author: PRESIDING JUSTICE DiVITO

text:
    DOMINICK MAZZONE, Plaintiff-Appellant, v. HENRY M. HOLMES, Defendant-Appellee.
    First District (2nd Division)
    No. 1—89—1755
    Opinion filed April 24, 1990.

      Raymond P. Concannon, Ltd., of Chicago (Raymond P. Concannon and Michael P. Concannon, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Ruth E. VanDemark, Pe- i ter A. Tomaras, and Craig G. Stifler, of counsel), for appellee.
   PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff-appellant Dominick Mazzone filed a three-count amended complaint on May 8, 1980, against Henry M. Holmes, the Foster McGaw Hospital of Loyola University, and Zimmer Manufacturing Company, seeking damages for injuries resulting from the removal of a surgical pin in 1978. The counts against the hospital and the manufacturer were dismissed with prejudice following an undisclosed settlement.

Holmes moved for summary judgment on April 11, 1989, and his motion was granted. On April 14, 1989, however, the trial judge granted plaintiff’s motion for reconsideration and vacated the summary judgment order. Plaintiff then moved for a change of venue, but that motion was denied. The matter went to trial on April 24, 1989, and at the close of plaintiff’s case in chief, the trial judge granted Holmes’ motion for a directed verdict. Plaintiff now appeals.

The issues raised are (1) whether the trial judge properly denied plaintiff’s motion for a change of venue as a matter of right; (2) whether the trial judge properly denied plaintiff’s motion for a change of venue on grounds of bias or prejudice; (3) whether the trial judge properly denied plaintiff’s request to call Holmes’ expert as a hostile witness or as the court’s witness; (4) whether the trial judge properly precluded plaintiff from questioning Holmes’ expert regarding the number of medical malpractice cases pending against him; (5) whether the trial judge properly precluded plaintiff from questioning Holmes’ expert regarding the abandonment of the techniques and materials used by Holmes; (6) whether plaintiff proved a prima facie medical malpractice case under the common knowledge doctrine; and (7) whether the trial judge properly granted Holmes’ motion to bar plaintiff from calling Holmes’ expert as an expert in plaintiff’s behalf. We affirm.

Plaintiff’s amended complaint alleged that on or about June 16, 1978, Holmes performed an open reduction and internal fixation on plaintiff’s right acromiclavicular joint, utilizing a 7/64-inch Steinman orthopedic pin. The complaint alleged that on July 21, 1978, Holmes attempted to remove the pin, and as a result of his negligence, a portion of the pin broke off and remained embedded in plaintiff’s shoulder.

On September 28, 1982, Holmes filed Supreme Court Rule 220 (107 Ill. 2d R. 220) interrogatories, requesting disclosure of plaintiff’s experts. On November 17, 1982, plaintiff answered the interrogatories without disclosing any experts.

On February 23, 1984, Holmes filed a motion for summary judgment. No order was entered on that motion. Plaintiff represented to the trial judge at that time that he would either use Holmes as his expert or amend his complaint to add a count under the res ipsa loquitur doctrine.

On October 5, 1988, Holmes answered plaintiff’s Rule 220 interrogatories, naming Dr. Mitchell Sheinkop as Holmes’ expert witness. On December 9, 1988, the case was assigned a trial date of April 10, 1989. On March 7, 1989, Holmes filed supplemental interrogatories, including requests for the identity and opinions of plaintiff’s experts. Plaintiff did not answer those interrogatories. On April 3, 1989, plaintiff took Dr. Sheinkop’s deposition.

On April 10, the case was assigned to a judge for trial. On the same date, both parties appeared in court and answered ready for trial, and the case was assigned for immediate trial the following day. Later that afternoon, Holmes filed a 12-page motion for summary judgment, attaching Holmes’ and Dr. Sheinkop’s deposition transcripts.

On April 11, 1989, the trial judge asked plaintiff’s counsel to respond to Holmes’ motion for summary judgment. Plaintiff’s counsel stated that he had just received the motion the day before and requested 28 days in which to respond. The trial judge noted that the case had been pending for nine years and that plaintiff had failed to disclose an expert or add a res ipsa loquitur count following Holmes' previous motion for summary judgment. The trial judge asked plaintiff’s counsel if there was anything in the record to substantiate plaintiff’s allegations or anything in the motion that took plaintiff’s counsel by surprise. Plaintiff’s counsel stated again that he would like additional time to respond, but that he would stand on his written response to the earlier motion. The trial judge then granted Holmes’ motion for summary judgment.

On April 13, 1989, plaintiff filed a motion for reconsideration. A hearing on the motion was held on April 14, 1989, at which plaintiff’s counsel argued that the motion for summary judgment should have been stricken or plaintiff should have been allowed to respond. The trial judge stated he believed plaintiff’s counsel had misrepresented the outcome of the 1984 summary judgment motion at the April 11, 1989, hearing and that it would be a waste of time to go to trial because plaintiff did not have an expert witness. Plaintiff’s counsel stated again that he needed time to respond to the motion for summary judgment. The trial judge then vacated the order granting summary judgment in favor of Holmes and ordered an immediate trial. The trial date was continued to April 24, 1989, due to Holmes’ unavailability.

Immediately after granting plaintiff’s motion for reconsideration, the trial judge addressed the parties regarding the rules for voir dire, peremptory challenges, impeachment, and evidentiary depositions. The trial judge then heard argument on Holmes’ motion to bar plaintiff from introducing expert testimony at the time of trial on the ground that plaintiff had failed to disclose any experts under Rule 220. Plaintiff’s counsel requested time to respond, and the trial judge continued the matter until April 17, 1989.

On April 17, 1989, before the trial judge ruled on Holmes’ motion to bar plaintiff from introducing expert testimony, plaintiff filed a motion for change of venue. Plaintiff alleged that the trial judge was prejudiced against him, his counsel, and his case. The trial judge denied the motion. Plaintiff then presented a memorandum in which he argued that he had the right to call Dr. Sheinkop, Holmes’ expert, as a witness in his own behalf. Holmes responded that plaintiff could not call Dr. Sheinkop as an expert because plaintiff did not disclose any experts as required by Rule 220. The trial judge ruled that plaintiff could call Dr. Sheinkop as a witness but not as an expert witness.

On April 24, 1989, the trial judge" granted Holmes’ motion in limine barring plaintiff from questioning Dr. Sheinkop regarding his personal use of the Steinman pin. Opening statements were then heard, following which plaintiff was called as the first witness.

Plaintiff testified that in 1978, he was a police officer for the Village of North Riverside. On June 15, 1978, he injured his right shoulder while playing softball and was admitted to the Loyola University hospital for treatment. He was first treated by Holmes on June 16, 1978. Holmes told him that he had separated his shoulder and would require surgery. That same day, plaintiff underwent surgery, during which a Steinman pin was implanted in his right shoulder. After the surgery, plaintiff was put in a cast which immobilized his right arm and shoulder. He was discharged from the hospital on June 18,1978.

Plaintiff wore the cast for three weeks, during which time he visited the hospital as an outpatient six or seven times. On July 7, 1978, the cast was removed and plaintiff’s arm was put into a sling. Plaintiff wore the sling for two weeks. Plaintiff denied using or moving his arm while it was in the sling or ever telling Holmes that he had been “active” while his arm was in the sling.

Plaintiff returned to the hospital next on July 21, 1978. On that date, Holmes instructed plaintiff to lie on his back on top of a table and gave him a shot in his right arm. Holmes then attempted to remove the pin in plaintiff’s shoulder manually with a tool held at right angles to the pin. According to plaintiff, Holmes stated that he was having some difficulty grasping the pin. Plaintiff felt pressure from the pin and then heard a snap. Holmes stated that he had most of the pin but part of the pin was still in plaintiff’s shoulder. Plaintiff saw the portion of the pin that had been removed and described it as having a jagged end. Holmes told plaintiff that the pin sometimes breaks and that, depending on where the remaining portion of the pin was, surgery might be required to remove it.

After the surgery, plaintiff’s shoulder was sore, but plaintiff did not take any pain medication. Two weeks after the pin had been removed, plaintiff returned to his job as a police officer. He quit his job in 1985 for reasons not related to his shoulder injury.

On cross-examination, plaintiff stated that he asked Holmes in August 1978 whether he would be able to water ski, lift weights, and play softball. Plaintiff also stated that he did not watch the pin removal procedure because his head was turned in the opposite direction. He admitted that he did not know whether the pressure he felt was caused by the pin breaking or merely by its removal from his shoulder. Plaintiff also admitted that a person wearing an arm sling would be able to move the arm with the sling on.

Following his own testimony, plaintiff sought leave to call Dr. Sheinkop, Holmes’ expert, as a court’s witness or as a hostile witness under Supreme Court Rule 238, because plaintiff could not vouch for his veracity or credibility. Holmes objected and the objection was sustained.

Dr. Sheinkop nevertheless testified as a witness in plaintiff’s behalf. Plaintiff attempted to question Dr. Sheinkop regarding the number of medical malpractice cases pending against him. Following a side bar conference, the trial judge sustained Holmes’ objection to that line of questioning.

Dr. Sheinkop testified that he did not believe there was a national standard of care relative to the removal of the pin, but that the standard in 1978 in the community where he practices was that the pin should be removed intact. Dr. Sheinkop stated, however, that there would not be a deviation from the standard of care if the pin broke during the physician’s application of pressure required to remove the pin.

Dr. Sheinkop also testified that if the pin broke, any pain or loss of motion would depend on the location of the portion of the pin remaining in the shoulder. If, for example, the pin was located in the bony clavicle, it would not cause pain, loss of motion, or stiffness in the joint.

Plaintiff’s final witness was Holmes, who was called as an adverse witness. On cross-examination by plaintiff, Holmes stated that the standard of care in 1978 did not require complete removal of the pin. He also stated that plaintiff was instructed on July 7, 1978, not to move his arm or shoulder while his arm was in the sling. But according to Holmes, plaintiff told him that he had been loosening his shoulder with the sling on and demonstrated to him how he had been loosening his shoulder.

Regarding the removal procedure on July 21, 1978, Holmes stated that he made an incision in plaintiff’s shoulder, told plaintiff to sit up, and then grasped the pin without any difficulty. Once he grasped the pin, it came out easily. Holmes did not hear a cracking sound and did not feel any pressure on the pin. Holmes had plaintiff’s shoulder Xrayed and told plaintiff that the portion of the pin remaining in his shoulder would not cause any problems because it was not embedded in the acromioclavicular joint.

Holmes’ notes, dated July 21, 1978, were admitted into evidence. Holmes wrote: “pin broke but most of it removed.” Holmes nonetheless testified at trial that in his opinion, the pin broke because plaintiff did not follow instructions and moved his arm while it was in the sling.

Following Holmes’ testimony, plaintiff rested. Holmes then moved for a directed verdict and, following arguments, the motion was granted.

I

Plaintiff maintains first that the trial judge improperly denied his petition for a change of venue as a matter of right. He argues that the petition should have been granted under section 2 — 1001(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001(c)), because, even though Holmes’ motion for summary judgment was granted, the trial judge subsequently reversed himself, so that the trial judge had not actually decided any substantial issue in the case. We disagree.

Section 2 — 1001(c) of the Code of Civil Procedure provides:

“A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, but if any ground for such change of venue occurs thereafter, a petition for change of venue may be presented based upon such ground.” (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1001(c).)

Courts have construed this provision as allowing a change of venue as a matter of right if the petition is filed before a hearing on the merits and before the trial court has ruled on any substantial issue. (See Millburn Mutual Insurance Co. v. Glaze (1980), 86 Ill. App. 3d 1055, 410 N.E.2d 295.) A ruling on a “substantial issue” may be a ruling on an issue of law or evidence. Heman v. Jefferson (1985), 136 Ill. App. 3d 745, 751, 483 N.E.2d 537.

In this case, the trial judge’s ruling on Holmes’ second motion for summary judgment was plainly a ruling on a “substantial issue” for purposes of the venue statute. There is no support for plaintiff’s argument that he was nevertheless entitled to a change of venue as a matter of right because the trial judge subsequently vacated his ruling on the summary judgment motion. A similar argument was rejected by the appellate court in Heman v. Jefferson. There, the defendants filed a petition for change' of venue after the trial court had ruled on the plaintiff’s motion for summary judgment, on objections to requests to admit facts, and on motions to strike affidavits. The defendants argued that the petition was nevertheless timely because the order granting summary judgment had been reversed. The court, however, rejected this argument, reasoning that the trial court’s rulings afforded the defendants ample opportunity to ascertain the trial judge’s attitude toward the litigated issues. In this case, the trial judge’s ruling on Holmes’ motion for summary judgment likewise afforded plaintiff an opportunity to ascertain the trial judge’s attitude toward the issues. Plaintiff, therefore, was not entitled to a change of venue as a matter of right. See also Millburn Mutual Insurance Co. v. Glaze (1980), 86 Ill. App. 3d 1055, 410 N.E.2d 295 (mistrial did not vitiate trial court’s prior orders for purposes of the venue statute).

II

Plaintiff maintains next that he was entitled to a change of venue because the trial judge was biased against him, his counsel, and his case. As evidence of the trial judge’s bias, plaintiff quotes at length from the transcript of the April 11, 1989, hearing, during which the trial judge granted Holmes’ motion for summary judgment without giving plaintiff additional time to respond, and from the transcript of the April 14, 1989, hearing, during which the trial judge stated that plaintiff’s counsel had misrepresented the outcome of the earlier motion for summary judgment, that plaintiff did not have an expert witness, and that going to trial would be a waste of time. Again, we disagree.

At the April 11, 1989, hearing on Holmes’ motion for summary judgment, the trial judge first denied plaintiff’s request for additional time to respond. The trial judge stated:

“[I]n 1980 the plaintiff filed this suit. We are now in 1989 and this case was sent to me for trial.
Now both of the attorneys have been sitting on their hands doing nothing for some time in this case and all of a sudden the defendant wakes up and serves me with a motion for a summary judgment on the date this case is here for trial.
Now the plaintiff wants time to answer the, case and I am willing to give you time to answer the case if it would help your man in any way, but you have got to tell me where you’re going to be helped in any way.
I don’t want to deprive your man of his right day in court, but if there is something in the record that substantiates what you’re alleging here, you don’t even have to file, just read it to me and I’ll dismiss this motion for summary judgment rather than waste your time and the court’s time on this.
The case is here for trial. I want to proceed with it. Now what have you got that — I mean is is there anything here that’s taken you by surprise?”

Plaintiff’s counsel repeated his request for additional time to respond to the motion for summary judgment. The request was denied, and plaintiff’s counsel stood on his written response to the earlier motion without presenting any further argument. The trial judge then granted the motion for summary judgment on its merits.

These facts do not establish bias or prejudice against plaintiff at the April 11, 1989, hearing. To the contrary, the trial judge showed displeasure at the delays caused by both parties, and at Holmes, in particular, for filing his motion on the day the case was set for trial. The trial judge allowed plaintiff an opportunity to respond to the motion and granted the motion only after plaintiff failed to present further argument for his position.

With respect to the April 14, 1989, hearing, the record shows that the trial judge would not allow plaintiff to call Holmes’ expert as his own expert only because plaintiff had not disclosed any expert witnesses as required under Supreme Court Rule 220. The record also shows that the trial judge granted plaintiffs motion for reconsideration, allowed him additional time to respond to the motion to bar expert testimony, allowed him to proceed to trial, allowed him to call Holmes’ expert as a witness in his case in chief, and offered to certify the ruling on the Rule 220 issue for interlocutory appeal. Regarding the Rule 220 issue, the trial judge even stated it made no difference to him who won the case, that he did not “hold it against [plaintiff’s counsel] for trying to win [his] case,” and that he simply felt that the law was against plaintiff on the issue. We cannot conclude on this record that the trial judge expressed any bias or prejudice against plaintiff at the April 14, 1989 hearing.

Ill

Plaintiff maintains next that the trial judge erred in refusing to allow him to call Dr. Sheinkop, Holmes’ expert, as a hostile witness under Supreme Court Rule 238 or as the court’s witness. He argues that he should have been permitted to cross-examine Dr. Sheinkop and should not have been bound by Dr. Sheinkop’s testimony, because he could not have vouched for the credibility of Holmes’ expert, and because Dr. Sheinkop was impeached when it was elicited that his interrogatory answers were not consistent with his deposition testimony.

Supreme Court Rule 238(b) provides: “If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination.” (107 Ill. 2d R. 238(b).) The rule applies only to witnesses who, while on the witness stand, prove to be hostile, uncooperative, or unwilling. (Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 926, 419 N.E.2d 578.) Whether a witness is hostile, uncooperative, or unwilling for purposes of the rule is a matter within the sound discretion of the trial court. Jensen v. Chicago & Western Indiana R.R. Co., 94 Ill. App. 3d at 926.

In this case, the trial judge properly denied plaintiff’s requests to call Dr. Sheinkop as a hostile witness because Dr. Sheinkop had not yet testified. Plaintiff’s renewed request made during his examination of Dr. Sheinkop was also properly denied because Dr. Sheinkop was not hostile, uncooperative, or unwilling. The mere fact that his testimony might have been unfavorable to plaintiff’s case was not in itself sufficient to invoke the hostile witness rule. See Yamada v. Hilton Hotel Corp. (1977), 60 Ill. App. 3d 101, 376 N.E.2d 227.

Also, contrary to plaintiff’s contention, the trial judge did not improperly deny him an opportunity to impeach Dr. Sheinkop. At his deposition, Dr. Sheinkop was asked whether “the pin and a portion of it being situated in the joint as it is [would] be likely to cause either pain, discomfort, [or a] limited range of motion.” He answered in the affirmative. Because he answered a compound question, his response was not necessarily inconsistent with his testimony at trial that the pin could cause pain, but might not cause stiffness or a limited range of motion. Thus, Dr. Sheinkop would not have been impeached had cross-examination on this point been allowed.

Finally, it is within the trial judge’s discretion to call a court’s witness and such witnesses are infrequently called in civil proceedings. (See Crespo v. John Hancock Mutual Life Insurance Co. (1976), 41 Ill. App. 3d 506, 354 N.E.2d 381.) Considering the limited use of the court’s witnesses doctrine and the record in this case, we cannot conclude that the trial judge here abused his discretion.

IV

Plaintiff maintains next that the trial judge erred in refusing to allow him to examine Dr. Sheinkop regarding the number of medical malpractice cases pending against him. Plaintiff argues that such evidence was relevant to Dr. Sheinkop’s interest or bias as Holmes’ expert witness.

We conclude, however, that the trial judge properly precluded questions regarding the number of medical malpractice cases pending against Dr. Sheinkop. Relevancy considerations preclude the cross-examination of expert witnesses regarding their personal involvement as defendants in malpractice cases. (See Webb v. Angell (1987), 155 Ill. App. 3d 848, 508 N.E.2d 508; Miceikis v. Field (1976), 37 Ill. App. 3d 763, 347 N.E.2d 320.) The only support for plaintiff’s position is the general proposition that parties should have the opportunity to expose the interest or bias of medical experts through cross-examination. (See Sears v. Rutishauser (1984), 102 Ill. 2d 402, 466 N.E.2d 210.) It is clear, however, that “[s]uch cross-examination should be strictly limited to the number of referrals, their frequency, and the financial benefit derived from them.” (See Sears v. Rutishauser, 102 Ill. 2d at 411.) Because such questions were allowed in this case, plaintiff’s argument is without merit.

V

Plaintiff maintains next that the trial judge erred in refusing to allow him to question Dr. Sheinkop regarding the abandonment of the technique used by Holmes in 1978. Dr. Sheinkop testified at his deposition that he personally stopped using the Steinman pin in 1975 or 1976 because it was known to break and that the “orthopedic community” in general “knew there was an incidence of failure of any type of metallic device placed across the acromioclavicular joint for stabilization in 1978.” Such testimony, plaintiff argues, was relevant on the issue of the standard of care. We disagree.

To prevail on a claim of medical malpractice, a plaintiff must establish the standard of care by which the defendant’s conduct is to be measured, that the defendant deviated from this standard of care, and that the defendant’s conduct caused injury to the plaintiff. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279.) On the issue of whether the defendant deviated from the standard of care, an expert’s statements as to what he would have done are not relevant because differences in opinion are consistent with conformity to the applicable standard. See Walski v. Tiesenga, 72 Ill. 2d at 261; Stevenson v. Nauton (1979), 71 Ill. App. 3d 831, 835, 390 N.E.2d 53.

In this case, Dr. Sheinkop’s deposition testimony, that he would not have used a Steinman pin in 1978 and that such pins were known in the orthopedic community to break, was not relevant either on the issue of the appropriate standard of care or the issue of Holmes’ deviation from that standard. Dr. Sheinkop testified, in response to questioning by plaintiff’s counsel during plaintiff’s case in chief, that the standard of care had not changed since 1978, and that the standard required, if possible, the removal of the pin intact. This standard concerns the removal of the pin, not the use of a Steinman pin in treating shoulder separations. Thus, whether Dr. Sheinkop or any other physician would have used a Steinman pin in the first instance had no bearing on the applicable standard of care in this case.

Dr. Sheinkop’s deposition testimony, that he would not have used a Steinman pin and that such pins were known to break, was also not relevant on the issue of Holmes’ deviation from the standard of care in removing the pin. Dr. Sheinkop testified during plaintiff’s case in chief that if the pin breaks during application of pressure by the doctor, the doctor’s acts would not fall below the applicable standard of care. Thus, Dr. Sheinkop testified that Holmes did not deviate from the standard of care. Whether Dr. Sheinkop would have used the pin or whether such pins were known to break does not contradict that testimony because more than one procedure may be consistent with the applicable standard of care.

VI

Plaintiff maintains next that the trial judge erred in directing a verdict in Holmes’ favor because he made out a prima facie case of medical malpractice. He argues that, under the “common knowledge” doctrine, he was not required to establish a prima facie case through expert testimony because a lay person could readily appreciate that the standard of care required removal of the pin intact and that Holmes fell below that standard in breaking the pin.

To prevail on a claim of medical malpractice, a plaintiff must ordinarily establish through expert testimony the standard of care by which the defendant’s conduct is to be measured, that the defendant deviated from this standard of care, and that the defendant’s conduct caused injury to the plaintiff. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 381 N.E.2d 279.) There is an exception to this rule in cases where “the physician’s negligence is so grossly apparent or the treatment so common as to be within the everyday knowledge of a lay person[.]” (Purtill v. Hess (1986), 111 Ill. 2d 229, 242, 489 N.E.2d 867.) This “common knowledge” exception is rarely applied, and cases where it has been applied have been strictly limited to their facts. (See Stevenson v. Nauton (1979), 71 Ill. App. 3d 831, 837, 390 N.E.2d 53.) Post-operative care is generally not within the common knowledge of lay persons (see Stevenson v. Nauton, 71 Ill. App. 3d at 837; Crawford v. Anagnostopoulos (1979), 69 Ill. App. 3d 954, 387 N.E.2d 1064), and at least one court has held that the placement of orthopedic screws is outside the common comprehension of lay persons (see McNichols v. Jersild (1988), 169 Ill. App. 3d 791, 523 N.E.2d 1172).

Plaintiff’s argument in this case fails because the procedures used to place and remove the Steinman pin are not within the common knowledge of lay persons. Regarding removal of the pin, Holmes testified at his deposition and at trial that the pin is removed with a sensitive, 14-inch orthopedic surgical drill with a “pistol grip” and a crank, which requires three pounds of force for each pound of pressure at the drill end. Holmes testified that he grasped the pin without difficulty, applied pressure to the wheel of the drill, and extracted the pin. This procedure is plainly not within the everyday knowledge of lay persons.

Even if the common knowledge exception were applicable, plaintiff’s argument would fail because the only evidence of negligence or lack of due care was the broken pin. This “bad result” does not in and of itself demonstrate lack of skill or negligence (see Piquette v. Midtown Anesthesia Associates (1989), 192 Ill. App. 3d 219, 223, 548 N.E.2d 659; Scardina v. Colletti (1965), 63 Ill. App. 2d 481, 211 N.E.2d 762) and would not even, standing alone, support a res ipsa loquitur cause of action (see Piquette v. Midtown Anesthesia Associates, 192 Ill. App. 3d at 223).

VII

Finally, plaintiff maintains that the trial judge erred in not allowing him to call Dr. Sheinkop as an expert witness. Relying on Voyles v. Sanford (1989), 183 Ill. App. 3d 833, 539 N.E.2d 801, he argues that disclosure was not required under Rule 220, because Dr. Sheinkop was Holmes’ expert, so that Holmes would not have been “surprised” by Dr. Sheinkop’s testimony as plaintiff’s expert.

Initially, we find that plaintiff did not preserve this issue for review. Although the trial court’s order dated April 17, 1989, barred plaintiff from calling Dr. Sheinkop as an expert witness, the record shows that plaintiff never requested that he be allowed to call Dr. Sheinkop as an expert. The record contains the following colloquy between plaintiff’s counsel and the trial judge:

“THE COURT: Now, you want to call [Dr. Sheinkop] in your case-in-chief as your expert; is that correct or is that incorrect?
[PLAINTIFF’S COUNSEL]: Not as my expert, Judge, I did not retain him as an expert witness. He is a witness who possesses certain knowledge; and, yes, I do wish to call him whatever the Court wishes to call him.
THE COURT: No, no. I want to know what you want to call him.
[PLAINTIFF’S COUNSEL]: I wish to call him as a witness.”

In his memorandum in support of his right to call Dr. Sheinkop as a witness, plaintiff never requested that he be allowed to call Dr. Sheinkop as an expert witness. Because plaintiff never raised the issue of calling Dr. Sheinkop as an expert and, indeed, represented to the trial judge that he did not wish to call Dr. Sheinkop as an expert, plaintiff has waived this issue for purposes of review.

Even if the issue had not been waived, plaintiff’s argument would fail because he clearly failed to comply with Rule 220’s disclosure requirements. Plaintiff’s argument, that the rule does not apply to experts already retained by a party to the litigation, is not persuasive. Voyles v. Sanford (1989), 183 Ill. App. 3d 833, 539 N.E.2d 801, relied on by plaintiff, is inapposite because the court there held that Rule 220 did not require disclosure as an expert witness of an occurrence witness who was also “intimately involved in the subject of the litigation” and employed by the defendant at the time of the incident in question. The court reasoned that the witness’ identity was discoverable early in the litigation and that because he had been employed by the defendant and involved in the litigation, the only “surprise” to the defendant was that he would be giving an expert opinion.

In this case, by contrast, Dr. Sheinkop’s only connection with the litigation was that he was retained by Holmes as an expert. He was not the treating physician (see Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525), nor was he employed by Holmes (see Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 531 N.E.2d 51). More on point are cases involving late disclosure of experts. In Fischer v. G & S Builders (1986), 147 Ill. App. 3d 168, 497 N.E.2d 1022, for example, the court held that prior knowledge of an expert’s presence in the controversy was not an adequate substitute for Rule 220’s disclosure requirements. The court rejected the argument that the defendant could not have been surprised because it had prior knowledge that the expert witness was involved in the case. In this case, late notice of plaintiffs intention to call Dr. Sheinkop as an expert was likewise not an adequate substitute for Rule 220’s notice requirements because Dr. Sheinkop was only retained as an expert and was not in any other respect involved in the litigation.

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

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    GLORIA BRISENO, Indiv. and for the benefit of Beatriz Briseno et al., and as Special Adm’r of the Estate of Jose Briseno, Deceased, Plaintiff, v. CHICAGO UNION STATION COMPANY et al., Defendants and Third-Party Plaintiffs-Appellants (National Wrecking Company, Third-Party Defendant-Appellee).
    First District (3rd Division)
    No. 1—87—2483
    Opinion filed April 25, 1990.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Alan H. Swanson, Stephen R. Swofford, and Bruce L. Carmen, of counsel), for appellants.
    Lord, Bissell & Brook, of Chicago (C. Roy Peterson, Hugh C. Griffin, and Kenneth A. Peterson, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendants and third-party plaintiffs, Chicago Union Station Company, Tishman Construction Corporation of Illinois, Equitable Life Assurance Society of the United States and TJC Associates, Inc. (collectively Chicago Union), appeal from an order of the circuit court of Cook County which dismissed with prejudice their third-party contribution claim filed against National Wrecking Company (NWC). We affirm.

This matter arose from an underlying wrongful death and Structural Work Act (Ill. Rev. Stat.. 1985, ch. 48, par. 60 et seq.) lawsuit filed against Chicago Union by the estate of Jose Briseno (Briseno). Briseno, a NWC employee, was killed while working on the demolition of the old Union Station building. The site was being excavated in preparation for the construction of a new office complex owned, operated and/or managed by Chicago Union.

The demolition work was done pursuant to a written contract between Chicago Union and NWC. Pursuant to the terms of the contract, NWC purchased $30 million in comprehensive general and contractors liability insurance from Bituminous Casualty Company and an excess comprehensive general liability insurer (Bituminous). NWC paid all premiums due under the policy. The Bituminous policies which were issued to NWC named it as the insured and Chicago Union as additional insureds. Bituminous accepted coverage of the Briseno claim and engaged counsel to defend Chicago Union in the legal action.

Thereafter, Chicago Union, through Bituminous, filed a third-party action for contribution against NWC seeking to shift part of the loss from Bituminous to NWC. NWC moved for summary judgment on the basis that Chicago Union had no right to seek further recovery from NWC for a loss against which it had already been fully protected by NWC’s purchase of insurance. NWC further argued that Bituminous had no right to manipulate the pleadings to shift the loss back to NWC, a named insured and the purchaser of the policy issued to NWC. The trial court denied NWC’s motion for summary judgment while holding that Chicago Union could only maintain its contribution action against NWC if Chicago Union’s liability was not completely covered by the insurance policy purchased by NWC.

Prior to trial on the underlying wrongful death and Structural Work Act matter, Chicago Union and Briseno entered into a settlement agreement in the amount of $875,000 which was covered by the Bituminous insurance policy. After the Briseno claim was settled, the trial court granted NWC’s motion to dismiss Chicago Union’s third-party contribution claim. This appeal followed.

On appeal, Chicago Union contends that the trial court erred in ruling that the contractual agreement between Chicago Union and NWC which provided, inter alia, that NWC provide comprehensive general public and personal injury liability insurance for Chicago Union, barred Chicago Union’s subsequent contribution action against NWC. We disagree with Chicago Union’s contention.

The contract between Chicago Union and NWC for demolition services provided in pertinent part:

“Rider ‘B’ Insurance Requirements
A. Prior to commencement of any work under this Contract and until completion and final acceptance of the Work, the Contractor and each and every Subcontractor of the Contractor shall, at his sole expense, maintain the following insurance on its own behalf, and furnish to the Owner and/or Construction Manager, certificates of insurance evidencing same as follows:
The term ‘Contractor and Subcontractor' as used in this Insurance Rider shall mean and include Contractors and Subcontractors of every tier.
1. Worker’s Compensation and Occupational Disease Insurance in accordance with the applicable law or laws: Employer’s Liability Insurance with Limit of Liability of at least Five Hundred Thousand ($500,000) Dollars, including Voluntary Compensation, United States Longshoreman and Harbor Worker’s and All States Endorsements.
2. Comprehensive General Liability with a combined Bodily Injury and Property Damage Limit of Five Million ($5,000,000) Dollars including the following perils:
a. Broad Form Blanket Contractual Liability for liability assumed under this Contract and all other Contracts relative to the Project.
* * *
E. The carrying of the insurance described shall in no way be interpreted as relieving the Contractor of any responsibility or liability under this Contract.
F. Any policies effected by the Contractor shall in no way be interpreted as relieving the Contractor of any responsibility or liability under this Contract.
G. All insurance, where permissible shall include the interests of Gateway IV Joint Venture; The Equitable Life Assurance Society of the United States; TJC Associates ***; Tishman Construction Corporation of Illinois ***; Chicago Union Station ***.
Rider ‘C’ Insurance Liability Addendum
* * *
7(d) The Contractor agrees to indemnify and save harmless the Indemnitees against loss and expense by reason of claims or of the liability imposed by law upon the Indemnitees for damages because of bodily injuries, including death at any time resulting therefrom, sustained by any employee of the Contractor and or any Subcontractor while at the site where work under this contract is conducted, or elsewhere, while engaged in the performance of work under this contract, however such injuries may be caused whether attributable to a breach of statutory duty or administrative regulation or otherwise, unless such injury is caused solely by the negligence of the Indemnitees.”

When parties to a business transaction mutually agree that insurance will be provided as part of the bargain, then that agreement must be interpreted as providing mutual exculpation to the bargaining parties. The parties are deemed to have agreed to look solely to the insurance in the event of loss and not impose liability on the part of the other party. Vandygriff v. Commonwealth Edison Co. (1980), 87 Ill. App. 3d 374, 378, 408 N.E.2d 1129, 1132; General Cigar Co. v. Lancaster Leaf Tobacco Co. (D. Md. 1971), 323 F. Supp. 931.

Chicago Union urges that we reject the holdings of the Vandygriff and General Cigar opinions and follow the decision in Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 401 N.E.2d 1032. According to Chicago Union, Rome stands for the proposition that the fact that an indemnitee’s liability is covered by insurance does not negate the indemnitor’s obligation. (81 Ill. App. 3d at 783.) However, Rome is distinguishable from the present case. In Rome the insurance policy purchased by the indemnitor pursuant to the terms of the contract did not name the indemnitor as an insured, whereas, in the present case, not only was NWC the indemnitor and purchaser of the policy on behalf of Chicago Union, it was also a named insured and beneficiary under the Bituminous policy.

Chicago Union also cites Dowling v. Otis Elevator Co. (1989), 192 Ill. App. 3d 1064, 549 N.E.2d 866, in support of its contention. Dowling is likewise distinguishable from the present case. In Dowling the trial court granted the third-party defendant’s motion to dismiss the contribution action brought by the construction manager against the subcontractor. The contribution action sought to recover damages for the alleged negligence of the subcontractor which contributed to the plaintiff’s death. The motion to dismiss was based on the fact that the parties’ contractual agreement provided that the subcontractor was to provide insurance coverage on behalf of the construction manager. The motion to dismiss was granted before liability was determined either by settlement or judgment. On appeal, this court reversed the dismissal order, holding that the insurance provision in the parties’ contract did not exculpate the subcontractor from liability or preclude the construction manager from bringing a third-party action against the subcontractor who purchased the insurance.

In the present case, the issue of liability was resolved by settlement of the parties. That settlement in the amount of $875,000 was paid from the proceeds of the Bituminous insurance policy purchased by NWC on behalf of itself and Chicago Union. Under these circumstances, where the liability of the parties has been determined and satisfied from the proceeds of an insurance policy provided by NWC pursuant to the parties’ contractual agreement, Chicago Union’s contribution action was properly dismissed.

An insurer is bound not to put its own interest ahead of the protection it had promised its insureds. (United States Steel Corp. v. Hartford Accident & Indemnity Co. (7th Cir. 1975), 511 F.2d 96, 101.) In addition, an insurer owes its insureds a duty of fair dealing and does not have the right to. manipulate an action in order to excuse itself from protecting its insureds. United States Steel Corp., 511 F.2d at 101.

In the present case, Bituminous, through Chicago Union, is attempting to shift onto NWC, its insured and the purchaser of its policy, the liability for Briseno’s claim. Bituminous’ actions in this matter are unconscionable and will not be allowed. The demolition contract entered into between Chicago Union and NWC provided that the parties were to be protected against bodily injury claims arising from NWC’s demolition work by a comprehensive general liability policy to be purchased by NWC.. This agreement was thereafter fulfilled in all respects. National purchased the required policy from Bituminous; Bituminous defended Chicago Union against the Briseno claim; and the Bituminous policy covered the $875,000 settlement entered into between Briseno and Chicago Union.

Thus, by means of the insurance policy purchased by NWC, Chicago Union has been totally protected and indemnified against all loss (including costs of defense) and the intent and purpose of the contract has been fully carried out. To allow Bituminous, through Chicago Union, to now seek an additional recovery from NWC would allow Chicago Union to recover twice for the same loss and allow Bituminous to manipulate this action so that the party that purchased the policy and paid the premium bears the loss. Chicago Union and Bituminous’ attempt to obtain contribution from NWC must fail. We therefore conclude that the trial court did not err in granting NWC’s motion to dismiss Chicago Union’s third-party contribution claim.

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

Affirmed.

WHITE and FREEMAN, JJ., concur.


author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEIDRE BROWN, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—3440
    Opinion filed April 25, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Sam Majerowicz, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Karlene Behringer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Following a bench trial, defendant, Deidre Brown, was convicted of two counts of home invasion and one count each of robbery and residential burglary, and was given concurrent sentences of six years for the two counts of home invasion and four years for robbery and residential burglary. Defendant raises the following issues on appeal: (1) whether her sixth amendment right to effective assistance of counsel was violated; (2) whether the State failed to prove beyond a reasonable doubt that defendant was guilty on an accountability theory; (3) whether the State proved beyond a reasonable doubt that a dangerous weapon was used in the commission of the home invasion; and (4) whether the trial court erred in imposing judgment on two counts of home invasion.

The evidence presented at trial established that on January 2, 1987, the 75-year-old complainant, Richard Burns, lived in a first-floor apartment located at 7850 South Ada in Chicago. About 3 p.m., a woman named Selina, whom complainant had known for several months, went to his apartment accompanied by defendant. Selina introduced defendant to complainant. Complainant testified that Selina asked him for $2.60 so she could buy food. Complainant had just cashed a $400 retirement check and had the money in his left rear pants pocket. He removed all of the money from his pocket in the presence of Selina and defendant and gave Selina $2. Complainant put the rest of the money back in his left rear pocket and the women left. About 4 p.m. that same day, defendant returned to complainant’s apartment and asked for ingredients so she could cook the chicken she had just bought. Complainant gave her salt, but defendant left without it. About 6:30 p.m., defendant returned, saying that she was looking for Selina. At this time, another woman, named Bebe, was in complainant’s apartment. After he let defendant in, he locked the door. Defendant sat down on a couch in the living room near a window and looked out the window, telling complainant that she was watching for Selina because Selina had her baby. Complainant sat on the couch breathing oxygen through a mask. About 10 to 15 minutes later defendant said, “[tjhere’s Selina down there” and then jumped up and ran over to the door. In the process, she became tangled in the cord connecting complainant’s mask to the oxygen tank. When defendant reached the door, she unlocked it and two men entered the apartment. At least one of the two men was armed with a gun. Complainant grabbed the man with the gun, holding the man with one hand and the gun with the other hand. The man yelled for help from his partner. The other man ran behind complainant and hit him on the back of the head with a hard object. Complainant then released the man with the gun. Meanwhile, the other man went directly to complainant’s left rear pants pocket and removed its contents, including the $400 in cash. The two men then ran out the front door, following behind defendant. Several minutes later Bebe, who ran screaming from the apartment shortly after the two men entered, returned to complainant’s apartment with the police. After talking to the police, complainant left his apartment to go to his nephew’s work place in order to borrow some money. En route he saw a police car. He walked up to the car, looked inside, saw defendant and told the police, “[sjhe’s the one.”

Police officer Timothy Cullinan testified that about 7 p.m. on January 2, he and his partner responded to a police call of a robbery at 7850 South Ada. He interviewed Bebe and complainant. Bebe provided the names and descriptions of the two women who had been in complainant’s apartment. The officer then went to defendant’s address, which was just down the street from the complainant. As he arrived at defendant’s apartment, he saw a female exiting the building. When she identified herself as Deidre Brown, he arrested her, placed her in the squad car and drove to the corner of 79th and Ada. While parked at that location, complainant approached the car, looked inside and said, “[tjhat’s the one who was in my apartment.” Defendant was then taken to the police station.

Detective William Harley testified that pursuant to his investigation of the incident he interviewed defendant. At first she denied any knowledge of the incident, but after being read her rights and informed of the seriousness of the offense, she agreed to talk to him. She told the detective that earlier that day she and Selina went to complainant’s apartment to borrow money to buy food. As he handed them $2, the women observed that he removed the money from a large roll of bills that he had taken from his back pants pocket. After they left the apartment, Selina suggested that they rob complainant. Defendant told the detective that Selina suggested that defendant return to complainant’s apartment and wait about 15 minutes after which somebody would come to the door. Defendant was then to unlock the door to the apartment and let the person(s) into the apartment. Although defendant was to have received $20 in return for letting the offenders into the apartment, she told the detective that the two men ran out of the apartment without giving her any money.

On direct examination defendant testified that she accompanied Selina to complainant’s apartment in order to borrow money to buy chicken. She saw him remove a large roll of money from his pocket and hand Selina $2. Complainant told them to bring the chicken back to his house and cook it there because he wanted the two women to keep him company. Defendant later returned to complainant’s apartment to see if he had ingredients necessary to prepare the chicken. At that time there was no plan to rob him. However, when asked whether there was a plan to rob complainant, defendant testified as follows:

“Well, she [Selina] had said something about she was going to see if she could get some money from him, and I figured, I knew it was going to be something. I figured she was going to go in his pocket or he was going to go to bed and she was going to go in his pocket or something like that. I didn’t know she was going to have somebody come to his house.”

Defendant testified that when she opened the door to complainant’s apartment, the two men who entered the apartment looked familiar. According to defendant, as they entered the apartment, they pushed her and complainant ran to the door. One of the men grabbed his hand, and the other man started going through complainant’s pockets. Defendant left the room to go find a telephone. When she could not find a telephone in the apartment, she returned to the living room, where she saw them push complainant and then run out of the room. She testified that complainant seemed to be in a state of shock and she was frightened. She left complainant’s apartment and went home. Defendant also testified that she did not see either of the men carrying a gun.

On cross-examination defendant testified that after she went to complainant’s apartment the second time to see if he had the ingredients to prepare the chicken, she went back to the place where she was staying, at 7927 Ada, where Selina had also spent a few nights. Defendant then went looking for Selina because Selina had defendant’s son. When defendant could not find her, she returned home. Defendant was then going to return to complainant’s apartment to look for Selina. However, before doing so defendant went to a pool hall where she thought Selina might be. On her way from the pool hall to complainant’s apartment, she saw Selina. She and Selina talked about taking money from complainant. Selina told defendant to go to complainant’s apartment and wait for about 15 minutes and Selina would meet her there. Defendant testified that she thought that Selina was going to come to complainant’s apartment, go to bed with him and then take the money out of his pockets. Defendant stated that she did not know that two men were going to go to complainant’s apartment and take the money. Defendant denied telling Detective Harley that she was supposed to open complainant’s door and let someone in to rob him. She also testified that Selina was going to give defendant $20 to repay a loan and not as payment for helping to rob complainant. However, defendant did admit telling the detective that Selina told her that if she could get more money she would give defendant more money.

In finding defendant guilty, the trial court stated as follows:

“Based on the evidence that I heard, the testimony of the witnesses who testified, including the defendant, the theory of the State is that of accountability. Deidre Brown didn’t actually perpetrate the physical robbery, but she aided, abetted and facilitated that commission and, under that section of the [statute, 5 — 2, she has to do so with the intent to commit a specific crime.
I agree with Mr. Moriarity [defense counsel] that the State had failed to prove that she knew that there would be the existence of a gun.
However, based on all the evidence as to the charge of home invasion, finding of guilty, judgment entered on the finding. As to the charge of armed robbery, there is a finding of guilty to the lesser included offense of robbery. As to the charge of aggravated battery, finding of not guilty. As to the charge of armed violence, Category I, finding of not guilty. As to the charge of residential burglary, there is a finding of guilty and judgment is entered on those findings.”

Defendant first contends that she was denied effective assistance of counsel evidenced by the following remarks made by her attorney during closing arguments:

“I would suggest to the Court that if Deidre Brown is guilty, it goes to show guilty of bad company, bad companions, but that her participation would have been to one of — would have been a solicitation or conspiracy to commit a robbery and nothing else.”

Defendant argues that by conceding that she was guilty of solicitation or conspiracy to commit robbery, her attorney was, in effect, conceding that she was accountable for all of the offenses for which she was charged. In considering defendant’s contention, we are guided by the general rule of law that a defendant claiming ineffective assistance of counsel must show that his counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Hattery (1985), 109 Ill. 2d 449, 461, 488 N.E.2d 513.) Defendant relies on People v. Hattery (109 Ill. 2d 449, 488 N.E.2d 513) for its holding that counsel may not concede his client’s guilt in the hope of obtaining a more lenient sentence where a plea of not guilty has been entered, unless the record adequately shows that defendant knowingly and intelligently consented to his counsel’s strategy. However, subsequent cases have determined that the per se exception delineated in Battery should be applied only when the facts of the case fit squarely within those found in Battery, and that in all other cases the case-by-case, two-part test set out in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, should continue to be applied. (People v. Bone (1987), 154 Ill. App. 3d 412, 415-16, 506 N.E.2d 1033.) Moreover, it is not automatically ineffective assistance of counsel when trial counsel concedes his client’s guilt on offenses in which there is overwhelming evidence of his client’s guilt when a vigorous defense is presented on other offenses. (People v. Weger (1987), 154 Ill. App. 3d 706, 506 N.E.2d 1072.) Rather, each allegation of ineffective assistance of counsel must turn upon its own peculiar facts. (People v. Weger, 154 Ill. App. 3d at 710.) In addition, courts have recognized the legitimacy of admitting guilt to less than all counts in a multicount indictment or less than all elements of the crime(s) charged where evidence of defendant’s guilt is overwhelming and counsel’s strategy is to win a reduced sentence. (People v. Gill (1988), 169 Ill. App. 3d 1049, 1055, 523 N.E.2d 1239.) Such a tactical decision is not objectionable per se, and may even be viewed as good defense strategy when appropriate. People v. Gill, 169 Ill. App. 3d at 1055.

Applying these principles to the instant case, we first comment that the facts differ from those found in Battery. In Battery, defendant was charged with murder and pleaded not guilty, and yet defense counsel admitted during opening statement that the defendant had done everything the prosecution alleged in its opening statement. Defense counsel even went so far as to state that the defendant was not asking the jury to find him not guilty and that the jury would in fact find defendant guilty. Moreover, during trial, defense counsel advanced no theory of defense, presented no evidence and made no closing argument. It is noteworthy that the instant case was a bench trial and not a jury trial. Also, defense counsel did not precisely state that defendant was guilty of a particular offense, but, rather, stated that if defendant was guilty of any offense, she was guilty of conspiracy to commit a robbery. Unlike the defendant in Battery, who was charged with only one offense to which his attorney expressly stated that he was guilty, defendant in the present case was charged with two counts of home invasion, and one count each of armed robbery, aggravated battery, armed violence and residential burglary. Consequently, defense counsel’s statement during closing argument suggested that defendant, if guilty at all, was only guilty of a lesser-included offense of one of the several charges made against her. Defense counsel did so following a trial at which substantial evidence of defendant’s guilt was presented. Complainant testified that a few hours before the incident defendant had been in his apartment and had seen him remove a large sum of money from his left rear pants pocket, that just prior to the incident defendant had been in the apartment for about 15 minutes, after which she went to the front door, unlocked it and let two men into the room, and that the man who removed the money from complainant’s pocket did not first search complainant for the money but went directly to the pocket containing the money. Detective Marley testified that defendant told him that Selina suggested that they rob complainant’s apartment, that Selina told defendant to go to complainant’s apartment, wait 15 minutes, after which someone would come to the door, and that defendant should unlock the door and let them in. Defendant herself testified that she and Selina had talked about taking complainant’s money.

Having previously explained our rejection of the per se exception to the Strickland test as set out in Hattery, we now apply that test to the instant case. In view of the strength of the evidence recited above, we find the probability of a different verdict, even without counsel’s alleged error, to be negligible. Moreover, since defendant was charged with several offenses and the statement challenged by defendant as constituting ineffective assistance was a suggestion of defendant’s guilt to less than all of the offenses charged, we cannot say that counsel’s representation fell below an objective standard of reasonableness, especially in view of the strong and convincing evidence presented by the State. '

We next consider defendant’s contention that the State failed to prove beyond a reasonable doubt that defendant had the specific intent to promote or facilitate the commission of any of the offenses for which she was convicted. Defendant argues that she thought that a theft by an act of deception was going to occur, believing that Selina was planning to go to bed with complainant and then take the money out of his pants pocket. She further contends that when she opened the door, she had no idea that anyone was at the door, that she had opened the door only so that she could leave the apartment and that she had no knowledge that the offenses were going to occur until they actually took place.

A person is legally accountable for the conduct of another when either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid such other person in the planning or commission of the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 2(c).) To be accountable for the acts of another, one must have a specific intent to promote or facilitate the commission of a crime. (People v. Bolden (1978), 59 Ill. App. 3d 441, 447, 375 N.E.2d 898.) The State is deemed to have met its burden of proof that an accused possessed the specific intent to promote or facilitate the commission of the crime where it establishes beyond a reasonable doubt that defendant shared the criminal intent of the principal, or that there was a community of unlawful purpose. (People v. Hill (1977), 53 Ill. App. 3d 280, 284, 368 N.E.2d 714.) A community of purpose or common design may come as a result of either prior deliberation that the purpose or design be fulfilled by the commission of a specific offense, or the spontaneous and combined participation of a group in the perpetration of an offense. (People v. Hill, 53 Ill. App. 3d at 284.) The principle of accountability was set forth in People v. Owens (1975), 32 Ill. App. 3d 893, 895, 337 N.E.2d 60, where the court stated as follows:

“In order to convict a person under accountability principles, the State must prove (1) that defendant ‘solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offenses; (2) that this participation must have taken place either before or during the commission of the offenses; and (3) that it must have been with the concurrent, specific intent to promote or facilitate the commission of the offenses.’ [Citation.] Presence at the scene is not culpable and knowledge that the crime is being committed is not such an affirmative act as to constitute aiding or abetting.”

In addition to the above-stated rule of law, we are mindful of the fact that a reviewing court must examine the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461.) Moreover, a criminal conviction will not be reversed unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. (People v. Young, 128 Ill. 2d at 51.) Where inconsistencies and conflicts exist in the evidence, the trier of fact has the responsibility of weighing the credibility of the witnesses and resolving these conflicts and inconsistencies. (People v. Green (1989), 179 Ill. App. 3d 1, 17, 535 N.E.2d 413.) In a bench trial, this responsibility rests with the trial court, and the reviewing court will not substitute its judgment for that of the trier of fact when the evidence is merely conflicting. People v. Daniels (1984), 129 Ill. App. 3d 894, 898, 473 N.E.2d 517.

Applying these principles to the instant case, we find that the trial court’s finding of guilt was not so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. Complainant testified that defendant unlocked the door, after which the two men entered his apartment, struggled with him and took his money. He indicated that, about several hours before the incident, defendant had been in his apartment and seen him remove a large roll of money from his left rear pants pocket. According to his testimony, the men knew where the money was, since they did not first search him but went directly to the pocket containing the money. Detective Harley testified that defendant told him that Selina suggested to her that they rob complainant. Pursuant to Selina’s instructions, defendant went to the apartment and, after 15 minutes had passed, unlocked the door, thereby allowing the men to enter his apartment. Defendant told the detective that she was to receive $20 for her efforts. Defendant’s testimony contradicted Detective Harley’s testimony. According to defendant, there was no plan to rob complainant and she did not know that Selina was going to have someone go to complainant’s apartment. However, she did acknowledge that she and Selina had talked about taking complainant’s money, but that she thought that Selina was going to take the money after sleeping with him. Defendant indicated that if Selina got the money, she was going to give defendant $20 to repay a prior loan. The responsibility for weighing the credibility of these witnesses and resolving the conflicts between the testimony of Detective Harley and that of defendant rested with the trial court, and we will not substitute our judgment for that of the trial court when the evidence is merely conflicting. The testimony provided by complainant and Detective Harley established that defendant and Selina discussed and executed a plan to rob complainant. Conflicting testimony provided by defendant did not render their testimony so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. After reviewing the evidence in a light most favorable to the State, we find that defendant’s conduct in unlocking the apartment door aided in the commission of the offenses, and that evidence of her prior discussion with Selina about taking complainant’s money established that defendant did so with the specific intent to facilitate the commission of the offenses. Consequently, the State did prove defendant’s accountability for the offenses beyond a reasonable doubt.

Defendant also contends that the State failed to prove beyond a reasonable doubt that a dangerous weapon was used in the commission of the offense of home invasion. Defendant was charged and convicted of two counts of home invasion in that she knowingly and without authority entered complainant’s apartment knowing complainant was present and (1) while armed with a gun threatened the imminent use of force (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11(a)(1)) and (2) intentionally injured complainant in his apartment by striking him on the head with a hard object (Ill. Rev. Stat. 1987, ch. 38, par. 12— 11(a)(2)). Defendant argues that the State failed to prove beyond a reasonable doubt that a gun was used. In support of her argument, defendant points out that complainant first testified that each of the two men who entered the apartment had a gun in his hand, but that complainant later testified that only one of the men had a gun. Defendant also points out that neither complainant nor Bebe could describe the gun, and that no gun was recovered from defendant. Although complainant’s testimony may not have been clear as to whether there were one or two guns involved, he was certain that a gun was used. Moreover, it was for the trial court to resolve any conflicts or discrepancies in his testimony. (People v. Green, 179 Ill. App. 3d 1.) It is noteworthy that complainant initially testified that when the men entered the apartment, each man held a gun in his hand. Complainant subsequently testified that while he struggled with one of the men who held a gun, the other man hit him in the head with a hard object. A reasonable inference arises that such object was a gun. After examining complainant’s testimony in a light most favorable to the State, we find that evidence of the use of a gun was not so unsatisfactory as to warrant a reasonable doubt that a gun was used.

Defendant’s final contention is that the trial court erred in convicting her of two counts of home invasion because both counts arose from the same physical act of a single entry into complainant’s apartment. The State first contends that defendant waived this issue by failing to include it in her post-trial motion. The law provides that both trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) However, a court may take notice of plain errors or defects affecting substantial rights which were not brought to the trial court’s attention. (People v. Lowery (1988), 177 Ill. App. 3d 639, 642-43, 532 N.E.2d 414.) The imposition of an unauthorized sentence affects substantial rights. (People v. Lowery, 177 Ill. App. 3d at 645.) Consequently, we will address the merits of defendant’s claim.

The State argues that the incident involved separate actions performed by two different offenders, and that defendant must be held accountable for the actions of both men. In considering this issue, we note that the court has interpreted the home invasion statute to reflect the legislative intent to impose only one count of home invasion for one unlawful entry of one dwelling. (People v. Yarbrough (1987), 156 Ill. App. 3d 643, 509 N.E.2d 747; People v. Govednik (1986), 150 Ill. App. 3d 717, 502 N.E.2d 276.) Accordingly, had each of the men involved in the incident in the present case been charged, tried and convicted, each man would only have been convicted of one count of home invasion since each man made only one unlawful entry into the apartment. The State argues that defendant can be convicted on a separate count for each man. We disagree. Accountability is a legal theory whereby a defendant is held responsible for a crime which he personally did not commit, but which was committed by his accomplice. (People v. Skiles (1983), 115 Ill. App. 3d 816, 825, 450 N.E.2d 1212.) If the law places upon the accountable defendant all the liabilities arising from the acts of the accomplice, the law should also afford the accountable defendant the protections which would be afforded the accomplice, since the accountable defendant stands in the shoes of the accomplice. (People v. Skiles, 115 Ill. App. 3d at 826.) In People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, the supreme court prohibited multiple convictions where more than one offense was carved from the same physical act. Because each of defendant’s accomplices in the instant case made only one unlawful entry into complainant’s apartment, each could have been convicted of only one count of home invasion. Recognizing that defendant has the same protections provided under People v. King (66 Ill. 2d 551, 363 N.E.2d 838) as do her accomplices, defendant cannot be convicted of two counts of home invasion. Accordingly, we vacate the judgment and sentence on one of the two counts of home invasion, reducing the two concurrent sentences of six years’ imprisonment imposed for both counts to one six-year term.

For the foregoing reasons, we vacate one conviction for home invasion, and in all other respects we affirm the judgment of the circuit court.

Affirmed in part and vacated in part.

CERDA, P.J., and WHITE, J., concur.


author: JUSTICE LINN

text:
    DORIS WALTERS, Adm’r of the Estate of Charles Walters, Deceased, Plaintiff-Appellant, v. LINCOLN ELECTRIC COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 1—89—0426
    Opinion filed April 26, 1990.
    Mullen, Minella & Chase, of Chicago (John C. Mullen and Mary R. Minella, of counsel), for appellant.

      French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Kendal A. Crooks, John R Prusik, and Russell P. Veldenz, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Doris Walters, administrator of the estate of Charles Walters, filed a wrongful death action against Lincoln Electric Company, based upon a theory of strict liability for design defects in a portable arc welder. Her husband, Charles, was electrocuted in 1979 at his place of employment. Plaintiff alleged that the portable arc welder her husband had touched was defective in design and unreasonably dangerous because it did not contain an external grounding system in the event that the internal system failed. The jury returned a verdict in favor of Lincoln Electric. On appeal, Walters contends that she did not receive a fair trial, on these grounds: (1) defendant’s expert violated a motion in limine by referring to “OSHA” requirements; (2) plaintiff’s closing arguments were improperly curtailed, preventing her from arguing certain matters in evidence; (3) the court erred in refusing to give one of her instructions; and (4) the trial court abused its discretion in admitting evidence that Walters, the widow of the decedent, had remarried, and in barring damages as of the date of her remarriage.

We affirm.

Background

Charles Walters was electrocuted on July 27, 1979, while working at Fiat-Allis Manufacturing Plant in Springfield, Illinois. He was driving an earth-scraping vehicle into the plant for repairs when he saw that a portable arc welder was blocking the way. He got off of the vehicle to remove it. When he touched it, he was killed.

Lincoln Electric Company manufactured the arc welder. Plaintiff’s theory at trial was that the machine was defective in design and unreasonably dangerous because it did not contain an external grounding system for backup safety in the event its internal grounding system failed. In support, she called Professor Ralph Armington, P.E., to testify that the machine was not grounded at the time of the electrocution. The machine carried a lethal voltage of 480 volts to ground.

According to Armington, the welder should have incorporated an external ground, such as a cable hooked up with an external stud. The cable could be clamped to a water pipe or beam to ground the machine, which would have prevented Walter’s death by diverting the lethal charge, resulting in only a blown fuse. Dr. Armington also stated that the welder should have borne a warning sign directing that the machine should not be turned on until the external ground cable was attached.

Dr. Armington cited some of the ways in which the green ground wire could be made ineffective, such as when a high current gets into the circuitry and melts off the ground wire or when an extension cord with a defective ground wire is used.

Tom Farris, a sales representative and employee of Lincoln Electric, sent a letter to his employer concerning the accident. The information in the letter was supplied by Melton Electric Company, whom Farris had suggested to his employer as the “field service shop” who could investigate the accident. Farris spoke to people from Melton and prepared the letter, in which he repeated Melton’s information that the green wire, the one that grounded the welder internally, had become detached and shorted to one of the phase wires, causing the welder to become live electrically. At trial Ferris admitted writing the letter but testified that he did not have personal knowledge that the information contained therein was accurate.

The senior plant engineer of Fiat-Allis, Ralph Oakley, also investigated. He examined the machine, the input cable, and the plug shortly after the accident. He found that Fiat-Allis had connected a Crouse-Hinds plug to the imput cable which was then connected to the arc welder. He found nothing in the welder itself that caused the machine to become electrically live. He did not find anything wrong with the receptacle. However, when he took the Crouse-Hinds plug apart, he noticed that the white wire was cut and unconnected, and that the green cord, the internal ground, had been connected to a current carrying post in the male connector instead of to the grounding boss.

Lincoln Electric expert witnesses testified that the machine was not unreasonably dangerous with only an internal grounding system. If everything is properly connected, the machine is automatically grounded once the machine is plugged in. The witnesses testified as to various problems with an external grounding system. The ultimate user was responsible for connecting the input cables to the welder, and Lincoln shipped the welders without input cables. The machine also carried signs warning the user to be certain that the machine was properly grounded through the internal system and to have an electrician make the proper connections.

On the issue of the widow’s damages for loss of society, Walters sought to bar evidence that she had remarried four years after her husband’s death. The trial court denied the motion. According to her offer of proof, the two-year second marriage was disastrous to her because she had depleted her $20,000 savings to pay for her second husband’s luxuries, assumed his debts of $10,000, and was forced to take a $30,000 mortgage on her house. Despite her argument that her remarriage should not have extinguished her damages from the death of Charles Walters, the court instructed the jury that her damages were cut off as of the day of the second marriage.

The jury returned a verdict in favor of Lincoln Electric. Following a hearing on plaintiff’s post-trial motion for new trial, the trial court issued a written opinion denying that motion.

Opinion

Plaintiff alleges several trial errors that she claims denied her a fair trial.

First, she contends that Lincoln Electric violated an order in limine barring reference to the fact that the Occupational Safety and Health Administration (OSHA) had given Fiat-Allis a citation. The court agreed that this evidence should not be revealed to the jury. During the trial, plaintiff’s counsel asked the court to warn each witness not to refer to OSHA. During the testimony of Lawrence Bell, one of Lincoln Electric’s expert witnesses, the following exchange occurred:

“Q. [Defendant’s counsel]: Using Exhibit No. 2, which is Grouse-Hinds plug, would you describe to the jury what you’ve just been talking about?
A. Yes. This plug which is laid out here, this exhibit, the three boss prongs that you see are the prongs to which the power attaches and is transmitted from the power supply, and when this is plugged into the female portion of the plug, it transmits the power into here through the cable and then into the welder. Normally speaking and properly speaking, according to the National Electric Code and Safety regulations issued by OSHA require — .
[Plaintiff’s attorney]: Objection. Objection.
THE COURT: Last portion will be stricken. The jury will disregard.”

Plaintiff contends that the trial of this case should be reversed because she was prejudiced by this passing reference to OSHA. She believes that the comment “had the effect of telling the jury that Fiat-Allis had violated a mandatory government regulation [and] that this violation by Fiat-Allis, not Lincoln Electric, caused Charles Walters’ death.”

We do not agree. The mere mention of national safety regulations issued by OSHA in no way tells the jury that OSHA had investigated the matter or issued a citation against Fiat-Allis in this case. The witness was interrupted, the objection immediately sustained, and the jury was instructed to disregard. The sentence fragment in issue does not suggest what the specific OSHA requirements may be, and it is not likely that the jury could infer from the isolated reference to OSHA that a citation was issued in this case. Mr. Bell’s opinion that faulty wiring was to blame for the electrocution is one that he likely would hold regardless of the existence of OSHA requirements. In essence, his opinion was that someone had miswired the ground wire in the plug by connecting it to a prong that carried current, a fatal error that caused the frame of the welder to become electrically live when the power was turned on. Therefore, to the extent that this single reference to OSHA violated the order in limine, we hold that the error was harmless and does not compel retrial of this cause.

Next, plaintiff charges that because her attorney’s closing argument was interrupted with objections when he was commenting upon evidence of record, and the court sustained the objections, she was denied a fair trial. This controversy involves the testimony of her expert witness, Dr. Armington. In summation, plaintiff’s counsel was describing the different ways in which the green ground wire could be made ineffective. Dr. Armington had stated that one way was when it was disconnected or misconnected. According to the closing argument comments of plaintiff’s counsel, “In other involvements, he found a variety of ways in which it was made ineffective. One of these is where the wire was continuous into the receptacle and then from the receptacle back to the source of power, it was not continuous. He said this could have been because the conduit is dependent upon that for contact and there’s a loose fitting in the conduit which is not electrical — .”

At this point defense counsel objected on the grounds that there was no evidence supporting this statement. The court sustained the objection.

On a second occasion, plaintiff’s counsel was arguing, “it could be because there’s an extra wire for the purpose of grounding and that the wire is somewhere discontinuous. That was another — .

[Defendant’s counsel]: Further objection.”

The transcript of the proceedings reveals that plaintiff’s counsel was relating to the jury Dr. Armington’s examples of how the ground wire could be made ineffective. Significantly, however, he never testified that the actual cause of the electrocution was based on any of those other reasons, such as a loose fitting in the conduit or because of a discontinuous wire. Therefore, while counsel’s comments were based on statements of record, those statements referred to possibilities, not what actually occurred.

We believe that it would have been preferable to allow counsel broad latitude in repeating Dr. Armington’s testimony. Nevertheless, we fail to see how this rises to the level of reversible error. Dr. Armington’s opinion was offered in support of the theory that the arc welder was defective as designed, unreasonably unsafe because of the absence of a backup system to ground the machine in the event the internal grounding system failed. In that context, his examples of how the internal ground wire might become ineffective related to the theory that the manufacturer should have foreseen such problems and should have included an external system as part of the design. Such examples were not, however, properly offered to suggest that the electrocution was in fact caused by one of the other ways in which the wire could become ineffective. Therefore, the trial court might have believed that the jury would view these examples as other possible causes for the failure of the ground wire in this case, resulting in confusion or a mistaken view of the elements of proof. In fact, the trial court’s written opinion after hearing the post-trial motion suggests exactly that. The court noted, “It is true that a wire could be made ineffective in a certain manner. However, there was no testimony adduced at trial supporting an argument that the wire on the grounding machine was in fact made ineffective in any manner that the expert had opined. *** Counsel’s commentary was excluded from his argument in order to prevent him from confusing and misleading the jury into believing certain events had occurred when it was only the expert’s testimony that these events might have occurred.”

The trial court was in the better position to observe the impact of alleged misconduct; that court retains the sound discretion to determine whether the remarks or conduct of counsel interfered with the right to a fair trial. (Fultz v. Peart (1986), 144 Ill. App. 3d 364, 494 N.E.2d 212.) Absent a clear abuse of discretion, the reviewing court will not overturn the trial court’s determination as to the prejudicial effect of that remark or conduct. (Sawicki v. Kim (1983), 112 Ill. App. 3d 641, 445 N.E.2d 63.) In the pending case, plaintiff was not prevented from fully presenting her case because, regardless of why the green wire failed, her theory was that the external grounding system would have prevented the electrocution and therefore the arc as manufactured was unreasonably dangerous. Moreover, she was able to argue that Melton Electric believed that a wire had come loose and shorted to one of the phase wires, making the welder case hot to ground. We conclude that the trial court did not abuse its discretion in sustaining defendant’s objections to the two comments in closing argument.

Plaintiff’s third point of error relates to the court’s refusal to submit her instruction No. 8, which stated:

“A product may be considered unreasonably dangerous for failure to adopt any and all safety devices, the absence of which would render the product not reasonably safe for its intended use.”

The proposed instruction was not an Illinois Pattern Jury Instruction (IPI). Defendant argues that certain other IPI instructions adequately apprised the jury of her theory of the case, including No. 19, which informed the jury of her theory that the portable arc welder was unreasonably dangerous because it was designed and manufactured without an external grounding stud. Illinois Pattern Jury Instructions, Civil, No. 400.01 (3d ed. 1986 Supp.).

The failure to adopt “any and all” safety devices is a broad statement which, in our opinion, overemphasizes plaintiff’s position. (Cf. Drake v. Harrison (1987), 151 Ill. App. 3d 1082, 1087, 503 N.E.2d 1072.) Because plaintiff’s theory was that of a design defect (specifically, the lack of an external grounding system), we do not find that the jury should be invited to speculate on the more general failure to adopt any and all safety devices. (See Lay v. Knapp (1981), 93 Ill. App. 3d 855, 858-59, 417 N.E.2d 1099, 1101 (argumentative instructions highlight certain evidence in a partisan manner).) Instruction No. 19 adequately set forth the basis of her position and, along with the other instructions given, properly instructed the jury.

We conclude that plaintiff was not denied a fair trial. The jury was not hampered in considering all relevant evidence and law as to the parties’ respective positions. On the question of liability, the jury found in favor of Lincoln Electric.

Because the jury did not reach the issue of damages, we do not decide the final issue plaintiff raises, that evidence of her remarriage should have been barred. This is not a case where “errors which go to the question of damages may be so pervasive and prejudicial as to create the likelihood that they may have affected a jury’s decision on the issue of liability.” (Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 599-600, 294 N.E.2d 689, 694.) Here, the evidence of her remarriage, four years after Charles’ death, was simply irrelevant to the question of whether the arc welder was unreasonably dangerous, causing Charles’ death. We decline to. speculate that the jury, on its own, decided that she was not entitled to recover anything, simply because she eventually remarried.

For the foregoing reasons, we affirm the judgment of the trial court on the jury’s verdict and the trial court’s denial of plaintiff’s post-trial motion for new trial.

Affirmed.

McMORROW, P.J., and JOHNSON, J., concur.


author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONNELL STROUD, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—2601
    Opinion filed April 27, 1990.

      Lawrence D. O’Gara, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Elizabeth Sklarsky, Special Assistant State’s Attorney, and Inge Fryklund, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant Ronnell Stroud appeals from an order of the circuit court of Cook County dismissing his petition under the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.). Pursuant to People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158, and People v. Bostic (1988), 173 Ill. App. 3d 428, 527 N.E.2d 1109, defendant contends that the order of dismissal is void because it was entered more than 30 days after the petition was filed. Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(a).

In November 1983, defendant was found guilty of armed robbery after a jury trial in the circuit court of Cook County and sentenced to 15 years of imprisonment. This court affirmed defendant’s conviction on direct appeal in People v. Stroud (1985), 131 Ill. App. 3d 1163 (unpublished Rule 23 order). He subsequently filed a post-conviction petition through his attorney on January 7,1987.

The petition was assigned to a trial judge on February 24, 1987. The State filed a motion to dismiss the petition on March 22, 1987. Following some continuances, the court held a hearing on June 22, 1987. The petition was dismissed based upon principles of res judicata and waiver. No formal order of dismissal is in the record, but the report of proceedings indicates the court found that “the petition does not raise any constitutional grounds within the purview of the Post-Conviction Act.”

The State asserts that the petition was not summarily dismissed under section 122 — 2.1(a) of the Act,, and therefore the 30-day requirement is not applicable. The State points to the facts that defendant was represented by counsel and that the court considered its motion to dismiss before dismissing the petition. Based upon the facts herein, the State contends that People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158, and People v. Bostic (1988), 173 Ill. App. 3d 428, 527 N.E.2d 1109, do not control.

We agree with the State. Section 122 — 2.1(a) of the Act allows a summary dismissal of a pro se petition but requires that the trial court act upon such petition and enter an order within 30 days after the pro se petition has been filed and docketed. (People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158.) If the petition is not dismissed under section 122 — 2.1(a), it must be docketed for further consideration in accordance with sections 122 — 4 through 122 — 6 of the Act. (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 2.1(b); People v. McNeal (1989), 180 Ill. App. 3d 988, 536 N.E.2d 804.) Noncompliance with the 30-day requirement of section 122 — 2.1(a) renders a dismissal void. People v. Kerney (1988), 168 Ill. App. 3d 72, 522 N.E.2d 122.

The 30-day requirement of section 122 — 2.1(a) applies to summary dismissals. (People v. Phillips (1989), 183 Ill. App. 3d 417, 539 N.E.2d 804.) The Phillips court found that although the 30-day limitation in section 122 — 2.1(a) had expired, a dismissal order still could be entered. Porter only prohibits summary dismissals as described in section 122 — 2.1(a) beyond 30 days. The trial court may dismiss under section 122 — 5 beyond the 30-day requirement if the succeeding requisites of the Act have been met. People v. Phillips (1989), 183 Ill. App. 3d 417, 539 N.E.2d 804. See also People v. Nelson (1989), 182 Ill. App. 3d 1071, 538 N.E.2d 1303.

In the case at bar, the record shows a lack of a specific finding by the court that it was proceeding under section 122 — 2.1(b) of the Act. However, it is apparent that the court was proceeding in accordance with section 122 — 2.1(b) and not section 122 — 2.1(a) of the Act. Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(b).

Defendant was represented by counsel from the time the petition was filed. The State and defendant agreed to three continuances, and defendant obtained a continuance prior to the hearing on June 22, 1987. The State filed a motion to dismiss. A hearing was held at which defendant’s attorney was present. The court reviewed the issues in the petition and found no constitutional grounds to grant defendant relief under the Act. These circumstances show the court was not making a summary dismissal of the petition as contemplated under section 122 — 2.1(a). (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(a).) The court was operating under the remaining provisions of the Act since the 30-day period for summary dismissal had expired and defendant was represented by counsel. The trial court may act on the State’s motion to dismiss by granting it if it finds the motion meritorious and the petition frivolous. (People v. Phillips (1989), 183 Ill. App. 3d 417, 539 N.E.2d 804.) Porter holds that summary dismissal as provided in section 122 — 2.1(a) of the Act can be entered only within 30 days of the petition being docketed. People v. Phillips (1989), 183 Ill. App. 3d 417, 539 N.E.2d 804.

While the trial court could have been more explicit regarding the procedure being used under the Act as was the case in People v. Phillips (1989), 183 Ill. App. 3d 417, 539 N.E.2d 804, the record indicates that the court was proceeding pursuant to section 122 — 2.1(b) of the Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(b)). The 30-day requirement for summary dismissal was not applicable to the instant case. People v. Nelson (1989), 182 Ill. App. 3d 1071, 538 N.E.2d 1303.

The judgment of the circuit court is affirmed. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request and assess defendant $50 for this appeal.

Affirmed.

COCCIA, P.J., and PINCHAM, J., concur.

       Justice R. Eugene Pincham participated in the above-entitled cause, which was filed as a Rule 23 order prior to his resignation. An order to publish the Rule 23 as an opinion was filed February 1, 1990. Justice Pincham therefore remains as a participant in the opinion filed on April 27,1990.