author: PRESIDING JUSTICE HEIPLE

text:
      In re CUSTODY OF WILLIAM JOSEPH DYKHUIS (William Ipema, Petitioner-Appellee, v. Cheryl Dykhuis, Respondent-Appellant).
    Third District
    No. 3—84—0420
    Opinion filed March 12, 1985.

      Mary C. Thompson, of Homewood, for appellant.
    J. Brian McDonnell, of Palos Heights, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the

court:

The respondent, Cheryl Dykhuis, appeals from an order granting change of permanent custody of the parties’ minor child to the petitioner, William Ipema. The order appealed from was entered following a hearing on Ipema’s petition for modification of custody. Custody of the child was originally given to Dykhuis following a paternity suit.

The minor child, William Joseph Dykhuis, was born to Dykhuis on November 27, 1980. On December 17, 1981, William Ipema was found to be the natural father, support was set at $90 per month and custody was awarded to Dykhuis. The child lived with his mother at the home of her parents from birth until February 19, 1983.

On February 20, 1983, Dykhuis permitted Ipema to take temporary physical custody of their son so that she could look for work and thus obtain her own residence. The child remained at the home of Ipema’s parents until January 9, 1984. Both parties stayed in contact with the child during this period. On November 7, 1983, Ipema filed his petition for change of custody. The hearing on Ipema’s petition was held on February 7 and March 9, 1984. The trial court rendered its decision on June 25, 1984, ordering that permanent custody be transferred to Ipema. In July 1984, Dykhuis filed a motion to stay enforcement of said judgment. This motion was denied, and Dykhuis gave custody of the child to Ipema. She then filed this appeal.

The following issues are raised by Dykhuis on appeal. Dykhuis argues first that the trial court erred in finding that Dykhuis had consented to the integration of the child into Ipema’s family because the manifest weight of the evidence did not establish that the child was integrated into the father’s family nor that the mother had consented. Secondly, Dykhuis contends that the trial court erred in finding the best interests of the child were served by granting the father’s petition for change of custody. The final issue on appeal concerns whether the trial court abused its discretion in refusing to allow testimony as to the mother’s financial situation when it was alleged that she had consented to the child’s integration into the father’s family.

Modification of custody judgments is governed by section 610 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). (Ill. Rev. Stat. 1983, ch. 40, par. 610.) The relevant statutory provision states the following requirements:

“(b) After the expiration of the two year period following a custody judgment *** the court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts *** that a change has occurred in the circumstances of the child or his custodian *** and that the modification is necessary to serve the best interest of the child.”

Section 610(b), thus, sets forth two basic criteria of a change in circumstances and the child’s best interest, both of which must be established before custody can be modified.

We note parenthetically that the petition in the instant case was filed within two years but did not allege the required statutory grounds under section 610(a), endangerment to the child by present environment. The petition, therefore, would have been subject to a dismissal motion, but none was filed. The trial court, despite this error, acquired proper jurisdiction because the hearings took place after the two-year period terminated, thereby allowing the court to adopt the other standard of the child’s best interest.

We find in the case at bar that modification of the original custody judgment is not warranted and would not serve the best interests of the child. The evidence presented by the father at the modification hearing did not meet the “clear and convincing” evidentiary standard contained in section 610(b).

Custody modification under the IMDMA is based on a legislative presumption in favor of the present custodial parent so as to promote stability and continuity in the child’s environment. Once a trial court has determined, however, that this legislative presumption has been overcome, a court of review will not disturb this determination unless the trial court’s decision was contrary to the manifest weight of the evidence or constituted an abuse of discretion. In re Marriage of Pease (1982), 106 Ill. App. 3d 617, 435 N.E.2d 1361.

In order to establish that a change of circumstances has occurred and that modification would serve the child’s best interest, the standard of clear and convincing evidence requires a high level of certainty. Although this degree of proof is considered to be more than a preponderance of the evidence, it does not quite approach the standard which is necessary to convict a person of a criminal offense. In re Marriage of Weehselberger (1983), 115 Ill. App. 3d 779, 450 N.E.2d 1385.

We have carefully reviewed the record in the instant case. The mother initially gave the father temporary physical custody of the child so that she could obtain another job and, thus, her own residence. During the 10-month period when the petitioner had custody, the mother maintained regular and close contact with the child, visiting him at the home of the petitioner’s parents. She disputed the father’s assertion that she consented to the child’s integration into his family. When the mother first attempted to regain physical custody of the child, the petitioner refused to return him, even though the mother had enlisted the aid of police officers.

We do not view these circumstances and events as those which constitute a change of circumstances sufficient in themselves to warrant a modification of custody. We further note that during the time the petitioner had physical custody, he stopped paying court-ordered child support to the mother. We find the mother’s actions and her reasons for giving physical custody to the father in the first place to be reasonable and logical.

A custodial judgment cannot be modified unless the evidence shows that a material change of circumstances relating to the child’s best interests has taken place. The evidence must establish that the parent to whom custody was originally awarded is either unfit to retain custody or that the change in conditions is directly related to the child’s needs. (Brandt v. Brandt (1981), 99 Ill. App. 3d 1089, 425 N.E.2d 1251.) The evidence presented in the instant case clearly did not support these criteria.

In the case at bar, the trial court based its decision on the child’s integration into the petitioner’s family, grounds alleged in the father’s petition. At the time of the hearing, however, integration, once a statutory factor in modifying custody, had been removed from the statute by Public Act 715, effective July 1, 1982. The amended version of section 610 was in effect at the time custody was modified in this cause. Consequently, while integration can still serve as a guideline, among many other factors, it cannot by itself act as the controlling factor upon which modification may be based.

The sufficiency of the instant evidence was, furthermore, inadequate to establish that the child had been integrated into the petitioner’s family. From February to June 1983, the child stayed at the home of the petitioner’s parents while the petitioner maintained his own residence. In June 1983, the petitioner moved into his parents’ home. In January 1984, after the mother had regained custody of the child, the petitioner once again moved back into his own residence.

The integration of a child into a family with its various relationships requires more than moving in with him under the same roof. The only other evidence presented by the petitioner even remotely touching this issue came through the testimony of the paternal grandfather. His testimony essentially consisted of listing the people who lived with his grandson. These people included his wife, the petitioner, two other sons and two daughters. No other information whatsoever was given concerning these people who lived with the child whose custody was being sought. No testimony or evidence was presented as to how the child responded to these family members, how these people interacted with the child, or how this living situation was affecting the child’s emotional, physical, and psychological health. Giving a census of the number of people living with a child in the same house does not qualify as sufficient proof of integration.

The petitioner did not testify to any prospective living arrangements if custody were to be awarded to him. The record does not indicate who would be caring for the child during the day or where the child would live if the father obtained permanent custody. The mother, however, testified that she now had her own residence and would live there with her son. One of her sisters lived nearby, and while the mother was at work the child would be placed in preschool. The father failed to state whether he or his mother would care for the child during the day.

It is undisputed that the mother cared for the child herself from the date of the child’s birth in 1980 to February 1983. It is also clear from the record that she had made plans to care for the child in the future. The record does not indicate the father’s future plans for his son’s care. As stated in In re Custody of Bourey (1984), 127 Ill. App. 3d 530, 469 N.E.2d 386, the conduct of an unmarried parent in meeting the responsibility of establishing a significant relationship with the child and of providing for the child must be given sufficient weight. This factor in conjunction with many others must be recognized in determining the best interest of the child.

We conclude, therefore, that the mother in the instant case should retain custody of her child. After a careful consideration of all the factors, the modification judgment awarding custody to the father is against the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of Will County granting change of custody to the petitioner is reversed, and the cause is remanded for further proceedings consistent with this decision.

Reversed and remanded.

SCOTT and WOMBACHER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, et al., Plaintiffs-Appellants, v. ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0394
    Opinion filed March 4, 1985.
    Neil F. Hartigan, Attorney General, of Springfield (Allen Samelson, Assistant Attorney General, of counsel), for appellants.
    Hercules F. Bolos and Thomas J. Russell, Special Assistant Attorneys General, both of Chicago, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

Open Meetings Act.

But this is really a case of mootness.

The trial court said the suit was moot — and we agree.

We perceive no exceptions to the mootness doctrine present here.

We affirm.

The Attorney General filed a complaint in the circuit court on December 2, 1983, naming the Illinois Commerce Commission (Commission) and its commissioners as defendants. The complaint alleged that the Commission convened a meeting closed to the public on October 18, 1983, and discussed issues relating to economic reasonableness of completing a nuclear power station at Clinton. After the meeting, the Commission announced that it decided against conducting formal proceedings regarding the completion of the power station. The complaint further alleged that the October 18 meeting violated the Open Meetings Act (Ill. Rev. Stat. 1983, ch. 102, par. 41 et seq.) and sought the following relief: (a) a mandamus commanding the defendants to “receive and consider publicly the information upon which the Commission based its decision not to conduct a formal proceeding regarding the Clinton cancellation issue”; (b) an injunction enjoining defendants from holding future meetings in violation of the Open Meetings Act; and (c) other relief as the court deemed appropriate.

Leave to file an amended complaint was granted on March 22, 1984. The amended complaint contained six counts. The first three counts essentially restated the allegations of the original complaint and requested the additional relief of a declaratory judgment stating that the defendants violated the Open Meetings Act. Counts IV through VI alleged that the defendants had also convened on October 13, 1983, to discuss the Clinton power station. The latter three counts alleged that this meeting also violated the Open Meetings Act. Count IV sought a declaratory judgment that defendants violated the Open Meetings Act by meeting on October 13, 1983. Count V requested a mandamus ordering defendants to receive and consider publicly the information gathered and discussed at the October 13 meeting. Count VI sought an injunction enjoining defendants from holding future meetings in violation of the Open Meetings Act.

The defendants filed a motion to dismiss, stating numerous grounds for dismissal, including mootness. Defendants argued that the suit was moot because the Commission announced on February 1, 1984, that the issue of the economic reasonableness of completing the Clinton power station would be docketed for a public hearing. At the hearing on the motion to dismiss, the Attorney General did not dispute that the Commission planned to conduct a public hearing of the issues relating to the power station. The trial court allowed the motion on the grounds that the issues raised by the complaint were moot. The Attorney General appeals from the order dismissing his complaint.

An issue is moot where no actual rights or interests of the parties remain or where events occur which render it impossible for the reviewing court to grant effectual relief to either party. (West Side Organization Health Services Corp. v. Thompson (1980), 79 Ill. 2d 503, 404 N.E.2d 208; Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 384 N.E.2d 1309; People ex rel. Newdelman v. Weaver (1972), 50 Ill. 2d 237, 278 N.E.2d 81.) Events occurring during the pendency of litigation which “dissipate” the controversy on which the litigation was founded may render the case moot. People ex rel. Newdelman v. Weaver (1972), 50 Ill. 2d 237, 278 N.E.2d 81.

The present litigation was founded on alleged violations of the Open Meetings Act. The express purpose of this Act is to require public bodies to conduct their deliberations and actions openly. (See Ill. Rev. Stat. 1981, ch. 102, par. 41; People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649.) To this end, the Act identifies the public bodies and types of meetings subject to the Act and provides the procedures by which the open meetings are to be conducted. These procedures are, of course, the heart of the Act. Remedies which the trial court may grant upon a finding of noncompliance with the Act include granting a mandamus requiring that a meeting be open to the public, ordering the public body to make available to the public portions of the minutes of a meeting which are not authorized, and declaring null and void any final action taken at a closed meeting in violation of the Act. Ill. Rev. Stat. 1981, ch. 102, par. 43(c).

The specific allegations in the present case were that the Commission had met twice, in closed meetings, to discuss the economic reasonableness of completing the nuclear power station in Clinton and that the Commission concluded from these meetings that it would not conduct formal proceedings in considering this issue. Presuming for the moment that the allegations stated a violation of the Open Meetings Act, we find that the Commission itself effectively remedied the violation by first voiding its decision to not conduct formal proceedings and then providing for a public hearing of the issues. This action by the Commission essentially provided the Attorney General with what he basically sought in his complaint and, thereby, dissipated the controversy upon which the litigation was founded. Accordingly, the trial court correctly found that the issues raised by the complaint were moot.

The Attorney General argues that, despite the Commission’s decision to conduct a public hearing, the trial court should have granted the relief sought in the complaint, namely: a declaratory judgment stating that the Commission had violated the Open Meetings Act; a mandamus directing the defendants to receive publicly the information which it considered during the closed meetings; and an injunction prohibiting the Commission from holding future meetings in violation of the Open Meetings Act.

Certainly it would have been possible for the trial court to grant such relief. But the test for mootness, as stated in West Side Organization Health Services, is not whether it is possible to grant the relief requested, but rather, whether it is possible to grant effectual relief. As stated above, the subsequent actions of the Commission effectively provided the relief which the Attorney General had sought in his complaint. Little could now be gained by granting the Attorney General a declaratory judgment stating that the Commission had violated the Act or by ordering the Commission to publicly receive information it had considered in the closed meetings.

With respect to an injunction prohibiting future violations of the Act, the Attorney General has indicated in his appellant’s brief and at oral arguments that he desires to enjoin not only the recurrence of closed meetings relating to the completion of the Clinton power station, but also any and all future violations of the Open Meetings Act by the Commission. Such relief is particularly inappropriate here.

The foundation stone of the mootness doctrine is that a court should not resolve a question merely for the sake of setting a precedent or to govern future cases. (West Side Organization Health Services Corp. v. Thompson (1980), 79 Ill. 2d 503, 404 N.E.2d 208; People ex rel. Newdelman v. Weaver (1972), 50 Ill. 2d 307, 278 N.E.2d 81.) The injunction sought by the Attorney General would be for the sole purpose of governing future litigation. Moreover, it would be simply impractical for a trial court to draft an injunction which is completely divorced from either an existing or supposed state of facts.

We are aware that section 3(c) of the Act (Ill. Rev. Stat. 1981, ch. 102, par. 43(c)) specifically authorizes the trial court to enjoin future violations of the Act. However, this remedy must be understood in light of the fact that, for most public bodies, there are no exceptions to the procedural requirements of the Act. As a general matter, most public bodies are prohibited from conducting closed meetings under any circumstances. The Commerce Commission, however, stands on different footing. The Act has been amended to provide numerous exceptions for certain meetings of the Commerce Commission. The

amendment provides:

“All meetings of public bodies shall be public meetings except for *** that portion of the deliberations for decisions of the Illinois Commerce Commission in which there is discussed any of the following: commercial, financial or other information which is obtained from a person and which is privileged, proprietary, confidential, or a trade secret; information relating solely to the internal rules, practices, investigation techniques and procedures of the Commission; information the premature disclosure of which would be likely to lead to significant financial speculation in securities of a regulated entity or to significantly endanger the stability of any regulated entity; information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed Commission action; information obtained during the course of an inspection, examination or investigation which would be subject to the prohibition set forth in Section 18 of ‘An Act concerning public utilities’ approved June 29, 1921, as amended; or information specifically exempted from disclosure by federal or state law ***.” Ill. Rev. Stat., 1983 Supp., ch. 102, par. 42.

The Commission, unlike many other public bodies, has been and will be authorized to conduct closed meetings. A broadly worded, open-ended injunction in the hands of the Attorney General prohibiting the Commission from violating the Open Meetings Act could seriously impair the efficient operation of the Commission’s business. On the other hand, a similar injunction against a public body which is not authorized to conduct closed meetings would be relatively less detrimental to the operations of that body.

We have reviewed the cases cited by the Attorney General on the “public interest” exception to the mootness doctrine and find that none are analogous to the present case. Moreover, the considerations which have led to our finding of mootness far outweigh any public interest in a determination of whether the Commission violated the Open Meetings Act on October 13 and 18,1983.

Affirmed.

GREEN, P.J., and TRAPP, J., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUANITA OWENS, Defendant-Appellant.
    Fourth District
    No. 4—84—0462
    Opinion filed March 6, 1985.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The issue addressed in this appeal is whether section 5 — 4—2(a) of the Unified Code of Corrections requires a State’s Attorney to offer a convicted defendant an opportunity to plead guilty to all foreseeable charges within that county prior to sentencing on the offense of which defendant was convicted. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 4— 2(a).) We find the statute imposes no such duty on State’s Attorneys. Therefore, we affirm the trial court.

On July 21, 1983, defendant Juanita Owens was charged with forgery. The indictment alleged that defendant delivered a check to a grocery store employee, knowing the check was not authorized or drawn by its purported maker. On September 15, 1983, defendant pleaded guilty to the forgery charge.

On December 9, 1983, after a hearing, the trial court accepted defendant’s guilty plea and sentenced her to five years’ imprisonment to be served concurrently with the sentences she was then serving, crediting defendant with time served from July 21, 1983. Defendant pointed out to the court that she had been in custody since mid-May 1983. The court responded that July 21 was the date of the indictment. Defendant stated she still wished to plead guilty.

The State’s Attorney summarized the basis of the charge, and defendant agreed to the summary. The victim reported her checkbook and identification stolen. That same evening a woman, later identified as defendant, wrote a check on the victim’s account at a grocery store. Two days later, defendant and another woman were arrested. The police recovered some of the victim’s checks.

On May 9, 1983, defendant was convicted of separate forgery charges involving the same account. During the trial, the State introduced testimony about the instant forgery. The appellate court affirmed in an unpublished order. People v. Owens (1983), 118 Ill. App. 3d 1169 (Rule 23 order).

On October 14, 1983, defendant filed a pro se petition for post-conviction relief and a motion to withdraw her guilty plea, in the instant case. Appointed counsel filed an amended motion to withdraw the guilty plea and vacate judgment.

On June 1, 1984, the trial court held a hearing on both matters. It took judicial notice of the May 9 McLean County conviction and the appellate court order. Defense counsel argued that section 3 — 3(b) of the Criminal Code of 1961 required the State to prosecute all of the charges related to the theft-forgery of the victim’s checks at the same time. (Ill. Rev. Stat. 1983, ch. 38, par. 3 — 3(b).) The court found separate offenses were involved. It denied the motion and dismissed the petition.

On appeal, defendant argues that under section 5 — 4—2(a) of the Unified Code of Corrections, the State was required to offer her the opportunity to plead guilty to the instant charges prior to sentencing on the May 9 forgery conviction. She argues that prosecuting the offenses separately was fundamentally unfair because the State knew about the instant offense and in fact used testimony about the instant offense in the earlier trial. The State first argues that the defendant’s voluntary guilty plea waived the issue, and she did not argue the issue below or raise it in her post-conviction relief petition. On the merits, the State argues the section does not require the State’s Attorney to offer defendant an opportunity to plead guilty on all potential charges.

Generally, a voluntary guilty plea waives all errors, defects, and irregularities in the proceedings which are not jurisdictional in nature. This includes constitutional errors. (People v. Brown (1969), 41 Ill. 2d 503, 505, 244 N.E.2d 159, 160; People v. McKean (1981), 94 Ill. App. 3d 502, 504, 418 N.E.2d 1130, 1132; 87 Ill. 2d R. 604(d).) Defendant does not argue her plea was involuntary. The record demonstrates that it was a voluntary plea, and the trial court properly admonished defendant. 87 Ill. 2d R. 402.

However, where the error involves a substantial right of the accused, a reviewing court may, at its discretion, consider the merits of defendant’s claim. (People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432; 87 Ill. 2d R. 615(a).) Such an instance exists in this case.

Generally, failure to raise an issue in a motion to withdraw guilty pleas and petitions for post-conviction relief waives review of the issue. (People v. McKean (1981), 94 Ill. App. 3d 502, 418 N.E.2d 1130; People v. Fuca (1969), 43 Ill. 2d 182, 251 N.E.2d 239; 87 Ill. 2d R. 604(d).) However, the same concerns which apply to the voluntary guilty plea apply here.

Section 5 — 4—2(a) of the Unified Code of Corrections states:

“After conviction and before sentencing, the defendant shall be permitted, subject to the approval of the State’s Attorney, to plead guilty to other offenses he has committed which are within the same county. If the defendant is not formally charged with such offenses, an information shall be filed on the basis of defendant’s admission of guilt. Submission of such a plea shall constitute a waiver of all objections which the defendant might otherwise have to the charge. If such a plea is tendered and accepted, the court shall sentence the defendant for all offenses in one hearing under Section 5 — 8—4.” (Ill. Rev. Stat. 1983, ch. 38, par. 1005-4-2(a).)

Defendant argues that she was in effect sentenced to extra months’ imprisonment because the State’s Attorney did not give her the opportunity to plead guilty on the instant charge prior to sentencing on the May 9 conviction.

This section has not been interpreted by the court. The purpose of section 5 — 4—2(a) is to provide for consolidation of all outstanding charges against the defendant for a single sentencing. (Ill. Ann. Stat., ch. 38, par. 1005 — 4—2(a), Council Commentary, at 349 (Smith-Hurd 1982).) The first step in statutory analysis is to give effect to the legislature’s intent. (People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174, 1175.) Statutory language is Considered first. Where the language is clear, it will be given effect without resort to other construction aids. People v. Boykin (1983), 94 Ill. 2d 138, 445 N.E.2d 1174.

In the instant case, the statute says defendant shall be allowed to plead guilty to other offenses with the approval of the State’s Attorney. In effect, both parties must agree before sentencing on other offenses "will be held simultaneously with sentencing on the convicted offense. The section provides an opportunity for joint sentencing but does not require it.

From the section’s language, defendant’s guilty plea on unrelated offenses during the period after conviction but before sentencing is subject to the approval of the State’s Attorney. Therefore, the defendant does not have a statutory right to plead guilty and be sentenced simultaneously for the unrelated offenses. Concomitantly, the State’s Attorney has no statutory duty to offer the defendant an opportunity to enter a guilty plea on all potential charges. Additionally, we note that creation of such a duty would result in increased administrative difficulties at the trial level.

For the above reasons, we affirm the trial court.

Affirmed.

GREEN, P.J., and MILLS, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL C. GRUDZIEN, Defendant-Appellee.
    Third District
    No. 3—84—0463
    Opinion filed March 8, 1985.
    Rehearing denied April 10, 1985.
    Tony L. Brasel, State’s Attorney, of Watseka (Dennis E. Roth, Assistant State’s Attorney, of counsel), for the People.
    No brief filed for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Michael Grudzien, the defendant, was issued a uniform traffic citation and complaint for speeding on November 14, 1983. One week later, the State was notified that the defendant had filed his not guilty plea and written jury demand using his attorney’s form rather than the court communications copy. The case, originally set for hearing on December 12, 1983, was continued to June 15, 1984. Prior to that date, the court heard arguments and allowed the defendant’s motion to dismiss. On appeal, the State questions whether the defendant requested a speedy trial.

The defendant-appellee failed to file a brief. It is well established, however, that where the record is simple and the court of review can easily decide the claimed errors without an appellee’s brief, the reviewing court may decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Supreme Court Rule 505 and section 103 — 5 of the Code of Criminal Procedure of 1963 together provide that the defendant on bail shall be tried within 160 days from the date of his jury demand unless he occasions the delay or another exception not pertinent to this case applies. 87 Ill. 2d R. 505; Ill. Rev. Stat. 1983, ch. 38, par. 103 — 5, respectively.

“The burden is on the State to take the steps necessary to bring about a prompt trial. [Citation.] The statute is tolled only when there has been an ‘actual’ delay of trial clearly attributable to defendant. [Citation.]” People v. Hannah (1975), 31 Ill. App. 3d 1087, 1089, 335 N.E.2d 84, 86.

A demand for jury trial by the recipient of a traffic ticket is, ipso facto, a demand for speedy trial. (People v. McCarrey (1984), 122 Ill. App. 3d 61, 460 N.E.2d 781.) Even when the court sets trial beyond the statutory period, no presumption of agreement or waiver arises from a silent record. “Determination of accountability for delay rests in the judgment of the trial court and its decision should be sustained on appeal unless it is clearly shown that the court’s discretion was abused.” People v. Parker (1978), 59 Ill. App. 3d 302, 304, 375 N.E.2d 465, 467.

The defendant demanded but was deprived of a speedy trial. The record neither provides an explanation for the delay nor suggests that the defendant occasioned the delay. Therefore, dismissal was proper.

Accordingly, we affirm the judgment of the circuit court of Iroquois County.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: PRESIDING JUSTICE STAMOS

text:
    PEOPLES GAS LIGHT & COKE COMPANY, Plaintiff-Appellant, v. BLACK STEER PROVISION COMPANY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 84—1062
    Opinion filed March 5, 1985.
    Wexler & Heller, Ltd., of Chicago (Paul M. Heller, of counsel), for appellant.
    Ash, Anos, Freedman & Logan, of Chicago (George J. Anos and Lawrence M. Freedman, of counsel), for appellees.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff, Peoples Gas Light and Coke Company, filed suit against Black Steer Provision Company (hereafter BSP), George Varvaroutsos and Louis Kostodoulous (hereafter codefendant) in order to recover $335.06 which was allegedly due and owing for natural gas service supplied to certain property located at 5112 North Lincoln Avenue in Chicago. After a bench trial, the court entered judgment in favor of plaintiff and against codefendant. At the same time, the trial court ruled that BSP and Varvaroutsos (hereafter defendants) were not liable to plaintiff for the gas services rendered, and therefore, they were dismissed. Subsequently, defendants filed a petition pursuant to section 2 — 611 of the Illinois Code of Civil Procedure in order to recover attorney fees and costs because of false or untrue pleading by plaintiff. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611.) Plaintiff filed a response with an accompanying affidavit, and, after a hearing on the motion, the trial court entered judgment against plaintiff in the amount of $625 plus $8 in costs. Plaintiff appeals from this latter judgment, contending that the trial court erred in imposing sanctions since actions pursuant to section 2 — 611 can be invoked only in factual situations falling strictly within the statute’s terms and because plaintiff’s attorneys acted with an honest and reasonable belief that the ah legations in the second amended complaint were true.

Plaintiff filed its initial complaint on April 23, 1981. That complaint alleged that plaintiff had supplied natural gas to the above-described premises as agreed and that because of this defendants and codefendant became indebted to plaintiff in the sum of $355.06. Attached to the complaint was an initial statement which was issued on March 16, 1983, indicating that codefendant was the owner of the property. However, the statement also indicated that the location to which the service was provided was occupied by defendants.

On May 11, 1981, plaintiff filed an amended complaint, which made the same allegations. On that date defendants’ appearance was filed. Codefendant was served with an alias summons on December 23, 1981, and he filed his appearance on January 7, 1982. The trial court entered judgment in the amount of $355.06 plus costs against codefendant. However, the court also found that BSP had no liability to plaintiff; Varvaroutsos was dismissed at the end of plaintiff’s case in chief on his motion.

On February 21, 1984, defendants filed a motion to recover attorney fees and costs pursuant to section 2 — 611. That motion alleged that on January 25, 1984, the trial court conducted a bench trial; that prior to trial, counsel for defendants showed a bill for final service issued by plaintiff and also evidence of BSP’s payment to counsel for plaintiff and its expert witness; that defense counsel then indicated to plaintiff’s counsel that Varvaroutsos had no liability whatsoever since he was never a customer of plaintiff’s and that the BSP had no liability since it had ordered a final reading and paid its final statement; that prior to trial plaintiff’s counsel denied a request that plaintiff voluntarily dismiss defendants notwithstanding their lack of liability; that plaintiff’s counsel wrongfully refused the offer, claiming that either they or codefendant was liable for the gas service and under such circumstances plaintiff preferred that defendants '‘fight it out” among themselves; that the trial of this cause resulted in the court’s finding of no liability in favor of BSP; that the trial court also granted Varvaroutsos’ motion for entry of judgment at the close of plaintiff’s case, concluding that plaintiff’s allegations against him were made without basis; and that because of this, defendants were entitled to recover from plaintiff payment of reasonable expenses actually incurred by them by reason of the untrue pleading together with reasonable attorney fees. The petition for fees then made the assertion that the attorney fees incurred by defendants were in excess of $625 plus costs of $8. This petition was verified by one of the attorneys for the defendants. The petition also included an affidavit by attorney James L. Glass, Jr., which supported the above-outlined allegations.

Plaintiff filed a response to the motion for fees and costs stating that defendants were plaintiff’s customers of record; that their names were on all of plaintiff’s account records; that the gas services were rendered in their names; that all bills were sent to them at 848 West Fulton, which was the address for George Varvaroutsos; and that, since the defendants were plaintiff’s customers of record at all times during the period in question, plaintiff had reasonable cause to name them in its complaint. In addition to the response, plaintiff filed an affidavit by Paul M. Heller. That affidavit stated that the affiant was a member of the law firm of Wexler and Heller, Ltd.; that he was the principal litigation attorney at that particular firm and participated in the preparation and filing of the lawsuit; that defendants were named because plaintiff’s records showed them to be the named or designated customers; that plaintiff’s records reflected that on December 5, 1980, account No. 470271 — 05403 was set up at the defendants’ request; that these records further indicated that service was terminated on February 13, 1981, at the customer’s request; that an amount of $355.06 remained due and owing on that account; that company records also indicated that codefendant was owner of the property but did not contain any information as to who was responsible for the gas services rendered; that, although defendants’ attorney did request dismissal of his clients from the case, codefendant maintained that defendants were liable; that because of this plaintiff had no other alternative but to let the three “fight it out” in court and allow the trial court to determine the responsible party; and that, at the time they were made, plaintiff’s allegations were true and correct according to the knowledge of plaintiff and affiant. After hearing the arguments of counsel, the trial court stated:

“It appears to me, gentlemen, that on the basis of the arguments and the evidence that you have presented here in your affidavits and in the documents that appear before me at this time, this is a situation in which the plaintiff did not know who its proper party should be, is a situation where the plaintiff should have known what its proper parties should be and I am going to enter judgment for fees of $625 as shown by these documents that have been presented for the time spent and costs in this matter.”

As stated above, plaintiff contends that the trial court erred in imposing sanctions pursuant to section 2 — 611, since that section can be invoked only in situations falling directly within the terms of that particular provision and since plaintiff’s attorneys acted with an honest and reasonable belief that the allegations in the second amended complaint were true. We are in agreement with this contention.

Section 2 — 611 of the Illinois Code of Civil Procedure states, in part, as follows:

“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 attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611.)

This provision has been viewed as an attempt to prevent litigants from being harassed by spurious litigation. (See generally Diver v. Village of Glencoe (1978), 63 Ill. App. 3d 591, 599, 379 N.E.2d 1214.) However, this section is also penal in nature and, thus, may be invoked only in cases falling strictly within its terms and each of its requirements. (Third Establishment, Inc. v. 1931 North Park Apartments (1981), 93 Ill. App. 3d 234, 243, 417 N.E.2d 167.) In order for a movant to prevail under section 2 — 611, he must prove that the allegations contained in the pleading were false and that the pleader did not have reasonable cause to believe the allegations were true when he made them. (Himco Systems, Inc. v. Marquette Electronics, Inc. (1980), 86 Ill. App. 3d 476, 481, 407 N.E.2d 1013.) In Schnack v. Crumley (1982), 103 Ill. App. 3d 1000, 1005, 431 N.E.2d 1364, this court stated:

“It is not sufficient that the facts are ultimately adverse to the pleadings as set forth in the trial court. It must be demonstrated not only that certain allegations are untrue but that the person against whom the sanction is sought knew them to be untrue at the time they were made.”

Section 2 — 611 was never intended to penalize an attorney or client for an honest mistake, but only to prohibit litigation without legal foundation. (See generally Dudanas v. Plate (1976), 44 Ill. App. 3d 901, 910, 358 N.E.2d 1171.) Attorneys are presumed to have due regard for their responsibility as officers of the court, and, accordingly, they are allowed to exercise broad discretion based upon an honest judgment from the facts presented to them. Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 366, 383 N.E.2d 185.

While the party seeking sanctions under section 2 — 611 has the burden of proof as to both elements, the party opposing the motion does not have to present any evidence as to the truthfulness or reasonableness of the allegations until the movant has sustained his burden of proof. (Horween v. Dubner (1965), 68 Ill. App. 2d 309, 319-20, 216 N.E.2d 288.) The granting of a motion under section 2 — 611 is within the sound discretion of the trial court; however, if there is a demonstration of an abuse of discretion, the trial court’s determination will be reversed on review. See generally Himco Systems v. Marquette Electronics, Inc. (1980), 86 Ill. App. 3d 476, 407 N.E.2d 1013.

The affidavit by plaintiff’s counsel indicated that plaintiff named defendants because they were its customers of record. Plaintiff’s own business records indicated that a new account had been established in the name of defendants on December 5, 1980; that gas service had been rendered on that account from December 5, 1980, to February 13, 1981; and that all bills were mailed to these defendants at their request at 848 West Fulton Street, Chicago. Those records also indicated that an amount of $355.06 remained due and owing at the time of termination of that account and that a final bill was sent to the defendants but was never paid.

Defendants did not offer any evidence to rebut or contradict the affidavit of plaintiff’s principal attorney. Defendants failed to present any evidence, either by testimony or affidavit, that the allegations contained in plaintiff’s complaints were untrue or that plaintiff lacked reasonable cause to believe that such allegations were true when made. Defendants’ petition for fees merely makes the conclusional statement that plaintiff made untrue allegations in its complaint.

In the trial court, defendants chose to rely upon the affidavit and argument of their attorney to the effect that since he notified plaintiff’s attorney of the fact that defendants’ previous gas account had been paid in full, plaintiff’s attorney had the duty to voluntarily dismiss defendants. Defendants argue that when plaintiff’s attorney refused to dismiss them and proceeded to trial in order to have defendants and codefendant “fight it out” so that liability would be determined by the trial court, plaintiff’s attorney violated section 2— 611. We feel it evident that just because BSP had paid a final bill on a previous gas account at the same property, such fact did not prohibit the plaintiff from proceeding against that party on a subsequent gas account at the same address. As stated above, plaintiff’s records reflected that someone representing himself to be from BSP or Varvaroutsos established the account at that address on December 5, 1980, and terminated the same account on February 13, 1981. In view of such information, we feel that plaintiff’s counsel had reasonable cause to believe that the $355.06 balance, which remained due and owing as of the date of termination, was owed by these defendants.

As indicated above, defendants were obligated to demonstrate that plaintiff’s counsel knew that the allegations in plaintiff’s complaint were untrue at the time the complaint was filed. However, defendants have failed to introduce any proof in this respect. Defendants have also failed to show that such allegations were made without reasonable cause. Consequently, we feel that the trial court abused its discretion when it granted defendants’ petition for attorney fees. In In re Eatherton (1983), 119 Ill. App. 3d 174, 178, 456 N.E.2d 327, this court reversed a trial court’s award of fees and stated:

“Findings ‘that the facts pleaded by the plaintiff were untrue, or that the plaintiff *** knew them to be untrue *** are requisite to relief under section [2 — 611].’ *** In determining whether the plaintiff had reasonable cause, the court must consider what information was available or discoverable at the time the action was initiated.”

As indicated above, the only evidence produced at the fee hearing relative to the factors reflecting reasonable cause was the affidavit submitted by plaintiff’s principal attorney. That affidavit indicated that plaintiff’s complaints were prepared and filed after reviewing plaintiff’s business records. Those records included account statements which indicated that defendants were the customers of record for gas account No. 470271 — 05403, and that they owed a balance of $355.06 for services rendered from December 5, 1980, until February 13, 1981. These records also contained information indicating that the owner, codefendant, may have retaken the property in January 1981. In view of such facts, it is evident that plaintiff’s attorneys concluded that a cause of action should be filed against all three parties because each could possibly be responsible for a portion of the debt based on their period of occupancy.

The defendants contend that the award of fees and costs was proper, since even if plaintiff and its counsel acted in good faith in initially joining them as parties in this litigation, plaintiff exhibited bad faith when it wilfully refused to dismiss them after its allegations were shown to be spurious immediately prior to trial. At trial, defendants denied any agreement with plaintiff and also denied receiving any gas service at the property after December 5, 1980. Because of this, defendants claim that the owner of that particular property was liable. However, in a motion to vacate a default judgment entered against codefendant on March 4, 1983, codefendant maintained that he had a meritorious defense to the action in that “he was only the landlord and as such, he is not responsible for the gas consumed by his tenant.” This statement obviously implied that defendants were liable for the payment of the gas bills because, as his tenants, they were responsible for all utilities. Under such circumstances, it is apparent to us that the question of who was responsible for payment of the gas bill in question was not only disputed between plaintiff and the defendants but also between the defendants and codefendant. Accordingly; we believe that a trial on the merits was necessary to determine the propriety and truth of each party’s respective position. Consequently, under such circumstances, plaintiff had no duty or obligation to accede to defendants’ demands for dismissal.

We must further point out that defendants’ 2 — 611 petition is based primarily on plaintiff’s refusal to honor demands for dismissal and upon defendants’ subsequent victory at trial rather than on any particular claims or irregularities or falsehoods in plaintiff’s complaint. It is well established that the' courts in this State have always looked with disfavor upon assessing fees against a losing party. See Third Establishment, Inc. v. 1931 North Park Apartments (1981), 93 Ill. App. 3d 234, 243, 417 N.E.2d 167.

For the reasons set forth above, the order of the trial court awarding defendants attorney fees plus costs will be reversed.

Reversed.

PERLIN and HARTMAN, JJ., concur.


text:
    LELAND J. EBERLE, Plaintiff-Appellant, v. MARY JANE BRENNER, Ex’x of the Estate of Frank T. Brenner, M.D., et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0459
    Opinion filed March 4, 1985.
    Wayne R. Golomb, of Springfield, for appellant.
    Robert G. Heckenkamp, of Heckenkamp, Simhauser & Drake, P.C., of Springfield, for appellee Mary Jane Brenner.

      Robert E. Gillespie, of Springfield, for appellees Binks Manufacturing Company and Henry G. Garrolts & Sons.
    Heyl, Royster, Voelker & Allen, of Springfield (Gary M. Peplow and Paul Bown, of counsel), for appellee David B. Drennan.
   JUSTICE MILLS

delivered the opinion of the court:

Medical malpractice and products liability.

Summary judgment granted as to all defendants.

We affirm as to the doctors.

We reverse and remand as to the manufacturer and lessor.

While cleaning a spray painting gun in the course of his employment, Eberle sustained a high pressure injection of a hydrocarbon fluid into his left index finger. Eberle was immediately taken to the emergency room of Blessing Hospital. The emergency room physician consulted with Dr. Drennan, who advised the physician to instruct Eberle to come to Drennan’s office on Monday morning. Later that day, Eberle, who was experiencing increasing pain, was admitted to the hospital by Dr. Brenner. Dr. Brenner performed surgery on the finger the following day, making a mid-lateral incision along the outside and inside of the finger and inserting two Penrose drains in the finger. The condition of Eberle’s finger worsened. Eberle was later treated by Dr. Lewis Kinkead, who amputated the finger.

On February 23, 1982, Eberle filed a multicount complaint, alleging negligence and products liability against Binks Manufacturing Company (Binks) and Henry G. Garrolts & Sons (Garrolts), the manufacturer and lessor of the spray painting gun, and alleging malpractice against Frank T. Brenner, M.D., David B. Drennan, M.D., and Blessing Hospital. (Blessing Hospital is not involved in this appeal.)

In response to motions by Drs. Drennan and Brenner, the trial court, on November 7, 1983, in anticipation of trial set for March 1984, ordered Eberle to disclose the name and specialty of each of his experts by December 15, 1983. Thereafter Eberle disclosed the name of his medical expert, Dr. Kinkead.

Drs. Drennan and Brenner each moved for summary judgment on those counts of the complaint directed against them on the ground that the deposition of Dr. Kinkead revealed that he could not testify with any degree of medical certainty that their conduct was the cause of Eberle’s injuries. Portions of Dr. Kinkead’s deposition were attached to the motion. On January 24, 1984, Binks and Garrolts moved to dismiss Eberle’s complaint against them on the ground that Eberle had failed to disclose any expert witnesses with respect to his negligence and products liability claims against them. In their motion, they argued that expert testimony was required to establish these claims. Eberle failed to respond to either the motion to dismiss or the motions for summary judgment.

On April 5, 1984, the trial court granted Brenner and Drennan’s motions for summary judgment and denied Eberle’s motion for leave to file the complete discovery deposition of Dr. Kinkead. By separate order, the trial court also granted Binks and Garrolts’ motion to dismiss and dismissed the counts against them with prejudice. Eberle moved to vacate the orders entered on behalf of all defendants.

On May 24, 1984, the trial court denied Eberle’s motion to vacate the summary judgment entered in favor of Drs. Brenner and Drennan. By this order, Eberle was given leave to file the complete deposition of Dr. Kinkead. On June 4, 1984, the trial court denied Eberle’s motion to vacate the order dismissing his claims against Binks and Garrolts.

DRS. BRENNER AND DRENNAN

On appeal, Eberle contends that the trial court erred in granting summary judgment in favor of Drs. Brenner and Drennan because they failed to show, by affirmative evidence, that Eberle’s finger would not have been saved even if his injury had received prompt, proper medical treatment. In response, the physicians argue that summary judgment was proper, given the failure of Eberle’s expert to establish that their treatment or failure to treat Eberle proximately caused the loss of his finger. We agree with the physicians.

(Before we discuss the law in this case, we note that the record does not contain a copy of a report of the proceedings of the hearings on the defendants’ motions to dismiss and for summary judgment. This practice should be discouraged. Transcripts of such hearings, especially in cases where the plaintiff is denied his day in court, are a valuable aid in this court’s determination of the issues.)

Summary judgment is proper only if there is no genuine issue as to any material fact and the moving party is entitled to summary judgment as a matter of law. (Prather v. Decatur Memorial Hospital (1981), 95 Ill. App. 3d 470, 420 N.E.2d 810.) The pleadings, depositions, affidavits, and exhibits must be construed most strictly against the movant and most liberally in favor of the opponent. (Boddie v. Litton Unit Handling Systems (1983), 118 Ill. App. 3d 520, 455 N.E.2d 142.) The opponents’ failure to file a counteraffidavit, however, does not entitle the movant to judgment in his favor as a matter of course. Nevertheless, when an opponent fails to file a counteraffidavit, the facts contained in the movant’s affidavits and depositions are then accepted as true, notwithstanding any contrary assertions contained in the opponent’s pleadings. Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497.

In their motion for summary judgment, the physicians argued that the deposition of Eberle’s sole expert, Dr. Kinkead, revealed that he could not testify with any reasonable degree of medical certainty that their treatment of or failure to treat Eberle was the cause of his injuries. We agree.

The pertinent portion of Dr. Kinkead’s discovery deposition attached to the defendant’s motion for summary judgment revealed the following:

“MR. EGGERS [attorney for defendant Brenner]: You stated in a letter to Mr. Golomb on December 9th, 1980, that ‘Injection injuries of this nature are extremely severe. The irritant nature of mineral spirits or turpentine coupled with the high pressure injection injury leads to a high amputation rate.’ That was your opinion on December 9th, 1980. Is that still your opinion today?
DR. KINKEAD: I would say it’s higher with the mineral spirits or any of those types of agents than it is with grease
or some of the less irritating factors, yes.
* * *
MR. MITCHELL [attorney for defendant Blessing Hospital]: But as I believe you said, as far as the saying — as far as the causal connection, as I understand from the literature, and in fact from this article by Dr. Kleinert, and also from your reports which we have, of course, and from your testimony under questioning by Mr. Eggers, in these types of pressurized injuries where you have pressure injection — and particularly with an item like a paint thinner, for example— that there is a very high risk of amputation regardless of whether the guy ends up in your hands, who is a specialist, or regardless of what happens, he may very well lose a portion of his finger as a result of that injury. Isn’t that correct?
DR. KINKEAD: I have no quarrel with that. Whether we can extrapolate that to say, therefore, we don’t need to do anything or we can do it in a less-than-optimal way. You know, if that’s a justification for that kind of treatment, fine. But you know, it’s basically — basically what you’re saying is,
you know, is this result a bad result? I can’t say that.
* * *
MR. MITCHELL: All you’re saying is, you can’t say whether this guy’s finger could have been saved or not, regardless of the treatment he got.
DR. KINKEAD: Correct.”

Construing the deposition most strictly against the physicians and most liberally in favor of Eberle, we conclude that Eberle’s sole expert, Dr. Kinkead, could not testify with any reasonable degree of medical certainty that the actions or inactions of the defendant physicians caused the eventual amputation of Eberle’s finger. This court has recognized the necessity for expert medical testimony as to the proximate causal connection between the negligent act or omission of the defendant and the injury suffered by the plaintiff, in all but the most gross malpractice cases. (St. Gemme v. Tomlin (1983), 118 Ill. App. 3d 766, 455 N.E.2d 294; Carman v. Dippold (1978), 63 Ill. App. 3d 419, 379 N.E.2d 1365.) This is not such a case of “gross malpractice” as to eliminate the need for expert testimony as to proximate cause. The record demonstrates that Eberle had adequate time to establish his case. Therefore, we hold that the trial court properly granted summary judgment in favor of Drs. Brenner and Drennan.

Eberle contends that the burden was on the physicians to show by affirmative evidence that they were entitled to summary judgment, i.e., that Eberle’s finger would not have been saved even if timely and proper treatment had been rendered. His position misstates the law. Proof of proximate causation is upon the plaintiff. (Kwak v. St. Anthony De Padua Hospital (1977), 54 Ill. App. 3d 719, 369 N.E.2d 1346.) Eberle was required to show, by expert testimony, that it was more probable than not that he lost his finger as a result of the actions or inactions of the defendant physicians rather than as a result of other circumstances. Eberle wholly failed to establish a causal connection between the care and treatment rendered by Drs. Brenner and Drennan and the loss of his finger.

Eberle also argues that the trial court abused its discretion in denying his request to file the complete discovery deposition of his expert. Eberle did not seek to file the complete deposition of his expert until the hearing on the physician’s motions for summary judgment which was held on April 5, 1984. The trial court denied leave to file the deposition. Eberle moved to vacate the summary judgment, arguing that other portions of Dr. Kinkead’s deposition not attached to the physicians’ motions for summary judgment demonstrate that the physicians’ delay in treating Eberle contributed to the loss of his finger. In its order denying Eberle’s motion to vacate, the trial court granted him leave to file the deposition. The complete deposition is a part of the record on appeal.

We need not determine whether the trial court abused its discretion in denying Eberle leave to file the deposition or in denying his motion to vacate the summary judgment. The trial court’s error, if any, was harmless. From a careful review of the complete deposition of Dr. Kinkead, we conclude that it was not his opinion that the treatment rendered by Drs. Brenner and Drennan was a proximate cause of the loss of Eberle’s finger.

BINKS AND GARROLTS

Eberle contends that the trial court abused its discretion in granting Binks and Garrolts’ motions to dismiss and for summary judgment. In response, Binks and Garrolts argue that the trial court properly granted the motions because Eberle failed to obtain expert testimony to support his allegations of design defect.

On January 24, 1984, Binks and Garrolts moved to dismiss Eberle’s complaint against them as a discovery sanction under Supreme Court Rule 219(c) (87 Ill. 2d R. 219(c)), for his failure to disclose any expert with respect to his negligence and strict-liability claims. At oral argument, counsel for Binks and Garrolts indicated that on April 5, 1984, at the hearing on the motion to dismiss, they made an oral motion for summary judgment. The trial court granted Binks and Garrolts’ motion, dismissing the counts against them with prejudice and entering summary judgment in their favor.

Eberle argues that the trial court erred in dismissing his complaint against Binks and Garrolts as a discovery sanction under Rule 219(c). Eberle’s position, throughout the proceedings below, was that expert testimony would not be required to establish his claims of design defect. It was not until the filing of the defendants’ motions to dismiss that Eberle sought discovery against them. Implicit in the trial court’s dismissal and award of summary judgment is its determination that expert testimony is necessary to establish Eberle’s negligence and strict-liability claims against Binks and Garrolts. We disagree.

In Belvidere National Bank & Trust Co. v. Leisher (1980), 83 Ill. App. 3d 179, 403 N.E.2d 1054, a negligence action against the installers of the gas-fired furnace and the owners of the building, the court rejected the defendant-owner’s contention that the plaintiff’s negligence action, analogous to a medical malpractice case, required expert testimony to establish their liability. Reversing the judgment of the trial court granting summary judgment as to both defendants, the court noted that it would not be “beyond the ken of even ordinary people to know that the installation of the furnace in a confined area, surrounded by combustible materials, might present a fire hazard requiring certain precautions.” 83 Ill. App. 3d 179, 185, 403 N.E.2d 1054, 1059.

In his complaint, Eberle alleged that the spray gun was negligently designed and was not reasonably safe in that it was not equipped with adequate guards or other safety devices. In our opinion, it would be within the realm of knowledge and experience of laymen to determine whether a spray gun without adequate guards or other safety devices might be unreasonably dangerous. The testimony of experts is therefore not required. We conclude that genuine issues of material fact exist as to Eberle’s claims against defendants Binks and Garrolts and that the trial court erred in granting summary judgment. As we have determined that expert testimony is not required to establish Eberle’s negligence and strict liability claims, we consider the sanction of dismissal imposed by the trial court for Eberle’s failure to disclose expert witnesses to be inappropriate.

For the foregoing reasons, the judgment granting summary judgment in favor of Drs. Brenner and Brennan is affirmed. The judgment dismissing Eberle’s claims against defendants Binks and Garrolts and granting summary judgment in their favor is reversed and remanded.

Affirmed in part, reversed in part, and remanded.

GREEN, P.J., and TRAPP, J., concur.


text:
      In re BRENDA GRAY, A Minor (The People of the State of Illinois, Petitioner-Appellee, v. Mary Craig, Respondent-Appellant; Dennis Gray et al., Respondents).
    Fourth District
    Nos. 4—84—0380 through 4—84—0383 cons.
    Opinion filed March 12, 1985.

      Carey J. Luckman, of Pontiac, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Robert J. Biderman and Gwendolyn Klingler, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Follmer, of Strock & Follmer, Ltd., of Pontiac, guardian ad litem.

   JUSTICE MILLS

delivered the opinion of the court:

Four juvenile petitions.

All found wards of the court.

We affirm.

Following adjudicatory and dispositional hearings on four juvenile petitions, it was found that three of Mary Craig’s children were neglected and that one was neglected and abused. She appeals, alleging that the adjudications of neglect concerning her three children were against the manifest weight of the evidence and that the trial court lacked subject-matter jurisdiction over the child who was adjudicated abused and neglected.

We agree with the trial court.

I. THE FACTS

The factual and procedural background is lengthy and cumbersome.

On January 19, 1984, the Livingston County State’s Attorney’s office commenced circuit court case 84J3 by filing a petition seeking to have a minor, Brenda Gray, adjudicated a ward of the court upon the averment that the minor was neglected as defined by section 2 — 4 of the Juvenile Court Act. (Ill. Rev. Stat. 1983, ch. 37, par. 702 — 4.) The factual underpinning for the petition was that Mary Craig, Brenda’s mother, had failed to protect the minor from instances of physical abuse on the part of the minor’s stepfather, Steven Craig, and also that she had failed to protect the minor from instances of sexual abuse occurring in the home.

A hearing was held on January 19, 1984, but prior to the hearing’s commencement, the trial court appointed counsel for Mary Craig. At the hearing, counsel raised the issue of lack of subject-matter jurisdiction in a motion which requested that the court set aside and vacate all previous orders entered in the case and to dismiss the cause in its entirety. The motion was taken under advisement, and the hearing proceeded. The trial court entered an order of protection precluding any contact between Brenda and her mother or stepfather. The court was advised that the minor had been removed from Illinois by her natural father, Dennis Gray, and the court permitted the natural father to retain physical custody of the minor.

The court then ordered an adjudicatory hearing to be set for February 29, 1984, and directed notice to be sent to the parties. Summonses to Dennis and Brenda were mailed on January 20, 1984, and return of service was had on January 27, 1984.

On January 26, 1984, Mary filed a motion to dismiss cause 84J3 for lack of subject-matter jurisdiction trader the Juvenile Court Act. The trial court held that since the minor was in Indiana with her natural father and the Juvenile Court Act provided “no method whereby the court can acquire jurisdiction over said child, that the juvenile proceeding was dismissed without prejudice.” The order went on to note that the fact that the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1983, ch. 40, par. 2101 et seq.) placed the child’s residence with her custodial parent did not vest jurisdiction in the court under the terms of the Juvenile Court Act. The order, however, left the earlier order of protection in effect, indicating as a jurisdictional basis the Illinois Domestic Violence Act (Ill. Rev. Stat. 1983, ch. 40, par. 2301 — 1 et seq.), even though no petition raising matters pertinent to that Act is found in this record.

On February 17, 1984, Mary Craig and her attorney, a guardian ad litem for the children, appellant’s ex-husband (Steven R. Craig) and his court-appointed counsel, Brenda Gray, her natural father, and an assistant State’s Attorney all appeared in Livingston County circuit court. The appearances were pursuant to petitions filed on behalf of Mary and Steven Craig’s three minor children. The court was informed that Dennis Gray had brought his daughter, Brenda, to the court pursuant to subpoenas which had previously been issued in case 84J3, and, further, that he had not been informed that the cause had been dismissed three days prior to his appearance. During the course of preliminary conversations with the court, Dennis Gray indicated he resided in the State of Indiana and that he had taken Brenda back to Indiana “about 32 days” prior to the instant hearing.

Apparently based on the fact that the minor child was now before the court, the trial court permitted the assistant State’s Attorney to amend the previously filed and dismissed petition on its face. That amendment removed the allegation that the minor resided or may be found in French Lick, Indiana, and averred instead that the minor may be found in French Lick, Indiana, but that her residence was in Livingston County, Illinois. The cause was reinstated and the petition amended over objection of Mary Craig’s counsel, who argued that the court lacked jurisdiction under the Juvenile Court Act because the minor had in fact been lured into the State in an effort to attach jurisdiction. Counsel also argued that the amendment was improper because it was not verified, whereas the original petition had been.

A hearing was then held upon the question of continuing or vacating the previous order of protection. The assistant State’s Attorney called Mary Craig as an adverse witness. Her testimony was that in several instances her ex-husband, Steven R Craig, had physically abused his stepdaughter, Brenda Gray. The most recent instance of abuse had occurred on November 21, 1983. She also testified that on several occasions she had physically interceded between Steven Craig and her daughter in attempts to protect the child, but that the attempts had inevitably failed and that on at least one occasion she had required emergency room treatment herself after being beaten by her husband.

There was additional testimony that she had been informed of purported sexual abuse of Brenda on at least one prior occasion. She testified, however, that she had been informed by authorities that the suspects whom she had originally believed were the perpetrators of the sexual abuse had passed polygraph examinations. She also testified that after the November 21, 1983, incident of physical abuse, the child had been temporarily placed in a foster home, but she had been returned to Mary Craig after about a month.

Mary Craig also stated that she had obtained a dissolution of her marriage to Steven Craig in the second week of January 1984. She testified that he had not lived with her since November 21, 1983, but that he did come over to exercise visitation rights with his three minor children, and that on one occasion he stayed overnight to watch the children when she was too ill to care for them.

Based on the foregoing testimony, the trial judge modified the original order dismissing the juvenile petition to show that Brenda Gray had appeared before the court — which apparently to him meant “this court now has juvenile jurisdiction” — and amended the order to show that the petition had been refiled with leave of the court on February 17,1984. The order of protection was left in place.

On March 29, 1984, a consolidated adjudicatory hearing was held, dealing with all four petitions in this cause. The State’s case in chief consisted of the testimony of seven witnesses, all of whom testified to the situation of the Craig children in their home. Brian Kern, a doctor, testified that he had probably examined the three Craig children two or three times each and recalled once treating the minor son for an infected cut on his finger.

Susan Johnson, a DCFS homemaker assigned to the Craig home, testified that on July 18, 1983, the minor son’s finger had been shut in a car door and subsequently became infected. Johnson also testified that within two weeks of August 29 or 30, 1983, she saw Stella and Charles Fry babysitting the three Craig children. Charles Fry had been one of the individuals who had been implicated in the alleged sexual abuse of Brenda.

In response to questioning by the trial judge, Johnson stated that she had never observed any indications, or been told anything by the children, which would lead her to believe that Mary Craig ever physically or sexually abused the Craig children and further that she had never seen Mary Craig threaten or abuse the children at any time.

Mary Craig, called by the State, testified that Charles Fry had been watching her children, including Brenda, before Brenda left the State for Indiana. On cross-examination by counsel for Steven Craig, she testified that she thought she could handle her three children and that she was a good mother to them. She also testified that none of the three Craig children had ever been injured seriously, that Steven Craig never abused any of those three children, and that there had been no sexual abuse problems or complaints concerning the three children of her marriage to him.

She finally testified that the children of her marriage to Steven Craig were often present during the instances when Steven Craig was abusing Brenda Gray. Her testimony was that her son, Charles, would often attempt to intercede in these instances of abuse and apparently recognized the fact that Steven Craig had ultimately injured his wife and his stepdaughter.

After the State rested, Mary Craig presented evidence in the form of testimony from Dennis Gray, Brenda’s natural father. He testified that his residence was French Lick, Indiana, and that he had resided there for about 2>xk years. He indicated that Brenda was now residing with him and was enrolled in the local public school. He stated that she had been there for about 21/a months, at least since the middle of January 1984. He reaffirmed his testimony of the hearing on February 17, 1984, wherein he said that the only reason he came to Illinois and appeared in Pontiac was the summons he had received in case 84J3. He finally testified that the proceedings presented the only reason upon which he was present on the instant day, that being March 29, 1984.

No further evidence being adduced, the court then heard brief arguments of counsel. Counsel for Steven Craig and Mary Craig argued that the evidence was insufficient to support an adjudication of negleet as to the three Craig children.

The trial judge discussed the evidence and his findings at length, proceeded to adjudge Brenda Gray a neglected and abused minor, and adjudged each of the three Craig children to be neglected minors, finding that all four were to be made wards of the court. The court did not order the three Craig children to be removed from Mary Craig’s home.

Pertaining to the three Craig children, the Judge noted that he was “anticipating a potential problem *** even though no direct harm can be shown at this time to the children.” He also indicated that there existed a “very strong possibility unless things changed that the three younger children *** will be abused children in the future and that because of that, they are neglected children at this time.” He went on to note that “each of those three children is neglected by reason of their environment, has been injurious to their welfare in the past and I grant you I’m stretching the allegations somewhat. But that there is also a strong potential that because of that they may be neglected in the future. And they are so adjudged.” Finally, the court noted that “I have heard nothing today which would suggest that right this instant that Mary and Steve present a direct threat to [the Craig children] so that without ongoing homemaker services and supervision until we can have a Dispositional hearing that we need to remove the kids from their home. I don’t find that at this time.”

A consolidated dispositional hearing was held on all four cases on May 1, 1984. Mary Craig made an oral post-trial motion again raising the issues of the lack of subject-matter jurisdiction in the trial court. The trial court denied the motion, stating that the previous rulings were correct and would stand. Dispositional orders were entered in each cause after that hearing, and timely appeal was taken in each of the four cases.

In her appeal, Mary Craig raises three matters which she urges require us to reverse the decision of the trial court.

We decline, and affirm.

II. THE CIRCUIT COURT’S JURISDICTION

The first argument raised by appellant is syllogistic. The major premise is that the only guidance on the issue of subject-matter jurisdiction or jurisdiction of the case found in the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 701 — 1 et seq.) is the venue provision found at section 2 — 6 (111. Rev. Stat. 1983, ch. 37, par. 702 — 6), which provides that venue shall lie where the minor resides or is found. The minor premise is that a court which is entertaining a cause of action in an improper venue and purports to enter an order in the cause will be reversed and the cause ordered shifted to the proper forum because the court lacks subject-matter jurisdiction. From this, appellant derives the conclusion that since Brenda was both residing and found in French Lick, Indiana, at the time the original petition was filed, there was no proper venue in Illinois. Therefore, the trial court lacked subject-matter jurisdiction, the cause should have been dismissed, and must now be reversed on appeal.

The State responds that (1) improper venue does not deprive a court of subject-matter jurisdiction; (2) Brenda was actually a resident of Illinois by virtue of the general rule that the residence of a dependent child of divorced parents is that of the parent to whom custody has been granted (citing Crawley v. Bauchens (1973), 13 Ill. App. 3d 791, 300 N.E.2d 603); and (3) since Brenda had been placed with her mother as a custodial parent and her mother was a resident of Livingston County, Brenda was also a resident of Livingston County.

We agree with both contentions put forth by the State. Under our holdings in In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 443 N.E.2d 289, and In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289, we find that the court below at all times had subject-matter jurisdiction of this controversy.

In Mears, this court recognized the fact that the power of circuit courts to entertain cases in Illinois is granted by our constitution. Article VI, section 9, of the Illinois Constitution of 1970 provides that “[cjircuit courts shall have original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction relating to redistricting of the General Assembly and to the ability of the Governor to serve or resume office. Circuit Courts shall have such power to review administrative action as provided by law.” Based upon this language in the Constitution, we found in Mears that parties no longer need seek statutory justification for the exercise of circuit court jurisdiction. The inquiry is, rather, whether there exists a justiciable controversy, and if so, whether there are any statutory conditions precedent to judicial intervention.

In L.E.J., this court reaffirmed its holding in Mears and found that personal jurisdiction was one of the conditions precedent to the exercise of subject-matter jurisdiction, but that lack of personal jurisdiction would not deprive a court of subject-matter jurisdiction ab initio, only depriving the court of its ability to exercise its power upon those who have not been brought into court by summons or otherwise. Additionally, such situations are distinct from instances wherein due process violations result in the entry of a void order. See, e.g., People v. R.S. (1984), 104 Ill. 2d 1, 470 N.E.2d 297.

While the instant cause may present some questions concerning the lack of in personam jurisdiction over Brenda Gray when the original order was entered, the cause presents no questions concerning the subject-matter jurisdiction on the part of a circuit court to entertain what is clearly a justiciable matter. Further, even if the residency of the minor in the county where venue is set is viewed as a condition precedent to the court’s exercising subject-matter jurisdiction, the fact that the residence of a minor child of divorced parents is the residence of the custodial parent (Crawley v. Bauchens (1973), 13 Ill. App. 3d 791, 300 N.E.2d 603) creates a strong presumption here that Brenda Gray was a resident of Livingston County, although temporarily found in Indiana. The presumption was not overcome by the fact that she had been absent from Illinois for 30 days and had been temporarily enrolled in an Indiana school.

Nonetheless, the only issue raised in this portion of the appeal specifically concerns the alleged lack of subject-matter jurisdiction on the part of the circuit court to entertain the petition before it in the matter of Brenda Gray. We find all other arguments pertaining to possible error in entertaining the petition, waived. Since a justiciable controversy was at hand, subject-matter jurisdiction was present, and the decision of the circuit court is affirmed.

III. THE UNVERIFIED AMENDMENT

As previously discussed, the trial court here allowed the State’s Attorney to amend the juvenile petition concerning Brenda Gray. The amendment deleted the averment concerning the minor’s residence in Indiana and added the fact that her residence was Livingston County, Illinois. Appellant now argues that even if the court previously had subject-matter jurisdiction in this cause, the failure to verify the amendment to the juvenile petition somehow divested the court of that jurisdiction and caused the court to enter a void order.

We cannot agree.

This argument fails when laid upon the analytical framework utilized above. If a justiciable controversy is existent, and any conditions precedent met, a circuit court has subject-matter jurisdiction. (In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289.) While it would have been better practice — and in all likelihood not a matter of inconvenience — to have drafted a new, verified complaint, we are of the opinion that the failure to verify the amendment in no way operated to divest the circuit court of its subject-matter jurisdiction.

IV. THE MANIFEST WEIGHT OF THE EVIDENCE

Both parties in their arguments pertaining to this issue are in general agreement that the decision finding the three children of Steven and Mary Craig to be neglected was based primarily on the fact that they had witnessed repeated episodes of physical abuse against their stepsister, Brenda Gray. While both generally agree that this was the factual underpinning of the court’s decision, they disagree as to whether such a decision may appropriately be based on such evidence.

Two cases in Illinois have addressed the propriety of adjudicating minors wards of the court based upon the doctrine of “anticipatory neglect.” In the case of In re Brooks (1978), 63 Ill. App. 3d 328, 379 N.E.2d 872, the First District held the fact that a minor child has witnessed episodes of physical abuse of another child was, standing alone, sufficient to support a court’s finding the parents unfit and that it was in the best interest of the minors to be placed outside the parents’ home. The reviewing court noted that the trial court’s finding of neglect was supported by a preponderance of the evidence and stated that “[w]hen faced with evidence of prior abuse by parents, the juvenile court should not be forced to refrain from taking action until each particular child suffers an injury.” (63 Ill. App. 3d 328, 339, 379 N.E.2d 872, 881.) On the other hand, the Second District in In re Baby Boy Butt (1979), 76 Ill. App. 3d 587, 395 N.E.2d 1, came to the exact opposite conclusion based on very similar facts.

Upon reflection, we find this issue before us to be very touchy and quite close. The record reveals that besides the admitted abuse of Brenda, the mother in this case and her divorced husband fought frequently. There was also testimony that Mary and Steven had divorced only because they felt it enhanced their chance to recover Brenda. Mary testified that she contemplated remarriage upon the conclusion of court proceedings. Further, the episodes of abuse of Brenda were unrequited and admitted. Based on these factors, and the standard of review by which we are bound in cases of this type, we find that the decision of the trial court making the three Craig children wards of the court but leaving them in their mother’s home, and making Brenda Gray a ward of the court but allowing her to reside with her natural father, were not against the manifest weight of the evidence.

We therefore affirm the decision of the trial court in all aspects.

Affirmed.

GREEN, P.J., and McCULLOUGH, J., concur.