author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONNIE T. LITTLE, Defendant-Appellant.
    Second District
    No. 2 — 90—0505
    Opinion filed December 30, 1991.

      G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, and John R. Wimmer, of Downers Grove, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Ronnie T. Little, was charged by indictment with the offense of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a)). After a jury trial, judgment was entered on the verdict on March 27, 1990. Defendant was sentenced to 15 years’ imprisonment on April 19, 1990. His post-trial motion and his motion to reconsider the sentence were denied on April 26, 1990, and this timely appeal followed. We affirm.

On appeal, defendant contends that he was denied the effective assistance of counsel because defense counsel improperly impeached his own alibi witness by eliciting that the witness had pleaded guilty to a drug offense and because defense counsel failed to object to improper argument by the State where it sought to create an inference of guilt by commenting on defendant’s post-arrest silence. Defendant also argues, alternatively, that this court should consider as plain error the allegedly improper argument of the State. For the reasons that follow, we find no basis to reverse the judgment.

The jury trial was held on March 26 and 27, 1990. On the first day of trial, defense counsel informed the court and the prosecutor that Deborah Hurley, one of defendant’s alibi witnesses, had pleaded guilty to a drug offense and was awaiting sentencing. Defense counsel noted, “I did not think that was a prior conviction, and therefore could be used for impeachment.” The prosecutor, wanting to avoid even the possibility of a reversal, argued initially that the guilty plea was admissible for purposes of impeachment; however, he also proposed that, if the court had any question in that regard, the prosecutor would move for a continuance until the witness’ case was “finalized.” The court made no ruling regarding a continuance. Defense counsel responded by stating, “I am not making a motion in limine [sic]. I do not anticipate making an objection if that question comes up with regard to whether she has pled guilty to a felony offense.”

At trial, 19-year-old Debbie Ann Shelley testified for the State. At the time of the robbery, she was employed as a cashier at Jim’s Amoco in Zion, Illinois. She worked in the minimart five days a week. On January 30, 1990, she was working the 3 p.m. to 11:15 p.m. shift. The cash register was located in the center of the store, and there was one door 6 to 10 feet away for entering and exiting the store.

At approximately 10:40 p.m., Shelley was waiting on a customer when she heard the door open and saw a man whom she identified in court as defendant walk in. He walked up to the right side of her counter and pointed a gun at the register. She testified that she looked at him and she froze, still looking at him. He walked around to the front of the register, and, when he was located one or two feet away, he hit it with his left hand saying, “Open the register.” When Shelley still “froze,” he stated, “I said, open the mother f — ing register.” Shelley did a “no sale” and the drawer opened. Defendant could not reach the cash drawer, so Shelley took it out and set it on the counter. Defendant picked up the drawer containing about $280 and left.

Shelley stated that defendant was wearing a stocking over his face, a knit cap and a long, black trench coat and tennis shoes. His hands were covered with socks. She knew defendant through his brother Frank; she had known him for about four or five years and had had conversations with him more than 10 times. She recognized his voice. When he hit the register, defendant “clicked” in her mind. Dollie Wilson hit the alarm button, and the Zion police arrived shortly thereafter.

About 20 minutes after the robbery occurred, Officer Watkins arrived. He took Shelley aside and stated that she was not to discuss with anyone what she was looking at; he showed Shelley six photographs of young black males. She picked out a photograph of defendant as the person who had committed the robbery. She again identified that photograph in open court. Shelley identified scenes of the robbery from a surveillance videotape. (We note that the monochromatic tape and enlarged photographs of frames from the tape do not have high resolution so that they only portray the figures generally. The videotape shows that the robber was wearing a light-colored hat.)

On cross-examination, Shelley acknowledged that she was scared at the time of the incident and saw the robber for less than a minute. She had described to Watkins a person who was a black male, about 5 feet 5 inches tall with a muscular build. She had told Watkins that the robber wore a hat that was possibly dark in color and he had a stocking stretched tight over his face. She denied that she told Watkins that the robber was wearing a waist-length jacket. She told Officer Watkins that she made eye contact with the robber and that he had dark eyes, but she could not tell whether they were black or brown. She also told Officer Brooks, who was first on the scene before Watkins arrived, that she thought that defendant was the robber. On redirect examination, Shelley stated that she recognized defendant as soon as he walked into the store.

Dollie Wilson testified that she was also employed at Jim’s Amoco at the time of the robbery. When the robber, a black man, walked into the store, she was located right behind and to the left of Shelley. He was wearing a “black stocking, black coat, hat, and was carrying what seemed to be a gun.” She was about five or six feet away when she also heard him say, “Open the mother f — ing register.” When Officer Watkins arrived, she identified a picture of defendant as the one who committed the robbery. She did not know defendant, but told the officer that she was “70 to 80 percent sure” that the photograph was that of the robber. When asked why she said that, she explained that she did not see his full face through the stocking; she could see his eyes, and she was going on the build of his body, his neck and what she could see through the stocking. After identifying defendant in open court, Wilson stated that she was still “70 to 80 percent sure.”

On cross-examination, Wilson acknowledged that she was shocked and a little scared when the robber came into the store. She had told Watkins that the robber was about 5 feet 5 or 6 inches tall and that he was wearing a dark-colored baseball cap. The stocking slightly distorted his face.

Officer Clyde Watkins testified that he presented a group of six pictures to Shelley and Wilson. He included a picture of defendant because Officer Brooks had indicated that, during his preliminary investigation, defendant’s name came up as a possible suspect. Watkins separated the witnesses and requested that they not discuss the case among themselves. Without hesitation, Shelley picked out the photograph of defendant. On cross-examination, Watkins acknowledged that his report indicated that Shelley said the robber wore a black, waist-length jacket with a large collar.

Bernina Mata, an employee at Jim’s Amoco, was called as a defense witness. During the robbery, she was standing behind Dollie Wilson about 8 to 10 feet from the robber. He was wearing a black stocking or hat, a long trench coat and a baseball cap. She could not see his face or tell whether he was white or black, but, because she heard him talk, she believed he sounded like a black man. She was unable to identify the robber from the same group of photographs shown to Shelley and Wilson. She could not identify the robber because she was not in a position to see his face.

W.C. Matthews testified that he was at the minimart at the time of the robbery. While he was at the counter paying for some merchandise, he noticed a strange look on the cashier’s face. He looked back and saw a person standing two feet behind him with a gun pointed at him who said, “Get back.” The robber had “a mask, black scarf of some kind around his face,” and Matthews could not see his face. The robber wore a hat, a long trench coat and gloves. Matthews assumed that he had a gun, but it was covered up. He could not tell if the robber was white or black nor could he describe any facial features. He believed that the robber was 5 feet 3 inches tall.

Frank Little, defendant’s 21-year-old brother, testified that, on January 30, 1990, the date in question, he lived at 2419 Hebron with Deborah Hurley, Bonita Bowers, and defendant. It was Hurley’s apartment. Defendant came home about 9 or 9:15 p.m. while Frank was watching television downstairs with Hurley and Bowers. After defendant came in, he answered a telephone call which resulted in a brief argument between defendant and Hurley. Defendant went upstairs to take a shower. Frank left the house for 10 or 15 minutes. When he got back, defendant was still there. Sometime between 11 and 11:30 p.m., defendant went upstairs with Hurley and went to bed.

On cross-examination, Frank testified that he had been living at 4209 Birch for about five years. He lived at 2419 Hebron for about three or four months prior to January 30. He moved in with defendant and Hurley, defendant’s girlfriend. He said that defendant had been living there since May or June 1989. Frank said that when he moved in Hurley’s children were not living there and never did live there. On further questioning, Frank did not remember if Hurley’s children lived there. When Frank stepped out of the house on the night in question, he left at about 9:30 to empty the garbage and to go to his girlfriend’s sister’s house four or five buildings down the street, and he returned about 15 minutes later. To his knowledge, no one else came over to Hurley’s apartment that night, unless it was when he was in the washroom.

Deborah Hurley testified for the defense. She stated that she had pleaded guilty to a drug-related offense and had not yet been sentenced. When defense counsel began to question her regarding the identity of the prosecutor in her case, the State objected, and a sidebar discussion followed outside the hearing of the jury. Defense counsel explained that he was anticipating impeachment based on a prior conviction and that he believed the questioning of his witness was relevant to whether she expected anything for her testimony and whether the prosecutor was from the same office as the prosecutor in the present matter. The court pointed out that the witness was called by the defense. The State expressed disdain at defense counsel’s attempt to show an expectation of leniency. The objection was sustained.

When the examination of the witness resumed, Hurley testified that, on the date in question, she resided at 2419 Hebron in Zion. She had lived there for years. Defendant lived there, and Frank Little and Bonita Bowers stayed there. Defendant came home between 9:15 and 9:30 p.m. Frank and Bonita were present. Hurley received a telephone call from Rudolph Smith. When defendant got out of the shower, he asked who was on the telephone. When Hurley told him, this provoked a little argument; defendant preferred that she not speak to Rudolph. Defendant never left the house after he came home. He and Hurley went up to bed between 11 and 11:30 p.m. When defendant came home that night, he was wearing some navy blue or black dress pants and a jogging jacket with red on the shoulders. Hurley stated that defendant did not own any long coats.

On cross-examination, Hurley stated, without objection, that she had pleaded guilty to possession of a controlled substance with intent to deliver. She said that she was living on a regular basis with her children in October 1989. Defendant was not then living with her, but came to live with her about the end of November. On January 30, she was watching television with Bonita and Frank. While defendant was taking a shower, Bonita answered the telephone and asked Hurley if she would accept a collect call from Rudolph Smith. Hurley did not know where Frank was at that time. She also stated that someone named Blue came by that night after 11 p.m.

Defendant testified that he was 18 years old. On January 30, he was staying with Deborah, Frank, and Bonita at 2419 Hebron. That night, he arrived home at 9 or 9:15 p.m. He was returning from the house of a friend named Pepper Gibson. Once home, defendant talked with Hurley, Frank and Bonita. Then he went upstairs and took a shower. When he came downstairs, Hurley had received a telephone call from Rudolph Smith, and defendant asked why Smith was still calling the house. Defendant did not leave the apartment that night. He stated that the minimart was about one mile away. He had known Shelley for about four or five years and had seen her at the minimart. He had also seen Dollie Wilson there. Defendant denied that he owned a trench coat; he did own a blue Bears hat with orange lettering on it.

On cross-examination, defendant stated that he had been living at 2419 Hebron for about four or five months. He denied that he told Keith Cooprider, an employee of pretrial services who prepared his bond report, that he had been living at that address for one month; defendant admitted that the report stated one month. Defendant said that, on January 30, he went to Gibson’s house at about 8:40 p.m. before arriving home.

Defendant said that when he spoke to Officer Watkins, he was given his Miranda rights. The following courtroom colloquy took place between the prosecutor and defendant regarding his discussion with Watkins:

“Q. You never told Detective Watkins that you were with your brother, did you?
A. He didn’t ask. He didn’t ask about my witnesses.
Q. He told you you were being arrested for the armed robbery of the Amoco Station?
A. Yes.
Q. Three days afterwards?
A. Yes, he did.
* * *
Q. Didn’t you tell Detective Watkins who could tell them where you really were?
A. I told them Frank Little, Bonita Bowers, and Deborah Hurley.
Q. You told Detective Watkins you were with those people?
A. Yes, I did.
Q. That’s what you are saying now?
A. Yes, I did.”

In rebuttal, the State called Cooprider, a probation officer, who stated that defendant said he had been living at 2419 Hebron for one month. Cooprider made the report at the time defendant spoke to him.

Officer Watkins also testified in rebuttal that he interviewed defendant on February 3, 1990, at the police department after advising him of his Miranda rights. According to Watkins, defendant said he had been at the Gibson residence on January 30 and left there at approximately 9 p.m. to go home at 2419 Hebron. Defendant was not sure what time he arrived home, and he did not indicate that he was with Frank, Bonita or Hurley on the evening of the 30th.

On cross-examination, Watkins said he did not go to the Gibson home to verify whether defendant was there on January 30, nor did he go to 2419 Hebron to investigate.

Officer Ray Nichols went to the Gibson residence to attempt to determine whether defendant had been there on January 30, but none of the occupants could verify whether defendant had been there on that date.

During the rebuttal portion of the State’s closing argument, the prosecutor stated in pertinent part:

“Then if you, in fact, were confronted by a police officer and told Saturday night you robbed Jim’s Amoco, where where [sic] you if you didn’t do it? *** Realizing that your liberty is at stake, you are unjustly accused, are you not going to tell the police who you were with? Go talk to my brother. Go talk to my girlfriend. Go talk to my brother’s girlfriend. They will tell you I was with them. ***
Why doesn’t he tell them who he claims today to have been with? Because on February 3rd when he talked to the police officers he didn’t know who he could get to bolster his alibi.”

Defense counsel did not object to this argument. Following deliberations, the jury returned a verdict of guilty.

Defendant’s claim of improper impeachment and improper argument by the State were not preserved by objection at trial or by way of his post-trial motion. Defendant therefore argues that he was denied the effective assistance of counsel because his attorney impeached his own alibi witness, Deborah Hurley, by eliciting testimony that she had recently pleaded guilty to a drug-related offense. Additionally, defendant complains that his counsel’s failure to object to the State’s closing argument regarding defendant’s post-arrest silence as to his alibi witnesses seriously prejudiced his case.

In order to prevail on a claim of ineffective assistance of counsel, defendant must show that (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness, and (2) that he was substantially prejudiced, that is, counsel’s deficient performance created a reasonable probability that, but for defense counsel’s deficient performance, the result would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome. See People v. Rogers (1988), 172 Ill. App. 3d 471, 478, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; see also People v. Pecoraro (1991), 144 Ill. 2d 1, 13.

Without conceding that defense counsel’s allowance of testimony regarding Hurley’s guilty plea was error and without citation to specific pertinent authority, the State argues that this impeaching testimony, standing alone, was insufficient to have an effect on the jury’s verdict because of the strength of Shelley’s identification of defendant as the robber. Also without citation to specific authority on the subject of prosecutorial remarks pertaining to a defendant’s post-arrest silence, the State argues, in a conclusory manner, that the failure to object to portions of the closing argument was merely overall strategy and does not establish incompetent representation and that, because of the strength of the evidence against defendant, the allegedly improper prosecutorial comment was not a material factor in defendant’s conviction (citing People v. Pecoraro (1991), 144 Ill. 2d 1, for this latter general proposition). The State paints with such a broad brush that its analysis is not very helpful to this court. In order to achieve a just result, we will examine in detail each of the issues and subissues raised by defendant, notwithstanding the State’s failure to do so.

The first issue is whether it was error for defense counsel to impeach his own witness by eliciting her testimony that she had just pleaded guilty to a charge of possession of a controlled substance with intent to deliver. It is clear that Hurley had not yet been sentenced. The State objected to defense counsel’s attempt to discredit his own witness by suggesting that she might have an expectation of leniency from the State. The court correctly pointed out that this was defendant’s witness, not the State’s, and sustained the State’s objection to this line of questioning. We find inexplicable defense counsel’s anticipatory impeachment of his own witness under these circumstances, and we fail to see what advantage this approach could have secured for defendant.

The credibility of a witness may be impeached by evidence of a prior conviction (see People v. Montgomery (1971), 47 Ill. 2d 510, 516), and a conviction becomes final only when defendant has been sentenced (People v. Lashmett (1984), 126 Ill. App. 3d 340, 346). Proof of arrests, indictments, charges, or the actual commission of a crime is not generally admissible to impeach a witness on the basis of a prior conviction. (See People v. Mason (1963), 28 Ill. 2d 396, 400.) Here there was only testimony that the witness had pleaded guilty to a drug-related offense; since there was no showing of a final judgment on a conviction, it was error to permit the impeachment of the witness on this basis. (See People v. Johnson (1987), 154 Ill. App. 3d 301, 307; People v. Charleston (1985), 132 Ill. App. 3d 769, 775; People v. Maas (1910), 154 Ill. App. 11, 12.) Moreover, there are no facts in the record to show that the witness had any expectation of leniency. Where the examination of the witness concerning the pending matter would not have tended to show her bias or interest in the case at bar, impeachment on this basis was improper. See Lashmett, 126 Ill. App. 3d at 346.

Having determined that defense counsel’s attempt to impeach his own alibi witness was improper, we nevertheless conclude that, under the circumstances present in this case, the error does not meet the second prong of the Strickland test for substantial prejudice warranting reversal. We do not believe that the evidence was so closely balanced or the error of such a magnitude that defendant was deprived of a fair trial. (See Pecoraro, 144 Ill. 2d at 17.) Shelley, the State’s principal eyewitness, was unequivocal in her identification of defendant. She recognized him as soon as he entered the store, and she recognized his voice, having known him for several years. She described him to the police and picked him out of a photographic array without hesitation. Her identification and her testimony were substantially corroborated by another eyewitness employee, Dollie Wilson, who had not known defendant prior to the robbery. While there was an attempt to impeach Shelley’s testimony regarding minor discrepancies concerning the color of the robber’s hat or the length of his coat, her testimony was competent. The fact that she had some prior acquaintance with the accused strengthened the reliability of her identification testimony. See People v. Watkins (1976), 44 Ill. App. 3d 73, 77.

Defendant had an opportunity to present the testimony of six witnesses in addition to his own testimony. His eyewitnesses were unable to identify the robber, but they appeared not to have been in a position to do so. The fact that other witnesses were unable to identify the perpetrator does not require reversal. (Watkins, 44 Ill. App. 3d at 77.) In addition to his own alibi testimony, defendant presented the testimony of two alibi witnesses, and the State was able to point out some internal inconsistencies in Frank Little’s testimony as well as inconsistencies between Hurley’s and Frank Little’s testimony, particularly with respect to the duration and timing of defendant’s and Frank’s stay at the apartment. This case necessarily turned on the credibility of the witnesses. In viewing the totality of the evidence, we cannot say that the impeachment of Hurley on an unrelated matter was a material factor in defendant’s conviction such that it undermines our confidence in the outcome.

Defendant argues that prejudicial error was committed when his counsel failed to object when the State elicited and commented on defendant’s post-arrest silence regarding his exculpatory alibi story. In Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, the Court determined that a defendant was denied due process when a State prosecutor sought to impeach the defendant’s exculpatory story, told for the first time at trial, by cross-examining him about his failure to give the statement at the time of his arrest after receiving Miranda warnings.

The Doyle Court itself specified one exception in which prosecutorial comment on post-arrest silence was warranted:

“It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest. Cf. United States v. Fairchild, 505 F.2d 1378, 1383 (CA5 1975).” (Emphasis added.) (Doyle, 426 U.S. at 619 n.11, 49 L. Ed. 2d at 98 n.11, 96 S. Ct. at 2245 n.11.)

(See also People v. Beller (1979), 74 Ill. 2d 514, 522.) Thus, the State may comment on post-arrest silence if the defendant at trial falsely claims that he also gave his exculpatory statement to the police when arrested, and he may be impeached with evidence that he did not do so. (People v. Adams (1981), 102 Ill. App. 3d 1129, 1132, citing People v. Rehbein (1978), 74 Ill. 2d 435, 441-42.) The second exception to the Doyle rule recognized in Illinois is that, if a defendant’s exculpatory testimony at trial is manifestly inconsistent with statements he made after his arrest, comment or evidence about his failure to give the same statement at that time will not violate the Doyle rule. Adams, 102 Ill. App. 3d at 1132, citing People v. Beller (1979), 74 Ill. 2d 514, 522-23.

We believe that where, as here, a defendant chooses to speak to the police after he has been arrested and admonished of his rights, the Doyle rule does not apply to cross-examination showing the incompleteness or inconsistencies in his prior exculpatory statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all. (See People v. Foster (1990), 199 Ill. App. 3d 372, 381-82 (explaining People v. Chriswell (1985), 133 Ill. App. 3d 458); see also People v. Wilson (1984), 123 Ill. App. 3d 798, 804 (where defendant had some discussions with police after his arrest he could be properly cross-examined regarding his failure to tell the police of his alibi).) Doyle simply bars comment and cross-examination as to silence claimed as a result of Miranda warnings, but does not bar comment on statements given after such warnings. People v. Henson (1978), 58 Ill. App. 3d 42, 46.

In the case at bar, defendant was not silent after he was given his Miranda warnings. Although he first stated that Watkins did not ask him about his alibi witnesses, defendant then testified that he told Officer Watkins where he was and that he was with Frank, Deborah, and Bonita. In rebuttal testimony, Officer Watkins contradicted this version of defendant’s post-arrest behavior. Under the circumstances, the prosecution could properly comment upon the failure of the defendant to give the same version at trial of the exculpatory statement he gave after his arrest. Where a defendant falsely claims that he also gave his exculpatory statement to the police when he was arrested, he may be impeached with evidence that he did not do so. (Adams, 102 Ill. App. 3d at 1132.) Even if defendant argues that the prosecution should not have commented upon his possible silence by omission, we nevertheless deem any omission subject to impeachment as an inconsistent statement. See People v. Hinson (1979), 70 Ill. App. 3d 880, 886 (partial alibi given upon arrest and exculpatory statement given at trial resulted in a manifest inconsistency which prosecution could call to the attention of the jury and was not violation of Doyle rule).

We conclude that the State’s cross-examination of defendant regarding prior omissions in his alibi as well its comments in its closing argument did not violate the Doyle rule as construed by Illinois decisions. We therefore do not consider defendant’s last claim that the prosecution’s conduct amounted to plain error, since there is no error to consider.

The judgment of the circuit court is affirmed.

Affirmed.

DUNN and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    GENESIS AND SONS, LTD., f/u/o American States Insurance Company, Subrogee, Plaintiff-Appellee, v. JOHN E. THEODOSOPOULOS, Defendant-Appellant.
    Second District
    No. 2 — 91—0304
    Opinion filed December 31, 1991.
    Grace Elizabeth Wein, of Malek & Wein, P.C., of Chicago, for appellant.
    No brief filed for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Genesis & Sons, Ltd., f/u/o American States Insurance Company, subrogee, filed a small claims complaint seeking $1,373.23 in property damages arising from an automobile accident on December 6, 1988, involving defendant, John E. Theodosopoulos. Defendant appeals from the trial court’s denial of his section 2 — 1401 petition (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401) to vacate the ex parte (default) judgment entered October 1, 1990, in favor of plaintiff. We reverse and remand.

The issue on appeal is whether the trial court erred in denying defendant’s section 2 — 1401 petition to vacate where defendant alleges that plaintiff purposefully failed to notify defendant of the default judgment of October 1; defendant was diligent in defending the underlying claim and in filing the section 2 — 1401 petition notwithstanding defense counsel’s docketing error as to the trial date; and defendant claimed that he had a meritorious defense to the claim.

Defendant has not provided this court with a report of the proceedings or an agreed statement of facts. Accordingly, any doubts resulting from the incompleteness of the record will be resolved against the defendant as appellant. (See Palmisano v. Connell (1989), 179 Ill. App. 3d 1089, 1099.) Additionally, because plaintiff has not submitted an appellee’s brief, this appeal will be considered under the guidelines established in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The common-law record discloses that defendant was personally served on January 9, 1990. On March 26, 1990, Rodney J. Nestmann, the driver for Genesis (plaintiff), filed an affidavit stating his version of the accident, including a statement that defendant’s car collided with the rear of the affiant’s vehicle, causing affiant’s vehicle to collide with the rear of the vehicle immediately in front of his; appended was an itemized repair estimate of the damages to the vehicle he was driving. The record also discloses that, on March 26, 1990, defendant having been found in default for failing to appear, a default judgment was entered for plaintiff and against defendant in the amount of $1,373.23.

Defendant subsequently filed his appearance through his attorney on April 25, 1990, and filed a motion to vacate the default judgment, alleging that the damage to plaintiff’s vehicle was not caused by defendant where plaintiff’s driver was involved in a rear-end collision with another vehicle. Defendant sought a trial on the merits. Defendant’s motion was granted, and trial was set for May 9, 1990; this date was continued to June 19, 1990. The affidavit of defendant’s attorney submitted with the section 2 — 1401 petition states that she agreed to continue the trial to October 1, 1990. Plaintiff’s response to the section 2 — 1401 petition does not dispute that fact.

Defense counsel further averred in the petition that, through inadvertence, the October 1 date was not properly docketed within the docketing system of her law firm, and she failed to appear on the date set for trial. Defense counsel also averred that plaintiff’s counsel did not call her to determine if she would be present for trial or if there was any confusion as to the trial date. Defense counsel also averred that the first time she was aware that a default judgment was entered on October 1, 1990, was when plaintiff’s counsel notified defendant’s insurer and she learned of the judgment from defendant’s insurer; she also claimed that this notice was after 30 days from the entry of judgment. Defendant noted that plaintiff’s counsel did not notify defendant of the default judgment contrary to the provisions of section 2 — 1302(a) of the Code of Civil Procedure (Code) (111. Rev. Stat. 1989, ch. 110, par. 2 — 1302(a)). Defense counsel had a telephone conversation with plaintiff’s counsel during the week of November 10, 1990, regarding the repair estimates.

Plaintiff’s response to defendant’s section 2 — 1401 petition does not deny that plaintiff’s counsel failed to contact defense counsel on October 1, 1990, to determine whether she intended to appear or if there was any confusion as to the trial date. Plaintiff merely states that this allegation is not relevant to the issues before the court. Plaintiff’s response does acknowledge that “notice of the default judgment was sent to the insurance carrier for the Defendant which had retained attorneys for the Defendant, if not directly to the law firm itself.” Plaintiff did not deny that the notice had been sent more than 30 days after the entry of the default judgment.

Appended to defendant’s reply brief in support of his petition is an exhibit of a letter dated November 12, 1990, from plaintiff’s counsel to defense counsel. The letter stated the amount of the bills being sent at plaintiff’s request and stated that plaintiff would delay reporting the unsatisfied judgment to the Secretary of State and that there was an enclosed copy of the judgment. Also appended to defendant’s brief was the affidavit of defendant regarding his version of the accident and asserting that there was no damage to the rear of plaintiff’s vehicle that he could see at the scene and that he did not cause damage to the front of plaintiff’s vehicle. Defendant concluded that he had a meritorious defense to the claim.

On February 5, 1990, defendant’s section 2 — 1401 petition to vacate was denied. No reason for the denial is stated in the order, and no report of the proceedings has been furnished to this court.

Defendant argues that the following factors warrant a vacatur of the October 1 order: (1) plaintiff’s failure to notify the defendant of the ex parte (default) judgment of October 1, 1990, was deliberate and contrary to section 2 — 1302(a) of the Code; (2) defendant has alleged due diligence in defending the cause and in filing his section 2 — 1401 petition; and (3) defendant has asserted that he has a meritorious defense. On the facts presented by the record, we believe that the trial court erred in denying defendant’s petition.

To be entitled to relief under section 2 — 1401, the petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221.) The quantum of proof necessary to sustain such a petition is a preponderance of the evidence, and whether the petition should be granted lies within the sound discretion of the trial court, depending on the facts and equities presented. (Airoom, 114 Ill. 2d at 221. ) A reviewing court is justified in disturbing the judgment of the trial court only if it finds that the court abused its discretion. Airoom, 114 Ill. 2d at 221.

The failure of the plaintiff’s attorney to give the statutory notice to defendant does not by itself invalidate the judgment. (Kaput v. Hoey (1988), 124 Ill. 2d 370, 379.) While delaying notification over 30 days is a factor to be considered in determining whether plaintiff has acted so unfairly as to justify relaxation of the due diligence requirement, it is not by itself a sufficient basis for doing so. Flisk v. Central Area Park District (1990), 203 Ill. App. 3d 253, 258, citing Airoom, 114 Ill. 2d at 227.

Due diligence requires that the section 2 — 1401 petitioner have a reasonable excuse for failing to act within the appropriate time; section 2 — 1401 does not afford a litigant a remedy whereby he may be relieved of the consequences of his own mistake or neglect, and he is not entitled to relief unless he shows that, through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. (Airoom, 114 Ill. 2d at 222. ) The petitioner must show that his failure to defend is the result of an excusable mistake and that under the circumstances he acted reasonably and not negligently when he failed to resist the judgment. (Airoom, 114 Ill. 2d at 222.) In determining the reasonableness of the excuse offered by the petitioner, all of the circumstances attendant upon entry of the judgment must be considered, including the conduct of the litigants and their attorneys. Halle v. Robertson (1991), 219 Ill. App. 3d 564, 569.

Section 2 — 1401 does not afford a remedy whereby a litigant may be relieved of the consequences of his own mistakes or his counsel’s negligence; a litigant has the obligation to follow the progress of his case (Fabian v. Norman (1985), 138 Ill. App. 3d 507, 511), and the inadvertent failure to do so is not a ground for relief (Stallworth v. Thomas (1980), 83 Ill. App. 3d 747, 751). We do not believe that mere inadvertence or inattention on the part of defendant’s attorney to docket the cause properly and appear at trial, as shown by the record in this cause, will ordinarily be sufficient to overcome the due diligence requirement. See, e.g., Flisk, 203 Ill. App. 3d at 257; Carroll Service Co. v. Schneider (2d Dist. 1986), 144 Ill. App. 3d 38, 41 (breakdown in law office procedure resulting in failure to file answer was not excusable neglect; Carroll rejected as inconsistent with second district authority the standard of “wilful disregard or indifference to the legal process” found in Bird v. Kostbade (3d Dist. 1977), 52 Ill. App. 3d 741, a decision relied upon by the present defendant on appeal).

Defendant seeks to excuse his own conduct and shift the blame to plaintiff. A stronger showing of the opposing party’s misconduct such as fraud or deception would be required for us to relax the due diligence rule. (See Stallworth, 83 Ill. App. 3d at 752.) Had defendant kept abreast of the litigation, he would have known of the trial date and of the ex parte judgment of October 1. It is defendant’s overall conduct or that of his attorney that led to the judgment against him.

However, one of the guiding principles in the administration of section 2 — 1401 relief is that the petition invokes the equitable powers of the circuit court, which should prevent enforcement of a default judgment when it would be unfair, unjust or unconscionable. (Airoom, 114 Ill. 2d at 225; Halle, 219 Ill. App. 3d at 569.) The power to set aside a default and permit a defendant to have his day in court is based upon substantial principles of right and wrong and is to be exercised for the prevention of injury and for the furtherance of justice. (Airoom, 114 Ill. 2d at 225.) Because a section 2 — 1401 petition is addressed to equitable powers, courts have not considered themselves strictly to be bound by precedent, and where justice and good conscience may require it, a default judgment may be vacated even though the requirement of due diligence has not been satisfied. (114 Ill. 2d at 225.) Thus, it becomes necessary to examine the conduct of the parties in this case. Halle, 219 Ill. App. 3d at 569.

The first trial date in this case, May 9, 1990, was continued to June 19, 1990, by agreement of the parties, who wished to explore settlement possibilities. The trial date of June 19, 1990, was continued to October 1, 1990, at the request of the plaintiff, who was not ready for trial. We note and plaintiff does not deny that defense counsel agreed to the continuance. Defense counsel candidly admits that the trial date of October 1, 1990, was misdocketed in her office. Plaintiff does not deny that plaintiff’s counsel made no effort to contact defense counsel on the day of trial to ascertain if she intended to appear or if there was any confusion as to the trial date even though defense counsel had previously appeared when the case was in court. Further, although section 2 — 1302 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1302) requires that the attorney for the prevailing party “shall immediately give notice thereof to each party who has appeared, against whom the order was entered, or such party’s attorney of record,” (emphasis added) plaintiff failed to do so. Plaintiff argued in its response to defendant’s petition that it sent notice of the default judgment to the defendant’s insurance company. However, defendant’s insurance company is not a “party, who has appeared.” Moreover, plaintiff does not deny that the notice to the insurance company was sent more than 30 days following the entry of the default judgment. Certainly, such a time lapse does not meet the statutory requirement of “immediately.”

We find under the particular circumstances of this case that the alleged breach of professional conduct is sufficient to constitute unconscionable conduct so that we may ease the due diligence requirement. (Cf. Airoom, 114 Ill. 2d 209 (alleged breach of professional conduct, i.e., failure to give notice of entry of default judgment, not sufficient where defense counsel had no appearance on file).) In the case at bar, defense counsel had an appearance on file, had appeared for two other trial dates and had courteously agreed to plaintiff’s counsel’s request for a continuance of the June 19, 1990, trial date. Except for the misdocketing of the October 1, 1990, trial date, there is no evidence that defense counsel was inattentive to or otherwise ignored the progress of this case. (See Beno v. DeBoer Asphalt Paving Co. (1983), 114 Ill. App. 3d 871, 875.) Against these facts, which, in its response to defendant’s petition, plaintiff describes as “irrelevant,” no explanation is offered by the plaintiff for its counsel’s failure to investigate why, after she had appeared at the other trial dates, defense counsel was not present on October 1, 1990. Nor does plaintiff explain why the notice of the default judgment was sent to the defendant’s insurance company instead of to the defendant himself (the party of record) or at least to defense counsel, with whom plaintiff’s counsel had been dealing for several months. This conduct violates not only section 2 — 1302 but common sense as well. Together with the fact that the notice was sent more than 30 days after the entry of the default judgment, even without direct proof of a deliberate effort on the part of plaintiffs counsel to conceal the entry of the default judgment from defendant and his counsel, we cannot condone such conduct by allowing a judgment achieved by such conduct to stand.

By our decision in this case, we are not relaxing our rule that breakdowns in law office procedures are not excusable negligence. (Carroll Service Co. v. Schneider (1986), 144 Ill. App. 3d 38, 41.) Ordinarily, a defense counsel’s failure properly to docket a trial date, without more, would be insufficient to be awarded relief under section 2 — 1401. However, under the circumstances of this case, including plaintiff’s counsel’s failure to make any effort to determine the whereabouts of defense counsel on the date of trial, plaintiff’s failure to comply with section 2 — 1302 and the evidence of defense counsel’s attention to and participation in the case prior to the October 1, 1990, trial date, we find it appropriate to relax the applicable due diligence standards.

We further find that the defendant was diligent in filing his section 2 — 1401 petition. It is not disputed that neither defendant, his insurance company nor defense counsel was advised of the entry of the default judgment until sometime in November 1990. Defendant’s section 2 — 1401 petition was filed on November 20, 1990.

Finally, we also find that the defendant has alleged a meritorious defense. Defendant’s affidavit, which was attached to his reply brief to the section 2 — 1401 petition, states that plaintiff’s vehicle had already collided with another vehicle before defendant arrived on the scene and struck plaintiff’s vehicle and that he observed no damage to the rear of plaintiff’s vehicle. We also note that while the judgment against defendant was entered in excess of $1,300, the repair bills submitted by the plaintiff for repairs to the rear of the vehicle were under $500. See Beno, 114 Ill. App. 3d 871.

Based on the above, we conclude that the trial court abused its discretion in denying defendant’s petition for relief pursuant to section 2 — 1401. Accordingly, the judgment of the circuit court of Lake County is reversed, and this cause is remanded.

Reversed and remanded.

McLaren and INGLIS, JJ., concur.


text:
    DEBRA CAMPBELL, Plaintiff-Appellee, v. CAREY WASHINGTON, Defendant-Appellant (Rourdes Zebell et al., Defendants).
    Second District
    No. 2 — 91—0295
    Opinion filed December 31, 1991.
    Alexandria Demos, of Moss & Hillison, of Chicago, and Mark Conrad, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Waukegan, for appellant.
    Peter Schlax, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Carey Washington, appeals the judgment of the circuit court of Lake County. He contends that the circuit court erred, for a variety of reasons, when it failed to enforce his rejection of the arbitrators’ award pursuant to Supreme Court Rule 93 (134 Ill. 2d R. 93). He also contends that the trial court thus deprived him of his right to a jury trial. Plaintiff contends the judgment was the result of an appropriate sanction for defendant’s failure to appear as required by a notice to produce pursuant to Supreme Court Rule 237 (134 Ill. 2d R. 237).

This litigation arose from a traffic accident. Janet Milton and defendant were traveling westbound on Highway 137 in Lake County in separate vehicles. Defendant was in the right-hand lane but allegedly cut in front of Milton in the left-hand lane in order to make a left turn. Milton allegedly applied her brakes and skidded on the wet pavement. She crossed the median and collided with the cars of Rourdes Zebell and plaintiff, who were sitting behind a row of other cars waiting for a stop light.

On June 8, 1990, plaintiff brought suit against Zebell, Milton and defendant. Zebell was dismissed with prejudice. Defendant filed his answer to the complaint of plaintiff on July 23, 1990. On October 4, 1990, before the court and in the presence of the other parties’ counsel, Milton filed a counterclaim in the nature of a cross-claim in which she sought contribution from defendant. On October 4, 1990, plaintiff served a notice to produce pursuant to Rule 237 upon defendant and Milton. In it, plaintiff requested the production of these parties “upon the trial of this cause.”

On October 10, 1990, the cause was scheduled for arbitration. On that date, the arbitration hearing was interrupted when plaintiff made an oral motion before the circuit court, in which she was joined by Milton, for sanctions under Supreme Court Rule 219 (134 Ill. 2d R. 219) on the ground that defendant failed to appear at the arbitration hearing. After extensive arguments, the circuit court entered an order in which it provided that “[djefault judgment as to liability is entered against Defendant Carey Washington as to Plaintiff’s complaint and Janet Milton’s complaint for contribution, Defendant’s answer to same being hereby stricken.” The circuit court also granted plaintiff’s motion to dismiss voluntarily without prejudice to refiling the count of her complaint against Milton.

Later that day, the panel of arbitrators entered an award of $3,353.92 in favor of plaintiff and against defendant. On October 12, 1990, the court provided notice of the award, of the right to file a rejection of it and of a hearing on November 13, 1990. On November 1, 1990, defendant filed the notice of his rejection of the award. On November 13, 1990, the court, without the presence of defense counsel, entered judgment based on the arbitrators’ award notwithstanding defendant’s rejection of it. The court noted in its order that defendant had “waived or forfeited his right to reject” the award because he failed to comply with the Rule 237 notice to appear at the arbitration hearing. On November 29, 1990, the court “modified” its order to include the following finding: “The 10/10/90 arbitration hearing proceeded as in [sic] matter of default under Supreme Court Rule 91 [(134 Ill. 2d R. 91)] as a rule 219 sanction for Defendant Washington’s failure to comply with Plaintiff’s rule 237 request that he be present for trial and therefore defendant Washington has waived his right to reject the arbitration award.” Defendant appeals.

Defendant notes that in this court’s opinion of Weisenburn v. Smith (1991), 214 Ill. App. 3d 160, we ruled that waiver of a party’s right to reject an arbitration award under Rule 93 is an inappropriate sanction for the party’s failure to comply with a Rule 237 notice to produce where at least the counsel appears at the arbitration hearing. Because Rule 93 provides that the right to reject is preserved when either the party or his counsel appears and the rules must be read harmoniously, a trial court cannot use the forfeiture of the rejection as a sanction for the failure to comply with a notice to produce. (214 Ill. App. 3d at 164.) Moreover, Supreme Court Rule 92(c) (134 Ill. 2d R. 92(c)) permits the trial court to enter a judgment on the award only in the event that no party files a notice of the rejection of the award. See also Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005A.

Thus, we must reverse the trial court’s judgment because the trial court was obliged to effectuate defendant’s rejection of the award.

For the above reasons, the judgment of the trial court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

DUNN and BOWMAN, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TERESA A. HILGENBERG et al., Defendants-Appellees.
    Second District
    No. 2 — 90—0389
    Opinion filed December 31, 1991.
    Roger T. Russell and Peggy D. Gerkin, State’s Attorneys, of Belvidere (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      G. Joseph Weller and David W. Devinger, both of State Appellate Defender’s Office, of Elgin, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

The 36 above-named defendants were charged individually, by identical complaints, with the offense of obstructing a peace officer, a Class A misdemeanor (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 1). The State timely appeals the trial court’s dismissal of the complaints for failure to state an offense, and, upon the State’s motion, this court allowed the 36 separate trial court cases to be docketed as one appeal in this court. The State contends that the trial court erred in dismissing the criminal complaints as legally insufficient where the decision was based on extrinsic facts disclosed by the parties and the court’s consideration was not limited to the matters stated on the face of the complaints. We affirm.

The complaints against each of the defendants specifically alleged in pertinent part that, on September 22, 1989, that each defendant:

“knowingly obstructed the performance of Sheriff Duane Wirth of an authorized act within his official capacity, being the investigation of a reported complaint of Unlawful consumption of alcoholic beverage and Disorderly conduct, knowing Duane Wirth to be a peace officer engaged in the execution of his official duties, in that he [or she] refused to open the door or permit the entry of Sheriff Duane Wirth at 2837 Be-Ver-Vue Road, Belvidere, Boone County, Illinois, in violation of Chapter 38; Section 31 — 1, Illinois Revised Statutes.”

On November 9, 1989, defendants Carole L. Becker and Tony W. Gray moved to dismiss the complaints contending that they were not authorized by law. In their identical memoranda in support of the motion to dismiss, these defendants argued that the conduct of refusing to open a door did not constitute a physical act of obstructing and that the police officer was not engaged in an authorized act. Conceding that an authorized act may include all arrests, even unlawful ones, defendants noted that an accused is not guilty of resisting an officer if the officer is engaged in making an unlawful search (citing People v. Young (1968), 100 Ill. App. 2d 20). Defendants argued that, in the absence of a warrant, exigent circumstances or consent, entry into the home was not an authorized act (citing People v. Swierez (1982), 104 Ill. App. 3d 733, 737).

Defendants Rebecca L. Drew, William W. Phillips, and Kimberly K. Pitner filed motions to dismiss on December 1, 1989. The Pitner motion was in the form of a letter that raised essentially the same issues as did Becker and Gray, while the motions of Phillips and Drew included no argument.

A hearing on the motions was held on December 1, 1989. The trial court heard the arguments of the parties, including those of the State, which included the recitation of some of the facts under which the charges were brought. The court observed that the State’s argument was self-defeating when it argued that the officers had consent to enter the home but the State also maintained that the refusal of the defendants to open the door constituted the obstruction of an officer. The court also remarked, “There’s some constitutional grounds that you argue like the sanctity of a home, the right against unreasonable search and seizure, the whole like that seems to be circumvented by telling someone you’ve got to open that door when they don’t have to.” The court thereupon dismissed all of the complaints against the 36 defendants which related to obstruction — even as to those defendants who were not represented by counsel. The State concedes on appeal that if our ruling is adverse to its position, the State would not insist that motions to dismiss be filed by those defendants who have not filed such motions.

The State filed motions to reconsider, and a hearing was held on March 1, 1990. The motions were denied. Interestingly, the State argued, even as it sought to present additional facts to the trial court, that the court should have limited its decision to the facial sufficiency of the complaint. Nevertheless, the State now urges on appeal that the trial court erred in dismissing the complaints based on facts disclosed by the parties rather than merely considering the facial sufficiency of the charging instruments. Since the State took an ambivalent position in the trial court, the State’s position on the issue is arguably waived for failure to pursue it below. (See People v. Knop (1990), 199 Ill. App. 3d 944, 949.) Because this appeal involves substantial rights of the State as well as of the defendants, we will exercise our discretion to review the substantive issues raised by the defendants in the trial court as well as on appeal, particularly where the construction of a statute is concerned and the charges were dismissed (see People v. Oswald (1982), 106 Ill. App. 3d 645, 649). This court may affirm the trial court’s decision for any reason supported by the record notwithstanding the trial court’s reasoning. People v. Stoudt (1990), 198 Ill. App. 3d 124, 125, appeal denied (1990), 133 Ill. 2d 569.

Initially, the defendants correctly argue that even if a trial court improperly considers evidentiary facts in weighing a defendant’s motion to dismiss his complaint, the consideration of those facts does not validate a complaint that fails to charge an offense. (People v. Fink (1982), 91 Ill. 2d 237, 241; Stoudt, 198 Ill. App. 3d at 125.) A complaint which charges resisting or obstructing a peace officer must sufficiently describe the physical acts which constitute the crime. (People v. Fox (1983), 117 Ill. App. 3d 1084, 1086.) The complaint must set forth sufficient allegations regarding the “authorized” act the officer was performing (Stoudt, 198 Ill. App. 3d at 128) and sufficient allegations describing what physical act of the defendant constituted resisting or obstructing the peace officer (People v. Leach (1972), 3 Ill. App. 3d 389, 394). Where the statutory language does not adequately particularize the offense or may encompass conduct not intended to be punished under the statute, a complaint charged solely in the language of the statute is insufficient. Fox, 117 Ill. App. 3d at 1086.

The statute in question states: “A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity commits a Class A misdemeanor.” Ill. Rev. Stat. 1989, ch. 38, par. 31 — 1.

A violation of this section requires an act of physical resistance. (People v. Pruitt (1988), 166 Ill. App. 3d 679, 682.) “[Resistance” means “ ‘withstanding the force or effect of or the ‘exertion of oneself to counteract or defeat.’ ‘Obstruct’ means ‘to be or come in the way of.’ ” (Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, 959, rev’d on other grounds sub nom. Boyle v. Landry (1971), 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758, quoted in People v. Raby (1968), 40 Ill. 2d 392, 399.) These terms are alike in that they imply some physical act or exertion. They do not proscribe mere argument with a policeman about the validity of an arrest or other police action, but proscribe only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer’s duties, such as by going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest. (Raby, 40 Ill. 2d at 399.) Mere refusal to answer a police officer, in the absence of a physical act, may be deemed tantamount to argument which is not a violation of the statute. See People v. Weathington (1980), 82 Ill. 2d 183, 187.

In Stoudt, where each defendant “ ‘refused to remove himself from the 400 block of Lincoln Highway,’ ” this was held not to be a physical act of resistance since the defendant refrained from any physical action. The court also noted that an allegation of the failure to cooperate with an officer is not necessarily the same as resisting or obstructing an officer. (Stoudt, 198 Ill. App. 3d at 127.) The court distinguished nonaction from instances where, for example, in response to an officer’s attempt to escort the defendants, they pushed or struck the officer or fell to the ground or tied themselves to a tree. The Stoudt court went on to hold that the complaint was also insufficient because it did not contain sufficient allegations regarding the authorized act that the officer was performing. Stoudt, 198 Ill. App. 3d at 128.

Similarly, in the case at bar, the defendants’ inaction should not be deemed to be an act of physical resistance where it was merely alleged that the defendants refused to open the door or permit the entry of the sheriff, particularly where there are insufficient allegations to show that defendants were impeding an authorized act of the officer. In its reply brief, the State merely argues, without citation to relevant case law, that Stoudt was wrongly decided and that the statutory provision is meant to encompass an accused’s omission or failure to take action. This argument begs the question.

The difficulty in determining whether action or inaction is punishable, we believe, stems at least in part from attempting to analyze the lawfulness of an action or inaction outside the context of the statute: the act of obstructing or resisting must be in response to an authorized act of the officer. Certainly, the inaction of the occupants of a house or building, without more, has no legal significance. On the other hand, a failure to respond to an officer’s request to open a door or to permit entry to the premises only has legal significance if the request was authorized within his official capacity and the response of the defendant actually impeded an act the officer was authorized to perform. If the officer were there merely selling magazines or asking for donations, no one would rationally argue that the failure to answer the door was an act of obstruction cognizable as a criminal offense.

An important element in analyzing this case is that the allegations in the complaint directly implicate the fourth amendment right to be free from unwarranted searches and seizures. It is not surprising that the trial court commented on this aspect of the issue in examining the sufficiency of the complaint. It is clear from the face of the complaint that the officer was merely investigating a nonfelony complaint. There were no allegations with respect to his possession of a warrant of any kind or probable cause coupled with exigent circumstances. The defendant occupants at whom the complaint was directed obviously did not consent to open the door or permit the officer’s entry onto the premises. Although the officer may have been authorized in the course of his investigation to request that the door be opened or that he be permitted to enter, it is significant that the officer had no right to open that door himself or insist that it be opened or that he be allowed to enter. The occupants of the premises had a right to refuse the request.

It is settled that nonconsensual, warrantless entries into private premises are per se unreasonable absent probable cause coupled with exigent circumstances. (People v. Krueger (1991), 208 Ill. App. 3d 897, 909, citing Welsh v. Wisconsin (1984), 466 U.S. 740, 749, 80 L. Ed. 2d 732, 743, 104 S. Ct. 2091, 2097; Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371; see People v. Vought (1988), 174 Ill. App. 3d 563, 568-70 (rule protects persons renting hotel rooms); People v. Olson (1983), 112 Ill. App. 3d 20; see also People v. Foskey (1990), 136 Ill. 2d 66, 77-80.) Fourth amendment protections have been extended to persons located on business and commercial premises. See See v. City of Seattle (1967), 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (nonconsensual administrative entry onto commercial premises not open to the public may be compelled only through prosecution or physical force within the framework of a warrant procedure; defendant could not be prosecuted for exercising his constitutional right to insist that fire inspector obtain a warrant authorizing entry into locked warehouse).

In People v. Olson, the court found unjustified a nonconsensual warrantless entry into a private residence in the course of an investigation of complaints of loud music (and possible underage drinking). The entry resulted in the arrest of the defendants for a nonviolent misdemeanor. The court found no exigent circumstances such as where prompt police action was required to protect the community or persons within the house, where the delay in obtaining a warrant would not have unduly impeded the investigation or permitted a criminal to escape, and where there was no evidence of the presence of weapons or violent behavior. Olson, 112 Ill. App. 3d 20.

In People v. Swiercz (1982), 104 Ill. App. 3d 733, the defendant’s conduct in refusing to allow an officer to enter the defendant’s apartment to search for a third party for purposes of interrogation did not amount to an offense of obstructing a police officer in performing an authorized act where the officer was not seeking to make an arrest and there was no showing of exigent circumstances. The court concluded that defendant was not proved guilty beyond a reasonable doubt of violating the obstruction statute. In People v. Young (1968), 100 Ill. App. 2d 20, the court determined that officers were not performing an authorized act under section 31 — 1 when they attempted to execute a search warrant for the person named on the warrant at a particular address and the occupant protested that the police had the wrong name and address and she resisted the search.

Here, we are considering whether a complaint is sufficient to charge a person with resisting an officer where there are no facts alleged to support the lawfulness of the officer’s demand that the door to the premises be opened or that he be permitted to enter. In effect, we are being asked to sanction, on the basis of a conclusory complaint, the prosecution of persons who presumptively have the right to refuse to open the door or to refuse entry upon the premises. This we decline to do.

When an “officer demands entry but presents no warrant, there is a presumption that the officer has no right to enter, because it is only in certain carefully defined circumstances that lack of a warrant is excused. [Citation.] An occupant can act on that presumption and refuse admission. *** He is not required to surrender his Fourth Amendment protection on the say so of the officer. The [Fourth] Amendment gives him a constitutional right to refuse to consent to entry and search. His asserting it cannot be a crime.” United States v. Prescott (9th Cir. 1978), 581 F.2d 1343, 1350-51, relying on Camara v. Municipal Court (1967), 387 U.S. 523, 532-33, 18 L. Ed. 2d 930, 937-38, 87 S. Ct. 1727, 1732-33 (defendant had a constitutional right to insist that housing inspectors obtain a warrant to search his residence, and he could not be convicted of a misdemeanor for refusing to permit the inspection).

In Prescott, the court overturned a defendant’s conviction of assisting an offender to hinder or prevent apprehension in violation of Federal law. The conviction was based upon the defendant’s conduct for her refusal to open the door when, without a warrant, Federal agents sought to search her apartment for a criminal suspect. The agents made a forcible entry and found the fugitive they were seeking. After concluding that the agents needed a warrant to enter, the court held:

“One cannot be penalized for passively asserting this [Fourth Amendment] right, regardless of one’s motivation. Just as a criminal suspect may validly invoke his Fifth Amendment privilege in an effort to shield himself from criminal liability [citations], so one may withhold consent to a warrantless search, even though one’s purpose be to conceal evidence of wrongdoing.
*** We only hold that her passive refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing. If the government could use such a refusal against the citizen, an unfair and impermissible burden would be placed upon the assertion of a constitutional right and future consents would not be ‘freely and voluntarily given.’ ” Prescott, 581 F.2d at 1351.

Other jurisdictions that have recently considered this issue have recognized the fourth amendment right of a person to resist an (unlawful) intrusion into the home by a police officer where there is no warrant, exigent circumstances or consent to justify the intrusion. See, e.g., Brown v. City of Oklahoma City (Okla. App. 1986), 721 P.2d 1346, cert. granted for limited purpose of striking last paragraph in part III of majority opinion (Okla. 1986), 721 P.2d 1356; City of Middleburg Heights v. Theiss (1985), 28 Ohio App. 3d 1, 501 N.E.2d 1226 (one can lawfully refuse to consent to a warrantless search; assertion of that right cannot be a crime; there exists at least a limited right to resist entrance to the home, such as by locking or closing the door or physically placing oneself in the officer’s way).

We recognize that it is not unreasonable for police officers, in the pursuit of criminal investigations, to seek interviews with suspects or witnesses at their homes, but their right to call upon them at their homes for such purposes does not include the right to walk in uninvited merely because there is no response. (See State v. Crider (Me. 1975), 341 A.2d 1.) We also observe in passing that, in an investigatory context, while a police officer may approach an individual in a public place to ask him questions, ordinarily, the person approached need not answer any questions put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. Florida v. Royer (1983), 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324; see generally Florida v. Bostick (1991), 501 U.S__, 115 L. Ed. 2d 389, 111 S. Ct. 2382.

Here, we are dealing not with a casual public encounter, but with the right of citizens to be secure from intrusion into their personal privacy, the right to shut the door on the officers of the State unless their entry is under the proper authority of law. (See Brown, 721 P.2d at 1353.) At the core of the fourth amendment stands the right of a person to retreat into his or her own home and there be free from unreasonable governmental intrusion. “In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed

_______ _ ________ ■ ____ , —............. .. without a warrant.” Payton v. New York, 445 U.S. at 590, 63 L. Ed. 2d at 653, 100 S. Ct. at 1382.

Alleging “an official police investigation” does not constitute an “authorized” act requiring defendants to open the door or permit the entry of the officer onto the premises. Absent specific factual allegations that the officer was acting on the basis of a warrant, consent, or probable cause to arrest coupled with exigent circumstances, the complaint does not state an offense. Accordingly, we conclude that the complaint was insufficient as a matter of law, because there were inadequate factual allegations regarding the performance of authorized acts by the police, or the commission of acts of resistance or obstruction by defendants. Although the officer may have had a right to request entry, he could not lawfully order that the door be opened or enter himself. Under the facts presented, an occupant of the premises had a fourth amendment right to refuse entry, and the assertion of that right does not constitute a crime. To hold otherwise would permit or encourage abuses of a citizen’s fourth amendment right by the State trader the guise of prosecuting a defendant for the obstruction of a peace officer.

The Boone County circuit court’s order of dismissal of the complaints as to all defendants is affirmed.

Affirmed.

NICKELS and GEIGER, JJ., concur.


text:
    THE TOWN OF AVON, Plaintiff-Appellee, v. NORMAN G. GEARY, Defendant-Appellant.
    Second District
    No. 2 — 91—0504
    Opinion filed December 31, 1991.

      Warren G. Fox, of Ori, Fox & Associates, of Waukegan, for appellant.
    Rudolph F. Magna, Jr., of Magna & Hauser, of Gurnee, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The plaintiff, the Town of Avon, filed a two-count amended complaint in the circuit court of Lake County against the defendant, Norman G. Geary. Count I sought reimbursement from the defendant for money he received while a township supervisor which allegedly constituted an unconstitutional increase in his salary. Count II sought a declaratory judgment as to the asserted claim of the defendant to such a salary increase, as to whether the payments made to the defendant were lawful and as to whether such payments were recoverable from the defendant. The trial court denied the defendant’s motion for summary judgment and entered summary judgment in favor of the plaintiff in the amount of $12,700.

The defendant raises the following issues on appeal: (1) whether the trial court erred in finding that the payment of the township trustee salary to the defendant violated certain portions of the Township Law of 1874 (Act) (Ill. Rev. Stat. 1989, ch. 139, par. 0.1 et seq.); (2) whether the trial court erred in finding that the plaintiff was granted a salary increase within the meaning of article VII, section 9(b), of the Illinois Constitution of 1970; (3) whether the trial court erred in finding the principle of voluntary payments inapplicable; (4) whether the trial court erred in failing to grant summary judgment in favor of the defendant; and (5) whether the trial court erred in granting summary judgment in favor of the plaintiff.

The facts relevant to this appeal are as follows. On March 9, 1990, the plaintiff filed its initial two-count complaint seeking reimbursement of monies paid to the defendant while he was township supervisor of Avon township and asking for a declaratory judgment. Following the trial court’s order striking certain portions of the complaint, the plaintiff filed its two-count amended complaint.

The amended complaint also sought reimbursement of monies paid to the defendant as township supervisor and asked for declaratory relief. Specifically, the complaint alleges that the defendant was the township supervisor from April 1977 to April 1989. It further alleges that the offices of township supervisor and township trustee are separate and distinct from one another. The complaint also sets forth the respective salaries for supervisor and trustee which were established for each of the fiscal years from 1977 to 1989. Additionally, it is alleged that the salaries were approved prior to the elections for the offices of supervisor and trustee. It is further alleged that the defendant, as township supervisor, received the salary designated for that position as well as the salary designated for the position of trustee. The complaint asserts that the defendant received compensation from the plaintiff in excess of that provided by law in that he: (1) received more salary for holding the office of supervisor than permitted by the salary meetings of the town board and (2) received the trustee salary when he was not elected to the office of trustee. Thus, the complaint alleges that the defendant was compensated during his terms in office in excess of the amounts provided for township supervisor in violation of article VII, section 9(b), of the Illinois Constitution of 1970.

The amended complaint also includes, as exhibits, copies of the minutes of various township board meetings which establish that the salaries for the township supervisor and the trustees were set prior to the election of the defendant for any given year. Those minutes are devoid of any indication as to whether the township board ever approved or authorized the defendant receiving the trustee salary or when it made such approval or authorization.

The defendant moved for summary judgment, arguing that it was lawful for him to receive a salary both as a supervisor and as a trustee and that both salaries were established by the township board prior to his election. Furthermore, he maintained that any error on the part of the township board in paying him a trustee salary was a mistake of law and therefore not recoverable by the plaintiff.

The defendant submitted his affidavit with his motion for summary judgment. The affidavit states that the salaries for the offices of township supervisor and township trustee were set prior to the election for the particular offices. The affidavit further asserts that the defendant received a salary for both offices and that the township board approved the defendant receiving both salaries. The affidavit is silent as to how and when such approval took place.

The trial court denied defendant’s motion for summary judgment, ruling that he was not entitled to a salary as a township trustee and that such payments were ultra vires and recoverable by the plaintiff. The court also denied his motion for reconsideration.

The plaintiff then filed its motion for summary judgment in which it maintained that the defendant was only entitled to the salary for township supervisor and therefore his receipt of a salary for township trustee constituted an increase in his salary in violation of article VII, section 9(b), of the Illinois Constitution of 1970. The plaintiff further argued that the payment of the trustee salary to the defendant was ultra vires and therefore recoverable.

The defendant responded to the plaintiff’s motion for summary judgment by asserting that prior to his election the township board set a bifurcated salary schedule for the office of township supervisor. He further posited that such a bifurcated salary was within the authority of the township board pursuant to section 13 — 17 of the Act (Ill. Rev. Stat. 1989, ch. 139, par. 126.7). Finally, he maintained that the increase in his salary, by virtue of his receiving the additional trustee salary, occurred prior to his election and was therefore not rendered invalid as arising during the term of his office.

The trial court granted the plaintiff’s motion for summary judgment. In so ruling, the court found that the offices of supervisor and trustee are separate and distinct and are to be compensated separately. The court further found that the defendant’s receiving of both salaries during his term of office violated both article VII, section 9(b), of the Illinois Constitution of 1970 and section 13 — 17 of the Act (Ill. Rev. Stat. 1989, ch. 139, par. 126.7). The court ruled that the trustee’s salary received by the defendant was in addition to that authorized by law for the office of supervisor and was thus recoverable. The court entered summary judgment in favor of the plaintiff in the amount of $12,700.

The defendant raises the following contentions on appeal. First, he argues that there is no statutory limit to the level of the township supervisor’s salary or the structure of that salary so long as such salary is established prior to the supervisor’s election. Second, he maintains that because the board determined the bifurcated salary structure prior to his election, there was no unconstitutional increase in his salary during his term of office. Finally, the defendant asserts that the principle of voluntary payments applies to salaries paid to municipal employees absent an allegation of fraud, undue influence or mistake of fact.

The plaintiff responds that the fact that the salaries for the offices of supervisor and trustee were set separately combined with the fact that the defendant received both salaries constitutes an unconstitutional increase in the defendant’s salary during his term of office. The plaintiff further maintains that the defendant could only receive that salary established for the supervisor’s office as there was no public information concerning his salary beyond that of the township meeting minutes indicating what the salary for the supervisor would be. Lastly, the plaintiff contends that because the payments of the trustee’s salary to the defendant were constitutionally prohibited those payments were void ab initio and thus recoverable by the plaintiff.

We first address the issue of whether the trial court properly granted summary judgment in favor of the plaintiff. While summary judgment is to be encouraged in the interest of the prompt disposition of lawsuits, it is a drastic measure which should be allowed only when the moving party’s right to it is clear and free from doubt. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358.) If a plaintiff fails to establish an element of the cause of action, from the papers on file, summary judgment for the defendant is proper. (Pyne, 129 Ill. 2d at 358.) The right to summary judgment must be clear beyond question, and the reviewing court must reverse an order granting summary judgment if the court determines either that there exists a question of material fact or that judgment for the movant was incorrect as a matter of law. (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1989), 193 Ill. App. 3d 1087, 1092.) The granting of a motion for summary judgment is not discretionary (Derby Meadows Utility Co. v. Inter-Continental Real Estate (1990), 202 Ill. App. 3d 345, 354), and the proper standard of review is de novo (Demos v. National Bank of Greece (1991), 209 Ill. App. 3d 655, 659-60).

Guided by these principles, we address the propriety of the entry of summary judgment in this case in favor of the plaintiff. We begin by referring to article VII, section 9(b), which states:

“An increase or decrease in the salary of an elected officer of any unit of local government shall not take effect during the term for which that officer is elected.” Ill. Const. 1970, art. VII, §9(b),

Any action by the local governmental entity to reduce or increase the salary of an elected officer during the term of that officer shall be an invalid action. (DeSutter v. South Moline Township Board (1983), 96 Ill. 2d 372, 376.) It is quite clear under the plain language of article VII, section 9(b), and those cases interpreting that language that a party challenging the action of a local governmental entity setting the salary for one of its elected officers must establish that there was an action by that local governmental entity. It is equally evident that for a party challenging such action to prevail on a motion for summary judgment, it must establish, based on the pleadings, depositions, admissions, exhibits and affidavits, if any, that the action occurred during the term of the elected official. Cf. Hume v. Town of Blackberry (1985), 131 Ill. App. 3d 32, 35-36 (dismissal of complaint improper where no evidence introduced establishing whether certain allowances to township officers intended to be compensation).

In the present case, the plaintiff’s complaint contains no specific factual allegations as to when the township board took action establishing that the defendant was to be paid both the supervisor’s salary and the trustee’s salary. Nor do any of the exhibits attached to the complaint suggest when such action occurred. Likewise, there is nothing contained in any of the admissions, the affidavit on file or the defendant’s pleadings which establishes when the township board took such action. The plaintiff must at the very least set forth some factual basis that the township board took action during the defendant’s term of office that resulted in the defendant receiving two salaries to prevail under its alleged violation of article VII, section 9(b), of the Illinois Constitution of 1970.

The fact that the township board established separate salaries for the offices of supervisor and trustee, without more, does not demonstrate, directly or circumstantially, that any action occurred during the defendant’s term of office. Furthermore, the fact that the defendant received both salaries does nothing to establish that the township board took action during his term which resulted in his receiving both salaries.

Plaintiff does not suggest, nor do we find any authority for the proposition, that the mere fact that defendant received both salaries contravened article VII, section 9(b), of our State constitution. We also point out that all of the cases relied on by the plaintiff in support of its contention that a constitutional violation occurred here concerned governmental action that not only affected the level of an elected official’s salary but that also took place during the elected official’s term of office. We also cannot accept the plaintiff’s argument that, because the defendant received payment for the trustee’s salary during his term of office, there was an unconstitutional increase in his salary. If we were to accept such a premise, then we would call into constitutional question the salaries of all elected officials of local government as they all necessarily receive their salaries only after they have taken office. The improvidence of such a proposition is self-evident.

Because the pleadings, exhibits, admissions and affidavits do not establish, directly or circumstantially, that the township board acted during the defendant’s term to increase his salary, a necessary element of the plaintiff’s case is lacking. Therefore, the plaintiff is not entitled to judgment as a matter of law at this stage of the proceedings.

We next address the propriety of the trial court’s denial of the defendant’s motion for summary judgment. Just as in the case of the plaintiff, we are unable to ascertain from this record any suggestion that the township acted to authorize the defendant receiving the salaries for both supervisor and trustee before he was elected. Had the defendant submitted some form of evidence before the trial court which, if unrebutted, would have shown that the township board had authorized or approved that he receive both salaries prior to his election, then he would have affirmatively established that no violation of article VII, section 9(b), occurred. While his affidavit states that the township board approved his receiving both salaries, it is silent as to the nature of such approval or as to when such approval occurred. Absent any such evidence, the defendant is also not entitled to judgment as a matter of law. Consequently, we affirm the denial of the defendant’s motion for summary judgment.

For the foregoing reasons, we affirm the denial of the defendant’s motion for summary judgment, reverse the granting of summary judgment in favor of the plaintiff, and remand the cause for further proceedings.

Affirmed in part; reversed in part and remanded.

REINHARD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE STEIGMANN JUSTICE LUND,

text:
    RICHARD HECK et al., Plaintiffs-Appellees, v. CILCORP, INC., Defendant (Central Illinois Light Company et al., Defendants-Appellants).
    Fourth District
    No. 4 — 91—0430
    Opinion filed December 13, 1991.

      LUND, J., dissenting.
    Gordon R. Broom and J. Todd Hayes, both of Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellants.
    W. Loren Thomson, of Thomson & Weintraub, of Bloomington, for appellees.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendants, Central Illinois Light Company (CILCO) and Donald Koch, d/b/a Koch Trucking, and Randy Koch, appeal from the granting of the motion of plaintiffs, Richard Heck and Dennis Roberts, to voluntarily dismiss this case. The issue we address is whether a defendant’s filing of a counterclaim for contribution precludes a plaintiff from voluntarily dismissing his cause of action. We conclude that it does and therefore reverse and remand.

I. Facts

This case arises from a multivehicle accident that occurred on Interstate 55 near Bloomington, Illinois. A Koch trucking vehicle driven by Randy Koch struck plaintiff Heck’s tractor trailer from behind. Plaintiff Roberts was a passenger in Heck’s vehicle. Heck had stopped his vehicle on Interstate 55 because CILCO employees were doing maintenance work on power lines near the road. On June 2, 1989, plaintiffs filed a negligence complaint naming CILCORP, a corporation, as well as CILCO, Koch Trucking Company, and Randy Koch as defendants. In January 1990, CILCO filed a counterclaim for contribution against Koch. CILCORP’s motion for summary judgment was granted on December 12, 1990, because CILCORP was merely the holding company for CILCO. CILCO remained a defendant in this cause of action. In May 1991, Koch filed a counterclaim for contribution against CILCO.

On April 5, 1991, the trial court granted CILCO’s motion to strike counts I and III of plaintiffs’ first amended complaint, which alleged a cause of action premised on the Road Construction Injuries Act (Act) (111. Rev. Stat. 1989, ch. 121, pars. 314.1 through 314.8). On April 23, 1991, plaintiffs filed a second-amended complaint, again alleging violations under the Act. On May 10, 1991, CILCO again filed a motion to strike those counts premised on the Act. On May 20, 1991, plaintiffs filed a motion for voluntary dismissal under section 2 — 1009 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1009). On May 22, 1991, defendants filed an objection to that motion, claiming that plaintiffs were barred from voluntarily dismissing because each defendant had filed a counterclaim against the other. Despite defendants’ objections, the trial court granted plaintiffs’ motion and dismissed the action.

II. Analysis

The sole issue in this case is whether the filing of a counterclaim by a defendant bars plaintiffs’ motion for voluntary dismissal. We hold that it does. The relevant part of the Code states the following:

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to the defendant except by the defendant’s consent.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009(a).

The first question we need to resolve is whether a counterclaim for contribution is a counterclaim within the meaning of section 2 — 1009(a) of the Code. Section 2 — 608(a) of the Code defines the term “counterclaim” as follows:

“Any claim by one or more defendants against one or more plaintiffs, or against one or more codefendants, whether in the nature of setoff, recoupment, cross claim or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross claim in any action, and when so pleaded shall be called, a counterclaim.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 110, par. 2 — 608(a).

The plain meaning of the text of that section makes clear that a claim “by one or more defendants *** against one or more codefendants” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 608(a)) is a counterclaim, as that term is used in the Code, including section 2 — 1009(a) thereof.

Plaintiffs argue that the supreme court, in People v. American National Bank & Trust Co. (1965), 32 Ill. 2d 115, 203 N.E.2d 897, held that a defendant’s counterclaim must allege an independent, substantive cause of action against plaintiff in order to bar plaintiff’s voluntary dismissal. However, we do not read the holding in that case as expansively as do plaintiffs.

In American National Bank, a tax foreclosure case, defendant filed a “cross-complaint” in response to a motion to dismiss. Defendant’s “cross-complaint” alleged that the purchaser of delinquent taxes “could not oust the court from jurisdiction nor prevent the foreclosure by its subsequent purchase of the forfeited taxes.” (American National Bank, 32 Ill. 2d at 120, 203 N.E.2d at 900.) The supreme court ruled that defendant’s “cross-complaint” failed to state a substantive claim at all, therefore ruling that the “cross-complaint” was not a counterclaim which would bar voluntary dismissal. (American National Bank, 32 Ill. 2d at 119, 203 N.E.2d at 899.) (We add parenthetically that the supreme court indirectly expressed its assessment of the worth of defendant’s response by putting quotations marks around “cross-complaint” whenever in its opinion it referred to defendant’s pleading.) The language in that case, which suggests a counterclaim bars a voluntary dismissal only when it is filed against a plaintiff, is dicta taken out of the context of the peculiar circumstances present in that tax foreclosure proceeding.

Although we are not aware of any case directly on point — where counterclaims brought between codefendants barred a plaintiff from voluntary dismissal — we find the cases of In re Marriage of Black (1985), 133 Ill. App. 3d 59, 477 N.E.2d 1359, and Edwards v. Fox (1984), 121 Ill. App. 3d 556, 459 N.E.2d 1083, support our holding in the present case. In Black, a wife filed a petition for dissolution of her marriage. Some months later, she filed a petition for temporary custody, and child support; on the same date, the maternal grandmother and paternal grandparents of the child of the parties to the marriage petitioned to intervene and for custody. The trial court granted the petitions to intervene of all grandparents. (Black, 133 Ill. App. 3d at 60, 477 N.E.2d at 1360.) After a hearing on the petition for temporary custody, the court found neither of the parents was then able to provide for the best interests of the child, and awarded temporary custody to the paternal grandparents. The cause was set for trial. Moments before trial, petitioner moved to voluntarily dismiss her petition for dissolution. The trial court denied her motion, and she appealed that denial. (Black, 133 Ill. App. 3d at 64, 477 N.E.2d at 1363.) The appellate court construed the grandparents’ petitions to intervene to be counterclaims under section 2 — 608(a) of the Code. The court deemed those petitions sufficient reason to bar petitioner’s voluntary dismissal of the action and affirmed the trial court’s order denying petitioner’s motion for voluntary dismissal. Black, 133 Ill. App. 3d at 64-65, 477 N.E.2d at 1363-64.

In Edwards, Lodia Edwards brought an action against defendant Fox for injuries caused by an automobile accident. In a separate personal injury action, Ronald Edwards, Lodia’s husband, also sued Fox. Fox filed a third-party complaint for contribution against Ronald in the action filed by Lodia. Fox thereafter made an oral motion to consolidate the two actions, which the trial court granted. The trial court later denied Ronald’s subsequent motion for voluntary dismissal pursuant to section 2 — 1009 because the court construed Fox’s third-party complaint as a counterclaim. (Edwards, 121 Ill. App. 3d at 557, 459 N.E.2d at 1083-84.) Ronald appealed the denial of his motion for voluntary dismissal, and the appellate court affirmed. The court held that Fox’s third-party complaint was a counterclaim within the meaning of section 2 — 608(a) of the Code, which thus barred voluntary dismissal under section 2 — 1009. Edwards, 121 Ill. App. 3d at 558-59, 459 N.E.2d at 1085.

Our conclusion in the present case is further supported by Gibellina v. Handley (1989), 127 Ill. 2d 122, 136, 535 N.E.2d 858, 865, wherein the Illinois Supreme Court wrote as follows: “The limitations within section 2 — 1009 protect the rights of any litigant — plaintiff, counterclaimant, or third-party plaintiff — to pursue and control a claim for relief.”

Plaintiffs also contend that because they have refiled their action in Madison County (Madison County case No. 91 — L—676), whether a cause of action continues to exist in McLean County — the issue before us in this appeal — is moot. We disagree. Upon remand of this case, defendants may elect to attack the cause of action in Madison County by filing a motion for involuntary dismissal based upon section 2 — 619(a)(3) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2— 619(a)(3)).

For the reasons stated, we reverse the trial court’s order granting plaintiffs’ motion for voluntary dismissal and dismissing plaintiffs’ cause of action, and this case is remanded for further proceedings.

Reversed and remanded.

KNECHT, J., concurs.

JUSTICE LUND,

dissenting:

I respectfully dissent from the majority opinion. I do not agree that a defendant can bar a plaintiff’s voluntary dismissal, without prejudice, under the authority of section 2 — 1009 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009) by filing a counterclaim against a codefendant. I further suggest that a third-party action by one defendant bringing in a third-party defendant also does not bar the voluntary dismissal. The absence of a specific decision as to this issue probably results from what I suggest is a general assumption that a counterclaim blocking a voluntary dismissal must be against the plaintiff. People v. American National Bank & Trust Co. (1965), 32 Ill. 2d 115, 203 N.E.2d 897, certainly gives this impression when it states:

“It is clear that the purpose of section 52 [(now section 2 — 1009 of the Code)] is to prohibit claimants from voluntarily dismissing causes instituted by them to the prejudice of other parties named in the complaint who have subsequently properly alleged substantive causes of action against the original claimants.” American National, 32 Ill. 2d at 119-20, 203 N.E.2d at 899.

Historically, a plaintiff has had the right to take a voluntary non-suit, and this right has only been limited by statutory provisions which are now included in section 2 — 1009 of the Code. (See Ill. Ann. Stat., ch. 110, par. 2 — 1009, Historical and Practice Notes, at 417 (Smith-Hurd 1983); 16 Ill. L. & Prac. Dismissal & Nonsuit §§11, 12 (1971).) That right has been stated to be an “absolute right *** and the trial court has no discretion to interfere with the exercise of that right.” City of Palos Heights v. Village of Worth (1975), 29 Ill. App. 3d 746, 749, 331 N.E.2d 190, 193.

It is my opinion that a counterclaim against a plaintiff is the only pleading that would bar that plaintiff from voluntarily dismissing as to the defendant filing the counterclaim. I suggest the majority’s reliance on section 2 — 608(a) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 608(a)) is misplaced. That section provides for the use of the term “counterclaim” in place of various terms which were formerly used. (Ill. Ann. Stat., ch. 110, par. 2 — 608(a), Historical and Practice Notes, at 182 (Smith-Hurd 1983).) Nothing in section 2 — 608(a) of the Code or the historical notes indicates the definition provided by that section was to define or limit the voluntary nonsuit authority statutorily recognized by section 2 — 1009 of the Code.

My examination of the cases cited by the majority indicates they are not authority for the position taken in their opinion. I suggest the majority opinion is a judicial limitation of a historically recognized right to a voluntary nonsuit. I suggest a decision of this type is best left to the legislature.