author: JUSTICE GEIGER JUSTICE QUETSCH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE E. REYES, Defendant-Appellant.
    Second District
    No. 2—92—0303
    Opinion filed October 15, 1993.
    QUETSCH, J., concurring in part and dissenting in part.
    G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, Mary Beth Burns, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Jose E. Reyes, appeals his bench trial conviction of the unlawful use of a weapon (Ill. Rev. Stat. 1991, ch. 38, par. 24— 1(a)(12) (now codified, as amended, at 720 ILCS 5/24 — 1(a)(12) (West 1992))) arguing (1) that the court improperly denied his motion to suppress evidence; (2) that he did not receive the effective assistance of counsel due to a conflict of interest; and (3) that the fine imposed by the court should be offset by a $5 credit for one day of time served.

On April 17, the defendant was suspended from his high school and told by school administrators that he should leave the school grounds and not return. At approximately 3:30 p.m., the defendant drove to the school to pick up some of his friends. He had a passenger, Jorge Rodriquez, in the front passenger seat. The defendant parked in the school parking lot. The school bell rang and students began to leave the building. The school principal and a counselor approached the defendant’s car. The principal told the defendant that he should leave the school premises. The defendant complied. After leaving the parking lot, and after seeing his friends, the defendant pulled into another driveway of the parking lot.

One of his friends, Jose Rubio, a codefendant in the case, entered the car. The school counselor then approached the defendant’s car again and told him to leave the premises. The defendant said that he would leave as soon as his friends were in his car. Two more students entered the defendant’s vehicle, and the defendant drove away from the school.

Codefendant Rubio, who is not a party to this appeal, testified that he entered the backseat of the car and put a gym bag he was carrying on the floor near his feet. West Chicago police officer James Blickle testified that on the afternoon in question he was parked in the south lot of the high school. Officer Blickle testified that the school principal approached him and said that a car driven by a suspended student, Jose Reyes, who was not permitted on school property, had passed through the school lot twice. The principal further noted that he had seen a baseball bat in the defendant’s car. While Blickle was talking to the principal, a school counselor came running over to him and stated that he had just heard from a group of high school students that Reyes had a gun in his car.

Officer Blickle watched the defendant’s car leave the school property, and he followed it for a few blocks, reporting on the radio that he was about to stop a car containing five people and possibly a gun. Blickle activated his lights and pulled the car over. As the cars stopped, an unmarked squad car driven by police detective Spencer Kroning pulled in front of the defendant’s car.

Blickle got out of his vehicle with his gun drawn and ordered the defendant and his friends to exit the car with their hands up. He further instructed them to put their hands on the outside of the car. More police officers arrived, bringing the number of officers at the scene to about eight. Blickle testified that the officers took the car’s occupants away from the defendant’s car because they “wanted to be able to look into the car and secure the areas just to make sure that in case one of the subjects should give us a problem, that we would at least have them away from the car if there is [sic] anything in the car.” The officers patted down the five men, ascertaining that none of them had anything on his person.

Detective Kroning testified that after patting down the suspects, he went to the defendant’s car and looked into the window. He saw a baseball bat sticking out from under the backseat and noticed a gym bag on the floor of the back passenger side of the car. Kroning went into the car and picked up the bag, which he noticed was heavier at one end than the other. Kroning claimed that he felt what appeared to be a gun inside the bag. He unzipped the bag, which contained books and a tee shirt wrapped around an object. According to Kroning, he could feel the weight and shape of a gun through the shirt wrapping. He unwrapped the shirt, revealing a ,9-mm Smith & Wesson automatic handgun.

After the gun was found, the defendant and the other passengers were arrested. The defendant waived his right to counsel and made statements to the police. Those statements were included in the State’s evidence presented at trial. According to the defendant’s statements, a few days before April 17 he bought the gun in question for $20. The defendant told the police that he brought the gun to school on the morning of April 17 and gave it to a student named Rogelio Coronado because the defendant knew he would be suspended that day and would have to empty his locker at that time. The defendant said that after leaving school he borrowed a friend’s car and returned to the school to pick up his friends. He saw Coronado in the parking lot and picked him up. Coronado brought the gun out in the gym bag he was carrying.

Codefendant Rubio, who was also an occupant of the defendant’s car when it was stopped by the police, also made a statement to the police upon his arrest. He stated that he carried the bag into the defendant’s car. He further stated that he had found the gun a day earlier and had brought it to school with the hope that he could sell it.

On April 18, 1991, the defendant and codefendant Rubio were charged with the unlawful use of weapons and criminal trespass to land. At a stipulated bench trial, the defendant moved to suppress the evidence of the gun, arguing that there was not probable cause to search the car. The court denied that motion.

The defendant first argues that the court erred in denying his motion to suppress because even if the police had probable cause to stop his car for trespassing on school property, there was no probable cause to search the car and gym bag without a warrant.

On review, a ruling by the circuit court on a defendant’s motion to suppress should not be set aside unless it is found to be clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 99.) Because there is no dispute of material facts as they relate to the police search, we need only determine whether, as a matter of law, there were grounds for a warrantless search. See 92 Ill. 2d at 99.

The seizure and search of a closed container in an automobile is permissible under the automobile exception of the warrant requirement pursuant to United State v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. People v. Smith (1983), 95 Ill. 2d 412, 418.

Probable cause to search a car exists when the totality of the facts and circumstances within the officer’s knowledge at the time of the search are sufficient to warrant a reasonable person’s belief that contraband is present in the vehicle. (Smith, 95 Ill. 2d at 419.) Such probable cause may arrive from information obtained from an informant, where an officer has reason to believe that information is reliable. See People v. Moraca (1984), 124 Ill. App. 3d 561, 564-65.

The defendant here argues that the tip from the school guidance counselor to the police officer was based on hearsay and amounted to an anonymous tip that was not sufficiently reliable for the officers to obtain probable cause to search the gym bag in the car.

In Moraca, an operator at an organization known as “Catch a Thief with Citizens’ Help” (CATCH) took a call from an anonymous source and relayed the information therefrom to the police department. The substance of the tip was that the defendant Moraca drove a certain described van with a revoked license and that he possessed a machine gun and cannabis. The police saw a van which met the informant’s description. The police effected a stop solely on the basis of the anonymous informant’s tip and searched the van. See Moraca, 124 Ill. App. 3d at 562-63.

In affirming the lower court’s finding that the search was in violation of the fourth amendment, the Moraca court distinguished its facts from Adams v. Williams (1972), 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921, where the court held an informant’s tip provided sufficient probable cause for a search of an automobile. (Moraca, 124 Ill. App. 3d at 564.) Moraca distinguished Adams, noting that in Adams the informant spoke directly to the officer and the information was immediately verifiable at the scene; thus, the case was unlike that where an officer merely received a tip from an anonymous telephone informant. (Moraca, 124 Ill. App. 3d at 565.) Further, Moraca distinguished the substance of the informant’s tip, noting that the police were only informed that the defendant was “in possession” of cannabis and a machine gun, but did not specify whether those items were on his person or in the van, whereas in Adams the informant told the officer that the defendant was carrying narcotics and a gun on his person. Moraca, 124 Ill. App. 3d at 565.

In the case at bar, Officer Blickle was told by the school principal that a student was on the school property without permission and that the student in question had a baseball bat visible in the car. A guidance counselor further told Officer Blickle that he heard from some students that there was a gun in the defendant’s car. Here, although a portion of the information upon which the officer acted came from an anonymous source, unlike in Moraca the tips received included information from a known and reliable source. (See Smith, 95 Ill. 2d at 419; People v. Tisler (1984), 103 Ill. 2d 226, 231-32.) The tips here were made directly to the police officer, and the officer, in part, was notified that a gun was in the car. In view of Adams and Moraca, we find that the court’s decision on the defendant’s motion to suppress was not clearly erroneous. See Clark, 92 Ill. 2d at 99.

The defendant next argues that because his counsel simultaneously represented codefendant Rubio, his counsel had a conflict of interest preventing him from forcefully arguing that Rubio’s statement was a true account of events and that the defendant was not guilty.

Here, the defendant and codefendant Rubio were both charged with the unlawful possession of the same handgun found in a car driven by the defendant. Rubio told the police subsequent to his arrest that the gun belonged solely to him, mentioning nothing about the defendant. The defendant also made a statement to the police to the effect that the gun was his, making no mention of Rubio.

At the defendant’s hearing on the motion to suppress, the court raised sua sponte the issue of a possible conflict of interest due to counsel’s dual representation. Counsel answered to the court that he perceived no conflict of interest in representing both the defendant and the codefendant Rubio. Later, at a hearing on the defendant’s motion to reconsider the denial of his motion to suppress, the defense counsel informed the court that he did not “forcefully argue” the probable cause issue as it related to the defendant because his “twofold” representation of both the defendant and the codefendant Rubio prevented him from doing so. In its ruling denying the defendant’s motion to suppress, the court noted that it did not “see any antagonistic defense nor any conflict [of interest].”

Generally, to establish a violation of the right to the effective assistance of counsel, a defendant must prove that counsel was incompetent and that, but for counsel’s unprofessional errors, the outcome of the proceedings would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 525.) However, where counsel is representing multiple defendants and a potential conflict is brought to the attention of the court by counsel before trial or at an early stage of the trial, the trial court must take adequate steps to deal with the potential conflict. (Emphasis added.) People v. Jones (1988), 121 Ill. 2d 21, 28, citing Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173.

As noted earlier, the issue of a conflict was first raised sua sponte by the trial court at the defendant’s suppression hearing. However, counsel told the court that he perceived no conflict of interest. Nevertheless, at a later stage of the proceedings, counsel noted that he did not forcefully argue a point as it related to the defendant due to his multiple representation. Here, for counsel to effectively argue that the defendant was not guilty, he would have to argue that Rubio’s statement to the police was true and accurate. However, this would have been in direct conflict with codefendant Rubio’s interest. Accordingly, we find that an actual conflict was manifested at trial here, and that adequate steps were not taken to deal with this conflict. See Jones, 121 Ill. 2d at 28.

For the reasons stated, the judgment of the circuit court of Du Page County is reversed. Given that the evidence in the first trial was sufficient to protect against double jeopardy (see People v. Benabe (1989), 180 Ill. App. 3d 235, 241), we remand the cause for a new trial. We therefore need not address the defendant’s argument concerning a $5 sentence credit for time served.

Reversed and remanded.

UNVERZAGT, J., concurs.

JUSTICE QUETSCH,

concurring in part and dissenting in part:

I concur in the majority’s opinion insofar as it finds that defendant was denied the effective assistance of counsel, reverses the defendant’s conviction, and remands this case for a new trial. However, I respectfully dissent from the majority opinion on the issue of whether the trial court was correct in denying defendant’s motion to suppress.

The majority effectively concedes that the sole reason, in the mind of the police, for stopping and searching defendant’s vehicle was the “tip” “heard from some students,” by a school counselor, and passed on to the police by that counselor, that there was a gun in the defendant’s car. The majority then concedes that this “information” upon which the officers acted was from an anonymous source (unidentified students). Next, the majority leaps, without any foundation in the record, to the conclusion that the “source” was “known and reliable,” evidently because, having been heralded to the police by a counselor, the otherwise unreliable, uncorroborated hearsay became purified and suddenly “reliable.”

The majority does not explain, nor can it, how the police, having “heard it through the grapevine,” could have any reasonable basis for either stopping or searching defendant’s car, in spite of the ominous shading (Read: “Totality of the Facts and Circumstances”) given in the majority’s opinion to the presence in the car of a baseball bat(!) (not a good omen for innocent baseball players) and the vague and tenuous belief of the school principal that defendant should not have been in a publicly owned parking lot driveway after being suspended.

The police in this case had no reason to believe that the “information” that they had received, through the medium of a guidance counselor, from unidentified students was reliable.

In my judgment, this court is ignoring its own precedent established in People v. Moraca (1984), 124 Ill. App. 3d 561, 564-65, and vainly attempts to equate the legal effect of the facts in the case at bar with those in Adams v. Williams (1972), 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921, and People v. Tisler (1984), 103 Ill. 2d 226, 231-34.

There was no probable cause for the search in this case, and the “tip” which formed the basis for the police search did not meet those standards of reliability required by law. See Moraca, 124 Ill. App. 3d at 565.

I would reverse, as clearly erroneous, the trial court’s order denying defendant’s motion to suppress.


source: Caselaw Access Project

author: PRESIDING JUSTICE INGLIS

license: Public Domain

text:
    W.M. MOLD AND TOOL, Plaintiff-Appellee, v. DENISE M. DeROSA, Defendant and Third-Party Plaintiff-Appellant (Carlos Garcia, Third-Party Plaintiff; Marvel Taylor, Third-Party Defendant-Appellee).
    Second District
    No. 2—92—0953
    Opinion filed October 15, 1993.
    Gregory R. Spelson, of Moss & Hillison, of Chicago, for appellant.
    Chiles & Wallach, of Wheaton, for appellee W.M. Mold & Tool.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, W.M. Mold and Tool, brought suit against defendant, Denise M. DeRosa, in small claims court for approximately $1,595 property damage sustained in an automobile accident. Defendant filed a third-party complaint for contribution against Marvel Taylor, the driver of plaintiff’s vehicle at the time of the collision. Carlos Garcia, the owner of the vehicle driven by defendant, also filed a third-party complaint against Marvel Taylor. Garcia is not a party to this appeal. The trial court entered judgment for plaintiff and dismissed the third-party action. Defendant appeals, contending that the trial court erred in requiring the trial to proceed where defense counsel had not answered ready and had not secured the presence of defendant. Defendant’s argument is twofold: (1) the trial court erred in proceeding to trial on a date on which the cause was set for status, not trial; and (2) the trial court erred in denying defendant’s motion to vacate the judgment.

An understanding of the procedural history of this case is necessary to resolve the issues presented. On May 13, 1991, the trial court granted judgment for defendant. However, on September 13, 1991, the court granted plaintiff’s post-trial motion, vacated the judgment for defendant, and set the cause for trial on January 9,1992.

On January 8, 1992, the parties appeared before the court on defendant’s motion to vacate the dismissal of the third-party complaint for want of prosecution. There is no verbatim report of proceedings for that date, but the record shows that the court vacated the dismissal and continued the cause to May 19, 1992. According to the trial court, the cause was set for trial on May 19, 1992, but according to defense counsel, it was set for status on that date. Defense counsel prepared a draft order stating, “It is hereby ordered, due notice having been given, and the Court being fully advised: That the Dec. 9, 1991 DWP order is vacated — The Jan. 9, 1992 trial date is stricken — and that this matter is continued for status to May, 19, 1992, at 10:00 a.m.” Defense counsel left this draft order with the clerk of the court.

On February 26, 1992, plaintiff’s counsel sent defense counsel a letter regarding this case. In it, plaintiff’s counsel stated, “In review of the court file, it reflects that the order which you prepared was not entered by the court insofar as this case is set for bench trial on May 19, 1992.” The letter continues, “Again, so there is no misunderstanding, this case is set for trial on May 19, 1992 instead of for status. I will be ready on behalf of the plaintiff.” (Emphasis in original.)

On March 6, 1992, defense counsel sent a letter to plaintiff’s attorney, stating, “Insofar as you failed to indicate what the Order entered by the Court actually set forth, I have a copy of an Order which sets this matter for status May 19, 1992, therefore, unless you can provide me with a different Order I am relying on our Order.”

In accordance with Supreme Court Rule 323(c) (134 Ill. 2d R. 323(c)), defendant prepared a proposed report of proceedings reflecting the May 19, 1992, proceedings. The report of proceedings was certified, as amended, by the trial court. That report said that on May 19, 1992, Patrick L. Sayas, an attorney with the law firm of Moss & Hillison, appeared on behalf of defendant. Plaintiff’s attorney, Mr. Harry Chiles of Chiles and Associates, appeared for plaintiff and stated that the case was up for trial and plaintiff was ready to proceed. Chiles stated that the case file was not in the court, but he had requested that the file be located and brought to the courtroom. The case was not listed on the court “call.” Defense counsel informed the court that he was under the impression that the case was set for status and that he had an order in his own file which indicated that this was so. Further, defense counsel stated that because he had relied on this order, no arrangements had been made to have defendant in court. Plaintiff’s counsel responded that defendant’s draft order had never been entered. The judge stated that the case was set for trial and he had written the order on the “half-sheet.” The judge stated that he had torn up the order which defense counsel had drafted. The judge ordered the cause to proceed to trial that day. After trial, the court entered judgment for plaintiff and dismissed the third-party complaint.

In defendant’s post-trial motion, she asked the court to vacate the judgment in favor of plaintiff and to order a new trial to allow defendant her day in court. At argument on the motion, another attorney from the law firm representing defendant appeared and argued that defense counsel did not know that the matter was set for trial until he arrived at the courtroom on May 19, 1992. Plaintiff’s attorney argued that he had apprised defense counsel of the fact that the cause was set for trial by letter of February 26, 1992. Plaintiff’s attorney argued that defense counsel could have checked the court file before May 19, 1992. The trial judge stated that on January 8, 1992, he granted defendant’s motion to continue the trial until May 19, 1992. According to the judge, defense counsel left an order with the clerk which was not in conformance with the judge’s ruling since it stated that the cause was continued for status, not trial. When the judge was signing orders later that day, he determined that the order did not conform to the ruling of the court. The trial judge further remarked that on May 19, 1992, defense counsel orally moved to continue the trial. The trial court found no just reason to grant the continuance.

On appeal, the defendant contends that he reasonably relied on the draft order which reflected that the cause was up for status, not trial, on May 19, 1992. We note that the appellee in this case has not filed a brief. Pursuant to the principles enunciated in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, we will examine the merits of the appeal.

Defendant argues that where there is a written order drafted by counsel which is inconsistent with the half-sheet or other entry by the judge, the draft order controls. First National Bank v. Bernius (1984), 127 Ill. App. 3d 193, 196, cited by defendant for this proposition, holds that where it is clear that the court requires an additional order to be prepared, the docket entry does not constitute the final judgment for purposes of appeal. Defendant posits that Supreme Court Rule 271 required that he present a draft order to be entered. Supreme Court Rule 271 provides:

“When the court rules upon a motion other than in the course of trial, the attorney for the prevailing party shall prepare and present to the court the order or judgment to be entered, unless the court directs otherwise.” (134 Ill. 2d R. 271.)

Supreme Court Rule 271 suggests that defendant should have prepared an order to be entered, but implicit in that mandate is that the order should embody the court’s ruling. There is nothing in the rule which suggests that the court must accept a draft order which incorrectly states the court’s ruling. The rule does not suggest that until such an order is entered there is no order of record. In fact, Supreme Court Rule 271 makes the filing of a written order on motions made outside of the course of trial discretionary. (City of Chicago v. Westphalen (1981), 93 Ill. App. 3d 1110, 1127.) As we are not concerned with whether the court’s entry of its order constituted a final order, we fail to see how First National Bank is applicable. It does not support defendant’s argument that a draft order which was rejected by the court and never entered controls over the court’s order entered of record.

Defendant argues that the intention of the court must be determined from the draft order entered and should not be controlled by intent or purpose not expressed therein. Further, according to defendant, a formal written order, such as the draft order, controls over “other types of pronouncements.” Defendant also argues that the trial judge’s action in tearing up the draft order was tantamount to entering an ex parte order without notice to defendant. Defendant’s arguments all suffer from the same flaw. The arguments begin with the incorrect premise that the draft order prepared by defense counsel was entered of record and then disregarded by the trial judge by entry of an inconsistent order. This is not a case where two inconsistent orders were entered in the court record. The draft order prepared by defense counsel was never entered. Here, the file contained a document entitled “Court Orders and Memo.” It reflects that: on January 8, 1992, both plaintiff and defendant were present; the trial date of January 9, 1992, was stricken; the cause was continued for a bench trial at 10 a.m. on May 19, 1992; and the submitted order was rejected. The judge’s initials appear after the entry. Absent a draft order indicating otherwise, the court’s order reflected on the order sheet was the entry of the order into the record. See City of Chicago v. American National Bank & Trust Co. (1988), 171 Ill. App. 3d 680, 686 (absent a draft order indicating otherwise, the half-sheet entry was the order of record).

Defendant also claims that the draft order must have correctly embodied the court’s ruling or the clerk would not have accepted the order and plaintiff’s counsel would not have silently acquiesced in its submission. Counsel’s statements in defendant’s brief refer to matters outside the record. We cannot take cognizance of counsel’s statements in the brief which are not supported by the record. (In re Annexation of Certain Territory (1973), 16 Ill. App. 3d 140, 145.) Additionally, as we have already noted, the draft order was a proposed order subject to the trial court’s acceptance.

Fortunately, the situation before the court is a rare exception. The lawyer in question should have known that the proposed order was not an order until it was reviewed and signed by the judge. The clerk had no responsibility for the contents of the order drafted by the lawyer and left with the clerk to be handed to the judge.

Because of the press of business and a desire to accommodate busy lawyers, most courts allow draft orders to be left with the clerk for presentation to the judge at the end of the call. However, all concerned expect the order to be legible and intelligible, and to properly reflect the announced decision of the court.

The fact that the clerk was not allowed to stamp a copy “filed” or to stamp it with a judge’s signature stamp further put the lawyer on notice that the order was not final until reviewed and signed by the judge. Because of the rare instance when an attorney misunderstands the judge’s ruling or by error or otherwise drafts an incorrect order, judges are encouraged to read each order before signing it. It should also be obvious that opposing counsel should review the draft order before it is left with the clerk.

We turn now to a determination of whether the court erred in denying a continuance on the date of trial. Defendant does not specifically articulate this challenge, but we find it to be implicit in his argument that the trial court erred in proceeding to trial. In Sinram v. Nolan (1992), 227 Ill. App. 3d 241, the court was faced with a motion to continue on the date of trial. In determining that the trial court did not abuse its discretion in denying the motion, the appellate court stated, “Our legal system cannot work efficiently if continuances are readily available on the day of trial.” (Sinram, 227 Ill. App. 3d at 243.) The court further stated, “A litigant has no absolute right to have a case continued. A decisive factor is whether the party asking for the continuance has shown diligence in proceeding with the cause.” Sinram, 227 Ill. App. 3d at 243.

In the instant case, defense counsel may have misunderstood the ruling of the court and believed that the cause was set for status, not trial. He may also have left the draft order, believing that the judge would sign the order and it would be entered of record. That does not change the fact that opposing counsel clearly and quite properly notified defense counsel that the court order entered set the cause for trial. Defense counsel had almost three months after that notice to verify the order had been entered, but he did nothing. Instead, he chose to communicate to opposing counsel that he was rejecting the order that was entered of record because it was inconsistent with the draft order he had presented to the clerk. Defense counsel waited until the day of trial to inquire further. This conduct was unreasonable and shows a lack of diligence.

“If a continuance is not requested until the date of the trial, the moving party must give especially persuasive reasons for the continuance because of the potential inconvenience to the witnesses, the parties, and the court.” (Sinram, 227 Ill. App. 3d at 243.) A reviewing court will not interfere with the exercise of the court’s discretion absent an abuse thereof or unless a palpable injustice is apparent of record. (Sinram, 227 Ill. App. 3d at 243.) The trial court did not abuse its discretion in the instant case, and we do not perceive palpable injustice.

Defendant’s second argument is that the trial court erred in denying defendant’s motion to vacate pursuant to section 2 — 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2— 1301(e) (now 735 ILCS 5/2 — 1301(e) (West 1992))). That section provides:

“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.”

The determination of whether to grant a motion to vacate is within the sound discretion of the trial court. (In re Marriage of Romashko (1991), 212 Ill. App. 3d 1018, 1024.) The overriding concern in ruling on a motion to vacate is whether substantial justice is being done between the litigants, and whether it is reasonable under the circumstances to compel the nonmovant to proceed to trial on the merits. (Romashko, 212 Ill. App. 3d at 1024.) Due diligence and a meritorious defense are factors in determining whether the judgment should be vacated, and additional factors to be considered include the residence of the nonmovant, the severity of the penalty as a result of the judgment, and the hardship on the nonmovant if he is required to go to trial. (Romashko, 212 Ill. App. 3d at 1024.) “A circuit court has abused its discretion when it acts arbitrarily without the employment of conscientious judgment or if its decision exceeds the bounds of reason and ignores principles of law such that substantial prejudice has resulted. [Citation.] If reasonable persons could differ as to the propriety of the trial court’s actions, then the trial court cannot be said to have exceeded its discretion.” Venzor v. Carmen’s Pizza Corp. (1992), 235 Ill. App. 3d 1053, 1059.

In the case of In re Marriage of Garde (1983), 118 Ill. App. 3d 303, defendant and his counsel did not appear in court on the trial date. The trial court entered judgment after an ex parte hearing. In arguing the motion to vacate, defendant stated that neither he nor his attorney received notice of the date from the circuit clerk’s office. Yet, the record showed that they had received actual notice from motions sent to them by opposing counsel. (Garde, 118 Ill. App. 3d at 308.) The trial court denied the motion to vacate, finding that the litigant was bound by his attorney’s acts. The appellate court noted that the practice of imputing an attorney’s negligence to his client may sometimes visit “ ‘drastic and vicarious punishment on an unsuspecting litigant,’ ” but held that justice did not require a second hearing where the previous opportunity to speak was not seized. Garde, 118 Ill. App. 3d at 309, quoting Adams v. Grace (1970), 128 Ill. App. 2d 69, 80-81.

In this case, we have already determined that defense counsel did not act with due diligence in ascertaining the status of this matter in order to secure the presence of defendant at trial. In his motion to vacate, counsel did not allege the existence of a meritorious defense, and nothing in the record indicates that defendant had a meritorious defense. The amount of the judgment is not high. While there is no indication what hardship a new trial would work upon plaintiff, a lack of hardship is just one factor for consideration. (Garde, 118 Ill. App. 3d at 309.) Under the circumstances of this case, the trial court did not abuse its discretion by denying the motion to vacate.

For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

DOYLE and COLWELL, JJ., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    CAROLYN EVANS, Plaintiff-Appellee, v. THE DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants.
    Fourth District
    No. 4—92—0528
    Argued June 16, 1993. —
    Opinion filed September 9, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jan E. Hughes, Assistant Attorney General (argued), of Chicago, of counsel), for appellants.
    John L. Swartz (argued) and David A. Herman, both of Giffin, Winning, Cohen & Bodewes, P.C., of Springfield, for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court;

In March 1992, the circuit court of Champaign County entered an order in favor of plaintiff, Carolyn Evans, and against defendants, the Illinois Department of Transportation (IDOT), John D. Kramer, Secretary of IDOT, and P.R. Engleberth, IDOT district engineer, pursuant to sections 4 — 211 and 4 — 210 of the Illinois Highway Code (Code) (Ill. Rev. Stat. 1985, ch. 121, pars. 4 — 211, 4— 210), ordering IDOT to allow plaintiff full enjoyment and use of her property. Defendants appeal, contending (1) the circuit court lacked subject-matter jurisdiction to determine rights to an easement they hold, and (2) they did not deny reasonable access to plaintiff’s property. Because we conclude that the circuit court exceeded its authority by entering the order in question, we reverse.

I. Facts

In 1946, the plaintiff’s predecessor in title, Illinois Central Gulf Railroad Company, granted an easement “for public highway purposes” to IDOT’s predecessor on land the railroad owned in Champaign County, Illinois, for an amount in excess of $4,000. The easement covered a 25-foot-wide strip of land bordering the eastern edge of Route 45 and apparently extended from at least Devonshire Drive on the north to Windsor on the south. The easement was subject to an express condition subsequent providing for reversion to the grantor if the land was abandoned or ceased to be used as a public highway.

In 1979 and in 1980, the railroad deeded the beneficial interest in eight parcels of property fronting on the east side of Route 45, each approximately 75 feet wide, to plaintiff’s husband, Bill Evans, and John Frye (owners). All of the parcels were subject to the easement held by IDOT. Sometime after October 1, 1986, Route 45 was widened into a five-lane road and curbing was installed along its eastern edge. Except for the southernmost parcel, the widening project did not utilize any of the easement.

In 1982, as part of the process for obtaining a permit to give the owners access from their property to State highway Route 45, the owners sent IDOT copies of proposed plans to construct two driveways connecting two or more of the northernmost parcels with the highway. The site plans for the development of the property included the erection of a fence and the allocation of parking places within the easement area. On November . 23, 1982, IDOT informed the owners it planned to retain its 25-foot permanent easement for highway purposes and that the easement had to be kept free of encroachments. It required (1) elimination of the proposed fencing and parking within the easement, (2) construction of curbing along the entire eastern edge of the easement with catch basins to retain storm-water runoff on the site, and (3) drainage calculations. IDOT also requested submission of driveway specifications and revised site plans. The owners subsequently sent IDOT detailed specifications and dimensions for the proposed driveways, storm sewers, and catch basins, but did not submit a revised site plan or drainage calculations. On April 18, 1983, IDOT advised the owners that it still required drainage calculations and an approved site plan before it could approve highway access to Route 45.

In August 1983, the owners wrote to the Secretary of IDOT, claiming that IDOT’s rights to the easement had reverted to the owners because the easement had not been used for highway purposes since its grant in 1946. The owners further informed IDOT that they intended to exercise control over the reverted strip immediately. The State’s Attorney of Champaign County then informed the owners that the easement had not reverted and that allowance of any encroachment in the form of access to the highway would require compliance with the Code. In 1984, a meeting was held between the owners and representatives of IDOT during which IDOT again indicated that no use of the easement would be permitted other than for access to the highway.

In October 1986, the owners filed the complaint herein purporting to bring an action pursuant to section 4 — 211 of the Code. The owners requested an order granting them reasonable ingress to and egress from their property and also access to use the 25-foot easement area. At some point in the proceedings, the owners advised the court that Carolyn Evans had become the sole owner of the property. At the request of Carolyn Evans and the owners, and with the consent of all the parties, Carolyn Evans has been substituted as the sole party plaintiff.

In March 1992, the circuit court entered an order containing the following relevant findings of fact: (1) IDOT obtained an easement in 1946 over the west 25 feet of the eight parcels subsequently purchased by plaintiff’s predecessors in title, subject to an express condition subsequent and reverter; (2) when plaintiff’s husband and John Frye bought eight parcels of land for $26,500, they were all part of an unimproved ditch with a bottom 15 feet below the highway level, with both sides of the ditch sharply sloping to the center; (3) plaintiff’s husband and Frye expended over $50,000 tiling and filling the drainage ditch, which defendant IDOT knew of as early as 1982; (4) the plaintiff served notice upon the defendants regarding reverter of the 25-foot easement area; (5) the reverter was automatic on failure either to use the premises or to cease using the strip for highway purposes; (6) a dispute existed between plaintiff and defendant concerning IDOT’s denial of plaintiff’s use of the 25-foot easement area for parking and its request for a design that isolates and prevents any use of the easement except to cross it to reach the remainder of plaintiff’s property; (7) plaintiff had been denied the opportunity to develop her property because use of the 25-foot strip is critical to such development, and defendant refused to issue entrance permits unless the plaintiff agreed to design the entrances in such a manner that she will not make any use of the 25-foot strip except to cross it; (8) IDOT’s denial of access to plaintiff’s property and allowance of other property owners immediately north of the plaintiff’s property to use the same area “is not reasonable use, ingress and egress”; (9) defendants’ refusal to issue driveway permits unless their demands were met prevented reasonable use and improvement of the property in question; (10) denial of access to the property arose not only from IDOT’s demand for compliance with the conditions stated in its 1982 letter, but also “the ultimate construction of a curbing the entire length of plaintiff’s propertyf,] which prevents any access to the property”; and (11) IDOT’s denial of access to the property arose from its refusal to allow a reasonable access to all of plaintiff’s property. Relative to these findings, the court ordered defendants “to allow the plaintiff full enjoyment and use of her property, including the twenty-five (25) foot easement, without a curbing requirement.”

II. Analysis

IDOT contends that pursuant to section 1 of “An Act in relation to immunity for the State of Illinois” (Immunity Act) (Ill. Rev. Stat. 1985, ch. 127, par. 801), the circuit court lacked subject-matter jurisdiction over the instant cause of action, which plaintiff could bring only in the Court of Claims. With exceptions not relevant here, section 1 of the Immunity Act provides “the State of Illinois shall not be made a defendant or party in any court.” (Ill. Rev. Stat. 1985, ch. 127, par. 801.) Where the property of the State is involved, the State is directly and adversely affected, and the action will be held to be one against the State. (Sass v. Kramer (1978), 72 Ill. 2d 485, 491, 381 N.E.2d 975, 977.) In Sass, the supreme court held that the question of whether the State had abandoned an easement necessarily affected an interest in property conveyed to and vested in the State; accordingly, the action could not be maintained in any court except the Court of Claims (see Sass, 72 Ill. 2d at 492-93, 381 N.E.2d at 977-78; Ill. Rev. Stat. 1991, ch. 37, pars. 439.1 through 439.24—9). When a case involves the determination of ownership of property in which the State of Illinois claims an interest, the Immunity Act will bar its commencement in the circuit court. Marriott Corp. v. Department of Transportation (1989), 186 Ill. App. 3d 167, 170-72, 542 N.E.2d 163, 164-66 (the circuit court lacked authority to order IDOT to issue plaintiff a permanent permit allowing access to a State road).

Plaintiff does not contest the principle that suits against the State of Illinois affecting an interest in property must generally be brought in the Court of Claims, but points to sections 4 — 211 and 4 — 210 of the Code as an express instance in which the Illinois General Assembly permits the circuit court to review IDOT actions which adversely affect a property owner’s access to State highways. Section 4 — 211 of the Code reads as follows:

“Any person adversely affected by any rule, regulation, specification or decision of the Department issued pursuant to Sections 4 — 209, 4 — 210 or 4 — 211 or by any failure of the Department to act upon an application for a permit thereunder shall be entitled to judicial review or appeal under any statutory, equitable or common law, made [sic] of review or appeal. The action for review or appeal may be commenced in and the issues shall be tried de novo by the circuit court of the county in which the subject matter is located.” (Ill. Rev. Stat. 1985, ch. 121, par. 4-211.)

Section 4 — 210 of the Code provided:

“[Ejvery owner or occupant of property abutting upon any State highway shall have reasonable means of ingress from and egress to the State highway consistent with the use being made of such property and not inconsistent with public safety or with the proper construction and maintenance of the State highway for purposes of travel, drainage and other appropriate public use. The Department is authorized to adopt and to amend reasonable and necessary rules, regulations and specifications covering standard entrance or exit driveways *** abutting upon State highways including specifications for drainage and other structures appurtenant to such driveways.” (Ill. Rev. Stat. 1985, ch. 121, par. 4 — 210.)

Initially, we note that subject-matter jurisdiction, except in administrative review, is conferred upon the circuit court by our constitution and not by any statute or pleading. (In re M.M. (1993), 156 Ill. 2d 53, 63-64.) The 1970 Constitution provides: “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.” (Ill. Const. 1970, art. XIII, §4.) Pursuant to its constitutional authority, the legislature enacted the Immunity Act the substantive effect of which is to reinvigorate the concept of sovereign immunity. To the extent that sections 4 — 211 and 4 — 212 permit a litigant to proceed against the department, the legislature is not “giving subject-matter jurisdiction” to the circuit court. Instead, it is removing an impediment created by the Immunity Act to the natural assumption of jurisdiction over a justiciable matter by the circuit court which our constitution permits because it has abolished sovereign immunity. When the legislature so determines, however, the circuit’s power to act is, nevertheless, controlled by the statute and the court is governed by the rules of limited jurisdiction. Courts exercising jurisdiction over such matters must proceed within the strictures of the statute. M.M., 156 Ill. 2d at 69.

Section 4 — 211 of the Code authorized circuit court review of IDOT decisions or specifications issued under section 4 — 210 of the Code regarding a property owner’s means of ingress to and egress from property abutting a State highway. Section 4 — 211 of the Code is, therefore, a limited exception to the State’s immunity under section 1 of the Immunity Act, and the circuit court has jurisdiction to determine whether restrictions on a property owner’s access to a State highway are reasonable. See Devon Bank v. Department of Transportation (1981), 95 Ill. App. 3d 690, 695-97, 420 N.E.2d 605, 609-10.

In Ryan v. Rosenstone (1960), 20 Ill. 2d 79, 82, 169 N.E.2d 360, 362, the supreme court determined that a property owner whose land abuts a public street or highway has a right of access pursuant to section 4 — 210 of the Code, which right may be subject to reasonable regulation or restrictions. The reasonableness of the restriction or regulation is to be tested against the surrounding circumstances in light of the purpose to be accomplished by the restriction. Ryan, 20 Ill. 2d at 82-83, 169 N.E.2d at 362.

Despite the fact the circuit court has jurisdiction to resolve a claim brought under sections 4 — 210 and 4 — 211 of the Code, the relief which a court may properly grant is limited and cannot exceed that which is expressly circumscribed by the statute. (M.M., 156 Ill. 2d at 69-70.) Plaintiff claims that the circuit court determined the reasonableness of IDOT’s ingress and egress restrictions, including access to the easement, pursuant to sections 4 — 210 and 4 — 211 of the Code, rather than resolving any question of the State’s interest in property.

This argument is disingenuous. It is clear that the scope of the relief ordered (“full enjoyment and use” of the 25-foot easement) goes beyond the restrictions on ingress and egress reviewable under section 4 — 211 of the Code. Moreover, the allegations of the complaint focus not on any restrictions imposed on ingress or egress from the State highway but on IDOT’s (1) refusing to allow construction of commercial development within the easement, and (2) requiring that such area be isolated from the remainder of the property by the installation of curbing. Plaintiff’s contention that unreasonable restrictions were placed on the use of IDOT’s easement necessarily entails a determination affecting the State’s interest in the property rights it had purchased from the railroad. Even before this court on appeal, plaintiff continues to argue that the evidence was sufficient for the circuit court to determine that restrictions on plaintiff’s use of the 25-foot strip were unreasonable, that the State had abandoned its rights to the strip under the terms of the reverter in the original easement grant, and that there exists no highway or other purpose that would restrict plaintiff’s use of the easement. None of these issues was properly before the circuit court.

Because section 4 — 210 of the Code refers only to issues relating to access to State highways and not to use of contiguous property in which the State holds an interest, any evidence as to the State’s lack of use of its easement for highway purposes or treatment of other property owners burdened by similar easements was extraneous to the question of the reasonableness of IDOT’s specifications for construction of a driveway across the easement linking the remainder of plaintiff’s property with the highway. The circuit court was without jurisdiction to order defendants to allow plaintiff “full enjoyment and use” of the easement because this determination affected an interest in property conveyed to and vested in the State of Illinois.

Moreover, we note that section 4 — 211 of the Code has been amended to provide that any person adversely affected by a decision or by IDOT’s failure to act on an application for a permit under sections 4 — 209 to 4 — 211 of the Code (see Ill. Rev. Stat. 1991, ch. 121, pars. 4 — 209 through 4 — 211) is entitled to judicial review under the provisions of the Administrative Review Law (see Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101 et seq.). (Pub. Act 85 — 559, eff. September 18, 1987 (1987 Ill. Laws 2451, 2452).) While the prior de novo standard applied to the instant action, a specification, decision or failure to act by IDOT was clearly requisite to invoking circuit court review. Section 4 — 210 of the Code authorizes IDOT to adopt specifications for drainage appurtenant to highways. In November 1982, IDOT requested revised site plans and drainage calculations in connection with plaintiff’s predecessors’ application for permit. As far as the record shows, neither plaintiff’s predecessors in title nor plaintiff has provided these items. We hold section 4 — 211 is not intended to provide relief either to those who would use it as a vehicle to adjudicate the State’s land rights, or to those who would use it to bypass IDOT permit procedures and requirements. Plaintiff and her immediate predecessors in title have chosen, since November 1982, not to respond further to IDOT in the permit application process, but to stand adamant on their plans for use of the easement. This case therefore constitutes a land dispute and is not a proper case for resolution under section 4 — 211 of the Code.

Accordingly, the order of the circuit court is reversed.

Reversed.

KNECHT and LUND, JJ., concur.