author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES PUGH, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—0963

    Opinion filed August 22, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Edwin Burnette, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.

      This case was assigned to the second division on April 24,1989.

   JUSTICE HARTMAN

delivered the opinion of the court:

Following a bench trial, defendant was convicted of murder and armed violence. The armed violence count was merged with the murder conviction and defendant was sentenced to 35 years in custody of the Department of Corrections, with three years of mandatory supervised release. Defendant appeals, raising issues concerning the legality of his arrest, the quantum of proof supporting his conviction and his sentence.

Upon defendant’s motion to quash arrest and suppress evidence, the circuit court conducted an evidentiary hearing. Defendant testified that on November 9, 1984, at about 10 p.m., he was in his home on Honoré Street in Harvey; heard a knock at the side entrance of the building; looked out a window and saw three men, Harvey police officers, standing on the porch, adjacent to the door. Defendant opened the door “slightly” and when one of the men, Detective Frederick Joseph, tried to “force [his] way in,” defendant pushed the door shut. Defendant insisted the officers neither identified themselves nor displayed a warrant to him. When he asked them through the closed door whether they had a warrant, Joseph replied “No” and told defendant to open the door because they wanted to talk to him. Defendant complied and Joseph pulled him outside the house. All three officers began to strike him, defendant averred, telling him that he’d “never see the street again” and “You’re going to jail, motherfucker.” The officers did not identify themselves until they were in the police car with him. Defendant was not asked to go to the police station, but was forced to do so.

Detective Joseph testified that at 3:40 p.m. on November 9, 1984, he and his partner, Wolfson Watson, arrived at an alley at 14712 Maplewood in Harvey to investigate a reported shooting. Joseph spoke to several residents of the surrounding area and learned from one detective at the scene that an individual had seen the suspected offenders leave the area in a “light top over gray primered GM-type car,” either a Monte Carlo or a Cutlass. Other persons told the police they heard gunshots.

Joseph proceeded to Ingalls Hospital at 4:30 p.m. and there learned that the victim of the shooting, Robert Davis, had died. He obtained photographs of the body and went to Davis’ home, where his mother identified the victim depicted in the photograph as her son. Benjamin Davis, the victim’s brother, also at home, informed the police that he saw his brother at approximately 3 p.m. that day, riding in the front passenger seat of a “gray over light blue with primer 1975 Oldsmobile Cutlass”; “Jimmy Pugh” was driving the car and Marcus Hunter sat in the rear seat, passenger side. Benjamin described defendant as short and stocky, weighing approximately 150 pounds. He also gave the officers defendant’s address.

Police officers went first to Hunter’s house; when they informed Watson and Joseph that Hunter was not at home, they proceeded to defendant’s residence on Honoré Street at 7 or 8 p.m. Defendant’s father told Watson and Joseph his son was not at home. They placed the building under surveillance and, at 10:10 p.m., observed two males walking south on the street. One entered the Pugh residence; the other continued walking. The officers stopped the individual who remained on the street and asked him who had just entered the Pugh house. He replied, “Jimmy Pugh.”

Watson and Joseph knocked on the door of the house. When defendant answered, he was asked to step outside. Defendant did so, leaving the door behind him ajar. The detectives announced their office and said “[they] had to have him down at the station to talk to him about the shooting that occurred on Maplewood.” According to Joseph, defendant then “attempted to flee back into the house.” Watson grabbed defendant’s arm, handcuffed him and placed him under arrest.

Joseph maintained that he and Watson were in plainclothes at the time of the arrest and that a uniformed officer joined them later on the porch. Although the individual who answered the door did not identify himself as James Pugh, Joseph averred he recognized defendant based on Benjamin Davis’ description. Joseph admitted he had no warrant when he arrested Pugh and that defendant did not go to the police station voluntarily. He denied pulling defendant out of his house and saying, “You’re going to jail, motherfucker.”

Watson’s testimony as to the events of November 9 tracked that given by Joseph except for the following points: Benjamin Davis described defendant to Watson and Joseph as a black male of medium to dark complexion, short in stature, with close-cropped hair and weighing about 150 pounds. After leaving the Davis residence, the detectives drove first to local hangouts and through the area where witnesses had seen defendant earlier that day. During their initial visit to defendant’s home at 8 or 9 p.m., Edward Pugh, defendant’s brother, told Watson and Joseph that he owned a 1976 Cutlass, light blue with gray primer on one of the doors, the keys for which he left on his dresser that day and knew neither where the car was nor who had it. Watson testified that they did not see the car described to them earlier at defendant’s home. He insisted he never told defendant he’d “never see the street again” or “You’re going to jail, motherfucker.”

Defendant’s motion to quash his arrest for lack of probable cause and to suppress evidence was denied.

At trial, Marcus Hunter, called by the State, testified that he was at a friend’s house on the afternoon of November 9 when defendant drove up in a “gray prime” Cutlass. Hunter joined defendant in the car and they drove to a liquor store on 154th Street, where they purchased a six-pack. Hunter maintained that in the course of 10 minutes, he and defendant each drank three beers and shared a joint. They continued to drive until they saw Davis’ brother, Nathaniel, who told them they could find Davis “around the corner” at the Davis home. Davis got into the car with Hunter and defendant; defendant stayed in the driver’s seat, Davis took the front passenger seat, and Hunter went to the rear of the car, behind Davis.

After purchasing gas at 150th and Dixie Highway, defendant stopped the car in an alley near Maplewood Street. Defendant got out of the car, walked to and opened the front passenger door, and told Davis that he (defendant) “wanted his money.” Davis responded, “What?” and got out of the car. Davis and defendant then began “tussling” or “wrestling.” After the men fought for “a couple of minutes,” Hunter got out of the back seat of the car to break up the fight and succeeded in “holding Robert back,” when defendant reached into the back passenger seat of the car and retrieved a “big, black revolver.” Hunter did not observe anything in Davis’ hands. When he saw defendant advancing toward him with the gun, Hunter “dove” back into the car, and defendant began firing the gun at Davis. As defendant approached Davis, Davis started “backing up” and then turned and attempted to run once defendant started shooting. Davis fell to the ground about 5 to 10 feet from where he started. Defendant walked up to Davis as he lay on the ground. Davis said, “I’ll give you the money, man, just don’t kill me.” Defendant shot him again and then reached into Davis’ jacket pocket and retrieved some money. He ran back to the car with the gun and money still in his hands, which he placed on the front car seat. Defendant drove to his home and there told Hunter that if he informed anyone about the shooting, he would kill Hunter, too. Hunter left the car and went home, taking neither the gun nor any of the money with him.

Hunter described Davis as 6 feet, 2 inches tall, and defendant as 5 feet, 6 inches tall. Hunter admitted Davis was “a much bigger guy than” defendant, but denied he “dragged the big guy off the small guy” when he broke up the fight; he just “separated them both.” Hunter did not. see defendant’s gun when he got into the car and did not know to whom it belonged.

Hunter denied being with defendant on November 8 when defendant gave money to Davis to purchase some pot, but admitted that on the day of the shooting, Davis and defendant had planned to drive to Chicago in order to buy drugs. He did not believe defendant was under the influence of alcohol or narcotics at the time he shot Davis. Hunter did not run away when defendant began to fire because he was afraid he would get shot, too.

Joseph reiterated his testimony of the pretrial hearing and added that following defendant’s arrest at his home, the officers took defendant to the police station in their car. Defendant initially denied any knowledge of the shooting, but later, at 4:45 p.m. on November 10, defendant gave a written statement to the police, admitting the shooting. Joseph read the statement into evidence, the material portions of which included:

“I drove to Maplewood and went down the alley. I stopped [sic] car. *** Robert Davis and Mark [sic] Hunter and I got out [sic] the car. Marcus and I were wrestling with Robert. Robert tried to flee. I reached in under the seat and pulled out the gun that Marcus had put under the seat. I shot him three times. Robert Davis was about ten feet away.
I then ran back to the car. Marcus Hunter jumped in and I sped off.”

Joseph said Hunter told him at the police station on November 9 that defendant shot Davis as Davis ran from defendant and that after Davis fell to the ground, defendant took money from him. Joseph did not recall, however, Hunter telling him that Davis said, “Jimmy, please don’t kill me” or “Please don’t hurt me.” Joseph did not remember Hunter saying defendant shot Davis as he was on the ground.

At the close of the State’s case, the parties stipulated to certain testimony relating to: gunshots heard by neighbors; the sighting of the auto emerging from the alley; descriptions of the car’s occupants; and testimony of an expert in forensic medicine, Dr. Barry Lifschultz, who performed an autopsy on Davis on November 10, 1984, and concluded that he died as the result of multiple gunshot wounds, which entered his body in the right upper back, the lateral aspect of his upper left arm, the middle of his chest and in his lower left back.

Defendant testified on his own behalf. While driving his brother’s car on the afternoon of November 9, he picked up Hunter in front of a friend’s home. Hunter had a gun with him, which defendant saw when Hunter got in the car and placed the weapon on the seat. Defendant had seen Hunter carry a gun before. Davis had money belonging to defendant which they were supposed to use to buy pot in Chicago. Once he joined Hunter and defendant in the car, Davis indicated he did not have the money. Defendant went instead to a gas station, and then stopped near the area where Hunter was supposed to get out. Defendant asked Davis for the money. Davis laughed and said, “Who do you think you are?” Defendant got out of the car, walked to the passenger side of the vehicle and asked again for his money. Davis responded by “taking a swing” at defendant; defendant did the same to Davis; both missed. Davis then got out of the car and “came swinging four real punches” at defendant which hit defendant, on the ear and side of the face and were strong enough to blur his vision and cause him to stagger. The “tussel” lasted five to six minutes. Davis hit defendant three times. Defendant never fell to the ground and the blows from Davis’ fists never broke defendant’s skin.

Hunter “got [defendant] loose” by taking hold of Davis’ hands and defendant ran to the car. Davis was three to four feet from defendant. Defendant retrieved the loaded gun from the car and began to fire rapidly at Davis, “aiming at his shoulder.” The first and second shots hit Davis in his side, the third and fourth shots struck his back. Davis did not try to run from him and did not say “[djon’t shoot me” or “[d]on’t kill me.” Defendant took $45 from Davis’ coat pocket as he lay on the ground. Afterwards, Hunter, who was standing near the bumper of the car, said, “Let’s get out of here,” and they drove to defendant’s home. When Hunter left the automobile, he took the gun with him.

Defendant swore he did not intend to shoot Davis when they first arrived in the alley, but recovered the gun from the car because he believed Davis was going to try and hurt defendant, hit defendant again and that defendant couldn’t win. Defendant estimated Davis’ height as 6 feet, 5 inches, and his own as 5 feet, 5 inches. By the time defendant fired his third shot, he was no longer afraid of Davis. Davis had nothing in his hands at the time he was shot. Once Davis saw the gun in defendant’s hand, he made no attempt to approach him.

I

Defendant initially contends the circuit court erred in denying his motion to quash arrest and suppress evidence, maintaining the police lacked probable cause to arrest him on November 9.

Probable cause exists when the totality of the facts and circumstances known to the officers is such that a reasonably prudent person would believe the suspect has committed or is committing a crime. (People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475.) This determination is guided by an exercise of common sense, not an application of legal technicalities. (People v. Montgomery, 112 Ill. 2d at 525; People v. Houston (1986), 151 Ill. App. 3d 102, 108, 502 N.E.2d 1111; People v. Matthews (1985), 137 Ill. App. 3d 870, 874, 485 N.E.2d 403.) Only where a finding of probable cause constitutes manifest error can a reviewing court reverse that ruling. People v. Matthews, 137 Ill. App. 3d at 874.

Joseph testified at the pretrial hearing that he and Watson learned at the crime scene that: several shots were fired sometime after 3 p.m.; a light blue with gray primer Cutlass, Grand Prix or Monte Carlo automobile, carrying two black males, was seen leaving the alley; and an individual had been shot. The investigation thereafter revealed the victim’s identification and information that he had been seen immediately preceding the shooting in a car matching the automobile observed on Maplewood. The detectives knew that a car matching the description of the car in which the victim was a passenger was being driven by defendant just before the shooting and that the car was owned by defendant’s brother. They knew that defendant’s brother left the car’s keys lying on top of a dresser in the same house where defendant lived. The detectives obtained positive identifications of Davis’ companions, including their names, narrowing the number of likely suspects to two, defendant and Hunter.

Defendant claims that the remaining uncertainty as to whether he or Hunter was the culpable party demonstrated that the police arrested him based on a mere suspicion, not probable cause. In People v. Montgomery, however, the supreme court found defendant’s arrest constitutionally sound although defendant was only “part of a relatively small class of people who could have had the opportunity to commit the murders” in question. The probabilities raised by this fact, viewed in the totality of all other facts known to the officers, could lead a reasonable person to believe defendant responsible for the crime. People v. Montgomery, 112 Ill. 2d at 526.

Upon learning why Joseph and Watson wished to speak to him, moreover, defendant attempted to flee, an additional factor supporting the finding of probable cause. (People v. Pietryzk (1987), 153 Ill. App. 3d 428, 434, 505 N.E.2d 1228; People v. Matthews, 137 Ill. App. 3d at 875.) Defendant avers that the police dragged him from his home, denying him the opportunity even to attempt flight. The circuit court accepted instead the officers’ characterization of events, a determination of credibility well within the province of the court. (See People v. Brannon (1978), 59 Ill. App. 3d 531, 533, 375 N.E.2d 840.) The finding of probable cause was not manifestly erroneous, and the motion was properly denied.

II

Defendant next argues that the State failed to prove him guilty beyond a reasonable doubt of murder “where there was evidence of a sudden and intense passion resulting from intense provocation from decedent.”

Defendant asserts his conviction must be reduced to manslaughter because he and Davis were engaged in “mutual combat” at the time of Davis’ death, prompting defendant to act “under a sudden and intense passion resulting from a serious provocation by” Davis. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(1).) “Mutual combat” may qualify as “serious provocation” (People v. Neal (1983), 112 Ill. App. 3d 964, 967, 446 N.E.2d 270), but only if the decedent’s conduct is sufficient to unleash an intense passion in a reasonable person. (People v. Neal, 112 Ill. App. 3d at 967.) The provocation must be proportionate to the manner in which defendant retaliated. (People v. Stanley (1986), 146 Ill. App. 3d 912, 920, 497 N.E.2d 496; People v. Neal, 112 Ill. App. 3d at 968.) Where defendant’s retaliation is disproportionate, the crime committed is murder, particularly if defendant accomplishes the offense with a deadly weapon. People v. Neal, 112 Ill. App. 3d at 968.

. The existence of mutual combat in the case sub judice is doubtful. Testimony at trial demonstrated that defendant and Davis exchanged blows for a few minutes but, by all accounts, the “tussling” or “wrestling” ceased when Hunter intervened and separated the combatants. Hunter continued to hold Davis, moreover, as defendant returned to the automobile to get the gun. Hunter did not retreat to the vehicle until he saw the gun in defendant’s hand.

Assuming, arguendo, that mutual combat had occurred at the crucial time, defendant’s response of shooting Davis was not proportionate to any provocation by Davis. Davis, by defendant’s own admission, hit him only three times in the course of a fight lasting several minutes. If defendant were to be believed, the blows left his vision slightly blurred and his equilibrium momentarily disturbed, but he was not struck to the ground nor were any of the punches strong enough to break his skin. He recovered quickly enough, moreover, to return to the car, retrieve a gun and then fire several lethal shots at Davis. Significantly, Davis was unarmed. Further, he was wounded not only on the front and side of his body but also twice in the back. Defendant admitted as well that, while he felt some fear of Davis after their initial physical contact, by the time defendant delivered the third shot, into Davis’ back, the victim was falling to the ground and he was no longer afraid of him. These actions alone demonstrate a response disproportionate to the emotions Davis’ actions would evoke in a reasonable person.

The foregoing conclusion is reinforced by evidence that Davis was shot as he attempted to flee; retreat by the victim negates any inference of mutual combat. (People v. Yates (1978), 65 Ill. App. 3d 319, 325, 382 N.E.2d 505.) Further, there was evidence that defendant delivered his coup de grace as Davis lay on the ground, pleading for his life. Defendant disputes these facts, yet nothing of record is so improbable as to raise a reasonable doubt of defendant’s guilt and to warrant rejection of the court’s determination of credibility. People v. Brannon, 59 Ill. App. 3d at 533.

III

Defendant argues in the alternative that his behavior on November 9 justifies no more than a finding of voluntary manslaughter because he honestly, albeit unreasonably, believed he exercised justifiable force in the expectation of losing his own life or suffering great bodily harm.

Defendant’s conviction could be reduced to voluntary manslaughter pursuant to such a finding (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(2)), but whether a homicide constitutes murder or manslaughter is a question of fact for the court; this court’s authority to reduce the judgment, therefore, must be exercised with caution. People v. Falconer (1988), 168 Ill. App. 3d 618, 623, 522 N.E.2d 903; People v. Harris (1987), 154 Ill. App. 3d 308, 317, 506 N.E.2d 1353.

The evidence at bar establishes defendant could not have formed a subjective belief, reasonable or unreasonable, that the force he exercised to “defend” himself was necessary. (People v. Falconer, 168 Ill. App. 3d at 623; People v. Harris, 154 Ill. App. 3d at 317.) He peppered bullets at close range into the body of an unarmed man who not only made no attempt to approach him, but tried to retreat as he was shot. Even as Davis lay on the ground begging for his mercy, defendant fired again. The trial evidence is consistent with a finding of murder and cannot be disturbed.

IV

Defendant argues in closing that the circuit court violated his eighth amendment right to a fair and impartial sentence by considering a written victim impact statement (VIS) authored by Davis’ sister, Lillian Trainer, and her testimony rendered pursuant to that statement.

Defendant relies principally on Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, in which the United States Supreme Court held unconstitutional the introduction of a VIS at the sentencing phase of a capital murder trial. The court expressly stated, however, that the principles enunciated in Booth did not preclude introduction of VIS’ in noncapital cases, such as the appeal at bar. (Booth v. Maryland, 496 U.S. at 507 n.10, 96 L. Ed. 2d at 451 n.10, 107 S. Ct. at 2535 n.10.) Our supreme court recently ruled that introduction of a VIS at the sentencing phase of a noncapital case does not impinge upon a defendant’s constitutional rights. People v. Turner (1989), 128 Ill. 2d 540, 577-78.

Illinois circuit courts, moreover, are vested with discretion to impose on convicted criminals sentences the court deems appropriate. (People v. Clemons (1988), 175 Ill. App. 3d 7, 12, 529 N.E.2d 577.) In recognition of this discretion, reviewing courts give great weight and deference to a circuit court decision, disturbing the sentence only where that discretion has been abused. People v. Clemons, 175 Ill. App. 3d at 12.

One of the factors to which the court must apply its “independent assessment” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 4—1(b)) in determining the proper sentence is statements directed to the court by victims of violent crime regarding the impact of the crime on the victim. (People v. Clemons, 175 Ill. App. 3d at 13; People v. Hines (1988), 165 Ill. App. 3d 289, 302, 518 N.E.2d 1362; Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 4—1(a)(6), 1406.) “Victim” includes the sibling of the actual victim of the crime. People v. Hines, 165 Ill. App. 3d at 302; Ill. Rev. Stat. 1987, ch. 38, par. 1403(a)(3).

At the sentencing hearing in the present case, the court considered several matters before reaching its decision, including a presentence investigation report, arguments in aggravation and mitigation, defendant’s own statement to the court, and Trainer’s written VIS, in which she expressed outrage at her brother’s death and a desire for justice. She explained that Davis’ death forced her to discontinue her education to support remaining family members. Trainer wrote also of the need to vindicate the rights of victims and for retaliation against criminals.

The court allowed Trainer to testify at the sentencing hearing in order to read the written statement into the record. Although Trainer strayed from the text of the statement, she reiterated essentially the same sentiments contained in the VIS. The court assured defense counsel it was capable of distinguishing Trainer’s “editorial comments” from substantive remarks concerning the impact Davis’ death had upon the family. When Trainer did digress from pertinent facts, the court several times directed her to limit her testimony to the loss visited upon individual family members by Davis’ death.

Defendant portrays Trainer’s presentation, both written and oral, as inflammatory, irrelevant, and prejudicial, and therefore inappropriate for the court’s consideration. This court found in People v. Hines (165 Ill. App. 3d at 302), however, that a VIS expressing a desire that the defendant be harshly punished did not violate his eighth amendment rights. Furthermore, no evidence of record rebuts the presumption that the court considered only competent evidence in entering defendant’s sentence. (People v. Phillips (1989), 127 Ill. 2d 499, 537.) Statements from the bench during the hearing illustrated the court’s ability to distinguish relevant and proper remarks from prejudicial or immaterial evidence. In imposing sentence, the court commented only on defendant’s criminal history and the need to deter others from committing the same or similar crimes. The court did not abuse its discretion by admitting into evidence Trainer’s VIS and testimony.

For the reasons set forth above, there are no bases upon which to disturb defendant’s conviction or sentence. Accordingly, we affirm.

Affirmed.

BILANDIC, P.J., and DiVITO, J„ concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    DAPHNE CLEGGETT, Plaintiff, v. JOSE ZAPIANIN, Defendant and Third-Party Plaintiff-Appellant (Robert Harmeyer, Third-Party Defendant-Appellee; Roman Walczynski et al., Third-Party Defendants).
    First District (3rd Division)
    No. 1—87—2378
    Opinion filed August 23, 1989.
    Rehearing denied September 25, 1989.
    Leonard M. Ring & Associates, of Chicago (Leonard M. Ring and Margaret A. McGuire, of counsel), for appellant.

      Kiesler & Berman, of Chicago (Mark S. Vilimek and Dale L. Schlafer, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant and third-party plaintiff, Jose Zapianin (Zapianin), appeals from an order of the circuit court of Cook County which dismissed with prejudice his third-party complaint filed against Dr. Robert Harmeyer (Harmeyer). On appeal, Zapianin argues that the trial court erred when it held that the Contribution Act (Ill. Rev. Stat. 1985, ch. 70, par. 301 et seq.) barred his action for implied indemnity based on equitable apportionment. We affirm.

In October 1979, Zapianin was involved in an automobile accident with plaintiff, Daphne Cleggett (Cleggett). Cleggett sustained personal injuries and was treated by Harmeyer. Cleggett filed a complaint against Zapianin seeking damages for the injuries sustained as a result of the accident. Zapianin filed a third-party complaint for implied indemnity based on equitable apportionment against Harmeyer and the other physician who treated Cleggett following the accident. The underlying case between Cleggett and Zapianin was settled and a release executed in April 1985. Neither Harmeyer nor any of the other third-party defendants were named in the release.

Harmeyer filed a motion to dismiss Zapianin’s complaint based upon the Contribution Act, which provides in pertinent part:

“(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide ***
* * *
(e) A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement.” (Ill. Rev. Stat. 1985, ch. 70, par. 302.)

The trial court initially denied Harmeyer’s motion to dismiss. Harmeyer filed a motion for reconsideration based upon the case of Mayhew Steel Products, Inc. v. Hirschfelder (1986), 150 Ill. App. 3d 328, 501 N.E.2d 904. After reconsideration, the trial court dismissed Zapianin’s third-party complaint with prejudice. This appeal followed.

The sole issue for decision on appeal is whether the trial court erred in dismissing Zapianin’s complaint. Zapianin contends that the Contribution Act did not apply to his case at the time the release was executed. Zapianin further contends that because the Mayhew decision overruled past precedent and extinguished the implied indemnity based on equitable apportionment remedy, it should not be applied retroactively to bar his action. Because Zapianin’s position is based on an inaccurate assessment of the law, we disagree.

In Heinrich v. Peabody International Corp. (1985), 139 Ill. App. 3d 289, 296, 486 N.E.2d 1379, 1384, this court held that the Contribution Act abolished the doctrine of implied indemnity in Illinois. In so ruling, we noted that although contribution and implied indemnity are separate causes of action, both doctrines impose duties which are quasi-contractual in nature. Since the Heinrich decision, the rule in Illinois has been that where the parties have not expressly contracted for indemnity, public policy requires that their relationship be governed by the principle of contribution. Heinrich, 139 Ill. App. 3d at 297.

The Heinrich decision traced the historical evolution of the concept of implied indemnity and its problematic application. In Heinrich, we concluded:

“[T]he historical relationship between indemnity and contribution, the policies supporting the adoption of contribution by our supreme court, the legislature’s intent in passing the Contribution Act evidenced by what was said and what was not said, the broad statutory scheme and the specific language of the Act setting forth the general application of contribution [citations], all weigh in favor of a finding that implied indemnity has been abolished.” 139 Ill. App. 3d at 302, 486 N.E.2d at 1388.

Contrary to Zapianin’s contentions, the Mayhew decision did not overrule past precedent, but rather applied the Contribution Act in accordance with the precedent established in earlier cases. The Mayhew court relied on the decisions rendered in 535 North Michigan Condominium Association v. BJF Development, Inc. (1986), 143 Ill. App. 3d 749, 753, 493 N.E.2d Ill, 114, and Holmes v. Sahara Coal Co. (1985), 131 Ill. App. 3d 666, 675-76, 475 N.E.2d 1383, 1389-90, when holding that the Contribution Act extinguishes actions based on equitable apportionment. Mayhew Steel Products, Inc. v. Hirschfelder (1986), 150 Ill. App. 3d 328, 330, 501 N.E.2d 904, 906.

Zapianin also contends that the Mayhew decision and the principle which it stands for, i.e., the abolition of causes of action for implied indemnity based on equitable apportionment, should be applied prospectively. We disagree.

There are three factors to be used in determining when a decisión in a civil case should be applied prospectively only: (1) a non-retroactive decision must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) consideration of the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation; and (3) equitable considerations of whether there is any injustice or hardship in making the decision retroactive. Board of Commissioners v. County of Du Page (1984), 103 Ill. 2d 422, 426-27, 469 N.E.2d 1370, 1372.

Here, the Mayhew decision did not represent a sudden change in the law, but rather reflected a gradual evolution which was foreshadowed by the Illinois Supreme Court decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, which established the availability of the contribution remedy in Illinois, and the subsequent legislative enactment of the Contribution Act. Further, the retroactive application of Mayhew furthers the purpose of the Contribution Act by encouraging settlement. Finally, because the Mayhew court was not the first to hold that the Contribution Act extinguished actions for implied indemnity, there is no injustice in retroactive application of the decision.

Accordingly, we find that the trial court did not err in dismissing Zapianin’s third-party complaint against Harmeyer for implied indemnity based on equitable apportionment.

The judgment of the circuit court is therefore affirmed.

Affirmed.

FREEMAN, P.J., and McNAMARA, J., concur.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.


author: JUSTICE WHITE

text:
    THE CITY OF CHICAGO, Plaintiff-Appellant, v. RAYMOND HEINRICH, Defendant-Appellee.
    First District (3rd Division)
    No. 1—87—2541
    Opinion filed August 23, 1989.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, the City of Chicago, appeals from an order of the circuit court which modified, sua sponte, a judgment entered against defendant, Raymond Heinrich, more than 30 days earlier despite plaintiff’s objections. Plaintiff questions whether the trial court lacked authority to modify the judgment.

Defendant, as appellee, has not filed a brief but we shall consider the merits of plaintiff’s claim. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Facts

On August 13, 1985, plaintiff filed a complaint in the circuit court of Cook County against defendant alleging that two rental properties owned by defendant violated numerous Chicago ordinances. Plaintiff sought to recover $4,400 in fines, interest and court costs.

On October 8, 1985, a default judgment was entered against defendant in the amount of $3,647.50. The matter was continued until January 23, 1986, at which time the court imposed a lien on defendant’s properties in the amount of $3,600 plus court costs of $47.50 in accordance with the default judgment. Additionally, defendant made an oral motion to vacate the default judgment. On May 8, 1986, the court denied defendant’s motion to vacate the default judgment. On July 31, 1986, the court denied defendant’s second motion to vacate the default judgment and reinstated the judgment lien subject to defendant’s satisfaction of the judgment.

On July 7, 1987, during a citation proceeding, the court, sua sponte, modified the original judgment to $1,800. Plaintiff objected on the basis that the court lacked jurisdiction to modify its original judgment. On July 16, 1987, plaintiff filed a motion to reconsider the court’s July 7, 1987, modification order, and on July 21, 1987, plaintiff’s motion was denied. On July 20, 1987, defendant paid $1,800 to satisfy the modified order and the case was dismissed.

Discussion

On appeal, plaintiff argues that the circuit court lacked jurisdiction to modify, sua sponte, a default judgment despite plaintiff’s objection, during a citation proceeding held more than 30 days after the default judgment was entered. We agree.

Section 2 — 1203 of the Code of Civil Procedure requires that post-judgment motions be made within 30 days after the entry of the judgment. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1203.) After entry of the judgment, but before 30 days expire, the circuit court retains jurisdiction to modify or vacate the judgment on the motion of a party or sua sponte. (Darling v. Reinert (1971), 132 Ill. App. 2d 192, 268 N.E.2d 890.) After the 30-day period expires without either party filing a post-trial motion, a party seeking relief from a judgment must petition the court in accordance with the procedure set out in section 2 — 1401. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401.) The petition for relief must be written. (Halter v. Schoreck (1966), 69 Ill. App. 2d 104, 216 N.E.2d 278.) The petitioner must affirmatively set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief. Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381.

The record is void of any indication that there were any post-judgment motions made within 30 days after entry of the default judgment. The court’s motion to modify the original judgment came 22 months after the judgment was entered. There is no indication that a section 2 — 1401 petition was filed by the defendant. Nor is there an indication that defendant acted affirmatively during the July 7, 1987, citation proceeding to show the specific factual allegations required to support a section 2 — 1401 petition.

We note that the revestment doctrine does not apply to the facts of this case. It is our determination that the circuit court erred by modifying, sua sponte, over plaintiff’s objection, a judgment which was entered nearly 22 months earlier.

For the foregoing reasons, the judgment of the circuit court is reversed and the cause remanded with directions to reinstate the original judgment.

Judgment reversed; cause remanded.

FREEMAN, P.J., and RIZZI, J., concur.


author: PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GRACIELLA FARIAS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—0736
    Opinion filed August 23, 1989.

      William A. Swano & Associates and Abbey G. Fishman & Associates, both of Chicago (Ross A. Keene, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Elizabeth Sklarsky, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

On November 15, 1984, defendant, Graciella Farias, pleaded guilty to a felony charge of possession of a controlled substance. (Ill. Rev. Stat. 1983, ch. 561/2, par. 1402(b).) The trial court sentenced her to 13 months’ probation and imposed a fine. The trial court terminated defendant’s probation on January 13, 1986. On August 18, 1987, defendant filed a petition for post-conviction relief under the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.). The State filed a motion to dismiss the petition and the trial court granted the motion. Defendant appeals.

In her petition for post-conviction relief, defendant alleged that she had not knowingly, intelligently or voluntarily entered her guilty plea and that she had not received effective assistance of counsel. She based those contentions on the allegation that her trial counsel had failed to inform her that, as an alien, she could be denied both permanent resident alien and U.S. citizenship status based on a felony narcotics conviction. The State based its motion to dismiss solely on defendant’s failure to file the petition during the period of her probation. The State argued that, to qualify for post-conviction relief, a petitioner must be “under sentence,” viz., incarcerated or on conditional discharge, probation or parole.

“Any person imprisoned in the penitentiary” who asserts a substantial denial of his State or Federal constitutional rights in the proceeding resulting in his conviction may file a petition for post-conviction relief. (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1.) The issue presented in this appeal is thus whether a person who has successfully completed probation is “imprisoned in the penitentiary” for purposes of seeking post-conviction relief. Determination of the issue is controlled by the construction placed on that language by our supreme court.

In People v. Dale (1950), 406 Ill. 238, 92 N.E.2d 761, the supreme court rejected a challenge to the constitutionality of the Act. The court reasoned that the legislature intended to distinguish between convictions for minor offenses and for serious crimes “and to make the remedy available only to persons actually being deprived of their liberty and not to persons who had served their sentences and who might wish to purge their records of past convictions.” The court also concluded that “[t]he words ‘persons imprisoned in the penitentiary’ were no doubt intended to describe persons convicted of serious crimes and imprisoned at the time of their invocation of the [Act].” Dale, 406 Ill. at 246-47.

The language “imprisoned in the penitentiary” was thus interpreted narrowly in Dale as describing only those persons actually deprived of their liberty by imprisonment. Subsequently, and notwithstanding the language in Dale to the contrary, this interpretation was broadened in People v. Davis (1968), 39 Ill. 2d 325, 235 N.E.2d 634 (Davis I).

In Davis I, the defendant filed a petition for post-conviction relief but the cause was not heard until almost two years later. “By that time Davis was no longer imprisoned in the penitentiary.” (Davis, 39 Ill. 2d at 327.) Relying on the express wording of section 122 — 1 and Dale, the State argued that the defendant’s petition should be dismissed because he was not incarcerated at the time the cause was heard. The court noted that some jurisdictions made post-conviction relief available to persons who had fully served their sentences while others restricted it to those actually imprisoned at the time of the hearing. The court then rejected the State’s argument by stating:

“As there are obvious advantages in purging oneself of the stigma and disabilities which attend a criminal conviction, we see no reason to so narrowly construe this remedial statute as to preclude the remedy in every case in which the petition is not filed and the hearing completed before imprisonment ends.” Davis, 39 Ill. 2d at 329.

The supreme court adhered to the Davis I court’s broadened interpretation of the Act in three later cases.

In remanding the cause to the trial court for further proceedings on a separate issue, the court in People v. Neber (1968), 41 Ill. 2d 126, 128, 242 N.E.2d 179, stated:

“That a petitioner may have completed *** his sentence and may be no longer incarcerated *** will not render remandment unnecessary. We have observed that because of the stigma and disabilities which attend conviction of a crime we will not in every case deny a post-conviction remedy simply because the post-conviction proceedings had not been completed prior to the petitioner’s release from incarceration.” Neber, 41 Ill. 2d at 128.

In People ex rel. Palmer v. Twomey (1973), 53 Ill. 2d 479, 292 N.E.2d 379, the trial court dismissed without evidentiary hearing a pro se “ ‘Petition for Writ of Habeas Corpus’ ” filed after the defendant’s conviction. (Twomey, 53 Ill. 2d at 480.) On appeal, the court held that the trial court erred in failing to treat the petition as a post-conviction petition. However, it did not remand the cause. Rather, the court concluded that, as the defendant had been discharged and was no longer incarcerated, it might be that he no longer desired post-conviction relief. The court went on to add, however, that the dismissal of the cause was not res judicata and the fact that defendant’s term of imprisonment had ended did not of itself serve to bar the institution of post-conviction proceedings. Twomey, 53 Ill. 2d at 484, citing Davis, 39 Ill. 2d 325, 235 N.E.2d 634, and Neber, 41 Ill. 2d 126, 242 N.E.2d 179.

In People v. Davis (1973), 54 Ill. 2d 494, 496, 298 N.E.2d 161 (Davis II), the court repeated that “the Act would not be construed so narrowly as to preclude the remedy in every case in which the petition is not filed and the hearing completed before imprisonment ends,” citing Davis I. It also repeated that section 122 — 1 “[did] not require that the person seeking relief actually be imprisoned at the time the relief is sought.” The court further noted that Dale also held that the language “ ‘imprisoned in the penitentiary’ was intended to distinguish between persons convicted of minor offenses and those convicted of serious crimes,” i.e., “crimes punishable by imprisonment in the penitentiary,” and to allow the latter to avail themselves of the Act. 54 Ill. 2d at 496.

By emphasizing the “crimes punishable by imprisonment” language of Dale, the Davis II court seemingly broadened the interpretation of the Act even more.

Subsequently, the broadened interpretation of section 122 — 1 found support in the court’s rationale in People v. Lynn (1984), 102 Ill. 2d 267, 464 N.E.2d 1031, for allowing a direct appeal of a conviction despite the defendant’s completion of the sentence imposed thereon.

Lynn held that the completion of a sentence of incarceration for conviction of two counts of misdemeanor battery did not render moot a challenge to a conviction by direct appeal since nullification of the conviction, in contrast to the sentence, may have important consequences to a defendant. Lynn, 102 Ill. 2d at 273.

In People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307, the supreme court affirmed the judgment in People v. Correa (1984), 124 Ill. App. 3d 668, 465 N.E.2d 507, recognizing the defendant’s right to petition for post-conviction relief. The court rejected the State’s argument that the defendant was not entitled to post-conviction relief because he had served his sentence and had been released from the penitentiary. The court noted that the defendant’s “mandatory supervised release” from the penitentiary, during which he filed the petition, constituted a part of his sentence. (Ill. Rev. Stat. 1979, ch. 38, par. 1005— 8 — 1(d).) As such, the court concluded that the defendant had not completed his sentence when he filed his post-conviction relief petition. Thereafter, the court noted the Dale holding that such relief was not available to those who had served their sentences and might wish to purge their records of past convictions. The court also reasoned that the defendant in People v. Jack (1981), 97 Ill. App. 3d 1082, 424 N.E.2d 28, which affirmed the dismissal of the defendant’s post-conviction petition on the grounds that the Act did not extend to those who had completed probationary sentences, had not sought post-conviction relief while under sentence. Because defendant Correa had not served his sentence when he filed his petition, the court found Dale and Jack inapplicable. The court also found it unnecessary to decide whether post-conviction relief would have been available had the defendant been released prior to filing his petition. Correa, 108 Ill. 2d at 546-47.

Thus, in Correa, the court found it unnecessary to decide whether post-conviction relief was available to a defendant who had been released prior to filing his petition. However, the fact that the court noted the Dale holding that such relief was unavailable to those who had served their sentences and might simply wish to purge their records of past convictions strongly indicated that such defendants would not be allowed to avail themselves of the Act. The intimation that the court would so hold was, we believe, made crystal clear in People v. Martin-Trigona (1986), 111 Ill. 2d 295, 489 N.E.2d 1356.

In Martin-Trigona, the court extended the Act to a defendant released on appeal bond who was awaiting resentencing. In doing so, the court reaffirmed the holding of Dale that the legislature used the language “ ‘imprisoned in the penitentiary’ ” to prevent those who had completed their sentences from availing themselves of post-conviction review “solely to purge their criminal records” and that only persons whose liberty is actually constrained are entitled to the protection of the Act. The court further reasoned that persons who were on parole (People v. Placek (1976), 43 Ill. App. 3d 818, 357 N.E.2d 660), or its successor, mandatory supervised release (People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307) or probation (People v. Montes (1980), 90 Ill. App. 355, 412 N.E.2d 1363), when their petitions were filed, were entitled to avail themselves of the Act because they were deprived of their liberty in some meaningful way. The court further reasoned that restraints on liberty which accompany actual incarceration, probation, parole and release on appeal bond while awaiting resentencing are unacceptable when imposed in violation of State or Federal constitutional rights. (Martin-Trigona, 111 Ill. 2d at 299-300.) Finally, the court stated:

“Relief is available under the Act to all persons whose liberty is constrained by virtue of a criminal conviction, and a criminal sentence is relevant only so far as it predicts at what point in time any particular convicted person will be released from the fetters accompanying his conviction so that he is no longer in need of the Act’s remedial procedures to secure his liberty.” Martin-Trigona, 111 Ill. 2d at 301.

This survey of the relevant supreme court cases on the issue before us leads us to conclude that the trial court correctly dismissed defendant’s petition. We would not hesitate to find that defendant here could seek post-conviction relief if the interpretation of section 122 — 1 expressed in the cases from Davis I through Davis II and buttressed in Lynn were still viable. However, we believe that Martin-Trigona implicitly retreated from the expansive reading of the Act adopted in those cases, although it cited Davis II with approval. People v. Martin-Trigona (1986), 111 Ill. 2d 295, 301, 489 N.E.2d 1356.

Martin-Trigona conclusively establishes that a defendant must actually be deprived of his liberty as a result of serving, as opposed to having served, a sentence of imprisonment, parole, mandatory supervised release, or probation or as a result of being on appeal bond awaiting resentencing at the time he files his petition for post-conviction relief. The reason for this construction of the Act, consistent with Dale, is that it is intended to remedy deprivations of liberty resulting from violations of the petitioner’s constitutional rights. Absent such a deprivation, the wrong which the Act was intended to remedy is nonexistent.

Defendant chiefly relies on the favorable language of the supreme court cases from Davis I and Davis II, Lynn and the appellate court cases decided thereunder (see, e.g., People v. Montes (1980), 90 Ill. App. 3d 355, 412 N.E.2d 1263; People v. Correa (1984), 124 Ill. App. 3d 668, 465 N.E.2d 507). She also notes that the supreme court has stated that the Act must be liberally construed to afford a defendant an opportunity to present questions of deprivation of constitutional rights. (People v. Martin-Trigona (1986), 111 Ill. 2d 295, 303, 489 N.E.2d 1356; People v. Correa (1985), 108 Ill. 2d 541, 546, 485 N.E.2d 307; People v. Pier (1972), 51 Ill. 2d 96, 98, 281 N.E.2d 289.) In view of the limitations of the Act stated in Dale and Martin-Trigona, however, those cases and the mandate for a liberal construction of the Act are unavailing to defendant.

Defendant also argues that the denial of post-conviction relief will, in effect, penalize her for completing probation successfully. She reasons that, if imprisoned for violating probation, she “would have undoubtedly had standing” to bring her petition for relief. We disagree. Defendant lacks standing to bring that petition because she did not, as required by the Act, file it during the time she was “imprisoned in the penitentiary,” i.e., during the period of her probationary sentence, not because she completed the sentence successfully.

Defendant argues also that a denial of post-conviction relief violates the U.S. Supreme Court’s direction in Young v. Ragen (1948), 337 U.S. 235, 93 L. Ed. 1333, 69 S. Ct. 1073, that some clearly defined method be made available for prisoners to raise claims of denial of Federal constitutional rights. We disagree with this argument as well. Defendant does not claim that she failed to file a petition during the time required under the Act because the Act is not clearly defined. Rather, that failure was solely due to her lack of awareness, during that time, of the collateral consequence of her conviction, i.e., deportation (People v. Correa (1985), 108 Ill. 2d 541, 548, 550, 485 N.E.2d 307), which she now seeks to avoid. The Act has been found to satisfy Young. (People v. Martin-Trigona (1986), 111 Ill. 2d 295, 302, 489 N.E.2d 1356; People v. Correa (1985), 108 Ill. 2d 541, 545-46, 485 N.E.2d 307; People v. Dale (1950), 406 Ill. 238, 245-46, 92 N.E.2d 761.) Defendant offers no tenable reason for finding otherwise here.

For all of the foregoing reasons, the judgment of the circuit court dismissing defendant’s petition for post-conviction relief is affirmed.

Affirmed.

WHITE and CERDA, JJ., concur.


text:
    J. ISABEL MIRANDA, Plaintiff-Appellee, v. CORONET INSURANCE COMPANY, Defendant-Appellant (Helen Diggs, Defendant-Appellee).
    First District (3rd Division)
    No. 1—88—1253
    Opinion filed August 23, 1989.
    Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin R. Becker, of counsel), for appellant.
    Whitcup & Arce, of Chicago (George D. Levy, of counsel), for appellee J. Isabel Miranda.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, J. Isabel Miranda, filed a complaint in the circuit court to compel defendant, Coronet Insurance Company, to arbitrate a claim for uninsured motorist coverage under an automobile liability insurance policy issued to plaintiff. After defendant answered the complaint, both parties moved for summary judgment. The trial court denied defendant’s motion and granted plaintiff’s motion. Defendant appeals.

Defendant issued an automobile liability insurance policy to plaintiff for the period from March 20 to September 20, 1986. As required by section 143a of the Illinois Insurance Code (Insurance Code) (Ill. Rev. Stat. 1985, ch. 73, par. 613 et seq.), the policy provided uninsured motorist coverage to the limits of liability for bodily injury or death mandated by section 7 — 203 of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1985, ch. 95V2, par. 7 — 203). As further mandated by section 143a, the policy provided for arbitration of any disputes with respect to the uninsured motorist coverage. (Ill. Rev. Stat. 1985, ch. 73, par. 755a.) Plaintiff was involved in a collision with Helen Diggs on April 15, 1986. Plaintiff’s complaint alleged that Diggs was an uninsured motorist. Plaintiff filed a demand for arbitration of his uninsured motorist claim under defendant’s policy on December 24,1986.

On February 27, 1987, the safety responsibility section of the Department of Transportation (hereinafter collectively DOT) informed plaintiff’s counsel by letter that a motorist was not required to show evidence of liability insurance unless there was damage to another’s property in excess of $250 or bodily injury to another person. The letter further stated that Diggs submitted no evidence of automobile liability insurance. Lastly, the letter stated that Diggs was not required to prove financial responsibility because plaintiff’s accident report failed to show the cost of repairing his vehicle.

On March 5, 1987, plaintiff’s counsel advised the DOT by letter that plaintiff had “medical specials” in the amount of $1,300 and requested that Diggs be required to prove financial responsibility. On April 27, 1987, defendant informed plaintiff of its refusal to arbitrate his uninsured motorist claim.

Finally, on May 27, 1987, the DOT informed plaintiff’s counsel by letter that Diggs never filed a report or evidence of financial responsibility and that her name was therefore certified to the Secretary of State for a preliminary determination of probable liability. He was further informed that the Secretary took no action because the reports in the case file contained an inadequate description of the accident or conflicting information which prohibited establishing a prima facie case against Diggs.

Plaintiff filed his complaint to compel arbitration on September 29, 1987. In answering the complaint, defendant denied that Helen Diggs was an uninsured motorist. Defendant also pleaded the affirmative defense that plaintiff had not, as required under defendant’s policy, furnished a written finding from the DOT that any person legally responsible for plaintiff’s injuries had failed to prove financial responsibility.

In moving for summary judgment, plaintiff chiefly relied on sub-paragraph 6 of section 143a. That subparagraph provides:

“Failure of the motorist from whom [an insured] is legally entitled to recover damages to file the appropriate forms with the Safety Responsibility Section of the Department of Transportation within 120 days of the accident date shall create a rebut-table presumption that such motorist was uninsured at the time of the injurious occurrence.” Ill. Rev. Stat. 1985, ch. 73, par. 755a(6).

In view of section 143a(6), plaintiff asserted that defendant’s requirement of a written finding from the DOT was not a bar to arbitration of his claim.

On appeal, defendant largely repeats its arguments in support of its cross-motion for summary judgment. First, defendant asserts that section 143a(6) refers to the forms that the Vehicle Code requires to be filed when an accident results in death, any physical injury or property damage over $250. (Ill. Rev. Stat. 1985, ch. 95V2, pars. 11— 406, 11 — 411.) As such, defendant reasons, the rebuttable presumption created by section 143a(6) of the Insurance Code does not arise unless the allegedly negligent driver has a duty to submit the forms required under the Vehicle Code. Defendant further asserts that, in amending section 143a to include subparagraph 6, the legislature incorrectly assumed that the Vehicle Code required the filing of an accident report for every vehicular accident. However, because only certain accidents must be reported to the DOT under the Vehicle Code, defendant reasons, section 143a(6) must be construed consistently with the Vehicle Code. That is, section 143a(6) should be construed to mean that a rebuttable presumption that a motorist is uninsured arises only when the Secretary of State determines that a reportable accident has occurred and the motorist has not filed the “appropriate forms” within 120 days.

Continuing its analysis, defendant asserts that, as the Secretary of State has the exclusive authority to determine whether a duty to report an accident exists, the rebuttable presumption of section 143a(6) cannot arise where a determination is made that an accident is not reportable. Defendant concludes that the presumption never arose in this case because, as the letter of May 27, 1987, from the DOT reflects, the Secretary of State determined that Diggs had no duty to report because the information submitted by plaintiff was inadequate to give rise to that duty.

We cannot agree with defendant’s analysis. Defendant initially ignores the first part of the DOT’s letter of May 27, 1987. That part, informing plaintiff’s counsel that Diggs’ name had been certified to the Secretary of State, reveals determinations by the DOT that Diggs did have a duty to report the accident (Ill. Rev. Stat. 1985, ch. 95x/2, par. 11 — 406) and to meet the security requirements of the Vehicle Code (Ill. Rev. Stat. 1985, ch. 951/f2, par. 7 — 201.2). Neither the correctness of those determinations nor the adequacy of the information upon which they were based is before us or can be challenged by defendant.

Moreover, the fact that the DOT made these determinations over a year after the accident and only after being advised of plaintiff’s “medical specials” is immaterial. The Vehicle Code empowers the DOT to seek a missing report or information missing from a report from a person required to file a report. (Ill. Rev. Stat. 1985, ch. 95x/2, par. 7 — 201.1.) The Vehicle Code also empowers the DOT to require supplemental reports whenever it or the Secretary of State finds original reports insufficient. (Ill. Rev. Stat. 1985, ch. 95x/2, par. 11— 406(c).) The Vehicle Code thus envisions the supplementation of information contained in original accident reports. While section 7 — 201.1 also limits requests for missing reports or information to not later than 45 days after an accident, there is no prohibition against or time limit to the DOT accepting missing information voluntarily submitted by a party to an accident.

Even more fundamentally, defendant’s analysis incorrectly equates the Secretary of State’s ultimate decision not to proceed against Diggs to a determination that she had no duty to report the accident with plaintiff in the first place. Contrary to defendant’s implication, the existence of a duty to report an accident is determined by the DOT, not the Secretary of State. In addition, the DOT makes that determination before it certifies any names of the parties to the accident to the Secretary of State as persons of whom security is required. (Ill. Rev. Stat. 1985, ch. 95x/2, pars. 11 — 406, 7 — 201.) After certification, i.e., after the duty to report has been found to exist by the DOT, its the Secretary of State’s duty to make a preliminary finding whether there is a reasonable possibility of a civil judgment against the person named in the certification. (Ill. Rev. Stat. 1985, ch. 95x/2, par. 7 — 205.) Upon a preliminary finding that there is no such possibility, the Secretary may choose to take no further action. Ill. Rev. Stat. 1985, ch. 95x/2, par. 7-205(b).

Obviously then, the May 27, 1987, letter informed plaintiff’s counsel that, notwithstanding the DOT’s determinations and certification, the Secretary of State decided to take no further action against Diggs because it found no reasonable possibility of a civil judgment against her due to the inadequacies and contradictions in the case file. The Secretary’s decision had and could have had no effect on the DOT’s prior determination, evidenced by its certification, that Diggs had a duty to report the accident.

Moreover, the Secretary’s finding of no reasonable possibility of a civil judgment against Diggs had no effect on plaintiff’s right to seek uninsured motorist coverage from his insurer for the personal injuries caused by Diggs. That determination was made only for the limited purpose of determining whether Diggs would be required to post security or, failing the posting of security, have her driving privileges, license or registration suspended. Ill. Rev. Stat. 1985, ch. 95V2, par. 7 — 205(a).

Defendant also asserts that the May 27, 1987, letter did not give rise to the section 143a(6) presumption because, even assuming that Diggs had a duty to file an accident report, “[i]t” was less than 120 days from the date that duty arose, i.e., March 5, 1987, when plaintiff’s counsel informed the DOT that plaintiff sustained “medical specials” in the amount of $1,300 due to the accident with Diggs. This argument misapprehends the plain language of section 143a(6) that the rebuttable presumption provided for thereby arises from the failure of an at-fault driver to file an accident report within 120 days from the date of the accident. The presumption does not arise, as defendant would have the court believe, from the date the DOT receives information warranting determinations that a driver has a duty to file a report or to meet the security requirements of the Vehicle Code and a certification of the driver’s name to the Secretary of State.

Nothing in the Vehicle Code prohibits the DOT from making those determinations more than 10 days after the date of an accident, although that is the length of time a motorist has for filing an accident report. (Ill. Rev. Stat. 1985, ch. 95V2, par. 11 — 406.) Rather, they are to be made “as soon as practicable” after the receipt of an accident report. (Ill. Rev. Stat. 1985, ch. 95V2, par. 7 — 201.) In this case, it was obviously not practicable to make those determinations until after the receipt of the information from plaintiff’s counsel that he had “medical specials” as a result of the accident with Diggs. Although it was made more than a year after the accident, the determination that Diggs should have filed an accident report, reflected in the May 27, 1987, letter, operated nunc pro tunc to the date of the accident. As such, the fact that Diggs had not filed an accident report within 120 days of the accident properly gave rise to the rebuttable presumption of section 143a(6).

Defendant next contends that the trial court erred in finding as a matter of law that Diggs was an uninsured motorist because plaintiff failed to present any evidence that she was uninsured. This contention is bottomed on the argument that the section 143a(6) presumption did not arise in this case. However, as defendant’s underlying argument is incorrect, plaintiff’s failure to adduce any evidence that Diggs was uninsured was immaterial to his right to summary judgment. Defendant does not contend on appeal that it presented evidence to rebut the section 143a(6) presumption upon which plaintiff was entitled to rely. Thus, the trial court properly entered summary judgment for plaintiff as a matter of law.

For all of the foregoing reasons, we affirm the grant of plaintiff’s motion for summary judgment and the denial of defendant’s cross-motion for summary judgment.

Affirmed.

WHITE and CERDA, JJ., concur.


author: JUSTICE LORENZ JUSTICE PINCHAM,

text:
    ANNIE AUSTIN, Plaintiff-Appellant, v. ST. JOSEPH HOSPITAL, Defendant-Appellee.
    First District (5th Division)
    No. 1—87—3351
    Opinion filed August 25, 1989.

      PINCHAM, J., dissenting.
    Stamos, Rimland, Halprin & Clark, of Chicago, for appellant.
    Johnson & Drozdzik, Ltd., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court, of Cook County granting summary judgment (Ill. Rev. Stat. 1985, ch. 110, par. 2— 1005) for defendant.

We affirm.

On October 7, 1985, plaintiff, Annie Austin, filed a complaint against defendant, St. Joseph Hospital (St. Joseph), her former employer, alleging she was discharged from employment as a staff nurse in retaliation for filing a workers’ compensation claim with the Illinois Industrial Commission. Defendant denied the material allegations of the complaint.

On September 4, 1986, defendant moved for summary judgment. Defendant supported the motion with plaintiff’s own deposition testimony, relevant portions of which we summarize below, and exhibits offered in conjunction therewith.

Plaintiff testified she was hired by St. Joseph on January 25, 1982. Plaintiff acknowledged that an employee handbook, in effect at the time she was discharged, embodied the employment agreement between plaintiff and St. Joseph. Plaintiff’s signature on a receipt slip for the handbook appeared below an acknowledgement that the policies contained in the handbook were “explained or provided” to her. Her signature also appeared on a second similar receipt indicating her understanding that policies contained in the handbook were subject to change without notice.

Plaintiff testified that she injured her back on May 7, 1984, while lifting a patient out of bed. At some point following her injury, plaintiff filled out an injury report. She was examined by one of the physicians in the emergency room and was sent home. She was also sent home early on her next scheduled day of duty at the hospital. Plaintiff reported to work on her next scheduled day of duty thereafter and was examined by Dr. Shin. Sometime before being examined by Shin, plaintiff had been examined by Dr. Avora at Chicago Health Service upon her father’s referral. Plaintiff was placed on “light duty” status at the hospital.

During the last two weeks of May, plaintiff was also examined by Dr. Hyman, a staff physician at St. Joseph. Hyman released her for work, but limited her activities to duties which did not require her to lift more than five pounds. After Hyman’s release, she spoke to her supervisor, Ellen O’Mara, about the possibility of returning to work with those restrictions, but was told no such work was available.

For approximately five days in June 1984, plaintiff was hospitalized at St. Joseph. Plaintiff was treated there by Hyman, Dr. Horwitz, a neurologist, and Dr. Scott, an internist. However, plaintiff testified, because she was not receiving adequate attention, she requested a transfer to Rush-Presbyterian-St. Luke’s Hospital (Rush), where plaintiff’s internist, Dr. Williamson, was affiliated. Plaintiff stated St. Joseph initially refused to pay for the transfer. Plaintiff stated that when she arranged, independently through her sister, to hire an ambulance for that purpose, defendant acquiesced. She stated that Hyman told her that if she left St. Joseph without being transferred, she would lose her “workers’.”

Plaintiff stated that after being examined at Rush by a physical therapist, she developed the impression that she would be under the care of the physical therapist for two to three weeks “based on what [was] uncovered.” Plaintiff stated that later that day she spoke "with O’Hara and told O’Hara what the therapist had discovered. Plaintiff stated that the physical therapist thereafter “changed her plans” and decided she did not need to see plaintiff for two to three weeks. Plaintiff stated the therapist “couldn’t or wouldn’t” explain her reasons. Plaintiff also stated that during her hospitalization at Rush, St. Joseph wanted to refer her to a particular neurologist but that she “refused him” because she “felt he may have had a bias.” She did not recall the physician’s name.

Plaintiff acknowledged she believed “very strongly” that her refusal to see the physician referred by St. Joseph somehow affected the treatment she received from Williamson. Plaintiff explained that when she arrived at Rush, there was a “discrepancy” between the treatment she expected and the treatment she received.

Plaintiff stated that she began to receive workers’ compensation payments retroactively in Hay or June, but had received no benefits between the period of her hospitalization at St. Joseph and her stay at Rush. Plaintiff stated that after she was discharged from Rush in July 1984, she complained about not receiving benefits during that time. 'Plaintiff also stated that on July 6, 1984, she had filed an application for adjustment of her workers’ compensation claim with the Illinois Industrial Commission. Plaintiff acknowledged, however, that she did receive the entirety of benefits due. Plaintiff’s benefits terminated in October of 1984.

Plaintiff testified that following her discharge from Rush, she continued to receive treatment from Williamson and a treatment group at Cook County Hospital. Plaintiff paid for that treatment herself.

In August 1984, she was examined by Dr. Leonard Smith at the request of either St. Joseph or the insurance carrier associated with the workers’ compensation benefits. Following that examination on October 15, 1984, plaintiff spoke with Pam Linke of St. Joseph over the telephone about returning to work. Plaintiff was advised that Smith had determined plaintiff could return to work and that she was to do so on October 22, 1984. Plaintiff was also advised that her workers’ compensation benefits would stop on October 19, 1984. Plaintiff told Linke that her physicians had not yet released her to return to work but told her she could return to work if she did not have to lift anything and if she could control the amount of standing or sitting required.

Plaintiff testified that later that month, she received a letter from Janet Poeppelman, St. Joseph’s risk manager, requesting that plaintiff schedule a date for her return to work. Plaintiff stated that after receiving the letter from Poeppelman, she attempted to reach her by telephone, but was told that Poeppelman was on vacation. Plaintiff sent a certified letter dated October 25, 1984, to Poeppelman in response indicating that plaintiff had elected to obtain an additional medical opinion.

On Saturday, November 3, 1984, plaintiff received a telegram notifying her of termination of her employment for the failure to report to work on three consecutive dates: October 29, 30, and 31, 1984, in conjunction with hospital policy contained in the St. Joseph handbook. On the following Monday, she called Linke. Plaintiff told Linke that she was not able to return to work on a full-time basis and stated that, on two of the three dates she had not gone to work, she had been scheduled for physical therapy at Rush.

Plaintiff stated that, after receiving the notice of termination, she filled out a grievance report with St. Joseph. Thereafter, she met with Linke, O’Mara, and Janet Burdulis on November 13, 1984. Plaintiff’s grievance was eventually rejected.

Plaintiff also filed charges with the Illinois Division of Human Rights. Those charges were dismissed on December 30,1985.

In response to questions concerning whether plaintiff had ever been told by anyone associated at St. Joseph that they were unhappy that she had filed a workers’ compensation claim, plaintiff stated she did not recall. Plaintiff did state that “a couple of girls” had mentioned to her that they had heard plaintiff had filed a complaint against St. Joseph. Plaintiff stated those individuals were Jane Babula and two women, Margie and Helen, whose last names plaintiff could not recall.

Throughout plaintiff’s deposition, defendant’s counsel offered, and plaintiff identified, numerous documents pertaining to questions posed to plaintiff. The exhibits included a copy of the St. Joseph Hospital Employee Handbook; a letter from Smith to St. Joseph’s insurance carrier, dated August 18, 1984, stating plaintiff was able to perform her regular work activities without restriction; Poeppelman’s letter to plaintiff, dated October 19, 1984, stating that the hospital was informed of plaintiff’s release and that plaintiff was to schedule a date to return to work; plaintiff’s letter to Poeppelman, dated October 25, 1984, stating that plaintiff planned to seek an additional medical opinion from an independent physician and that she would contact the hospital thereafter; and the telegram dated November 2, 1984, terminating plaintiff’s employment.

The record reflects that prior to the scheduled hearing date on defendant’s motion, plaintiff moved to strike defendant’s motion for summary judgment. Plaintiff argued that the motion for summary judgment was insufficient to demonstrate that no issue of fact existed because it was based solely on plaintiff’s deposition testimony and attached exhibits.

At the hearing on May 20, 1987, the trial judge refused to consider plaintiff’s motion because plaintiff’s counsel did not appear in court. However, the trial judge permitted defendant’s counsel to argue the motion for summary judgment and ruled for defendant. Plaintiff’s subsequent motion to reconsider was denied on October 8, 1987. This appeal followed.

Opinion

On appeal, plaintiff contends the trial court erred in denying plaintiff’s motion to strike, and thereby considered incompetent evidence in ruling on St. Joseph Hospital’s motion for summary judgment. Specifically, plaintiff points out that the motion for summary judgment was based solely on plaintiff’s deposition testimony. It is plaintiff’s position that, as plaintiff could not competently testify to defendant’s state of mind, the motion for summary judgment should not have been entertained without defendant asserting affirmative matter to establish its reason for discharging plaintiff. Similarly, plaintiff argues St. Joseph’s motion was not properly supported by the exhibits attached to the deposition because plaintiff could not competently testify as to their content. Notwithstanding the contention that defendant’s motion for summary judgment should have been stricken, plaintiff argues a material issue of fact existed as to defendant’s motive in discharging plaintiff and that, therefore, summary judgment was improper.

Initially, we note trial courts may entertain motions by defendants for summary judgment where the only evidence considered is plaintiff’s own deposition testimony. (See, e.g., Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 473 N.E.2d 444.) Further, when challenged by a motion for summary judgment, a plaintiff who has alleged a cause of action for retaliatory discharge is required, as in other cases, to present some factual basis that would arguably entitle plaintiff the relief requested. See Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App. 3d 864, 529 N.E.2d 40.

In view of the above, we cannot conclude the trial court erred in denying plaintiff’s motion to strike St. Joseph’s motion for summary judgment. First,' the motion was proper despite any suggestion in plaintiff’s argument that St. Joseph’s motion could not have been supported by reference to plaintiff’s deposition testimony alone. Second, we find it unnecessary to determine whether exhibits establishing defendant’s reason for discharging plaintiff, referred to in conjunction with plaintiff’s deposition, could have been properly considered by the trial court. As we discuss below, even apart from the exhibits, plaintiff has failed to set out any evidence sufficient to raise an inference that plaintiff was discharged for exercising her right to seek workers’ compensation benefits.

Because it is the employer’s motive in firing an employee which is ultimately at issue in cases for retaliatory discharge, and because motive presents a question of fact, Illinois courts recognize that such cases should not be readily subject to disposition pursuant to motions for summary judgment. (Fuentes v. Lear Siegler, Inc. (1988), 174 Ill. App. 3d 864, 529 N.E.2d 40.) Summary judgment, nevertheless, is appropriate in the absence of that the plaintiff-employee was discharged in conjunction with an assertion of a claim for workers’ compensation benefits. Fuentes, 174 Ill. App. 3d 864, 529 N.E.2d 40.

After carefully considering the allegations in plaintiff's complaint and plaintiff’s deposition testimony, we conclude the record falls short of containing facts such as would support an inference that plaintiff’s discharge was in any way connected to workers’ compensation benefits. We do not determine an inference arises from plaintiff’s testimony that “a couple of girls,” actually, fellow nurses of plaintiff, had remarked that they were aware plaintiff had filed a workers’ compensation claim. Nor do we determine plaintiff’s testimony that Hyman had told her she would lose her “workers’ ” if she was transferred to Rush support an inference of retaliatory discharge. As to that testimony, we note that, in fact, plaintiff stated she received the benefits to which she was entitled. Instead, the only inference which reasonably may be drawn from the record is that plaintiff was discharged after failing to return to work after it was determined that she was fit to do so. That inference is insufficient to raise a question of fact here. Reversal of the circuit court’s grant of summary judgment under such circumstances is not justified.

We therefore affirm the judgment of the circuit court.

Affirmed.

MURRAY, P.J., concurs.

JUSTICE PINCHAM,

dissenting:

I dissent. There existed a genuine issue of material fact which preeluded the valid entry of summary judgment against plaintiff and in favor of the defendant. Moreover, the trial court relied on grossly incompetent evidence in granting the defendant’s motion for summary judgment.

Plaintiff, Annie F. Austin, a nurse, filed against defendant, St. Joseph Hospital, her former employer, a two-count complaint which alleged that she was discharged from her employment at St. Joseph Hospital in retaliation for her filing a claim with the Illinois Industrial Commission for her work-related back injury. Defendant simply denied the allegations of plaintiff’s complaint.

Plaintiff was deposed and her deposition testimony established the following: Plaintiff was hired as a staff nurse by defendant hospital on January 25, 1982. The contract of employment between plaintiff and defendant hospital was set forth in an employee handbook, which plaintiff acknowledged receiving. The provisions in the handbook were in effect in November 1984, when plaintiff was discharged.

Plaintiff was injured on May 7, 1984. She filled out an incident report. Plaintiff was examined by Dr. Shin, one of defendant’s health care physicians, and was placed on “light duty.” Later, plaintiff was treated by Dr. Hyman, a physician associated with defendant hospital during the time she was hospitalized there in June 1984.

During her hospitalization at defendant hospital, plaintiff requested to be transferred to Rush-Presbyterian-St. Luke’s Hospital (Rush), because she was not receiving acceptable treatment from the defendant hospital staff. Because defendant refused to pay for the transfer, plaintiff called her sister to get an ambulance to take her to Rush. When defendant learned of those arrangements, defendant agreed to transfer her with the stipulation that she accept treatment from a physician referred by defendant. Plaintiff, however, declined to accept treatment from that referred physician because she felt he would not perform an objective examination. Dr. Hyman said if she left without defendant transferring her, she would lose her “workers’ ” (workers’ compensation benefits). When plaintiff called her sister for the ambulance, Dr. Scott arranged for her transfer to Rush.

Plaintiff began receiving workers’ compensation payments retroactively in May or June. After she was discharged from Rush, plaintiff complained about not receiving certain workers’ compensation payments.

On July 6, 1984, plaintiff’s attorney filed an application for adjustment of plaintiff’s workers’ compensation claim. Plaintiff continued to receive treatment from Dr. Wayne Williamson and a treatment group at Cook County Hospital following her discharge from Rush.

In August 1984, plaintiff was examined by Dr. Leonard Smith at the request of either defendant or the insurance carrier associated with the workers’ compensation benefits, and she received Dr. Smith’s report. After she was examined by Dr. Smith plaintiff received a letter from Janet Poeppelman, defendant’s risk manager, late in October 1984, requesting that plaintiff contact her office to schedule a return to work date. Prior to receipt of that letter, plaintiff had a telephone conversation on October 15 with Pam Linke, a head nurse, about returning to work. Plaintiff was aware that Dr. Smith’s opinion was that she was able to report to work and that she was to report to work on Monday, October 22, 1984, and that her workers’ compensation payments would stop on October 19. Plaintiff’s doctors told her that she could return to work as long as she did not have to do any lifting or if she was able to control the sitting and standing that she had to do.

After receiving the late October letter from Poeppelman, defendant’s risk manager, plaintiff telephoned defendant and spoke to Peggy, who worked in the risk management department, and asked to speak to Poeppelman, who was on vacation. Plaintiff also sent a certified letter dated October 25, 1984, to Poeppelman in response to Poeppelman’s letter. Plaintiff told Dr. Wayne Williamson about Poeppelman’s letter when she next saw him, and she also told him of her termination from defendant hospital, i.e., that she had received a telegram terminating her employment on Saturday, November 3,1984.

Plaintiff called Linke because she was surprised by the letter. She told Linke that she was not able to return to work full duty. Linke responded that she was instructed to send the letter because plaintiff was not at work on October 29 or the 31st. During October 29, 30 and 31, 1984, the three days plaintiff did not report for work, plaintiff was scheduled for two days of physical therapy at Rush.

After receiving the notice of discharge, plaintiff contacted Donna Wilke regarding using defendant’s grievance procedure and filled out a grievance report. Thereafter, plaintiff met with Linke, O’Mara and Janet Burdulis on November 13, 1984. Plaintiff did not receive a telegram dated December 3, 1984, advising plaintiff that her grievance procedure was scheduled for December 7, 1984, because she was then out of town at Mayo Clinic in Rochester, Minnesota, from December 2 through 9, 1984. On December 7, 1984, while she was in Minnesota, she telephoned her mother, who told her that she had received the telegram. Plaintiff told her mother to telephone defendant concerning the grievance matter.

Before going to Mayo, plaintiff spoke to Burdulis on three occasions by phone regarding scheduling the grievance proceeding. Burdulis cancelled the date they had agreed on but never contacted her thereafter regarding a different date. Plaintiff told Burdulis to get back to her regarding scheduling a different date because plaintiff had scheduled “some medical appointments.” Plaintiff did not say she was going to Mayo Clinic.

When she spoke to Burdulis after she arrived back from Mayo Clinic, she was told that the grievance procedure had taken place without her. Burdulis told plaintiff that because she had not appeared, she forfeited her right to a grievance hearing. Plaintiff later spoke to Joseph Bucolo regarding scheduling another grievance hearing date.

Plaintiff stated that she did not recall being told by anyone associated with defendant that they were unhappy that plaintiff had filed a workers’ compensation action and that she had no contact with any individual in that regard. Plaintiff did, however, receive feedback from “a couple of girls,” Jane Babula, Margie and Helen.

Defendant moved for summary judgment and attached to the motion plaintiff’s deposition testimony and the deposition exhibits. Plaintiff filed a motion to strike defendant’s summary judgment motion. The basis of plaintiff’s motion to strike defendant’s motion for summary judgment was that defendant’s motion was insufficient on its face to demonstrate that no issue of fact existed, in that the only evidence relied on by defendant in support of its motion for summary judgment were plaintiff’s deposition testimony and attached exhibits.

At the hearing of defendant’s motion for summary judgment on May 20, 1987, the court struck plaintiff’s motion to strike defendant’s motion for summary judgment simply because plaintiff’s counsel was not present to argue the motion. The court allowed defendant’s counsel, however, to present his argument, and ruled in defendant’s favor and granted defendant’s motion for summary judgment. Plaintiff’s subsequent motion to reconsider was denied and plaintiff filed a timely notice of appeal.

Plaintiff argues that defendant’s motion for summary judgment should have been stricken because defendant could not and did not establish, through plaintiff’s deposition testimony and attached exhibits, defendant’s intent in terminating plaintiff’s employment. Plaintiff also argues that defendant could not rely on the exhibits attached to the deposition because plaintiff could not competently testify as to them. Essentially, plaintiff’s argument is that defendant did not present any evidence, in the form of affidavits or otherwise, as to the reason for plaintiff’s termination.

Plaintiff relies on Cunningham v. Addressograph Multigraph Corporation-Bruning Division (1980), 87 Ill. App. 3d 396, 409 N.E.2d 89. Plaintiff also argues that the pertinent exhibit attached to her deposition testimony, particularly the telegram informing plaintiff that her termination was because she violated hospital absenteeism policy, was inadmissible hearsay. In Cunningham, plaintiff filed an action against defendant employer for retaliatory discharge alleging his termination was based on anticipation of plaintiff filing a claim for workers’ compensation benefits. Defendant moved for summary judgment with supporting affidavits of defendant’s plant personnel manager that plaintiff’s termination was due to plaintiff’s violation of the defendant’s call-in policy. Plaintiff filed counteraffidavits admitting that, although he had violated the policy, he thought the violation would be waived. The trial court granted summary judgment for defendant.

On appeal, the court of review in Cunningham concluded that defendant’s affidavits reasonably implied that plaintiff’s discharge was for violation of defendant’s call-in policy and that plaintiff’s admission corroborated that fact. The court noted, however, in affirming the summary judgment for defendant in Cunningham that plaintiff’s affidavits could not overcome evidence of defendant’s intent in terminating plaintiff, established by defendant’s affidavits, because plaintiff could not competently establish, through his own affidavits, defendant’s intent. The Cunningham court held:

“From the foregoing summary of the pleadings and affidavits it can be seen that the central issue in this case is the defendant’s intent or motive in discharging plaintiff. We have concluded that the defendant’s affidavits reasonably imply that the discharge was for violation of the company’s call-in policy and that this is corroborated by plaintiff’s admission that he violated that policy.
We have further concluded that plaintiff’s affidavits do not competently counter those of the defendant since plaintiff could not competently testify as to the defendant’s state of mind. No facts alleged by pleadings or affidavit would support an inference of defendant’s state of mind." (Emphasis added.) 87 Ill. App. 3d at 398.

Plaintiff quite correctly points out that in Cunningham, unlike in the instant case, defendant there moved for summary judgment with supporting affidavits, significantly absent in the instant case. The requisite relevant inquiry, therefore, is whether the telegram dated November 2, 1984, and attached as an exhibit to plaintiff’s deposition testimony, which stated that plaintiff’s discharge was for her failure to report to work for three days, was properly considered by the trial court in granting defendant summary judgment.

It is plaintiff’s position that defendant provided no proper foundation for the telegram, or other letters allegedly written by defendant, to be admitted as substantive evidence during plaintiff’s deposition. Plaintiff states that inasmuch as the documents were only identified by plaintiff in her deposition, that mere identification is grossly insufficient to establish a proper foundation for the admission of the telegram into evidence as substantive evidence for the truth of the matters asserted therein, because plaintiff could not and did not testify as to the telegram’s contents, namely, defendant’s intent in terminating plaintiff, as the aforequoted language of Cunningham clearly holds.

Plaintiff’s argument is persuasive. The letters and telegrams were inadmissible hearsay (Baehr v. Health & Hospital Governing Comm’n (1980), 86 Ill. App. 3d 43, 407 N.E.2d 817), which could not be considered as competent evidence in granting defendant’s motion for summary judgment (Hendricks v. Deterts (1973), 13 Ill. App. 3d 976, 301 N.E.2d 625). Here, defendant did not present any affidavits that would provide a basis for admission of the contents of the letters, or to establish defendant’s intent in terminating plaintiff. Without such an affidavit, the admission of the telegram as evidence of defendant’s intent as substantive evidence was improper and the court’s reliance thereon was similarly inappropriate.

A question of fact therefore existed which precluded summary judgment. Other than defendant’s simple denial that plaintiff was terminated in retaliation for filing a workers’ compensation claim, defendant presented no evidence to disprove plaintiff’s allegations. While plaintiff’s deposition testimony provides little proof that she was fired for that reason, such proof would almost be impossible from plaintiff’s lips inasmuch as it is defendant’s intent which forms the basis for plaintiff’s action of retaliatory discharge. For that reason summary judgment was particularly inappropriate, in that the factual issue was the defendant’s intent. (Beauvoir v. Rush-Presbyterian-St. Luke’s Medical Center (1985), 137 Ill. App. 3d 294, 484 N.E.2d 841.) Without any affidavit from defendant, the defendant’s intent in discharging plaintiff was a genuine issue of fact to be determined at trial.

The majority in the instant case improperly affirms the summary-judgment against plaintiff in favor of the defendant simply and only because of its ill-founded and unsupported conclusion that plaintiff’s deposition testimony did not establish that plaintiff’s discharge by defendant was retaliatory, and without any indication from any source whatever that plaintiff’s deposition was the only evidence on the issue available to plaintiff, or that there was no other evidence on the issue available to plaintiff, and in the total absence of any evidence that plaintiff’s discharge was not retaliatory, as plaintiff alleged it was.

On the state of the record before us, plaintiff was clearly entitled to her day in court on an evidentiary hearing and a determination of the merits of the allegations of her complaint against the defendant and the defendant’s answer thereto. The trial court therefore erred in granting the defendant’s motion for summary judgment. Accordingly, I dissent.