer; or (2) hear and determine the merits of the dispute based upon the pleadings, affidavits, counteraffidavits, and other evidence offered by the parties. (Etten v. Lane (1985), 138 Ill. App. 3d 439, 485 N.E.2d 1177.) When the second approach is taken, the reviewing court must review not only the law but also the facts, and may reverse the trial court order if it is incorrect in law or against the manifest weight of the evidence. Etten, 138 Ill. App. 3d at 443.

In the instant case, the trial court had before it the pleadings, affidavits, and discovery answers. Plaintiff asserts that a genuine issue of material fact exists as to when she knew or should have known of the injury and its wrongful cause. This court therefore must determine whether the trial court’s determination was incorrect as a matter of law or contrary to the manifest weight of the evidence.

Initially, we note that the parties dispute whether or not a valid jury demand exists. Plaintiff asserts that a jury demand was on file, since defendant Baldoceda had filed a jury demand even before appellee Jarrett was made a defendant. Defendant contends that there was no valid jury demand on which plaintiff could rely. Section 2 — 1105(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1105(a)) requires that a plaintiff who desires a trial by jury file a jury demand when the action is commenced. Section 2— 619(c) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(c)) further requires that a party opposing a section 2 — 619 motion timely file a jury demand if the action is one in which the party is entitled to a jury trial.

In the instant case, plaintiff, the party opposing the motion, failed to request a jury demand when her action was commenced or at any other time. Since plaintiff failed to file a jury demand, plaintiff waived a trial by jury. Therefore, even if the trial court found that a fact question remained regarding when plaintiff “discovered” her injury and its wrongful cause, the court could properly determine the motion without submitting any questions to a jury.

The injury for which the plaintiff is seeking damages is a perforated uterus. Plaintiff’s amended complaint alleges that Dr. Jarrett negligently failed to perform the abortion by, among other things, negligently perforating the plaintiff’s uterus and causing uncontrolled hemorrhaging. Plaintiff’s affidavit indicates that plaintiff developed symptoms of severe abdominal pain on October 23, 1982, and was told by a physician on the same day that she had a possible incomplete abortion and would require further examination. Plaintiff indicated that she did not know prior to October 26, 1982, that she had a perforated uterus. Further, Dr. Wang states in his affidavit that on October 23, 1982, he made an initial diagnosis of possible incomplete abortion. Wang did not discover the perforated uterus until after he performed exploratory surgery on October 26, 1982. Plaintiff’s answers to the interrogatories of Baldoceda indicate that plaintiff learned of the “injury” of an “incomplete abortion and perforated uterus” and/or its “wrongful cause” on October 23, 1982. The affidavits of plaintiff and Dr. Wang, however, indicate that plaintiff could not have learned of the perforated uterus until October 26, 1982. The record indicates that plaintiff did not know, nor could she reasonably have known, that she had a perforated uterus on October 23, 1982. Further, we find that the allegations of plaintiff’s amended complaint, including the nature of the injury suffered, sufficiently support the reasonable inference that plaintiff did not know or could not have known of the perforated uterus until October 26, 1982. (Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 391 N.E.2d 177.) Accordingly, we find that the trial court improperly granted the motion of Jarrett to dismiss count II of plaintiff’s amended complaint.

We will address other arguments raised by the parties in this appeal. The parties dispute whether plaintiff’s answers to Baldoceda’s interrogatories numbers 5 and 6 constituted binding judicial admissions that she knew of the injury and its wrongful cause on October 23, 1982. Statements provided in answers to interrogatories are properly considered by the trial court on a section 2 — 619 motion to dismiss. (See Sierens v. Clausen (1975), 60 Ill. 2d 585, 328 N.E.2d 559; 107 Ill. 2d Rules 212(a)(4), 213(f).) A judicial admission is a deliberate, clear, unequivocal statement by a party regarding a concrete fact within that party’s peculiar knowledge. (Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 508 N.E.2d 301 (Hansen I).) The information upon which the admission is based must be uniquely within the personal knowledge of the person making it. (Hansen v. Ruby Construction Co. (1987), 164 Ill. App. 3d 884, 518 N.E.2d 354 (Hansen II).) In the instant case, Dr. Jacob, the physician who initially examined plaintiff after the abortion, and Dr. Wang, who apparently also spoke to plaintiff after the abortion on October 23, 1982, would also have knowledge regarding whether plaintiff was told of the possible perforation of the uterus on that day. Therefore, we cannot hold that plaintiff’s statement regarding the nature of the injury or its wrongful cause constitutes a judicial admission.

Further, appellee contends that the affidavits of plaintiff and her attorney were insufficient as a matter of law. Defendant asserts that since the affidavits are not notarized, they fail to show affirmatively that the affiants, if sworn as witnesses, could competently testify to the information contained in the affidavits. Further, information regarding the truth and correctness of the medical records were not within the personal knowledge of plaintiff’s counsel. Defendant contends that the requirements of Supreme Court Rule 191 therefore have not been met.

In the instant case, defendant Jarrett failed to raise the issue of the sufficiency of the affidavits in the trial court, and therefore, has waived it on appeal. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397.) Assuming that the issue has been preserved on appeal, we find that the requirements of Rule 191(a) (107 Ill. 2d R. 191(a)) have been met. The affidavits sufficiently show that plaintiff and her counsel, if called as "witnesses, could competently testify to the contents of their affidavits. Where it affirmatively appears from the whole of the document that the affiant could competently testify to the contents of the affidavit at trial, then technical insufficiencies in the affidavit should be disregarded. (Mount Prospect State Bank v. Forestry Recycling Sawmill (1980), 93 Ill. App. 3d 448, 459, 417 N.E.2d 621; LaMonte v. City of Belleville (1976), 41 Ill. App. 3d 697, 701, 355 N.E.2d 70.) Regarding the personal knowledge of plaintiff’s counsel regarding the contents of his affidavit, we find that counsel could competently testify that he received a copy of the medical records available at the hospital.

For the foregoing reasons, we reverse the judgment of the circuit court and remand this matter for further proceedings.

Judgment reversed and cause remanded.

RIZZI and CERDA, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    MARY L. GOODSON, Indiv. and as Adm’x of the Estate of William Goodson, Deceased, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ferro Engineering, Appellee).
    First District (Industrial Commission Division)
    No. 1—88—3550WC
    Opinion filed October 6, 1989.

      Marvin A. Brustin, Ltd., of Chicago, for appellant.
    Wiedner & McAuliffe, Ltd., of Chicago (Mark C. Wiedner and James S. Smith, of counsel), for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The petitioner, Mary L. Goodson, filed an application for adjustment of claim under the Worker’s Occupational Diseases Act (the Act) (Ill. Rev. Stat. 1977, ch. 48, par. 172.36 et seq.), alleging a claim for her husband’s death due to his exposure to asbestos while employed by the respondent, Ferro Engineering. The arbitrator dismissed the petitioner’s claim, finding that it had been filed beyond the applicable statute of limitations period. On review, the Industrial Commission (Commission) affirmed the arbitrator’s decision. Judge Mary Conrad of the circuit court of Cook County confirmed the Commission’s decision. The petitioner appeals.

At the hearing on the respondent’s motion to dismiss, the arbitrator accepted the petitioner’s recitation of the facts as true for purposes of that hearing. Consequently, the facts are undisputed on appeal. The decedent, William Goodson, was employed by the respondent from 1966 through 1972. His last exposure to asbestos was in 1972. He was not disabled at any time between 1972 and 1979. On January 6, 1979, he was admitted to the hospital and was subsequently diagnosed as having carcinoma of the lung. As a result of the cancer, he died on July 31,1979.

On June 10, 1981, the petitioner, the decedent’s widow, filed an application for adjustment of claim with the Industrial Commission, alleging that the death of her husband had resulted from his exposure to asbestos while working for the respondent. The respondent filed a motion to dismiss, contending that the petitioner’s claim was barred by the statute of limitations. The petitioner replied that her claim was timely filed within three years of the death of her husband as prescribed by section 6(c) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 172.41(c)). The arbitrator granted the respondent’s motion to dismiss, finding that although the petitioner had met the filing requirements of section 6(c), her claim was nevertheless barred by section 1(f) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 172.36(f)), because the decedent had not become disabled within three years of his last exposure to asbestos.

On review, the Commission affirmed the arbitrator’s decision. The circuit court confirmed the Commission’s decision, holding that sections 6(c) and 1(f) must be read together and that if an employee does not become disabled within three years of his last exposure to the hazard, no compensation can be paid, irrespective of the timeliness of the filing of a claim in accordance with section 6(c).

The sole issue presented on appeal is whether a survivor’s claim for benefits, filed within three years of the employee’s death, is barred by section 1(f) of the Act where the employees did not become disabled within three years of the date of his last exposure to the fatal hazard.

Initially, we note that a claim for death benefits by a survivor is separate from the claim of the worker, and the law in effect on the date of the worker’s death is controlling, not the law at the time of injury. (Sprinkman & Sons Corp. v. Industrial Comm’n (1987), 160 Ill. App. 3d 599, 513 N.E.2d 1188.) Therefore, the petitioner’s claim should be examined in accordance with the law in effect on July 31, 1979.

In 1979, section 1(f) of the Act provided that no compensation was payable for or on account of any occupational disease caused by asbestos dust, unless disablement occurred within three years after the last day of exposure to the fatal hazard. (Ill. Rev. Stat. 1977, ch. 48, par. 172.36(f).) Section 6(c) of the Act provided that application for death benefits could be filed within three years after the date of death where no compensation had been previously paid. (Ill. Rev. Stat. 1977, ch. 48, par. 172.41(c).) The petitioner contends that she only had to meet the requirements of section 6(c).

Where the language of a statute is susceptible to differing interpretations, it is necessary to ascertain the legislative intent by looking beyond the express words and considering the purpose to be served by the statute. (City of Chicago v. Strauss (1984), 128 Ill. App. 3d 193, 470 N.E.2d 563.) Different sections of the same statute should be considered as in pari materia and should be construed so as to avoid an illogical result. (Sinnock v. Board of Fire & Police Commissioners (1985), 131 Ill. App. 3d 854, 476 N.E.2d 492.) In determining what the intent of the statute is, the court may properly consider not only the language used in a statute, but also the reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved. Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 504 N.E.2d 84.

The Workers’ Occupational Diseases Act reflects the legislative balance between the rights of employees and employers. (Handley v. Unarco Industries, Inc. (1984), 124 Ill. App. 3d 56, 463 N.E.2d 1011.) The purpose of the limitation provisions in question is to protect the employer against claims too old to be adequately investigated and defended. (See 2B A. Larson, Workmen’s Compensation §78.10, at 15 — 104 to 15 — 105 (1989).) Accordingly, sections 1(f) and 6(c) should be read together to effectuate the legislative intent. Section 1(f) clearly states that no compensation shall be payable for or on account of any occupational diseases unless the employee becomes disabled within three years of his last exposure to the hazard. That section evinces a legislative intent to reasonably limit an employer’s period of potential liability for both disability benefits payable to an employee and death benefits payable to a survivor.

Under the petitioner’s proposed interpretation of the Act, an employee becoming disabled more than three years after the date of his last exposure would be barred from any compensation. Yet, a survivor filing a claim within three years of the employee’s death would be entitled to claim death benefits under the Act, irrespective of whether the deceased employee had occurred any disablement within three years of his last exposure to the hazard. In other words, the employee would not be able to recover benefits while alive and disabled, but the surviving spouse could recover benefits upon the employee’s death, even if it was 50 years after his last exposure to the hazard. Acceptance of the petitioner’s interpretation would create an illogical distinction with no apparent reason or policy supporting it. Moreover, the petitioner’s interpretation would be contrary to the legislative intent of the Act, which is to reasonably limit the period of potential liability.

The petitioner argues that her claim is independent of any claim on the part of the deceased employee and therefore is not barred. Her argument is unpersuasive. Although her claim is independent of the decedent’s, it does not follow that she need not meet the requirement that disability or death occur within three years of the last exposure. The cases cited by the petitioner in support of her position are inapposite. Two of the cases, Burke v. Industrial Comm’n (1938), 368 Ill. 554, 15 N.E.2d 305, and American Steel Foundries v. Industrial Comm’n (1935), 361 Ill. 582, 198 N.E. 687, involved provisions of the Workers’ Compensation Act which are not similar to the provisions involved in the instant case. Moreover, in Burke, the court specifically recognized that the making of a claim for compensation within six months after the accident was a condition precedent to the survivor’s right to maintain a proceeding under the statute involved in that case.

The final case that the petitioner relies upon, Sprinkman & Sons Corp. v. Industrial Comm’n (1987), 160 Ill. App. 3d 599, 513 N.E.2d 1188, is actually consistent with the circuit court’s holding in the instant case. In Sprinkman, the court found that the petitioner’s claim, timely filled within three years of the employee’s death, was not barred where the employee had become disabled within three years of his last exposure to the hazard and had been awarded permanent total disability for asbestosis. Again, in the instant case, the parties stipulated that the decedent was not disabled within three years of his last exposure to the hazard. We find that the disablement of the decedent within three years of his last exposure to the hazard was a condition precedent to the survivor’s recovery. Therefore, the petitioner’s claim was barred by section 1(f) of the Act.

We therefore affirm the circuit court’s confirmation of the Commission’s decision, which approved the arbitrator’s finding that the petitioner’s claim was barred by section 1(f) of the Act.

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

Affirmed.

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


author: PRESIDING JUSTICE BILANDIC

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARSHALL HILL, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—2186
    Opinion filed October 10, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Dennis E. Urban, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Following a jury trial, defendant, Marshall Hill, was convicted of attempted murder. After a hearing on defendant’s post-trial motion, the trial court vacated the judgment of guilty of attempted murder and entered a judgment of guilty of aggravated assault. Defendant was placed on probation for one year.

Neither party objected to the judgment of guilty of aggravated assault. Defendant did not file any post-trial motions dealing with the aggravated assault conviction but did file a timely notice of appeal.

The initial record on appeal did not include an indictment charging the defendant with any crime. A supplemental record included an indictment charging defendant with attempted murder and other crimes. However, it did not charge the defendant with the crime of aggravated assault. The record and supplemental record were prepared and filed by the defendant.

A defendant is brought before the court on a criminal charge by complaint, information, or indictment. (Ill. Rev. Stat. 1987, ch. 38, par. 111 — 2.) In the case at bar, prosecution of defendant was initiated by a grand jury’s return of a bill of indictment. (Ill. Rev. Stat. 1987, ch. 38, par. 112 — 4(b).) It was the State that formulated the charges and presented evidence to the grand jury on the offenses it desired the bill of indictment to contain. Ill. Rev. Stat. 1987, ch. 38, par. 112 — 4(a).

If an indictment, information or complaint existed which charged the defendant with aggravated assault and the defendant chose not to-include it in the record on appeal, the State could have produced the charging document by way of an additional supplement to the record pursuant to Supreme Court Rule 329 (107 Ill. 2d R. 329).

The report of proceedings reveals that no reference was made to aggravated assault in the opening statements, evidence, final arguments, or instructions to the jury. It is undisputed that aggravated assault is not a lesser included offense of attempted murder.

The issue presented is whether a defendant can be convicted of a crime with which he is not charged and for which he was not tried.

I

It is fundamental to our notion of fairness and justice that a defendant must be charged and tried for a crime in order to properly be convicted for such crime. In Cole v. Arkansas (1948), 333 U.S. 196, 92 L. Ed. 644, 68 S. Ct. 514, the United States Supreme Court held:

“No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. *** It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. [Citation.]” (333 U.S. at 201, 92 L. Ed. at 647, 68 S. Ct. at 517.)

(See People v. Goodman (1973), 12 Ill. App. 3d 400, 298 N.E.2d 1.) This principle is as clearly established today as it was in 1948. To now convict the defendant of an offense with which he was never charged would be a fundamental violation of procedural due process. Because we find that defendant was never charged or tried with the offense of aggravated assault, his conviction must be reversed.

II

Because procedural due process is so fundamental to our notion of justice, the State’s contention that defendant waived this issue on appeal is equally without merit. In People v. Gresham (1982), 104 Ill. App. 3d 81, 432 N.E.2d 654, appeal denied (1983), 93 Ill. 2d 545, defendant was convicted by a jury of armed violence, aggravated battery, and two counts of unlawful use of weapons. On appeal, he argued that the crime of armed violence may not be predicated upon the felony offense of aggravated battery with the use of a deadly weapon and, thus, the indictment did not state an offense. The court agreed and reversed defendant’s conviction of armed violence, rejecting the State’s contention that defendant waived this issue by not raising it below and failing to raise it in the post-trial motion:

“An indictment which does not charge an offense is subject to dismissal at any time and is not waived by failure to object at trial. [Citations.] *** We thus conclude that the failure of the indictment to state an offense may be attacked in this court and is not waived by the defendant’s failure to raise this issue in his post-trial motion.” (104 Ill. App. 3d at 85.)

Similarly, the defendant in the case at bar did not file a post-trial motion dealing with his conviction of aggravated assault. Although the trial court was never informed of the alleged error due to failure on the part of the State to charge the defendant with aggravated assault, this issue may be raised for the first time on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Therefore, this court does not agree with the State’s contention that the defendant waived this issue by failing to raise it at the trial court level.

Ill

Finally, we note that it would be preferable if counsel for both parties called the court’s attention to the fact that it was about to enter an apparently erroneous judgment. Error could have been avoided and judicial resources conserved.

Accordingly, the judgment of the circuit court of Cook County is reversed.

Reversed.

SCARIANO and DiVITO, JJ., concur.