author: JUSTICE DiVITO

text:
    GEORGE J. TARULIS, Plaintiff-Appellee, v. PHILIP G. PRASSAS et al., Defendants-Appellants (Laurette Rathz, Defendant).
    First District (2nd Division)
    No. 1—91—2991
    Opinion filed September 22, 1992.
    Modified on denial of rehearing November 17, 1992.
    Schoen & Smith, Ltd., of Chicago (Lee J. Schoen and Carolyn M. Dig-gins, of counsel), for appellants.
    Pavalon & Gifford, of Chicago (Eugene I. Pavalon, Michael L. Lauzon, and Gallagher & Petrak, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

On the afternoon of November 8, 1988, defendant Laurette Rathz was traveling east on 103rd Street near Kedzie in Chicago, heading for a shopping center owned by defendants Philip G. Prassas, Elaine Chipman, Philip G. Prassas Family Trust, and Josephine D. Prassas Trust No. 1 (the Prassas defendants). As Rathz turned left into the driveway of the shopping center parking lot, she lost control of the car. She came to a stop after hitting the driver’s side of a vehicle belonging to plaintiff George J. Tarulis, who was getting out of his car. Tarulis sued the Prassas defendants and Rathz as a result of his injuries. The Prassas defendants filed a contribution claim against Rathz, who filed her own contribution claim against them. A jury found Rathz 88% liable and the Prassas defendants 12% liable, and it awarded Tarulis $1.4 million. The circuit court denied the Prassas defendants’ motions for a directed verdict during the trial and for judgment notwithstanding the verdict afterward. The Prassas defendants appeal both orders; they also claim error arising from admission of certain evidence, exclusion of other evidence, and confusing verdict forms. For the reasons stated below, we reverse.

In its final version, Tarulis’ complaint alleged that the Prassas defendants were negligent in that they (1) located the wheel stop too close to the east side of the driveway; (2) did not paint the wheel stop a bright color or otherwise provide sufficient contrast to enable an eastbound driver to see it; (3) did not define, by striping or otherwise, the edges of the driveway, so people making a left turn into the parking lot were likely not to see the wheel stop; (4) allowed the slope of the driveway to exceed the maximum allowed under the Chicago municipal code, which limited the visibility of the stop; and (5) did not inspect the driveway and the adjacent area on the east to determine whether the driveway was reasonably safe for those turning left from 103rd Street. Defendants filed two summary judgment motions, but the record contains no order disposing of either motion.

Prior to trial, defendants filed a motion in limine. Among the items it addressed were the exclusion of evidence of subsequent remedial measures and of “mention of insurance *** which would severely prejudice defendants^] case.” The circuit court’s order states only that “[t]he Defendants, PRASSAS FAMILY’S, various and routine Motions in Limine have been agreed upon by all parties.”

Tarulis began presentation of his case with testimony by the investigating police officer. Officer Susan Urban stated that when she questioned Rathz at the scene of the accident, Rathz said she had hit a wheel stop on the east side of the driveway, lost control of her car, and hit Tarulis. Officer Urban did not recall if the driveway had striping at its edges in 1988.

Rathz, who was 86 years old at the time of the accident, testified that she was traveling no more than five miles per hour when she entered the driveway, having stopped to wait for westbound traffic on 103rd Street to pass before she turned left into the parking lot. She remembered nothing between hitting the wheel stop and coming to rest after sideswiping Tarulis’ car, other than being in shock. When asked if the wheel stop had any striping on it in 1988, she replied “Nothing. No.” She stated that the day in question was the first time that she ever had turned left into the lot from 103rd Street; even though she had lived in the area for over 30 years and had entered that driveway “many times,” she had been driving only 10 years and had always entered from the right, traveling from her home to the east.

Tarulis described the accident as follows:

“And as I stood up [while leaving my car,] facing the east, I saw a car accelerate and keep accelerating its speed pointing directly at me, and I realized something was wrong. So I tried to get back into the car, and I got my *** keister back into the seat, and I tried to pull up my legs; and as I got my legs up underneath the panel, the lower rim of my door, I — this woman was right on top of me with her — she hit the — hit the [shopping cart] caddies that were in the — in front of me, and they went up in the air. And I saw her with her arms clutched on the — on the wheel, and her eyes wide with fear. And then her car swung around and sandwiched my — sandwiched my ankles beneath — that were beneath the door rim with her car. Her car swung completely around.”

He agreed that Rathz was already inside the parking lot, about 50 feet away, when he first saw her. He “ha[d] no idea” at trial why Rathz’s car came toward him, and he was unable to say the highest speed Rathz’s car had reached.

Plaintiff’s expert, Roger Keiser, was an architect who, in the six years he worked for other architects before beginning his own practice, designed at least 100 parking lots, but none in the last 18 years. Keiser explained that architects are responsible for safety considerations in parking lot design and that only “basic and general engineering and common sense practices” are involved. He testified that as a reference work, he customarily used “Time-Saver Standards for Site Planning” (TimeSavers), which he termed a “bible” for architects and which contains compilations of standards resulting from years of research and development. He explained that the wheel stops in the parking lot were precast concrete, approximately six inches high and eight feet long, and that, according to his measurements two days prior to the trial, the wheel stop at the east side of the driveway was 11 inches from the east side of the driveway. The sole purpose of such stops when placed at the perimeter of a parking lot, he stated, is to prevent cars from extending over the sidewalk. In Reiser’s opinion, the placement and coloring of the wheel stop here “lack[ed] ready visibleness” to drivers turning left into the parking lot. He then explained that

“making a left turn, you’re quite a distance away and the monotone of color [of the sidewalk and the whéel stop and the driveway], *** with the clutter of the parking lot, *** [make it] very difficult to judge where [the wheel stop] is when you’re crossing three lanes of oncoming traffic.”

He further stated that the wheel stop should have been placed “at least one and a half car widths [away from the driveway] to get it away from the close proximity of that entrance.” Placed where it was, he continued, standard practice would be to make it readily identifiable by painting it with contrasting stripes such as orange or yellow. He also stated that standard practice called for painting the driveway boundaries yellow or orange, to make them readily identifiable, or putting a fluorescent cone out to define the boundary. Later, however, he conceded that TimeSavers merely advises contrast and definition, without specifying how to achieve it. He also stated that the minimum acceptable height for a permanent object in such a location was 24 inches.

Reiser testified that with regard to the driveway slope, as slope increases, sightlines decrease, creating a safety problem. Although the dimensional difference between the maximum driveway slope allowed by the municipal code of the City of Chicago and the actual slope of the driveway at issue was approximately one-half inch, he later conceded that the municipal code section he referred to concerned slope requirements for clear and unobstructed passage and drainage, not for sightlines.

After Tarulis presented his case, the Prassas defendants moved for a directed verdict, arguing that Tarulis had failed to meet his burden of proof against them with regard to causation. In particular, they emphasized that Rathz had never testified that she hit the wheel stop because she could not or did not see it, so to permit a jury to infer that their having not properly located or defined the wheel stop caused the accident would be improper as speculation. The court denied the motion.

Paul Box, a licensed engineer testifying for the Prassas defendants, headed his own traffic engineering consultant firm and was co-editor and co-author of the current Manual of Traffic Engineering Studies. Half his time was spent investigating cases, with the other half devoted to traffic studies and the like; he also had written a textbook, Parking Principles, on the design of parking facilities, as well as over a hundred other related publications. Often, he produced parking lot “geometric design plans,” which he gave to architects or civil engineers to incorporate into their projects. He described wheel stops as precast concrete, seven or eight inches wide at the top and 10 inches at the bottom, approximately seven feet long, held in place by foot-long pins driven into the ground.

When asked about dimensions in parking lot design, Box stated that engineers make the ultimate decision based on flexible guidelines, not on “standards,” which to him meant inflexible rules. As for the driveway and wheel stop here, Box stated that “the edge of [the wheel stop was] two feet or so east of the east edge of the driveway we’re talking about.” He remarked that on Tarulis’ survey, this dimension scaled as 2.4 feet. Two feet was an acceptable distance between the stop and the edge of the driveway, he commented, saying that “[i]f [he] were designing the lot and putting in wheel stops, that’s precisely where [he] would put it. [He] s[aw] nothing wrong with the location of it, the setback or the two feet away from the edge of the driveway.”

As for contrast, Box agreed that over time, the parking lot surfacing material here (asphalt) becomes lighter and the driveway, sidewalk, and wheel stop material (concrete) becomes darker. In his view, however, the contrast was adequate in 1990, when he first saw the lot; in his own projects, he did not recall ever painting concrete stops. He had no knowledge whether in 1988 there was a yellow stripe along the east edge of the driveway or if the wheel stop he saw when he went to the site in 1990 was the same as the one there at the time of the accident in 1988. He knew of no national guidelines under which stops should be painted yellow, nor of any State standards for wheel stops; he also testified that an orange cone near the wheel stop at issue was “simply not an appropriate device to use.” He had never heard of TimeSavers until this case, and he disagreed with its recommendation that a permanent fixed object near a driveway should be at least two feet high, because at that height it would limit visibility. He also testified that no signage was needed to define the driveway because “the location of the driveway and its outlines are clearly obvious to anyone with normal visi[on].”

As for the driveway slope, Box testified that the current guideline of the Institute of Traffic Engineers for this type of driveway was “about 6 percent in the first 10 feet and not more than 10 percent maximum.” Although he later conceded that the proposed guideline from the Institute of Traffic Engineers, written by a committee he chaired, recommends that the angle from a driveway to a sidewalk should not exceed 8%, he added that the 8% figure was an error and should be 10%. He stated that the difference between a slope of 8% and the municipal code requirement of 8.3% translates into about one-half inch in height for the driveway here, which he termed “insignificant.” Asked if an increase in driveway slope could affect a driver’s sightline, he replied “[n]ot necessarily.” The only reasons he knew for regulating driveway slope were drainage, avoiding damage to the undercarriage of a car, and limiting the likelihood of slippage under icy conditions.

On cross-examination, Tarulis’ counsel asked Box whether he had developed a business in providing expert testimony and consulting services to lawyers and insurance companies. Box responded, “No.” The Prassas defendants immediately moved for a mistrial for violation of the order granting their motion in limine barring any reference to insurance. The court denied the motion.

Harry Olson, the shopping center caretaker since 1971, then testified. He was not at the shopping center on the day of the accident, and he did not hear of it until about two days later. He stated that one of the Prassas defendants’ exhibits, a picture of the driveway taken in 1990, depicted how the lot looked in November 1988, including the unpainted wheel stop and that the wheel stop at issue had been in the same location for 35 years. He further testified that the stripe on the east side of the driveway was there in November 1988.

Philip Prassas, the manager of the property since 1984, testified next. His father built the shopping center and his family owned it at the time of the accident. As manager, Philip Prassas’ responsibilities included the decisions concerning the maintenance of the parking area. He testified that the lot had been striped in 1985 and, most recently, in June 1987. In his deposition, however, he had stated that the striping had been done “I think just once” since 1988, and when asked if the yellow stripe at the east side of the driveway was there prior to the accident, he replied “I think so. But it’s not a certainty.” Like Olson, he said that the exhibit photograph, which shows a yellow stripe along the east edge of the driveway, “truly and accurately” depicted the appearance of the lot at the time of the accident in 1988.

At the close of the trial, the Prassas defendants orally renewed their motion for a directed verdict against Tarulis. They also moved for a directed verdict on the contribution claim. The court denied both motions. The parties then tendered jury instructions and verdict forms, some of which the circuit court gave over defendants’ objections. The verdict forms too evoked objections from the Prassas defendants, who also orally moved for a mistrial for mention of subsequent remedial repairs.

The jury returned a verdict of liability for both Rathz and the Prassas defendants. The Prassas defendants filed a post-trial motion for judgment notwithstanding the verdict or a new trial, which the circuit court denied after a hearing.

On appeal, the Prassas defendants contest the propriety of the circuit court’s denial of their motions for a directed verdict against Tarulis and their motion for judgment n.o.v. They claim that the court should have granted their motions because Tarulis failed to establish that it was their actions or omissions that caused his injuries. Without testimony from Rathz that she hit the wheel stop because she did not see it due to its lack of visibility and that in turn hitting the wheel stop caused her to lose control of the car, they contend, Tarulis cannot be said to have proved by a preponderence of the evidence that Tarulis’ injury was caused by the Prassas defendants’ alleged breaches of duty. As for slope, they note that Keiser, Tarulis’ expert, testified that “if the maximum slope is exceeded, your sight lines are decreased and a safety problem exists,” but neither Rathz nor Keiser testified that the slope of this driveway decreased Rathz’s sightline such that she could not see the wheel stop. Thus, the Prassas defendants conclude, the jury’s verdict as to liability was based on impermissible “speculation, guess and conjecture” as to what Rathz might have done if the driveway and wheel stop had been better marked, or if the wheel stop were located farther to the east.

Tarulis counters that the circuit court did not err in denying the motions because he presented sufficient evidence of the elements of negligence by the Prassas defendants. He argues that the two experts testified as to the elements of the applicable standard of care and the Prassas defendants’ noncompliance with that standard. In addition, he stresses that Rathz testified that she hit the wheel stop and lost control of her car; Keiser testified that due to the wheel stop’s location and lack of contrast, it was difficult to see; and even Box testified that a driver who hit a wheel stop could injure others. In Tarulis’ view, this evidence and the reasonable inferences it allows amply supported the jury’s verdict.

The Prassas defendants rejoin that they had not raised the question of the existence of duty or its breach, but given that Tarulis briefed it, they argue that the wheel stop was an “open and obvious condition” and Tarulis presented no evidence that Rathz was distracted when she hit the wheel stop. In addition, they reiterate their earlier argument that Tarulis failed to demonstrate that their acts or omissions caused his injuries.

We begin our consideration of this case by observing that to prevail in a negligence case, the plaintiff must demonstrate that the defendant owed a duty to the plaintiff and that the defendant’s breach of that duty factually and legally caused the plaintiff’s injuries. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226.) When the jury is the fact finder, a motion for a directed verdict or a motion for judgment notwithstanding the verdict asks the court to decide whether there is sufficient evidence to present a factual question for the jury. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 498-502, 229 N.E.2d 504 (scintilla of evidence for nonmovant is not enough); see also Weldon v. Hawkins (1989), 183 Ill. App. 3d 525, 539 N.E.2d 229 (explaining different standard for bench trials).) Such motions should be granted “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick, 37 Ill. 2d at 510; Ward, 136 Ill. 2d at 139-40, 554 N.E.2d at 226.) This standard is a demanding one, but it was met here.

Tarulis cites to Ward in support, but his reliance is misplaced given the issue before us. Although the court in Ward reversed a judgment n.o.v., the question presented was whether the defendant store owner had a duty to protect the plaintiff customer from the risk presented by an obvious condition, a post located just outside the entrance to the store. (Ward, 136 Ill. 2d at 140, 554 N.E.2d at 226.) Here, as explained above, the question is not the existence of a duty the Prassas defendants owed Tarulis but whether Tarulis presented evidence that raised a factual question concerning the connection between the Prassas defendants’ alleged breach of duty and his injuries.

Tarulis’ attempts to distinguish the cases cited by the Prassas defendants are similarly unpersuasive. For example, in Monaghan v. DiPaulo Construction Co. (1986), 140 Ill. App. 3d 921, 489 N.E.2d 409, the plaintiff had no recollection of the vehicular accident in which he was injured and thus was unable to demonstrate that he hit the defendant municipality’s median strip, that he did so because it was not readily visible, and that this condition was due to the defendant’s breach of duty. The court granted summary judgment for the defendant, finding that the string of inferences was “merely speculative.” Although the court predicated its decision on the lack of evidence that the plaintiff had struck the median, it also commented that even if he had done so, “the mere possibility that he did so by reason of any alleged breach of duty by [the defendant] is not sufficient to show proximate cause.” (Monaghan, 140 Ill. App. 3d at 925, 489 N.E.2d at 411.) Although here, Rathz testified that she struck the median, Tarulis, like the plaintiff in Monaghan, depends on the inference that she struck it because she did not see it and on the further inference that she did not see it because it was not readily visible. Like the court in Monaghan, we find these inferences “merely speculative.”

Likewise, in Kellman v. Twin Orchard Country Club (1990), 202 Ill. App. 3d 968, 560 N.E.2d 888, appeal denied (1991), 136 Ill. 2d 544, 567 N.E.2d 332, the plaintiff was unable to produce evidence that a defect in the defendant’s shower stall, if any, caused her decedent to fall. The court affirmed summary judgment for the defendant, commenting that “[d]amages cannot be awarded on mere speculation, guess, or conjecture as to what probably happened to cause decedent’s injuries and death” because “[t]he possibility that the alleged unreasonably dangerous shower stall and basin had caused decedent to slip and fall is insufficient to establish a causal relationship between defendant’s alleged negligence and decedent’s injuries.” (Kellman, 202 Ill. App. 3d at 974-75, 560 N.E.2d at 891-92.) Here, similarly, the possibility that the wheel stop’s poor visibility caused Rathz to hit it is insufficient to establish a causal relationship between the Prassas defendants’ alleged negligence and Tarulis’ injuries.

At trial, Tarulis presented evidence that, given the slope and marking of the driveway and the wheel stop’s placement and coloring, the Prassas defendants should have made the wheel stop more visible but they did not. In doing so, he presented factual questions about the nature of the duty of the Prassas defendants toward him and their breach of that duty. Tarulis also presented evidence that Rathz hit the wheel stop and that she then lost control of her car. Nevertheless, we agree that Tarulis presented no evidence to forge the causal link between the Prassas defendants’ alleged breaches of duty and Rathz’s hitting the wheel stop; that is, he failed to present evidence that Rathz hit the wheel stop either because she was in fact unable to see it due to its placement and coloring or the slope and definition of the driveway, or because even though she was or should have been aware of it, she was momentarily distracted. As the Prassas defendants argue, Rathz herself did not testify to either effect, and Reiser testified only that the stop was difficult to see, not that Rathz had not seen it. Thus, even if we assume that the Prassas defendants breached their duty to Tarulis to exercise reasonable care to keep the parking lot in a reasonably safe condition, and even though it is possible that Rathz hit the wheel stop because of the Prassas defendants’ breach of duty, this possibility is not enough to establish proximate cause. As a result, when we view all the evidence in the light most favorable to Tarulis, the evidence in toto “so overwhelmingly favors [the Prassas defendants] that no contrary verdict could ever stand.” Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

In sum, the circuit court erred in not granting the Prassas defendants’ motions for a directed verdict against Tarulis and for judgment notwithstanding the verdict because Tarulis failed to present evidence that the Prassas defendants’ alleged breach of duty was a cause in fact of his injuries. Therefore, we reverse the judgment of the circuit court.

Reversed.

SCARIANO and McCORMICK, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREIMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID KRUGER, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—3113
    Opinion filed September 30, 1992.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Brian Clauss, and Kathy Dietz, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

In a bench trial, defendant David Kruger was found guilty of the murder of Fernando Delgado and unlawful use of a firearm by a felon and was sentenced to 25 years in prison.

On appeal, defendant alleges (1) the trial court erred in not considering a second pistol shot to be in defense of others; (2) the conviction should have been for voluntary manslaughter rather than murder since defendant (a) acted under the unreasonable belief that deadly force was justified or (b) acted under a sudden and intense passion, having just witnessed the shooting of two friends by the deceased; (3) the trial court’s characterization that defendant shot the deceased “in cold blood” was based upon an inaccurate recollection of trial testimony and denied defendant a fair trial; and (4) the trial court erred when it found the State’s only occurrence witness credible.

We affirm defendant’s conviction. The trial court has made very specific findings and the requisite support for them appears in the record.

The relevant facts are that at 2 a.m. on May 23, 1987, defendant and two friends, “Mo” and “Cheo,” were sitting on a front porch drinking beer when the victim, Delgado, approached on the sidewalk. Cheo approached the victim, argued with him in Spanish and then took a swing at the victim but missed. Delgado then said in Spanish, “I’m going to kill you, son of a bitch,” and allegedly pulled out a switchblade. When Mo walked toward them, Delgado then withdrew a gun from his person and fired two shots, wounding both Cheo and Mo. Delgado chased Mo and Cheo into a gangway, but another man apparently distracted Delgado, causing Delgado to turn and fire at him, although missing. Mo ran out of the gangway and entered the car of a friend who drove him to the hospital.

The State’s only occurrence witness, Edgardo DelValle, testified that he was at the scene and saw Delgado chase Mo and Cheo, and then run out of the gangway. DelValle stated that defendant then ran up without a gun, and kicked Delgado from behind, causing him to fall to the ground. Defendant then hit Delgado on the head to encourage him to drop the gun, which defendant then picked up and used to shoot Delgado in the back.

DelValle further testified that defendant then shook Delgado by his jacket, pulled his head back by the hair and shot him in the head.

Defendant testified that he did not understand Spanish. On direct, he stated that he heard two shots, and after the second shot, he heard Cheo yell “I’m shot.” Defendant testified that after the second shot he left the scene and ran down the street to an apartment occupied by the Rivera family. He further testified on direct that he told Carmen Rivera that Cheo and Mo had been shot by a Mexican. On cross-examination, however, defendant stated that he did not stay at the scene long enough to determine if Mo was shot.

Defendant knew Carmen Rivera through Mo and Cheo and had been to her apartment before. Carmen and Evelyn Rivera testified that prior to defendant’s arrival, they heard four shots in rapid succession, then heard two shots together a little later. Evelyn testified that defendant arrived about 10 minutes after the shots were heard. Carmen testified that defendant stated that Cheo and Mo had been shot and that he had shot the “neck,” a derogatory term for a Mexican. Carmen testified that defendant said he threw the gun in the trash.

Evelyn and Maria, another Rivera sister, went to the hospital to find Mo and Cheo. When they returned to their apartment, Evelyn testified that she saw defendant laughing as he exited the bathroom. However, there was no further testimony by any of the witnesses regarding what defendant might have found amusing.

The trial court found the testimony of DelValle and the Riveras more credible than defendant’s and that their testimony provieed evidence beyond a reasonable doubt as to defendant’s guilt.

The trial court specifically found from the evidence that defendant had sufficient time to reflect upon his actions during the course of the shooting and between the two shots. The trial judge also determined from the evidence that the situation was not such that a reasonable person would have been so seriously provoked as to shoot the victim a second time or that the second shot was in defense of himself or another.

Defendant argues that since Mo testified that Delgado had a switchblade tucked in the front of his pants, defendant was justified in shooting Delgado in self-defense or in defense of his friends, and that multiple shots do not negate that justification.

Although the trial court speculated that the defense of others theory regarding the first shot might be appropriate, the second shot was clearly not self-defense since there was no one in harm’s way and no further need to defend anyone.

There was no serious threat by the time of the second shot when the victim lay motionless, facedown on the ground with a bullet in his back, the alleged switchblade underneath him out of reach, and defendant standing over him with a gun in hand. At that time defendant appeared to evidence no fear of serious injury since he had already shaken the victim with his hands and pulled his head back by the hair.

Further, we are not persuaded that the record establishes a defense of justification for the first shot. While Mo stated he saw the victim with a switchblade, at the time defendant fired his first shot, the victim was on his stomach on the ground, lying atop any knife he was alleged to have. Based upon the evidence in the record, we do not agree with defendant that he reasonably believed Delgado posed a serious threat even at the time of the first shot.

When the evidence conflicts, the appellate court should not substitute its judgement for that of the trial court. (People v. Felella (1989), 131 Ill. 2d 525, 534, 546 N.E.2d 492; People v. Sanchez (1990), 206 Ill. App. 3d 90, 108, 563 N.E.2d 1127.) It is the trial judge who sees and hears the witnesses testify, weighs their credibility, draws reasonable inferences from the testimony and resolves conflicts in the evidence when determining the reasonableness of the defendant’s action in killing the deceased. (Sanchez, 206 Ill. App. 3d at 108.) The trial court here specifically interpreted the conflicting evidence to find no legal justification for the second shot.

Defendant next argues that the State failed to disprove beyond a reasonable doubt that defendant held an unreasonable belief that deadly force was justified, and thus has proven only voluntary manslaughter and not murder. See People v. Reddick (1988), 123 Ill. 2d 184, 197, 526 N.E.2d 141 (wherein the State is required to prove beyond a reasonable doubt that manslaughter defenses are meritless and prove beyond a reasonable doubt the statutory elements of murder).

Voluntary manslaughter, to which defendant refers, is the intentional or knowing killing of another committed under an unreasonable belief that deadly force is necessary. Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(b).

Voluntary manslaughter is similar to the defense of others justification in that both involve defendant’s subjective belief at the time of the killing that deadly force was justified. (People v. Young (1989), 187 Ill. App. 3d 977, 985, 543 N.E.2d 986.) The difference between the two theories lies in the reasonableness of belief: if the trier of fact finds that the defendant did not act in self-defense, but nevertheless finds that the defendant acted under a belief, albeit unreasonable, that force was justified, then the crime will be reduced from murder to voluntary manslaughter. Young, 187 Ill. App. 3d at 985; People v. Eshaya (1986), 144 Ill. App. 3d 757, 763, 494 N.E.2d 772.

However, a reviewing court will not reduce a conviction for murder to voluntary manslaughter where the trier of fact has reasonably concluded that the defendant had no basis whatsoever for his belief that deadly force was necessary for the protection of life. Young, 187 Ill. App. 3d at 986; Eshaya, 144 Ill. App. 3d at 763.

In Eshaya, the court rejected defendant’s argument that his conviction for murder should be reduced to voluntary manslaughter on the ground that he unreasonably believed that deadly force was justified. Defendant there claimed that even though he stood 20 feet away from the victim and his fellow gang members, he was scared because the others were armed with baseball bats, knives and pool cues. The Eshaya court refused to reduce the conviction because it found the jury could have reasonably concluded that there was no justification for defendant’s use of deadly force. Eshaya, 144 Ill. App. 3d at 763-64.

Similarly in Young, the court declined to reduce defendant’s murder conviction to voluntary manslaughter. There, the defendant approached the victim, shot him in the face, fired several shots at other people nearby, and then walked over to where the victim was crawling on the ground and shot him again in the head. The court rejected the defendant’s contention that he was frightened, and found no basis whatsoever for defendant’s alleged belief that deadly force was necessary to protect his life. Young, 187 Ill. App. 3d at 986.

As stated in our discussion of the defense of others argument, we find the record amply demonstrates evidence supporting as reasonable the trial court’s conclusion that defendant had no basis to believe that either shot was necessary for the protection of life.

Defendant next contends that his conduct amounts only to voluntary manslaughter because he was seriously provoked by having witnessed Delgado’s shooting of his two friends.

The statute in effect at the time of the incident provides:

“Voluntary manslaughter, (a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed[.]
***
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(a).

While there is evidence in the record supporting defendant’s contention, the trial court was explicit in its findings on the evidence and its thoughtful consideration of all circumstances of the incident.

In its findings, at the hearing for new trial, and at sentencing, the trial court elaborated:

“There’s no rhyme, there’s no reason why, [after the first shot,] with no one fighting with [defendant,] with no one doing anything to indicate that there’s going to be any further struggle by the victim, he shoots him in the [head] with what appears to be cold blood. Doesn’t appear to be any excited passions or anything.
* * *
There was no further need whatsoever to defend anybody. He had already caused the man to be down and had shot him once in the back. He’s now disabled. And the testimony is clear that he grabbed his head, pulled it back and then shot once in the head. There was sufficient time in my opinion for any type of adrenaline to drain after you have the man down. I don’t believe there was anything other than murder involved.”

While the trial court noted that adrenaline may be pumping and passion may be aroused, that passion will not relieve a defendant from liability for murder unless it is engendered by a provocation which the law recognizes as being reasonable and adequate; if the provocation is insufficient, the crime is murder. (People v. Austin (1989), 133 Ill. 2d 118, 125, 549 N.E.2d 331; People v. Williams (1991), 215 Ill. App. 3d 800, 809, 576 N.E.2d 68.) We agree with the trial court that the interval between the two shots was sufficient to allow any passion to subside and that the second shot constituted murder.

Defendant next asserts that he was denied a fair trial because the record establishes that the trial judge’s conclusion that defendant shot the victim “in cold blood” rather than under extreme provocation was based upon an inaccurate recollection of the trial testimony.

Defendant’s argument concerns the trial court’s statement in its decision that “[defendant] shoots him, goes over to the Rivera house, and then seems to brag about it. Maria says he was laughing during the course of his description.”

A review of the record shows that it was Evelyn, and not Maria, who testified that she saw defendant laughing as he exited the bathroom in the Rivera apartment some time after the shooting. There was no testimony by any of the witnesses as to the subject or nature of defendant’s laughter, or whether it was connected with any description of the evening’s events.

Defendant failed to raise this issue in a written motion for new trial as is required unless there is plain error or an error affecting substantial rights. (People v. Young (1989), 128 Ill. 2d 1, 38-39, 538 N.E.2d 9.) We do not believe either of those exceptions applies here, finding it impossible to imagine that this inaccurate recollection would change the outcome of a case which has the luxury of an eyewitness. This issue is waived on appeal.

Finally, defendant argues that the trial court erred (1) when it concluded that DelValle’s fear of testifying enhanced the credibility of his statements identifying defendant as the shooter, and (2) when it failed to consider other motives for DelValle to testify against defendant.

DelValle, the State’s only occurrence witness, made an initial written statement, testified before a grand jury, and later testified at trial. DelValle initially refused to testify at trial, then later agreed but repudiated at trial part of his original written statement in which he identified “Polacko” as the person who pushed the victim to the ground.

The trial court recognized that the witness was concerned for the safety of his wife and two children, since he had been shot at twice since the incident, but determined that DelValle ultimately testified “in a manner against his interests” and demonstrated a sincere motivation to tell the truth.

Defendant argues that DelValle’s partial repudiation at trial demonstrates that DelValle was afraid of testifying against Polacko and, therefore, was motivated to commit perjury to protect himself and the real shooter. Thus defendant contends that the trial court’s statement that the witness’ testimony was believable because it was against his interests is “illogical.”

Defendant also argues that the witness had a self-serving motive to give the same testimony at trial that he gave to the grand jury because the trial court informed the witness that if he testified at trial that he remembered nothing about the shooting, he could be charged with perjury since he had earlier testified before the grand jury. Defendant contends the trial court disregarded this possible self-protection motive, thus prejudicing defendant.

Assessment of the credibility of witnesses is made by the finder of fact at trial, and a reviewing court will not substitute its judgement unless the testimony is so improbable as to raise a reasonable doubt of guilt. Williams, 215 Ill. App. 3d at 809; People v. Hopkins (1987), 160 Ill. App. 3d 967, 513 N.E.2d 1011.

Here, the witness had given a handwritten statement, had testified before a grand jury, and then testified at trial. His trial testimony was apparently consistent with his grand jury testimony, even though he did repudiate part of his written statement. However, we cannot say that this repudiation casts the testimony as so improbable that it raises a reasonable doubt as to defendant’s guilt.

Nor do we give credence to defendant’s argument that DelValle’s grand jury testimony and his trial testimony corroborate only because he was afraid of perjury charges. First, DelValle was under no such interdiction when he testified before the grand jury, and additionally, the court did not mandate the nature of his testimony except to caution that a lapse of memory would not be well received.

In a supplemental brief to this court, defendant also contends that his jury waiver was invalid because it appeared only in the common law record rather than in the report of proceedings, thus entitling him to a new trial.

While a defendant may waive his right to a jury trial (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 6), that waiver must be made expressly and understanding. (People v. Smith (1985), 106 Ill. 2d 327, 333-34, 478 N.E.2d 357.) However, there is no precise formula for determining whether a waiver has been expressly and understanding^ made; instead, each case must be decided on its facts, and an effective waiver may be made either orally in court or in writing. People v. Deveaux (1990), 204 Ill. App. 3d 392, 402, 561 N.E.2d 1259.

The supplemental record filed by the State after we allowed the petition for rehearing provides this transcription:

“THE CLERK: David Kruger.
THE COURT: Is this to be bench or jury?
[Defense Counsel]: Bench.
THE COURT: Mr. Kruger, do you understand what a jury trial is?
The Defendant: Yes.
THE COURT: Do you understand that Mr. Slaughter has said that you are asking for a bench trial. A bench trial is a trial where I would listen to all the facts and would make the decision as to whether you are guilty or innocent.
A jury trial, of course, is where twelve people would be selected by your attorney and the state’s attorney, and they would listen to the facts. I would tell them what the law is and they would determine whether you are guilty or innocent.
By asking for a bench trial you are giving up your constitutional right to have a jury trial.
Is that what you want to do, sir?
The Defendant: Yes.
THE COURT: Okay. Is there a jury waiver form there?
[Defense Counsel]: Sign right here.
Mr. Kardas: We have witnesses upstairs. I will make arrangements to bring them down.
THE COURT: Let the record indicate that in my presence and in open court I have observed Mr. Kruger sign a jury waiver form. It is my opinion that he has knowingly and intelligently waived his right to a trial by jury.
As soon as counsel is ready we will begin the trial.”

We find the supplemental record demonstrates that defendant knowingly and understandingly waived his right to a jury trial. The judge explained the difference between a bench trial and a jury trial, and cautioned that asking for a bench trial forfeits defendant’s right to a jury trial. Defendant responded that he understood the trial court’s explanations and chose to waive his right to a jury trial. In fact, a knowing, open-court, on-the-record waiver has been found in language less explicit than the discussion at issue. See People v. Bowman (1992), 227 Ill. App. 3d 607, 592 N.E.2d 240.

For all of the foregoing reasons, defendant’s conviction is affirmed.

Affirmed.

RIZZI and CERDA, JJ., concur.


author: JUSTICE McNAMARA

text:
    UNIVERSAL OUTDOOR, INC., Plaintiff-Appellee, v. THE CITY OF DES PLAINES, Defendant-Appellant.
    First District (6th Division)
    No. 1—91—2589
    Opinion filed September 11, 1992.
    Rehearing denied November 13, 1992.

      Mathias W. Delort and Burton S. Odelson, both of Odelson & Sterk, Ltd., of Evergreen Park, for appellant.
    Thomas P. Sullivan, William A. Von Hoene, Jr., and Robert R. Stauffer, all of Jenner & Block, and Paul G. Simon, both of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Universal Outdoor, Inc. (Universal), filed a complaint seeking declaratory and injunctive relief against defendant, the City of Des Plaines (the City), regarding the legality of the City’s sign regulation ordinances. Thereafter, the parties entered into a settlement agreement which was approved by the trial court and which permitted Universal to construct 12 signs at specified locations within the City. The City subsequently filed a petition to vacate the trial court’s judgment under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). The City also filed a motion to declare the settlement null and void, claiming that the municipality was barred by law from entering into such an agreement. Upon motions filed by Universal, the trial court dismissed the City’s section 2 — 1401 petition and its motion to nullify the settlement agreement.

The City has appealed, contending that the court erred in dismissing its requests for post-judgment relief.

The record reveals that on July 22, 1986, Universal filed a 12-count complaint against the City of Des Plaines seeking declaratory and injunctive relief. The complaint alleged in substance that the City’s scheme for regulation of outdoor billboard advertising was unconstitutional and unenforceable. On February 5, 1987, Universal filed a first amended complaint which consisted of 11 counts and asserted claims which were substantially the same as those raised in the prior complaint.

Counts I through VII of the first amended complaint alleged identical claims but referred to different billboard locations. These counts asserted that the provisions of the Des Plaines Zoning Ordinance and Sign Code, as applied to these signs, were preempted by the Illinois Highway Advertising Control Act of 1971 (HACA) (Ill. Rev. Stat. 1985, ch. 121, par. 501 et seq.); the zoning ordinance limitations on the height and area of signs were invalid under the HACA; the ordinances were invalid as unnecessary to promote public health, safety, and welfare; and the ordinances denied Universal its constitutional right to enjoy the highest and best use of its property.

Count VIII alleged that the ordinances were preempted by the HACA; violated Universal’s constitutional rights to free speech and to equal protection in that they amounted to an impermissible ban on “off-premises” advertising; and were arbitrary and overbroad.

Count IX alleged that the ordinances were invalid because the HACA preempts the City’s ability to regulate signs located near a Federal-aid highway.

Count X, premised upon the assertion that the zoning ordinances constituted violations of Universal’s civil rights (42 U.S.C. §1983 (1979)), alleged that the limitations contained in the ordinances deprived Universal of its rights to free speech, to substantive due process of law, and constituted an improper “taking” without just compensation.

Count XI asserted claims similar to those raised in Count X, but was premised upon Illinois constitutional protections (Ill. Const. 1970, art. I, §4).

In its answer to the amended complaint, the City denied the substantive allegations raised in each count. Thereafter, Universal moved for summary judgment on count IX, which alleged that the ordinances were preempted by the HACA. The trial court initially granted Universal’s motion for summary judgment, finding that the City’s regulation of the size, width, and location of the signs was preempted by the HACA. Yet, upon reconsideration, the trial court reversed its ruling on Universal’s motion and found that the City’s regulations were not preempted by the HACA, but noted that section 10.5.5 of the City’s zoning ordinance could not be enforced to prohibit certain signs completely.

On July 14, 1989, the parties filed a stipulation and agreement which provided that (1) Universal would be permitted to construct signs at 12 designated locations, (2) the City would issue all necessary construction permits for those signs, (3) the case would be dismissed with prejudice and without costs, and (4) Universal agreed not to apply for permits to construct any additional signs. On that date, the trial court entered an order granting the parties leave to file the stipulation and agreement. The court’s order provided further that the case was dismissed, but the court retained jurisdiction of the matter in order to enforce the terms of the settlement.

The Des Plaines city council thereafter voted to settle the litigation pending between the parties.

In accordance with the agreement and order of the court, the City issued permits to Universal for construction of the 12 specified signs. Acting in reliance on those permits and on the settlement agreement and the court’s order, Universal incurred substantial expense to construct nine of the specified signs without objection from the City.

On September 19, 1990, the decision in Ad-Ex, Inc. v. City of Chicago (1990), 207 Ill. App. 3d 163, 565 N.E.2d 669, was issued by this court.

On November 2, 1990, the City filed a verified petition under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401) which requested that the trial court’s dismissal of the cause be vacated. It also filed a motion to declare the settlement agreement null and void.

Relying upon the decision in Ad-Ex, the City asserted that by entering into the settlement agreement, it had improperly waived the restrictions as to sign size and height which were included in the sign regulation ordinance. The City alleged further that the terms of the settlement agreement constituted a variance of the zoning ordinance without compliance with the notice and hearing requirements in the city code. In support of this claim, the City cited section 4 — 5—43 of the Des Plaines City Code, which provided that a variation may only be granted by the City’s Zoning Board of Appeals after a public hearing conducted in the manner specified by article 12 of the zoning ordinance. Article 12 of the zoning ordinance mandated that notice of the hearing must be published not more than 30 nor less than 15 days before the hearing.

The City’s petition and motion alleged that because it had not followed the mandatory notice and hearing requirements before settling the case, the settlement agreement was void and unenforceable. The petition and motion also asserted that the City had a meritorious defense to Universal’s claims and, in support thereof, cited the decision in Scadron v. Des Plaines (N.D. Ill. 1990), 734 F. Supp. 1437, which held that the sign regulation ordinances of home rule municipalities were not preempted by the HACA. The City also cited Universal Outdoor, Inc. v. Village of Elk Grove (1990), 194 Ill. App. 3d 303, 550 N.E.2d 1254, which held that the sign regulation ordinance of Elk Grove was not preempted by the HACA and that Universal had not pleaded sufficient facts to support its claim that the sign regulation ordinance was arbitrary, capricious, and unconstitutional on its face.

The plaintiff filed a motion seeking dismissal of the City’s section 2 — 1401 petition and of the motion to nullify the settlement agreement. The memorandum filed in support of plaintiff’s motion to dismiss asserted that the City’s petition and motion failed to meet the requirements necessary to state a claim for relief from a final judgment.

On July 23, 1991, the trial court granted Universal’s motion to dismiss and denied the City any relief from the settlement agreement previously approved by the court. In dismissing the City’s section 2— 1401 petition and the motion to nullify the settlement agreement, the trial court noted that a section 2 — 1401 petition must affirmatively allege due diligence and the existence of a meritorious claim or defense. The court found that the City had failed to comply with these requirements. The trial court noted further that the decision in Ad-Ex was not controlling because the facts of the instant case were distinguishable from those presented in Ad-Ex.

We initially consider whether the trial court properly dismissed the City’s section 2 — 1401 petition on the ground that it was insufficient to state a claim for relief from a final judgment. The City asserts that the trial judge abused his discretion in dismissing the City’s section 2 — 1401 petition for failure to demonstrate due diligence or a meritorious defense.

As a general rule, a court loses the power to review its judgments after the passage of 30 days. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505, 165 N.E.2d 294.) Consequently, a request to vacate a prior judgment after 30 days has elapsed is properly before the trial court only when presented by petition in accordance with section 2 — 1401. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220, 499 N.E.2d 1381; Pape v. Department of Revenue (1968), 40 Ill. 2d 442, 449-50, 240 N.E.2d 621.

The purpose of a petition under section 2 — 1401 is to bring before the court matters of fact not appearing in the record, which if known to the court at the time the judgment was entered, would have prevented its rendition. (Brockmeyer, 18 Ill. 2d at 505; Glenn v. People (1956), 9 Ill. 2d 335, 340, 137 N.E.2d 336.) Although the petition must be filed in the original proceeding, it is not a continuation thereof, but is the commencement of a new cause of action. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 279, 433 N.E.2d 253.) Thus, where the petition fails to state facts sufficient to warrant relief, it is subject to a motion to dismiss. Ostendorf, 89 Ill. 2d at 279-80; Brockmeyer, 18 Ill. 2d at 505; Glenn, 9 Ill. 2d at 340; People v. Jayne (1977), 52 Ill. App. 3d 990, 1015, 368 N.E.2d 422.

A section 2 — 1401 petition is not intended to provide for review of an order from which a party could have taken a timely appeal, and such a petition is not to be invoked as a substitute for a party’s right to appeal. (Lilly v. County of Cook (1978), 60 Ill. App. 3d 573, 577, 377 N.E.2d 136.) Thus, a petition under section 2 — 1401 is not appropriate for review of errors of law. In re Charles S. (1980), 83 Ill. App. 3d 515, 517, 404 N.E.2d 435.

To warrant relief under section 2 — 1401, it is incumbent upon the petitioner to show the existence of a meritorious defense to the judgment and the exercise of due diligence in presenting the defense, both in the underlying action and in the section 2 — 1401 proceeding. Kaput v. Hoey (1988), 124 Ill. 2d 370, 378, 530 N.E.2d 230; Smith, 114 Ill. 2d at 220-21.

Section 2 — 1401 does not afford a remedy to relieve a litigant of the consequences of his own mistakes or his counsel’s negligence. (Cooper v. United, Development Co. (1984), 122 Ill. App. 3d 850, 856, 462 N.E.2d 629; American Consulting Association, Inc. v. Spencer (1981), 100 Ill. App. 3d 917, 922, 427 N.E.2d 579.) Similarly, a section 2 — 1401 petition does not serve as a remedy for a belated change of mind. In re Marriage of Emerson (1983), 115 Ill. App. 3d 712, 717, 450 N.E.2d 987.

In order to demonstrate due diligence, a party must show that the failure to defend was the result of an excusable mistake and that he acted reasonably, and not negligently, when he failed to initially resist the judgment. Beno v. DeBoer Asphalt Paving Co. (1983), 114 Ill. App. 3d 871, 874, 449 N.E.2d 1021; Steinberg’s Department Store, Inc. v. Baysingar (1980), 86 Ill. App. 3d 1140, 1142, 409 N.E.2d 8.

In the case at bar, the trial court specifically found that the City had failed to exercise due diligence in presenting its claim that the settlement was void and unenforceable. In reaching this conclusion, the trial judge noted that the Ad-Ex decision had been premised upon the reasoning employed by the court in Martin v. City of Greenville (1977), 54 Ill. App. 3d 42, 369 N.E.2d 543. The court determined that the City need not have waited more than 15 months after the cause had been dismissed by agreement of the parties before it brought its section 2 — 1401 petition. The court noted further that Universal had incurred substantial expense in constructing nine signs in accordance with the permits issued by the City without objection. The trial judge stated that the fact that the City came upon the Ad-Ex decision 15 months after the case had been dismissed did not excuse the City from raising its challenge sooner.

We agree that the City has offered no valid or persuasive explanation for its failure to assert the “hearing and notice” defense earlier and that the City has failed to demonstrate that this argument could not reasonably have been disclosed at or prior to the time the judgment was entered.

The City voluntarily entered into the settlement agreement and joined in the request that the court approve the settlement and dismiss the cause. The City’s section 2 — 1401 petition did not assert any matters of fact which were not known to the court at the time the dismissal order was entered but which, if they had been known, would have precluded the dismissal. (See Brockmeyer, 18 Ill. 2d at 505; Glenn, 9 Ill. 2d at 340.) Rather, the City asserted that the settlement agreement and dismissal order had been entered based upon an error of law. This is not a proper ground for filing such a petition. (See In re Charles S., 83 Ill. App. 3d at 517.) The primary ground for the filing of the petition was the recently issued decision in the Ad-Ex case. Yet, as acknowledged by the City in its opening brief, the Ad-Ex decision did not create new law, but merely interpreted the existing law as it had been expressed in Martin. Because the basis for the City’s claim that the settlement was void and unenforceable was articulated in the Martin decision in 1977, the City’s claim could have been raised at any time.

In addition, the trial court found that the City had failed to demonstrate due diligence in presenting its section 2 — 1401 petition. The petition was brought over 15 months after entry of the dismissal order. During those 15 months, the City issued the required permits, and Universal, acting in reliance on those permits, incurred substantial expense to construct 9 of the 12 signs.

The City has asserted that it brought its petition as soon as practicable after realizing that it had a basis for doing so. This assertion is, however, contrary to the principle that a section 2 — 1401 petition does not excuse a party for its own negligence. (See Cooper, 122 Ill. App. 3d at 856; American Consulting Association, 100 Ill. App. 3d at 922.) Moreover, this argument does not comport with the rule that a section 2 — 1401 petition is designed to advise the court of newly discovered facts, rather than issues of law that are more properly raised on appeal. See In re Charles S., 83 Ill. App. 3d at 517.

Based upon the record before us, we hold that the City failed to establish that it had exercised due diligence in presenting its “notice and hearing” defense or in bringing its petition under section 2— 1401.

To be entitled to relief under section 2 — 1401, the petitioner must also affirmatively set forth specific factual allegations establishing the existence of a meritorious defense or claim. Smith, 114 Ill. 2d at 220-21.

In the case at bar, the City asserted in its section 2 — 1401 petition that it had a meritorious defense to Universal’s claims and, in support thereof, cited the decision in Scadron v. Des Plaines (N.D. Ill. 1990), 734 F. Supp. 1437, which held that the sign-regulation ordinances of home rule municipalities were not preempted by the HACA. The City also cited Universal Outdoor, Inc. v. Village of Elk Grove (1990), 194 Ill. App. 3d 303, 550 N.E.2d 1254, which held that the sign regulation ordinance of Elk Grove was not preempted by the HACA and that the plaintiff had not pleaded sufficient facts to support its claim that the ordinance was arbitrary, capricious, and unconstitutional on its face.

Although these two cases do provide authority for the City’s assertion that it had a meritorious defense to the claim of preemption by the HACA, they do not address the remaining claims raised by Universal. In addition to asserting that the City’s sign regulation ordinance was preempted by the HACA, Universal asserted in its complaint that the ordinance deprived Universal of its constitutional rights to free speech, equal protection, and due process.

The Scadron and Elk Grove decisions did not address the constitutional claims raised by Universal. Consequently, the City has not affirmatively set forth specific factual allegations establishing the existence of a meritorious defense. See Smith, 114 Ill. 2d at 220-21.

We next consider whether the trial court properly dismissed the City’s motion to declare the settlement agreement null and void.

As noted above, once a final judgment has been entered and 30 days have elapsed, a trial court lacks jurisdiction to reconsider that judgment except through a section 2 — 1401 petition. (Smith, 114 Ill. 2d at 220; Malone v. Cosentino (1983), 99 Ill. 2d 29, 32-33, 457 N.E.2d 395; Pape, 40 Ill. 2d at 449-50; Brockmeyer, 18 Ill. 2d at 505; Johnson v. Steiner (1988), 179 Ill. App. 3d 556, 559-60, 534 N.E.2d 391.) Thus, the trial judge had no jurisdiction to reconsider the dismissal and approval of the settlement agreement, and the City’s motion to nullify the settlement agreement was inadequate to confer such jurisdiction upon the court. The trial court’s retention of jurisdiction to enforce the settlement agreement cannot be construed as a retention of jurisdiction to reverse its ruling or to “non-enforce” the agreement. See Waggoner v. Waggoner (1979), 78 Ill. 2d 50, 53-54, 398 N.E.2d 5; In re Marriage of Milliken (1990), 199 Ill. App. 3d 813, 817-18, 557 N.E.2d 591.

Moreover, the conduct of the parties in the case at bar did not operate to revest jurisdiction in the trial court through active participation, without objection, in further proceedings which were inconsistent with the prior dismissal order. (See People v. Kaeding (1983), 98 Ill. 2d 237, 241, 456 N.E.2d 11; Ad-Ex, 207 Ill. App. 3d at 178; Wilkins v. Dellenback (1986), 149 Ill. App. 3d 549, 554-55, 500 N.E.2d 692.) Consequently, the post-judgment motion to declare the settlement null and void was properly dismissed.

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

Affirmed.

EGAN, P.J. and RAKOWSKI, J., concur.

       Justice Rosemary La Porta participated in oral argument prior to her death. Presiding Justice Edward J. Egan was substituted on the panel and has listened to the oral argument tape and has read the briefs.


author: JUSTICE COOK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD L. YEAST, Defendant-Appellant.
    Fourth District
    No. 4—91—0705
    Opinion filed October 15, 1992.

      Daniel D. Yuhas and David P. Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

Defendant Richard L. Yeast was found guilty by a jury of unlawful restraint, a Class 4 felony, and criminal sexual abuse, a Class A misdemeanor. (Ill. Rev. Stat. 1989, ch. 38, pars. 10 — 3, 12 — 15.) Defendant received a sentence of two years of imprisonment for unlawful restraint and a concurrent sentence of 364 days of imprisonment for criminal sexual abuse. Defendant appeals. We affirm in part, and vacate in part.

A.P. testified that on March 4, 1989, she attended a party at an apartment on the first floor of her building. A.P. testified she left the party at about 2 a.m., went upstairs to her apartment, and went to sleep on the couch in her living room. When she awoke, she found a man lying on top of her. The man had his hands under A.P.’s nightshirt, and was fondling her breasts and kissing her mouth and neck. A.P. believed that the man may have been a friend, but she wanted him to leave so she pushed him off of her, with some difficulty, and went into her bedroom. She tried to push him off probably five times before she was successful. The man followed her and started to get into the bed with her. A.P. left her bedroom and went across the hallway to another apartment to get help. A.P. woke one of her roommates, L.C., who was sleeping across the hall, and the two of them returned to their apartment. They did not find anyone in the living room or in the bedroom they shared, but they noticed that the door to the other bedroom was closed and locked. The other bedroom was shared by A.P.’s sister, M.P., and another woman. Because it was unusual for this door to be locked, A.P. and L.C. knocked on the door. Eventually the door was opened by a man whom A.P. and L.C. later identified as defendant. L.C. asked the man who he was and what he was doing in the apartment. The man responded that he was with one of the girls that lived in the apartment. Neither A.P. nor L.C. had ever seen the man before that evening, and they did not know why he was in their apartment. After A.P. told the man to leave the apartment, he picked up his blue-jean jacket from a chair in the living room and left. A.P. ran back across the hall and asked the men in that apartment to call the police. M.P. testified that on March 5, 1989, she awakened to hear her sister outside the door saying, “Leave her alone. That is my sister in there.” M.P. did not hear any other statements. She did not see anyone in the room, did not get out of bed, and returned to sleep. M.P. did not know defendant prior to March 5.

Approximately a month later, on April 1, 1989, A.P. attended another party at the same first-floor apartment. A.P. saw defendant walk into the room and immediately recognized him as the man who had been in her apartment the previous month. She quickly left the party with her friend, C.F. They went to A.P.’s apartment and told someone to call the police. C.F. returned to the party with two neighbors to try to detain defendant until the police arrived. A.P. then went downstairs and confirmed that defendant was the same man. Soon thereafter defendant looked at C.F. and said, “I thought you knew.” C.F. asked defendant what he meant, and he responded, “Forget it.” C.F. testified that she had never seen defendant prior to the party.

Defendant’s first contention is that he was not proved guilty of either offense beyond a reasonable doubt. Defendant claims no evidence was presented that the man seen leaving M.P.’s room was the man who had fondled A.P. on the couch a few minutes earlier. Defendant also claims that the separate identifications of him by A.P. and L.C., as the man leaving M.P.’s room, were not reliable since they were made under circumstances which created a substantial likelihood of an inaccurate identification. When the identification of the accused is in question the State may meet its burden of proof by offering a positive identification by a single witness who had ample opportunity to observe defendant. (People v. Tate (1981), 87 Ill. 2d 134, 148, 429 N.E.2d 470, 477-78; People v. Novotny (1968), 41 Ill. 2d 401, 411-12, 244 N.E.2d 182, 188.) After resolving the factual disputes and assessing the credibility of the witnesses (People v. Williams (1982), 93 Ill. 2d 309, 315, 444 N.E.2d 136, 138), the jury then determines whether the State has met this burden. (People v. McDonald (1975), 62 Ill. 2d 448, 456, 343 N.E.2d 489, 493.) The judgment of the trial court will not be substituted unless the evidence is so improbable as to raise a reasonable doubt of defendant’s guilt. People v. Carlson (1980), 79 Ill. 2d 564, 583, 404 N.E.2d 233, 241.

Two positive and credible in-court identifications were made in this case. At trial, A.P. made an in-court identification of defendant as the man who laid on top of her, and as the man who was locked in M.P.’s room. Although A.P. had consumed several glasses of beer at a party earlier, she had slept about four hours before the incident occurred and did not feel that she was under the influence of alcohol when she viewed defendant. L.C. also made an in-court identification of defendant as the man in M.P.’s room after A.P. called her for help. Both A.P. and L.C. testified that the sun was coming up that morning and they were able to see defendant’s face fully when he was standing in front of M.P.’s door. Describing the viewing, A.P. testified, “It didn’t happen quickly. I got a very good look at him. Very good. And I don’t forget faces very good. I am pretty good with faces.” Regarding her identification of defendant at the party on April 1, A.P. testified during the jury proceedings that, “It was him. I know him. I cannot forget his face.” Both A.P. and L.C. testified that defendant was the same man who was in their apartment on March 5. Finally, A.P. testified that before leaving their apartment on March 5, defendant picked up a blue-jean jacket from a chair in the living room. Defendant was also wearing a blue jacket when he was arrested at the party on or about April 1.

Although A.P. may not have been certain who the man in her apartment was when she went for help, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that defendant was the man who held A.P. down on the couch while he fondled her, and the same man who then locked himself in M.P.’s room. Considering the in-court identifications of defendant made by A.P. and L.C., we cannot say, after construing all the evidence in the light most favorable to the State, that no rational trier of fact could find defendant guilty of criminal sexual abuse beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.

Defendant contends that the conviction for criminal sexual abuse must be vacated because that conviction was based upon the same act as was the conviction for unlawful restraint. (People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844; People v. Powell (1990), 199 Ill. App. 3d 291, 293, 556 N.E.2d 896, 897.) We disagree with this contention, but based on legislative intent, find that the unlawful restraint conviction must instead be vacated.

King announced the following rules for dealing with concurrent sentences:

“[(1)] Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. [(2)] Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. [(3)]Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts.” (King, 66 Ill. 2d at 566, 363 N.E.2d at 844.)

If this case involves only a single physical act under rule (1), or multiple acts and lesser included offenses under rule (2), then defendant cannot be convicted of both unlawful restraint and criminal sexual abuse, even if the sentences for the two convictions would run concurrently. The distinction between rule (2) and rule (3) is between offenses closely related to each other (only one conviction permitted) and offenses not closely related (multiple convictions possible). All this is important because multiple convictions, even where the sentences run concurrently, might be prejudicial in unanticipated situations, such as determining a defendant’s parole opportunities. King, 66 Ill. 2d at 564-66, 363 N.E.2d at 844-45 (however, under section 3 — 3—5(c)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1003 — 3—5(c)(2)), the parole board may in any event consider conduct which would constitute a lesser included offense).

In contrast to those offenses where the victim is unable to give knowing consent, a criminal sexual abuse by the use of force or threat of force will generally first involve a physical restraint of the victim. This case is somewhat unusual because the victim was asleep when defendant first touched her. It could be argued the present case fits within any of the three rules set out in King. The act of lying on top of the victim could be viewed as a single act by which both physical restraint and criminal sexual abuse were accomplished, and therefore this case would fit under rule (1). The act of lying on top of the victim could be viewed as the act by which the physical restraint was accomplished, and the fondling of the victim’s breasts and kissing her mouth and neck could be viewed as the acts by which the criminal sexual abuse was accomplished, thereby placing this case within rule (2). If the physical restraint here were held not to be a lesser included offense of criminal sexual abuse (the question what constitutes a lesser included offense is often a difficult one), then this case would fit within rule (3), and there could be convictions on both charges so long as there were concurrent sentences.

Unlawful restraint, a Class 4 felony (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 3), may clearly be a lesser included offense of criminal sexual assault by the use of force or threat of force, a Class 1 felony. (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 13(a)(1), (b).) The phrase “[floree or threat of force” is defined to include physical restraint. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(dX2).) When a defendant is convicted of both unlawful restraint and criminal sexual assault, the conviction of unlawful restraint must be vacated (see, e.g., People v. Allman (1989), 180 Ill. App. 3d 396, 405, 535 N.E.2d 1097, 1102 (holding unlawful restraint an included offense of aggravated criminal sexual assault, so conviction on the former was vacated); People v. Geneva (1990), 196 Ill. App. 3d 1017, 1029, 554 N.E.2d 556, 564 (holding criminal sexual assault and unlawful restraint included offenses of aggravated criminal sexual assault, and vacating convictions and sentences on former offenses)) — unless based on separate acts. Similarly, it appears unlawful restraint could be a lesser included offense of criminal sexual abuse by the use of force or threat of force, a Class A misdemeanor (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 15(a)(1), (d)), except in such a case unlawful restraint is the greater offense, rather than the lesser offense.

In People v. Paulick (1988), 174 Ill. App. 3d 868, 869, 529 N.E.2d 28, 28-29, defendant grabbed the victim by the neck, told her to get into a car, hit her head against the car, struggled with her, chased her across a parking lot, tackled her, straddled her waist, and finally reached his hand under her bra and touched her breast. Paulick held that where a defendant is convicted of unlawful restraint and criminal sexual abuse both convictions cannot stand, and the sentence should be for the most serious offense, the unlawful restraint, citing People v. Duszkewycz (1963), 27 Ill. 2d 257, 261, 189 N.E.2d 299, 301. (Paulick, 174 Ill. App. 3d at 870-71, 529 N.E.2d at 29-30.) In Duszkewycz the charges were separate offenses; neither was an included offense of the other. The charges were incest and rape, which had a common element, unlawful carnal knowledge. Rape also required proof of force and lack of consent, and incest required proof of relationship. Duszkewycz, 27 Ill. 2d at 259, 189 N.E.2d at 300.

With all these cases legislative intent is paramount. (People v. Donaldson (1982), 91 Ill. 2d 164, 168, 435 N.E.2d 477, 479 (if the legislature so intended, a single physical act could support multiple convictions).) We reject the idea that when the legislature specifically defined the conduct which constitutes criminal sexual abuse, and made that conduct a Class A misdemeanor, the legislature intended the aspect of unlawful restraint inherent in every case of sexual abuse by the use of force to swallow up the misdemeanor and convert it to a Class 4 felony. In cases where the conduct goes further than that inherent in sexual abuse, where the restraint is independent of the sexual abuse, there can be a separate conviction of unlawful restraint. (People v. Leonhardt (1988), 173 Ill. App. 3d 314, 322, 527 N.E.2d 562, 567; People v. Sperow (1988), 170 Ill. App. 3d 800, 814, 525 N.E.2d 223, 233; see People v. Kuykendall (1982), 108 Ill. App. 3d 708, 710, 439 N.E.2d 521, 523 (holding that unlawful restraint could not even be an included offense); cf. Paulick, 174 Ill. App. 3d at 870-71, 529 N.E.2d at 30; People v. Bergin (1992), 227 Ill. App. 3d 32, 43-44, 590 N.E.2d 939, 947-48.) There can be a separate punishment, i.e., a consecutive sentence, for an unlawful restraint committed as part of a single course of conduct, but only if there was a substantial change in the nature of the criminal objective. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a); King, 66 Ill. 2d at 566, 363 N.E.2d at 844 (“independent motivation” test only relevant in determining whether consecutive sentences can be imposed).

Whether this case fits under rule (1) or rule (2) as announced in King, we see nothing in King, or in any other decision of the supreme court, which requires that the conviction for criminal sexual abuse be vacated here and the conviction and sentence for unlawful restraint allowed to stand. We agree with the result in Paulick based on its facts, where the restraint seemed to be so much more vicious than the abuse. We hold that the conviction on the included offense should stand when the penalty for that offense is greater and the conduct giving rise to the offense dominates over the other elements of the principal offense. In the present case, however, the restraint was slight and the dominant offense was the sexual abuse. In the situation of the present case we hold the appropriate procedure is to allow only the conviction for the principal offense to stand. Unlike the situations in Paulick and in Bergin, in this case we find that the conduct alleged to constitute unlawful restraint was only that inherent in every case of sexual abuse by force. Accordingly we vacate the conviction and sentence for unlawful restraint and affirm the conviction and sentence for sexual abuse.

Defendant’s last contention is that the sentencing decision of the trial court was an abuse of discretion. Criminal sexual abuse is a Class A misdemeanor with a possible sentence of less than one year. (Ill. Rev. Stat. 1989, ch. 38, pars. 12-15(d), 1005-8-3(a)(1).) The State recommended a term of incarceration in the Department of Corrections, while defendant asked for probation. The probation department informed the court that it would not accept defendant for intensive probation supervision. The court imposed two years of imprisonment for unlawful restraint, the conviction and sentence on which we have now vacated, and a concurrent 364 days of imprisonment for criminal sexual abuse.

Defendant argues the trial court committed reversible error by overruling defense objections to the accuracy of unsubstantiated allegations in the presentence report. Defendant objected to a portion of the presentence report which alleged that his participation in an alcohol-abuse program had been terminated because of his “ ‘inappropriate remarks and advances of a sexual nature to another male treatment peer.’ ” The representation was from a letter written by a member of the treatment program staff. Defendant denied that the incident had ever occurred, and asked that the matter be stricken unless “there’s some way that this allegation can be tested by cross-examination.” The trial court overruled the objection, stating that the statement would be admitted to show that someone at the treatment center made the statement, but not for the truth of the statement. The trial court considered the statement as the reason given for defendant’s termination from the alcohol-abuse program, but expressly refused to consider whether the statement was true.

Absent an abuse of discretion, a reviewing court may not alter the trial court’s sentencing determination. (People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344, 348; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) The judge is not strictly bound by the rules of evidence at a sentencing hearing. (People v. Brown (1991), 223 Ill. App. 3d 347, 349, 584 N.E.2d 930, 932.) As long as care is taken to ensure the accuracy of the information and avoid any prejudice from improper material, the sentencing judge may search anywhere within reasonable bounds to discover facts in aggravation or mitigation. (La Pointe, 88 Ill. 2d at 496-98, 431 N.E.2d at 350-51; Brown, 223 Ill. App. 3d at 349, 584 N.E.2d at 932.) All information appearing in a presentence report may be relied upon by the sentencing judge to the extent the judge finds the information probative and reliable. (Powell, 199 Ill. App. 3d at 294, 556 N.E.2d at 898.) To the extent that either the defendant or the State may believe that the presentence report contains inaccuracies, they have the burden to call any such inaccuracy to the court’s attention at the start of the sentencing hearing. Powell, 199 Ill. App. 3d at 294, 556 N.E.2d at 898.

In this case the trial court did not allow cross-examination to rebut the truth of a disputed statement from the presentencing report. However, the trial judge acknowledged the hearsay problem, and determined that the statement could only be considered to show it was made, not relied upon for the truth of the matter asserted. In determining an appropriate sentence the trial court relied on the presentence investigation report, and the fact that defendant’s criminal history had become more serious over time. The presentence report indicated that defendant had received convictions for a prior felony, nine misdemeanors, and 11 traffic offenses. The trial court did not rely on the objected-to statement from the presentence report except for the purpose of showing that someone made such a claim. Overall, the record establishes the trial court in this case carefully considered the evidence within the prescribed statutory framework, including the statutory factors in mitigation and aggravation, the presentence investigation report, and the credibility and demeanor of the witnesses. The trial court did not abuse its discretion in sentencing defendant to 364 days of imprisonment for the offense of criminal sexual abuse. That sentence is affirmed.

Accordingly, defendant’s conviction and sentence for criminal sexual abuse is affirmed; and the conviction and judgment for unlawful restraint is vacated.

Affirmed in part and vacated in part.

GREEN, P.J., and LUND, J., concur.


text:
    HEALTH EMPLOYEES LABOR PROGRAM OF METROPOLITAN CHICAGO, Plaintiff-Appellant, v. THE COUNTY OF COOK, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—3181
    Opinion filed September 16, 1992.
    Rehearing denied November 11, 1992.

      Irving M. Friedman and Denise S. Poloyac, both of Katz, Friedman, Schur & Eagle, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Karen Covy, Karen J. Dimond, and Joan T. Agnew, Assistant State’s Attorneys, of counsel), for appellee.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiff, Health Employees Labor Program of Metropolitan Chicago (Union), appeals from the dismissal of its complaint which sought to compel defendant, County of Cook (County), to arbitrate the grievances of two employees who were covered by the collective-bargaining agreement between the parties and who had been discharged by the County. The Union’s complaint was predicated on the provisions of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1989, ch. 48, par. 1601 et seq.) and the Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 101 et seq.).

For the reasons which follow, we reverse the trial court’s order dismissing the Union’s complaint.

The Union is the sole and exclusive representative for all employeés of Cook County at Cook County Hospital, Oak Forest Hospital and Cermak Health Services in certain technician job classifications. The Union and the County are parties to a collective-bargaining agreement (Agreement).

The two discharged employees, Benjamin Dixon and Michael Ross, were employed by the County as emergency medical technicians at Cermak Health Services. On March 13, 1990, following disciplinary hearings, the Civil Service Commission terminated Dixon for excessive absenteeism and tardiness, and discharged Ross for verbal abuse of patients.

Prior to their dismissals, both Ross and Dixon had initiated grievance procedures pursuant to the Agreement. The County refused to process and to arbitrate their grievances in accordance with the Agreement. The grievants timely requested that their hearings before the Civil Service Commission be stayed pending arbitration of their grievances. When their requests were denied, the grievants participated in the proceedings under protest. Thereafter, the Union filed its complaint.

The County moved to dismiss the Union’s complaint on the basis of section 2 — 619(a)(9), which provides for involuntary dismissal where “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9).) The affirmative matter presented by the County was the civil service system pertaining to the officers and employees in Cook County, i.e., the Counties Code (Ill. Rev. Stat. 1989, ch. 34, par. 3 — 14001 et seq.).

The circuit court granted the County’s motion to dismiss and based its decision on the priority of the civil service laws.

On appeal, the Union asserts that (1) the trial court erred in basing its decision on facts that were not properly before the court, and (2) the civil service process is “irrelevant” to the Union’s complaint to compel arbitration.

The Union argues that in granting the County’s section 2— 619 motion to dismiss, the circuit court relied upon facts which did not appear on the face of the pleadings and were not supported by affidavits as required by section 2 — 619.

As to the Union’s first issue, the record reveals that the grounds, i.e., the statute providing for civil service dismissals, asserted by the County for the dismissal of the Union’s complaint appeared on the face of the complaint and, therefore, no affidavits were required.

The Union next contends that its right to arbitration derives from the parties’ collective-bargaining agreement, the Uniform Arbitration Act, and the Illinois Public Labor Relations Act. Accordingly, the Union argues that the civil service system is not relevant to its complaint to compel arbitration.

The County responds that civil service dismissals are not covered by the Agreement but rather are governed by the statutorily created civil service system under the Counties Code and primarily relies on County of Cook v. Illinois Local Labor Relations Board (1990), 204 Ill. App. 3d 370, 561 N.E.2d 1089, which has been reversed by the Illinois Supreme Court in American Federation of State, County & Municipal Employees v. County of Cook (1991), 145 Ill. 2d 475, 584 N.E.2d 116 (AFSCME).

We find that the supreme court decision in AFSCME is dispositive of this issue.

In AFSCME, the supreme court rejected the county’s argument that the employees’ membership in a collective-bargaining unit was irrelevant to their civil service status and specifically held that Cook County’s “status as a home rule unit of local government renders the civil service provisions of the [Counties] Code optional upon it.” (AFSCME, 145 Ill. 2d at 491.) Consequently, the civil service system “cannot be held to prevail over the rights of public employees, who *** have become members of a collective-bargaining unit duly authorized by the employees and recognized by the employer.” AFSCME, 145 Ill. 2d at 487.

The court in AFSCME discussed at length and followed the rationale of its prior decision in City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 522 N.E.2d 1219, which held that Decatur, a home rule city, had a duty to bargain with the union, i.e., AFSCME, over its arbitration proposal. The City of Decatur court relied on the legislature’s articulation of the public policy of the State in section 2 of the Illinois Public Labor Relations Act.

“It is the public policy of the State of Illinois to grant public employees full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of negotiating wages, hours and other conditions of employment or other mutual aid or protection.” (Ill. Rev. Stat. 1985, ch. 48, par. 1602.)

The court in City of Decatur also considered the legislature’s preference for arbitration in resolving labor disputes as recognized in section 8 of the Illinois Public Labor Relations Act, which provides as follows:

“The collective bargaining agreement negotiated between the employer and the exclusive representative shall contain a grievance resolution procedure which shall apply to all employees in the bargaining unit and shall provide for final and binding arbitration of disputes concerning the administration or interpretation of the agreement unless mutually agreed otherwise.” Ill. Rev. Stat. 1985, ch. 48, par. 1608.

The Illinois Public Labor Relations Act further provides that its provisions “or any collective-bargaining agreement negotiated thereunder shall prevail and control” over “any other law, executive order or administration regulation relating to wages, hours and conditions of employment and employment relations.” Ill. Rev. Stat. 1985, ch. 48, par. 1615.

The grievance and arbitration provisions contained in any collective-bargaining are subject to the Illinois Uniform Arbitration Act. Ill. Rev. Stat. 1985, ch. 48, par. 1608.

The decisions in AFSCME and City of Decatur make clear that a civil service system established in a home rule city is only optional in nature. A home rule entity, notwithstanding the existence of an optional civil service system, has a duty to bargain with a union over the effects of requiring certain employees to take a civil service examination (AFSCME, 145 Ill. 2d 475, 584 N.E.2d 116) and over a union’s arbitration proposal (City of Decatur, 122 Ill. 2d 353, 522 N.E.2d 1219). Given that a duty to bargain exists, the parties certainly must be obligated to follow the provisions of an agreement established through the collective-bargaining process.

A section 2 — 619 motion is intended to provide a mechanism to dispose of issues of law or easily proved issues of facts. (Brown v. Chicago Park District (1991), 218 Ill. App. 3d 612, 615, 578 N.E.2d 999.) Generally, “a section 2 — 619 motion is properly allowed only when it raises an affirmative matter which negates plaintiff’s cause of action completely or when it refutes crucial conclusions of law or conclusions of material fact that are unsupported by allegations of specific facts.” Santa Claus Industries, Inc. v. First National Bank (1991), 216 Ill. App. 3d 231, 236, 576 N.E.2d 326.

The affirmative matter raised by the County in the present case was the procedure for civil service dismissals provided in the Counties Code. Since the civil service system is optional and does not prevail over an existing collective-bargaining agreement, the County has failed to assert affirmative matter that would defeat the Union’s cause of action.

Accordingly, we find that the trial court erred in granting the County’s section 2 — 619 motion to dismiss.

Reversed and remanded.

RIZZI, and TULLY, JJ., concur.