text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT F. MENDE, Defendant-Appellant.
    Second District
    No. 2—89—1126
    Opinion filed December 28, 1990.
    — Rehearing denied February 4, 1991.
    Aldo E. Botti and Howard R. Wertz, both of Botti, Marinaccio, De Salvo & Tameling, Ltd., of Oak Brook, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Herbert Mende, was convicted of second-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(2)) and sentenced to five years’ imprisonment. On appeal, he argues that his sentence should be reduced. We affirm.

The defendant was convicted by a jury of the first-degree murder of James Slenger. By agreement of the State and the defendant, the conviction was vacated. After a stipulated bench trial using the evidence from the jury trial, the court entered a verdict of guilty of second-degree murder. Following a hearing, the defendant was sentenced to five years’ incarceration. The trial court subsequently denied his motion to reduce the sentence, and he brought this appeal.

Evidence at the jury trial and sentencing hearing established that at about 12:30 a.m. on December 19, 1988, the victim, who lived in the same neighborhood as the defendant, walked up to the defendant’s house and began pounding loudly on the front door. The defendant, his wife, his stepson, and stepdaughter had already gone to bed. The defendant’s stepdaughter, whose bedroom was nearest the front door, heard the pounding and became afraid that somebody might be trying to break into the house. She ran into the defendant’s bedroom and woke up the defendant and his wife. The defendant put on his pants, took a shotgun out of a case, and loaded the gun. According to his testimony at the hearing, he first fired a warning shot into the floor of his bedroom; when the pounding and rattling at the front door continued, the defendant went into the kitchen, where he looked out a window and saw the figure of James Slenger. The defendant did not know Slenger. Without turning on the front light or calling out to Slenger, the defendant fired two shots at Slenger through the locked front door. After telling the rest of his family to call the police, the defendant then opened the front door and shot Slenger in the back from a distance of three to four feet. The defendant testified at the sentencing that he had no idea whether Slenger was armed and could not tell whether Slenger was facing him at the time. Testimony from law enforcement officers at the jury trial established that Slenger was unarmed, had no burglary tools, and made no discernible attempts at forced entry. Apparently his presence at the defendant’s door was the result of his having become intoxicated at a Christmas party the previous evening. The two shots that the defendant fired through the door wounded Slenger in the elbow; after Slenger turned away from the house in pain, the defendant opened the door and fired the fatal shot into Slenger’s back.

At the sentencing hearing, the trial judge heard testimony about the incident from the defendant, his wife, and his stepchildren. Members of the defendant’s family, as well as a number of friends, coworkers, and supervisors, testified to the defendant’s peaceable disposition, honesty, kindness, and responsibility. Without objection, the State also introduced victim impact statements from members of James Slenger’s family. The State requested a sentence of 10 years’ imprisonment, and the defendant requested probation. The trial judge, stating that probation would deprecate the seriousness of the offense, imposed a sentence of five years’ imprisonment. The trial judge emphasized that in his view “the polestar fact of the case is the act of shooting through after opening the door and seeing the person lying on the ground,” and that “no reasonable person should do what Mr. Mende did *** it could have been a woman who was just raped, knocking at the door, trying to get aid. It could have been a relative. It could have been his son coming home.”

At the hearing on the defendant’s motion to reduce the sentence, the defendant argued that the trial judge had based the sentence on the erroneous assumption that the victim was lying on the front stoop when the defendant fired the fatal shot. The trial judge explained that he had not been using the term “lying” literally and that the crucial consideration was that the defendant shot Slenger after Slenger had already been wounded and disabled, was turning to leave, and could no longer reasonably be considered a threat. The trial judge stated that he also considered the impact on the family of the victim, “what justice should convey to the general public as part of a criminal proceeding,” and all other factors that he was required to consider at a sentencing hearing. The trial judge denied the motion to reduce the sentence, and the defendant appealed.

The defendant argues first that his sentence must be reduced because it was based on the trial judge’s erroneous assumption that the defendant fatally shot Slenger as the latter was lying on the front stoop. The defendant maintains that this mistaken assumption concerned a key fact going to the issue of the defendant’s state of mind and reasonableness in shooting Slenger. However, it is abundantly clear that the crux of the trial judge’s reasoning was that the defendant, having already shot Slenger through the door, needlessly and unreasonably opened the door to shoot Slenger after Slenger was no longer even an apparent threat to the defendant or the defendant’s home. The trial judge concluded that, even though the victim was standing rather than lying on the stoop at the time of the fatal shot, the defendant’s actions were grossly disproportionate to the circumstances. We find no reversible error in this reasoning.

The defendant next contends that the trial court erred in admitting and considering victim impact statements from members of James Slenger’s family. The defendant argues that the statements contain erroneous information and were prepared by the family members, then sent to the State’s Attorney’s office, rather than being “prepared in writing in conjunction with the Office of the State’s Attorney” prior to the sentencing hearing as required by statute. (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1406.) The defendant, however, agreed to the admission of these statements and in fact used one such statement as his own exhibit. Even assuming that this argument is not waived, and further granting the defendant’s speculative assertions as to how the statements were prepared, the statute was satisfied as the State’s Attorney’s office received the statements, was able to review them before the hearing, and introduced them at the hearing. (People v. Israel (1989), 181 Ill. App. 3d 851, 863-64.) Also, the defendant has not shown any prejudice from the introduction of the statements.

The defendant next contends that the trial judge erred in considering the death of the victim as an aggravating factor. However, the record shows that although the trial judge did consider the fact that the offense here was a murder in concluding that probation would deprecate the seriousness of the offense, he did not consider the death of the victim as a factor in aggravation.

Finally, the defendant argues that he should receive probation, or at the most the statutory minimum of four years’ imprisonment, because he has no prior criminal history, imprisonment would work hardship on his family, and a prison term is not necessary to restore him to useful citizenship. The consideration of these factors is for the trial judge’s discretion, and a reviewing court may not reduce a sentence absent an abuse of that discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 154.) We cannot say that the trial judge abused his discretion in imposing a sentence near the statutory minimum, based on his opinion that probation “would deprecate the seriousness of the offender’s conduct” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6— 1(2)). We therefore find no error.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

REINHARD and DUNN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
    GARY McCAULEY, Plaintiff-Appellant, v. THE CITY OF ROCKFORD, Defendant-Appellee.
    Second District
    No. 2—90—0534
    Opinion filed December 28, 1990.

      G. Michael Scheurich, of Guyer & Enichen, of Rockford, for appellant.
    Kathleen Elliott, of City of Rockford Department of Law, of Rockford, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Gary McCauley, appeals the order of the circuit court of Winnebago County granting summary judgment for defendant, City of Rockford, and denying his complaint for an injunction. The issue presented in this appeal is whether section 2008.1.3 of the Ordinances of the City of Rockford (Code of Ordinances of City of Rockford, ch. 6, §6 — 60(14) (19_)) violates section 11 — 33—1 of the Municipal Code (Code) (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 33—1) because it requires the registration of electricians already registered by other municipalities.

Plaintiff is registered with the City of Belvidere as an electrical contractor and as a supervising electrician as he successfully passed an examination conducted by the City of Belvidere. In 1989, plaintiff applied to defendant for a building permit to enable him to perform electrical contracting work in the City of Rockford. Defendant denied plaintiff the permit on the ground that he was not a registered supervising electri- • cian under section 2008.1.3. After exhausting his administrative remedies, plaintiff sued to enjoin the enforcement of section 2008.1.3. Both parties filed motions for summary judgment, with defendant supporting its motion with an affidavit with the additional fact that plaintiff attempted the supervising electrician’s test in 1985 and 1986 but failed on both occasions.

Section 11 — 33—1 of the Code reads as follows:

“The corporate authorities of each municipality may require the registration of electrical contractors, and may impose an annual registration fee of $25 on each registered contractor. An electrical contractor who is registered in one municipality, however, shall not be required by any other municipality to be registered or to pay a registration fee in the other municipality.
The term ‘electrical contractor,’ as. used in this section, means any person engaged in the business of installing or altering by contract electrical equipment for the utilization of electricity for light, heat, or power. But the term ‘electrical contractor’ shall not include the [person] installing or altering of (1) radio apparatus or equipment for wireless reception of sounds and signals, or (2) apparatus, conductors, or other equipment installed for or by public utilities, including common carriers, which are under the jurisdiction of the Illinois Commerce Commission, for use in their operation as public utilities. Nor shall the term include the employees employed by an electrical contractor to do or supervise his work.” (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 33—1.)

Section 2008 of the Ordinances reads as follows:

“Section 2008 Registration of electrical contractors.
Section 2008.1 Class A Contractors. The provisions set forth in Subsections 2008.1.1 through 2008.1.5 below, shall govern the registration of Class A electrical contractors.
Section 2008.1.1 Registration fees. Before any person, firm or coloration shall engage in the business as a Class A electrical contractor in the City of Rockford, Illinois, and before any person, firm, or corporation now engaged in said business shall continue in said business, such person, firm or corporation shall be required to register and pay an annual registration fee as established in Chapter 6, Article 1, Section 6 — 15 of the Rockford Code of Ordinances. Said certificate of registration issued thereunder shall expire on the thirty-first day of December of the year in which it is issued. However, if the person, firm, or corporation is registered for the current year and has paid a registration fee in any city or village in the State of Illinois, they shall not be required to pay a registration fee to the City of Rockford. The senior electrical inspector shall keep a suitable record of all registrations.
Section 2008.1.2 Registration. Any person, firm, or corporation desiring to engage in business as a Class A electrical contractor shall apply for registration to the senior electrical inspector, stating the name and the place of business of the applicant.
Section 2008.1.3 Supervising Electrician. No person shall perform electrical work as a Class A electrical contractor unless he is, or has in his employ, a registered supervising electrician. A registered supervising electrician shall have had at least five (5) years experience in the electrical construction industry, and shall pass a written examination given by the electrical commission of the City of Rockford, and shall pay an annual registration fee as established in Chapter 6, Article 1, section 6 — 15 of the Rockford Code. Applicants taking an electrical written examination shall pay the fee established therefor by Chapter 6, Article 1, section 6 — 15 of said Code. Examinations will be given on the second Thursday of each month from 2:00 p.m. to 4:00 p.m. in the council chambers of City Hall, 425 East State Street, except in November in which no examinations will be given. Application shall be submitted thirty days prior to examination.
Section 2008.14 Revocation. No person, firm or corporation granted a certificate of registration under the provisions of this code shall install or repair electrical equipment for electric light, heat, or power purposes after the expiration of such certificate shall have been revoked unless said certificate has been renewed and the fee paid as provided herein, [sic]
Section 2008.1.5 Duties; revocation. Certificate of registration issued by the Electrical Commission shall not be loaned, rented, assigned, or transferred. Each and every certificate of registration may, after hearing, be suspended or revoked by the commission upon failure or refusal of the electrical contractor to comply with the rules and regulations of the commission, or the provisions of this code.”

As a general rule, a municipal ordinance is presumed to be valid, and the burden of proving its invalidity falls upon the one who attacks the ordinance. (City of Rockford v. Suski (1980), 90 Ill. App. 3d 681, 684.) Plaintiff contends that because the Municipal Code prohibits other municipalities from requiring electricians to register, section 2008.1.3 is invalid and cannot be enforced. While non-home-rule municipalities have the authority to enact ordinances, such ordinances may in no event conflict with State law or prohibit what a State statute expressly permits. (Arrington v. City of Chicago (1970), 45 Ill. 2d 316, 318; Dolson Outdoor Advertising Co. v. City of Macomb (1977), 46 Ill. App. 3d 116, 121.) A city must have an express grant of authority from the General Assembly to enact the ordinances unless the power is necessarily implied in or incidental to powers expressly conferred. (Ives v. City of Chicago (1964), 30 Ill. 2d 582, 584; Village of Forrest v. Norfolk & Western Ry. Co. (1986), 146 Ill. App. 3d 20, 28.) In Ives, the court held that the existence of enumerated statutory powers to regulate certain contractors precluded the imposition of regulations and licenses upon contractors in fields other than those to which cities were expressly given regulatory power, such as the power to license electrical contractors under section 11 — 33—1, and that the city could not attempt to regulate those contractors over whom the General Assembly failed to delegate the power to regulate. (Ives, 30 Ill. 2d at 585; Forrest, 146 Ill. App. 3d at 28.) Plaintiff contends that not only is defendant unauthorized to require the registration of electricians but also that it is statutorily barred from registering them.

Defendant contends that the authority to regulate and license an occupation is implied from the powers to otherwise regulate the business. (Concrete Contractors’ Association v. Village of La Grange Park (1958), 14 Ill. 2d 65, 69.) The fact that villages have not been granted the express power to license a class of contractors is not controlling if the General Assembly has expressly granted the municipalities one or more powers, the efficient exercise of which' requires that the business be regulated. To determine whether a municipality is impliedly authorized to license persons engaged in an activity, the licensing ordinances must be considered in conjunction with the powers which were expressly granted and are being lawfully exercised. If the licensing ordinances are reasonably necessary to effectuate the regulations prescribed by the other valid ordinances governing the same matter, they may be upheld as regulatory measures. 14 Ill. 2d at 69-70.

Defendant lists several grants of power authorizing a city to regulate electrical work. Division 37 of article XI of the Code (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 37—1 et seq.) authorizes a city’s electrical commission to recommend safe and practical standards and specifications for the installation of electrical equipment which may be designed to meet the necessities and conditions of the particular locality, reasonable rules and regulations governing the issuance of permits by the electrical inspection department and reasonable inspection fees; these recommendations may be adopted by ordinance pursuant to section 11 — 1—1 of the Code (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 1—1). Section 11 — 8—2 (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 8—2) authorizes a city to prevent dangerous construction, installation and condition of electrical wiring. Section 11 — 30—4 (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 30—4) authorizes the city to prescribe the strength and manner of constructing buildings. Finally, section 11 — 60—1 (Ill. Rev. Stat. 1989, eh. 24, par. 11 — 60—1) authorizes a city to fix the amount, terms and manner of issuing and revoking licenses.

Municipalities cannot enact ordinances without legislative authority. The Illinois Supreme Court invalidated municipal ordinances which imposed license fees on electricians when section 1 of article V of the Cities and Villages Act (Ill. Rev. Stat. 1923, ch. 24, par. 65) did not give any such authority to regulate electricians, even when it found the purpose of the ordinance salutary and necessary. (Arms v. City of Chicago (1924), 314 Ill. 316, 325-26.) In response, the legislature enacted two amendments authorizing registration (Ill. Rev. Stat. 1925, ch. 24, pars. 65, 683a through 683f), which were held invalid because they made certain exemptions without a justifiable basis, such as exempting contractors which had at least one member with two years’ experience when there was no requirement that such a member be involved in the contracting work. (Berry v. City of Chicago (1926), 320 Ill. 536, 542.) The amendments were modified and reenacted in the substantial form of section 11 — 33—1 and division 37 of article 11 of the Municipal Code. Based on this legislative background, the Illinois Supreme Court ruled that the express statutory authority for registration and inspection fees in those sections precluded the implication of any authority to impose an additional license fee upon electrical contractors. Edward R Allison Co. v. Village of Dolton (1962), 24 Ill. 2d 233, 238.

Based on these authorities, defendant’s attempts to imply authority from the other sections of the Municipal Code must fail because the limited framework in which a municipality may register electrical workers has already been set. (Ives, 30 Ill. 2d at 586; Allison, 24 Ill. 2d at 238.) Furthermore, defendant has not differentiated the definition of an electrical contractor from a “supervising electrician.” The exception in section 11 — 33—1 relating to employees who perform or supervise the installation of electrical equipment is an exception to the ability to be registered, not an exception to the prohibition of extramunicipal registration; thus, defendant may not imply that a municipality can require registration of these excluded employees. It is illogical to allow the additional regulation of employees of the contractor when the regulation is barred against the contractor himself. The legislature has permitted the registration of contractors only. The purpose of the exclusion is to protect the electricians from multiple registrations, not to subject them into other registrations. Finally, defendant’s requirement that an electrical contractor have a registered supervising electrician on its staff does nothing to insure that a particular electrical job will be performed in a safe manner. Berry, 320 Ill. at 543.

To advance his argument, plaintiff argues that only the inspections authorized by division 37, not the registration of electrical contractors, can insure safe construction. However, licensing practitioners is a valid means of regulating a practice, when that regulation is implied in law. (Concrete Contractors, 14 Ill. 2d at 72; Village of Maywood v. Weglarz (1960), 24 Ill. App. 2d 495, 498.) Plaintiff also implies that defendant imposes its requirement of a licensure because it fails to inspect electrical construction pursuant to division 37. Defendant has filed a motion to strike this allegation as it is not supported by the record and is scurrilous. We agree and strike the offending portions of plaintiff’s brief.

Nevertheless, the issue is not whether defendant may regulate electrical installation, which plaintiff does not contest; rather, the issue is whether defendant may accomplish this regulation by registering the persons doing the installing. Because the registering of contractors has already been established in a manner set by the Code, the ability to register others has been excluded (Ives, 30 Ill. 2d at 586; Allison, 24 Ill. 2d at 238) and also directly prohibited in section 11 — 33—1. The wisdom of the legislature in devising a scheme where the contractors rather than the employees of the contractor bear the burden of registration and where one municipality cannot register the contractor of another is not the issue here. Section 2008.1.3 of the Rockford Ordinances violates the Code and cannot be enforced against plaintiff.

For the above reasons, the order of the circuit court of Winnebago County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS and NICKELS, JJ., concur.


author: JUSTICE GEIGER

text:
    MARY ANN KELLY, Plaintiff-Appellant, v. DAN MAZZIE et al., Defendants-Appellees.
    Second District
    No. 2—90—0356
    Opinion filed December 27, 1990.
    Patrick S. Moore, of Law Office of Patrick S. Moore, Ltd., of Chicago, for appellant.

      D. Kendall Griffith, Stephen R. Swofford, and Thomas A. Brabec, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and Robert G. Black, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, for appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, Mary Ann Kelly, appeals from an order of the circuit court of Du Page County dismissing her complaint against the defendants, Dan and June Mazzie, with prejudice. On appeal, the plaintiff contends that the trial court erred in determining that (1) the complaint was not filed within the applicable limitations period and (2) the plaintiff did not exercise due diligence in serving the summons and complaint upon the defendants.

The plaintiff allegedly was injured in a fall on the defendants’ property on February 2, 1987. The plaintiff filed her complaint against the defendants in the circuit court on March 16, 1989, and served the summons and complaint on November 29, 1989. Subsequently, the defendants filed two motions to dismiss. One was based on section 2 — 619(a)(5) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(5)) and alleged that the complaint had not been filed within the two-year limitations period applicable to personal injury actions. The other was based on Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) and alleged that the plaintiff had not exercised diligence in obtaining service on the defendants and that service had not been accomplished until more than eight months after the complaint was filed.

In response to the section 2 — 619(a)(5) motion, the plaintiff’s attorney alleged that he had mailed the complaint to the clerk of the circuit court for filing on January 25, 1989, within the limitations period. The clerk of the court never returned a file-stamped copy of the complaint, however, so on March 16, 1989, the plaintiff’s attorney checked the status of the complaint with the clerk and discovered that no such complaint had ever been received and filed. He filed the complaint that day.

In ruling on that motion, the trial court accepted as true the plaintiff’s attorney’s representations concerning the January 25, 1989, mailing of the complaint. The court ruled that, although the complaint was mailed during the limitations period, it was not received by the clerk until after the limitations period had expired and, therefore, was not timely filed.

On appeal, plaintiff contends that, where a complaint is mailed within the limitations period but is not received by the circuit clerk until the period has expired, the date of filing should be held to relate back to the date of mailing.

Section 13 — 202 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 202) provides that all actions for damages for an injury to a person shall be commenced within two years next after the cause of action accrued. Section 2 — 201 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 201) provides that an action is commenced by the filing of a complaint. Although, traditionally, a document has not been considered “filed” until it is actually committed to the custody and control of the clerk (see People ex rel. Pignatelli v. Ward (1949), 404 Ill. 240, 245), there is a trend toward accepting the date of mailing certain documents to the court as the date of filing (see, e.g., Board of Trustees of Southern Illinois University v. Department of Human Rights (1989), 190 Ill. App. 3d 644 (concerning filing of appearance and answer)). The question is whether- this trend should be extended to include complaints.

Although a section 2 — 1401 petition, and not a complaint, was at issue in Wilkins v. Dellenback (1986), 149 Ill. App. 3d 549, that case implicitly answers the question presented here. In Wilkins, the section 2 — 1401 petition was mailed within the two-year period but received by the clerk after the period had expired. In determining whether the petition was timely, the court stated:

“Although the weight of recent authority evinces a policy favoring the acceptance of the mailing date rather than the receiving date of certain documents, such as a post-trial motion or a notice of appeal, as the filing date of those documents with the clerk of the circuit court [citations], this policy has never been applied to the filing of pleadings such as a complaint or a section 2 — 1401 petition.” 149 Ill. App. 3d at 553.

The court determined that, unlike the filing of a document in a pending action, the filing of a section 2 — 1401 petition is the initiation of a new action, and “[l]ike a complaint, it must be sufficiently pleaded to notify the opposition of the cause of action and must be filed within a certain period of time to avoid staleness.” (149 Ill. App. 3d at 554.) The court concluded that the actual filing date of a section 2 — 1401 petition is the date when it is received and stamped by the circuit clerk’s office. 149 Ill. App. 3d at 554.

Regarding the filing of a complaint, we now make explicit what is implicit in Wilkins: the filing date of a complaint is the date it is received by the circuit clerk. In the first place, the Code does not contain a “mailbox rule” for filing complaints in the circuit court. Moreover, as Wilkins suggests, a complaint stands on a different footing from other documents. The filing of a complaint implicates the statute of limitations; a cause of action not commenced within the applicable limitations period is barred. Defendants have a right to rely on the certainty the statute provides, and adoption of the rule plaintiff urges would destroy that certainty. In essence, plaintiff’s rule would extend the statute of limitations for that period of time during which the complaint was en route to the clerk via the post office, however long that took. In this case, the complaint never arrived via the post office. We decline to inject this kind of uncertainty into the litigation process. Personal injury-plaintiffs have two years in which to file their complaints; requiring them to comply with the “actual receipt” rule is not an unwarranted burden.

The plaintiff points out that in Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, our supreme court took note of the widespread practice of filing documents by mail and of the modern trend toward equating time of mailing with actual receipt and held that when a notice of appeal is mailed within the requisite 30-day period but received thereafter by the circuit clerk, the date of mailing the notice shall be deemed the date of filing. The plaintiff asserts that, whereas filing a notice of appeal vests jurisdiction in the appellate court and filing a complaint vests jurisdiction in the trial court, the same filing rule should apply to both. We disagree.

In the Harrisburg-Raleigh case, the court reasoned that a “notice of appeal, unlike many other papers filed in the circuit court, is closely related to the appellate process”; the court concluded that it was “therefore appropriate that the promailing policy of [Supreme Court] Rule 373 [107 Ill. 2d R. 373 (the time of mailing papers to the appellate court deemed the time of filing)] should be applied to the filing of a notice of appeal [in the circuit court] under Rule 303(a).” (126 Ill. 2d 341-42.) The court specifically declined, however, to express an opinion as to whether the same policy would apply to other papers filed in the circuit court.

In Harrisburg-Raleigh, the supreme court was construing Rules 303 and 373, rules promulgated by the court itself and applicable only to appeals. Supreme court rules are not at issue here; provisions of the Code of Civil Procedure are at issue here, and the legislature has not included a “promailing” provision in the Code which would affect civil filing requirements. The holding in Harrisburg-Raleigh does not compel the result plaintiff urges.

The complaint was not received by the circuit clerk until after the limitations period had expired; the action was time barred, and the dismissal was proper.

In light of our disposition of this issue, we need not address the trial court’s alternative ruling granting the motion to dismiss pursuant to Supreme Court Rule 103(b).

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

BOWMAN and McLAREN, JJ., concur.


author: JUSTICE REINHARD

text:
    BRITTANY K. BARKEI, a Minor, by Kathleen Barkei, her Mother and Next Friend, et al., Plaintiffs-Appellants and Cross-Appellees, v. DELNOR HOSPITAL, Defendant-Appellee and Cross-Appellant.
    Second District
    No. 2—89—1317
    Opinion filed December 27, 1990.

      Robert A. Clifford and Keith A. Hebeisen, both of Robert A. Clifford & Associates, of Chicago, and Thomas K. Prindable, of Thomas K. Prindable & Associates, of Batavia (Robert P. Sheridan, of counsel), for appellants.
    Henry J. Burt, Jr., of Rathje, Woodward, Dyer & Burt, and Francis D. Morrissey and Karen Kies DeGrand, both of Baker & McKenzie, both of Chicago (Tracy D. Kasson, of counsel), for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The instant medical malpractice action was filed on behalf of plaintiff Brittany K. Barkei (Brittany), a minor, by her parents, Randall and Kathleen Barkei (the Barkeis), each as next friend, to recover for injuries Brittany sustained shortly after her birth. The Barkeis also sought, individually, recovery for Brittany’s medical expenses and damages for the loss of her society. Named as defendants were Dr. John Lamiot, Dr. Charles Taylor, Drs. Lamiot-Taylor, S.C. (all hereinafter referred to as Dr. Lamiot) and Delnor Hospital (Delnor). Brittany and the Barkeis proceeded to a jury trial against Delnor alone after they both reached pretrial settlements with Dr. Lamiot. The jury returned a verdict in favor of Brittany and the Barkeis.

Delnor appealed that verdict, and this court affirmed the award in part but reversed that portion of the award against Delnor based on loss of society. (Barkei v. Delnor Hospital (1988), 176 Ill. App. 3d 681, 531 N.E.2d 413.) After that appeal, Delnor sought to set off against the judgment the amounts paid to Brittany and the Barkeis in the prior settlements with Dr. Lamiot. The trial court ordered that the amount of Brittany’s prior settlement with Dr. Lamiot would be set off in satisfaction of the judgment, but it refused to set off the amount of the Barkeis’ prior settlement of their individual claims against Dr. Lamiot.

Brittany now appeals from the order granting setoff of her settlement with Dr. Lamiot, and Delnor cross-appeals from the trial court’s refusal to also set off the amount of the Barkeis’ settlement with Dr. Lamiot. Three issues are presented on appeal: (1) whether the trial court had jurisdiction to" enter the order of setoff; (2) whether Delnor waived its right to setoff by not pursuing it until after the conclusion of the first appeal; and (3) whether the trial court erred in refusing to set off against the judgment the amount of the Barkeis’ prior settlement with Dr. Lamiot. We must also resolve Delnor’s motion, which was ordered taken with the case, to strike certain statements in Brittany’s reply brief.

The resolution of this appeal does not require detailed treatment of the facts underlying the original action filed by Brittany and the Barkeis. Brittany was born at Delnor Hospital on January 1, 1978, with Dr. Lamiot performing the delivery. Within a few days after her birth, doctors discovered signs of injuries, including trauma to Brittany’s head and injury to her spinal cord.

The instant action was commenced in 1981, and a nine-count amended complaint was filed on March 5, 1987. All nine counts were based on an underlying allegation of negligence on the part of Delnor and Dr. Lamiot. Those counts of the complaint seeking to establish negligence under the doctrine of res ipsa loquitur specified that Brittany had incurred “[a]n injury” which “ordinarily does not occur in the absence of negligence.” The injuries alleged in the counts seeking recovery from Delnor are identical to the injuries' alleged in the corresponding counts against Dr. Lamiot. The Barkeis sought recovery individually pursuant to section 15 of “An Act to revise the law in relation to husband and wife” (the Family Expense Act) (Ill. Rev. Stat. 1987, ch. 40, par. 1015) and also sought damages for the loss of Brittany’s society.

On April 8, 1987, Brittany filed a motion seeking court approval of her $1 million settlement with Dr. Lamiot. Attached to the motion was a document captioned, “FUTURE CARE NEEDS ASSESSMENT,” which estimated Brittany’s future medical expenses up to age 18 at $73,527.83. The court approved the settlement. The record also reveals a motion filed by the Barkeis seeking court approval of a $150,000 settlement of their claims against Dr. Lamiot. The motion indicated that the claims settled were those arising out of the Family Expense Act and the “body of established Illinois case law recognizing a parent’s cause of action for loss of society and companionship of a nonfatally injured minor child.” A notation on the motion, apparently made by the trial court, indicates that no order was issued on the motion because none was needed.

Plaintiffs filed a four-count second amended complaint on April 13, 1987, naming Delnor as the sole defendant. All counts sought recovery based on Delnor’s alleged negligence in causing a spinal cord injury or brain damage to Brittany. Brittany sought recovery under counts I and II for her injuries, and the Barkeis sought recovery under counts III and IV pursuant to the Family Expense Act and for loss of society. Counts I and III sought to establish negligence on the part of Delnor under the doctrine of res ipsa loquitur.

The cause subsequently proceeded to a jury trial against Delnor, the only remaining defendant. The jury returned a verdict awarding plaintiffs a total of $2,089,886.92, with specific allocations for the following amounts:

Brittany Barkei
Disfigurement $ 400,000.00
Disability 373,000.00
Pain and suffering experienced 50,000.00
Future pain and suffering 100,000.00
Future medical expenses to be incurred after age 18 750,000.00
Future earnings lost after age 18 $ 250,000.00
TOTAL $1,923,000.00
Randall and Kathleen Barkei
Loss of Society $ 30,000.00
Medical expenses incurred 62,792.92
Future medical expenses up to age 18 $ 74,094.00
TOTAL $166,886.92

After judgment was entered on the verdict, Delnor appealed. In an opinion issued on November 29, 1988, this court affirmed the judgment against Delnor except for the $30,000 awarded to the Barkeis for loss of society, the latter portion of the decision being based on the supreme court’s holding in Dralle v. Ruder (1988), 124 Ill. 2d 61, 529 N.E.2d 209, that a parent may not recover for loss of society resulting from nonfatal injuries to a minor child. The opinion issued in the prior appeal noted that a portion of Delnor’s brief labeled “Ethical Consideration” made mention of certain facts pertaining to the settlements with Dr. Lamiot. Although Delnor had suggested that the appeal might be moot, the court found the inclusion of this issue in Delnor’s brief to be inappropriate and afforded it no consideration. (Barkei, 176 Ill. App. 3d at 697, 531 N.E.2d at 423.) The court remanded the cause to the circuit court with directions to enter a corrected judgment. Barkei, 176 Ill. App. 3d at 696, 531 N.E.2d at 423.

The Illinois Supreme Court denied leave to appeal (125 Ill. 2d 563), and this court issued its mandate on June 1, 1989. The cause was then reinstated in the trial court. The record indicates that, on June 29, 1989, Delnor tendered $1,088,922.74 plus plaintiffs’ costs in full satisfaction of the judgment. This amount reflected the amount of the judgment less the $1,150,000 settlement with Dr. Lamiot and the $30,000 award for loss of society, plus interest. Plaintiffs rejected the tender, and Delnor then filed a motion seeking leave to deposit the sum of $1,088,922.74 plus costs in full satisfaction of the judgment.

Plaintiffs filed an emergency motion seeking a ruling which would allow Delnor to pay $1,088,922.74 to plaintiffs in only partial satisfaction of the judgment, with the total amount due from Delnor to be subsequently determined by the court. The trial court granted this emergency motion and set a date for a hearing on Delnor’s motion seeking an order construing the amount stated above as full satisfaction of the judgment. Delnor argued that it was entitled to set off against the judgment as to both the $1 million settlement between Brittany and Dr. Lamiot and the $150,000 settlement between the Barkeis and Dr. Lamiot in order to prevent a double recovery. Plaintiffs did not argue that Delnor was not originally entitled to the set-offs it sought; instead, plaintiffs argued that Delnor had waived any right to setoff by not pursuing it in the earlier proceedings. They further argued that the trial court was without “jurisdiction to do anything other than execute the judgment.”

The parties appeared before the trial court on October 6, 1989, to argue the issue of setoff. The court reserved its ruling on the matter and indicated that it would advise the parties of its decision by mail. A letter from the trial court judge to the parties was filed on October 12, 1989. In the letter, the court stated that it would grant Delnor’s motion for satisfaction of judgment after further hearing on the exact amount of the setoff.

The parties again appeared before the court on October 20, at which time the court clarified that, although it would allow Brittany’s $1 million settlement with Dr. Lamiot to be set off against the judgment, it would not set off the Barkeis’ $150,000 settlement with Dr. Lamiot. The court noted that it was “not yet able to ascertain what, if any portion of the $150,000 already received by the parents was reimbursement for the family expense.” The court inquired whether either party wished to offer any further evidence or argument on the issue. Plaintiffs elected to stand on the record; Delnor also elected to stand “on what’s submitted in the record as to family expense — as to expenses incurred” and argued “that at least that amount should be deducted.” The court then stated:

“THE COURT: Hearing nothing further in the way of evidence of any type to be offered on the issue and having made this hearing available to the parties, the Court then must base its rulings on what is properly before the Court and in the record; and the Court has. considered the applicable law and the arguments of Counsel and notes and finds for the record that the Court would have to speculate and guess about how much [of the Barkeis’ settlement] was attributable to family expense, if anything.
It’s impossible for the Court to ascertain whether all except one penny, if that, was attributable to the loss of society, or nothing. Since the Court is not allowed to guess, the motion as to the $150,000 being the subject of a set-off is denied.”

On appeal, Brittany first appears to argue that the trial court did not have jurisdiction to enter an order for setoff because more than 30 days had passed since the entry of final judgment. Brittany also contends that the circuit court’s jurisdiction after remand was limited to the directive of the appellate court’s mandate, namely, to correct the judgment to reflect the appellate court’s reversal of the award to the Barkeis for loss of society.

This court recently addressed this issue in Klier v. Siegel (1990), 200 Ill. App. 3d 121, 558 N.E.2d 583. In Klier, the defendants successfully petitioned the trial court to enter an order for satisfaction of judgment based on setoff more than 30 days after the entry of the judgment. On appeal, this court held that the court had jurisdiction to do so. The court reasoned that the defendants’ petition did not challenge the judgment per se, but “was in the nature of an enforcement or supplementary proceeding invoking the continuing power of the court to control its own process.” (Klier, 200 Ill. App. 3d at 125, 558 N.E.2d at 587.) The court concluded that “where.there is a single and indivisible injury caused by the negligence of defendants, the damages are inseparable, and any amounts received from any of the defendants must be deducted from the total damages sustained.” (Klier, 200 Ill. App. 3d at 127, 558 N.E.2d at 587-88.) We also note that nothing in the prior mandate issued by this court after the prior appeal in this cause precluded the trial court from entering an order of setoff under its continuing authority over the enforcement of .the judgment.

In her reply brief, Brittany argues that there is no threat of double recovery here because she did not suffer a single, indivisible injury but separate injuries. Delnor has filed a motion with this court to strike this argument from Brittany’s brief because she should not be allowed to raise it for the first time on appeal in her reply brief. However, Delnor argued in its appellee’s brief that Brittany was attempting ta achieve a double recovery, a position which presupposes that the settlement with Dr. Lamiot and the verdict against Delnor were intended to compensate Brittany for the same injuries. Since the arguments at issue in Brittany’s reply brief were made in response to Delnor’s double-recovery argument, we deny Delnor’s motion to strike these portions of Brittany’s brief. See Supreme Court Rule 341(g) (113 Ill. 2d R. 341(g)); In re Application of Cook County Treasurer & Ex-Officio County Collector (1985), 135 Ill. App. 3d 901, 908, 482 N.E.2d 361.

Delnor also contends that this argument was not raised in the circuit court and is waived for purposes of appeal. We agree. Delnor raised the question of double recovery below at the hearing regarding setoff, but Brittany never responded to this argument by contending that she suffered separate injuries at the hands of the defendants originally named in her complaint. Brittany’s position below was that the trial court did not have jurisdiction to enter a setoff and that Delnor had waived its right to seek a setoff. Brittany did not address the issue of whether Delnor was substantively entitled to a setoff, and she may not do so now. Matters not presented to or ruled on by the trial court may not be raised for the first time on appeal. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 229, 499 N.E.2d 1381.

Moreover, the theory of Brittany’s case below was not based on separate injuries. Brittany’s first amended complaint alleged that she suffered “[a\n injury” (emphasis added) caused by all the defendants. Although the res ipsa loquitur counts demonstrate that Brittany was unable to pinpoint precisely when and at whose hands her injury occurred, she alleged that she suffered an injury during the days she was under the care of the defendants. The evidence and arguments presented at trial by Brittany’s counsel also reveal no attempt to apportion certain injuries attributable to Dr. Lamiot as opposed to those attributable to Delnor. Thus, Brittany’s argument that she suffered separate and distinct injuries, represents an attempt to change the theory of recovery advanced at trial. The theory on which a case is tried in the lower court cannot be changed on review. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417.

Accordingly, we hold that Brittany’s argument suggesting that she suffered separate injuries at the hands of separate defendants is waived. As the injuries for which Brittany sought recovery are single and indivisible, Klier applies here. Thus, the trial court had jurisdiction to enter a setoff'in satisfaction of the judgment against Delnor to prevent Brittany from achieving a double recovery. Setoff was appropriate even though Dr. Lamiot was not adjudged a tortfeasor so long as it appears the settlement was to extinguish his potential liability for the same injuries for which recovery was sought from Delnor. Nguyen v. Tilwalli (1986), 144 Ill. App. 3d 968, 972-73, 495 N.E.2d 630.

Brittany’s principal argument is that, even if the circuit court had jurisdiction to enter an order for setoff, Delnor waived its right to seek such an order by failing to do so until after the conclusion of the first appeal in this cause.

Even though it did not involve a post-appeal effort to obtain setoff, the Klier case provides the answer to this argument. Noting Illinois’ strong public policy against double recovery, the court in Klier concluded that a motion for an order of satisfaction based on setoff need not be made within 30 days of judgment or within the time period specified by section 2 — 1401 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). The court stated that such a motion is “in the nature of a supplemental enforcement proceeding; it is governed, if at all, by the time constraints applicable to such a proceeding.” (Klier, 200 Ill. App. 3d at 128, 558 N.E.2d at 588-89.) The time limit on enforcement of judgments is generally seven years from the entry thereof. Ill. Rev. Stat. 1989, ch. 110, par. 12 — 108(a); see also Russell v. Klein (1974), 58 Ill. 2d 220, 226, 317 N.E.2d 556 (execution of a judgment may issue within seven years of its rendition, so a judgment debtor’s relief from judgment based on satisfaction is not limited by the time constraints applicable to petitions attacking the judgment).

Brittany notes that section 2 — 608(a) of the Code provides, in pertinent part, as follows:

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

Brittany further notes the holding in Vieweg v. Friedman (1988), 173 Ill. App. 3d 471, 474, 526 N.E.2d 364, that section 2 — 608, though permissive, “does not eliminate the need to include a request for set-off as part of a defendant’s pleadings.” Thus, Brittany argues, Delnor was required under section 2 — 608 to request setoff in its pleadings in order to be afforded that relief.

Although the holding in Vieweg accurately states the law, the type of “setoff” referred to therein is not precisely the same as that at issue here. In one sense, a setoff is defined as a cross-claim for which an action might be maintained by a defendant against a plaintiff, or as a counterdemand which a defendant holds against a plaintiff arising out of a transaction extrinsic to the plaintiff’s cause of action. (General Motors Acceptance Corp. v. Vaughn (1934), 358 Ill. 541, 548, 193 N.E. 483.) This type of setoff would be of the same nature as the setoff referred to in section 2 — 608(a) of the Code and in the principle stated in Vieweg.

The setoff at issue here, however, is not a separate claim or counterclaim, but a more limited notion tied to the concept of satisfaction of judgments. It is fundamental that a plaintiff may not recover more than once for the same injury, and the Illinois Supreme Court has sua sponte ordered that a plaintiff’s award be reduced by any amounts received from other tort-feasors for the same injury. (Dial v. City of O’Fallon (1980), 81 Ill. 2d 548, 558, 411 N.E.2d 217.) The only possible limitation on the pursuit of this type of setoff is the time constraint applicable to supplemental proceedings for the enforcement of a judgment. Klier, 200 Ill. App. 3d at 128, 558 N.E.2d at 588-89.

We believe that the eases discussed above are entirely consistent. Section 2 — 608(a) provides a defendant with the choice of pursuing a claim against a plaintiff either within the same proceedings or as a separate action. Vieweg stands for the proposition that, whichever of these routes a defendant chooses, his pleadings must make clear what relief is sought in order to put the other party on proper notice. (Vieweg, 173 Ill. App. 3d at 474, 526 N.E.2d at 366; see also Bartsch v. Gordon N. Plumb, Inc. (1985), 138 Ill. App. 3d 188, 200, 485 N.E.2d 1105 (the election afforded by section 2 — 608(a) merely permits a party to plead its claim in a separate action).) While these rules apply to counterclaims and setoffs generally, it must also be understood that a setoff entered against a judgment to prevent double recovery for the same injury is of a different nature. Such set-offs are not claims but are only elements relating to the satisfaction of a judgment.

Thus, we conclude that Delnor did not waive its right to pursue an order for satisfaction of judgment based on setoff of Brittany’s settlement with Dr. Lamiot. We, therefore, affirm the judgment of the trial court in this regard.

In its cross-appeal, Delnor argues that the trial court erred by refusing to set off the Barkeis’ $150,000 settlement with Dr. Lamiot against the judgment entered on the jury’s award of $136,889.92 in their favor for past and future medical expenses. The crux of Delnor’s argument is that its liability to the Barkeis is based solely on the cost of Brittany’s medical expenses. Delnor contends that, because the Barkeis’ settlement with Dr. Lamiot was, in part, directed toward these expenses, this award against Delnor should be reduced by the entire amount of the settlement.

Setoff in this instance would only have been appropriate to the extent that the settlement with Dr. Lamiot was to compensate for the same injury for which Delnor was ultimately found liable, Brittany’s medical expenses. (See Wheeler v. Roselawn Memory Gardens (1989), 188 Ill. App. 3d 193, 200-01, 543 N.E.2d 1328.) As the trial court correctly noted, however, the record does not establish how much of the Barkeis’ $150,000 settlement was intended to compensate for Brittany’s medical expenses. The settlement extinguished Dr. Lamiot’s potential liability for the Barkeis’ pending claims for both Brittany’s medical expenses and the loss of her society. The court offered Delnor an opportunity to present further evidence on this point, but it declined to do so. Thus, there was no basis in the record upon which the trial court could have entered an order accurately setting off a portion of the settlement against the judgment against Delnor.

Although it concedes that it bore the burden of proof on this issue, Delnor suggests the record sufficiently reflects the amount of the settlement which was designed to compensate the Barkeis for Brittany’s past and future medical expenses. First, Delnor notes that the jury found Brittany’s past medical expenses to equal $62,792.92. Next, Delnor notes that the “Future Care Needs Assessment” found in the record lists Brittany’s projected future medical expenses till age 18 to be $73,527.83. Noting that the total of these two amounts ($136,320.75) nearly equals the jury’s medical expense award against Delnor ($136,889.92), Delnor concludes that Dr. Lamiot’s settlement with the parents must have been intended to compensate them for all Brittany’s past and future medical expenses.

This is purely unsupportable conjecture. Although a portion of the settlement was undoubtedly intended to compensate for Brittany’s medical expenses, there is no evidence to support that it was intended to compensate for all such expenses. There is nothing in the record to suggest, for example, that Dr. Lamiot intended to accept responsibility for all such damages at a time when the Barkeis continued to press their suit against Delnor to recover for the same injuries, a suit which ultimately proved successful.

Delnor notes that the apportionment of the settlement rested with the Barkeis and Dr. Lamiot, and Delnor contends that it should not be penalized because of the settling parties’ failure to apportion the settlement. Nevertheless, Delnor could have presented evidence on apportionment even under these circumstances. For example, Delnor could have called the persons who settled the suit on behalf of Dr. Lamiot to testify before the court regarding the portion of the settlement which was allocable to Brittany’s medical expense claims. The Barkeis too could also have presented contrary evidence, and all such evidence would have provided the trial court with a basis to decide the issue.

We conclude that the trial court correctly determined that it could not set off any portion of the Barkeis’ $150,000 settlement against the award against Delnor because Delnor failed to demonstrate how much of the award was attributable to Brittany’s medical expenses, the only expenses for which Delnor was liable to the Barkeis. Thus, the trial court’s order on-this issue is affirmed.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

DUNN and GEIGER, JJ., concur.


text:
    JONATHON E. CASHMORE, Plaintiff-Appellant, v. BUILDERS SQUARE, INC., sometimes known as Builders Square, et al., Defendants-Appellees— THOMAS C. ROSER, Plaintiff-Appellee, v. GOVERNMENT EMPLOYEE INSURANCE COMPANY, INC., Defendant-Appellant (Karen Anderson, Defendant). — RONALD ACHS, Plaintiff-Appellant, v. LEONARD M. RING et al., Defendants-Appellees.
    Second District
    Nos. 2—90—0522, 2—90—0660, 2—90—0979 cons.
    Opinion filed December 27, 1990.

      Richard J. Smith, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellant John E. Cashmore.
    Robert Marc Chemers and Scott 0. Reed, both of Pretzel & Stouffer, Chartered, of Chicago, for appellants Karen Anderson and Government Employees Insurance Company.

      Anthony J. Nasharr III, of Kemp & Capanna, Ltd., of Oak Brook, Gary R. Schmaus, of Schmaus Law Offices, of Menomonee Falls, Wisconsin, and William Chandek, of Brookfield, Wisconsin, for appellant Ronald Achs.
    Glen E. Amundsen and Judith A. Chapman, both of Querrey & Harrow, Ltd., of Waukegan, for appellee Builders Square, Inc.
    G. Douglas Grimes, of Law Offices of G. Douglas Grimes, of Waukegan, for appellee Thomas C. Roser.
    Robert G. Black, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, and D. Kendall Griffith, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellees Leonard M. Ring and Henry P. Gruss.
    Leonard M. Ring and Henry Philip Gruss, both of Leonard M. Ring & Associates, and John F. Horvath, of Horvath & Wigoda, both of Chicago, and Peter Thomas Smith, pro se, of Sycamore, for appellee Peter Thomas Smith.
   JUSTICE REINHARD

delivered the opinion of the court:

In each of these three appeals, which this court has consolidated on its own motion for purposes of issuing its opinion, the appellant has characterized the appeal as one brought from a final order of the circuit court pursuant to Supreme Court Rules 301 and 303 (107 Ill. 2d Rules 301, 303). However, we have determined that, in each appeal, the order appealed from is not final and appealable and that, therefore, this court has no jurisdiction to hear the appeals.

We have consolidated these appeals because they illustrate a number of common procedural pitfalls which confront judges as well as trial attorneys who wish to perfect appeals. The fact that no party to any of the appeals has noted the jurisdictional defect in each underscores the subtle nature of the error and the need for closer scrutiny of the steps necessary to perfect an appeal. Even where no party raises the question, a reviewing court has a duty to consider sua sponte its jurisdiction and to dismiss the appeal if it determines that jurisdiction is wanting. Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 439, 490 N.E.2d 1252; Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539, 470 N.E.2d 290.

In appeal No. 2 — 90—0979, plaintiff, Ronald Achs, appeals from the dismissal pursuant to section 2 — 615 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) of his amended complaint alleging attorney malpractice against defendants, Leonard M. Ring, Henry R Grass, Peter T. Smith, and Leonard Ring & Associates (defendant attorneys), Ach’s attorneys in a prior lawsuit.

The facts alleged in the amended complaint essentially recite that, following his injury in an automobile accident, Achs employed defendant attorneys to represent him regarding that matter. Ultimately, a lawsuit was filed on his behalf by defendant attorneys and, following a jury trial, an inadequate verdict was returned in Achs’ favor. Achs further alleged that defendant attorneys breached their duty to provide competent advice and representation in the prior suit by virtue of the following acts or omissions: failing to inform Achs of settlement offers; failing to investigate in certain respects; failing to prepare for depositions and to prepare Achs for his deposition; and failing to try the case in a competent manner.

Defendant attorneys filed motions to dismiss pursuant to section 2 — 615 of the Code stating that the amended complaint failed to state a cause of action. More particularly, the motions set forth that the amended complaint only alleges conduct which constitutes errors in judgment which are not actionable in an attorney malpractice suit. Following the submission of both written and oral arguments on the section 2 — 615 motions, the trial court stated:

“THE COURT: I have heard the arguments, I have read the briefs. I am finding the motion to dismiss must be granted in part. I think the only part that survives the motion to dismiss are those allegations regarding the failure to inform of the settlement offers.”

The court then entered the following written order from which Achs now appeals:

“THIS CAUSE COMING TO BE HEARD ON 2-615 MOTIONS OF ALL DEFENDANTS TO DISMISS THE AMENDED COMPLAINT, DUE NOTICE HAVING BEEN GIVEN AND THE COURT HAVING REVIEWED THE MOTIONS AND BRIEFS IN SUPPORT AND OPPOSITION TO SAID MOTIONS AND HAVING HEARD ARGUMENTS OF COUNSEL;
IT IS HEREBY ORDERED THAT THESE 2-615 MOTIONS ARE GRANTED IN ALL RESPECTS EXCEPT WITH RESPECT TO THE ALLEGATION THAT CERTAIN SETTLEMENT OFFERS WERE NOT COMMUNICATED TO THE PLAINTIFF AND AS TO THAT ALLEGATION ONLY, THE PLAINTIFF IS GRANTED LEAVE TO FILE A SECOND AMENDED COMPLAINT WITHIN (21) DAYS; OTHERWISE, IT IS HEREBY ORDERED THAT AS TO ALL OTHER ALLEGATIONS, THE AMENDED COMPLAINT IS DISMISSED WITH PREJUDICE.”

The order granted the motions to dismiss “except with respect to the allegation that certain settlement offers were not communicated to the plaintiff.” Thus, this allegation of attorney malpractice remained as pleaded in the amended complaint. This conclusion is confirmed by the court’s oral statements that it was granting the motion to dismiss only “in part” and that the portion of the claim based on the failure to communicate settlement offers “survives the motion to dismiss.” The written order further recites that, as to that allegation only, Achs “is granted leave to file a second amended complaint within (21) days; otherwise it is hereby ordered that as to all other allegations, the amended complaint is dismissed with prejudice.” (Emphasis added.) This part of the order clearly did not dismiss the remaining allegation concerning the failure to communicate settlement offers, but only gave Achs leave to amend as to that allegation. No request had been made by Achs to amend that allegation, and that allegation alone remained in the amended complaint. No new amended complaint was ever filed.

Achs’ statement of jurisdiction in his appellate brief states that the appeal is from a final judgment “dismissing in its entirety the amended complaint.” Achs also recites that he “opted to stand on [his] second [sic] amended complaint with respect to this appeal.” Because the amended complaint which was dismissed in part still exists as to the allegation of the failure to communicate settlement offers, the court’s order is not a final order under Supreme Court Rule 301. Even had the trial court made a special finding that there is no just reason for delaying enforcement or appeal, which it did not, the order was not a final judgment as to a separate claim appealable under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a); see also Ill. Rev. Stat. 1989, ch. 110A, par. 304(a)). Since Achs’ complaint only advanced one theory of recovery, attorney malpractice, it was only a single claim despite the allegations of various negligent acts or omissions. (Hull v. City of Chicago (1987), 165 Ill. App. 3d 732, 733, 520 N.E.2d 720; see also Brown v. K.J.S. Co. (1989), 189 Ill. App. 3d 768, 770-71, 545 N.E.2d 555.) Thus, this court is without jurisdiction to hear the appeal in case No. 2 — 90— 0979.

In the appeal in case No. 2 — 90—0522, plaintiff, John E. Cashmore, appeals from the order of the circuit court of Lake County pursuant to section 2 — 619(a)(9) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9)) dismissing with prejudice his complaint in negligence against defendants, Builders Square, Inc., and its employees, Mark Jorgenson and Robert Adams. The record shows that Jorgenson and Adams were never served with summons. The record further reveals that, after the action was filed, Cashmore filed a petition for sanctions against Builders Square pursuant to section 2 — 611 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611, repealed by Pub. Act 86 — 1156, eff. Aug. 10, 1990), alleging that the position taken by Builders Square in its motion to dismiss was inconsistent with the position it had taken before the Industrial Commission. The trial court never ruled on this petition, nor did Cashmore withdraw it.

On January 30, 1990, the trial court granted Builders Square’s motion to dismiss Cashmore’s complaint with prejudice pursuant to section 2 — 619(a)(9) of the Code, which was based on the argument that Cashmore had already received benefits for his injuries pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). After his motion for reconsideration was denied, Cashmore appealed.

Again, the judgment appealed from is mistakenly characterized as final and appealable. Section 2 — 611 of the Code provides that a motion for sanctions brought thereunder is considered part of the underlying civil action. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 611.) Absent a finding pursuant to Supreme Court Rule 304(a), no appeal may be taken from the underlying civil action until a timely filed section 2 — 611 petition has been resolved. (Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 468.) Here, Cashmore’s section 2 — 611 petition for sanctions was never resolved by the trial court. While the parties may have assumed that the practical effect of granting Builders Square’s motion to dismiss would necessarily result in a denial of Cashmore’s section 2 — 611 petition, this court cannot speculate on how the circuit court would have ruled. In any event, regardless of how the court might have ruled, it did not rule. Thus, the order granting Builders Square’s motion to dismiss the complaint was not final and appealable, and we have no jurisdiction to entertain the appeal in case No. 2 — 90—0522.

A similar jurisdictional defect is present in the appeal in case No. 2 — 90—0660. In this cause, defendant, Government Employee Insurance Co., Inc. (GEICO), appeals from an order of summary judgment entered by the circuit court of Lake County in favor of plaintiff, Thomas C. Roser, on his complaint seeking declaratory relief with regard to an insurance policy issued to him by GEICO. The record reveals that the parties filed cross-motions for summary judgment, and, in an order entered on June 5, 1990, the trial court denied GEICO’s motion and entered summary judgment in favor of Roser.

On June 14, 1990, Roser filed a post-judgment petition for sanctions against defendant pursuant to section 2 — 611 of the Code. On June 15, 1990, GEICO filed its notice of appeal from the judgment entered on June 5, 1990. Subsequently, on July 5, 1990, GEICO filed a post-judgment petition for sanctions against Roser pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137; see also Ill. Rev. Stat. 1989, ch. 110A, par. 137). On July 6, 1990, the trial court entered an order denying GEICO’s petition for sanctions. However, as to Roser’s petition for sanctions, the court stated the issue was “reserved by the Court pending the present appeal of defendant GEICO.”

Once again, the pendency of an unresolved section 2 — 611 petition frustrates our jurisdiction over the appeal. Here, the motion was timely filed within 30 days after the entry of final judgment, but the result is the same as if it had been filed before. When a section 2 — 611 claim is brought after the disposition of the main claim, the judgment entered on the main claim, even though otherwise a final judgment, is not appealable without a finding of no just reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a). (Marsh, 138 Ill. 2d at 467, citing Palmisano v. Connell (1989), 179 Ill. App. 3d 1089, 1095, 534 N.E.2d 1243.) No such finding was made here, and Roser’s petition for sanctions remains unresolved. Thus, the judgment appealed from is not final, and we are without jurisdiction to hear the appeal in case No. 2— 90-0660.

We further note a second barrier to our jurisdiction based on GEICO’s petition for sanctions against Roser pursuant to Supreme Court Rule 137. Rule 137 is substantially the same as section 2 — 611 and preempts all matters sought to be covered by that statutory provision. (134 Ill. 2d R. 137; see also Ill. Ann. Stat., ch. 110A, par. 137, Committee Comments, at 68 (Smith-Hurd Supp. 1990).) GEICO’s Rule 137 petition was filed after the notice of appeal but within 30 days of the June 5 order entering summary judgment in favor of Roser.

Where a section 2 — 611 petition is filed after the filing of a notice of appeal, but within 30 days of the entry of an otherwise final judgment, the notice of appeal is rendered ineffective because it is premature. (Marsh, 138 Ill. 2d at 468.) We believe that the same result is required when a petition for sanctions pursuant to Rule 137 is filed after the filing of a notice of appeal but within 30 days of the entry of judgment disposing of the main claim. Thus, even if Roser here had not filed a post-judgment petition for sanctions, GEICO’s own motion would have rendered his notice of appeal ineffective and destroyed appellate jurisdiction. We note that, were it not for the filing and pendency of Roser’s motion, the time for filing a notice of appeal would have lapsed 30 days after the July 6, 1990, order disposing of GEICO’s motion for sanctions. GEICO’s right to appeal the judgment would have terminated at that point because no timely notice of appeal was filed. Thus, the vitality of GEICO’s right to appeal eventually the entry of summary judgment has been preserved, but only by the mere fortuity of Roser’s petition for sanctions remaining unresolved.

In conclusion, we wish to add that it is always with regret that this court finds itself forced to dismiss appeals without reaching the issues raised by the parties because of unintentional and overlooked jurisdictional defects. We hope that this opinion, which illustrates the need for care in the earliest stages of the appellate process, will be of help to trial judges and practitioners alike in avoiding such missteps in the future.

Should a final and appealable order or the appropriate findings under Rule 304(a) subsequently be made by the circuit court and a timely notice of appeal filed in any of these cases, we will consider the appeal on the original briefs, if the parties so agree, upon supplementation of the record to reflect the additional proceedings below.

We hold that the orders appealed from in case Nos. 2 — 90— 0522, 2 — 90—0660, and 2 — 90—0979 are not final and appealable. Thus, we are without jurisdiction to hear the appeals, and they are hereby dismissed.

Appeals dismissed.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ABDULAMID MEHMEDOSKI, Defendant-Appellant.
    Second District
    No. 2—89—1268
    Opinion filed December 31, 1990.

      Robert Steven Wilson, of Sycamore, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Abdulamid Mehmedoski, appeals from an order of the circuit court of Du Page County denying his petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.). Defendant contends that the trial court erred in finding that his guilty pleas were voluntary.

Defendant was charged by indictment with two counts of unlawful possession of a controlled substance (Ill. Rev. Stat. 1985, ch. 56V2, par. 1401(b)), two counts of unlawful possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1985, ch. h&Vz, pars. 1401(aX2), (bX2)), and two counts of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1985, ch. S&lz, pars. 1401(aX2), (bX2)). The case proceeded to a jury trial. During trial, the court was informed that pursuant to negotiations with the State, defendant wished to enter pleas of guilty to certain charges. Defendant agreed to plead guilty to one count of possession, one count of unlawful delivery, and one count of possession with intent to deliver, and the State agreed to nol-pros the remaining charges. The trial court accepted the pleas and, pursuant to the agreement, sentenced defendant to one year of conditional discharge and 180 days in the county jail for delivery and for possession with intent to deliver, and to one year in the Department of Corrections for possession.

Defendant subsequently filed a petition for post-conviction relief contending that his pleas were not voluntary. He alleged that, due to his limited knowledge of English, he did not understand such terms as “waiver,” “voluntary plea,” and “coercion.” He also alleged that he did not receive the effective assistance of counsel because he is a resident alien in the United States and his attorney had not advised him of the consequences of guilty pleas on his immigration status and of the fact that he could be deported “without bail.” He also alleged that he had not wanted to plead guilty but “thought he had no other choice.” At the time of the post-conviction hearing, defendant was in the custody of the Immigration and Naturalization Service (INS).

At the post-conviction hearing, defendant’s trial attorney, Robert Novelle, testified that at the time the pleas were entered he knew that defendant was a resident alien subject to deportation and that the INS was actively trying to deport defendant because of this case and another criminal case in Cook County. Novelle said that he and defendant had discussed defendant’s possible deportation and that defendant was well aware of the fact that if the case resulted in a conviction he would be vulnerable to deportation. Novelle advised defendant that deportation was not negotiable, that the INS would try to deport him, and that he should anticipate deportation. He also told defendant that he had a right to a hearing on the deportation matter. Defendant asked Novelle to defend him in the deportation proceedings, but Novelle declined and advised him to get an attorney experienced in immigration law. Novelle did not know that defendant could be held without bond by the INS, and he and defendant never discussed “bondability in the deportation case.”

According to Novelle, INS agents were present in the courtroom on the day defendant entered his pleas just as they were present during the Cook County proceedings. They agreed to “hold off doing anything” until defendant surrendered to the State to begin serving his sentence, and Novelle advised defendant of that fact.

Concerning defendant’s language skills, Novelle testified that he “never had trouble with [defendant] understanding anything that [he] talked to him about.”

Novelle said that he had not made the plea decision for defendant and that he never told defendant that he had to plead guilty.

Defendant testified that he is Albanian, that he entered the United States in 1975, and that he has a “green card.” He said that he was forced to plead guilty. Novelle told him that if he did not plead guilty he would be put in jail “for a long time,” but if he did plead guilty he would only serve 30 days in the county jail. The lawyers begged him to plead guilty; he thought they were “going to kill [him].” He was scared, and he did not know what was going on. He said that while the judge was talking to him at the guilty plea hearing he watched his lawyer; when his lawyer would nod to him, defendant would say yes to the judge.

Defendant said that prior to pleading guilty Novelle never discussed the consequences of such a plea on his immigration status. Defendant was arrested by the INS on September 5, 1989, and he had been in their custody ever since. He had a hearing before an immigration judge who told him that he could not be released on bond because he pleaded guilty to a drug offense; a judge also told him that if he appealed deportation he could be incarcerated for years during the appeal process.

The trial court found that defendant’s pleas were voluntary and denied defendant’s petition for post-conviction relief. Defendant appeals.

On appeal, defendant contends that he was denied the effective assistance of counsel and his guilty pleas were therefore involuntary, because his attorney failed to inform him of the possible deportation consequences of his guilty pleas.

To prevail on an ineffective assistance of counsel claim, a defendant must establish (1) that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687-88, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068; People v. Albanese (1984), 104 Ill. 2d 504, 525.) In the context of a guilty plea, the first part of the Strickland test is whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases; the second part of the test focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process and requires that the defendant show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart (1985), 474 U.S. 52, 56, 58-59, 88 L. Ed. 2d 203, 208, 210, 106 S. Ct. 366, 369, 370; People v. Miranda (1989), 184 Ill. App. 3d 718, 722.

An attorney’s representation falls outside the range of competence demanded of attorneys in criminal cases if, knowing that his client is an alien, the attorney fails to inform the client of the possible deportation consequences of a guilty plea. (People v. Padilla (1986), 151 Ill. App. 3d . 297, 303.) In this case, the evidence is conflicting concerning whether Novelle informed defendant of the possibility of deportation. Novelle said that defendant was aware that a conviction would make him vulnerable to deportation and that he advised defendant that the INS would try to deport him and that defendant should anticipate deportation. Defendant said Novelle never discussed the consequences of a guilty plea on his immigration status.

Where evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact who heard the testimony. (People v. Davenport (1988), 176 Ill. App. 3d 142, 145.) The trial judge clearly believed that Novelle had advised defendant of the possibility of deportation. In ruling on the post-conviction petition, the trial . court said, “[Defendant knew his immigration status, his attorney knew his immigration status and explained everything to the defendant.” The trial court’s conclusion was supported by Novelle’s testimony and will not be disturbed on review.

Defendant takes the. argument a step further, however, and suggests that his attorney’s admitted failure to discuss the fact that defendant might be held without bond by the INS for a protracted period of time during deportation proceedings, including any appeals, rendered his assistance ineffective.

Defense counsel has a responsibility to advise an accused of the collateral consequences of a plea of guilty; the consequence of deportation has been held to be collateral. (People v. Correa (1985), 108 Ill. 2d 541, 550.) Defendant is urging that his attorney’s failure to advise him of the incidental consequences of a deportation proceeding rendered his assistance ineffective. We disagree.

Our courts have required defense attorneys to advise their clients of the possible deportation consequences of their guilty pleas because deportation, although collateral, is a drastic consequence; in most cases this collateral consequence is more severe than the penalty imposed by the court in response to the plea. (Correa, 108 Ill. 2d at 550-51.) The possibility of deportation may be the most important consideration for a defendant in deciding whether to enter a guilty plea. On the other hand, the possibility of detention by the INS during the deportation proceedings does not rise to that level of importance.

Moreover, the practical effect of a rule which would require attorneys to inform their clients of the incidents and collateral consequences of deportation proceedings would be to require attorneys in criminal proceedings to have knowledge and expertise in the intricacies of immigration law and procedure. Such a rule would create an unwarranted burden, and we decline to adopt it.

Defendant also contends that he was not properly admonished pursuant to Supreme Court Rule 402(b) (107 Ill. 2d R. 402(b)). Specifically, defendant contends that, when the court asked defendant whether the guilty pleas were freely and voluntarily given, defendant was not allowed to answer, and the trial court did not ask defendant whether threats, force or promises were used to obtain the plea. As relevant here, Rule 402(b) states that the trial court shall not accept a plea of guilty without first determining that the plea is voluntary and whether any force, threats or promises, other than the plea agreement itself, were used to obtain the plea. 107 Ill. 2d R. 402(b).

At the guilty plea hearing, the assistant State’s Attorney informed the court of the terms of the plea negotiation, and the court asked defendant whether there was anything about the statement that he did not understand; defendant said that he understood. The court asked defendant whether he agreed with the terms; defendant said that he agreed. The following exchange then occurred:

“THE COURT: Are you doing this freely and voluntarily; you have decided to do this on your own after advice of counsel?
DEFENDANT MEHMEDOSKI: We talk together and he just advise and I agree.
* * *
THE COURT: You agreed to it?
DEFENDANT MEHMEDOSKI: Yes.”

The record makes it clear that the court personally questioned defendant in open court concerning whether the plea was free and voluntary. Contrary to defendant’s assertion, defendant was permitted to respond to the question, and he responded affirmatively. While we agree that the court’s question did not track the exact language of Rule 402(b), the trial court is not required to parrot the literal language of the rule. (See People v. English (1976), 42 Ill. App. 3d 958, 961.) Substantial, not literal, compliance with Rule 402 is all that is required. (People v. Woods (1985), 134 Ill. App. 3d 294, 300.) Substantial compliance means such compliance as will assure that the beneficial effect of the rule will be achieved. (People v. Baker (1985), 133 Ill. App. 3d 620, 622.) The trial court substantially complied with the rule.

In this same vein, defendant also contends that his guilty pleas were not voluntary because he “was fearful that he would be killed if he did not plead guilty.” At the post-conviction hearing defendant testified as follows:

“[My attorney] told me — I say, why you make me to plead guilty? They used to beg me. And I say, no, I’m not. They say, I’ll put you in jail for a long time. And I used to scare. I never in jail before.
* * *
I used to ciy. Two days they beg me.
The third day, the jury, I don’t have no choice. I thought they going to kill me. I don’t know what’s going on.”

Defendant never offered a factual basis for his alleged belief that someone, presumably his attorney, would do him harm if he did not plead guilty. He did not testify to acts of violence, verbal threats of violence or threatening gestures directed against him, although he had the opportunity at the post-conviction hearing to offer such testimony. Defendant bears the burden of demonstrating that his plea was coerced, and defendant did not meet that burden on this issue.

Finally, defendant contends that he does not understand English very well and, consequently, he did not understand the court proceedings. In addressing this issue, the trial court found that “defendant understood and was not unaware of what the proceedings were all about.” The trial court had heard defendant’s responses to the guilty plea admonishments, had heard an hour-long tape of negotiations between defendant and an agent of the Bureau of Alcohol, Tobacco and Firearms, and had heard defendant testify at the post-conviction hearing. The trial court was in the best position to determine defendant’s ability to understand and communicate in English and to understand the proceedings. The trial court concluded that defendant did understand, and nothing in the record compels an opposite conclusion. (See People v. Vitale (1954), 3 HI. 2d 99, 103-04.) We would note that at the post-conviction hearing, held at defendant’s behest in part to establish that he did not understand English very well, defendant did not use an interpreter.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

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