author: JUSTICE WOODWARD

text:
    WILLIAM M. WADDEN, Plaintiff-Appellant, v. THE VILLAGE OF WOODRIDGE, Defendant-Appellee.
    Second District
    No. 2—89—0157
    Opinion filed January 16,1990.

      David G. Pribyl, of Goldstine & Broida, Ltd., of Summitt (Ronald J. Broida, of counsel), for appellant.
    Kenneth R. Menzel and Gerald M. Gorski, both of Gorski & Good, of Wheaton (Thomas W. Good, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the Opinion of the court:

Plaintiff, William Wadden (Wadden), filed a three-count complaint against the defendant, Village of Woodridge (Woodridge). Pursuant to a motion by Woodridge, count II of the complaint was dismissed. Thereupon, Woodridge filed a motion for summary judgment as to counts I and III of the complaint. Wadden filed an answer to the motion for summary judgment, to which defendant then filed a reply. Wadden then filed a motion to strike Woodridge’s reply. The motion to strike was denied, and the trial court granted Woodridge’s motion for summary judgment. Wadden appeals, raising the following issues: whether the trial court erred in granting the motion for summary judgment; and whether the trial court erred for failing to grant Wad-den’s motion to strike Woodridge’s reply to Wadden’s answer to the motion for summary judgment.

The pertinent facts as revealed by the pleadings are largely undisputed and are as follows.

In February 1985, Wadden was advised by Leonard Berg, the director of golf course services for the Village of Woodridge, that Wood-ridge was hiring him for the position of golf professional. In addition to the annual base salary of $33,000 that the position paid, Berg orally agreed to pay Wadden 5% of the annual net profits of Woodridge’s golf pro shop. Wadden was also given a copy of its employee manual. Later, Wadden received a revised copy of the employee manual which provided, inter alia, that any employee who completes six months of probationary service automatically becomes a permanent employee and, as such, is entitled to a due-process hearing prior to being demoted or terminated for cause. The employee manual also provided that an employee may be laid off when there is a shortage of work or funds or when a position is abolished.

On March 3, 1987, Joseph G. Fennell, the acting administrator for the Village of Woodridge, notified Wadden by letter that the position of full-time golf professional was being abolished and that he would be laid off effective May 1,1987.

Subsequently, Wadden learned that on March 19, 1987, Woodridge had advertised in the local paper seeking to fill the position of support-service supervisor. Through his attorney, Wadden sent his application for the position of support-services supervisor to Woodridge. The letter also stated that Wadden believed that the general responsibilities and required knowledge and skills of his position of golf professional were identical to the position of support-service supervisor. Further, Wadden advised in the letter that if he was not appointed to the support-services supervisor position, he would deem the elimination of his position as an improper discharge without cause, in violation of Woodridge’s employment and grievance procedures.

After receiving Wadden’s letter and application, Woodridge stopped advertising for the position of support-services supervisor and did not fill the position. The position of golf professional (seasonal, part time) was filled by Scott Pless, Woodridge’s former assistant golf professional, a position eliminated at the same time as Wadden’s.

On April 30, 1987, Woodridge advertised seeking to fill the position of administrative assistant to the director of golf course services. Wad-den did not submit another application for this position. In July 1987, Woodridge filled this position with someone other than Wadden.

On August 21, 1987, Wadden filed a three-count complaint against Woodridge. Count I alleged that because the position of administrative assistant was the same in substance as that of golf professional, Wood-ridge had breached the contractual provisions of its employee manual by discharging Wadden without a due process hearing before the village administrator. Count II alleged that Woodridge had not acted in good faith in dealing with Wadden. Count III alleged that Woodridge had breached the oral agreement to pay Wadden his bonus of 5% of the net profit of the golf pro shop. Count II was later dismissed and is not part of the appeal before this court.

On or about April 8, 1988, Wadden served interrogatories on Woodridge, seeking, inter alia, appropriation ordinances covering the years 1985 to current date which had been passed and approved. On or about June 3, 1988, Woodridge served its answer to interrogatories on Wadden. On or about October 26, 1988, Woodridge filed its motion for summary judgment. In response to Wadden’s answer to the motion for summary judgment, Woodridge filed a reply memorandum and affidavit which contained budget summaries and two Woodridge ordinances as exhibits. Wadden filed a motion to strike Woodridge’s reply to the answer to the motion for summary judgment.

On December 27, 1988, a hearing was held on Wadden’s motion to strike. Wadden argued that Woodridge committed a substantial breach of discovery rules by failing to supply the ordinances requested by Wadden’s interrogatories. In response, Woodridge admitted that the budget summaries, which were exhibits to the appropriation ordinances, were not furnished to Wadden and should have been furnished. The other ordinances were transfer ordinances which were not requested by Wadden. Counsel for Woodridge denied that failure to supply the documents was willful or intentional. Counsel for Woodridge suggested that in addition to supplying Wadden with the missing documents, he would not object to Wadden being given time to respond, or Woodridge would withdraw that portion of its motion for summary judgment with respect to count III that argued there was no appropriation for a percentage of the profits. Counsel for Wadden responded that Wadden was not seeking sanctions under Supreme Court Rule 201(k) (107 Ill. 2d R. 201(k)) but rather under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). The trial court denied the motion to strike and refused to impose sanctions on Woodridge. Wadden elected to proceed with the hearing on the agreed basis that Woodridge would withdraw its nonappropriation argument with respect to count III of the complaint.

On January 19, 1989, the trial court granted Woodridge’s summary judgment as to counts I and III, the remaining counts of the complaint. Wadden now brings this appeal.

Wadden contends, first, that the trial court erred in granting summary judgment as to count I of his complaint. Specifically, Wadden argues that since the “new” position of administrative assistant to the director of golf course services was the same as that of golf professional, there exists a genuine issue of material fact as to whether Woodridge actually abolished Wadden’s position. If, in fact, the position was not abolished, then under the provisions of the employee manual, Wadden is entitled to a hearing before the village administrator before he can be discharged.

In order to resolve this issue, we must examine the qualifications necessary for each of these jobs. The qualifications for golf professional (the position held by Wadden), included graduation from high school or equivalent, two years of college preferred, and five years’ experience as a golf professional or assistant golf professional, and currently holding a class A membership or junior membership in the PGA of America. The golf professional was required, inter alia, to have extensive knowledge of the rules of golf, to recognize necessary maintenance of the facilities, to know the types of construction of golf equipment in order to provide information to customers, and to have knowledge of golfing events to promote public interest. The job included: supervising the golf course employees, operating and maintaining the golf pro shop and locker room facilities, conducting golf lessons outside of the 40-hour work week, attendance at monthly management and supervisory staff meetings, and providing assistance for a variety of services for the golfing public.

The position of administrative assistant to the director of golf course services requires the following qualifications: 60 hours of college or junior college accredited education and three years’ experience at the supervisory level in the recreational industry. The required skills or knowledge for the position was virtually the same as for the golf professional except that the latter was to be knowledgeable about golfing events. The duties of the administrative assistant included directing the activities of part-time seasonal employees, participation in the running of the golf pro shop, coordination of the maintenance of the locker room facilities, coordinating housekeeping functions for the clubhouse, and making recommendations for capital improvements.

It is not disputed in this case that the employee manual created an enforceable contract right whereby Wadden could not be discharged for cause from his position as golf professional without a hearing. (See Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482.) However, the employee manual does permit the layoff of employees without a hearing when the employee’s position has been abolished. The courts have recognized that a layoff due to the elimination of a position is distinct from a dismissal for cause and, therefore, does not trigger a right to a hearing required for dismissals for cause. See Woolfolk v. Board of Police & Fire Commissioners (1979), 79 Ill. App. 3d 27.

Summary judgment is proper where the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is not a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) The purpose of summary judgment is to render judgment on questions of law after first determining that no genuine issue of fact exists between the parties. (Deltak, Inc. v. Schwartz (1983), 119 Ill. App. 3d 119, 125.) Summary judgment is a drastic measure, to be granted only where the evidence construed most strongly against the moving party establishes clearly and strongly and without doubt the right thereto. (Becovic v. Harris Trust & Savings Bank (1984), 128 Ill. App. 3d 107, 113.) The reviewing court’s sole function on appeal from a grant of summary judgment is to determine whether the trial court correctly ruled that no genuine issue of material fact had been raised and, if none was raised, whether the judgment correctly was entered as a matter of law. (Coleman v. Windy City Balloon Port, Ltd. (1987), 160 Ill. App. 3d 408, 416.) An order allowing summary judgment will be reversed on appeal if the reviewing court determines that a genuine issue of material fact exists. Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294.

We are of the opinion that the evidence before the trial court clearly established that the position of golf professional was abolished rather than replaced by the position of administrative assistant as argued by Wadden. In comparing the two positions, we note some similarities but more distinctions between the two positions. The position of golf professional carried a wide range of responsibility and a high degree of autonomy. The “golf professional” had to have five years’ experience and be a member of the PGA. He gave golf lessons and organized and administered golf tournaments. He operated the golf pro shop and locker room facilities and supervised the employees for those facilities. He also prepared the budget for the operations under his control.

On the other hand, the administrative assistant is charged with carrying out the decisions and policies of the director of golf course services. He has none of the independent authority to operate the golf pro shop and locker room facilities or the supervising authority over those facilities. The administrative assistant has no responsibility or authority over golf lessons or tournaments. Although the administrative assistant must be familiar with the types and construction of golf equipment, there is no level of skill at golf or membership in the PGA required. Woodridge argues, and we agree, that there is a significant difference between a position which requires five years’ experience in a professional athletic association and the requisite mastery to teach a sport and a position which merely requires sufficient knowledge to competently sell athletic equipment.

Wadden argues that merely retitling a position does not permit employees to be dismissed without cause and a new employee to be hired for the retitled position, citing People ex rel. Byrnes v. Stanard (1956), 9 Ill. 2d 372, and People ex rel. Fleming v. Geary (1944), 322 Ill. App. 338. In both those cases, the positions eliminated were identical to the positions created. However, as we concluded above, there is no question that the former position of golf professional and the present position of administrative assistant to the director of golf course services are different both in qualifications and duties to be performed.

Wadden also argues that the position of support-services supervisor was substantially similar to that of golf professional. We note that in rendering his decision, the trial judge remarked that his decision would have been different if the question of similarity involved the positions of golf professional and support-service supervisor. Nevertheless, even given the similarities between the positions of golf professional and support-service supervisor, because Woodridge never filled the position of support-services supervisor, no cause of action against Woodridge existed. (See Woolfolk v. Board of Fire & Police Commissioners (1979), 79 Ill. App. 3d 27 (no cause of action against village for improper dismissal where the village abolished the police force, until there was evidence that village had hired other police officers without affording the former police officers priority rights established by ordinance).) Therefore, this argument is without merit.

Wadden also relies on a provision of the employee manual which provides in pertinent part as follows:

“An employee who resigns or is laid-off from Village employment in good standing and who subsequently applies for re-employment may be considered in filling positions in the Village service for which he/she is qualified.”

Contrary to Wadden’s argument, this provision does not create any expectation, priority, or preference for former employees in the filling of village jobs. Regardless of Wadden’s qualifications for the job of administrative assistant, the hiring of another individual other than Wadden did not violate the above provision of the employee manual.

We are of the opinion that summary judgment was properly granted as to count I of the complaint.

Wadden also contends that the trial court erred in entering summary judgment as to count III of his complaint. Wadden argues that a genuine issue of material fact exists as to whether Leonard Berg, the director of golf course services, had actual or apparent authority to contract with Wadden and whether that portion of the contract to pay Wadden’s commission violated Woodridge’s salary administration plan.

An agent’s authority may be actual or apparent, actual being either express or implied. (Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, 1136.) Circumstantial evidence may be used to establish the existence and extent of an agent’s authority. (Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 880.) Unless the parties’ relationship is so clear as to be undisputed, the existence and scope of an agency relationship are questions of fact. Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 862.

Woodridge denies that Berg had the authority to enter into a contract with Wadden. The description of Berg’s duties as director of golf course services included the following statements:

“In accordance with applicable administrative policies, [he] interviews, employs, evaluates and promotes departmental employees; recommends hiring and procedures for disciplinary action; develops and implements training programs for permanent and seasonal employees.
* * *
Reviews and directs the operation of the maintenance division of the golf course and facilities through subordinate supervisors; reviews and approves expenditures and contracts relating to the Village Greens of Woodridge.”

Berg’s duties as director of golf course services did not include setting the compensation level for Wadden’s position as golf professional. Wadden stresses that Berg told him he was hired and negotiated his salary. However, to establish the actual authority of an agent, the authority must be founded upon some word or act of the principal, not on the acts or words of the agent. (Schoenberger, 84 Ill. App. 3d at 1136.) Therefore, we determine that no genuine issue of material fact exists as to Berg’s actual authority.

Wadden further argues that a genuine issue of material fact exists as to whether Berg had apparent authority. In Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, the court, quoting from Wing v. Lederer (1966), 77 Ill. App. 2d 413, defined apparent authority as follows:

“ ‘Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds his agent out as possessing — it is such authority as a reasonably prudent man, exercising diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess.’ ” 84 Ill. App. 3d at 1137.

Wadden points to the following facts as tending to prove that Woodridge held Berg out as possessing the ability to contract with Wadden: Berg was a department head; he negotiated with Wadden and made a formal offer of employment; no other officer, employee, or official of the village made an offer of employment to Wadden or discussed salary with him; Woodridge advertised a negotiable “incentive package”; and Berg informed Wadden that the prior golf professional had been paid a similar percentage of the receipts from the golf pro shop.

The trial court found the case of Bank of Pawnee v. Joslin (1988), 166 Ill. App. 3d 927, to be dispositive of Wadden’s argument. In that case, the village manager and clerk of the village were authorized to negotiate the purchase of a parcel of real estate. Since the owner of the parcel refused to sell to the village, the manager and clerk arranged for Joslin to purchase the building which would then be conveyed to the village. According to Joslin, the village manager and clerk agreed that his expenses in the purchase would be reimbursed, and the clerk, who was an officer of the bank, represented to Joslin that the bank would not look to Joslin for repayment of the note signed by Joslin, individually, to finance the purchase of the property. The village did not acquire the property from Joslin, who was then sued by the bank for nonpayment of the note. Joslin filed a third-party complaint against the village. Joslin claimed that the village was estopped from denying the enforceability of the contract to purchase the property. The village defended, inter alia, on the basis that neither the village manager nor clerk had actual or apparent authority to appoint Joslin as the village’s agent for purchasing the property. The trial court granted the village’s motion for summary judgment and Joslin appealed.

The reviewing court upheld the granting of the village’s motion for summary judgment. While noting that the doctrine of estoppel has been held applicable to municipalities (Gregory v. City of Wheaton (1961), 23 Ill. 2d 402), the court pointed out that, normally, a city or village cannot be estopped by an act of its agent beyond the authority expressly conferred upon that official, or made in derogation of statute. (Ganley v. City of Chicago (1980), 81 Ill. App. 3d 877.) Nothing in the record indicated that the village clerk or the village manager was ever granted authority to enter into an undisclosed agency agreement with a third party, or to bind the village to a contract to repurchase real property from that third party. (Bank of Pawnee, 166 Ill. App. 3d at 929.) The court concluded that the village was not estopped to deny] the unenforceability of the alleged contracts, stating as follows:

“Undoubtedly Joslin acted improvidently in this scenario. Yeti one who deals with a governmental body is at risk of having ac-l eurately ascertained that those who purport to act for that body! stay within the bounds of their authority. [Citation.] A person! dealing with a municipal corporation ‘is charged with the knowl-f edge of the limitations of the power of that corporation for any! contract attempted to be entered into by any of its officials.’ [Ci-| tation.] Where an employee of a municipal corporation purports to bind the municipality by contract, without approval or author-1 ity, such a contract is ‘utterly void,’ and cannot be validated by principles of estoppel.” Bank of Pawnee, 166 Ill. App. 3d at 940-41.

We agree with Woodridge that the employee manual and Berg’s job description, both of which are relied on by Wadden, in fact, establish Berg’s lack of authority to enter into a commission contract on Woodridge’s behalf. Under Woodridge’s code of ordinances, the relevant portions of which are incorporated into the employee manual, Berg did not have authority to contract with Wadden for the payment of commission.

Wadden’s reliance on Aiardo v. Village of Libertyville (1989), 184 Ill. App. 3d 653, is misplaced. Even assuming, arguendo, that Berg had the authority to actually hire employees, he would not have had the authority to contract for compensation which was prohibited by the village’s ordinances. (Cf Hogan v. City of Centralia (1979), 71 Ill. App. 3d 1004 (City manager with clear authority to hire could not hire employee at salary higher than budget appropriation for the position).) Section 2 — 209(d) of the village’s ordinances provides in pertinent part as follows:

“Rewards. No reward in addition to regular compensation shall be received from any source by individual employees for the performance of their duties. This provision shall not be deemed to apply to the employee awards program and/or the employees suggestion program.”

Wadden argues that the prohibition contained in section 2 — 209(d) applies only to outside rewards, such as gifts or bribes. However, the ordinance specifically sets forth the two exceptions to the “no reward” provision. Moreover, the term “negotiable incentive package” was not defined in the advertisement for the position of golf professional as being a percentage of the pro shop receipts, which could very well have fallen under one of the exceptions to the “no rewards” provision.

Finally, Wadden argues that since Woodridge advertised that the golf professional’s position included a “negotiable incentive package,” Wadden could reasonably assume that Berg had the authority to bind Woodridge to a contract for commission with Wadden.

However, nothing in the ad indicates that Berg had any authority to bind Woodridge to a contract of any kind. The ad merely states that resumes should be sent to Woodridge’s personnel manager. Again, the issue is not whether pursuant to its ordinance Woodridge was authorized to pay commissions, but whether Leonard Berg was authorized to bind Woodridge to such a contract.

The pleadings clearly show that Berg had no actual or apparent authority to bind Woodridge to the payment of commissions to Wad-den. There being no genuine issue of material fact as to this issue, summary judgment was properly granted.

Finally, Wadden contends that the trial court erred in refusing to strike Woodridge’s reply to his answer to the motion for summary judgment.

Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)) provides a trial court with wide discretion as to the appropriate sanctions to impose upon a finding of failure to comply with discovery requests. A court’s ruling on what sanction, if any at all, is appropriate will not be disturbed absent an abuse of discretion. Needy v. Sparks (1977), 51 Ill. App. 3d 350, 363.

Contrary to Wadden’s assertion that Woodridge’s failure to supply copies of all of the requested appropriation ordinances was willful and intentional, the record supports the trial court’s finding that Wadden had not requested “transfer” ordinances, and, therefore, Woodridge’s failure to supply “transfer” ordinances was not a violation of the discovery request. As for Woodridge’s failure to supply the budget summaries which were a part of the requested appropriation ordinances, Woodridge acknowledged the oversight and offered equitable solutions to the remedy of the oversight. Given the confusion over the terms “appropriation” and “transfer” as applied to the ordinances, we cannot say that the “transfer” ordinances were willfully withheld, since they were never asked for. As to the budget summaries, nothing in the record indicates they were willfully or intentionally withheld. Thus, the trial court’s adoption of the remedies suggested by Wood-ridge to cure the discovery deficiency was the appropriate response under the circumstances.

Wadden also points out that section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) allows the court to assess reasonable attorney fees against any party filing untrue pleadings. However, where sanctions are to be imposed for discovery abuses, the sanctions are more properly imposed pursuant to the Code’s provisions dealing with discovery rather than section 2 — 611. Diamond Mortgage Corp. v. Armstrong (1988), 176 Ill. App. 3d 64, 72.

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

Affirmed.

DUNN and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
      In re MARRIAGE OF BARBARA A. KORTE, Petitioner-Appellee, and RICHARD A. KORTE, Respondent-Appellant.
    Fourth District
    No. 4—89—0571
    Opinion filed January 4,1990.

      Joseph W. Vigneri, of Decatur, for appellant.
    Lowe, Moore, Susler, McNutt & Wrigley, of Decatur (Robert I. Wrigley, | Marshall A. Susler, and Susan Foley Moorehead, of counsel), for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal from the order of the circuit court of Macon I County modifying the judgment of the dissolution of the marriage ofl the parties, Barbara A. Korte, petitioner, and Richard A. Korte, respondent, to provide that respondent pay $90 per week from August 29, 1989, to May 20, 1990, and continuing in like manner each succeeding school year for a similar time period to help defray the $3,500 shortage in the college education funds of Shawna Korte, the daughter of the parties. These payments by respondent are to continue only so long as the child is enrolled in an accredited college or university and registered for a minimum of 12 credit hours. In the event the child is enrolled for a summer term on a full-time basis as defined by the college or university, the payments shall continue to be made in the same weekly amount through the summer.

The parties were married on November 27, 1965, and their marriage was dissolved on November 15, 1978. Their only daughter, Shawna, was born June 10, 1971. The judgment of dissolution awarded custody of this child to petitioner and ordered respondent to pay $50 per week as child support.

On February 21, 1989, petitioner filed a petition for educational support. At the time of the hearing, Shawna was a 17-year-old high school senior. She had been probationally accepted to Southern Illinois University (SIU). Shawna presented an estimated budget for one academic year, totalling $7,000. The budget included $2,166.60 tuition and fees, $2,624 room and board, $12 campus housing and activity fee, $450 books and supplies, and $1,747.40 living expenses. This estimate was prepared by the financial aid office at SIU. Shawna had received a $949.40 award for the fall semester 1989 from the Illinois State Scholarship Commission (ISSC). Shawna believed the award was also approved for the 1990 spring semester as well, making a total amount of $1,898.90. She also was awarded a Pell Grant for $875 for each semester, a total of $1,750. The total of all of these grants is $3,648.90, per academic year.

The ISSC letter awarding the $1,898.90 indicates it is for tuition and fees at SIU. It further states that if the tuition and fees increase, the ISSC “will automatically reconsider your award.” Petitioner testified she believed the ISSC would adjust the award to cover whatever tuition and fees are due at SIU. Petitioner testified that $100 per month would be adequate living expenses. Shawna testified she thought it would take $1,747.40 per academic year, but admitted that, in her discovery deposition of April 21, 1989, she stated $80 per month would be sufficient.

Shawna had $300 in a savings account and $40 in a checking account. She currently works five or six hours per week and takes home $25 per week. She spends the money she earns on having fun, school functions, and sometimes on clothes. She does not intend to work during her first year of college. She owns a car given to her by the respondent. No attempt has yet been made to obtain a student loan.

Based upon his testimony and financial affidavit, respondent’s monthly living expenses were $1,634.17, including $215 for child support, and his monthly net income was approximately $2,225. Based on petitioner’s financial affidavit and testimony, petitioner’s monthly living expenses at the time of the hearing were $937.88 and her net monthly income was approximately $1,190, from three jobs. However, petitioner testified she would save the following amounts in expenses after Shawna left for college: (1) $45 per month on gas for Shawna’s car, and (2) $62.50 per month on food and household supplies. An additional $35-per-month expense for dental work would be paid off in September or October 1989. On the other hand, petitioner expected her long-distance telephone expense would increase after Shawna went to college, and she would no longer be receiving the $50 per week in child support payments from respondent. Respondent testified he received a refund from 1988 Federal income taxes of $1,539.58, one-half of which belonged to his current wife. Petitioner received a refund for 1988 Federal income taxes of $1,040.42. There was testimony by respondent that he has been ill and his income is now diminished as a result.

On appeal, three issues are raised. These issues are: (1) whether the trial court’s finding of a $3,500 shortage in Shawna’s education funds was against the manifest weight of the evidence; (2) whether the order of the trial court requiring respondent to pay the entire amount at the rate of $90 per week was an abuse of discretion or against the manifest weight of the evidence; and (3) whether respondent was denied his constitutional right to due process of law and/or the trial court committed an abuse of discretion by failing to consider respondent’s written closing argument after having considered petitioner's written closing argument.

At the close of the hearing on this matter, the trial court directed petitioner to file her written closing argument by 4:30 p.m. on May 4, 1989, and respondent to file his written closing argument by 4:30 p.m. on May 5, 1989. According to respondent, both documents were timely filed, but respondent’s closing argument was not received by the trial judge from the circuit clerk until May 12, 1989, the day after the trial court entered findings of fact in a minute order. We note that the docket entry dated May 5, 1989, has been blocked out and amended to read that respondent’s written closing argument was on file as of May 12, 1989. However, the date file-stamped on the document itself reflects filing as of 2:45 p.m. on May 5, 1989. The order from which this appeal is taken was entered June 21, 1989. Since there is nothing in the record which indicates the trial court did not consider respondent’s written final argument, we presume the trial court did consider respondent’s written final argument, even though the trial court did enter findings of fact in a minute order.

Assuming, for the sake of argument, that the trial court did not consider respondent’s written final argument, we believe the omission of the trial court to consider respondent’s written final argument would be harmless error in this case. (See Vieceli v. Cummings (1944), 322 Ill. App. 559, 54 N.E. 717.) This court is concerned that the circumstances of this case could give the parties and the general public the false impression that cases are decided unfairly. On the other hand, it is the obligation of respondent’s attorney, not the circuit clerk, to see that documents are filed and are brought to the attention of the judge presiding. Circuit clerks may not know when a judge has taken a matter under advisement. Had the respondent made sure the judge had a copy of the written final argument in addition to filing a copy in the circuit clerk’s office, the worst that could have happened is that there would be two such documents included in the record. Therefore, any error which may have occurred was caused by respondent failing to present his written argument to the judge.

Nor do we believe the omission of the trial court to consider the respondent’s written final argument rises to the level of a violation of defendant’s constitutional right to due process. (U.S. Const., amend. XIV: Ill. Const. 1970, art. 1, §2.) Respondent was given notice and an opportunity to be heard and defend in an orderly proceeding. The proceedings were fundamentally fair to respondent. That is all that is needed to satisfy due-process requisites. (Pettigrew v. National Account System, Inc. (1966), 67 Ill. App. 2d 344, 213 N.E.2d 778.) Respondent was given an opportunity to submit a written final argument. Respondent did not see to it that the document got to the judge. Therefore, respondent’s right to due process was not violated by the judge.

We further find that the findings and order of the circuit court were not against the manifest weight of the evidence. The trial court found a shortage of approximately $3,500 in Shawna’s education fund. Based on the evidence, the court could reasonably find she needed $7,000 and the grants she received provided only $3,648.90. Obviously, there is a shortage of approximately $3,500. While the trial court could have been more specific, there is no need to be to decide this case.

Respondent argues that there is a dispute in the evidence concerning tuition and fees since the SIU financial aid office estimated tuition and fees at $2,166.60, while the ISSC awarded only $1,898.90. Respondent contends that it was petitioner’s burden to prove the grant did not cover the entire amount of tuition and fees. In this case neither party called a witness to settle this discrepancy even though such witnesses were equally available to both parties. Therefore, this court, as did the trial court, must rely solely on the evidence in the record.

The letter from the ISSC awarding Shawna a grant to cover tuition and fees indicates that, if the actual tuition and fees exceed the grant, the ISSC will reevaluate the grant. However, merely saying the grant will be reevaluated does not in any way suggest the grant will automatically be increased to cover the actual tuition and fees and, if the grant is not increased, it would appear Shawna would be required to pay the difference. The trial court need not rely on petitioner’s stated belief the ISSC grant will be increased to cover actual tuition and fees since there is nothing in the record to support this belief.

Respondent also contends the trial court was unjustified in using $1,747.70 as the living expenses for Shawna since petitioner testified $100 per month was sufficient and Shawna, in her deposition, testified $80 per month was sufficient. However, during the hearing, Shawna indicated she thought the $1,747.70 figure would be more accurate than her earlier estimate.

Respondent did not object to the admission of the documents containing the financial aid office estimate of living expenses on any ground. Respondent simply argues that other estimates of living expenses should have been adopted. Nor was Shawna questioned concerning the nature and amount of living expenses she expected to incur while at SIU. It is clear from the record that Shawna and the parties had limited experience, at best, concerning the type of expenses which might be incurred, and the trial court could rely on the ordinary experience of life to decide that the expenses for laundry, gas for the car, pizza, movies, football and basketball games, et cetera, would more closely approach the figure estimated by SIU than those lower estimates from Shawna and the petitioner. Certainly, after Shawna has concluded her first year at SIU, the parties will have a better understanding of the living expenses involved, and if respondent wants to seek to modify the trial court’s order by presenting more detailed evidence, respondent certainly may do so at a later time.

Respondent also complains that the order finds Shawna will receive help from petitioner. Respondent states the record fails to disclose the amount of such support. It is clear from the record, however, that petitioner’s support will come from other than direct cash payments. For example, petitioner testified she will still be buying Shawna’s clothing. The trial court could reasonably find that such help from petitioner does not directly offset the approximate $3,500 shortage.

Next respondent contends the trial court failed to consider Shawna’s financial resources. Respondent does not argue the $340 Shawna currently has in the bank must be applied before respondent is required to pay support. Instead respondent complains Shawna has not sought a loan and refuses to take employment during the first year. Considering the fact Shawna is probationally accepted at SIU and must maintain a certain grade point average to remain in school, her desire not to work the first year is understandable.

We recognize that the child has a duty to lessen the parents’ financial burden of college expenses. (In re Marriage of Calisoff (1988), 176 Ill. App. 3d 721, 531 N.E.2d 810.) However, unlike Calisoff Shawna is not seeking to attend an educational institution for which expenses will total roughly $20,000 per year. Shawna is minimizing the parents’ expenses by attending a less expensive academic institution. While loans for education are available, it cannot be said the trial court must in every case require the student to seek a loan. Here, the evidence was that the process for seeking a loan had been initiated, but not completed. On the record before us, no loan has yet been approved for Shawna and it would be pure speculation to anticipate how much she might receive in the form of a loan and to reduce respondent’s support payments as a consequence thereof. As a result, reversal of the order of the trial court on this ground is inappropriate.

Lastly, respondent argues that the entire burden of Shawna’s education expenses has been placed on him and that petitioner is in a financial position to share those expenses. The trial court may award educational support for a child out of the income or property of both parents as equity requires. (Ill. Rev. Stat. 1987, ch. 40, par. 513.) In this case, the trial court could consider that when Shawna comes home, she will bring the dirty laundry to petitioner not respondent. If she brings home friends, they will stay with petitioner, not respondent. Petitioner testified, as earlier noted, she will continue to buy clothes for Shawna. When Shawna comes home in the summer, will stay with petitioner, not respondent.

While the contribution of petitioner may not be capable of strict mathematical calculation, the trial judge could very well find from the evidence and from his ordinary life experience that, in equity, petitioner’s contributions are equivalent in value to the $90 per week respondent is ordered to pay. The standard of review in cases involving awards for educational support requires this court to find an abuse of discretion on the part of the trial court in order to reverse. (In re Support of Pearson (1986), 111 Ill. 2d 545, 490 N.E.2d 1274.) Based on the record before us, we find no such abuse of discretion. In the event respondent’s net income is significantly reduced by reason of his illness, then of course, respondent may seek to modify the order.

Accordingly, the order of the circuit court of Macon County is affirmed.

Affirmed.

LUND and McCULLOUGH, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT MABERRY, Defendant-Appellant.
    Fourth District
    No. 4—88—0652
    Opinion filed January 18, 1990.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles Colburn, State’s Attorney, of Jacksonville (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Following a jury trial, defendant Scott Maberry was found guilty of aggravated criminal sexual assault and home invasion and sentenced to concurrent 12-year prison terms for each offense with three years’ supervisory release. Defendant raises five issues on appeal: (1) whether the trial court erred in admitting statements of identification of the defendant by the victim and the police as corroborative complaints and thereby denied defendant a fair trial; (2) whether the prosecutor’s repeated misstatements of the evidence during closing argument denied defendant a fair trial; (3) whether various evidentiary rulings denied defendant the right to present a defense and, thus, violated the compulsory process clause of the sixth amendment; (4) whether defendant’s conviction for home invasion must be vacated because defendant’s knife was not a “dangerous weapon” as defined by section 33A — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1); and (5) whether the jury instructions for aggravated criminal sexual assault were deficient because no mental state was included in the instructions. We affirm.

On February 9, 1987, the defendant was charged by indictment with two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(1)) and one count of home invasion (Ill. Rev. Stat. 1987, eh. 38, par. 12—11). The defendant pleaded not guilty, and a jury trial commenced on June 15,1988.

I. REVIEW OF EVIDENCE

A. STATE’S CASE

The victim testified that on July 31, 1986, she stayed overnight at the home of a friend in Jacksonville, Illinois. At approximately 11:30 p.m. on July 31, the friend noticed the victim’s ex-boyfriend, Bob Leonard, driving past the home on more than one occasion. The friend told the victim and both decided to call the South Jacksonville police department and request extra patrols because the victim was afraid of Leonard. Although Leonard was never actually observed near the home that night by the victim and he was not seen again by the friend, the victim testified she and her friend decided not to sleep alone that evening “in case Bob decides that he is going to come back and do something.” They then moved their belongings from the bedrooms into the living room and prepared to sleep on the living room floor.

According to the victim, at approximately 12:30 a.m. on August 1, 1986, she and her friend were still awake when the defendant knocked at the front door. The victim had gone to school with the defendant for three to four years and worked with him at a local retail store. All three sat and talked for approximately 30 minutes in the house. The defendant left the residence at about 1:08 a.m. after being asked to leave several times. After defendant left, the victim recalled telling her friend that it was awful funny “that defendant lied to them” and “that he was even there in the first place.”

(1) ASSAULT AND INITIAL STATEMENTS IDENTIFYING DEFENDANT AS ASSAILANT

(a) VICTIM

According to the victim, at approximately 4:45 a.m., she was awakened by a naked man wearing a white mask. He woke her up by poking her in the right breast with a knife. The mask was circular with diamond-shaped holes for each eye, and covered the face of the perpetrator completely. She stated the knife was about five to six inches long with a shiny silver blade; the tip looked as if it had been broken off. She described the perpetrator as having brown hair, standing five feet five inches tall, with “kind of a husky build”; that she stood five feet two inches in height, and the perpetrator was “a little taller than I am.” The victim stated she grabbed the perpetrator’s arms and asked who he was and what he wanted. The perpetrator told her to be quiet and directed her into the bedroom with the knife, then ordered her to take off her clothes. After removing her clothes, the perpetrator engaged in vaginal and oral sex with the victim. The attack lasted about five minutes, during which time the perpetrator held the knife or had it nearby on the bed. The perpetrator then unsuccessfully attempted to use a towel to gag the victim. He then ordered her to leave the bedroom through the hallway and to walk into the kitchen. She stated the perpetrator picked up some keys or coins that were on an ironing board in the kitchen and led her out onto the back porch, where he stopped briefly, apparently looking for something on top of the refrigerator. There was nothing on the ironing board when she went to bed. The perpetrator had brown straight hair that was “choppy looking, like it was uneven.”

The victim and the perpetrator went outside, where he ordered her to lie facedown in the grass. He then threw the knife in the ground next to her leg. As she lay facedown in the grass, the perpetrator began putting on some clothes he retrieved as they exited the house. Her assailant withdrew the knife from the ground, ordered her to get into the car parked in the front driveway, and to wait 15 minutes until he was gone. She watched the perpetrator leaving the yard until she could not see him anymore, went back inside the house, locked the back door, and woke up her friend “after a few minutes of beating on her.” She identified the clothes the perpetrator wore as: “blue jeans, tennis shoes, and a shirt that kind of had three-quarter sleeves that had stripes on the sleeve, was darker on the top and light in the stomach area.”

She testified she had only a sheet wrapped around her when she tried to wake up her friend. She called her boyfriend, while she was trying to wake her friend, because she did not know what to do. While the victim was talking to her boyfriend about the attack, there was a knock at the front door. The boyfriend told the victim he would call the police. The police arrived at the residence within three minutes of the victim’s telephone call with her boyfriend.

South Jacksonville police officers Mark Aydelott and Theresa Daniels responded to the call. The victim told Officer Daniels that she had been attacked and she was 99.9% certain it was the defendant who attacked her. She was certain the defendant was her attacker because of his voice, hair, and build; she became 100% certain about one month after the attack when she saw the defendant walking at school. She identified the defendant by his gait which, the vietim stated, was the same one she had seen at the time of the attack.

(b) FRIEND’S TESTIMONY

The friend testified the victim was staying at her house the evening of July 31 to August 1 because she, the friend, did not want to be alone in the house. She and the victim talked for a while before preparing to go to sleep. The victim ironed a shirt on the ironing board in the kitchen while they were talking.

She saw Bob Leonard drive by the house on July 31, 1986, and she and the victim decided to call the police. The defendant was a friend of the victim and, when he arrived at the house at 12:30 a.m. on August 1, she let him in the house to talk for a while. The defendant had two quarts of beer with him when he arrived. She further testified that after the defendant left the house early on the morning of August 1, 1986, she checked the doors and windows to be certain they were locked. She recalled telling the victim how she thought it was strange the defendant came to her house that night because he had never been there before and she did not think the defendant knew where she lived. She also stated there was nothing on the ironing board when she checked the doors.

The friend testified she was awakened at about 5 a.m. on August 1 by the victim standing above her, kicking her, and screaming that she had been raped. She stated the victim had a blanket wrapped around her and was very hysterical; the victim told her she was 99.9% sure the defendant was her attacker because of his build, the way his hair was cut, his height, and the way he talked in a low, rough whisper. The victim said her attacker was five feet five inches or five feet six inches in height.

She testified the defendant was probably close to five feet six inches tall. In describing Bob Leonard, she stated Leonard had dark brown hair and a mustache, was about six feet tall, slender, and weighed 160 to 170 pounds.

(c) OFFICER DANIELS

Officer Theresa Daniels testified she went to the friend’s residence at 4:53 a.m. on August 1, 1986, and met the victim, who was very hysterical. After the victim calmed down enough to speak, Officer Daniels testified the victim told her she had been raped by the defendant.

(2) POLICE ACTIVITY AT THE SCENE AND EVIDENCE DISCOVERED

Officer Aydelott testified he arrived at the scene at approximately 5:15 a.m. He observed the screen above the sink in the kitchen was ripped and discovered a basement window broken and ajar. Subsequently, he and additional officers found the defendant asleep in a car parked in the driveway of the home. When discovered, the defendant’s clothing was disorderly; the inseam of the pants was off to one side; his shirt was not tucked in; and his hair was disarranged. The defendant was taken to the Jacksonville police department, where Officer Aydelott took custody of the defendant’s tennis shoes, Wrangler blue jeans, and gray and black shirt with red stripes. The clothing was soiled and wet with perspiration. The defendant did not have any underwear or socks on at the police station. Fifteen or twenty minutes had elapsed between the time Officer Aydelott arrived at the residence and searched the house and the time the defendant was discovered in the car. No mask was found by the police. Defendant told police he had been visiting the house earlier in the evening, but denied any involvement in the attack. After giving a statement to the police, the defendant was released without charge. Defendant was later arrested on February 9,1987.

According to Officer Aydelott, during a pat-down search of the defendant at the scene, they discovered a penknife and a box cutter in the pocket of defendant’s pants. The penknife had a two-inch blade. The owner of the house testified that prior to August 1, 1986, she had a utility knife or box opener on the ledge of the window above the kitchen sink. This window was the same window which had the screen tom on August 1. The utility knife was discovered missing in September 1986. The owner identified the utility knife taken from the defendant at the time of his arrest as the type of utility knife missing from her kitchen.

Larry Hood, a crime scene technician with the Illinois State Police, testified the basement window of the residence had been broken from the outside. The dust on top of the deep freeze beneath this window was disturbed and two unsmoked Marlboro cigarettes were on the floor near the deep freeze. The friend testified the defendant was smoking Marlboro cigarettes when he visited the house at 12:30 a.m. on the night of the attack.

Hood further testified the screen on the back door had been cut in the area by the door handle. A pair of white jockey shorts, size 34-36, was found behind a refrigerator located immediately to the right of the back door. A pair of men’s socks was found on the ironing board in the kitchen.

Hood testified the pocket knife taken from the defendant had two blades. The end of the larger blade had been sharpened and had been “peened,” or hit with a ball peen hammer, to enlarge the blade so that it would fit tighter in the pocket. The tip of the knife was different from the rest of the blade. David Metzger, a forensic scientist with the Illinois State Police, later testified that the tip of the defendant’s knife appeared to be damaged.

(3) FORENSIC EVIDENCE

A forensic examination was done on the victim’s underwear, the bed clothing in the bedroom, the socks found on the ironing board, and on the men’s underwear found behind the refrigerator on the back porch. Examination of the pubic hair found in the men’s underwear revealed it was Caucasian, but did not originate from the defendant or the victim. The head hair found in this underwear matched the defendant’s hair in 16 out of 18 characteristics.

Phillip Sallee, the forensic serologist with the Illinois State Police who tested the hairs on the underwear, also tested four fibers on the socks and the bedclothes in the bedroom. Sallee found the same fiber, yellow cotton polyester thread, on the socks and on the sheet from the bedroom. Sallee also tested a head hair found on the socks and concluded it did not come from the defendant or the victim.

Blood-typing was conducted by Sallee on seminal material recovered from two cervical swabs used in the standard Vitullo Kit, and the seminal material on the panties recovered from the victim. According to Sallee, the seminal material from the swabs evidenced the following blood-type: ABO type A and H/PGM 2 — 1. The blood type of the defendant was determined as follows: ABO type A/PGM 1. The victim’s blood type was determined to be ABO type O/PGM 2— 1. Sallee explained that the PGM system is a separate blood-grouping system. The PGM is tested separately and under separate conditions. Sallee testified that the PGM is based upon enzymes found in all human beings. Sallee found the seminal stain on the panties to have type A and H activity present. Sallee was unable to get any PGM results from the victim’s panties.

Sallee testified the defendant was a secretor whose blood type is present in his body fluids. The semen stains on the victim’s panties and the seminal materials found on the vaginal swabs taken from the victim were consistent with the defendant’s blood type and could have come from the defendant. Sallee also testified that approximately 32% of the male population in Jacksonville have the same blood type as the defendant. Sallee further testified that there was no question in his mind that the blood type in the semen stains was the same as the defendant’s.

Sallee also tested several hairs recovered with the Vitullo Kit which were sealed in four envelopes and labeled: “Head hair combings, pulled head hair, pubic hair combings, pulled pubic hair.” According to Sallee, there were two additional hairs found loose in the kit. Sallee determined that none of the hairs found in the kit could have come from the defendant.

B. DEFENDANT’S CASE

(1) OFFERS OF PROOF OUTSIDE THE JURY RE: ROBERT LEONARD

Police chief Richard Evans, of the Jacksonville police department, testified Leonard was arrested on August 1, 1986, on a burglary warrant. The warrant was issued after the police received a telephone call from the victim and her friend on July 31. At that time, the victim reported Leonard had stolen property from a local department store and was seen driving in the vicinity of the house where she was staying. According to Evans, the victim asked for extra police patrols after reporting the burglary. Some of the property allegedly stolen in the burglary was found in Leonard’s car at the time of his arrest. A knife with a total length of 9V2 inches was also found in the trunk of Leonard’s car, along with Levi blue jeans and a cloth belt with gold buckle. This knife did not match the victim’s description of the knife used by her assailant, since Leonard’s knife was bigger and the end of the knife was not damaged.

Chief Evans testified that Leonard did not match the victim’s description of the assailant since Leonard was 5 feet 9 inches or 5 feet 10 inches tall, weighed 140 pounds, and was very thin, the exact opposite of the assailant. Chief Evans testified Leonard was not a suspect in this case and that the police investigation could not place him anywhere near the scene of the rape. Chief Evans testified that he may have told Leonard’s attorney, Ed Parkinson, that Leonard’s clothing was being held for testing in this case. Evans stated it was police department policy not to release evidence without a court order and no court order had been issued regarding Leonard’s clothing.

In his offer-of-proof testimony, attorney Ed Parkinson testified that he had represented Leonard from August 1986 to February 1987. Mr. Parkinson and Leonard’s mother had made numerous requests to retrieve Leonard’s personal items and clothing from the police. Mr. Parkinson stated he was told the clothing was being held for possible testing in this case. Parkinson testified that it was his understanding that two knives were found in Leonard’s car and both may have been kept by the police. Parkinson stated that, according to Leonard, he had two knives when he was arrested. Leonard did not tell his attorney how long the blades on these knives were.

(2) ALIBI EVIDENCE

Officer Brad McElfresh testified regarding the alibi defendant gave to the police on August 2, 1986, regarding his activities on the evening of July 31 to August 1, 1986. McElfresh stated defendant said that at about 12:30 a.m. on August 1, after he left the friend’s house, he went to another friend’s house and, from there, walked to a nearby park known as Nicholas Park. Inside the park, the defendant saw a number of cars and people on the east side parked off the roadway. The defendant described one of the cars as a white, older model Cutlass that had two blue stripes and an “applied for” license sticker. The defendant said that he had talked with this group of people and then walked into a cornfield with one of the girls from this group and had sexual intercourse with her. According to the defendant, he was in the park sometime between 1 a.m. and 5 a.m. on August 1, 1986. After he left the park, defendant told police he walked back to the residence where the victim was staying, saw a light on inside and knocked at the door. After receiving no response, the defendant stated he climbed into the car in the driveway and fell asleep. Officer McElfresh testified his investigation found defendant’s statement to be false. McElfresh testified that Nicholas Park closes at midnight and that the gates to the park are locked at that time.

In rebuttal, Officer Aydelott testified he closed Nicholas Park and locked all the gates at 11:58 p.m. on July 31, 1986. There was no one left in the park after he locked the gates. Officer Aydelott patrolled the park every 30 to 45 minutes on August 1. He did not see any cars or people on the east side of the park that night after it was closed. Officer Aydelott testified that cars cannot drive into the park after the gates are locked.

The State presented the testimony of several persons who were in Nicholas Park on the night, of July 31, including the owner of the Cutlass described by the defendant. While all stated they did not know the defendant, they testified they were all together in a group in the park and did not recall any strangers walking up to their group. Several of these persons, including the owner of the Cutlass, also testified they left the park before it closed at midnight on July 31 because it is difficult to exit the park with a car after the park gates are locked.

(3) OTHER DEFENSE EVIDENCE

The defendant introduced the testimony of Joye Sweetin to refute the victim’s identification of the defendant. Sweetin testified she talked with the victim a few days after the attack and the victim told Sweetin she was raped in Springfield but did not know her attacker.

On cross-examination, Sweetin admitted she was a close friend of the defendant and did not talk to the police regarding her conversation with the victim. When called in rebuttal by the State, the victim stated she told Sweetin the defendant raped her.

II. ANALYSIS

Initially, defendant argues the identification statements the victim gave to the police when they first arrived at the house were improperly admitted under the “prompt” or corroborative complaint exception to the hearsay rule. Defendant also contends these statements do not qualify as spontaneous declarations, which are admissible as exceptions to the hearsay rule. The defendant maintains the admission of these statements denied him a fair trial because the State repeatedly referred to these statements and actually misstated this evidence during closing argument.

As to the victim’s statements to her friend and Officer Daniels on August 1, the State urges the defendant has waived this issue because no objection to the testimony of the victim, her friend, or Officer Daniels was raised at trial or in a post-trial motion. On the merits, the State agrees the statements of identification are not admissible under the corroborative complaint exception. However, the State maintains these statements are admissible as spontaneous declarations. Even if not so admissible, any error, according to the State, was harmless.

The record reveals the defendant did not object to the identification statements of the victim at issue on appeal. Failure to object at trial to a question calling for a hearsay response and failure to ask that the answer be stricken from the record results in waiver of the issue on review. (People v. Stewart (1984), 105 Ill. 2d 22, 56, 473 N.E.2d 840, 857.) Likewise, failure to raise the issue in a post-trial motion results in waiver of the issue on review. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129.) We find this issue is waived.

On the merits, complaints of rape victims are admissible as corroborative statements, but the statements are limited to the fact of the complaint. (People v. Damen (1963), 28 Ill. 2d 464, 473, 193 N.E.2d 25, 30-31.) The identity of the assailant is not admissible under this exception. (People v. Robinson (1978), 73 Ill. 2d 192, 199-200, 383 N.E.2d 164, 168.) It is clear the statements regarding the identity of the defendant in this case were not admissible under this exception.

However, the statements qualify as excited utterances or spontaneous declarations and, thus, were admissible. The evidence established that the victim reentered the house after her assailant was out of view, tried to wake her friend, and called her boyfriend. The boyfriend testified the victim was hysterical on the phone. Her friend testified that before the police arrived and while the victim was hysterical, shaking, and crying, she said her attacker was the defendant and she was 99.9% sure. Officer Daniels testified the victim was hysterical when she arrived a few minutes later. In view of the victim’s extreme emotional upset at the time the statements were given to her friend and Officer Daniels, the possibility of fabrication is nonexistent. People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804.

With respect to defendant’s assertion of the prosecutor’s misstatement of evidence during closing argument, the record also demonstrates that no objection to the remarks was raised at trial nor was this issue raised in the post-trial motion. Therefore, the waiver doctrine is also applicable to these statements (People v. Hall (1986), 114 Ill. 2d 376, 418, 499 N.E.2d 1335, 1353), unless plain error was committed.

Plain error exists where a substantial right of the defendant to a fair trial is affected or the evidence in the case is closely balanced. People v. Bradley (1988), 172 Ill. App. 3d 545, 549, 526 N.E.2d 916, 919; People v. Sexton (1987), 162 Ill. App. 3d 607, 615, 515 N.E.2d 1359, 1365.

The misstatement of the evidence about which the defendant complains is that where the prosecutor stated: “She told them who it was and that’s very important.” (Emphasis added.) The defendant urges “them” refers to the doctor who examined the victim in the hospital and the boyfriend as well as the police officer and her friend. This is a misstatement of the evidence. The boyfriend and the examining physician were not told by the victim of the identity of her assailant, only that she was raped. However, later on during closing, the prosecutor referred to the fact that the victim told only her friend and Officer Daniels that she was 99.9% sure it was the defendant who raped her.

We conclude the prejudicial impact of this portion of one sentence during closing argument is negligible in this case. There were no repeated instances of misconduct in this case as in People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629. Nor is this a close case on the evidence or one involving remarks in closing which were severely prejudicial to the defendant as in People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 103. Defendant relies on Bradley and Sexton in support of his plain error argument. Both cases are also sufficiently distinct from this case as to not be persuasive authority.

We conclude no plain error was committed in this case. Thus, we find any error during closing argument was waived. The evidence establishing defendant’s guilt is not closely balanced, but is overwhelming. The victim testified she was 99.9% sure her assailant was the defendant based on his voice, hair, build, and gait. The victim had known the defendant for four years prior to the incident, having sat next to him in school and worked with him in a local retail store. The identification was corroborated by clothing found in the house, the forensic tests on the clothes, the knife found in defendant’s possession and defendant’s alibi later proved to be false.

Defendant next urges he was denied the right to present criminal defense evidence to the jury in violation of the compulsory process clause of the sixth amendment. (U.S. Const., amend. VI.) Defendant specifically refers to the evidence presented in two offers of proof regarding the clothing and weapons taken from Leonard when he was arrested on August 1, 1986, on an unrelated warrant. Leonard’s clothing was similar in some respects to the clothing the victim described her assailant as wearing. The knife taken from Leonard was 9V2 inches in total length and “shiny silver.” The offers of proof were denied.

Initially, the State urges the defendant did not raise this precise issue at trial or in his post-trial motion and, thus, the issue was waived. On the merits, the State urges the trial court properly exercised its discretion in excluding the evidence as too speculative and remote.

The record reflects defendant strenuously argued for the admission of his offers of proof on Leonard. However, the compulsory process clause was not raised at trial or in a post-trial motion. It is generally held that constitutional issues raised for the first time on appeal are waived unless they pertain to the jurisdiction of the court. People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353; People v. McGeorge (1987), 156 Ill. App. 3d 860, 510 N.E.2d 1032.

The compulsory process clause of the sixth amendment of the United States Constitution affords a criminal defendant “the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.” (Taylor v. Illinois (1988), 484 U.S. 400, 408, 98 L. Ed. 2d 798, 810, 108 S. Ct. 646, 652, quoting Pennsylvania v. Ritchie (1987), 480 U.S. 39, 56, 94 L. Ed. 2d 40, 56, 107 S. Ct. 989, 1001.) This right is not unlimited and a defendant must comply with established rules of evidence and procedure designed to ensure both fairness and reliability in ascertaining guilt or innocence. (Chambers v. Mississippi (1973), 410 U.S. 284, 302, 35 L. Ed. 2d 297, 313-14, 93 S. Ct. 1038, 1049.) A defendant does not have the right to offer incompetent or irrelevant evidence. Taylor, 484 U.S. at 411, 98 L. Ed. 2d at 811-12, 108 S. Ct. at 653.

The evidence excluded in this case was offered to establish that Robert Leonard, someone other than defendant, may have committed the crime. Such evidence is relevant and admissible only if and when a close connection can be demonstrated between the third person and the commission of the offense. (People v. King (1978), 61 Ill. App. 3d 49, 52, 377 N.E.2d 856, 859.) The admission of evidence that someone other than the accused may have committed the offense is within the sound discretion of the trial court, and its ruling should not be reversed absent a clear showing of abuse of that discretion. People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702.

We find no abuse of discretion. We disagree with defendant’s contention that the Leonard evidence was relevant. Defendant points to the fact that Leonard was seen in the area on the evening on July 31; that he had clothes similar to those described by the victim; that he resembled the physical description given by the victim; and he may have had a motive to harm the victim (because she turned him in to the police for burglary). This evidence fails to establish any link between Leonard and the attack which occurred in the early morning on August 1. (People v. Smith (1984), 122 Ill. App. 3d 609, 461 N.E.2d 534; People v. King (1978), 61 Ill. App. 3d 49, 377 N.E.2d 856.) Moreover, the victim stated Leonard was not her attacker; she never thought he was; the police stated Leonard was never a suspect in this case; and they could not place Leonard at the scene at the time of the attack. (People v. Thomas (1986), 145 Ill. App. 3d 1, 495 N.E.2d 639.) Further, Leonard’s physical description differs from the detailed description given by the victim of her attacker whom she described in terms of his voice, gait and husky build.

Defendant next contends his conviction of home invasion must be vacated because he was not armed with a “dangerous weapon” as defined in the armed-violence statute. (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1.) The State urges, initially, that defendant has waived this issue because it was not raised at trial. Alternatively, the State contends the length of the knife blade is irrelevant because case law and the statutes focus on the manner in which weapons are used to determine whether they fit the category of a “dangerous weapon.” Section 12 — 11(a) of the Criminal Code of 1961 (Code) defines “home invasion”:

“(a) A person who is not a péLce officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or
(2) Intentionally causes any injury to any person or persons within such dwelling place.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11(a).)

“Dangerous weapon” is defined in the armed-violence statute:

“(a) ‘Armed with a dangerous weapon’. A person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about his person or is otherwise armed with a category I or category II weapon, (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24 — 1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character.” (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1.)

Defendant points out the knife found on his person had a less than three-inch blade and, therefore, it is not a “dangerous weapon” as defined in section 33A — 1(b) of the Code.

Defendant has waived this issue because it was not raised in the trial court. (Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.) On the merits, defendant’s argument has been rejected in numerous cases involving various offenses. (See People v. Carter (1951), 410 Ill. 462, 102 N.E.2d 312; People v. Hall (1983), 117 Ill. App. 3d 788, 453 N.E.2d 1327; People v. Samier (1985), 129 Ill. App. 3d 966, 473 N.E.2d 601.) The reasoning of these cases is applicable here. The victim testified the defendant ordered her into the bedroom while holding a knife, ordered her to remove her clothes at knifepoint and held the knife on her while ordering her to move outside after the attack. The defendant clearly had the knife while in the house and held it in a threatening manner on the victim.

Defendant next contends the jury was not properly instructed on aggravated criminal sexual assault because no mental state was included in the instructions. The State argues the defendant has waived this issue for failure to tender any alternative instructions or object to the instructions at trial or in a post-trial motion. On the merits, the State maintains aggravated criminal sexual assault is a general intent crime, not requiring jury instructions on a mental state and this precise argument has been previously rejected by the courts.

The record reflects that the defendant did not object to the instructions given to the jury. Any error contained in jury instructions is waived if not objected to at trial or where no alternate instructions were offered. (People v. Avant (1989), 178 Ill. App. 3d 139, 145, 532 N.E.2d 1141, 1145; Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.) We find defendant waived this issue.

On the merits, aggravated criminal sexual assault is a general intent crime, for which a mental state of intent, knowledge, or recklessness is implied to satisfy the general intent requirement. (People v. Leonard (1988), 171 Ill. App. 3d 380, 385, 526 N.E.2d 397, 399.) Defendant urges the failure to include the mental state in the instructions allows a presumption of a mental state to exist, which presumption runs afoul of the due process clause because it relieves the State of its burden to prove each element of an offense beyond a reasonable doubt. Defendant cites Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450, Francis v. Franklin (1985), 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965, and Yates v. Aiken (1988), 484 U.S. 211, 98 L. Ed. 2d 546, 108 S. Ct. 534, in support.

Initially, we point out these cases are inapposite to the case before us. In all three cases, the particular mental state of the defendants was contested at trial and essential in the jury’s deliberations as to the guilt or innocence of the defendants. Here, defendant argued at trial and now does similarly on appeal that he was not the perpetrator of the rape. Defendant has never asserted he lacked the requisite mental state for this offense, but nonetheless argues it must be included in the jury instructions. We find no merit in defendant’s due process claim.

The elements of aggravated criminal sexual assault are a criminal sexual assault committed when the accused displayed a dangerous weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(1).) A criminal sexual assault includes sexual penetration by use of force or threat of force. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(1).) The State must prove all the elements of aggravated criminal sexual assault beyond a reasonable doubt. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 1.) A mental state is implied in aggravated criminal sexual assault. Thus, jury instructions need not set forth a specific mental state. Leonard, 171 Ill. App. 3d at 385, 526 N.E.2d at 399.

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


text:
    BEVERLY SUNDERLAND, Plaintiff-Appellant, v. TRI-CITY COMMUNITY UNIT SCHOOL DISTRICT NO. 1 et al., Defendants-Appellees.
    Fourth District
    No. 4—89—0523
    Opinion filed January 18,1990.

      Burger, Fombelle, Zachry & Rathbun, P.C., of Decatur (Norman J. Fombelle and James E. Zachry, of counsel), for appellant.
    Heyl, Royster, Voelker & Allen, of Springfield (Kurt M. Koepke and Frederick P. Velde, of counsel), for appellees.
   JUSTICE SPITZ

delivered the opinion of the court:

Plaintiff sued for injuries allegedly caused by defendants Tri-City Community Unit School District No. 1 (School) and Lisa Nunes (Nunes). The trial court granted defendant School’s motion to dismiss. Defendant Nunes subsequently filed a motion to dismiss, which was also granted. The trial court held that Nunes was covered by the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101 et seq.) and that plaintiff had filed suit after the one-year statute of limitations contained in the Act. Plaintiff now appeals Nunes’ dismissal from the suit.

On January 8, 1987, plaintiff, Beverly Sunderland, was injured at the Tri-City School gymnasium due to the alleged negligent acts or omissions of defendants School and Nunes. Plaintiff argues that her foot was injured when Nunes, a student at the school and manager of the school’s volleyball team, wheeled the volleyball stand onto the gym floor. The stand separated from its support and landed on plaintiff’s foot, causing severe injury.

Plaintiff filed suit on January 4, 1989, against both defendants. The school district filed a motion to dismiss (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(5)), citing the statute of limitations for bringing civil suit against local governments and their employees (Ill. Rev. Stat. 1987, ch. 85, par. 8 — 101). The trial court granted defendant School’s motion to dismiss because plaintiff failed to commence her action within the one-year limitations period provided by the Act.

Defendant Nunes filed an answer and affirmative defense to plaintiff’s complaint on February 15, 1989. However, on March 10, 1989, Nunes filed a motion to withdraw answer, and on April 24, 1989, filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). The motion to dismiss cited the statute of limitations provided in sections 8— 101 and 1 — 202 of the Act. (Ill. Rev. Stat. 1987, ch. 85, pars. 8 — 101, 1 — 202 (defining local government employees).) The trial court found Nunes to be an employee of the school district as defined by section 1 — 202 of the Act at the time of the occurrence alleged in plaintiff’s complaint. The court further found that plaintiff had failed to commence her action within the one-year limitations period provided in section 8 — 101 of the Act. Consequently, the trial court granted Nunes’ motion to dismiss. Plaintiff now appeals.

Plaintiff first contends that the trial court erred in finding Nunes, a student manager of the volleyball team, an employee under the Act. Plaintiff claims that because the Act is in derogation of common law, it should be strictly construed against the local public entity. (Clark v. City of Chicago (1980), 88 Ill. App. 3d 760, 410 N.E.2d 1025.) A strict construction of the definition of “employee” under the Act, plaintiff argues, does not include a student manager of a volleyball team.

Section 1 — 202 of the Act states in pertinent part:

“ ‘Employee’ includes a present or former officer, member of a board, commission or committee, agent, volunteer, servant or employee whether or not compensated, but does not include an independent contractor.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 85, par. 1 — 202.

At issue is whether the term “volunteer” in section 1 — 202 of the Act includes a student team manager. We find that under the facts of this case, defendant Nunes was a volunteer at the time of the alleged incident, and thus an employee, for the purposes of section 8 — 101 of the Act.

A volunteer is one who gives his services without any express or implied promise of remuneration. (Chicago & E.I. R.R. Co. v. Argo (1898), 82 Ill. App. 667.) At the time of the alleged accident, Nunes was acting solely as an unpaid manager of the school’s volleyball team. She was under the direction and supervision of teachers and coaches when she moved the volleyball stand. As such, Nunes was a volunteer. The Act includes volunteers in its definition of employee, and where the language of a statute is clear, its meaning should be given effect without resort to supplementary principles of statutory construction. (People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019, cert. denied (1987), 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131.) A janitor moving a volleyball stand would be protected by the Act. There is no reason why a student moving a volleyball stand as a volunteer should not be afforded the same protection simply because she is a student.

Our finding is strengthened by the fact that the legislature amended section 1 — 202 of the Act effective November 25, 1986, by inserting the words “agent” and “volunteer.” (1986 Ill. Laws 3740, 3741.) The purpose of this change was to broaden the scope of immunities provided for under the Act.

Plaintiff’s second contention is that the trial court abused its discretion in allowing Nunes to withdraw her original answer and file a motion to dismiss. Plaintiff claims that Nunes waived her right to withdraw her original answer and raise an affirmative defense.

Section 2 — 616(a) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(a)) states that amendments raising new defenses may be allowed at any time before final judgment. This statute is to be liberally construed, and any doubts should be resolved in favor of allowing amendments. People ex rel. Foreman v. Village of Round Lake Park (1988), 171 Ill. App. 3d 443, 525 N.E.2d 868.

The trial court has discretion to allow such amendments to pleadings. (Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 437 N.E.2d 774.) Factors to be considered in determining whether the trial court abused its discretion include whether proposed amendment would cure defective pleading; whether other parties would sustain prejudice or surprise by virtue of proposed amendment; and whether previous opportunities to amend pleadings could be identified. Kupianen, 107 Ill. App. 3d at 377, 437 N.E.2d at 776-77.

Defendant’s motion to withdraw answer and the subsequent filing of a motion to dismiss were intended to raise an affirmative defense. Plaintiff does not allege any prejudice or surprise, but only that defendant waived her right to raise an affirmative defense. Section 2 — 616(a) of the Code, however, specifically allows such amendments. We find no abuse of discretion here.

For the foregoing reasons, the trial court is affirmed.

Affirmed.

LUND and STEIGMANN, JJ, concur.


author: JUSTICE LUND

text:
    AMERICAN STATES INSURANCE COMPANY, as Subrogee, et al., Plaintiffs-Appellants, v. KELLY WHITSITT, Defendant-Appellee.-ROCHELLE KOEPP, Plaintiff-Appellant, v. KELLY WHITSITT, Defendant-Appellee.
    Fourth District
    No. 4—89—0538
    Opinion filed January 18,1990.

      Thomas Mark Schmidt, of Livingstone, Mueller, O’Brien & Davlin, P.C., of Springfield, for appellant American States Insurance Company.

      Saul J. Morse, Thomas R. Appleton, and Barbara B. Collins, all of Morse, Giganti & Appleton, of Springfield, for appellant Rochelle Koepp.
    Randall A. Mead and David L. Drake, both of Drake, Narup & Mead, P.C., of Springfield, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

American States Insurance Company (hereinafter American) filed a complaint against defendant Kelly Whitsitt alleging that defendant was liable to it for fire damage under theories of negligence and res ipsa loquitur. Rochelle Koepp (hereinafter Koepp) also filed a complaint against defendant arising out of the same event and alleging similar theories of recovery. The cases were ordered consolidated by the circuit court of Sangamon County. On June 23, 1989, the court entered an order granting defendant’s motions for summary judgment. American and Koepp appeal this determination.

On February 12, 1985, a fire destroyed four adjoining apartments located on Concord Street in Springfield. The fire was subsequently determined to have started in the utility room in the basement of defendant’s apartment.

American, as subrogee of various individuals, filed a complaint against defendant. The complaint contains four counts now involved in this appeal. These counts involved two counts sounding in negligence and two based on a res ipsa loquitur theory. Koepp, a resident in one of the apartments, also filed a complaint against defendant based on the same theories.

On March 14, 1989, defendant filed a motion for summary judgment as to each complaint. The motion stated, with respect to the negligence counts, the complaint alleged defendant placed combustibles between the furnace and water heater or on the water heater; American’s expert says the fire started on those combustibles; defendant denies placing any combustibles there; and there is no evidence defendant put any combustibles there. In regard to the res ipsa loquitur counts, the motion alleges that defendant was not in exclusive control of the room where the fire started.

Defendant attached three documents to these motions. The first I was the answer to interrogatories by American and Koepp, which establishes that no one has information that defendant placed the combustibles in the utility room. The second was an affidavit of defendant I in which he denied storing combustible materials between the furnace I and water heater or on the water heater and in which he asserted that I the landlord’s employees also had access to the utility room. The third I item was a deposition of James Schuhmacher, an expert fire investigator retained by American.

Schuhmacher’s deposition establishes that he has been employed as a fire investigator since 1982. On February 14, 1985, he and another investigator were employed by Pyratech and were sent to investigate the instant fire. It was his opinion the fire started in defendant’s utility room between the water heater and furnace. He based much of this opinion on the fact the chief fire investigator of the fire department, Paul Nevitt, told him that apparently someone had placed a wooden table at that location and there were ordinary combustibles piled on the table. His opinion was also based in part on the burn patterns. He could not state whether the ignition of the combustibles came from the furnace or the water heater. Since the scene was already being processed by the fire department when he arrived, he had no idea what type of combustibles were lying on the table, whether the combustibles were lying on the floor by the furnace, or whether the table was tipped over. He acknowledged that he would not disagree with the opinion of the fire department that the fire started atop the water heater, since the department investigated the fire scene.

American responded by asserting in its response that a material issue of fact does exist. The deposition of Nevitt, fire investigator with the Springfield fire department, was attached.

This deposition established that Nevitt has been in fire investigations for nine years. He arrived at the scene of the fire around 3 a.m. When the fire was put out, the basement had water eight feet deep in it which had to be pumped out. The next day he was able to investigate the scene. The table between the furnace and water heater was metal. Investigation by other experts established that the fire was not of an electrical origin, nor was it due to a malfunction of the furnace. At the time of the investigation there was a lot of debris on the water heater and table which might have floated in the water and settled there. It was his opinion that the fire started on the top of the water heater and did not originate on the table. He believes some combustible material was on top near the vent pipe and ignited. The material could have been hanging over the side and, as it burned, it could have fallen on the table, catching fire to the material on it. He did. not ask defendant how this material came to be placed there.

On June 23, 1989, the court entered an order, without any specific findings, granting defendant’s motions. American and Koepp now appeal. We reverse.

Section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005) provides that a party may be granted a summary judgment “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In ruling upon such a motion, the trial court must consider the pleadings and evidentiary matters in the record in the light most favorable to the nonmoving party and accept as true the reasonable inferences from such facts which favor the nonmovant. National Bank v. City of Lexington (1985), 138 Ill. App. 3d 805, 808, 486 N.E.2d 967, 969.

Summary judgment procedure is not a modified trial procedure. (Manaban v. Daily News-Tribune (1977), 50 Ill. App. 3d 9, 12, 365 N.E.2d 1045, 1047.) It is improper to grant a motion for summary judgment where the material evidentiary facts are in dispute or where, when the facts are undisputed, reasonable minds might draw different reasonable inferences from such facts. (National Bank, 138 Ill. App. 3d at 808, 486 N.E.2d at 969.) Because summary judgment is such a drastic method of disposing of a case, it should not be employed unless the right of the moving party to such a judgment is free from doubt. Murphy v. Urso (1981), 88 Ill. 2d 444, 464, 430 N.E.2d 1079, 1088.

Each plaintiff asserted counts which alleged the fire was caused from defendant’s specific negligent acts. It was alleged that these acts were: (1) defendant placed a wooden table between the water heater and the furnace; (2) defendant placed combustible matter between the furnace and the water heater; (3) defendant placed combustible materials on the water heater; and (4) defendant failed to keep the area surrounding the furnace and water heater clear of rubbish and combustible matters.

Plaintiffs concede that they have no eyewitness or other direct evidence that defendant committed these negligent acts. However, they contend that their case can be made by circumstantial evidence. They note that where there is no eyewitness, a party has the right to prove his allegations by circumstantial evidence, which consists of proof of facts and circumstances from which the jury may infer other connected facts, reasonably following from the proven facts and circumstances. See Sandburg-Schiller v. Rosello (1983), 119 Ill. App. 3d 318, 335, 456 N.E.2d 192, 204.

Defendant argues that plaintiffs failed to present any evidence that he committed any negligent acts. He maintains that the expert’s opinions concerning the origin of the fire do not establish that he committed any negligent acts. He attempts to rely on statements of his roommate and housekeeper for further support. However, these statements were not depositions or affidavits, but were statements given to American’s agent and made part of the record as the answer to discovery. Accordingly, these statements are inadmissible for summary judgment purposes. See Cincinnati Insurance Co. v. Argubright (1986), 151 Ill. App. 3d 324, 329, 502 N.E.2d 868, 871.

Sandburg-Schiller involves a fact situation somewhat analogous to this case. There the appellate court affirmed a judgment against defendant based on a negligence theory. Defendant denied starting the fire, and there were no eyewitnesses. In affirming, the court stated:

“In our opinion, the facts and circumstances in the instant case constitute a reasonable basis for the jury’s conclusion that defendant was responsible for the fire. The fire originated in defendant’s apartment; defendant lived alone; he had the only key; and he was the only person in the apartment from at least the early evening hours of December 10, 1974, to the time of the fire. The electrical system, heating system, range and refrigerator were eliminated by experts as probable causes of the fire. Three experts testified that in their opinion the cause and origin of the fire was careless use of smoking materials on the sofa in the living-dining area.” Sandburg-Schiller, 119 Ill. App. 3d at 335-36, 456 N.E.2d at 205.

In the present case, the expert opinions establish the fire started in defendant’s utility room. They also agree that this fire started due to the presence of combustible materials in the vicinity of the furnace and water heater. This creates an inference that defendant placed it there. Defendant did deny doing this. However, this case then boils down to a matter of credibility. A trier of fact is not required to accept defendant’s statement and, based on these limited facts before us, could reasonably find for plaintiffs. Accordingly, it is evident that defendant’s right to summary judgment as to the negligence counts is not free from doubt and the court’s decision is erroneous.

To succeed on a res ipsa loquitur count, a plaintiff must show the injury: (1) is the kind which ordinarily does not occur in the absence of negligent acts; (2) was caused by agency or instrumentality within the exclusive control of the defendant; and (3) was not due to any voluntary act or neglect on the part of plaintiff. (Spidle v. Steward (1980), 79 Ill. 2d 1, 5, 402 N.E. 2d 216, 218; Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 525, 434 N.E. 2d 50, 53.) Here, both plaintiffs alleged that while defendant had exclusive control of his apartment, he, by his aforementioned negligent acts, caused a fire to occur in his apartment.

Initially, the parties renew their earlier arguments concerning evidence of the acts of negligence. However, as previously noted, there is a sufficient question concerning the presence of any negligent acts to defeat a summary judgment motion.

Defendant also maintains that plaintiffs did not establish he was in exclusive control of his apartment since he asserted in his affidavit that the landlord’s employees also had access to the utility room.

The courts have interchangeably used the phrases “exclusive control” and “management and control” in dealing with this doctrine. (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 272-73, 443 N.E.2d 569, 572.) This is a flexible standard. (Lynch, 93 Ill. 2d at 274, 443 N.E. 2d at 573.) The amount of control necessary for the doctrine is that which is necessary to support an inference that the defendant was negligent. Lynch, 93 Ill. 2d at 274, 443 N.E. 2d at 573.

In Dyback v. Weber (1986), 114 Ill. 2d 232, 242, 500 N.E.2d 8, 12, the supreme court, addressing the amount of proof necessary to invoke the doctrine, stated:

“A plaintiff need not conclusively prove all the elements of res ipsa loquitur in order to invoke the doctrine. He need only present evidence reasonably showing that elements exist that allow an inference that the occurrence is one that ordinarily does not occur without negligence. [Citations.] The inference that there was negligence does not disappear if the defendant simply presents direct evidence to the contrary, but the defendant’s evidence will be considered with all of the other evidence in the case.”

In the case at bar, plaintiffs, by their pleadings, establish defendant rented the apartment in question. This is sufficient to support an inference that defendant was in exclusive control. Defendant states others had access. However, this only creates a fact question on this point and is not sufficient to resolve this question for summary judgment purposes.

Finally, Koepp asserts the court erred in granting defendant’s motion for partial summary judgment concerning her request for damages for the sentimental value of the personal property relating to her deceased son. However, a review of the order and the docket sheet establishes the trial court never ruled on this question. Therefore, it would be improper for us to address it.

Reversed and remanded.

SPITZ and STEIGMANN, JJ., concur.