author: MR. JUSTICE WARD

text:
    (No. 52938.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHNNY T. JONES, Appellee.

      Opinion filed January 20, 1981.

    Rehearing denied March 27, 1981.

      SIMON, J., took no part.
    Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Thomas J. Difanis, State’s Attorney, of Urbana (Melbourne A. Noel, Jr., and M. Anita Donath, Assistant Attorneys General, of Chicago, and Gary J. Anderson, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Thomas C. Hughes, Jr., of Champaign, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

A criminal information was filed on June 6, 1978, in the circuit court of Champaign County charging the defendant, Johnny T. Jones, with bribery (Ill. Rev. Stat. 1979, ch. 38, par. 33 — 1). The defendant was taken into custody, but on June 27 was released on bail. On that day he filed with the clerk of the court a demand for speedy trial. On December 6 the defendant filed a motion to dismiss the charge under section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1) on the ground that he had not been brought to trial within 160 days from the date of his demand, as required by section 103 — 5(b) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(b)). The circuit court granted the motion and dismissed the information, and its judgment was affirmed by the appellate court, one judge dissenting (78 Ill. App. 3d 717). We granted the State’s petition for leave to appeal under Rule 315 (73 Ill. 2d R. 315).

The principal question on this appeal is whether the filing with the clerk of the demand for trial without giving the prosecution notice of the demand was sufficient to invoke the rights given by sections 103 — 5(d) and 114 — 1. This court has not heretofore considered the question.

The act of bribery with which the defendant was charged allegedly took place on June 2, when after his arrest for drunken driving he offered the arresting officer $40 not to take him to the police station. Following the filing of the information, an arrest warrant issued, and the defendant surrendered in court on June 22. His case was continued until June 27, and he was remanded to the custody of the sheriff in lieu of bond.

On June 27 an appearance on the defendant’s behalf was filed by his retained counsel, who entered a plea of not guilty and filed a demand for trial by jury and for a preliminary hearing. In the hearing of June 27, at which the defendant and his counsel and the State’s Attorney appeared, the court set the motion for a preliminary hearing for July 13. The defendant made bond and was released.

On June 27 the defendant also filed his “demand for speedy trial” with the clerk of the court. This document stated that the defendant was “requesting of this Honorable Court a demand for a speedy trial, pursuant to Ill. Rev. Stat. ch. 38, sec. 103 — 5.” No request was made that trial be commenced on any specific date. Unlike the demand for a preliminary hearing, the demand for speedy trial contained no certificate of service upon the prosecutor, and the record fails to show that it was presented or referred to when the defendant and his counsel appeared in court that day.

The docket sheet shows that at the preliminary hearing held July 13, in which the court found that there was probable cause, the court set the case for a trial call on September 1. The court also entered a pretrial discovery order to be complied with by the State within 10 days and by the defendant within 20 days.

What took place in the proceeding between July 13 and December 6 is not wholly clear. The record shows that a motion by the defendant for discovery was filed and notice served on July 26, and that the requested discovery was provided by the State the same day. On August 2 the defendant filed notice of a motion for supplemental discovery. The docket sheet contains an entry that on October 20 the cause was again designated for trial, this time on November 6, and that the court ordered the defendant to file all pretrial motions by October 26. A subsequent entry of November 22, however, shows an order that the parties file all motions by November 27.

On the latter date the defendant filed and served a second motion for supplemental discovery. It was identical to the one which had been filed on August 2. The last day of the 160-day period established by section 103 — 5(b) was December 3, three days before the defendant filed his motion to dismiss. At the hearing on the motion, the assistant State’s Attorney in charge of the case stated that the State had not received a copy of" the demand for speedy trial, and had not previously been aware of its existence. The State’s Attorney, who had been present at the proceedings of June 27, testified that no motion for speedy trial, oral or written, had been made at that time. In response to a question by the court whether he had served a copy of the demand on the State’s Attorney, counsel for the defendant replied that he did not recall having done so. We therefore view the case, as did both the circuit and the appellate court, as one in which the defendant’s demand for speedy trial was not communicated to the prosecution.

Section 103 — 5(b) provides in part, “Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant ***.” (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(b).) Where a person is in custody the time within which he must be tried (120 days) is measured from an extrinsic event, the act of taking him into custody. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a).) In contrast, where the person is free on bail his statutory right comes into play only after he has invoked it by his affirmative act of demanding trial.

Although the statute contains no explicit requirement of notice, we consider that the term “demand” itself implies that the defendant’s stated desire to be tried within 160 days must be conveyed to those persons who are in a position to fulfill that desire. The defendant argues that his demand was addressed to the court rather than to the prosecutor. But the prosecutor has the function of preparing for and commencing a trial, and a failure to notify the prosecutor, rather than accelerating the date of trial, is more likely to have the opposite effect. Indeed, a failure to notify the State, unless it is inadvertent, casts doubt upon the sincerity of the demand or shows a design to circumvent the prosecutor.

In other decisions the appellate court has recognized that a demand must be communicated to the State. In People v. Rockett (1967), 85 Ill. App. 2d 24, 28, the court expressed the opinion that section 103 — 5 “requires some affirmative act on the part of the accused, either in form of a written or an oral demand for trial, as reflected in the record in order to invoke the 120-day period,” and, the court went on, “[s] uch demand must be communicated to the State, preferably by written notice, but certainly by a formal motion which is preserved in the record.” In People v. Snyder (1975), 32 Ill. App. 3d 1003, the appellate court held sufficient an oral demand made in the course of a hearing in the circuit court at which the assistant State’s Attorney was present. In People v. Arch (1975), 33 Ill. App. 3d 331, the defendant’s written motion demanding an early trial filed in the course of a preliminary hearing was held to be effective.

In People v. Hamilton (1978), 65 Ill. App. 3d 261, the defendant had filed a written demand for speedy trial in the clerk’s office. The State was not notified of the demand at that time, and only became aware of it at a later date when the court mentioned the demand during arraignment proceedings. The appellate court held that the filing of the demand with the clerk did not constitute a demand for trial under section 103 — 5(b).

The appellate court here declined to follow Hamilton because of “[t] he fundamental nature of defendant’s right to a speedy trial.” (78 Ill. App. 3d 717, 719.) There can be no question but that the right to a speedy trial is a fundamental one, guaranteed as it is under both the sixth amendment and the due process clause of the Federal Constitution. (Klopfer v. North Carolina (1967), 386 U.S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988.) It is also true that in some circumstances the Constitution may require dismissal of a charge even though no demand of any kind was made for a speedy trial. (Barker v. Wingo (1972), 407 U.S. 514, 528-30, 33 L. Ed. 2d 101, 115-16, 92 S. Ct. 2182, 2191-93.) Section 103 — 5(b) implements the constitutional right to a speedy trial, but the two are not coextensive. (People v. Richards (1980), 81 Ill. 2d 454, 459; People v. Fosdick (1967), 36 Ill. 2d 524, 528.) No constitutional claim is made in this case, and the question concerns only the extent of the defendant’s rights under the statute.

Under section 103 — 5(b), as we have noted, the right to a speedy trial is both measured and created by a demand on the part of the defendant. To permit a defendant to invoke his statutory right to a speedy trial without notifying the prosecution would allow him to exploit the possibility that the State will unwittingly fail to bring him to trial within the prescribed period. We cannot say from the record that such was the intent of the defendant here, but the decision of the appellate court would permit such a maneuver.

The appellate court also endorsed the circuit court’s conclusion that it was the duty of the prosecution to ascertain by periodic inspection of the file and the docket sheet whether a demand had been made, and that the State must therefore be viewed as having had constructive notice of the demand. We disagree. As the dissent observes, under the constructive-notice theory the prosecutor would be required to monitor the files and docket sheets in criminal cases on almost a continuous basis. In circuits having a heavy criminal docket, such as Cook County, the burden thus imposed would impede the administration of justice.

The State also contends that dismissal of the charge was improper under section 103 — 5(b) because the defendant’s failure to notify the State of his demand, and also his filing of a motion for supplemental discovery on November 27, 1978, occasioned delay. The ground on which we dispose of this case makes it unnecessary to consider that claim.

The defendant has filed a motion, which was taken with the case, to “strike and dismiss any and all statements made by the appellant in the appellant’s brief not supported by the record as filed in this court.” The defendant does not specify which statements are meant, and as our opinion is not based on any matter dehors the record the motion is denied.

For the reasons given the judgment of the appellate court affirming that of the circuit court is reversed, and the cause is remanded to the circuit court with directions to deny the defendant’s motion to dismiss.

Appellate court reversed; cause remanded, with directions.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 53351.
    THE PEOPLE ex rel. BERNARD CAREY, State’s Attorney, Petitioner, v. ANTHONY SCOTILLO, Judge, et al., Respondents.

      Opinion filed February 20, 1981.

      SIMON, J., took no part.

      Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr and Robert J. Kaiser, Jr., Assistant State’s Attorneys, of counsel), for the People.
    Lawrence Wolf Levin, of Chicago, for respondent Gabriel Rodriquez.
    Irwin L. Frazin & Associates, Ltd., of Chicago (Robert A. Fisher, of counsel), for respondent Armondo Corzo.
   MR. JUSTICE WARD

delivered the opinion of the court:

Respondents Gabriel Rodriquez and Armondo Corzo (referred to hereafter as the defendants) were indicted for several offenses in connection with the shooting of David Pozdoll and Isaac Munoz on May 22, 1979. After a trial in the circuit court of Cook County they were found guilty of aggravated battery, attempted murder, and armed violence as to each victim in violation of sections 12 — 4, 8 — 4, and 33A — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 12 — 4, 8 — 4, 33A — 2). On January 17, 1980, respondent Anthony Scotillo, the judge who presided at the trial, entered judgments of guilty against the defendants only on the charges of attempted murder. Defendant Rodriquez was sentenced to two concurrent terms of 18 months’ imprisonment; defendant Corzo was given two concurrent terms of 9 months’ imprisonment. The petitioner moved orally on March 17 that judgment and sentence also be entered against each defendant on the two charges of armed violence, or, in the alternative, that defendant Corzo be sentenced to a term of imprisonment of at least one year on his conviction for attempted murder. That motion was denied, and we allowed a motion by the petitioner under Rule 381(a) (73 Ill. 2d R. 381(a)), for leave to file a petition for a writ of mandamus, directing the respondent judge to enter the judgments and sentences sought by the petitioner’s motion.

The indictment and a transcript of the report of proceedings on March 24, 1980, when the petitioner’s motion was argued and denied, copies of which were attached as an exhibit to the petition, constitute the entire record filed in this court. The indictment is in 15 counts. Six of these charged the defendants jointly with the commission of aggravated battery, attempted murder, and armed violence upon Pozdoll. Six other counts charged them with the same offenses with respect to the other victim, Munoz. The three remaining counts were directed to Rodriquez alone, and charged that on the day after the shooting of Pozdoll and Munoz he committed certain offenses against Ramona Principato, apparently a potential witness at the trial. These latter charges are not involved in the present proceeding. The petition asserts that the shootings of Pozdoll and Munoz took place in a single criminal incident. That assertion is not supported by any matter in the record before us, but it is not denied by the defendants, and we will assume it to be correct for the purpose of our decision.

In order to understand the petitioner’s argument, a consideration of the sentences applicable to the various offenses involved is necessary. Aggravated battery is a Class 3 felony, and the penalty is a determinate sentence of not less than 2 and not more than 5 years (Ill. Rev. Stat. 1979, ch. 38, pars. 12-4(e), 1005-8-1). The offense of attempt is not classified under the Unified Code of Corrections as either a felony or a misdemeanor, and at the time the offenses involved here took place no minimum term of imprisonment was specified in section 8 — 4 of the Criminal Code of 1961, which defines the offense of attempt (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4, 1005 — 5—2). Section 8 — 4(c)(1) of the Criminal Code of 1961 (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 8 — 4(c)(1)) specified only the maximum sentence, providing, “[T] he sentence for attempt to commit murder shall not exceed the sentence for a Class X felony.” The penalty for a Class X felony was a determinate sentence of not less than 6 years and not more than 30 years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1.) The offense of armed violence, if the defendant is armed with a gun, is a Class X felony, and the sentence is again a determinate sentence of not less than 6 and not more than 30 years (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(3)).

The petitioner focuses upon the disparity between the sentences of 9 to 18 months which were given to the defendants and the minimum sentence of 6 years which would be required upon conviction of armed violence. The basis of the petitioner’s challenge is not that there was an abuse of discretion by the trial judge, but that he disregarded a statutory mandate. It is the petitioner’s contention that judgment and sentence should have been entered on the offense of armed violence, since the latter is a more serious offense than attempted murder, if seriousness is measured, as the petitioner says it must be, by a comparison between the minimum sentences which the statute imposes for the two offenses.

The count relating to the commission of armed violence against PozdoII charged that the defendants “while armed with a dangerous weapon, to wit: a firearm intentionally and knowingly without legal justification caused bodily harm to David Pozdoll by shooting him in the right cheek and left leg with said firearm, in violation of Chapter 38, section 12 — 4(b)(1)/33A—2 of the Illinois Revised Statutes 1977 as amended.” The count charging armed violence against Munoz is in the same words except for the differences in the name of the victim and the part of the body where he was shot.

As the trial court noted, the underlying felony on which this charge of armed violence was predicated was aggravated battery. Since the charge does not allege that the battery was committed with the intent to kill the victim, it does not charge attempted murder. (People v. Trinkle (1977), 68 Ill. 2d 198, 201; cf. People v. Harris (1978), 72 Ill. 2d 16, 27; People v. Jones (1979), 81 Ill. 2d 1, 8-9.) A judgment of conviction for armed violence predicated on an underlying felony of attempted murder would therefore be improper.

There are certain difficulties in the petitioner’s argument, but we need not consider them since there are other considerations which make issuance of a writ of mandamus improper. We have ascertained that on April 22 defendant Rodriquez filed a notice of appeal from his conviction of attempted murder. The trial record was subsequently filed in the appellate court, and on August 19 that court granted a motion by Rodriquez to stay further proceedings until the disposition of this mandamus action. The State’s motion for leave to file a petition for mandamus was filed with this court on May 6 and was allowed on May 29. The case was argued on November 12. Somewhat inexplicably neither the petitioner nor the defendants mentioned the pendency of the appeal in their briefs or on oral argument.

A writ of mandamus does not issue out of this court under Rule 381(a) (73 Ill. 2d R. 381(a)) as a matter of right, and an action for mandamus is heard only pursuant to the court’s allowance, in the exercise of its discretion, of leave to file a petition for the writ. Where matters that might lead the court to deny leave to file do not come to the court’s attention until after the motion has been allowed, they may properly be considered in determining whether the petition will be granted.

Where the writ would compel the performance of a judicial act by a lower court in pending litigation this court must necessarily consider not only whether the petitioner has shown a clear violation by the judge of a duty imposed by law but also whether issuance of the writ will be effective. We find that the present petition does not meet those requirements.

We note initially that with the filing of the notice of appeal the circuit court lost all jurisdiction to proceed further in the case. (People ex rel. Carey v. Collins (1980), 81 Ill. 2d 118, 122; Brehm v. Piotrowski (1951), 409 Ill. 87; American Smelting & Refining Co. v. City of Chicago (1951), 409 Ill. 99.) While this court, as it did in Collins, may direct the trial court to vacate an order which it lacked jurisdiction to enter, it is the converse situation which is presented here, for what the petitioner asks is that the trial court be directed to enter a new judgment of conviction.

Moreover, we must necessarily consider the effect which issuance of the writ will have upon the proceedings in the appellate court. Since the judgment from which the present appeal to that court was taken will have been superseded by a new judgment entered pursuant to our mandate, the appellate court may conclude that the appeal must be dismissed as having become moot. If the appellate court permits the present appeal to proceed, on the other hand, we must anticipate the possibility that the court will reach a decision which will render useless the action taken by the trial court pursuant to the writ.

Thus, for example, defendant Rodriquez might prevail upon a claim that he was not proved guilty beyond a reasonable doubt, with the result that his conviction will fall, carrying with it any sentence. It is far from clear, therefore, that the relief sought by the petitioner is necessary or appropriate at this time. At the same time, issuance of the writ may further delay the disposition of Rodriquez’ appeal, already deferred by the allowance of the State’s motion for leave to file this petition.

The petition also fails to conform to the requirement of Rule 381(a) that it “contain or have attached to it the lower court records *** that will fully present the issues of law.” (73 Ill. 2d R. 381(a).) Since the charge of attempted murder and that of armed violence relate to the same criminal incident, a judgment of conviction could be entered on no more than one of these charges. (People v. King (1977), 66 Ill. 2d 551.) According to the petition, judgment on the attempted murder charge was entered on January 17, while it was not until March 17 that the petitioner moved to enter judgment on the armed violence charge. Under the rule in King the trial court could not have granted that motion without also entering an order vacating the judgment of January 17. The petition for mandamus does not ask for such relief, and the record of proceedings for March 24 does not show that the petitioner requested the trial judge at that time to take such action.

The record before us contains no report of proceedings for January 17 or March 17, and no copies of any judgments or orders entered by the trial judge. It is not possible, therefore, to determine whether the trial judge was ever requested to vacate his order of January 17, or, if he was, whether he denied the request for some other reason which would be deemed sufficient.

For the reasons given above, we conclude that there is no basis for issuing the writ of mandamus, and the petition is accordingly denied.

Writ denied.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.


text:
    (No. 52858.
    POLE REALTY COMPANY, Appellant, v. WILLIE SORRELLS, Appellee

      Opinion filed January 20, 1981.

    Rehearing denied March 27, 1981.

      SIMON, J., took no part.
    Jay Goran, of Chicago, for appellant.
    Alan Freedman, of Freedman & Bornstein, and Jeffrey L. Tarnen, Eric Gershenson, and William P. Wilen, of Chicago, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

In September of 1972, Willie Sorrells, the defendant, and her husband, entered into a leasing agreement with the Pole Realty Company (Pole), the plaintiff, whereby they agreed to rent a single-family house in Chicago for one year, at $147 per month. Thereafter, the lease was renewed on a year-to-year basis, using a form letter drafted by Pole which would set out the new rate of rent for the upcoming year. On May 17, 1978, Pole filed suit in the circuit court of Cook County to recover possession under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1977, ch. 57, par. 5), alleging the nonpayment of rent for the preceding month and the failure of the defendant to heat the premises, which Pole stated the tenant was required to do under the terms of the lease. The plaintiff alleged that the gas utility company had discontinued supplying gas because the defendant was $1,655.60 in arrears in her payment for services.

The defendant’s answer pleaded two affirmative defenses. The first alleged that she was never properly served with a notice of nonpayment of rent required under section 5 of “An Act to revise the law in relation to landlord and tenant” (Ill. Rev. Stat. 1977, ch. 80, par. 5). The second defense was that between “January of 1976, to and including the present date said [residential property] has been at various times in various degrees, in substantial violation of the Municipal Code of the City of Chicago ***”; and that as a result of these violations, the plaintiff had breached “the implied warranty of habitability between landlord and tenant.” The defendant also alleged that the deteriorated condition of the residence forced her to obtain the monthly services of an exterminator. Too, she claimed that, in addition to other violations, defects in windows, doors and the roof permitted extensive heat losses, which increased substantially her gas service expense.

The defendant also filed a counterclaim alleging that, as a result of the plaintiff’s breach of the implied warranty of habitability, she suffered physical and emotional injury in the amount of $1,000. She also requested payment of costs and attorney fees and a mandatory injunction ordering compliance with the Chicago housing code.

The circuit court, on July 11, 1978, denied the plaintiff’s motion to strike the defendant’s first affirmative defense but granted its motion to strike her second defense on the ground “that as a matter of law the implied warranty of habitability does not apply to the leasing of a single family residence.” Consistent with this, the court also struck the defendant’s counterclaim. The plaintiff’s motion for costs and attorney fees, requested under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 41) for what it claimed were “false and fraudulent” pleadings by the defendant in alleging that it refused to make any repairs to the building, was denied. Motions filed later by the parties, requesting the court to reconsider these holdings, were also denied. On August 14, the circuit court granted the plaintiff’s motion for summary judgment and awarded possession to it. (Apparently the tenant did not successfully maintain the defense regarding notice.)

The defendant appealed to the appellate court, contending that the court erred in striking her second affirmative defense and counterclaim based on its holding that the implied warranty of habitability did not extend to single-family dwellings leased as rental property. Pole cross-appealed from the order denying its motion for reconsideration on its claim for court costs and attorney fees. The defendant was ordered by the appellate court to post a $1,000 bond and, during the pendency of the appeal, to make rental payments to the plaintiff of $157 per month commencing December 5, 1978, and for every month thereafter as long as the defendant occupied the premises.

Based on this court’s holding in Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, the appellate court reversed the judgment and held that an implied warranty of habitability did extend here to single-family residences and that this warranty could be “fulfilled by substantial compliance with the pertinent provisions of the local building code.” (78 Ill. App. 3d 361, 366.) The court accordingly reinstated the defendant’s second affirmative defense and counterclaim. It reversed, too, the circuit court’s granting of summary judgment for the plaintiff, since it concluded that a material issue of fact was now before the court as to whether the plaintiff had in fact breached the implied warranty of habitability. The appellate court affirmed the circuit court’s denial of Pole’s request for payment of costs and attorney fees. We granted the plaintiffs petition for leave to appeal. 73 Ill. 2d R. 315.

The issues presented to us are whether a warranty of habitability may be implied in the leasing of the single-family residence and whether, under section 41 of the Civil Practice Act, the plaintiff was entitled to recover court costs and attorney fees for what it contends were false and fraudulent pleadings filed by the defendant. Ill. Rev. Stat. 1977, ch. 110, par. 41.

In Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, it was held that warranties of habitability were implied in lease agreements entered into by tenants residing in multiple-unit dwellings. Spring held that this warranty was “fulfilled by substantial compliance with the pertinent provisions of the Chicago building code.” (50 Ill. 2d 351, 366.) Pole contends that the holding in Spring was specifically limited to multi-unit rental properties and does not support the defendant’s argument that there are implied warranties of habitability for leases of single-family dwellings. Pole argues that there are significant differences between single-family and multi-unit rental properties, in that under leases of single-family residential property the landlord does not provide janitorial services and, further, that the tenant is in control of the entire premises. Under the lease here, the tenant is also required to provide the heat and pay for all utility services.

There are, of course, factual differences between this case and Spring, but the differences are not material to the issue here. Given the reasoning articulated at length in Spring, a warranty of habitability is to be implied in leases of single-family dwellings as well as in leases of multiple-unit dwellings, and a breach of the warranty may be pleaded when the lessor in a forcible entry and detainer suit claims rent is due. A tenant will legitimately have the same expectations that a single-family dwelling will be fit to live in as he would have in the case of a structure with multiple dwelling units. Our conclusion that warranties of habitability are to be implied in leases involving single - family dwellings is supported by decisions in other jurisdictions. (See, e.g., Teller v. McCoy (W. Va. 1978), 253 S.E.2d 114; Fair v. Negley (1978), 257 Pa. Super. 50, 390 A.2d 240; Foisy v. Wyman (1973), 83 Wash. 2d 22, 515 P.2d 160; Mease v. Fox (Iowa 1972), 200 N.W.2d 791; Lemle v. Breeden (1969), 51 Hawaii 426, 462 P.2d 470.) The plaintiff has not cited a single contrary holding. See also Cunningham, The New Implied and Statutory Warranties of Habitability in Residential Leases: From Contract to Status, 16 Urban L. Ann. 3 (1979); Eaton, The Implied Warranty of Habitability in Illinois: Prairie State Lags Behind Other Industrial States in Landlord-Tenant Law, 1979 So. Ill. U.L.J. Rev. 183; Comment, Landlord and Tenant — Implied Warranty of Habitability— Demise of the Traditional Doctrine of Caveat Emptor, 20 DePaul L. Rev. 955 (1971); Restatement (Second) of Property secs. 5.1 through 5.5 (1977); Annot., 40 A.L.R.3d 646 (1971).

The plaintiff unpersuasively argues that the defendant’s affirmative defense of breach of an implied warranty is merely a device to permit her to live in the plaintiff’s property without an obligation to pay rent. Clearly, a tenant’s liability for rent continues as long as the tenant remains in possession of the leased premises. (Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 359.) Too, while on superficial examination there may seem to be some conceptual inconsistency between a tenant’s remaining in possession and at the same time claiming a breach of a warranty of habitability, it is evident that the simple fact that a house can be inhabited does not necessarily mean that the warranty of habitability has been satisfied. (Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 40-42.) We, of course, do not suggest that in fact there has been a breach of a warranty of habitability. At the hearing to be conducted on remand, the plaintiff will be free to rebut the claim that there has been a breach and may assert that the conditions complained of are due to waste or misuse of the premises by the tenant.

The plaintiff, however, is correct in its contention that the trial court erred in denying its motion to recover expenses and attorney fees for what it claims were fraudulent allegations by the defendant in her counterclaim that the plaintiff had refused to make timely repairs. To support its motion, Pole submitted an itemized account of all repairs made upon the premises since the defendant’s occupancy. The appellate court erroneously affirmed the trial court’s denial of the motion, stating that a motion under section 41 “does not apply where a party seeking costs and fees has prevailed on a motion to strike or dismiss since the allegations [upon which the section 41 motion is based] have not been found to be untrue.” 78 Ill. App. 3d 361, 367.

Section 41 of the Civil Practice Act in part provides:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorneys’ fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.” (Ill. Rev. Stat. 1979, ch. 110, par. 41.)

The purpose of this section was described in Ready v. Ready (1961), 33 Ill. App. 2d 145, 161: “Section 41 is an attempt of the legislature to penalize the litigant who pleads frivolous or false matters or brings a suit without any basis in law and thereby puts the burden upon his opponent to expend money for an attorney to make a defense against an untenable suit.”

The defendant is correct in stating that deciding whether to allow a motion for expenses under section 41 is within the sound discretion of the trial court and that the granting or denial of penalties will not be overturned unless it can be shown that the court abused its discretion. (Brandenberry Park East Apartments v. Zale (1978), 63 Ill. App. 3d 253.) There is, however, nothing in the record to indicate that there was a hearing on whether to permit penalties under section 41 prior to the trial court’s denial of the plaintiff’s motion. We hold that Pole was entitled to a hearing prior to the court’s disposition of its motion. (See In re Application of County Collector (1978), 66 Ill. App. 3d 437; Morton v. Environmental Land Systems, Ltd. (1977), 55 Ill. App. 3d 369.) Though on a motion to strike or dismiss the allegations made by the adverse party will be regarded as being true for purposes of the motion, that will not prevent a court from later allowing penalties if in fact it is determined that the allegations were “made without reasonable cause and [are] found to be untrue ***.” Ill. Rev. Stat. 1979, ch. 110, par. 41.

For the reasons given, the judgment of the appellate court is affirmed insofar as it reversed the circuit court’s granting of summary judgment on the breach-of-warranty defense and the related counterclaim. The appellate court judgment is reversed insofar as it affirmed the circuit court’s denial, without a hearing, of the plaintiff’s motion for expenses. The cause is remanded to the circuit court of Cook County for further proceedings consistent with this opinion.

Affirmed in part and reversed in part and remanded.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.


author: MR. JUSTICE MORAN

text:
    (No. 53153.
    JOHN D. WILSON, Appellee, v. DAVID J. CLARK, Appellant.

      Opinion filed February 3, 1981.

    Modified on denial of rehearing March 27, 1981.

      Gates W. Clancy, of Geneva (James S. Mills, of counsel), for appellant.
    Frank C. Stanley, of Chicago, for appellee.
    Philip H. Corboy and Associates, P.C., of Chicago (Philip H. Corboy, Robert A. Clifford, and Robert J. Glenn, of counsel), for amicus curiae Illinois Trial Lawyers Association.
   MR. JUSTICE MORAN

delivered the opinion of the court:

In the circuit court of Kane County, plaintiff, John Wilson, brought an action against defendant, Dr. David Clark, following the alleged negligent medical treatment of the plaintiff which resulted in the amputation of his right leg below the knee. Following a jury trial, a verdict was returned for the defendant. On appeal, the appellate court was presented 10 issues for review. The court considered three of these issues and reversed the trial court. (80 Ill. App. 3d 194.) It held that no foundation was established for the admission of hospital records into evidence and that a hypothetical question based upon these records should not have been allowed. The appellate court also found that the trial court had allowed incompetent and prejudicial testimony to be admitted on the issue of contributory negligence and that such admission constituted reversible error.

Although plaintiff has again raised 10 issues, we find it necessary to address only those where objections were specifically raised in the post-trial motion.

Plaintiff argues that his claim that the trial court erroneously permitted admission of incompetent and prejudicial testimony on the issue of contributory negligence was raised with sufficient specificity in his post-trial motion. The two allegations of this error, as set forth in the post-trial motion, stated:

“21. The Court was in error in allowing witnesses to answer questions on irrelevant, immaterial and prejudicial matters.
22. The Court was in error in admitting improper, irrelevant, immaterial and/or prejudicial evidence.”

The appellate court indicated that because plaintiff objected to the error during trial, he did not have to specifically raise the same error in the post-trial motion.

Prevailing statutory and case authority in Illinois is contrary to the appellate court’s position. (Ill. Rev. Stat. 1977, ch. 110, par. 68.1(2); 73 Ill. 2d R. 366(b)(2)(iii); Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344; Bank of Marion v. Robert “Chick” Fritz, Inc. (1974), 57 Ill. 2d 120, 127; Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 114.) These authorities hold that post-trial motions must contain specific allegations of error relied on for relief. The allegations here do not set forth a succinct statement of the factual basis upon which plaintiff’s conclusions are drawn (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 350), and the claimed error has not been properly preserved for review.

Plaintiff next contends he should have been awarded a judgment notwithstanding the verdict. According to the often-cited Pedrick standard, a party is entitled to a judgment n.o.v. “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) Plaintiff presented evidence that defendant failed to treat a “known infecting organism.” He maintains that this, in and of itself, requires a judgment in his favor. On the other hand, the evidence reveals several points supporting defendant’s contention that his treatment was not improper. Defendant testified that he was attempting to stop the more aggressive or virulent bacteria such as staphylococci. The defendant also testified that pseudomonas is always present in plaintiff’s skin and is an organism that is easily killed off by a healthy blood supply. In addition, the defendant found support in plaintiff’s own expert witness, Dr. Robbins, who amputated plaintiff’s leg. Dr. Robbins testified that the infection could have been arrested and cured if plaintiff had checked into the hospital on October 1, 1974. Thus, this testimony raises a question as to the proximate cause of plaintiff’s injury. Further, Dr. Nyman’s testimony that defendant’s treatment met the standard in effect in Kane County could serve as a proper basis for a jury’s verdict in favor of the defendant. Based upon these facts, the trial court did not err in failing to enter a judgment n. o. v.

We find that the trial court was not in error by instructing the jury on the issue of contributory negligence. The record reveals several actions by plaintiff that the jury could have concluded contributed to the nonunion and the ultimate amputation. Therefore, on the evidence admitted, the jury was properly instructed as to plaintiff’s contributory negligence.

Plaintiff claims that the court committed prejudicial error in limiting his redirect examination of Dr. Robbins. However, we find the record shows that the plaintiff was allowed to subsequently bring out on redirect examination the matters about which he objects.

Plaintiff also alleges that the jury should have been given an instruction on wilful and wanton conduct. He asserts that failure to treat the pseudomonas after the first culture was negligence, but failure to treat it after several examinations constituted wilful and wanton conduct. We disagree. As already indicated, the testimony of defendant, of Dr. Nyman, and of plaintiff’s expert, Dr. Robbins, indicated that defendant’s treatment may have been proper. This court has defined a wilful and wanton act as one that intentionally causes injury or one committed under circumstances exhibiting a reckless disregard for the safety of others. (E.g., Hocking v. Rehnquist (1969), 44 Ill. 2d 196, 201.) Inasmuch as the evidence in this case presents the possibility that defendant’s treatment may have been proper, there is nothing in the record to indicate that defendant intentionally caused plaintiff’s injury, or that he acted in reckless disregard for plaintiff’s safety. Consequently, it cannot be said that the trial court erred in failing to give the jury an instruction on wilful and wanton conduct.

We next consider plaintiff’s argument that the trial court erred in allowing his hospital records to be admitted into evidence without proper foundation, and in permitting a hypothetical question based on those records.

Plaintiff argues that two procedural steps are necessary to enter hospital records into evidence. The first step is for the custodian of the records to verify that the records were kept in the ordinary course of business and are in the same condition as when the entries were originally made. Plaintiff admits that he waived this requirement.

The second step is verification of the records by the testimony of the person who made the entries. Plaintiff did not waive this requirement. Over plaintiff’s objection, the trial court, nevertheless, permitted defense counsel to place in evidence plaintiff’s hospital records, which contained 100 pages of technical medical entries, including history sheets, temperature charts, medication charts, laboratory reports, administration sheets, X-ray reports, progress reports, pathology reports, post-anesthesia reports, physician orders and nurses’ notes.

After the hospital records were placed in evidence, defense counsel was permitted to tell defendant’s expert witness, Dr. Nyman, to assume the facts stated in the hospital records to be true and to further assume additional facts regarding plaintiff’s treatment. Upon this foundation, defense counsel was then allowed to ask Dr. Nyman to give his opinion of whether the “hypothetical” Dr. Clark exercised the degree of knowledge and expertise expected of a board-certified orthopedic surgeon in Kane County.

Supreme Court Rule 236(a) (73 Ill. 2d R. 236(a)) provides that a business record shall be admitted into evidence without introducing all circumstances of its making. Under Rule 236(b), hospital records and police accident reports are excepted from subsection (a). Consequently, a proper foundation is needed before hospital records will be admitted into evidence.

The hospital records in this case were admitted into evidence without a proper foundation. However, we believe it is unnecessary for hospital records to be admitted in order to elicit an expert medical opinion. This court, in People v. Ward (1975), 61 Ill. 2d 559, 566-67, held that medical records may be used by an expert witness in forming an opinion as to an accused’s sanity even though the reports are not admitted into evidence. Although Ward involved a treating doctor giving an opinion, we believe that Federal Rule of Evidence 703, upon whose rationale the case relied, makes no distinction between the opinions of treating and non treating doctors. The rule states:

“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible "in evidence.” Fed. R. Evid. 703.

Both Federal and State courts have interpreted Federal Rule 703 to allow opinions based on facts not in evidence. (United States v. Genser (3d Cir. 1978), 582 F.2d 292, 298; Bryan v. John Bean Division of FMC Corp. (5th Cir. 1978), 566 F.2d 541, 545; United States v. Sims (9th Cir. 1975), 514 F.2d 147, 149; State v. Pendry (W. Va. 1976), 227 S.E.2d 210, 215.) None of these cases makes a distinction between treating and nontreating experts. According to these cases, the key element in applying Federal Rule 703 is whether the information upon which the expert bases his opinion is of a type that is reliable.

In addition, the advisory committee’s note to Federal Rule 703 makes it clear that the rule applies to expert opinions based on firsthand observation, hypothetical questions, or presentation of data outside the court. The note provides:

“Facts or data upon which expert opinions are based may, under the rule, be derived from three possible sources. The first is the firsthand observation of the witness, with opinions based thereon traditionally allowed. A treating physician affords an example. *** The second source, presentation at the trial, also reflects existing practice. The technique may be the familiar hypothetical question or having the expert attend the trial and hear the testimony establishing the facts. *** The third source contemplated by the rule consists of presentation of data to the expert outside of court and other than by his own perception. ***” Fed. R. Evid. 703, Advisory Committee Note.

According to the note, allowing expert opinions based on facts not in evidence dispenses with “the expenditure of substantial time in producing and examining various authenticating witnesses. *** [The physician’s] validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.” Fed. R. Evid. 703, Advisory Committee Note. See also McCormick, Evidence sec. 15, at 36 (2d ed. 1972); Weinstein, Evidence par. 703[02] (1978).

Generally it is extremely time consuming to call into court every person who made an entry in the hospital records. We hold that, in the future, as later stated, due to the high degree of reliability of hospital records, an expert may give his response to a hypothetical question based on facts contained in those records, even if the hospital records themselves are not in evidence.

Further, in following the modem trend under Federal Rule 705, an expert may give an opinion without disclosing the facts underlying that opinion. The rule states:

“The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.” Fed. R. Evid. 705.

Under Rule 705 the burden is placed upon the adverse party during cross-examination to elicit the facts underlying the expert opinion. (Bryan v. John Bean Division of FMC Corp. (5th Cir. 1978), 566 F.2d 541, 545.) The advisory committee’s note to Rule 705 allows an expert opinion without disclosure of underlying facts whether the opinion is based on firsthand or secondhand information. In light of Illinois’ extensive pretrial discovery procedures, this does not place an undue burden on the cross-examining party.

This court’s following of Federal Rules 703 and 705 comports with the modern trend liberalizing certain trial procedures. Eighteen States (Alaska, Arizona, Arkansas, Colorado, Delaware, Florida, Maine, Minnesota, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, South Dakota, Washington, Wisconsin, and Wyoming) have adopted Federal Rule 703 verbatim, or with minor changes. California has adopted a similar provision. Seventeen States (Alaska, Arizona, Arkansas, Colorado, Florida, Main, Michigan, Minnesota, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Washington, Wisconsin, and Wyoming) have adopted Federal Rule 705 verbatim, or with minor changes. In addition, California, Kansas and New Jersey have adopted similar provisions. Adoption of these two rules eliminates the time-consuming process of posing long hypothetical questions that afford an opportunity to sum up or reiterate the evidence in the middle of a case.

Although we hold that the trial procedures embodied in Federal Rules 703 and 705 should be followed, we believe it would be unfair to hold them applicable to the plaintiff in the instant case. Under Supreme Court Rule 236(b), the trial court erred in allowing the hospital records in evidence without a proper foundation. Under the law in effect at the time of trial, plaintiff had no notice that Dr. Nyman’s (a nontreating expert’s) opinion in response to a hypothetical question could be based on records not in evidence. Plaintiff’s conduct of objecting to the admission of the hospital records, rather than cross-examining defendant’s expert as to the facts utilized in forming his opinion, was reasonable. Plaintiff did not have to risk waiving his sound objection to the records, or expose the jury to information in the records he hoped to exclude, by cross-examining defendant’s expert. In the context of this case, we hold that allowance of a hypothetical question based on hospital records improperly admitted into evidence constituted reversible error.

In conclusion, we adopt Federal Rules of Evidence 703 and 705, but because this opinion represents a change in Illinois law, we hold that, except as to the parties herein, to which this change shall apply in the retrial, the law of this case shall apply only to cases in which the initial complaints are filed on and after the date of this opinion, or in which trial commences on or after September 1, 1981. Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, 46; Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 359; Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 26-27.

For the above-stated reasons, the decision of the appellate court is affirmed and the cause is remanded to the trial court for a new trial.

Affirmed and remanded.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 53189.
    (No. 53286.
    RUSSELL G. SCHLENZ et al., Appellees, v. JOHN W. CASTLE, Director of Local Government Affairs, et al. (Robert Jasper, Supervisor of Assessments, et al., Appellants). — THE COUNTY OF SHELBY, Appellant, v. THE PROPERTY TAX APPEAL BOARD, Appellee.

      Opinion filed February 20, 1981.

    Rehearing denied March 27, 1981.

      Simon, J., took no part.
    Dennis P. Ryan, State’s Attorney, of Waukegan (Marc P. Seidler, Robert J. Masini and David Weidenfeld, Assistant State’s Attorneys, of counsel), for appellants.

      Paul E. Hamer, of Northbrook, for appellees.
    Jack L. Uretsky, of Chicago, for the amici curiae from Du Page County.
    Robert S. Cushman and Thomas J. McNulty, of Keck, Mahin & Cate, of Chicago, for amicus curiae Commonwealth Edison Company.
    E. C. Eberspacher, State’s Attorney, of Shelbyville, for appellant.
    William J. Scott, Attorney General, of Springfield (Gary D. Kuhar, Assistant Attorney General, of counsel), for appellee.
    Jack L. Uretsky, of Chicago, for the amici curiae from Du Page County.
    Robert S. Cushman and Thomas J. McNulty, of Keck, Mahin & Cate, of Chicago, for amicus curiae Commonwealth Edison Company.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

These consolidated cases present the question of the validity of section 318.1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 799.1). In cause No. 53189 plaintiffs filed an application for leave to appeal from the order of the circuit court of Lake County entered pursuant to Rule 308(a) (73 Ill. 2d R. 308(a)). The appellate court allowed leave to appeal, reversed the order in part, and affirmed it in part (80 Ill. App. 3d 1131), and we allowed plaintiffs’ petition for leave to appeal. In cause No. 53286 the defendant Property Tax Appeal Board appealed from the judgment of the circuit court of Shelby County entered in the action brought by the County of Shelby for administrative review of the Property Tax Appeal Board’s decision holding certain assessments invalid. The appellate court reversed (81 Ill. App. 3d 327), and we allowed the county’s petition for leave to appeal. The causes were ordered consolidated for argument and opinion.

Cause No. 53189 is another in a series of actions involving the alleged failure of the appropriate officials to equalize real property assessments in this State. See, e.g., Hamer v. Kirk (1978), 57 Ill. App. 3d 335; Hamer v. Kirk (1976), 65 Ill. 2d 211; Hamer v. Kirk (1976), 64 Ill. 2d 434; Hamer v. Lehnhausen (1975), 60 Ill. 2d 400; Hamer v. Mahin (1973), 13 Ill. App. 3d 51; Hamer v. Mahin (1970), 47 Ill. 2d 252; People ex rel. Hamer v. Jones (1968), 39 Ill. 2d 360.

In their two-count first amended complaint filed in the circuit court of Lake County, plaintiffs Russell G. Schlenz and Nancy A. Schlenz named as defendants the Director of the Department of Local Government Affairs, the supervisor of assessments of Lake County, the Lake County board of review and certain Lake County township assessors. In count I plaintiffs, purporting to act as representatives of a class, sought, inter alia, an order declaring that a specified procedure utilizing “sales ratio studies” for assessment and equalization of realty be made applicable statewide for 1977 and subsequent tax years. Plaintiffs also sought an order declaring that the defendants must comply with applicable provisions of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 482 et seq.) for 1977 and subsequent tax years. In count II plaintiffs sought injunctive relief to enforce the declarations prayed in count I of the complaint.

A “Supplemental Complaint” was filed “attacking the method of distributing state grants-in-aid” (see Hamer v. Dixon (1978), 61 Ill. App. 3d 30), and the first amended complaint was further amended seeking to challenge the tax-exempt status of certain property in Lake County.

Citing Andrews v. Foxworthy (1978), 71 Ill. 2d 13, plaintiffs filed a motion for partial summary judgment alleging that “there is no genuine issue as to any material fact relative to the failure of the defendants *** to publish the real estate assessment lists for the 1977 tax year in Lake County until after December 15, 1977, except in Shields Township.” Plaintiffs also moved for a determination of their class as consisting of “all persons or entities owning improved real property used for single family residential purposes subject to taxation in the State of Illinois for the 1977 tax year and subsequent tax years.” Defendants filed a motion to deny, and an “objection to the motion” for determination of the class. The circuit court denied plaintiffs’ motion for partial summary judgment and allowed defendants’ motion and objection opposing the class certification. Pursuant to Supreme Court Rule 308(a) (73 Ill. 2d R. 308(a)) the circuit court certified the issues of the propriety of a class action and the constitutionality of the statute.

The appellate court affirmed that portion of the order which denied class certification, held that section 318.1 was unconstitutional as an attempt to validate a void tax and as violative of the principle of the separation of powers (see Ill. Const. 1970, art. II, sec. 1), and remanded the cause for a determination of the existence of a subclass. 80 Ill. App. 3d 1131, 1133-35; see Ill. Rev. Stat. 1979, ch. 110, par. 57.3(b).

In cause No. 53286, the record shows that appropriate officials in Shelby County began a complete reassessment of real estate for tax purposes for the 1976 nonquadrennial tax year. Although the statute provided that it must be published by July 10, 1976, the supervisor of assessments did not publish the list of changes of assessment until December 7, 1976. In addition to the publication, individual notices of assessment changes were mailed. Thereafter, over 3,500 complaints were filed by taxpayers with the Shelby County board of review challenging the increased assessments. After the board of review entered its decisions in the cases, many of the taxpayers appealed to the Property Tax Appeal Board (see Ill. Rev. Stat. 1975, ch. 120, par. 592.1), which, after hearing, entered its order holding the assessments invalid. On administrative review the circuit court reversed the findings of the Board, noting in part that section 318.1 was “a validating act making legal and effective all assessments *** irrespective of a failure to make a timely publication.” On appeal, the appellate court reversed, finding “that the purporting validating statute at issue here likewise seeks to overrule retroactively the decision of the Supreme Court in Andrews’’ and that “Once the court had explicated the mandatory nature of timely publication in Andrews, the explication became, in effect, a part of the statute until the General Assembly changed it.” County of Shelby v. Illinois Property Tax Appeal Board (1980), 81 Ill. App. 3d 327, 329-30; see Roth v. Yackley (1979), 77 Ill. 2d 423.

We consider first the question whether in .cause No. 53189 the appellate court erred in affirming the circuit court’s denial of certification of a class. The plaintiffs contend that because of the failure to equalize property according to law “the [Director of Local Government Affairs] had to place a higher equalization factor on [Lake County] in order to bring the aggregate assessments up to a statutory level.” As a result, they argue, the allegations concerning inter-county equalization were sufficient to “maintain the action as a class action on a state-wide basis.” Furthermore, plaintiffs contend that this case is not a “friendly or collusive suit,” that they do not “have interests which are antagonistic to the remainder of the class,” and that even assuming so, “the problem can be resolved by the creation of sub-classes with respect to a particular issue.” In response, it is contended by the defendants supervisor of assessments and board of review that, since this case involves a “total inability” to proceed as a class action, the appellate court’s order of remandment “appears to serve no purpose.”

Section 57.2 of the Civil Practice Act provides, in part, that a class action may be maintained if the court finds that there are questions of law or fact common to the class which predominate over those affecting only individual members, that the representative parties will fairly and adequately protect the interest of the class, and that the class action is an appropriate method for the fair and efficient adjudication of the controversy. (Ill. Rev. Stat. 1979, ch. 110, par. 57.2.) This court has held that the question whether to certify a purported class is a matter within the sound discretion of the circuit court, and will be reversed only upon a showing of a clear abuse of discretion or the application of impermissible legal criteria. McCabe v. Burgess (1979), 75 Ill. 2d 457, 464; see also Califano v. Yamasaki (1979), 442 U.S. 682, 702-03, 61 L. Ed. 2d 176, 193, 99 S. Ct. 2545, 2558.

In denying class certification, the circuit court found that except for the fact that the alleged class was numerous the requirements of section 57.2 were lacking. The court noted in ruling on the question whether the plaintiffs were adequate class representatives that plaintiff Nancy Schlenz had at one time been Mr. Hamer’s (plaintiffs’ counsel) secretary; “that she has not read the pleadings filed in this case”; “that also she has very little knowledge about the tax assessment and collection procedures in the State of Illinois”; and that “it’s apparent that the real party in interest, the real instigator of the lawsuit, is Mr. Hamer, and that the naming of Mr. and Mrs. Schlenz as class representatives is just a mode of convenience and a bit of subterfuge.” See Hamer v. Board of Education (1977), 52 Ill. App. 3d 531, 537.

While Hamer is not a named plaintiff in this case, the record shows the type of relationship between the class representatives and the attorney which calls into question the adequacy of plaintiffs’ representation of the purported class. Class certification has frequently been denied because of the personal or business relationships between named class representatives and nonplaintiff class attorneys. (Barliant v. Follett Corp. (1978), 74 Ill. 2d 226; Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill. 2d 583; Susman v. Lincoln American Corp. (7th Cir. 1977), 561 F.2d 86; Charal v. Andes (E.D. Pa. 1979), 81 F.R.D. 99; compare Sweet v. Bermingham (S.D.N.Y. 1975), 65 F.R.D. 551.) We conclude that the circuit court did not abuse its discretion in determining that the plaintiffs were inadequate class representatives in this case and in refusing to certify the purported class.

We find no error in the decision of the appellate court to remand the cause for a determination of whether a subclass may be found to exist. The record shows that only incidental reference was made and consideration given by the parties and the circuit court to the question of the existence of a subclass. (See Ill. Rev. Stat. 1979, ch. 110, par. 57.3(b); Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 342.) We have also considered the other contentions of the parties with respect to the issue of class certification and find them to be without merit.

We consider next the question of the validity of section 318.1 of the Revenue Act of 1939. (Ill. Rev. Stat. 1979, ch. 120, par. 799.1.) Cause No. 53286 involves the validity of 1976 assessments in Shelby County and cause No. 53189 involves the validity of assessments in Lake County for the 1977 tax year.

Section 103 of the Revenue Act of 1939, as amended and effective for the tax years 1976 and 1977, provided that the supervisor of assessments “shall publish *** a list of real estate for which assessments have been added or changed since the last preceding assessment, together with the amounts of the assessments on such real estate.” (Ill. Rev. Stat. 1975, ch. 120, par. 584.) The publication in cause No. 53286 was required on or before July 10, 1976, while publication in cause No. 53189 was required on or before December 15, 1977. (Ill. Rev. Stat. 1975, ch. 120, par. 584.) It is undisputed that in both instances the publication was later than the statutory dates. In Andrews v. Foxworthy (1978), 71 Ill. 2d 13, we held that the publication dates in section 103 of the Revenue Act were mandatory and that failure of timely publication is not an “informality or clerical error” within the savings provisions of section 235 of the Revenue Act of 1939, as amended. (Ill. Rev. Stat. 1977, ch. 120, par. 716; 71 Ill. 2d 13, 23-24.) Thereafter, and before either circuit court judgment was entered in these cases, the General Assembly enacted section 318.1, providing:

“In all cases where real or personal property has been assessed for the purpose of taxation during the year 1978 and all years prior thereto as provided in the ‘Revenue Act of 1939’, filed May 17, 1939, as amended, except no timely publication of the assessment of real or personal property, or both, was made as provided by Section 103 of said ‘Revenue Act of 1939’, such assessments of real or personal property, or both, are hereby validated for all purposes of taxation notwithstanding that the publication of the assessments of real or personal property, or both, was not made within the time provided by statute. The extension of taxes on such real or personal property assessments, or both, are made legal and valid for the purposes of collection of taxes notwithstanding that the publication of the assessments of real or personal property, or both, was not made within the time provided by statute.” Ill. Rev. Stat. 1979, ch. 120, par. 799.1.

Relying principally upon People v. Holmstrom (1956), 8 Ill. 2d 401, the appellants contend that the appellate court erred in holding the statute unconstitutional. The appellees contend that the statute violates the principle of separation of powers. Amici curiae contend that the statute is void because it deprives the objectors of equal protection of the laws, deprives them of property without due process of law, and that the Act in which section 318.1 was contained (Public Act 80 — 1471) is void because “it is not confined to one subject.”

The holdings of the appellate court that section 318.1 violates the principle of separation of powers are based on that court’s interpretation of our opinion in Roth v. Yackley (1979), 77 Ill. 2d 423. Roth involved an amendment to section 10 of the Cannabis Control Act (Ill. Rev. Stat., 1978 Supp., ch. 56½, par. 710) and section 410 of the Illinois Controlled Substances Act. (Ill. Rev. Stat., 1978 Supp., ch. 56½, par. 1410, effective June 30, 1978.) This court had held in People v. DuMontelle (1978), 71 Ill. 2d 157, that fines and costs were not reasonable terms and conditions of probation as that term was used in section 10 of the Cannabis Control Act, and that the imposition of fines and costs was therefore not authorized by statute. The amendments authorized the imposition of fines and costs as conditions of probation and further provided:

“The General Assembly declares that the changes made by this amendatory Act *** are declaratory of existing law and are therefore applicable in relation to events which occurred before the effective date of this amendatory Act. The ‘terms and conditions’ of probation as specified in this amendatory Act are declared to be reasonable terms and conditions for probation under the affected Sections as those Sections were in effect before the effective date of this amendatory Act.” Pub. Act 80-1202, sec. 3, eff. June 30, 1978.

The statute involved in Roth is clearly distinguishable from that here involved. The General Assembly did not amend section 103 of the Revenue Act, and section 318.1 does not attempt to attribute to section 103, at the time of our opinion in Andrews, a meaning different from that declared in that opinion.

This court has previously considered the question of separation of powers in circumstances similar to those here. In Worley v. Idleman (1918), 285 Ill. 214, an election was held to authorize a tax levy and the issuance of bonds for road construction in Douglas County. The election was ruled invalid because of defects in the ballot. (People ex rel Duncan v. Worley (1913), 260 Ill. 536.) Subsequently, legislation was enacted providing a method for ratification of the bonds. The ratification was completed and certain taxpayers who had been defendants in the prior case sought to enjoin a planned exchange of bonds. In affirming the validity of the curative statute the court noted:

“The objection most frequently urged in cases similar to the one at bar, and one which appellants in effect here make, is, that by the curative act the legislature has invaded the constitutional province of the judiciary and has attempted to set aside the force and effect of the judgments and decrees of the courts ***. The judgment of this court and the decrees of the circuit court upon which appellants rely were not final adjudications that the bonds *** did not constitute a legal indebtedness *** for the reason that the bondholders were not parties to any of the suits in which the question of the validity of those bonds arose. Until an adjudication had been made in a suit between the town and the bondholders declaring that the bonds were not valid, the legislature had the right and power, as between the town and the bondholders, to validate those bonds ***.” 285 Ill. 214, 220-21.

A similar conclusion was reached in Steger v. Traveling Men’s Building & Loan Association (1904), 208 Ill. 236, where this court rejected a separation of powers challenge to a validating statute authorizing acknowledgments of trust deeds which were invalid when executed. The court said: “That is not an exercise of judicial power, since it does not purport to settle suits or controversies, but only gives effect to acknowledgments in a matter under the legislative control.” 208 Ill. 236, 242.

The rationale of these cases is applicable here, and we hold that the General Assembly has not usurped judicial authority since it did not purport to direct a construction to be placed on section 103 contrary to our decision in Andrews.

We find no merit in appellees’ contentions that by the decision in Andrews they acquired a vested right of which section 318.1 deprives them without due process. A taxpayer has no vested right in the continued existence of a taxing statute. In re Application of Skidmore (1979), 75 Ill. 2d 33; People ex rel. Harding v. Chicago & Northwestern Ry. Co. (1930), 340 Ill. 102; People ex rel. Campe v. Board of Review (1919), 290 Ill. 467.

In People v. Holmstrom (1956), 8 Ill. 2d 401, this court considered a curative statute almost identical to the act at issue. In that case, in an action in debt to recover delinquent personal property taxes for several years in which publication of assessment lists was tardy under section 103, the defendant contended that he had been denied due process. The validating act provided that all the assessments and levies “are validated for all purposes of taxation notwithstanding that the publication of the assessments was not made as provided by statute.” (8 Ill. 2d 401, 404.) The taxpayer argued that the validating act itself was void and “that the General Assembly has power to validate by curative act only in the case of irregular or defective exercise of authority and that it cannot, in such manner, make a void proceeding valid.” This court upheld the constitutionality of the validating act, noting that “the legislature has the power to pass an act curing a defect in a tax levy when the defect consists of the failure to observe some requirement of the law without which the legislature might have authorized the levy to be made.” 8 Ill. 2d 401, 404-05.

In view of our conclusion that the statute did not violate the principle of separation of powers it is not necessary to further consider the argument of the appellees and amici that the court in Holmstrom had no occasion to consider the question of separation of powers and that it is therefore distinguishable.

Citing People ex rel. Ward v. Chicago & Eastern Illinois Ry. Co. (1936), 365 Ill. 202, People ex rel. Lord v. Wabash Ry. Co. (1924), 311 Ill. 579, and People ex rel. Stevenson v. Illinois Central R.R. Co. (1923), 310 Ill. 212, amicus argues that although the General Assembly “may, by statute, validate the irregular or defective exercise of power where the proceeding sought to be cured was not one of the fundamentals of the powers exercised,” it may not “validate acts which are wholly void.” Those cases are clearly distinguishable in that in each of them the curative statute purported to validate actions taken without the statutory power to do so. The distinction is best illustrated by the language in North Pier Terminal Co. v. Tully (1976), 62 Ill. 2d 540, 548, “The defects of which the plaintiffs complain are essentially procedural irregularities in the assessment process which *** do not establish the lack of authority of the assessor to act.” (See, e.g., Central Illinois Public Service Co. v. Swartz (1918), 284 Ill. 108.) Here there was no lack of power to make the assessments, and the rationale of Holmstrom is clearly applicable.

Although the issue was raised for the first time in the amicus briefs, we consider it appropriate to review the question whether Public Act 80 — 1471 violates article IV, section 8, of the Illinois Constitution in that it is not confined to one subject. (People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill. 2d 179.) Amicus argues that because Public Act 80 — 1471, in addition to amending section 103 of the Revenue Act of 1939, added sections 19.23 — la and 318.1, the Act deals with more than one subject. We do not agree. The Act amended is the “Revenue Act of 1939,” and we find apposite the language in People ex rel. Carey v. Board of Education (1973), 55 Ill. 2d 533, when in considering a similar argument directed toward amendments to the School Code this court said:

“This argument overlooks the nature of the act which was being amended. The School Code of 1961, like its predecessor, was designed to gather into one statute the provisions relating to the establishment, operation and maintenance of schools. The complete title of the 1961 Act is: ‘An Act in relation to the establishment, operation and maintenance of public schools, providing for the transportation of and scholarships in institutions of higher learning for students of all schools, and to repeal certain acts herein named’. Like its predecessor, its short title is ‘The School Code’. Ill. Rev. Stat. 1959, 1971, ch. 122, par. 1 — 1.
Amendments to statutes of this kind, including the School Code, have frequently been before the court. (See, People v. Deatherage (1948), 401 Ill. 25, 43; Co-ordinated Transport, Inc. of Illinois v. Barrett (1952), 412 Ill. 321; City of Evanston v. Wazau (1936), 364 Ill. 198.) As we stated in Sangamon County Fair and Agricultural Ass’n v. Stanard (1956), 9 Ill. 2d 267, 272-3: ‘When the title of the act amended is set forth in the title of the amendatory act, as was here done, any provision which might have been inserted in the original act may be incorporated in the amendatory act.’ Provisions concerning ‘parental schools’ were included in the School Code before its amendment (see Ill. Rev. Stat. 1971, ch. 122, par. 34 — 117) and they did not become ‘discordant’ or ‘incongruous’ because they were included in this amendatory act. Cf. People ex rel. Gutknecht v. City of Chicago (1953), 414 Ill. 600.” 55 Ill. 2d 533, 536-37.

In their brief plaintiffs Schlenz argue several issues which are not presented in their interlocutory appeal, and the briefs of amici attempt to raise several issues which are not appropriately considered on this record. We do not therefore further consider them.

For the reasons stated, the judgment in cause No. 53189 is reversed insofar as it holds invalid the real estate assessments because of failure to give timely notice and is affirmed insofar as it remands the cause to the circuit court of Lake County to determine whether an appropriate subclass of plaintiffs can be shown to exist. The judgment of the appellate court in cause No. 53286 is reversed, and the judgment of the circuit court is affirmed.

53189 — Affirmed in part and reversed in part and remanded.

53286 Appellate court reversed; circuit court affirmed.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.