text:
    SHARON RUBLY, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    First District (4th Division)
    No. 1-89-0334
    Opinion filed January 17, 1991.
    Rehearing denied March 7, 1991.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for respondent.
    No brief filed for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, the Secretary of State, appeals from an order of the circuit court of Cook County that reversed defendant’s denial of plaintiff’s request for a restricted driving permit (RDP). The circuit court ordered the defendant to issue plaintiff a renewal of her RDP and refused to stay the order pending appeal. The defendant appeals, contending that: (1) the circuit court lacked jurisdiction on a motion to modify a judgment made more than 30 days after a final order had been entered and (2) the circuit court lacked jurisdiction because plaintiff had failed to file a complaint in administrative review based upon the November 15,1988, hearing.

We affirm.

On March 6, 1987, plaintiff was arrested and convicted of driving under the influence of alcohol. Consequently, the defendant suspended plaintiff’s driver’s license for one year. On June 1, 1987, plaintiff petitioned the defendant for reinstatement of full driving privileges or, alternatively, issuance of a RDP. A hearing on the petition was held on July 16, 1987. On September 23, 1987, the hearing officer denied plaintiff’s request for restoration of driving privileges and, alternatively, for a restricted driving permit. The defendant adopted the hearing officer’s findings and recommendations.

On October 9, 1987, plaintiff filed a complaint for administrative review (No. 87 — CH—10119) of the defendant’s decision denying plaintiff’s petition for reinstatement of her driver’s license or, alternatively, a RDP. On January 13, 1988, the circuit court reversed the decision and ordered the defendant to issue plaintiff a RDP. The circuit court held that the defendant had abused his discretion in denying plaintiff the issuance of a RDP and that the decision was contrary to the manifest weight of the evidence. The circuit court also refused to stay the order pending appeal. The defendant filed a notice of appeal which he voluntarily dismissed several months later. On July 1, 1988, the defendant granted plaintiff a RDP valid for three months. The RDP was issued on September 12, 1988, and expired on December 12, 1988.

Plaintiff sought to renew the RDP prior to its expiration through an informal hearing procedure. The defendant denied plaintiff’s request because she had obtained her RDP as the result of a court order, and not a decision by the defendant’s office. Plaintiff was then required to undergo another formal hearing which was conducted on November 15, 1988. On January 4, 1989, plaintiff’s request for renewal of a RDP was denied. The hearing officer entered virtually the same findings of fact that had been previously entered on September 23, 1987.

On January 17, 1989, plaintiff filed a petition for relief from violation of the court’s order (No. 87 — CH—10119) that had been entered on January 13, 1988. On January 19, 1989, the circuit court reversed the defendant’s decision of January 4, 1989, and ordered the defendant to issue a RDP to plaintiff forthwith. On January 20, 1989, the defendant filed a motion to stay enforcement of the judgment pending appeal. On January 25, 1989, plaintiff filed a motion to reverse the defendant’s order denying her a RDP in a complaint for administrative review (No. 89 — CH—459) that she had filed based upon the November 15, 1988, hearing. On January 25, 1989, the cases were consolidated. On January 27, 1989, the circuit court refused to stay the order pending appeal and denied plaintiff’s motion to reverse the defendant’s order in No. 89 — CH—459 without prejudice.

Initially, we note plaintiff did not file a brief. However, the record is sufficient for us to decide the issues without the plaintiff’s assistance. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The defendant has broad authority to administer the State’s laws governing the conduct of drivers on the roads and is statutorily directed to observe, administer and enforce the provisions of the Illinois Vehicle Code. (People v. Pine (1989), 129 Ill. 2d 88, 542 N.E.2d 711; Ill. Rev. Stat. 1987, ch. 95½, pars. 2 — 101, 2 — 104.) The defendant has authority to revoke and reinstate the driving privileges of persons convicted of DUI. (People v. Pine, 129 Ill. 2d 88, 542 N.E.2d 711; Ill. Rev. Stat. 1987, ch. 95½, pars. 6 — 205, 6 — 208.) The defendant has exclusive authority to hold hearings and grant hardship relief or reinstatement of license privileges after a suspension or revocation imposed pursuant to his authority over non-first-time DUI offenders. People v. Pine, 129 Ill. 2d 88, 542 N.E.2d 711; Ill. Rev. Stat. 1987, ch. 95½, pars. 6-205, 6-208.

Upon review, the findings and conclusions of an administrative agency are considered prima facie true and correct. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085; Britt v. Edgar (1989),

192 Ill. App. 3d 469, 548 N.E.2d 826; Fitzpatrick v. Edgar (1987), 158 Ill. App. 3d 966, 512 N.E.2d 56.) Courts may not interfere with an agency’s discretionary authority unless that power is exercised in an arbitrary and capricious fashion or the decision is contrary to the manifest weight of the evidence. (Britt v. Edgar, 192 Ill. App. 3d 469, 548 N.E.2d 826; Murdy v. Edgar, 103 Ill. 2d 384, 469 N.E.2d 1085; Fitzpatrick v. Edgar, 158 Ill. App. 3d 966, 512 N.E.2d 56.) The defendant’s decision will be found to be contrary to the manifest weight of the evidence only when the reviewing court can find, viewing the evidence in a light most favorable to the agency, that no rational trier of fact could have agreed with the agency. Britt v. Edgar, 192 Ill. App. 3d 469, 548 N.E.2d 826; Agans v. Edgar (1986), 142 Ill. App. 3d 1087, 492 N.E.2d 929.

The relevant factors in determining whether to issue a RDP are the degree of hardship which deprivation of driving privileges imposes upon the applicant, whether alternative means of transportation are available, and whether issuance of the permit would prove a danger to public safety and welfare. (Britt v. Edgar, 192 Ill. App. 3d 469, 548 N.E.2d 826; Ill. Rev. Stat. 1987, ch. 95½, par. 6-206(c)(3).) The relevant inquiry in restricted driving permit cases is the danger to public safety and welfare. Britt v. Edgar, 192 Ill. App. 3d 469, 548 N.E.2d 826; Murdy v. Edgar, 103 Ill. 2d 384, 469 N.E.2d 1085.

The hearing officer at the November 15, 1988, hearing held that plaintiff was not entitled to a RDP, and entered, inter alia, these findings of facts: (1) plaintiff had been arrested for DUI twice in SVz years; (2) plaintiff had attended and completed an alcohol/drug remedial education course; and (3) plaintiff had been classified as a Level I nonproblematic user of alcohol in an alcohol/drug evaluation. The hearing officer stated that plaintiff’s alcohol history was indicative of a “problematic, use,” however, and that she had never obtained any treatment for her alcohol problem. The officer also noted that plaintiff displayed an “evasive” demeanor at the hearing and that her testimony lacked credibility. The hearing officer concluded that plaintiff remained unable to recognize the seriousness of her alcohol problem and would continue to be a danger to the public safety and welfare if driving relief was to be granted to her.

When the parties returned to court on January 19, 1989, the plaintiff sought to enforce, not modify, the judgment that had been entered by the circuit court on January 13, 1988. The circuit court believed that it had retained jurisdiction in the matter because: (1) the findings of fact entered from the November 15, 1988, hearing mirrored those of the findings of fact entered from the July 16, 1987, hearing; (2) plaintiff had not been arrested for a DUI during the intervening period; (3) the defendant’s compliance with the January 13, 1988, order was so negligible as to show that the defendant was continuing to exercise his power in an arbitrary and capricious fashion; and (4) the defendant’s decision was contrary to the manifest weight of the evidence because the evidence introduced by plaintiff at both hearings was unrebutted. We agree.

Generally, a circuit court retains jurisdiction over cases pending before it until such time as a final judgment is entered in the case and the litigation is effectively terminated between the parties in the trial court. That court does, however, have a 30-day period after the entry of a final judgment within which it may hear post-trial motions or other motions, and at the end of this 30-day period, the court loses jurisdiction to amend, modify, rehear, retry, vacate, or grant other relief of a similar nature from the final judgment order. (Brigando v. Republic Steel Corp. (1989), 180 Ill. App. 3d 1016, 536 N.E.2d 778.) A trial court may, at times, retain jurisdiction to enforce its order after the lapse of the 30-day period where the judgment contemplates or orders future performance by the parties. Brigando v. Republic Steel Corp., 180 Ill. App. 3d 1016, 536 N.E.2d 778; Village of Gilberts v. Holiday Park Corp. (1986), 150 Ill. App. 932, 502 N.E.2d 378.

Although the circuit court ordered the defendant to issue a RDP to plaintiff on January 13, 1988, the defendant did not comply by granting a RDP to plaintiff until July 1, 1988. Further, the RDP was not even issued until September 12, 1988, and it was valid only for three months. When the plaintiff sought a renewal of the RDP prior to its expiration, plaintiff was required to undergo another formal hearing, although she had not had any other DUI arrests. The defendant then refused to grant plaintiff a renewal of her RDP on January 17, 1989, for virtually the same reasons as on September 23, 1987. We believe that the circuit court retained jurisdiction in the present case to enforce its order of January 13, 1988, regardless of the lapse of the 30-day period. The January 13, 1988, judgment ordered the defendant to issue a RDP to plaintiff. Although the circuit court did not specify a time period for compliance, we conclude that the circuit court’s actions of January 19, 1989, were proper because the defendant had continued to exercise his power in an arbitrary and capricious fashion by continuing to create unnecessary and burdensome obstacles for the plaintiff. Further, we believe that it is unnecessary to require plaintiff to file a complaint in administrative review for No. 89 — CH—459 since both cases involve the same factual situation.

We believe that Ball v. Edgar (1988), 165 Ill. App. 3d 349, 519 N.E.2d 35, is inapplicable in the present case. In Bell v. Edgar, the plaintiff filed a motion for modification of a judgment in the circuit court, asking for an extension of his three-month RDP, without initially seeking a renewal of the RDP with the defendant. The appellate court held that the trial court’s modified order was void for lack of jurisdiction because it was entered more than 30 days after entry of the final order for issuance of a RDP. Further, the circuit court’s decision encroached on the defendant’s discretion and duties, who had neither denied the extension nor presented evidence on the issue. This case does not present a similar factual situation.

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

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LORENZ

license: Public Domain

text:
    FRANCIS KIELBASA, Plaintiff-Appellant, v. ST. MARY OF NAZARETH HOSPITAL et al., Defendants-Appellees.
    First District (5th Division)
    No. 1-89-0692
    Opinion filed January 25, 1991.
    Rehearing denied March 14, 1991.

      Heller & Richmond, Ltd., of Chicago (Todd A. Heller, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Steven R. Swofford, Clare E. Connor, and Kathryn A. Spalding, of counsel), for appellees St. Mary of Nazareth Hospital, Luis Gonzalez, B. Chmiel, and Jozek Wilk.
    Robert L. Nora and Kathy K. Loft, both of Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellees Yammanuru Ramulu and Community Radiology, Ltd.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Francis Kielbasa, appeals from the entry of summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005) in favor of defendants, St. Mary of Nazareth Hospital (St. Mary), Luis Gonzalez, M.D., B. Chmiel, M.D., Jozek Wilk, M.D., Community Radiology, Ltd., and Yammanuru Ramulu, M.D. We consider whether summary judgment in defendants’ favor was proper when (1) plaintiff lost X rays which he alleged defendants negligently interpreted and (2) plaintiff did not present expert testimony to support the allegations of his complaint. For the following reasons, we reverse and remand.

Plaintiff filed a medical malpractice complaint, as amended, aUeging that on September 25, 1982, he was examined by Drs. Gonzalez, Chmiel, and Wilk in the emergency room of St. Mary. They ordered X rays of plaintiff’s left shoulder which were taken by Dr. Ramulu of Community Radiology. Plaintiff alleged that Drs. Gonzalez, Chmiel, Wilk, and Ramulu interpreted the X rays as not revealing any dislocation and that Drs. Gonzalez, Chmiel, and Wilk released plaintiff without treatment for his shoulder. After returning from vacation, plaintiff was examined on October 12, 1982, by his own doctor, Dr. Steven Gitelis, who diagnosed a dislocated left shoulder which required surgery.

Plaintiff alleged that St. Mary was negligent when it failed to provide competent personnel, failed to properly interpret the X rays, discharged plaintiff when he needed medical attention, and failed to promulgate regulations concerning the interpretation of X rays. Plaintiff alleged that Drs. Gonzalez, Chmiel, and Wilk were negligent when they did not properly interpret the X rays, failed to perform other tests, and discharged plaintiff when he needed medical attention. Plaintiff alleged that Dr. Ramulu and Community Radiology were negligent when they improperly took and interpreted the X rays.

Drs. Gonzalez, Chmiel, and Wilk answered the complaint admitting they were employees of St. Mary and denying they were negligent. Dr. Ramulu and Community Radiology, in their answer, admitted treating plaintiff but denied they were negligent. St. Mary’s answer is not in the record on appeal.

St. Mary requested plaintiff to produce, among other items, the X rays taken at St. Mary and to identify expert witnesses expected to testify at trial. Plaintiff did not respond to the requests although he was ordered to comply with outstanding discovery.

St. Mary moved for summary judgment arguing that it could not be held liable for the alleged negligent actions of Dr. Ramulu and Community Radiology, who interpreted the X rays, because they were independent contractors. St. Mary also argued that because plaintiff could not produce the X rays taken at St. Mary, an evidentiary presumption arose for the trier of fact that the X rays were unfavorable to plaintiff’s case which entitled St. Mary to summary judgment.

St. Mary supported its motion with the affidavit of Patrick Bira, who was its assistant to the president and risk manager. Bira stated that Community Radiology and its doctors staffed the department of radiology but they were not employed by St. Mary. Dr. Ramulu was an employee of Community Radiology. Because plaintiff was treated at St. Mary when Community Radiology did not have doctors scheduled, Dr. Ramulu read and interpreted plaintiff’s X rays the following day after plaintiff was released. Further, Bira stated that no one employed by St. Mary diagnosed plaintiff’s condition based on the X rays. In addition to Bira’s affidavit, St. Mary relied on its answer, Dr. Ramulu’s deposition, a release plaintiff signed to obtain the X rays from St. Mary, and a letter; however, these documents were not included in the record on appeal.

The other defendants adopted St. Mary’s motion for summary judgment.

In opposition to the motion, plaintiff relied on testimony from his deposition and that of his treating doctor, Dr. Gitelis. Plaintiff testified that prior to his initial examination with Dr. Gitelis, he obtained the X rays from St. Mary and later brought them to Dr. Gitelis’ office for his appointment. That was the last time he saw the X rays. Dr. Gitelis testified that he did not recall seeing plaintiff’s X rays from St. Mary although it was his practice to request patients to bring their X rays to his office.

At Dr. Gitelis’ deposition, plaintiff’s attorney stated on the record that the doctor was not presented as plaintiff’s expert witness but rather as his treating doctor. Dr. Gitelis testified that he did know the standard of care for emergency room doctors and that he was not rendering an opinion as to the emergency room care given by Drs. Gonzalez, Chmiel, and Wilk at St. Mary. He further testified that he did not know the standard of care for radiologists and he did not have an opinion as to the care given by Dr. Ramulu of Community Radiology.

Gitelis testified that the X rays he took of plaintiff’s shoulder, taken approximately two weeks after plaintiff was examined at St. Mary, showed it was dislocated. He could not determine from those X rays when the shoulder was dislocated; however, in his opinion it was dislocated at the time plaintiff was examined at St. Mary. Dr. Gitelis also testified that it could have been dislocated one or two days later.

In Dr. Gitelis’ opinion, if an axillary lateral X-ray view of plaintiff’s shoulder was taken at St. Mary, it would have been identical to the one taken two weeks later by his office. Further, the dislocation would have been apparent on the X ray and the failure to diagnose it from the X ray was a deviation of the standard of care for any doctor. However, Dr. Gitelis did not know whether an axillary lateral view was taken at St. Mary and did not know whether a failure to take that view was a breach of the applicable standard of care.

The trial judge granted defendants’ motion for summary judgment, finding that without the X rays from St. Mary, plaintiff could not present expert testimony to support his allegations of medical malpractice. Plaintiff filed a timely notice of appeal.

Opinion

Summary judgment should be granted if the pleadings, depositions, and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) The trial court, when considering a motion for summary judgment, should not decide an issue of fact but only determine whether one exists. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 529 N.E.2d 552.) If, on review, the court finds that a genuine issue of material fact exists, summary judgment must be reversed. Addison, 124 Ill. 2d 287, 529 N.E.2d 552.

On appeal defendants do not argue, as they did in the trial court, that they were entitled to summary judgment because an evidentiary presumption arose when plaintiff lost the X rays taken at St. Mary. Instead, defendants argue that summary judgment was proper because plaintiff lost a necessary piece of evidence, relying on products liability cases where plaintiffs lost the product in question.

Defendants rely primarily on Loy v. Firestone Tire & Rubber Co. (1988), 168 Ill. App. 3d 503, 522 N.E.2d 848, where plaintiffs could not produce a ratchet wrench they alleged was defective. Defendant was granted summary judgment when it presented uncontradicted evidence that the wrench would not be available to an expert for examination and that any defect present when the accident occurred was not likely present when the wrench left defendant’s possession. The appellate court affirmed. The court found that plaintiffs did not meet their burden to present evidence in opposition to defendant’s motion for summary judgment that the wrench was defective when it left defendant’s control.

The obvious distinction between Loy and the present case is that Loy was a products liability action and this is an action for medical malpractice. The elements necessary to prove each cause of action are different and, therefore, Loy is not directly applicable here. Also, in Loy, plaintiffs’ allegation of negligence against defendant was based solely on the wrench. In this case, plaintiff’s allegations of negligence against St. Mary and Drs. Gonzalez, Chmiel, and Wilk included acts which did not focus on the X rays, such as St. Mary’s failure to provide competent personnel and the failure of Drs. Gonzalez, Chmiel, and Wilk to perform other tests. Only plaintiff’s allegations of negligence against Dr. Ramulu and Community Radiology focused exclusively on the X rays. Further, summary judgment was affirmed in Loy because the court found plaintiffs failed to meet their burden to present evidence to contradict defendant’s motion. In this case, the material presented in support of defendants’ motion for summary judgment does not warrant a similar holding.

Generally, subject to certain exceptions, a plaintiff must present expert testimony to prove medical malpractice. (Addison, 124 Ill. 2d 287, 529 N.E.2d 552.) Summary judgment in favor of a defendant in a medical malpractice action is proper if he presents uncontradicted evidence, by affidavit or otherwise, that he complied with the applicable standard of care. (Addison, 124 Ill. 2d 287, 529 N.E.2d 552.) However, if the defendant does not support his motion for summary judgment with evidentiary facts, the plaintiff may rely on his complaint to establish a genuine issue of fact. Smith v. St. Therese Hospital (1982), 106 Ill. App. 3d 268, 435 N.E.2d 939.

Defendants rely on cases which held that summary judgment for a defendant in a medical malpractice case is proper if plaintiff has not presented expert testimony to support the allegations of his complaint. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 529 N.E.2d 552; Smith v. South Shore Hospital (1989), 187 Ill. App. 3d 847, 543 N.E.2d 868; Gordon v. Nasr (1989), 182 Ill. App. 3d 964, 538 N.E.2d 843.) In each of those cases, unlike the present case, defendants supported their motions for summary judgment with evidence establishing that they complied with the applicable standard of care.

In this case, defendants did not support their motion for summary judgment with affidavits or other evidence showing that they complied with the standard of care. None of the doctors submitted affidavits and only Dr. Ramulu was deposed. His deposition was not included in the record on appeal. St. Mary relied on Bira’s affidavit who only stated that no doctor employed by St. Mary interpreted the X rays. However, as stated previously, plaintiff’s allegations of negligence against St. Mary and Drs. Gonzalez, Chmiel, and Wilk involve acts other than interpreting the X rays.

Without evidence that defendants complied with the standard of care, it was not necessary for plaintiff to present an expert witness that defendants deviated from the standard of care to oppose the motion for summary judgment. Summary judgment in defendants’ favor was improper because a question of fact existed as to whether they complied with the applicable standard of care.

Reversed and remanded.

MURRAY and GORDON, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD GRAY, Defendant-Appellant.
    First District (1st Division)
    No. 1-87-1337
    Opinion filed January 28, 1991.

      Alan D. Goldberg, of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Paula Carstensen and Catherine Bernard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After a jury trial, Donald Gray was found guilty of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 14(a)(1), (a)(3)) and he was sentenced to 30 years’ imprisonment. On appeal, Gray argues both that the trial court committed prejudicial evidentiary errors and that he was denied the right to confront the complaining witness.

Prior to trial, Gray filed a motion pursuant to the “rape-shield statute” (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 7) regarding the admissibility of evidence concerning the complainant’s past sexual conduct. Prior to the motion’s hearing, defense counsel stated that he expected the evidence to show that the complainant told two friends, Karen Hill and Lynette Drew, that she feared that she was pregnant by a man named Keith one week before the rape, hence establishing a motive for the complainant to falsely accuse Gray. At the hearing on the motion, Gray called Karen to testify. Karen, however, stated that the complainant never told her at anytime that she made up the charges against Gray because she feared that she was pregnant by Keith. Lynette also testified at the hearing and stated that in the summer of 1985 Keith told her that he was sleeping with the complainant, but that the complainant never told her that she feared being pregnant by Keith. The court ruled on the motion and stated that it would not permit questioning concerning the complainant’s alleged fear of pregnancy without a good-faith basis, but would allow testimony concerning the complainant’s relationship with Keith.

At trial, during the State’s case in chief, the complainant testified that the events at issue occurred on October 9, 1985, when she was 14 years old. The complainant stated that she knew 37-year-old Gray through her 16-year-old friend Karen because Karen was living with Gray. Further, the complainant testified that on October 9, 1985, she went to Gray’s apartment to look at some of Karen’s dresses; that when she got inside the apartment and discovered that Karen was not there, Gray approached her and told her that he liked her, wanted to be her sugar daddy, and buy her some clothes and things; and that when she told Gray that she did not like him, he ran towards her, pushed her onto the couch, and said that he wanted to perform cunnilingus on her.

Then, the complainant asserted that when she argued with Gray, he grabbed a gun and told her to pull down her pants, but she refused, and he pointed the gun at her forehead and threatened to “blow her fucking brains out” and to “throw her in Lake Michigan.” The complainant also testified that as she started to pull her pants down, Gray’s gun was next to him on the floor; that he helped her remove her pants; that Gray performed cunnilingus on her for five minutes; that Gray removed his own pants and tried to have intercourse with her while she was on the couch, but she pushed him off; that Gray, however, pushed her onto the floor; and that he put a pillow over her face and had sexual intercourse with her.

The complainant also testified that after intercourse she went into the washroom, fixed her clothes and brushed her hair; that when she came out of the bathroom, Gray had his gun in his hand and told her not to tell anyone or else he would kill her; that when they walked to the door, Gray told her to kiss him, which she did, and that she told him to look out the window when she left; that she left his apartment at about 3:45 p.m.; and that when Gray looked out his apartment window, she yelled that she was going to call the police and started running.

Additionally, the complainant asserted that as she ran towards her home, she saw her friend Ike; that Ike asked her what happened because she was shaking; that she told Ike that Gray “raped” her; that Ike walked her home and left her when she ran into her friend Sandra; that the complainant told Sandra what had happened; that subsequently, she went to Sandra’s house and talked to Sandra’s mother; that Sandra’s mother told the complainant to go home and call the police; that as Sandra and Sandra’s mother accompanied the complainant home, they ran into two of the complainant’s friends, Joann and Lynette; that Joann and Lynette asked the complainant what happened and when she did not answer because she was crying, Joann and Lynette asked if Gray “raped” her; and that the police subsequently took the complainant to a hospital for an examination, in which a swab sample was collected from her vagina.

During defense counsel’s cross-examination of the complainant, the trial court asked for an offer of proof regarding complainant’s alleged statements that the charges against Gray were not true and her motivation to lie. At this time, the defense counsel questioned the complainant outside the jury’s presence. During defense counsel’s questioning, the complainant testified that she told Karen that she thought she was pregnant by Keith in July of 1985; that her mother did not know that she was seeing Keith until the summer of 1985; and that when her mother saw her with Keith, she was punished. Then, when the assistant State’s Attorney questioned the complainant outside the jury’s presence, the complainant testified that after she told Karen that she thought she was pregnant, she had three menstrual cycles before Gray “raped” her.

After the complainant testified outside the jury’s presence, the trial court ruled:

“[T]he events of July of 1985 involving Keith *** is [sic] clearly covered by Section 115 — 7 ***. It reads in prosecutions for aggravated criminal sexual assault and other offenses the prior sexual activity of the alleged victim is inadmissible except as evidence concerning past sexual conduct of the alleged victim with the accused. That event involved somebody completely different than the defendant. It involved one Keith. It occurred in July of 1985. The witness has testified that she had menstrual periods after July of 1985, a number of them, so [she] was not under the impression that in October of 1985 that she was pregnant from any event in July of 1985 or any other event. *** So I see no connection at all between the events of July 1985 and Keith at this trial.”

Consequently, the trial court barred defense counsel from questioning the complainant about her fear of pregnancy by Keith.

Then, the State called a criminologist to testify. The criminologist testified that she observed the presence of sperm on the complainant’s vaginal swab sample; that she determined that Gray secretes the “H factor” in all of his bodily fluids; that she did not detect any “A,” “B,” or “H” activity in the complainant’s swab sample; that several factors can effect whether the “H factor” appears on the vaginal swab, such as the amount of material present on the swab, a time delay, or cleansing actions; and that, therefore, Gray could not be positively included or excluded as the sperm donor.

Additionally, the State called Joann to testify. Joann testified that she asked the complainant what happened because the complainant was crying, and that the complainant said that she was “raped,” and that the complainant said “that she went to Don’s [Gray’s] house for some clothes and she said that he raped her, he wouldn’t let her out.”

In the defense’s case in chief, Lynette testified that she saw the complainant on the day of the alleged sexual assault. During the State’s cross-examination of Lynette, the following exchange transpired.

“Q. [The complainant] told you that she had been raped, didn’t she?
A. Yes.
Q. And she told you she had been raped by Donald Gray. Is that right?
A. Yes.”

Additionally, during the defense’s case, defense counsel attempted to call Stephanie Noble as a witness, but the State asked for an offer of proof because it expected Stephanie to testify that the complainant told her that she was making up the charges out of fear that she was .pregnant. Consequently, Stephanie testified outside the jury’s presence and stated that the complainant told her that Gray had not raped her, and that she made up the complaint because she feared that she was pregnant by Keith. Further, Stephanie testified that the complainant asked her to “come to court for her about Donald [Gray].” After hearing Stephanie’s testimony, the court granted the State’s motion to bar Stephanie’s testimony because Gray’s attorney failed to lay a foundation for the prior inconsistent statement during the complainant’s cross-examination. Additionally, the trial court did not allow the complainant to be recalled because defense counsel’s failure to lay the foundation was “a matter of trial strategy.”

The defense also attempted to call Patricia Gray, Donald Gray’s sister. Again, the State objected to a defense witness and asked for a side-bar. At side-bar, the State summarized Patricia’s expected testimony and asserted that the defense counsel had not laid a foundation for her testimony. However, the trial court permitted Patricia to testify outside the presence of the jury. Patricia stated that she knew Karen Hill; that in mid-October of 1985, Karen came to her apartment; and that while Karen was in Patricia’s apartment, Patricia picked up her extension phone and overheard a telephone conversation between Karen and someone Karen named XXX (the complainant’s first name). Patricia testified that she heard XXX ask Karen to help her “lie on Donald.” Also, Patricia heard XXX say that “she had been out doing something she had no business doing and she had to save face with her mom, so she wanted Karen to say that Don raped her.” Additionally, Patricia testified that XXX said, “she thought she was pregnant, that she didn’t want to get in trouble with her mother, and, therefore, needed to go on with this lie.” Lastly, Patricia testified that she had never before heard XXX’s voice.

Thereafter, the court granted the State’s motion to bar Patricia’s testimony on the grounds that the defense counsel failed to lay a foundation with the complainant while she was on the stand. The trial court refused defense counsel’s request to recall the complainant so that a foundation could be laid. The court also noted that there was no showing that the complainant was involved in this telephone conversation.

At the conclusion of that day’s testimony, the defense counsel again asked leave to recall the complainant, but the request was denied. The motion was renewed and denied the following morning.

After closing arguments and jury instructions, the jury found Gray guilty of aggravated criminal sexual assault. Subsequently, Gray was sentenced to 30 years’ imprisonment.

For the reasons set forth below, we reverse Gray’s conviction and remand the case for a new trial.

Initially, Gray argues that the trial court abused its discretion by refusing to recall the complainant to lay a foundation for Stephanie’s and Patricia’s testimony, contending that its refusal was manifestly prejudicial because it would have corroborated his defense that the complainant falsely accused him, fearing that she was pregnant by another man. We agree. While the decision to recall a "witness is within the trial court’s discretion, it is error for the trial court to refuse a request when it appears that the denial was manifestly prejudicial to the defendant. (People v. Cobb (1983), 97 Ill. 2d 465, 479, 481, 455 N.E.2d 31; People v. Holmes (1982), 104 Ill. App. 3d 1049, 1053, 433 N.E.2d 1027; People v. Suerth (1981), 97 Ill. App. 3d 1005, 1013, 423 N.E.2d 1185; Apicella v. Mace (1977), 47 Ill. App. 3d 43, 47, 361 N.E.2d 756.) Gray established in his offer of proof that Stephanie’s and Patricia’s testimony was crucial to his defense that he did not “rape” the complainant, because their testimony would have provided the jury with a motive for the complainant to falsely accuse Gray.

Contrary to the State’s argument, we note that both Stephanie’s and Patricia’s testimony was otherwise admissible. In particular, we are not persuaded by the State’s argument that Patricia’s testimony regarding the overheard phone conversation lacked reliability because “Patricia did not recognize the declarant’s [XXX’s] voice” and that “there was absolutely no showing that the declarant was the complainant.” Gray correctly responded that the declarant’s identity was not hearsay because it could be established and authenticated by either direct or circumstantial evidence. (People v. Poe (1984), 121 Ill. App. 3d 457, 460, 459 N.E.2d 667; People v. Patten (1982), 105 Ill. App. 3d 892, 894-95, 435 N.E.2d 171; People v. Conway (1971), 3 Ill. App. 3d 69, 72, 278 N.E.2d 852; People v. Turner (1967), 82 Ill. App. 2d 10, 20.) Gray sufficiently corroborated the phone conversation’s relevancy and authenticated the speaker’s identity by the high probability tl it Karen Hill had only one friend that had the complainant’s first name, that was claiming that “Donald raped” her, and that thought that she was pregnant.

Additionally, after a proper foundation has been laid with the complainant, Patricia’s testimony may be admissible as substantive evidence of prior inconsistent statements under section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1), if all of the requirements stated therein are satisfied.

Section 115 — 10.1 provides, in pertinent part:

“In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement—
* * *
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and
* * *
(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding.” Ill. Rev. Stat. 1987, ch. 38, par. 115-10.1.

Even if Patricia’s testimony fails to satisfy each of the requirements contained in section 115 — 10.1 and therefore is not admissible as substantive evidence, it certainly would be admissible as a prior inconsistent statement for the purposes of impeachment, pursuant to section 115 — 10.1 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1). Section 115 — 10.1 states, in pertinent part, that “[njothing in this section shall render a prior inconsistent statement inadmissible for purposes of impeachment because such statement *** fails to meet the criteria set forth herein.” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1.) Additionally, Patricia’s testimony would be admissible as a prior inconsistent statement under Supreme Court Rule 238 (134 Ill. 2d R. 238). Accordingly, after a proper foundation has been laid, Patricia’s testimony regarding the complainant’s statements would be admissible if it conflicted with the complainant’s trial testimony. If Patricia’s testimony is offered for impeachment, it can “only be introduced for the light it shed on the witness’ credibility, and not for the purpose of proving the truth of the material contained in the statement.” People v. Winfield (1987), 160 Ill. App. 3d 983, 992, 513 N.E.2d 1032, appeal denied (1987), 117 Ill. 2d 552, 517 N.E.2d 1094.

We find that upon hearing Stephanie’s and Patricia’s testimony, the jury may have determined that their testimony directly contraverted the complainant’s testimony. This is significant because the complainant’s testimony was the only direct evidence of Gray’s guilt, and because it was uncontroverted that the circumstantial evidence was inconclusive. Consequently, if the jury believed Stephanie, or Patricia, or both, it could have determined that reasonable doubt existed about Gray’s guilt. Therefore, the trial court committed reversible error by refusing to recall the complainant to lay a foundation for Stephanie’s and Patricia’s testimony and, thereby, prevented Gray from presenting his defense. Accordingly, we conclude that this case must be remanded for a new trial.

We also address other issues because they are likely to come up again upon retrial.

We are persuaded by Gray’s argument that the trial court’s refusal to allow the complainant to be cross-examined about her alleged fear of pregnancy as a possible motive to falsely accuse Gray deprived him of his constitutional right to confront the witness against him. The Illinois Constitution provides: “In criminal prosecutions, the accused shall have the right *** to meet the witnesses face to face ***.” (Ill. Const. 1970, art. I, §8.) The United States Constitution, with provisions applicable to the States under the fourteenth amendment, similarly provides: “In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him ***.” (U.S. Const., amend. VI.) Moreover, the confrontation clause guarantees the right of cross-examination and that the right of cross-examination supersedes a statutory right granted a witness when the confrontation is both relevant and based on a showing of bias, prejudice or motive. Davis v. Alaska (1974), 415 U.S. 308, 316, 39 L. Ed. 2d 347, 353-54, 94 S. Ct. 1105, 1110; People v. Sandoval (1990), 135 Ill. 2d 159, 173-75, 552 N.E.2d 726, cert. denied (1990), 498 U.S__, 112 L. Ed. 2d 307, 111 S. Ct. 343.

Accordingly, while the express language of the Illinois rape shield statute (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 7) precludes the admission of evidence of the alleged victim’s prior sexual history and reputation, except when it concerns the past sexual conduct of the alleged victim with the accused, Gray’s right to confront the complainant through cross-examination about her fear of pregnancy by Keith must supersede the complainant’s statutory protection. The complainant’s statutory protection is superseded because, clearly, the proffered impeachment regarding her fear of being pregnant was both relevant and based upon a showing of the complainant’s motive to testify falsely in charging Gray.

However, we are not persuaded by Gray’s argument that admission of the complainant’s testimony regarding the statements she made to Sandra and Sandra’s mother was error, because the complainant’s testimony was admissible as a prompt complaint. While the testimony of a witness cannot be bolstered by showing that she made similar statements out of court, the complainant in sexual assault cases can show that she made a prompt complaint of the incident. (People v. Evans (1988), 173 Ill. App. 3d 186, 199, 527 N.E.2d 448.) “The reasoning underlying the exception is that it is entirely natural that the victim of a forcible sexual assault would speak out regarding it and, conversely, that the failure to do so would, in effect, be evidence that nothing violent had occurred.” In such cases, the prompt complaint is used to corroborate the complainant’s testimony. (Evans, 173 Ill. App. 3d at 199.) Since the sole purpose of the exception is to rebut any presumption which might arise from the complainant’s silence, only the fact of the complaint is admissible; neither the details of the complaint nor the identity of the named perpetrator is admissible. (Evans, 173 Ill. App. 3d at 199-200; People v. Russell (1988), 177 Ill. App. 3d 40, 46-47, 531 N.E.2d 1099; People v. Damen (1963), 28 Ill. 2d 464, 473, 193 N.E.2d 25.) The complainant’s testimony that she “told Sandra what happened” and “that she talked with Sandra’s mother and that Sandra’s mother told her to go home and call the police” was admissible because she did not testify to any details of the alleged sexual assault or identify the alleged perpetrator.

However, Gray correctly argues that (1) the complainant’s testimony (a) that she told Ike that Gray “raped” her; (b) that Lynette and Joann asked her what happened and then asked if Gray “raped” her; and (c) that the complainant asked Lynette and Joann how they knew; and (2) Lynette’s and Joann’s testimony that the vietim said she was raped by Gray, exceeded that which is admissible as prompt complaints and unduly bolstered the complainant’s testimony. The complainant’s statements were inadmissible as prompt complaints because they contained Gray’s name, and because of the suggestive nature of the questions that elicited the complainant’s affirmation that Gray “raped” her. (People v. Russell (1988), 177 Ill. App. 3d 40, 46-47.) For the same reasons, we conclude that Lynette’s and Joann’s testimony regarding the same conversation does not qualify as a prompt complaint. We also reject the State’s claim that Joann’s and Lynette’s testimony regarding the complainant’s statements that Gray “raped” her was admissible under the excited or spontaneous utterance exception to the hearsay rule. Whether or not such statement qualified as an excited utterance, it is nevertheless inadmissible because it improperly bolsters the complainant’s testimony. It is plain error to bolster the complainant’s credibility by repeating her story which has a single source, the complainant. (See People v. Russell (1988), 177 Ill. App. 3d 40, 46, 531 N.E.2d 1099; People v. Brown (1988), 170 Ill. App. 3d 273, 283, 524 N.E.2d 742; People v. Smith (1985), 139 Ill. App. 3d 21, 32-34, 486 N.E.2d 1347; People v. Sanders (1978), 59 Ill. App. 3d 650, 654, 375 N.E.2d 921.) Improperly bolstering a witness’ credibility “has been deemed plain error because corroboration by repetition ‘preys on the human failing of placing belief in that which is most often repeated.’ ” (People v. Smith (1985), 139 Ill. App. 3d 21, 32, 486 N.E.2d 1347, quoting People v. Hudson (1980), 86 Ill. App. 3d 335, 340, 408 N.E.2d 325.) However, if the following two exceptions exist, prior consistent statements may be admitted to rebut (1) a recent charge of fabrication; or (2) a contention that the witness has a positive motive to testify falsely. (People v. Tidwell (1980), 88 Ill. App. 3d 808, 810-11, 410 N.E.2d 1163; People v. Hudson (1980), 86 Ill. App. 3d 335, 339, 408 N.E.2d 325.) In the second exception, it must be shown that the presently imputed motive did not exist at the time of the prior statement. (Tidwell, 88 Ill. App. 3d at 810-11.) We, therefore, conclude that the complainant’s prior consistent statements were not admissible because they unduly bolstered the complainant’s credibility and did not qualify as an exception to the rule. We find that if a motive existed, which is a question to be determined by the trier of fact, it existed prior to her declarations to Ike, Lynette, and Joann.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the case is remanded for a new trial.

Reversed and remanded.

CAMPBELL and BUCKLEY, JJ, concur.

      We note too that Patricia’s testimony was not deemed inadmissible pursuant to the eavesdropping statute (Ill. Rev. Stat. 1987, ch. 38. par. 14 — 5) because listening to a telephone conversation on an unalterated extension phone is not an eavesdropping device. Ill. Rev. Stat. 1987, ch. 38, par. 14 — 1(a); People v. Gervasi (1982), 89 Ill. 2d 522, 526, 434 N.E.2d 1112; People v. Gaines (1981), 88 Ill. 2d 342, 363, 430 N.E.2d 1046 cert. denied (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2285.


text:
    RICHARD G. FALATO, Plaintiff-Appellant, v. TEACHERS’ RETIREMENT SYSTEMS OF THE STATE OF ILLINOIS, Defendant-Appellee.
    First District (1st Division)
    No. 1-88-3493
    Opinion filed January 28, 1991.

      David S. Morris and Frederick J. Sentman, both of Chicago, for appellant.
    Winston & Strawn, of Chicago (Stephen S. Morrill, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Richard G. Falato appeals from a judgment of the circuit court of Cook County which affirmed the Teachers’ Retirement System of the State of Illinois’ (the TRS’) decision denying pension service credit for the 1962-65 school years when Falato was employed by a private corporation.

At the administrative hearing, Falato, appearing pro se, and the TRS staff, represented by counsel, presented the following as agreed facts: (1) that during the 1962-63, 1963-64 and 1964-65 school years, Falato was employed by Music Educational Services, Inc. (MESI), a private corporation; (2) that for those school years, he was assigned to the Midlothian Elementary Public School District 143 (the District) in Midlothian, Illinois, and worked full time as the director of the school’s band program; and (3) that Falato was a certified teacher during those school years.

Additionally, Falato and the TRS provided the following statutes to the board as the applicable law. The first statutory provision was section 16 — 106(1) of the Illinois Pension Code (Ill. Rev. Stat. 1987, ch. 108½, par. 16 — 106(1)), which states:

“Teacher. ‘Teacher’: The following individuals, provided they are employed on a full-time basis, or if not full-time, on a permanent and continuous basis in a position in which services are expected to be rendered for at least one school term:
(1) Any educational, administrative, professional or other staff employed in the public common schools included within this system in a position requiring certification under the law governing the certification of teachers.” (Ill. Rev. Stat. 1987, ch. 108½, par. 16-106(1).)

Also section 16 — 127(a)(3) (Ill. Rev. Stat. 1987, ch. 108½, par. 16— 127(a)(3)) was provided, which states:

“Creditable service — computation of credits.
(a) The following periods of service shall be considered creditable service, and each member shall receive credit for all such service for which satisfactory evidence is supplied, as of the dates specified:
* * *
(3) Service in a capacity essentially similar or equivalent to that of a teacher, in the public common schools in school districts in this State not included within the provisions of this system, or of any other State, territory, dependency or possession of the United States, or in schools operated by or under the auspices of the United States, or under the auspices of any agency or department of any other State, and service during any period of professional speech correction or special education experience for a public agency on a full or part-time basis within this State or any other State, territory, dependency or possession of the United States, for a period not exceeding the lesser of 2/s of the total creditable service of the member or 10 years ***.” (Ill. Rev. Stat. 1987, ch. 108½, par. 16-127(a)(3).)

Further, Falato submitted two letters for the TRS Board to consider at the administrative hearing. The first letter was written by the ME SI president, which stated that Falato was employed as a music teacher by ME SI during the 1962-65 school years; that pursuant to a MESI/District 143 contract, he was assigned to the District; and that Falato worked full time as the District’s band program director. The second letter was written by the District’s superintendent, which stated that during the relevant time, Falato was not on the District’s payroll but that Falato worked full time as the District’s music teacher from 1962-65.

At the administrative hearing, Falato contended that he should be granted credit for 1962-65 because he was a certified teacher working in the public common schools. He stated that he felt that it was a mere technicality that he was not working directly for the district but rather that the school board paid the association and that the association paid him; that the rules can be bent a little; that as teachers, they need to look out for each other; that he would like credit for the three years because it would help him financially; and that ME SI contributed on his behalf to social security. Moreover, Falato admitted that he understood, according to the law, that he would not get service credit; that he was asking the TRS Board to “bend the law”; and that he knew what the law was, but as teachers they had to help each other.

The TRS’ position was that employment as a teacher through a private corporation has never been creditable with the system, and that TRS service credit is attained by a member who is employed to provide teaching services by a public school or State agency.

Subsequently, the TRS Board issued its administrative decision denying Falato service credit because Falato was not a “teacher” according to statute.

Thereafter, Falato sought administrative review in the circuit court of Cook County. In the circuit court, Falato’s attorney argued that the TRS Board applied an erroneous statutory definition of “teacher.” Falato’s attorney contended that section 16 — 106(a) (Ill. Rev. Stat. 1963, ch. 108½, par. 16 — 106(a)) should have been applied, which states:

“Any teacher, teacher-secretary, substitute teacher, supervisor, principal, supervising principal, superintendent or assistant superintendent, business manager, school nurse, or librarian who teaches or is employed in the public common schools included within this system on a full-time basis and who is certified under the law governing the certification of teachers ***.” (Ill. Rev. Stat. 1963, ch. 108½, par. 16-106(a).)

After hearing the parties’ arguments, the trial court affirmed the judgment of the TRS Board denying Falato service credit for 1962-65. Falato appeals.

For the reasons set forth below, we affirm the judgment of the circuit court.

Under the Administrative Review Act (Act), the circuit court has the power to review any final administrative decision and to consider all questions of law and fact presented by the entire record before the court. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) The Act also provides that the circuit court has the authority to “affirm or reverse the decision [of the administrative agency] in whole or in part.” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 111(a)(5).) It is well settled in Illinois that the decision of an administrative agency will only be reversed if it is legally erroneous or factually against the manifest weight of the evidence. (Saipe v. Public School Teachers’ Pension & Retirement Fund (1986), 144 Ill. App. 3d 735, 738, 494 N.E.2d 664.) Falato argues that the TRS Board’s and the circuit court’s decisions were legally erroneous. In particular, Falato contends that the applicable definition of “teacher” for purposes of service credit eligibility included him during the 1962-65 school years.

Our analysis begins with an examination of the relevant laws in effect during the 1962-65 school years. For the 1962-63 school year, laws relating to teachers’ pension eligibility were contained in section 25 of the School Code. (Ill. Rev. Stat. 1961, ch. 122, par. 1 et seq.) The applicable definition of “teacher” stated:

“ ‘Teacher’ means any teacher, teacher-secretary, substitute teacher, supervisor, principal, supervising principal, superintendent or assistant superintendent, business manager, school nurse, or librarian who teaches or is employed in the public common schools in school districts included within the provisions of this retirement system on a full-time basis and who is certified under the law governing the certification of teachers ***.” (Emphasis added.) Ill. Rev. Stat. 1961, ch. 122, par. 25— 4.

In 1963, section 25 of the School Code was repealed by section 23 of the Illinois Pension Code (Ill. Rev. Stat. 1963, ch. 108½, pars. 23 — 101, 23 — 102). However, the definition of “teacher” originally contained in section 25 of the School Code was recodified verbatim in section 16 — 106(a) of the Illinois Pension Code (Ill. Rev. Stat. 1963, ch. 108½, par. 16 — 106(a)). In recodifying the definition of “teacher” and other provisions originally contained in the School Code, the Illinois Pension Code expressly stated that it “shall grant no lesser or greater rights, credits, equities, pensions or other benefits than existed under such Acts or parts of Acts so repealed and incorporated *** except as they may be changed hereafter by specific amendment to this Code.” (Ill. Rev. Stat. 1963, ch. 108½, par. 23— 101.) Therefore, whatever “teacher” meant under the School Code, its meaning was not altered by its recodification in the Illinois Pension Code.

Falato argues that “teacher” as defined in the Illinois Pension Code (and, by implication, in the School Code) includes any certified teacher who teaches in Illinois public common schools, whether or not such teacher is actually employed by an Illinois school district. Falato bases his interpretation on the use of the words “teaches or is employed in the public common schools,” asserting that the implication created therefrom is that only one of the two criteria need be met, i.e., that a teacher need only teach in or be employed in the public common schools. Since Falato taught in public common schools, he argues that he need not have also been an employee of the public common schools. On the basis of this interpretation, Falato contends that he is entitled to service credit for the 1962-65 school years, even though he was in fact an employee of and compensated by ME SI, rather than the school district.

We disagree with Falato’s interpretation of section 25 of the School Code and section 16 — 106(a) of the Illinois Pension Code. While the language of section 25 of the School Code and section 16 — 106(a) of the Illinois Pension Code is arguably ambiguous, we find that use of the words “teaches or is employed by” was not, as Falato contends, intended to distinguish between teachers who are employees in the public common schools and teachers who are not employees but who nevertheless render teaching services in the public schools. Rather, such words were intended to distinguish between persons rendering actual teaching services and certain other persons (such as principals, librarians, school nurses, etc.) who, while not “teachers” in the traditional sense, nevertheless were to be accorded similar rights under the Pension Code.

In any event, the foregoing ambiguity was expressly and retroactively resolved by the Hlinois legislature in 1984 when it amended the Illinois Pension Code. As amended, section 16 — 106(1) (which replaces section 16 — 106(a) of the Illinois Pension Code) defines “teacher” to include “any educational, administrative, professional or other staff employed in the public common schools included within this system in a position requiring certification under the law governing the certification of teachers.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 108½, par. 16 — 106(1).) Therefore, under the revised definition, an individual must actually be employed in the public common school system in order to qualify as a “teacher” and, therefore, to be eligible for service credit.

Asa general matter, “[without an express statutory provision stating an act is to have retroactive effect, it can only be applied prospectively.” (Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill. 2d 1, 18, 426 N.E.2d 824.) However, where an amendment merely clarifies existing law, the foregoing proposition does not apply, and the amendment applies retroactively. (Continental Illinois National Bank & Trust Company v. Lenckos (1984), 102 Ill. 2d 210, 220, 464 N.E.2d 1064, cert. denied (1984), 469 U.S. 918, 83 L. Ed. 2d 231, 105 S. Ct. 296; see also Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 309-10, 522 N.E.2d 1195, cert. denied (1988), 488 U.S. 909, 102 L. Ed. 2d 250, 109 S. Ct. 262.) The legislative history of the 1984 House Bill amending the Illinois Pension Code clearly manifests the legislature’s intention that the changes “makes [sic] numerous clarifying and simplifying and other technical changes and removes obsolete material” and that “the Bill contains no substantive changes.” (Emphasis added.) (83rd Ill. Gen. Assem., House Proceedings, May 18, 1984, at 2-3 (Statements of Representative Terzich).) While the legislative history is not determinative, it nevertheless may support a finding of retroactivity. See Lenckos, 102 Ill. 2d at 220.

On the basis of both the legislative history and our review of the various definitions of “teacher” contained in the School Code, the Illinois Pension Code and the 1984 House Bill, we find that the 1984 amendment to section 16 — 106(a) of the Illinois Pension Code was merely a clarification of the definition of “teacher” and therefore applied retroactively. Accordingly, since Falato was not employed by the school district during the relevant period, he was not entitled to service credit for such period.

Consequently, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MANNING, PJ., and CAMPBELL, J., concur.


author: JUSTICE CAMPBELL

text:
    A.B. HABIGHURST, Plaintiff-Appellant, v. THE EDLONG CORPORATION et al., Defendants-Appellees.
    First District (1st Division)
    No. 1-89-0398
    Opinion filed January 28, 1991.

      Lonny Ben Ogus, of Chicago, for appellant.
    Hoogendoorn, Talbot, Davids, Godfrey & Milligan, of Chicago (James A. Davids and Bruce J. Van Heukelem, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, A.B. Habighurst, appeals an order of the circuit court of Cook County dismissing his claim against defendant Edlong for breach of contract.

Plaintiff was hired as an employee of defendant in 1979. In the course of his employment, plaintiff received an employee handbook. The record indicates that the handbook contains the following statements:

“This handbook does not guarantee employment security or benefits.
* * *
We realize that situations arise which may compel separation of employment; and we want you to realize that the employment relationship may be terminated at-will by yourself or the Company, typically as follows ***.”

The final page of the handbook, which is detachable, so that it may be signed by an employee and returned to defendant, provides:

“I have received an employee handbook and understand the personnel policies of The Edlong Corporation. I further acknowledge that this information is not to be regarded as a contract and does not guarantee specific benefits because Company policies and benefits may change.”

On January 15, 1986, plaintiff read the handbook and signed the final page of the manual. Plaintiff then continued to work for defendant until he was discharged in June 1986.

On February 6, 1987, plaintiff filed a five-count complaint against defendant in the circuit court of Cook County, alleging: (I) wrongful discharge from an oral employment contract; (II) interference with contractual relations; (III) libel; (IV) slander; and (V) intentional infliction of emotional distress. The court granted defendant’s motion to dismiss counts I, II and V. Plaintiff was granted leave to amend counts II and V, but moved instead for a rehearing on the motion to dismiss the wrongful discharge claim and to amend count I of his complaint. The trial court denied plaintiff leave to file his proposed amended complaint of wrongful discharge, but allowed plaintiff to file a second amended complaint on count I.

The trial court granted defendant’s motion to dismiss count I of the second amended complaint, which alleged wrongful discharge, on October 19, 1988. Counts III and IV of the complaint, which alleged libel and slander, were dismissed on January 4, 1989; plaintiff’s timely appeal followed.

Initially, we note that plaintiff’s notice of appeal purports to seek review of the dismissal of the counts alleging wrongful discharge, libel and slander. However, plaintiff did not raise any issues as to Counts III and IV in his brief, thus waiving the libel and slander claims on appeal. E.g., Batteast v. Argonaut Insurance Co. (1983), 118 Ill. App. 3d 4, 454 N.E.2d 706.

Thus, the sole issue on appeal is whether the trial court erred in dismissing plaintiff’s claim of wrongful discharge. Plaintiff contends that he may maintain a claim of wrongful discharge because a reasonable person could believe that the employee handbook constituted a contractual offer. On appeal, this court may affirm the dismissal of the claim on any legally valid basis which appears in the record. Natural Gas Pipeline Co. of America v. Phillips Petroleum Co. (1987), 163 Ill. App. 3d 136, 142, 516 N.E.2d 527, 531.

Generally, an employment relationship of indefinite duration is terminable “at will” by either party with or without cause. (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 489, 505 N.E.2d 314, 317; Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 128, 421 N.E.2d 876, 878.) This rule, however, merely creates a presumption which can be overcome by demonstrating that the parties contracted to the contrary. (Duldulao, 115 Ill. 2d at 489, 505 N.E.2d at 318.) In Duldulao, our supreme court recognized:

“[A]n employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.

The handbook at issue in Duldulao contained no disclaimer; indeed, the court noted:

“[T]he handbook contains no disclaimers to negate the promises made. In fact, the introduction to the handbook states just the opposite, that the policies in the handbook ‘are designed to clarify your rights and duties as employees.’ ” (Emphasis added in opinion.) (Duldulao, 115 Ill. 2d at 491, 505 N.E.2d at 319.)

The three-pronged test for contract formation set forth in Duldulao is equally applicable where disclaiming language is at issue. Anders v. Mobil Chemical Co. (1990), 201 Ill. App. 3d 1088, 1095, 559 N.E.2d 1119, 1122.

The weight of authority in this State has held the existence of disclaiming language in an employee handbook to preclude the formation of a contract. (See Anders, 201 Ill. App. 3d 1088, 559 N.E.2d 1119; Hogge v. Champion Laboratories, Inc. (1989), 190 Ill. App. 3d 620, 546 N.E.2d 1025; Bennett v. Evanston Hospital (1989), 184 Ill. App. 3d 1030, 540 N.E.2d 979; Moore v. Illinois Bell Telephone Co. (1987), 155 Ill. App. 3d 781, 508 N.E.2d 519, appeal denied (1987), 116 Ill. 2d 562, 515 N.E.2d 112.) For example, in Anders, this court refused to hold the employee manual to be a contract where a disclaimer appeared in the front of the manual, even though the manual provided for general disciplinary procedures and listed specific acts of punishable misconduct. See Anders, 201 Ill. App. 3d at 1091, 559 N.E.2d at 1123.

The record in this case indicates that the handbook at issue contained a number of statements which appear to negate any offer of employment other than the traditional employment “at will.” Thus, it would appear that plaintiff has failed to show that the trial court erred in dismissing his claim, based on the facts and circumstances of this case.

Occasionally, courts applying Illinois law have concluded that a handbook may become a contract despite the presence of disclaimers. (E.g., Perman v. ArcVentures, Inc. (1990), 196 Ill. App. 3d 758, 554 N.E.2d 982; Seehawer v. Magnecraft Electric Co. (N.D. Ill. 1989), 714 F. Supp. 910.) These cases are distinguishable from the instant appeal.

For example, in Perman, this court denied summary judgment on the issue of whether a disclaimer precluded a reasonable person from believing the policy manual to be an offer. The disclaimer in that case, however, was “not set off from the rest of the text, printed in capital letters or titled.” (Perman, 196 Ill. App. 3d at 764, 554 N.E.2d at 987.) Moreover, the manual in Perman provided that “ ‘discharges must be approved in advance by the director of employee relations or designees, and are subject to employee appeal through established grievance procedures.’ (Emphasis added.)” and that it was the “ ‘policy of the Medical Center to assure every employee the right of appeal, through an established grievance procedure from an unfavorable decision affecting his employment.’ (Emphasis added.)” Perman, 196 Ill. App. 3d at 765, 554 N.E.2d at 985.

In the instant appeal, by contrast, the record shows that one of the disclaimers appeared on the final page of the handbook, which was signed, detached and understood by plaintiff. Furthermore, plaintiff has failed to point to statements in his handbook which may constitute clear promises analogous to those in the Perman manual. The record indicates, and plaintiff notes, that the handbook here contemplated that separation of employment might take place by resignation, retirement, mutual agreement or dismissal; company rules which might form the basis of employee discipline were enumerated. However, similar statements and rules did not constitute the sort of clear promise necessary to survive a motion to dismiss in Harrell v. Montgomery Ward & Co. (1989), 189 Ill. App. 3d 516, 518, 545 N.E.2d 373, 377. Plaintiff also notes that the handbook at issue here refers to “progressive disciplinary action.” Yet the record fails to indicate any provision in the handbook for specific disciplinary procedures of the" type which has been required for establishing a clear promise in prior cases. See Tolbert v. Saint Francis Extended Care Center (1989), 189 Ill. App. 3d 503, 506-07, 545 N.E.2d 384, 386 (discussing Doe v. First National Bank (7th Cir. 1989), 865 F.2d 864).

In Seehawer, plaintiff was given an employee manual which provided, in relevant part, that “jejmployees shall be discharged or disciplined only for just cause.” (Seehawer, 714 F. Supp. at 912.) Shortly after defendants issued the manual, plaintiff signed an employee statement, which provided that “my employment and compensation can be terminated, with or without cause and notice, at any time, at the option of the Company or myself” and further provided that the president and vice-president of the defendant company had the sole authority to enter any agreement to the contrary. Seehawer, 714 F. Supp. at 912.

Defendants fired plaintiff, who then brought an action which included a breach of contract claim. The trial court denied defendants’ motion for summary judgment on the contract claim, reasoning that the seemingly inconsistent language in the manual and the disclaimer in the employee statement precluded summary judgment for two reasons. First, the court noted that the issuance of the manual could be viewed as an exercise of the president’s or vice-president’s authority to bind the company to more than “at will” employment. (Seehawer, 714 F. Supp. at 914-15.) The court also stated that “to the extent that the provisions are irreconcilable on their face, the clarification of ambiguities in contractual provisions is a matter best left to the trier of fact.” Seehawer, 714 F. Supp. at 915.

Although factually similar in some respects, Seehawer is distinguishable from the instant appeal. Plaintiff has not pointed to any language in his handbook giving any official of defendant the ability to make agreements contrary to an “at will” policy. Without such language, the Seehawer court’s rule is inapposite, because it concerns the interpretation of a contract as a question of fact. By contrast, the existence of a contract is a question of law for determination by the court. Bank of Benton v. Cogdill (1983), 118 Ill. App. 3d 280, 454 N.E.2d 1120.

Finally, plaintiff cites Mitchell v. Jewel Food Stores (1989), 189 Ill. App. 3d 450, 545 N.E.2d 337, rev’d (1990), 142 Ill. 2d 152. Mitchell, however, did not involve the use of disclaiming language in an employee manual. Moreover, the opinion in Mitchell quotes language from the manual indicating that the employee could not be fired without just cause (Mitchell, 142 Ill. 2d at 156-57); plaintiff has not pointed to such a promise in the manual at issue in this case.

Consequently, plaintiff has failed to demonstrate that the language of his employee handbook contained a promise clear enough that a reasonable person would consider the handbook to constitute a binding contract. Plaintiff has therefore failed to show that the trial court erred in dismissing his claim of wrongful discharge. For the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE BUCKLEY

text:
    ALBANY PARK SERVICE, INC., et al., Plaintiffs-Appellees, v. KENNY-PASHEN JOINT VENTURE et al., Defendants-Appellants.
    First District (1st Division)
    No. 1-89-3029
    Opinion filed January 28, 1991.

      Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Nancy Jo Arnold and Michael J. Gibbons, of counsel), for appellants.
    Michael Schaffner & Associates, of Chicago (Fred Rabinowitz, of counsel), for appellees.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Defendants Kenny-Pashen Joint Venture and Kenny Construction Company appeal from a judgment of the circuit court of Cook County in the sum of $87,375 entered on a jury verdict in favor of plaintiffs Albany Park Service, Incorporated (Albany Incorporated), and the Mark Marszlak & Andrew Marszlak Partnership (the Marszlak partnership). Defendants contend on appeal that the circuit court lacked statutory authority to permit Albany Incorporated to amend its complaint during the course of trial in order to add the Marszlak partnership as a plaintiff to the suit. For the reasons that follow, we affirm.

On October 15, 1980, Albany Incorporated filed a complaint against the Kenny-Pashen Joint Venture and the Kenny Construction Company. In that complaint, Albany Incorporated asserted that it “owned and operated” a service station which sustained property damage and loss of revenue as a result of defendants’ negligent blasting activities.

The case proceeded to trial on May 5, 1989. During trial, the testimony revealed that Albany Incorporated’s complaint contained an important factual inaccuracy: Albany Incorporated did not own the service-station building. Rather, Albany Incorporated only operated the service-station business as a lessee under an oral lease with the building’s owner, the Mark Marszlak & Andrew Marszlak Partnership.

After Albany Incorporated rested its case, defendants presented a motion for a partial directed verdict. This motion sought direction of a verdict insofar as the lessee, Albany Incorporated, sought damages for structural repairs to the service-station building as opposed to lost income to the service-station business. Defendants asserted that, in light of the testimony that Albany Incorporated did not own the building upon which the property damage claim was based, it was not the real party in interest with respect to that claim. Defendants asserted that as a result, they were entitled to a directed verdict as to that claim.

In response, Albany Incorporated filed a motion for leave of court to amend its complaint in order to add the Marszlak partnership as a plaintiff so that the partnership could recover for the alleged damages to the building. As authority for its motion, Albany Incorporated cited sections 2 — 616(a) and (c) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 616(a), (c)) for the proposition that those sections provided the court with authority to allow the amendment. Defendants responded to Albany Incorporated’s motion by contending that no statutory authority allowed the court to permit the requested amendment and, further, the statute of limitations precluded the Marszlak partnership from asserting the now time-barred claim for property damage to its building.

The circuit court ruled that it had discretion under section 2 — 616 to permit the amendment and that no prejudice to defendants would result from allowing the case to so proceed. Accordingly, the circuit court permitted Albany Incorporated to file an amended complaint and then declared “moot” defendants’ motion for a partial directed verdict.

Amendments to pleadings are governed by section 2 — 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616). Paragraph (a) of that section establishes the basic authority to amend. It provides:

“(a) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing any party, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross claim.” Ill. Rev. Stat. 1987, ch. 110, par. 2-616(a).

As expressed above, section 2 — 616(a) is very general and permits amendments as to any matter of form or substance in any pleading, including, as pertinent here, the introduction of any party who ought to have been joined as a plaintiff. It applies to all amendments prior to judgment, with the added qualification that amendments to conform the pleadings to the proof (Ill. Rev. Stat. 1987, ch. 110, par. 2— 616(c)), and amendments after the statute of limitations has expired (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 616(b), (d)), must satisfy the additional requirements set forth in those sections. (Simmons v. Hendricks (1965), 32 Ill. 2d 489, 495-96, 207 N.E.2d 440, 444; 3 R. Michael, Illinois Practice, §26.2, at 449 (1989) (hereinafter Illinois Practice).) In other words, while section 2 — 616(a) specifies broadly the types of amendments which are permissible, an amendment made after the passing of an applicable limitations period must be made pursuant to one of the other paragraphs of section 2 — 616. See Simmons, 32 Ill. 2d at 496, 207 N.E.2d at 444; Metropolitan Trust Co. v. Bowman Dairy Co. (1938), 369 Ill. 222, 15 N.E.2d 838; Illinois Practice, §26.4, at 461.

Sections 2 — 616(b) and (d) address situations where an amendment to a cause of action is sought after the applicable statute of limitations has passed. Of these two provisions, only section 2 — 616(b) is applicable here; section 2 — 616(d) applies only where the party seeking the amendment is attempting to join a new defendant as opposed to a new plaintiff. (See generally Dunavan v. Heritage House Nursing Home (1984), 121 Ill. App. 3d 813, 460 N.E.2d 75; Illinois Practice, §26.5.) Consequently, we focus on section 2 — 616(b), which provides:

“(b) The cause of action, cross claim or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, *** grew out of the same transaction or occurrence set up in the original pleading, *** and for the purpose of preserving the cause of action, cross claim or defense set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.” Ill. Rev. Stat. 1987, ch. 110, par. 2— 616(b).

As expressed above, section 2 — 616(b) allows a cause of action, cross-claim or defense that could have been properly alleged in the original complaint to be asserted after the expiration of the limitation period if two conditions are satisfied: (1) the original pleading was timely filed, and (2) the new matter arises out of the same transaction or occurrence set up in the original pleading. (Zeh v. Wheeler (1986), 111 Ill. 2d 266, 270-71, 489 N.E.2d 1342, 1344.) This provision does not authorize the amendment itself, but rather prevents an amendment otherwise authorized under section 2 — 616(a) from being time barred. (Illinois Practice, §26.4, at 460.) Its purpose is to insure fairness to the litigants rather than unduly enhance the technical considerations of common-law pleadings. (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 124-25, 302 N.E.2d 64, 66.) Significantly, and contrary to defendants’ assertion in this case, section 2 — 616(b) has been applied to permit the adding or substitution of plaintiffs despite the passing of an applicable limitation period. Halberstadt, 55 Ill. 2d 121, 302 N.E.2d 64; Simmons v. Hendricks (1965), 32 Ill. 2d 489, 207 N.E.2d 440; Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill. 2d 273, 122 N.E.2d 540; Joyce v. Wilner (1987), 156 Ill. App. 3d 702, 509 N.E.2d 769; Stringer v. Estate of Jasaitis (1986), 146 Ill. App. 3d 270, 496 N.E.2d 1196; Pavlov v. Konwall (1983), 113 Ill. App. 3d 576, 447 N.E.2d 982; Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 382 N.E.2d 95; Pleasant v. Certified Grocers of Illinois, Inc. (1976), 39 Ill. App. 3d 83, 350 N.E.2d 65.

Section 2 — 616(c) is the final provision relevant to this appeal. It provides: “A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon such terms as to costs and continuance that may be just.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(c).) As the statute provides, a section 2 — 616(c) amendment may be made before or after judgment and is the only motion to amend a pleading that can be made after judgment. (Powers v. National Mirror Works (1977), 52 Ill. App. 3d 592, 367 N.E.2d 763; Illinois Practice, §26.6, at 476.) In addition, like other amendments to pleadings, a motion to amend to conform the pleadings to the proof lies in the discretion of the trial court and is reviewable only for an abuse of that discretion. McGlaughlin v. Pickerel (1943), 381 Ill. 574, 46 N.E.2d 368.

In this case, section 2 — 616 permitted the circuit court to allow Albany Incorporated to amend its complaint in order to add the Marszlak partnership as a party plaintiff. Authority for the amendment was provided in sections 2 — 616(a), (b) and (c), with section 2— 616(a) authorizing the addition of a new plaintiff, section 2 — 616(b) authorizing the assertion of a time-barred claim, and section 2—616(c) allowing the pleadings to conform to the proof.

Turning to the merits of the amendment under section 2— 616, we believe the amendment met the requirements of section 2— 616. In this regard, the record reflects that the initial complaint was timely filed. The record further reflects that the property damage cause of action set forth in the amended complaint grew out of the same transaction or occurrence as that set up in the original complaint. At most, the amended complaint changed only the party asserting the cause of action; the theory and defendants remained the same.

In addition, we note that the “change” brought forth by the amended complaint was one of “form” rather than “substance.” This is an important distinction for purposes of determining whether the circuit court abused its discretion in permitting the amendment. We recognize that plaintiffs are to be charged with knowing who owned the service-station premises. However, it is clear from the record that the parties’ counsel either knew this fact or believed it unimportant to the proceedings. Indeed, the trial centered on the amount of damages, not who sustained them.

Moreover, defendants’ discovery in this matter revealed long before trial that the “real” injured parties in this case were the two Marszlak brothers. Discovery revealed long ago that the exclusive shareholders and officers of Albany Incorporated were the two brothers. It further revealed that the two brothers were the sole partners of the Marszlak partnership. Defendants also knew or should have known long ago that a relationship existed between Albany Incorporated and the Marszlak partnership regarding the subject property. The tax returns for those entities revealed that while Albany Incorporated was deducting rental payments for the property from its gross income, the Marszlak partnership was including the same. These returns also showed that Albany Incorporated took as deductions from its return the bills it incurred in repairing the service station. Thus, while defendants may not have known prior to trial that Albany Incorporated was not the “real parties in interest” for purposes of legal recovery, they were certainly aware that, for purposes of everyday business life, Albany Incorporated and the Marszlak partnership were the alter egos of the two Marszlak brothers.

Accordingly, we believe that the circuit court acted properly in permitting the amendment. Defendants knew everything they needed to know in order to proceed with trial and suffered no prejudice as a result of the amendment. Thus, the circuit court properly permitted Albany Incorporated to amend its complaint to add the Marszlak partnership as a plaintiff. It follows that the court also acted properly when it denied defendants’ motion for a partial directed verdict. For the foregoing reasons, the circuit court is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.