author: JUSTICE LEWIS

text:
      In re ESTATE OF ARVILLA S. STANFORD, Deceased (Carole Miller, Petitioner-Appellee, v. Evelyn Bissey, as Ex’r of the Estate of Arvilla S. Stanford, Deceased, et al., Respondents-Appellants (Shirley Rathburn et al., Petitioners; H. Carroll Bayler et al., Appellants)).
    Fifth District
    No. 5 — 89—0450
    Opinion filed November 5, 1991.

      H. Carroll Bayler, of Louisville, and Thomas J. Logue, of Glenn & Logue, of Mattoon, for appellant Evelyn Bissey.
    James B. Wham, of Wham & Wham, of Centraba, for appellant Clay City Banking Company.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stephen K Swofford, Nancy G. Lischer, and Mark D. Bauman, of counsel), for appellant H. Carroll Bayler.
    Smith, McCollum & Higgle, of Flora, and Croegaert, Clark & Hough, Ltd., of Olney (Patrick L. Duke and Paul A. Croegaert, of counsel), for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

This cause comes on for appeal from the judgment of the circuit court of Clay County wherein the court determined that it lacked personal jurisdiction over one of the heirs, Carole Miller; vacated all orders entered following the admittance of Arvilla S. Stanford’s (the decedent’s) will to probate; and reopened the estate for probate. The court found that the notice requirements of section 6 — 10(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. ll01/2, par. 6 — 10(a)), regarding informing the heirs and legatees of their right to require formal proof of the will and their right to contest the admission or denial of the will to probate, had not been given, thereby denying the court personal jurisdiction over these parties. Three separate appeals have been filed as a result of the court’s order of May 22, 1989; one by the executrix, one by the attorney for the executrix, and one by executrix, the attorney for the executrix, and the trustee of the trust formed under the will. These separate appeals have been consolidated on appeal.

On appeal, the three appellants have each raised the primary issue of whether the court’s order vacating the orders entered after the admittance of the will to probate and the issuance of the letters testamentary was proper. The resolution of this issue will essentially dispose of the executrix’s and the trustee’s appeals. However, the attorney for the executrix (Bayler) also raises the following issues on appeal: (1) whether the court’s order reopening the estate must be vacated for failure to give notice of the petition filed pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401) to the necessary parties; (2) whether discovery should have been conducted before the granting of the section 2 — 1401 petition rather than after; (3) whether an evidentiary hearing should have been conducted on the section 2 — 1401 petition; and (4) whether Bayler’s due process rights were violated by the court and whether the court had jurisdiction to discipline him. We affirm the circuit court’s judgment for the reasons set forth below.

Before considering the issues raised on appeal, a history of this case is necessary. Arvilla S. Stanford, the decedent, died testate on February 14, 1986. On May 9, 1986, a petition for probate of the decedent’s will and a codicil to the will and for letters testamentary was filed with the court. In the petition for probate, the value of the estate was given and 74 heirs and legatees and their addresses were listed. In addition, the petition stated that there were unknown heirs at law. The will was admitted to probate, and letters testamentary were issued to Evelyn Bissey, the executrix named in the will and a legatee of the decedent, on May 12, 1986. No notice of the admittance of the will to probate or of the heirs’ and legatees’ rights under the statute were given to the heirs and legatees listed on the petition. A notice to the unknown heirs advising them of the admittance of the will to probate and of their rights under the statute (Ill. Rev. Stat. 1985, ch. 1101/2, pars. 6 — 21, 8 — 1) was published three times between May 14, 1986, and May 28, 1986. Three amendments to the petition for probate of the will, in which additional heirs were listed, were filed on November 19, 1986, May 18, 1987, and December 9, 1987. No notices to the additional heirs advising them of their rights pursuant to section 6 — 21 and section 8 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. ll01/2, pars. 6 — 21, 8 — 1) were mailed to the new heirs listed in the amended petitions.

Subsequently, numerous petitions were filed and orders were entered by the court in this probate proceeding. These petitions and corresponding orders were as follows: (1) a current report filed on November 24, 1986, and approved by the court that same day (this report also asked for, and the court approved, a partial distribution of the estate and included a request for fees for the executrix and her attorney); (2) a petition filed on December 1, 1986, to grant possession of the real estate and an order granting the petition entered that same day; (3) a petition filed on April 29, 1987, by the trustee (who had received $183,000 pursuant to the order of November 24, 1986, to fund a trust allegedly established under the decedent’s will) to invest funds and the court’s order of that same date granting the petition; (4) a petition filed on December 8, 1987, to sell real estate and oil royalty interests at public auction and the court’s order filed on April 13, 1988, allowing the sale, and a report of the sale of real estate filed on June 6, 1988, and approved by court order of that date; (5) an objection filed on September 8, 1988, by a purchaser of the real estate to the report of sale of the real estate because of irregularities in the sale, including failure to give notice, and an order entered on October 3, 1988, vacating the order approving the report of the sale of real estate; (6) a motion filed by the executrix on October 3, 1988, asking the court to vacate the order approving the report of sale of the real estate and to allow the executrix to sell the real estate at private sale for the offers received, and the court’s order of November 28, 1988, allowing the sale of the real estate pursuant to the recommendation of the executrix in her motion; (7) a final report by the executrix of the estate filed on December 6, 1988, in which the executrix asks for further fees for her and for her attorney and in which she asks the court to allow distribution of the remaining assets of the estate, and the court’s order of December 21, 1988, approving the final report and allowing distribution; (8) a motion filed on December 28, 1988, asking for the court to amend an order which allowed the sale of an oil royalty interest, in order to increase the size of the interest, as the original petition to sell the interest was erroneous, and the court’s order approving the change on the same date; and (9) the executrix’s report of distribution filed on February 27, 1989, and the court’s order of that date approving the distribution, discharging the executrix and closing the estate.

On March 3, 1989, after the closing of the estate, one of the heirs, Carole Miller (Miller) (along with other named petitioners), filed a petition and motion to vacate the court’s order and “for relief from orders or judgments.” In this petition, Miller took exception to six of the orders entered by the court, i.e., the order closing the estate; the order amending pleadings entered on December 28, 1988; the order approving the final report; the order confirming the report of sale of the real estate and the oil royalty interests; the order approving partial distribution of the estate; and the order approving the current report of November 1986. In addition, Miller raised the issue of lack of notice pursuant to section 6 — 10. She also raised other irregularities in the probate proceedings.

Following a hearing on Miller’s petition, the court entered an extensive order on May 22, 1989, in which the court determined that it did not have in personam jurisdiction over Miller. Because the court lacked personal jurisdiction over Miller, the court vacated all of the orders entered after May 12, 1986, when the decedent’s will was admitted to probate and letters testamentary were issued, and the court reopened the estate. Also in the findings portion of the court’s order, the court stated that Bayler’s purchase of one of the oil royalty interests, for a consideration of less than $100, on the same day as the interest was initially conveyed to the purchaser, Hubert Rose, when the attorney knew the interest had an appraised value of over $13,000, made out a prima facie case of fraud per se. The court stated that it was causing a copy of this order to be forwarded to the Attorney Registration and Disciplinary Commission (ARDC) for further investigation of the attorney’s conduct. Post-trial motions were filed and denied, and the executrix, the attorney for the executrix, and the trustee filed timely notices of appeal.

On appeal, the first issue raised is that the court erroneously vacated the prior orders in the probate proceeding and that the court had no authority to reopen the estate. It is the appellants’ position that the only order Miller was entitled to attack was the court’s order of February 27, 1989, as notice was given on the previous petitions filed in the court, thereby giving the court jurisdiction for the entering of these orders, and as the court’s previous orders, including the executrix’s final report, were each final and appealable and more than 30 days had passed since the entry of the orders, Miller’s challenge to these orders was untimely and the court lacked jurisdiction to vacate or modify these final orders. The appellants also contend that the court erred in reopening the estate since the final report was approved and the remainder of the estate was distributed; thus, there remained no newly discovered assets and there was no unsettled portion of the estate left to distribute. The appellants’ briefs go into lengthy discussions of each of the orders entered by the court and the notice given on the petitions filed and give extensive analysis as to why the various vehicles for challenging the probate proceedings are inappropriate, i.e., that section 24 — 9 of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. 1101/2, par. 24 — 9) is inappropriate to reopen the estate as all of the estate has been distributed and there is not any unsettled portion of the estate and there is not a newly discovered asset warranting reopening of the case; that section 2 — 1203(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203(a)) is inapplicable to those orders of the court as more than 30 days have passed since the order was entered and this section only applies to orders that have been entered less than 30 days previous; and that a collateral attack on the orders over 30 days old cannot be maintained under section 2 — 1401 as notice was given on these previous petitions, and thus, the court’s jurisdiction was not invoked through fraud, accident or mistake. However, the appellants, both before the circuit court and in their briefs on appeal, admit that the notice required under section 6 — 10(a) of the Probate Act was not given to any of the heirs and legatees. Nevertheless, it is their position that the circuit court could only reopen the proceedings so that this notice could be issued, and that the court could not vacate the other orders previously entered and could not reopen the probate proceeding for the purpose of collecting the distributed estate assets and reprobating the estate once jurisdiction was obtained over the heirs.

Without discussing the appellants’ various arguments, suffice it to say that the circuit court’s determination was correct. The court, in its order, stated:

“Subject matter jurisdiction is acquired by a court sitting in probate by the filing of a petition to admit the estate for probate, to appoint a fiduciary, and/or by filing the will, if any. In personam jurisdiction of the heirs and beneficiaries in a probate case is acquired by the compliance with the notice requirements of the Probate Act (Ill. Rev. Stat., Ch. ll01/2, paras. 6 — 10, §6 — 21 and Ch. 110A, para. 108). As a matter of law, these notice provisions in probate are the equivalent of service of process in a law or chancery case. Without such compliance, the court in probate lacks in personam jurisdiction of any heir or beneficiary who does not voluntarily appear generally.
Notice made other than as necessary under the Probate Act to perfect the Court’s in personam jurisdiction of the heirs and beneficiaries is ineffective to confer in personam jurisdiction, irrespective of how many times it is made, the form in which it is made, or that it was, in fact, received. Such a nonconforming notice in probate is no more sufficient to confer in personam jurisdiction than notice made in law or chancery actions without the benefit of service of process, or, if appropriate, publication and mailing.
The fraud, accident or mistake of attorney Bayler in failing to perfect notice pursuant to the statute upon admission of the will to probate deprived this Court of in personam jurisdiction ab initio. Where the court lacks in personam jurisdiction ab initio all that follows is voidable, if not void, irrespective of whatever other notice is provided, until such time as a party actually appears generally and thus submits to the jurisdiction of the court.”

We find that the circuit court’s order accurately reflected the law.

The only case uncovered in our research which appears to be applicable held that failure to give the required statutory notice deprived the court of jurisdiction to proceed with probate as it related to those persons not given notice. (Vogel v. Katz (1965), 64 Ill. App. 2d 126, 212 N.E.2d 295.) In Vogel, the executor listed Vogel, an heir of the decedent, on the petition to admit the will to probate and gave Vogel’s address thereon as simply “New York City.” Prior to the hearing on the executor’s petition for admission of the will to probate, no notice was mailed to Vogel of the pending petition. The court found that the executor failed to ascertain Vogel’s complete address, which he could have done through consulting another of the decedent’s relatives or by looking in the New York City telephone directory where Vogel’s home and work address were given, and that the court did not have jurisdiction to proceed with probate as it related to Vogel. The court also held that the fact that Vogel had actual knowledge of the decedent’s death and that she had left a will was insufficient to convey jurisdiction, since it is the prescribed notice given in the statute which invokes jurisdiction. (Vogel, 64 Ill. App. 2d 126, 212 N.E.2d 295.) Similarly, the court determined that failure to mail notice, as the statute required, cannot be cured by publication to “unknown heirs,” as this is not in compliance with the statutory notice provisions where the name and address of a named heir is readily ascertainable. (Vogel, 64 Ill. App. 2d 126, 212 N.E.2d 295.) The court in Vogel stated in pertinent part:

“[The failure to give notice as required by the statute] would defeat the basic scheme of the Probate Act, which is to notify the heirs (who would take an intestate decedent’s property) that a will is going to be presented for probate at a particular time and place so that they may appear if they so desire. Without this notice the court does not acquire jurisdiction, and the entire probate proceeding falls as to such unnotified heir. [(Ill. Rev. Stat. 1961, ch. 3, pars. 63, 64, 64b.)] The notice provided by statute must be given unless expressly waived, and it is on the strength of this notice requirement that the statute fixes the limited time for filing a will contest as commencing with admission of the will to probate. [Ill. Rev. Stat. 1961, ch. 3, par. 90].” (Vogel, 64 Ill. App. 2d at 131, 212 N.E.2d at 297-98.)

While this case was decided prior to the amendments that are in effect in the case sub judiee, the rationale remains the same, i.e., the notice advises the heirs of their rights and also gives a time frame from which the 42-day time limit (Ill. Rev. Stat. 1985, ch. 110/2, par. 6 — 21) for requiring formal proof of the will and the six-month time limit (Ill. Rev. Stat. 1985, ch. 1101/2, par. 8 — 1) for contesting the will can commence. Thus, since the circuit court in the instant case lacked personal jurisdiction of the heirs who had not appeared generally before the court (one of whom was Miller) due to the lack of compliance with the statutory notice requirements, any of the subsequent orders entered by the court after the admission of the will to probate without jurisdiction were void, regardless of the notice issued for each of the proceedings.

Because of our determination that the circuit court lacked personal jurisdiction over Miller, the appellants’ arguments, that the various vehicles for challenging the vacated orders are inapplicable, must fail. Whether Miller’s petition was brought under section 2 — 1203 or section 2 — 1401 is irrelevant, as the law is clear that if a court lacks jurisdiction over the parties, any judgment entered without jurisdiction is void and may be attacked and vacated at any time, either directly or collaterally. In re Marriage of Verdung (1989), 126 Ill. 2d 542, 535 N.E.2d 818.

In addition, because all of the orders entered after May 12, 1986, were vacated by the court, common sense dictates that the court reopen the estate and recommence probate once the appropriate notice has been given. This is so as all of the estate is unsettled and section 24 — 9 of the Probate Act applies. (Ill. Rev. Stat. 1989, ch. ll01/2, par. 24 — 9.) The court properly reopened the estate.

The appellants have also raised the issue that the court did not have jurisdiction to consider Miller’s petition to vacate the orders and reopen the estate as proper notice was not given to all of the necessary parties. The record reflects that the executrix, her attorney, the trustee’s attorney, and the other attorneys who had entered their appearances for various parties were given notice of Miller’s petition and in fact appeared on the date of the hearing on the petition. Here, the issue of notice is being raised by parties who were given notice of the proceeding. Where a party was given notice, he cannot complain that others were not notified. In re Estate of Millsap (1979), 75 Ill. 2d 247, 388 N.E.2d 374.

We next consider the issues raised by the executrix’s attorney, Bayler. Bayler contends initially that a section 2 — 1401 petition is subject to all the rules of civil practice, i.e., it must be treated like a complaint and state a cause of action, it must be supported by affidavits or other material, and that where fraud is alleged, as it was here, the petitioner must bear the burden of proof. It is Bayler’s position that Miller did not do this in her petition. In conjunction with this issue, Bayler raises the subissues that necessary parties were not served notice of Miller’s section 2 — 1401 petition, and therefore, the court did not have jurisdiction to hear the petition; that discovery should have been conducted before the granting of the section 2 — 1401 petition rather than after; and that an evidentiary hearing should have been held on the petition where the allegations in the petition are denied, thereby raising issues of fact.

Miller’s petition, entitled “Petition and Motion to Vacate Order and for Relief from Orders or Judgments,” did not identify what section of the statute under which she was proceeding. In this document, Miller raised several problems which arose during the administration of the estate. One of the issues raised in her petition was that the executrix failed to give the proper notice required under section 6 — 10 under the form prescribed by Supreme Court Rule 108 (134 Ill. 2d R. 108). The executrix admitted that she had failed to give this notice. It was upon this issue that the circuit court based its order, finding that it lacked personal jurisdiction from the outset of the administration of the estate. Where a pleading attacks a judgment for lack of personal jurisdiction due to defective notice, the pleading is not restricted to the requirements of the provisions of the Code of Civil Procedure relating to relief from judgments, and it is immaterial whether the moving party deems himself to be proceeding under section 2 — 1401, as a judgment against a party who has not been properly served and who has not entered an appearance is void. (In re Marriage of Parks (1984), 122 Ill. App. 3d 905, 461 N.E.2d 681.) In addition, there was no denial that notice was not given, and it was unnecessary for the court to conduct discovery or to hold an evidentiary hearing upon a conceded fact. With regard to Bayler’s contention about the lack of notice to necessary parties for Miller’s petition, this issue was previously discussed in this opinion and will not be reiterated here.

Bayler’s second and third issues concern the court’s “finding” that he committed fraud on the estate. Bayler contends that his due process rights were violated by the court’s finding that he committed fraud per se, as he was not given an opportunity to be heard on the charges. Bayler also asserts that the court lacked jurisdiction over his conduct or to impose discipline upon him.

The circuit court, in the findings portion of its order, enumerated certain facts of record which reflected poorly on Bayler’s conduct in the administration of the estate. One of the facts of record was that the largest oil royalty interest, which was conveyed to Hubert Rose following a private sale, was transferred to Bayler that same day for consideration of less than $100. When Bayler later petitioned the court to increase the amount of this same royalty interest, Bayler failed to disclose that he was the owner of the interest. The court determined that these facts made a prima facie showing of fraud per se under the case law; however, the court did not adjudge Bayler guilty of such conduct but referred the case to the Attorney Registration and Disciplinary Commission (ARDC) for further investigation. The court stated that, under the disciplinary rules, he was required to report Bayler’s conduct, which the court did by causing the circuit clerk to send a copy of the order to the ARDC for further investigation.

We find that the court acted properly and that Bayler’s due process rights were not violated. The Code of Professional Responsibility requires a lawyer to report knowledge of another attorney’s misconduct to a tribunal or other authority empowered to investigate or act upon the violation. (107 Ill. 2d R. 1 — 103(a).) This is what the judge did in this case. Bayler will be afforded an opportunity to defend his position, i.e., have his day in court, when his case comes up before the ARDC.

For the foregoing reasons, the judgment of the circuit court of Clay County, vacating the orders entered following the admission of the will to probate and the issuance of letters testamentary and reopening the estate, is affirmed.

Affirmed.

GOLDENHERSH and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN HAUN, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0064
    Opinion filed November 7, 1991.

      Brian D. Lewis, of Mitchell & Armstrong, Ltd., of Marion, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant Melvin Haun was charged by information with four counts of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1985, ch. 38, pars. 12— 14(b)(1), 12 — 16(c)(1).) A jury trial was held November 13 through 15, 1989. After the State rested its case, the court directed a verdict of not guilty as to two counts of aggravated criminal sexual assault. The jury found defendant guilty on all remaining counts. Defendant was sentenced to concurrent terms of imprisonment of 10 years on one count of aggravated criminal sexual assault and five years each on the two counts of aggravated criminal sexual abuse. The court imposed a consecutive 10-year sentence for the remaining count of aggravated criminal sexual assault.

Defendant appeals alleging: (1) the trial court erred in denying defendant’s motion in limine and admitting the testimony of Dr. St. Germaine; (2) the trial court erred in refusing to strike the testimony of State witnesses who had discussed defendant’s testimony with the prosecutor prior to testifying in rebuttal; (3) defendant was not proved guilty beyond a reasonable doubt; (4) the trial court erred in denying defendant’s motion for a new trial based upon newly discovered evidence; (5) the trial court’s cumulative errors deprived defendant of a fair trial; and (6) the trial court erred in imposing consecutive sentences. We affirm.

S.N., 15, testified regarding instances of sexual contact with defendant, her stepgrandfather, which occurred during the period September through November 1985, and during a period late in 1986. S.N. testified that in the fall of 1985, her family would frequently eat dinner with defendant and his wife at their home in the Makanda area, south of Carbondale, Illinois. S.N. stated that she occasionally accompanied defendant to Arnold’s Market at his request and that after buying groceries, they would sometimes take “a long way home,” driving past the Southern Illinois University (SIU) farms. On two occasions, defendant stopped his vehicle in different areas near the farms and sexually assaulted S.N. Once, defendant pulled his vehicle off the side of the paved road surface onto the gravel shoulder and forced S.N. to touch her lips to his penis. S.N. testified that on another occasion, defendant “pulled off into a road that was paved for just a little bit and then turned into a gravel, like a driveway kind of.” On this occasion, defendant fondled her breasts and vaginal area, touched his tongue to her vagina and placed her hand on his penis. S.N. further testified that in 1987, she directed police officer Pam Burke to the locations where these events had occurred and Burke took photographs. S.N. identified People’s exhibits Nos. 1 through 3 as photographs of Green Ridge Road, the partially paved road which she had testified was the site of one of the sexual assaults in the fall of 1985.

S.N. related another incident during the fall of 1985 when defendant was driving a green van. After going to Arnold’s Market, defendant stopped the van on a small gravel lane off Boskydell Road. Defendant put S.N. against the front seat or on the floor of the van, pulled her pants down and rubbed his penis against her vagina. S.N. identified People’s exhibits Nos. 4, 5 and 6 as pictures of the area near Boskydell Road where defendant had taken her.

S.N. testified that in October 1985 or 1986, she accompanied defendant to his office on the second floor of the SIU School of Technical Careers building so that he could pick up some papers. On this occasion, defendant pushed S.N. onto the floor of his office, partially removed her clothes, fondled her and rubbed his penis against her vagina.

S.N. related three incidents occurring at defendant’s home in the fall of 1986. On one occasion, defendant pushed her to the floor of his bedroom, pulled her pants down, fondled her and rubbed his penis against her. On another occasion, both were nude in defendant’s bedroom. Defendant, wearing a condom, attempted sexual intercourse but, failing to achieve penetration, stopped. Several nights later, S.N. had gone to sleep in the spare bedroom and defendant woke her, put a condom on his penis and penetrated her vagina. These last two incidents occurred in October 1986, while defendant’s wife was in the hospital.

Nancy N., S.N.’s mother, testified that she had been married to Robert Haun, defendant’s son, from 1982 until 1988. Nancy N. separated from Robert Haun on September 21, 1987, after S.N. complained that “Robert had his hands all over her.” Nancy N. confirmed that she, Robert Haun, and her daughters S.N. and C.N. had frequently gone to defendant’s house for dinner and that her daughters often spent the night there. Nancy N. testified that she recalled several occasions during the fall of 1985 through the fall of 1986 when S.N. and defendant went together to the grocery store, to pick up school papers in defendant’s office at SIU or to select or return video tapes. Nancy N. noticed that on several of these occasions S.N. and defendant were gone quite a long time. Nancy N. stated that although her daughters usually wanted to spend the night with defendant and his wife, S.N. had made an objection on more than one occasion when her mother encouraged her to accompany defendant to the store. Although S.N. had once complained to her fifth-grade teacher, sometime in 1984 or 1985, that her stepfather Robert had been touching her, she had never complained about defendant to anyone until she was questioned by police and case workers from the Department of Children and Family Services (DCFS) following the September 1987 incident with her stepfather.

Monica Joost, a member of the Illinois State Police, Division of Criminal Investigation, testified that she interviewed S.N. in November 1987. Officer Joost testified that S.N. related various incidents involving defendant that had occurred in 1985 and 1986, described locations in Jackson County where the incidents had occurred and told Officer Joost how to get to these locations. S.N. described an area near the SIU farms, a gravel road off Boskydell Road, a building on the SIU campus containing defendant’s office, and defendant’s residence. S.N. told Officer Joost that the road near the SIU farms was paved in the beginning and then turned to gravel, and that she had been to that location with defendant approximately five times in as many as three different vehicles. Officer Joost testified that S.N. told her the incident in defendant’s office occurred when she was in the sixth grade, in the fall of 1986. Officer Joost stated that S.N. was somewhat confused regarding the dates of some of the incidents.

Pam Burke, an investigator with the Illinois State Police, testified that she met with S.N. in late December 1987, for the purpose of having her show Ms. Burke some of the locations in Jackson County where the incidents involving defendant had occurred. S.N. directed Ms. Burke to the School of Technical Careers and College of Engineering and Technology Building on the SIU campus, then to another location past the SIU farms on Green Ridge Road. Ms. Burke testified that Green Ridge Road was paved for approximately 75 yards before it turned to gravel and that S.N. directed her to stop at the top of a hill seven-tenths of a mile from the intersection of Green Ridge and Union Hills Road. S.N. then directed Ms. Burke down Boskydell Road to a gravel road just past a small bridge. Ms. Burke took photographs, which she identified as People’s exhibits Nos. 1 through 8, at the three locations.

Dr. Diana St. Germaine testified that she is in family practice in Anna, Illinois, and is a consultant for DCFS, examining children in relation to sex-abuse cases. Dr. St. Germaine examined S.N. on October 14, 1987, on a referral from DCFS. During the interview portion of the examination, S.N. related that her stepfather and stepgrandfather had sexually abused her. Dr. St. Germaine testified that S.N. had been fairly shy, had not wanted to freely answer questions, and seemed embarrassed, uncomfortable and emotionally upset, even crying at one point. The doctor testified that the fact she could easily insert her index finger into S.N.’s vagina, together with her demeanor and history, were findings consistent with sexual abuse. Dr. St. Germaine admitted that she could not say, based on the physical examination, who the perpetrator had been and that her findings would have also been consistent with the practice of masturbation.

Defendant called Mary Katherine Woods, who testified that she had been S.N.’s fifth-grade teacher at Unity Point School. Ms. Woods recalled that S.N. had once complained that her stepfather had been “messing with her.” Ms. Woods turned this information over to the principal, who contacted S.N.’s mother. Ms. Woods testified that although Nancy N. was upset, she stated that S.N. was having a hard time getting adjusted to her new stepfather and that S.N. was not getting as much attention from her mother as she had before the marriage.

Officer Richard Evans, Illinois State Police, testified that during a September 23, 1987, interview, S.N. reported that she had had sexual intercourse with her stepfather from the time she was in the fourth grade until the previous day. Officer Evans stated that the vast majority of his conversation with S.N. concerned Robert Haun and that defendant’s name was not mentioned until the end of the interview when she was asked if anyone else had ever abused her. S.N. then stated that she had been penetrated by her stepgrandfather, using either his penis or a finger, approximately 15 times and that the last time had occurred when she was 11 years old and in the sixth grade. Officer Evans also testified that S.N. stated she had performed oral sex on her stepgrandfather twice at his home.

Alvena Valesco, a family friend, and William Shape, a co-worker of defendant, presented evidence as to the good character and reputation of defendant. Defendant then testified in his own behalf, denying that he had ever done any of the acts testified to by S.N.. Defendant testified that he was retired from the United States Army after serving 21 years, with tours in both Korea and Vietnam. Defendant stated that he was a professor at SIU in the field of electronic technology and acted as a student advisor and special-needs contact person, listening to student problems and referring them to the appropriate agency for help.

Defendant further testified that in 1983, S.N. and her mother, sister and stepfather, defendant’s son, lived with defendant and his wife for approximately three months. During this time, defendant provided food, clothing and shelter for his son’s family. After the family moved out of defendant’s house, they continued to come over for meals on a regular basis.

Defendant testified that he had taken S.N. and her sister to the grocery store at times, but that they usually went to National or Kroger’s and not to Arnold’s. Defendant stated that the two girls would “pester” him to go and vehemently denied ever having taken the “long way home” in order to fondle S.N. Defendant testified that the location south of the SIU farms, identified by S.N. as a scene of sexual contact, was in the same area as Egon Kamarasy’s house. Defendant, his wife, S.N. and her family had gone to this area to look at horses because S.N. was “crazy about horses.” Defendant and S.N.’s family had also been to the area on Boskydell Road many times to look at horses. Contrary to S.N.’s testimony, defendant stated that his office was on the third floor of the technical building, not the second, and that S.N. had been there many times.

Defendant testified that he was very close to his stepgrandchildren, including S.N., and treated them no differently than his own grandchildren. He characterized S.N. as having a very vindictive nature and stated that no one ever forced her to do anything. Defendant testified that several weeks before the allegations against him were made by S.N. in 1987, she became upset when her mother refused to allow her to remain at defendant’s house for the night. After S.N. “threw a fit” for about 20 minutes, defendant and his son Robert “picked her up physically and put her in the trunk of the car,” which upset her greatly.

Thereafter, pursuant to a request made by the State, the prosecution was granted permission by the court to examine defendant’s penis regarding the existence of a wart testified to by defendant. A law clerk in the State’s Attorneys office, testified that defendant had a mole-like darkened spot approximately a quarter-inch wide on the left side of his foreskin.

The State then called Nancy N., who testified in rebuttal that she had never gone with her family and defendant to a horse farm located near the SIU farms or to see horses in the Boskydell Road area. S.N. testified in rebuttal that she had not gone with her family and defendant to either of the rural areas where she alleged the sexual assaults had occurred for the purpose of viewing horses. S.N. denied that she was ever confidential or close with defendant. Under cross-examination, S.N. testified that she was told “little bits and pieces” of defendant’s testimony by the prosecutor prior to her rebuttal testimony and that the prosecutor had also spoken to her mother.

Defendant testified in surrebuttal that the growth on his penis became raised and enlarged when he had an erection. Defendant stated that the growth was not a mole but rather a venereal wart or cyst, according to “the doctors,” and that it would be “quite observable” to anyone touching his penis.

Defendant first argues that the trial court erred in denying his motion in limine to bar the testimony of Dr. St. Germaine. The defendant contends that Dr. St. Germaine’s testimony was irrelevant, prejudicial and inadmissible because S.N. admitted to having been abused by someone other than defendant; thus, the doctor’s opinion had no probative value because the doctor could not link the abuse to defendant.

The trial court has wide discretion in determining the admissibility of expert testimony and that decision will not be overturned on review unless clearly and prejudicially erroneous. (People v. Jackson (1986), 145 Ill. App. 3d 626, 635, 495 N.E.2d 1207, 1215.) Furthermore, a trial court’s determination as to the proper balance between the probative value of evidence and its prejudicial effect should not be disturbed unless the court has abused its discretion. (People v. Remsen (1978), 60 Ill. App. 3d 266, 270, 376 N.E.2d 726, 729.) Evidence which is otherwise relevant will not be excluded merely because it may prejudice the accused. (Jackson, 145 Ill. App. 3d at 635, 495 N.E.2d at 1215.) “Relevant evidence” is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence. People v. Boclair (1989), 129 Ill. 2d 458, 477, 544 N.E.2d 715, 723.

In the case at bar, Dr. St. Germaine’s expert testimony that S.N. exhibited signs consistent with having been sexually abused was relevant and probative to whether the crimes occurred. As the State suggests, the fact that Dr. St. Germaine could not express an opinion as to the identity of the perpetrator goes to the weight of her testimony and not its admissibility. Further, the record shows the jury was well informed of the perimeters of the doctor’s opinion. We therefore cannot say that the trial court’s determination that the probative value of this expert testimony outweighed the possibility of prejudice to defendant was clearly erroneous.

Defendant next contends that the trial court erred in allowing S.N. and her mother to testify in rebuttal because the State had violated the rule on witnesses by speaking with the two regarding defendant’s testimony. Prior to the presentation of any evidence at trial, the court entered a rule on witnesses “to make sure that no witness is present in the courtroom while another witness testifies, so that one witness may not hear another witness’ testimony.” Defendant contends that the State violated this rule where, although the rebuttal witnesses had been barred from the courtroom so they would not hear other testimony, the prosecutor talked with them about defendant’s testimony.

The “rule on witnesses” is a common rule of criminal trial practice which favors the exclusion of all witnesses not testifying. However, violation of this custom is not reversible error absent an affirmative showing of prejudice. (People v. Toolen (1983), 116 Ill. App. 3d 632, 647, 451 N.E.2d 1364, 1375.) In People v. Miller (1962), 26 Ill. 2d 305, 307, 186 N.E.2d 317, 318, the defendant argued that he was prejudiced by a witness’ presence in the courtroom when the main prosecution witness was testifying. Although the witness complained of, a police officer, corroborated the testimony of the main prosecution witness, the Miller court rejected the argument that defendant was prejudiced, noting that the defendant had not shown the officer’s testimony would have been different had he been excluded from the courtroom. (26 Ill. 2d at 307-08, 186 N.E.2d at 318.) Similarly here, defendant has not demonstrated that he was unfairly prejudiced by the testimony of the two rebuttal witnesses and the record does not indicate that their testimony would have been different had they not been informed by the prosecutor of the content of defendant’s testimony.

Additionally, as the trial court noted, the rebuttal testimony was not decisive, being limited to collateral matters such as whether S.N., her family and defendant had ever been to visit horses in the areas where she testified the abuse occurred. Therefore, even if the prosecutor’s actions violated the court’s rule on witnesses, where defendant has established no prejudice, the trial court did not err in refusing to strike the testimony of the rebuttal witnesses or to grant a mistrial.

Defendant next contends that the evidence was insufficient to sustain his conviction because S.N.’s testimony was neither clear and convincing nor substantially corroborated by other evidence. However, the standard to be used in reviewing the sufficiency of the evidence in all criminal cases is proof beyond a reasonable doubt, whether the evidence is direct or circumstantial. People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346; People v. Mitchell (1991), 215 Ill. App. 3d 849, 861, 576 N.E.2d 78, 86.

In cases where a sex offense is charged, the State is no longer required to demonstrate that the victim’s testimony is either clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt. (Mitchell, 215 Ill. App. 3d at 861, 576 N.E.2d at 86; People v. Roy (1990), 201 Ill. App. 3d 166, 185, 558 N.E.2d 1208, 1221; see also People v. Meador (1991), 210 Ill. App. 3d 829, 831, 568 N.E.2d 1386, 1387.) Therefore, the appropriate standard of review when a challenge to the sufficiency of the evidence is presented is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Schott (1991), 145 Ill. 2d 188; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267; Mitchell, 215 Ill. App. 3d at 861, 576 N.E.2d at 86.

In the instant case, defendant was convicted of one count of aggravated criminal sexual assault which occurred between September and November 1985 and two counts of aggravated criminal sexual abuse and one count of aggravated criminal sexual assault which occurred between September and November 1986. At trial, S.N. testified that numerous instances of sexual contact with defendant had occurred during these time periods, and she gave clear and detailed descriptions of the four incidents upon which defendant’s convictions were based.

S.N. testified that during the fall of 1985, she had, on several occasions, accompanied defendant to the market and then taken the “long way home.” On one particular occasion, defendant pulled off onto the gravel shoulder of a paved road near the SIU farms and forced her to touch her lips to his penis.

S.N. also testified to three incidents occurring at defendant’s home during September through November 1986. S.N. testified that defendant fondled her while she lay on the floor in his bedroom, and that on another occasion they were on the bed in his bedroom and defendant attempted intercourse. S.N. further testified that several days later she was sleeping in the spare bedroom of defendant’s home when defendant woke her, put on a condom and then had intercourse with her.

Both Officer Joost and Investigator Burke stated that S.N. identified several locations where sexual contact with defendant had occurred, including defendant’s home and the area near the SIU farms. Although S.N. did not describe specific locations or incidents to Officer Evans, he stated that his interview was primarily confined to abuse by Robert Haun. S.N. did tell Evans that defendant had abused or assaulted her numerous times between approximately 1985 and 1987.

The resolution of factual disputes and the assessment of the credibility of witnesses are for the trier of fact. (Meador, 210 Ill. App. 3d at 832, 268 N.E.2d at 1388.) The discrepancies alleged by defendant, between S.N.’s testimony regarding the precise time and nature of some of the incidents and her prior statements, do not render her testimony incredible. Such minor discrepancies affect only the weight of the victim’s testimony and are to be evaluated by the trier of fact. (210 Ill. App. 3d at 832, 268 N.E.2d at 1388.) Viewing all the evidence in the light most favorable to the prosecution, a rational trier of fact could have found defendant guilty of aggravated criminal sexual assault and aggravated criminal sexual abuse. We therefore conclude that the jury’s finding is not so unsatisfactory, unreasonable or improbable as to raise a reasonable doubt of defendant’s guilt.

Defendant further asserts that the trial court erred in denying his motion for a new trial based upon newly discovered evidence. Specifically, defendant contends that S.N. testified that one of the locations where defendant had assaulted her in 1985 was down a road that was paved for a short distance and then turned into gravel. Defendant asserts that newly discovered evidence impeaches this testimony where it shows that this road, identified at trial as Green Ridge Road, was not partially paved until 1987, two years after S.N. said the incident occurred.

Initially, the State argues that this issue is waived where defendant failed to attach to his motion for a new trial based on newly discovered evidence supporting affidavits from the witnesses who would testify at retrial or failed to sufficiently explain the lack thereof. (See People v. Gray (1981), 96 Ill. App. 3d 757, 762, 422 N.E.2d 45, 49; People v. Knebel (1981), 94 Ill. App. 3d 773, 774, 419 N.E.2d 105, 106.) However, at the hearing on defendant’s motion, the State did not argue that the motion was insufficient due to the lack of affidavits, nor did the court make such a finding. Defendant’s motion sufficiently described the new evidence, its source and the circumstances surrounding its discovery, and the court was aware that the witnesses involved were prepared to testify at the hearing. Therefore, we will not consider the issue waived for purposes of review. Compare Gray, 96 Ill. App. 3d at 762, 422 N.E.2d at 49.

To warrant a new trial based upon newly discovered evidence, the new evidence must be of such conclusive character that it will probably change the result upon retrial; it must be material to the issue and not merely cumulative; and it must have been discovered after trial and not have been discoverable before trial through the exercise of due diligence. (People v. DeCesare (1989), 190 Ill. App. 3d 934, 943, 547 N.E.2d 650, 656; People v. Molstad (1984), 101 Ill. 2d 128, 134, 461 N.E.2d 398, 402.) Such motions are not favored and will be subjected to the closest scrutiny. (DeCesare, 190 Ill. App. 3d at 943, 547 N.E.2d at 656.) The decision to grant or deny a motion for a new trial based on newly discovered evidence is discretionary with the trial court, whose ruling will not be disturbed on review absent a showing of manifest abuse. People v. Hughes (1984), 121 Ill. App. 3d 992, 1002, 460 N.E.2d 485, 492; People v. Waldroud (1987), 163 Ill. App. 3d 316, 319, 516 N.E.2d 623, 625.

In the instant case, although it appears that defense counsel had exercised due diligence in discovering the evidence of when Green Ridge Road was partially paved, the trial court denied defendant’s motion for a new trial on the ground that the evidence “d[id] not rise to the level under the correct status of the law of being a basis for a new trial.” We agree. Newly discovered evidence which only has the affect of impeaching, discrediting, or contradicting the witness does not require a new trial. See People v. Nolden (1980), 91 Ill. App. 3d 532, 542-43, 414 N.E.2d 1124, 1132; Hughes, 121 Ill. App. 3d at 1002, 460 N.E.2d at 493.

Here, where the new evidence has only impeachment value and is concerned solely with the location of one of the incidents and not the crimes themselves, this evidence was not so conclusive as to affect the result upon retrial. (See Waldroud, 163 Ill. App. 3d at 319-20, 516 N.E.2d at 625-26 (defendant not entitled to new trial where new evidence relating to lighting condition at scene of crime, which would have impeached testimony of complaining witnesses, was not such as to change outcome of trial).) Based on the standards set forth above, this court cannot conclude that the trial court abused its discretion in denying defendant a new trial based on the evidence concerning Green Ridge Road.

Defendant next contends that even if each alleged error was not prejudicial, the cumulative effect of the trial court’s errors denied defendant a fair trial. However, in view of our finding that no errors were committed by the trial court, it is our judgment that defendant was prejudiced neither individually nor cumulatively. See People v. Bodoh (1990), 200 Ill. App. 3d 415, 432, 558 N.E.2d 178, 189; see also People v. Humphrey (1980), 89 Ill. App. 3d 673, 678, 411 N.E.2d 1228, 1232 (where defendant has not shown prejudice, prejudice cannot arise as a cumulative effect).

Finally, defendant contends that the trial court erred in imposing consecutive sentences, given the evidence in mitigation and the fact that the court’s only stated reason for imposing a consecutive sentence was that one act (count IV) was a separate and distinct offense, having been committed during another period of time than the remaining counts. However, section 5 — 8—4(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(b)), which requires that the court “shall set forth in the record” the basis for its determination that consecutive sentences are “required to protect the public from further criminal conduct by the defendant,” has been held permissive rather than mandatory and is waived if the defendant does not request a specific finding relative to that sentence. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(b); People v. Hicks (1984), 101 Ill. 2d 366, 374, 462 N.E.2d 473, 476-77.) In the instant case, defendant did not request a statement of reasons for the consecutive sentence imposed, and therefore, his objection to the trial court’s failure to enumerate its reasons is waived.

Furthermore, section 5 — 8—4(a) of the Code requires the trial court to impose consecutive sentences in cases of multiple felony convictions when one of the offenses is criminal sexual assault or aggravated criminal sexual assault, and imposition of consecutive sentences under such conditions is not limited to cases where the convictions arise from offenses committed as part of a single course of conduct. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a)); People v. Ewald (1991), 210 Ill. App. 3d 7, 568 N.E.2d 451.) Here, defendant was convicted, inter alia, of one count of aggravated criminal sexual assault which occurred in 1985 and one count of aggravated criminal sexual assault which occurred in 1986. We find, therefore, that the record establishes a sufficient basis for the trial court’s imposition of a consecutive sentence.

It is well settled that the trial court is accorded wide latitude in sentencing, and its decision is entitled to great deference and weight on review. (People v. Perruquet (1983), 118 Ill. App. 3d 293, 299, 454 N.E.2d 1055, 1060.) Here, the trial court considered the fact that defendant had no prior contacts with the law and had, until this matter, “led an exemplary life.” The court imposed a significantly more lenient sentence than the 46-year term requested by the State. We find, therefore, that the trial court did not abuse its discretion in sentencing defendant.

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

Affirmed.

GOLDENHERSH and CHAPMAN, JJ., concur.


author: JUSTICE HOWERTON

text:
    DAVID SELPH et al., Plaintiffs-Appellants, v. NORTH WAYNE COMMUNITY UNIT SCHOOL DISTRICT No. 200, Defendant-Appellee.
    Fifth District
    No. 5 — 90—0552
    Opinion filed November 12, 1991.

      Michael J. Hanagan, of Hanagan & Dousman, of Mt. Vernon, for appellants.
    Michael W. Klobnak, of Smith, McCollum & Higgle, of Flora, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff was playing speedball during a required physical education class at Cisne Community High School. Another player, while attempting to kick the ball, kicked plaintiff’s right shin, breaking plaintiff’s lower leg. Plaintiff and his father sued the school district alleging failure to furnish protective shinguards.

The circuit court, relying on Woodson v. North Chicago Community School District No. 6f (1989), 187 Ill. App. 3d 168, 543 N.E.2d 290, dismissed plaintiffs’ complaint, ruling that plaintiffs failed to allege that: (1) plaintiff was engaged in a school-related activity; (2) plaintiff’s injury was one which commonly occurs as a result of that activity; (3) plaintiff’s injury was severe-, and (4) the equipment the school district failed to supply would have been fit for the purpose of preventing the injury. We reverse and remand.

A motion to dismiss for failure to state a cause of action should be affirmed on appeal only where no set of facts can be proven under the pleadings which will entitle the plaintiff to relief. (Huebner v. Hunter Packing Co. (1978), 59 Ill. App. 3d 563, 375 N.E.2d 873.) The question for us to consider is whether the four items set forth by the circuit court and listed in the paragraph immediately above are indeed pleading requirements.

SCHOOL-RELATED ACTIVITY

The record reveals, and defendant concedes, that the complaint did allege that plaintiff was engaged in a school-related activity. Paragraph three of plaintiffs’ complaint states:

“The plaintiff *** was a pupil enrolled at the defendant, NORTH WAYNE COMMUNITY UNIT SCHOOL DISTRICT No. 200, and participating in required physical education instruction at Cisne Community High School.”

COMMON AND SEVERE

The circuit court, citing Woodson v. North Chicago Community School District No. 6k (1989), 187 Ill. App. 3d 168, 543 N.E.2d 290, stated that plaintiff must allege that his injuries are “common” and “severe.” Plaintiffs, relying upon Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, and Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447, argue that “common” and “severe” are not pleading requirements. We agree with plaintiffs.

The Illinois Supreme Court in Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, held that school districts have the duty of ordinary care in furnishing athletic equipment. (Gerrity, 71 Ill. 2d at 52, 373 N.E.2d at 1326.) The supreme court extended the Gerrity rule in Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447, holding that a school district has not only a duty to furnish safe equipment, but also an affirmative duty to provide equipment to prevent injuries. In so holding, the court stated:

“We think a school district has an affirmative duty, where students are engaging in school activities, whether they are extracurricular, or formally authorized as part of the school program, to furnish equipment to prevent serious injuries. At the least, a school district should furnish helmets and face guards for a game such as football, where head injuries are common and severe.” (Emphasis added.) Lynch, 82 Ill. 2d at 434-35, 412 N.E.2d at 459.

In Woodson v. North Chicago Community School District No. 64 (1989), 187 Ill. App. 3d 168, 543 N.E.2d 290, the Illinois Appellate Court, Second District, seemed to transform Lynch’s “common and severe” phrase into a pleading requirement, stating: “[t]o allege sufficiently a breach of the duty of ordinary care, plaintiffs were required to state specific facts tending to show *** that the injury he suffered is one which commonly occurs as a result of that activity, [and] that his injury was severe.” Woodson, 187 Ill. App. 3d at 173, 543 N.E.2d at 292.

To the extent that Woodson may be read to require that plaintiff plead that his injury was “common” and “severe,” we disagree. We conclude that the language, “common and severe,” in Lynch, was dictum, for the court had already established that a school board had an affirmative duty to furnish safe equipment and the phrase “common and severe” merely was exegetic of the ruling, emphasizing that the cause of action was foreseeable. Transforming “common” and “severe” into pleading requirements seems to us to be bad law, because that transformation would force circuit courts to decide a threshold question of law without any definable standard for judging an injury to be either “common” or “severe.” Furthermore, a determination whether an injury is “common” or “severe” at the pleading stage is not only, to some extent, a factual determination, which might entitle plaintiff to an evidentiary hearing, but is also marred by another defect: it would create inconsistent results, because whether an injury is judged to be “common” or “severe” necessarily depends on the subjective sensibilities of each circuit court judge.

We know of no tort law requiring plaintiff to specifically plead that his injuries are “common” and “severe” (see Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323; Ausmus v. Board of Education (1987), 155 Ill. App. 3d 705, 508 N.E.2d 298; Bowers v. DuPage County Regional Board of School Trustees District No. 4 (1989), 183 Ill. App. 3d 367, 539 N.E.2d 246; Jastram v. Lake Villa School District 41 (1989), 192 Ill. App. 3d 599, 549 N.E.2d 9); therefore, we hold that “common” and “severe” are not pleading requirements.

EQUIPMENT WOULD HAVE BEEN FIT FOR THE PURPOSE OF PREVENTING THE INJURY

The circuit court, again relying on Woodson, dismissed plaintiffs’ complaint for failure to state that the equipment defendant failed to supply would have been fit for the purpose of preventing the injury. In holding that “fit for the purpose of preventing the injury” was a pleading requirement (Woodson, 187 Ill. App. 3d at 173, 543 N.E.2d at 292), Woodson relied on language in Gerrity, a case in which plaintiff sued the school for providing an ill-fitting and inadequate helmet. Gerrity held that a school district has a duty of ordinary care in furnishing equipment, stating that “public policy considerations argue rather strongly against any interpretation which would relax a school district’s obligation to insure that equipment provided for students in connection with activities of this type is fit for the purpose.” (Gerrity, 71 Ill. 2d at 52, 373 N.E.2d at 1326.) We disagree. The distinction between the case at hand and Gerrity is that, here, plaintiff alleged a failure to provide any equipment at all, whereas in Gerrity, plaintiff alleged that the equipment provided was inadequate. Reliance on Gerrity is, therefore, misplaced. We hold that where plaintiff sues defendant for failure to provide equipment, pleading that the product defendant failed to supply would have been fit for the purpose of preventing the injury is not required, and we do not address whether “fit for the purpose of preventing the injury” is a pleading requirement in an action for failure to provide proper equipment.

We focus now on plaintiffs’ complaint. For plaintiffs’ complaint to be sufficient, it must allege that plaintiff was engaged in a school-related activity (Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447) and must set out facts establishing the existence of a duty of care owed by defendant to plaintiff, a breach of that duty, and an injury which is the proximate result of that breach. (Teter v. Clemens (1986), 112 Ill. 2d 252, 492 N.E.2d 1340.) Plaintiffs’ complaint provided, in part, that defendant negligently:

“Requir[ed] DAVID SELPH to participate in a group activity similar to soccer, known as speedball, without furnishing plaintiff with protective shinguards, when it knew, or should have known that the safety of said plaintiff would thereby be endangered.
Required] DAVID SELPH to participate in a group activity similar to soccer, known as speedball, without telling the plaintiff that shinguards should be used, when it knew, or in the exercise of ordinary care should have known, that such failure on its part endangered said plaintiff.
Failed to supply DAVID SELPH with protective shinguards, when it knew, or should have known[,] that such failure endangered said plaintiff.
Failed to give DAVID SELPH the option of not participating in such sport without protective shinguards, when defendant knew, or in the exercise of ordinary care should have known, that without such shinguards the safety of said plaintiff was endangered.
As a direct and proximate result of one or more of the foregoing negligent and careless acts or omissions of the defendant, DAVID SELPH sustained severe leg injuries when another player unintentionally kicked the plaintiff in his right shin while participating in said game.
Further, DAVID SELPH has sustained disability from said injuries to his leg;
Further, DAVID SELPH has in the past and will in the future experience pain and suffering as a result of the injuries;
Further, DAVID SELPH has sustained disfigurement as a result of the injuries ***.”

We find plaintiffs’ complaint sufficient to withstand a motion to dismiss, and the order dismissing plaintiffs’ complaint for failure to state a cause of action, therefore, is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

WELCH and HARRISON, JJ., concur.


text:
    ROBERT MIRLY et al., Plaintiffs-Appellants, v. STEPHANIE BASOLA et al., Defendants-Appellees.
    Fifth District
    No. 5 — 91—0408
    Opinion filed November 12, 1991.

      Coulson & Grimm, of Collinsville (Wesley J. Coulson, of counsel), for appellants.
    William C. Evers III, of Collinsville, for appellee Carla Hall.
    Couri & Couri, of Winnetka (Phillip E. Couri, of counsel), for appellees Stephanie Basóla and Barthalomew P. Basóla.
    Edward T. McCarthy, of Edwardsville, for appellee Douglas Hartmann.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiffs, Robert and Dorothy Mirly, have appealed under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) from an order of the circuit court of Madison County which dismissed certain counts of their complaint against defendants, Stephanie Basola, Barthalomew Basola, Douglas Hartmann, d/b/a Hartmann Realtors, Carla Hall, and the Illinois Department of Professional Regulation Estate Recovery-Fund. For the reasons which follow, the appeal is dismissed.

The basic facts are these. Stephanie Basola, through her son, Barthalomew, hired Douglas Hartmann of Hartmann Realtors to help her sell her house. The asking price was $45,000. Plaintiffs made a written offer to buy the house for that sum and tendered a $500 earnest money deposit to Hartmann in his capacity as the seller’s agent. Although plaintiffs believed their offer had been accepted, Basola subsequently attempted to sell the house to someone else, Carla Hall, for a higher price.

Plaintiffs responded by filing this action in the circuit court of Madison County. Their complaint was in 10 counts. Counts I and II sought specific performance and incidental damages from Stephanie Basola for breach of what plaintiffs claimed was an express written contract to sell the house. Count III paralleled counts I and II but sought recovery based on breach of an implied rather than an express contract.

Count IV alleged misrepresentation by Stephanie and Barthalomew Basola, while count V alleged misrepresentation by Douglas Hartmann, d/b/a Hartmann Realtors. Count VI charged that Hartmann and Barthalomew and Stephanie Basola had violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 1211/2, par. 261 et seq.), and count VII claimed that Hartmann had breached a fiduciary duty he owed to plaintiffs.

Count VIII asserted a claim for intentional interference with contract by Barthalomew Basola, Hartmann and Carla Hall. Count IX alleged that Hall, Hartmann and Barthalomew Basola had conspired to intentionally interfere with plaintiffs’ contract with Stephanie Basola. Finally, count X asked that the Department of Professional Regulation Real Estate Recovery Fund be required to pay to plaintiffs the amount of any judgment entered in their favor against Hartmann “involving acts or conduct in violation of the rules and regulations of [the Department of Professional Regulation] governing the acts and conduct of realtors, to such extent as Defendant Hartmann fails to pay such judgment.”

On defendants’ motion, the circuit court dismissed counts I, II, III, VIII and IX on the grounds that the claims asserted therein were barred by the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 59, par. 1 et seq.). The dismissal of these counts was reaffirmed in a subsequent order issued by the court on March 22, 1991. The March order also dismissed count VI to the extent that it sought recovery against Barthalomew Basóla. Count VII was dismissed as well, but the court ruled that plaintiffs could amend any of the dismissed counts by requesting leave to do so within 30 days. Plaintiffs sought such leave.

After the March 22 order was entered, the case was assigned to a different judge. In an order entered on May 24, 1991, the new judge expressly adopted his predecessor’s determination that counts I through III, VIII and IX were barred by the Statute of Frauds. Pursuant to a request made by defendant Hall, however, the court made a written finding that there was “no just reason for delaying enforcement or appeal” of its orders dismissing those counts. Having made that finding, the court decided to reserve a ruling both on plaintiffs’ motion for leave to file an amended complaint and on a defense motion to dismiss count IV, “pending guidance from the Appellate Court.” This appeal followed.

Before proceeding to the merits of this appeal, we must determine whether we have jurisdiction. Although no jurisdictional challenge has been raised by the parties, we have an independent duty to consider our jurisdiction and to dismiss an appeal on our own motion when jurisdiction is lacking. Brown v. K.J.S. Co. (1989), 189 Ill. App. 3d 768, 770, 545 N.E.2d 555, 556.

In this case, plaintiffs attempt to invoke our jurisdiction under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). That rule provides that in an action such as this involving “multiple parties or multiple claims for relief ***, [no] appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims *** [unless] the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.” (134 Ill. 2d R. 304(a).) Although the circuit court here clearly made such a finding, that is not dispositive. The fact that an order contains the language specified by the rule will not operate to make an otherwise nonfinal order appealable. (Metzger v. Fitzsimmons (1988), 175 Ill. App. 3d 674, 675, 529 N.E.2d 1179, 1180.) To determine the finality of an order, the court must examine its substance as opposed to its form. Gutenkauf v. Gutenkauf (1979), 69 Ill. App. 3d 871, 873, 387 N.E.2d 918, 920.

Under this standard, none of the orders entered by the court here can be regarded as final. The circuit court’s order of March 22 plainly authorized plaintiffs to seek leave to amend any count of their complaint dismissed by the court, and plaintiffs subsequently requested such leave. They did not elect to stand on their original pleadings. Where, as here, a circuit court dismisses counts of a complaint but indicates that it will entertain an amended complaint upon a timely motion and the plaintiff does not elect to stand on the stricken counts, the circuit court’s dismissal order does not constitute a “final judgment” which can be appealed under Supreme Court Rule 304(a) (134 Ill. 2d.R. 304(a)). United Air Lines, Inc. v. CEI Industries of Illinois, Inc. (1986), 148 Ill. App. 3d 332, 343-44, 499 N.E.2d 558, 565.

Nothing in the text of the court’s May 24 order alters this conclusion. In that order, the circuit court did not purport to revoke plaintiffs’ right to seek leave to file an amended complaint. It merely reserved a ruling on plaintiffs’ motion for leave to do so “pending guidance from the Appellate Court” with respect to the issues raised by its previous dismissal orders. It took this action based on the view that resolution of the propriety of the previous dismissal orders before proceeding further would “lead to a more efficient use of the time of all concerned.” From this, it appears that what the circuit court actually had in mind was the situation provided for in Supreme Court Rule 308 (134 Ill. 2d R. 308), not that contemplated by Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a)) states that the appellate court may, in its discretion, allow an appeal from an interlocutory order, not otherwise appealable, where that order involves a question of law “as to which there is substantial ground for difference of opinion and *** an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Before an interlocutory appeal may be brought under this rule, however, the trial court must make a written finding that the order involves such a question of law, and it must identify the question of law involved. In this case, the May 24 order of the circuit court does neither of these things. Rule 308 (134 Ill. 2d R. 308) therefore cannot serve as a predicate for this appeal. (Jursich v. Arlington Heights Federal Savings & Loan Association (1980), 83 Ill. App. 3d 352, 353, 403 N.E.2d 1260, 1262.) Because we can see no other possible basis for exercising our jurisdiction, the appeal must be dismissed.

Appeal dismissed.

CHAPMAN and HOWERTON, JJ., concur.


author: JUSTICE GOLDE NHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUDY K. GOLD, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0094
    Opinion filed November 12, 1991.
    Thomas E. Hildebrand, of Hildebrand & Cagle, of Granite City, for appellant.
    William R. Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDE NHERSH

delivered the opinion of the court:

Defendant, Judy K. Gold, pleaded guilty to the charge of involuntary manslaughter (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(a)) and was sentenced to an extended, 10-year term of imprisonment by the circuit court of Madison County. In this appeal, defendant contends: (1) that the trial court failed to properly consider the factors in mitigation in sentencing defendant, (2) that the trial court gave undue weight to the factors in aggravation, and (3) that the sentence was excessive. We affirm.

The morning of August 3, 1989, Kimberly Weber dropped off her two-year-old son, Justin Weber, at defendant’s residence. Defendant was Justin’s baby-sitter and had cared for him on numerous prior occasions. That afternoon at approximately 4:30 p.m., Mrs. Weber returned to defendant’s house to pick up her son. Upon entering defendant’s house, Mrs. Weber found Justin lying on the couch, apparently sleeping. Defendant told Mrs. Weber that Justin had been on the couch since approximately 1:30 p.m. Mrs. Weber tried unsuccessfully to awaken her son, and as she picked him up, she noticed blood coming from his mouth. He remained unresponsive. Justin was taken to Alton Memorial Hospital by ambulance and transferred to Cardinal Glennon Hospital in St. Louis, Missouri, where tests revealed that Justin suffered from a severe subdural hematoma. He underwent brain surgery, but surgeons were unable to repair the damage, and Justin died three days later.

The undisputed evidence shows that Justin was killed as a result of being shaken with a significant degree of force. He was diagnosed with shaken-infant syndrome, a condition seen in infants and small children. Due to the nature of underdeveloped neck muscles in infants and small children, the result of such a person being shaken can be brain damage or, as in this case, death. It was further undisputed that the victim had been shaken violently enough to cause his death during the time he was in defendant’s care.

Defendant was charged with involuntary manslaughter, a Class 3 felony, and pleaded guilty to that charge on October 5, 1989. The plea was an “open plea,” meaning that defendant could seek probation, and the State could seek any applicable sentence, including an extended term. After a hearing on factors in aggravation and mitigation, the trial court sentenced defendant to an extended term of 10 years’ imprisonment. Defendant appeals that sentence.

We find the issue on appeal to be whether the trial court properly imposed a 10-year, extended-term sentence, considering the factors in aggravation and mitigation. Defendant argues that the trial court failed to properly consider factors in mitigation and gave undue weight to factors in aggravation. At the sentencing hearing, the court heard evidence on various mitigating factors as codified in section 5— 5 — 3.1 of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.1). Defendant presented evidence that: (1) she had no prior criminal history, (2) she was remorseful about the incident, (3) she had a good relationship with her two-year-old son, who would suffer if she was incarcerated, (4) a prison term would endanger her mental health, and (5) she is likely to comply with the terms of a period of probation.

The record reveals that the trial judge sufficiently examined all mitigating factors individually and collectively:

“Fve carefully considered all of the factors in mitigation and aggravation. There is no magical formula or mathematical equation that I can equate to one factor as opposed to another factor. I look at the factors in mitigation, I consider the fact that the Defendant has no prior history, or prior delinquency of any criminal activity whatsoever. And that the Defendant has led an exemplary life up to this time as a law abiding citizen.
There is a factor whether or not these criminal circumstances, criminal conduct is likely to reoccur, I have taken that into consideration. I heard ample evidence about the effect that imprisonment of the Defendant would have on her dependents, also whether *** imprisonment would endanger the medical condition *** of the Defendant ***.
I weigh that against the factors in aggravation. I looked at all the factors.”

The trial court then turned to factors in aggravation as set forth in section 5 — 5—3.2 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2). The court found it significant that the victim was two years old and that defendant was hired to care for him. The trial court emphasized the incidence of child abuse and neglect in our society and decided that a term of imprisonment would serve to deter defendant and others from such conduct. The court also found defendant eligible for an extended-term sentence under section 5 — 5— 3.2(b)(4)(i) (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.2(b)(4)(i)), which provides that when the victim of a felony is under 12 years of age, the defendant qualifies for an extended term of imprisonment. An extended term of imprisonment for a Class 3 felony is not less than five years and not more than 10 years. Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-2(a)(5).

The standard of review is clear. Sentencing is a matter of discretion, and absent an abuse of discretion, the sentence will not be altered on review. (People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.) Our supreme court has consistently held that it is not an appellate court’s function to serve as a sentencing court, and we will not substitute our judgment for that of the trial court. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541, 547; People v. Perruquet (1977), 68 Ill. 2d 149, 156, 368 N.E.2d 882, 885.) As stated in Perruquet:

“[T]he trial judge is normally in a better position to determine the punishment to be imposed than the courts of review. [Citations.] A reasoned judgment as to the proper sentence to be imposed *** depends upon many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. [Citation.] The trial judge, in the course of the *** sentencing hearing, has an opportunity to consider these factors ‘which is superior to that afforded by the cold record in this court.’ ” 68 Ill. 2d at 154, 368 N.E.2d at 884, quoting People v. Morgan (1974), 59 Ill. 2d 276, 282, 319 N.E.2d 764, 768.

We do not find an abuse of discretion in this case. Defendant argues that the trial court improperly weighed the factors in aggravation and mitigation, but we find no such error. It is undisputed that defendant’s actions caused the death of a two-year-old child, the victim’s age being a factor in aggravation which the General Assembly deems appropriate for an extended-term sentence. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2.) The court also properly considered deterrence as a factor in sentencing defendant. Defendant argues that the deterrence factor should not have been considered in this case, citing People v. Martin (1988), 119 Ill. 2d 453, 519 N.E.2d 884, as support. Martin held that the plain error doctrine could be used in reviewing a maximum sentence imposed on a conviction of involuntary manslaughter when the only aggravating factors considered by the court were harm to the victim and deterrence. (119 Ill. 2d at 458, 519 N.E.2d at 886-87.) The Martin court further stated that deterrence has, at best, a marginal applicability to the circumstances surrounding involuntary manslaughter in that the offense involves an unintentional killing. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3; Martin, 119 Ill. 2d at 459, 519 N.E.2d at 887.) Martin can be distinguished from the case at bar, however, since the instant case presents an additional factor in aggravation not present in Martin, the age of the victim. The record shows that the deterrence factor mentioned by the trial court was not the primary reason behind defendant’s extended-term sentence.

Finally, defendant contends that the trial court’s consideration of the harm inflicted upon the victim was reversible error. Citing People v. Martin again, defendant argues that the trial court’s consideration that defendant’s conduct caused serious bodily harm as a factor in aggravation at a sentencing of involuntary manslaughter was plain error. (119 Ill. 2d 453, 519 N.E.2d 884.) The court in Martin clarified its previous holding in People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138, by stating:

“[T]he degree of harm ‘may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted’ (emphasis in original) ***.” (People v. Martin (1988), 119 Ill. 2d at 461, 519 N.E.2d at 887-88, quoting Saldivar, 113 Ill. 2d at 269, 497 N.E.2d at 1143.)

The Martin court went on to say that the trial court in that case imposed a greater sentence solely because the defendant’s actions resulted in death, which was improper since death is implicit in the charge of involuntary manslaughter and cannot by itself be considered as a factor in aggravation. (119 Ill. 2d at 461, 519 N.E.2d at 888.) The manner of death inflicted upon a victim by a defendant is still a proper consideration, however, according to Martin. 119 Ill. 2d at 461, 519 N.E.2d at 888.

Here, the trial court briefly mentioned defendant’s conduct causing harm to the victim as a factor in aggravation. The court failed to specify whether it considered defendant’s conduct in relation to the victim’s manner of death, or whether it considered only that defendant’s conduct caused the victim’s death. Even if the court’s consideration of this factor was improper, reliance on an improper aggravating factor in a sentencing proceeding does not per se require remand for resentencing. When a reviewing court is unable to determine the weight given to an improperly considered factor, the cause must be remanded for resentencing. (People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338, 1341.) The record in this case shows the trial court mentioned defendant’s conduct causing harm to the victim only in passing, and in the context of imposing this sentence the conduct carried little weight.

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

Affirmed.

HARRISON and LEWIS, JJ., concur.


author: PRESIDING JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MIKA TIMBER COMPANY, INC., Defendant-Appellee.
    Fifth District
    No. 5 — 90—0008
    Opinion filed November 12, 1991.
    Neil F. Hartigan, Attorney General, of Springfield (Robert Ruiz, Solicitor General, of Chicago, and Edward W. Dwyer, Assistant Attorney General, of Springfield, of counsel), for the People.
    David P. Rau, of Law Offices of Rau & Cooper, of Red Bud, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

The State of Illinois, plaintiff, appeals from the denial by the circuit court of Randolph County of its application for a preliminary injunction to enjoin defendant, Mika Timber Company, Inc. (Mika), from further operation until its wood-treatment facility near Sparta, Illinois, is in complete compliance with the Illinois Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1001 et seq.) and regulations promulgated thereunder by the Illinois Pollution Control Board. We reverse.

Mika is a wood-treatment facility whose operation involves the impregnation of wood timber with creosote. This is accomplished by placing the timber in a treatment cylinder with creosote and heating it, and then removing and allowing it to dry. After several inspections of the facility, the State believed Mika’s operations encompassed numerous violations, namely air and water pollution violations and hazardous waste storage, storage tank, permit, security, inspection and records violations. The State therefore sought to enjoin Mika’s operations by way of a preliminary injunction. With respect to the alleged air pollution violations, however, the trial court granted Mika’s motion for judgment pursuant to section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1110) at the close of the State’s case. And, after the rest of the case was presented, the court granted judgment for Mika on all remaining charges, finding that the State failed to establish to which category of “generator” Mika belonged and therefore which regulations applied to it.

The State argues on appeal the trial court erred in denying its application for a preliminary injunction. Pursuant to our understanding of section 42(e) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1042(e)), we must agree, even without reaching individually all of the State’s contentions. Section 42(e) states:

“The State’s Attorney of the county in which the violation occurred, or the Attorney General, may, at the request of the Agency or on his own motion, institute a civil action for an injunction to restrain violations of this Act.” (Ill. Rev. Stat. 1987, ch. lll1/2, par. 1042(e).)

An action for injunctive relief under this section is not governed by the usual equitable principles for a preliminary injunction. Rather, the plaintiff need only allege and show the defendant’s violation of the Act and that plaintiff has standing to bring the action. (See People v. Van Tran Electric Corp. (1987), 152 Ill. App. 3d 175, 184, 503 N.E.2d 1179, 1185; People v. Keeven (1979), 68 Ill. App. 3d 91, 97, 385 N.E.2d 804, 808.) Absent is the necessity to prove irreparable damage or the lack of an adequate remedy at law. Such common law requirements for the issuance of equitable relief are suspended because the legislature has already determined, in passing the applicable statute, that violations of the statute cause irreparable injury for which no adequate remedy exists. (People ex rel. Edgar v. Miller (1982), 110 Ill. App. 3d 264, 269, 441 N.E.2d 1328, 1331; Keeven, 68 Ill. App. 3d at 97, 385 N.E.2d at 808.) Moreover, once a violation has been shown, the trial court has no discretion to refuse to issue an injunction to enforce the terms of the Act. Van Tran Electric, 152 Ill. App. 3d at 184. 503 N.E.2d at 1185.

Undeniably, the State had standing to bring its application for injunctive relief against Mika in this instance. (See Ill. Rev. Stat. 1987, ch. 1111/2, pars. 1042(e), 1043(a).) The question then becomes whether the State established any statutory violations by Mika. We believe the State sufficiently established such violations when it presented uncontradicted evidence that Mika is operating its facility without obtaining or having obtained air construction and/or operating permits as required by section 9 of the Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1009) and sections 201.142 and 201.143 of title 35 of the Administrative Code (35 Ill. Adm. Code §§201.142, 201.143 (1985)), no matter what type of generator Mika is. Even Mika acknowledges it never obtained such permits, and in fact, concedes it applied for and was denied the permits on two separate occasions in 1985 and 1989. Clearly, Mika’s failure to obtain the necessary permits while still operating its facility constitutes a continuing violation of the Act. On this basis alone, the State was entitled to a preliminary injunction enjoining Mika from further violations of the Act. (See Mystik Tape v. Pollution Control Board (1975), 60 Ill. 2d 330, 338-41, 328 N.E.2d 5, 9-11; Van Tran Electric, 152 Ill. App. 3d at 184, 503 N.E.2d at 1185; Keeven, 68 Ill. App. 3d at 97, 385 N.E.2d at 808.) The trial court accordingly abused its discretion in denying the State’s application for a preliminary injunction.

For the aforementioned reasons, we find that the circuit court of Randolph County erred in refusing the preliminary injunctive relief sought by the State. We therefore reverse the court’s order denying such relief and remand this cause for further proceedings.

Reversed and remanded.

WELCH and GOLDENHERSH, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID ROLLAND, Defendant-Appellee.
    Fifth District
    No. 5 — 90—0381
    Opinion filed November 13, 1991.
    William R. Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On November 19, 1989, the defendant, David Rolland, was arrested and charged with simple battery. An appearance date was set for December 20, 1989. On that day Mr. Rolland appeared in court and entered a plea of guilty to the battery charge and paid the assessed fine of $100. On January 16, 1990, the State filed a motion to vacate and set aside the defendant’s guilty plea. This motion was granted on February 20, 1990. The misdemeanor charge of battery was nol-prossed, and on May 10, 1990, the defendant was indicted for the offenses of attempted first-degree murder, armed violence, and aggravated battery. The defendant’s motion to dismiss the charges was granted, and the trial court held that the principles of double jeopardy precluded the reprosecution of the defendant. The State appeals the dismissal of the charges. We affirm.

On the evening of November 18, 1989, at Flick’s Old Time Saloon in Madison County, Illinois, the victim, Michael Ridens, sat at a table speaking with relatives of the band. Shortly before closing time the defendant, David Rolland, approached Mr. Ridens with an empty glass beer pitcher in his hand and struck him in the face and head with the pitcher.

When Illinois State Trooper Brian Ropac arrived, Mr. Ridens had already been transported to the hospital. After interviewing witnesses, Ropac arrested the defendant, placed him in the squad car, and drove to Highland Hospital to see if the victim would sign a complaint against the defendant. At the hospital Ropac noted that Ridens’ forehead and mouth were severely bruised and that his face was split from his nose to his mouth. Ridens, according to Ropac, was not fully coherent and did not know who had hit him. Ropac then transported defendant to the Madison County jail, where he was advised of his rights and made a statement. The defendant was issued a citation charging him with misdemeanor battery and setting an appearance date of December 20, 1989. Defendant posted bond and was released on November 19, 1989. A verified complaint was filed by Trooper Ropac the next day, November 20,1989.

Unbeknownst to Ropac or the State’s Attorney’s Office, Michael Ridens’ condition deteriorated, and he fell into a coma. Ridens was transferred to St. Louis University Medical Center, where a craniotomy was performed to treat his head injuries, which included a subdural hematoma and dural bleeding. Ridens remained in a coma with recurring high fever spikes attributable to damage done to the area of the brain controlling body temperature. The record reveals that Ridens’ comatose condition was essentially unchanged as of April 1990.

On December 13 or 14, 1989, Assistant State’s Attorney Greg Erthal was contacted by the State police and notified that the victim’s condition was much worse than originally believed. At that time the State’s Attorney’s office decided to dismiss the misdemeanor battery charge and to file felony charges against the defendant. Mr. Erthal notified the circuit clerk’s office that he intended to drop the misdemeanor battery charge and file felony charges. Erthal asked that the defendant’s file be found and held for that purpose. On December 20, 1989, the date set for the defendant’s appearance, Assistant State’s Attorney Erthal went to the clerk’s office, but he could not locate defendant’s file, which had already been sent to the courtroom with the other first appearance files.

Defendant appeared in court on December 20, approached three men sitting at a table, and asked if any more charges had been filed against him. He was told that no other charges had been filed. A short time later Deputy Sheriff Don Bridick, a court liaison officer who routinely filled out guilty plea forms, called defendant’s name and asked him what he wanted to do. Defendant replied he would plead guilty to the misdemeanor battery charge and pay the $100 fine suggested by Deputy Sheriff Bridick. Defendant subsequently entered his plea with the court, and a fine of $100 was imposed. At some time Mr. Erthal called the defendant back to the table and told him that he could not accept the defendant’s guilty plea since other charges were going to be filed. Mr. Erthal then notified the court of his intentions and was told to file a written motion to vacate the sentence and the plea.

On January 16, 1990, Erthal filed a motion to vacate and set aside plea. This motion was granted, and the battery charge was nolprossed on February 20, 1990. On May 10, 1990, a Madison County grand jury indicted the defendant for attempted first-degree murder, armed violence, and aggravated battery. Defendant filed a motion to dismiss alleging that prosecution was barred by a former prosecution. The court granted defendant’s motion to dismiss on grounds of double jeopardy. The court held that jeopardy had attached at the time the defendant’s guilty plea to misdemeanor battery was entered and that the entry of judgment was not void.

Double jeopardy is prohibited both under the Constitution of the United States, “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb” (U.S. Const., amend. V), and under section 10, article I, of the Constitution of Illinois, “No person shall *** be twice put in jeopardy for the same offense.” (Ill. Const. 1970, art. I, §10.) Section 3 — 4(b)(1) of the Criminal Code of 1961 provides:

“(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, or for the same offense based upon different facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense of which the defendant could have been convicted on the former prosecution; or was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3 — 3 of this Code (unless the court ordered a separate trial of such charge); or was for an offense which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution, or the offense was not consummated when the former trial began. (Emphasis added.)” (Ill. Rev. Stat. 1989, ch. 38, par. 3-4(b)(l).)

The People argue that the trial court’s acceptance of the guilty plea to the misdemeanor battery charge was void and thus could not bar subsequent prosecution since no jeopardy could attach as a result of a void judgment. The People claim that Deputy Sheriff Don Bridick acted without the proper authority of the State’s Attorney’s office and that the court’s acceptance of the defendant’s guilty plea and entry of judgment thereon was void. A void judgment is one entered by a court that lacks the inherent power to make or enter the particular order involved and may be attacked at any time either directly or collaterally. (People v. Wade (1987), 116 Ill. 2d 1, 5, 506 N.E.2d 954, 955.) Such a judgment would be a nullity, and the double jeopardy clauses of the Federal and State Constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10) would not bar subsequent prosecution. People v. Pankey (1983), 94 Ill. 2d 12, 19, 445 N.E.2d 284, 288-89.

The circuit court found that Deputy Bridick acted with the implied authority of the State’s Attorney’s office and as such the judgment was not void and could not be vacated. Implied authority is defined as actual authority proved circumstantially and is implied from facts and circumstances. (Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 863, 504 N.E.2d 1284, 1295; Illinois Armored Car Corp. v. Industrial Comm’n (1990), 205 Ill. App. 3d 993, 998, 563 N.E.2d 951, 955.) The evidence indicated that Deputy Bridick frequently handled dockets in the manner that he did in the instant case and that he had been doing so for at least the previous 18 months with the full knowledge and acquiescence of the State’s Attorney’s office. The People do not now argue that the many pleas accepted by Deputy Bridick and his predecessors are void. The record supports the trial court’s finding of implied authority on the part of Deputy Bridick. The judgment, therefore, was not void, and jeopardy did attach.

The State attempts to distinguish the United States Supreme Court’s holding in Grady v. Corbin (1990), 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084, on the grounds that the original plea in Grady was not void. However, the trial court has found that the original plea in the instant case was valid, and we conclude that the record supports its finding. This being said, Grady becomes applicable and the words of the Court equally appropriate:

“This record represents another example of an unfortunate lapse in orderly prosecutorial procedures, in part, no doubt, because of the enormous increase in the workload of the often understaffed prosecutor’s offices. The heavy workload may well explain these episodes, but it does not excuse them.” Grady v. Corbin (1990), 495 U.S. at 524, 109 L. Ed. 2d at 566, 110 S. Ct. at 2095.

However unpleasant the result may be, the State cannot use its own errors to deny a defendant the protection from double jeopardy afforded by the constitution. Benton v. Maryland (1969), 395 U.S. 784, 797, 23 L. Ed. 2d 707, 717, 89 S. Ct. 2056, 2064.

For the foregoing reasons, we hold that the circuit court did not err in determining the original plea to be valid and subsequent prosecution to be barred by principles of double jeopardy.

Affirmed.

LEWIS and HOWERTON, JJ., concur.