author: JUSTICE WILSON

text:
    ROB WARDEN, Plaintiff-Appellee, v. JANE BYRNE, Mayor of the City of Chicago, Defendant-Appellant.
    First District (5th Division)
    No. 80-1839
    Opinion filed December 4, 1981.

      Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Jerome A. Siegan, Assistant Corporation Counsel, of counsel), for appellant.
    Merle L. Royce and Lois J. Lipton, both of Chapman and Royce, Ltd., of Chicago (Roger Baldwin Foundation of ACLU, Inc., of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

This appeal is taken from a judgment of the trial court ordering defendant to file reports of independent consultants pursuant to the Municipal Reference Librarian Ordinance, section 23.7 of the Municipal Code of Chicago. On appeal, defendant essentially asserts that she was a private citizen at the time the transition team reports were commissioned and they are, therefore, not subject to disclosure under this ordinance. The pertinent facts follow.

On June 28, 1979, plaintiff Rob Warden filed a petition for writ of mandamus against Jane Byrne, Mayor of Chicago. The petition, supported by affidavit and exhibits, allege that defendant had received reports prepared by individuals known as the transition team and chaired by Louis Masotti, Director of Urban Affairs at Northwestern University. The transition team was formed by defendant shortly after her election and thereafter compiled six volumes of reports and recommendations on the urban conditions of Chicago and the administration of city government. These reports were submitted to defendant on April 26,1979, after she assumed office. Defendant’s reply to requests for copies of these reports indicated that they were campaign documents and not subject to disclosure under this ordinance. However, a copy of a newspaper interview with Masotti, submitted as a supporting document, stated that the confidentiality of these reports was never discussed between him and defendant and that some team members approached this project with the understanding that their program recommendations would be publicly implemented.

Warden asserts that he has an interest in the transition papers as a citizen, resident and taxpayer of the city of Chicago, and as editor of the Chicago Lawyer. Further, that defendant was required to submit these reports pursuant to the Municipal Reference Librarian Ordinance and that she has not done so.

Defendant filed a motion to strike and dismiss Warden’s petition alleging that Warden lacked standing, the petition failed to state a cause of action and that as a matter of law the reports were not within the purview of the ordinance and that disclosure of such would constitute an invasion of privacy. This motion was denied with the trial court finding that the disclosure of the report was a fact question. Application to take an interlocutory appeal was denied, whereupon defendant elected to stand on her motion to dismiss. Judgment was entered in favor of Warden on his petition, but enforcement was stayed pending this appeal.

Opinion

The issue before us on review is whether the transition team reports, commissioned after defendant’s election but before she officially assumed office, and submitted after she did assume the office of mayor, are subject to disclosure under chapter 23, section 7 of the Municipal Code. Defendant has contended that these reports were the private undertaking of a group of citizens.

Pertinent provisions of the ordinance in question state that:

“The Municipal Reference Librarian shall perform the following duties:
# # O
Collect from the Mayor and the head of each Department, Commission or Agency of the City three copies of each report, document, study or publication prepared by independent consultants, or other independent contractors. It shall be the duty of the Mayor and the head of each Department, Commission or Agency of the City to transmit three copies of each report, document, study or publication, within five days after receipt thereof, to the Municipal Reference Library. It shall be the duty of the Municipal Reference Librarian to transmit a copy of each report, document, study or publication prepared by an independent consultant or other independent contractors to the Chairman of the Committee on Finance. However, any report, document, study or publication of the following types shall not be transmitted to or collected by the Municipal Reference Library:
(1) Reports or memoranda of attorneys or investigators in preparation for or contemplation of litigation;
(2) Reports relating to land acquisition by the City including but not limited to appraisals, title opinions, engineering reports and planning studies concerning the specific location of public improvements;
(3) Reports relating to current or contemplated investigatory or operating procedures of the Police Department or Fire Department;
(4) Reports or materials relating to a specific test or tests for use of the Department of Personnel in recruitment or promotional examinations;
(5) Reports to the Mayor relating to specific individuals who are or may be under consideration for recruitment or promotion for employment by the City;
(6) Reports which include information required by law to be held in confidence.”

Rules of construction provide that words used in a statute are to be given their plain meaning. (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769.) In construing a statute, courts should examine the statutory language and its context, as well as the statutory purpose. Lopez v. Fitzgerald (1979), 76 Ill. 2d 107, 390 N.E.2d 835.

The plain language of this ordinance requires the defendant to transmit copies of each report, document, study or publication prepared by independent consultants or contractors to the municipal reference librarian within five days from receipt thereof. It is evident that materials received by defendant and relating to city administration are subject to disclosure with the exception of the enumerated exclusions.

Further, the ordinance has no exclusion language applicable to a mayor-elect commissioning any studies, reports or documents relating to city administration or policy, nor does it exclude such reports, documents or studies submitted by private citizens and prepared without public compensation. Good public policy requires liberality in the right of access to and inspection of public records. In re Application of National Broadcasting Co. (2d Cir. 1980), 635 F.2d 945; People ex rel. Gibson v. Peller (1962), 34 Ill. App. 2d 372, 181 N.E.2d 376.

Defendant has already conceded in her reply brief that had these transition papers been commissioned by her when she was mayor, they would be subject to the disclosure provisions. However, since she was mayor-elect at the time of their commission, it is contended that they are not subject to the disclosure ordinance. We believe that under the facts of this case, this distinction is meaningless. See Cassidy v. American Broadcasting Companies, Inc. (1978), 60 Ill. App. 3d 831, 377 N.E.2d 126, where the plaintiff asserted that he had a right to privacy as against the gathering of news concerning the discharge of his public duties as a police officer investigating massage parlors. We held that he was not a private citizen engaged in conduct which pertained only to himself, but a public official performing a public service and discharging a public duty. Likewise, defendant here falls within the public official classification. She commissioned these reports not as a private or personal undertaking, but as a means of assisting her in the discharge of her public duties. These reports were submitted to her after she assumed her official office and they deal with public policy affairs of city administration. She has not advanced one of the exclusions under the ordinance, nor are any here made applicable, and thus the papers are subject to disclosure. We will not assume that the city council engaged in a meaningless act (Matter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034), which would be the implication if we adopt the position defendant urges us to take.

Defendant’s reliance on Lopez v. Fitzgerald is misplaced. Lopez involved investigation reports of alleged building violations by a municipal building department without notice to the building owner and without an opportunity for him to respond. Our supreme court determined that considerations of privacy and due process militated against public access to initial investigation reports. We do not have these same considerations present in the pending case.

Having elected to stand on her motion to dismiss, defendant admits all facts pleaded by plaintiff Warden and reasonable inferences therefrom. (Koskela v. Martin (1980), 91 Ill. App. 3d 568, 414 N.E.2d 1148.) These facts and inferences demonstrate that the transition reports are within the purview of the ordinance.

Defendant next asserts that plantiff failed to state a cause of action because he did not allege a specific duty owed to him by defendant and failed to join the municipal reference librarian.

A person seeking mandamus must only have an “interest” in the subject matter of the petition (Solomon v. City of Evanston (1975), 29 Ill. App. 3d 782, 331 N.E.2d 380; People ex rel. Peace v. Taylor (1930), 342 Ill. 88, 174 N.E. 59). There must be a “logical nexus” between petitioner’s status and the relief sought, and he must show that he has a clear and undoubted right to the issuance of the writ. Solomon v. City of Evanston.

In the pending case, the ordinance requires defendant to submit copies of reports, documents or studies to the Librarian, such information then being available for public information and disclosure. Plaintiff Warden, as a citizen and taxpayer and as a journalist, representing the public interest with a responsibility to summarize and dispense information to the public, has a sufficient interest and has shown a clear and undoubted right to the issuance of this writ. This is not an instance of idle curiosity (see Illinois Norml, Inc. v. Scott (1978), 66 Ill. App. 3d 633, 638, 383 N.E.2d 1330 (the right to privacy protects unreasonable intrusions)), and the ordinance specifies a clear duty on the part of the defendant to submit such material to the librarian.

Defendant’s assertion that the municipal librarian was a necessary party and failure to join this party defects plaintiff’s petition must also fail.

Initially, we note that this claim was not raised in the proceedings below, thus this issue is waived on review. (Snow v. Dixon (1977), 66 Ill. 2d 443, 362 N.E.2d 1052; Webb v. Rock (1980), 80 Ill. App. 3d 891, 400 N.E.2d 959.) In any event, failure to name the municipal reference librarian was not fatal to the court’s jurisdiction. The librarian’s function to “collect” public documents is only activated after she had knowledge, which first requires the mayor or other city officials to transmit documents covered by the ordinance. The duty is initially on the mayor and heads of departments to submit public documents not exempted by the ordinance. This is separate and distinct from the librarian’s duty.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and MEJDA, J„ concur.

       Topics of these six volumes include:
      (a) jobs and the economy
      (b) neighborhood revitalization
      (c) department agency evaluations
      (d) new program suggestions
      (e) background documents
      (f) miscellaneous, i.e., health issues, budget and fiscal priorities


source: Caselaw Access Project

author: PRESIDING JUSTICE CAMPBELL

license: Public Domain

text:
    DAVID SHEEHAN, Plaintiff-Appellant, v. JANESVILLE AUTO TRANSPORT et al., Defendants-Appellees.
    First District (1st Division)
    No. 80-1974
    Opinion filed December 7, 1981.

      Propp & Schultz, of Chicago, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and Leonidas C. Malleris, of counsel), for appellees.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff David Sheehan sustained injuries when his automobile collided with a semi-trailer truck owned by defendant Janesville Auto Transport Company (Janesville), which defendant Dennis Hughes had allegedly parked in a “no parking” zone. The accident occurred when plaintiff swerved his vehicle into the parked truck as he attempted to avoid a collision with an oncoming vehicle that had crossed the center line. Plaintiff sued defendants, alleging that his injuries were proximately caused by the negligence of defendants in (1) parking their unilluminated vehicle in a “no parking” zone, (2) parking their vehicle within an intersection in violation of section 11 — 1303(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 95/2, par. 11 — 1303(a)(1)), (3) parking their vehicle within 20 feet of the crosswalk at an intersection in violation of section 11 — 1303(a) (2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 95M, par. 11 — 1303(a)(2)), and (4) parking a truck on a residential street for a longer period than necessary for the expeditious loading or unloading of such vehicle, thereby constituting a nuisance in violation of chapter 27 — 319 of the Municipal Code of Chicago (Chicago Mun. Code, ch. 27 — 319 (1958)). Defendants’ amended motion for summary judgment was granted by the trial court, and plaintiff appeals. On appeal, plaintiff contends that the pleadings raised a genuine issue as to a material fact whether defendants’ illegally parked, unilluminated truck was a proximate cause of the collision which resulted in his injuries.

For the reasons set forth herein, the judgment of the circuit court is affirmed.

Plaintiff instituted the present action for personal injuries resulting from an automobile collision that occurred on June 24,1973, at approximately 11:30 p.m., while plaintiff was driving in the center eastbound lane on 47th Street near its intersection with St. Louis Avenue. Defendant Hughes, an employee of defendant Janesville, had parked a semi-trailer truck owned by Janesville in the curb eastbound lane on 47th Street near the aforementioned intersection. Plaintiff’s vehicle collided with defendants’ truck when plaintiff swerved his vehicle from the center lane into the curb lane, as he attempted to avoid a collision with an oncoming westbound vehicle that had crossed the center line. The intersection of St. Louis Avenue with 47th Street is a zigzag-type intersection. As one proceeds eastbound on 47th Street, one comes first to that portion of St. Louis Avenue which is to the south of 47th Street (hereinafter South St. Louis Avenue). As one continues east one comes to that portion of St. Louis Avenue which is to the north of 47th Street (hereinafter North St. Louis Avenue). Defendants’ vehicle was parked along the south curb of 47th Street. The rear of the truck was allegedly 10 feet east of the easterly curb of South St. Louis Avenue. The front of the truck allegedly would have been within North St. Louis Avenue if North St. Louis Avenue extended directly south across 47th Street instead of zigzaging.

The trial court granted defendants’ amended motion for summary judgment and plaintiff urges that defendants’ motion should have been denied because the pleadings raised a genuine issue as to a material fact. (Cronin v. Delta Air Lines, Inc. (1974), 19 Ill. App. 3d 1073, 313 N.E.2d 245.) Plaintiff claims that the questions of fact before the court were whether defendants’ truck was illegally parked, and if it was, whether the illegally parked, unilluminated truck was a proximate cause of the collision which resulted in his injuries. He urges that these were questions of fact for the jury to determine, thus defendants were not entitled to summary judgment as a matter of law. Plaintiff relies on Wright v. General Motors Corp. (7th Cir. 1973), 479 F.2d 52, and Kinsch v. Di Vito Construction Co. (1964), 54 Ill. App. 2d 149, 203 N.E.2d 621, in support of his position. In Wright the plaintiff was operating a truck manufactured by defendant General Motors Corp. when, due to a defect in the transmission, the truck went into two gears at once, stopped on a public highway and could not be moved. Plaintiff got out of the truck to make repairs and was struck by a vehicle coming from the opposite direction. The trial court held that as a matter of law defendant’s conduct was not the proximate cause of plaintiff’s injuries. The court of appeals reversed finding that reasonable minds might differ as to whether plaintiff’s conduct in attempting to make emergency repairs on the truck and his being struck by another oncoming vehicle while so engaged interrupted the chain of causation set in motion by defendant’s wrongful conduct. The court of appeals stated that “[w]here the question of whether the intervening force or event was a reasonable foreseeable consequence of the defendants’ conduct is one over which reasonable men might differ, the issue of proximate causation should never be determined as a matter of law.” 479 F.2d 52, 53.

In Kinsch defendant had placed a solid cement block on the shoulder of a highway and left it sitting there without illumination or warning signs. On a foggy night plaintiff drove off the roadway onto the shoulder and crashed into the cement block killing his wife and injuring himself. In the wrongful death action that ensued the jury returned a special interrogatory finding Kinsch guilty of contributory negligence, and returned a general verdict in favor of the noncontributorily negligent beneficiaries of Mrs. Kinsch’s estate. In affirming the trial court, the appellate court stated that “[wjhether the injury follows in a natural or probable sequence from the acts in question is determined on the basis of whether an ordinarily prudent person ought to have foreseen that some injury might occur, although the precise injury which in fact occurred need not have been foreseen. 9 9 9 The question of proximate cause is normally an issue for the jury.” 54 Ill. App. 2d 149, 154-55, 203 N.E.2d 621, 624.

In applying the foreseeability test set forth in Wright and Kinsch to the instant matter, plaintiff urges that when an unilluminated semi-trailer truck was parked illegally within an intersection, the circumstances confronting plaintiff which ultimately resulted in his injury were within the range of foreseeability. For this reason the question of proximate cause should have been an issue for the jury.

Defendants urge that they were entitled to summary judgment as a matter of law because the allegedly illegal parking of their truck was not the proximate cause of plaintiff’s injuries. The collision did not occur as the result of the parking of the truck, but because an unknown westbound vehicle crossed the center line and entered the eastbound lane of traffic in which plaintiff was travelling. To avoid the oncoming vehicle plaintiff swerved into the curb lane in which defendants’ truck was parked colliding with the truck. Defendants distinguish Wright from the instant case. In Wright plaintiff’s vehicle was parked or stopped in a moving lane of traffic, as opposed to a parking lane, due to the defective condition of the vehicle allegedly caused by defendant. Thus, in Wright, the question of whether the intervening force or event (the vehicle coming from the opposite direction which struck the plaintiff) was a reasonable foreseeable consequence of the defendant’s conduct in installing a defective transmission in the truck was one over which reasonable minds might differ. While in the instant action, the parking of defendants’ truck in a parking lane did not cause the westbound vehicle to cross the center line, nor did it cause the plaintiff to swerve his vehicle from the center lane of traffic into the curb lane. These acts were independently performed by the driver of the westbound vehicle and the plaintiff, and would have been performed whether or not the truck had been parked in the curb lane. Thus, two independent forces with which defendants had nothing to do were in action and caused plantiff’s injuries. Wuebbles v. Shea (1938), 294 Ill. App. 157, 13 N.E.2d 646.

In Wuebbles, defendant Lamar was parked on the north side of an east-west street, allegedly within 10 feet of the crosswalk in violation of a statute. Plaintiff was travelling east on the same street when a southbound vehicle driven by the co-defendant Shea turned left in front of plaintiff. Plaintiff swerved north to avoid Shea and struck Lamar’s vehicle. The appellate court reversed the judgment against Lamar, stating that it was unable to see any causal connection between Lamar’s alleged violation of the statute and plaintiff’s injury. The appellate court found that “[rjegardless of the statute complained of, or its violation if it was violated, the things that happened would have been exactly the same. Two independent forces with which Lamar had nothing to do were in action and caused an injury.” 294 Ill. App. 157, 162, 13 N.E.2d 646, 647. See also Fultz v. Myers (1972), 5 Ill. App. 3d 230, 282 N.E.2d 488.

Defendants also distinguish Kinsch from the instant matter. Kinsch involved a collision between an automobile that had strayed from the highway in foggy weather and an obstruction on the shoulder of the road. The concrete obstruction had remained on the shoulder for about two to four weeks without any lighting, and at the time of the collision there were no signs on the highway warning drivers of its presence or of any construction in the vicinity. Parking is usually prohibited on the shoulder of a highway, except for emergencies. On the other hand, parking is permitted along 47th Street to the east and west of the subject intersection. Thus, while it may be reasonable that the shoulder of the highway should be kept free from obstruction because drivers must occasionally use the shoulder for emergencies, it does not follow that the curb lane must also be kept free. Defendants argue that if the collision between plaintiff’s car and defendants’ truck was a reasonably foreseeable consequence of the parking of the truck in the curb lane, then anyone who parks in a curb lane, whether legally or illegally, may expose themselves to possible liability if a motorist swerves into the curb lane and collides with the parked vehicle. Defendants claim that the instant collision was no more reasonably foreseeable to defendants when they parked in a “no parking” zone than it would have been to them had they parked east or west of the intersection where parking was permitted.

We agree with plaintiff that the purpose of the summary judgment procedure is to render expeditious judgment on a question of law, after first deciding that no genuine issue as to any material fact exists between the parties. (Cronin v. Delta Air Lines, Inc.) In this connection we have examined the statute and the ordinance complained of and the trial court record. Since plaintiff has premised his right to recover upon the violation of section 11 — 1303(a)(1) and (2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 95/á, par. 11 — 1303(a)(1) and (2)), and chapter 27 — 319 of the Municipal Code of Chicago, we must determine whether he belonged to the class of persons for whose protection and benefit the statute and the ordinance were enacted. The statute complained of provides as follows:

“(a) Except when necessary to avoid conflict with other traffic, or in compliance with law or the directions of a police officer or official traffic control device, no person shall: 1. Stop, stand or park a vehicle: * * 9 c. Within an intersection; * 0 e 2. Stand or park a vehicle, whether occupied or not, except momentarily to pick up or discharge passengers: * * * c. Within 20 feet of a crosswalk at an intersection 6 * (Ill. Rev. Stat. 1971, ch. 93Í, par. 11 — 1303 (a)(1) and (2).)

The ordinance complained of provides as follows:

“No person shall stand or park any truck, tractor, semi-trailer, trailer, or bus on any residential street for a longer period than is necessary for the reasonably expeditious loading or unloading of such vehicle, except that a driver of a bus may park such bus in a designated bus stand as is provided otherwise in this chapter.
# 0 #
Any vehicle parked in violation of this section is hereby declared to be a nuisance which may be abated by any police officer by removing such vehicle to the City vehicle pound or to an authorized garage.”
(Chicago Mun. Code, ch. 27 — 319 (1958).)

The statute and the ordinance in question are silent as to the class of persons for whose benefit they were enacted. In such a case, the application of the subject statute and the subject ordinance to one invoking their protection must be determined from a careful consideration of the provisions of the statute and the ordinance, and of the ends they were manifestly intended to accomplish. (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93; Brunnworth v. Kerens-Donnewald Coal Co. (1913), 260 Ill. 202, 103 N.E. 178.) In the interpretation and construction of statutes, it is a primary rule that the intention of the legislature should be ascertained and given effect. (People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627; Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 167 N.E.2d 169.) This is done primarily from a consideration of the legislative language itself. (Western National Bank v. Village of Kildeer.) The statute in question prohibits parking in or near intersections. A consideration of the legislative language suggests that the intent of this particular statute is to facilitate the free and safe flow of vehicular and pedestrian traffic using the intersection. The instant occurrence did not involve intersecting traffic. The defendants’ truck was parked on 47th Street, and of the other two vehicles involved in this incident, one was proceeding east on 47th Street, and the other was proceeding west on 47th Street. Because of the zigzag nature of the 47th Street intersection with St. Louis Avenue, the place where the truck was allegedly parked was within an intersection in an area in which parking was prohibited, while on either side of the intersection parking is permitted in the south curb lane except between the hours of 7 a.m. and 9 a.m. With one exception, all of plaintiff’s allegations of negligence are predicated on the truck being parked within an intersection in violation of posted “no parking” signs, and the aforementioned statute. Plaintiff’s claim is not based on defendants’ interference with the free and safe flow of traffic using the intersection, but on the fortuitous circumstance that the oncoming car crossed the center line at a point where parking in the south curb lane is prohibited. The oncoming car could have crossed the center line at any point along the length of the street, yet parking is generally permitted in the curb lane along 47th Street on either side of the subject intersection. If the aforementioned statute was intended to protect individuals in plaintiff’s situation, parking may have been prohibited in the curb lane at every point along 47th Street.

A consideration of the legislative language of chapter 27 — 319 of the Municipal Code of Chicago suggests that this particular ordinance is not a safety regulation intended to facilitate the free and safe flow of traffic along the street. The intent of the ordinance appears to be to promote the residential character of the street by declaring it a nuisance for certain vehicles to park on the street for long periods of time.

The trial court was correct in entering a summary judgment finding that as a matter of law the parking of defendants’ truck in a curb lane in violation of section 11 — 1303(a)(1) and (2) (Ill. Rev. Stat. 1971, ch. 95/2, par. 11 — 1303(a)(1) and (2)), and in violation of chapter 27 — 319 of the Municipal Code of Chicago, did not cause the westbound vehicle to cross the center line, nor did it cause the plaintiff to swerve his vehicle from the center lane of traffic into the curb lane. The trial court was also correct in its finding that two independent forces caused plaintiff’s injuries, and defendant had nothing to do with said forces, and that regardless of the statute and ordinance complained of or their alleged violations, the events that occurred would not have been reasonably foreseeable. Fultz v. Myers; Wuebbles v. Shea.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

GOLDBERG and McGLOON, JJ., concur.


author: JUSTICE O’CONNOR

text:
    NORMAN HARWOOD, Plaintiff-Appellant, v. PISER MEMORIAL CHAPELS, Defendant-Appellee.
    First District (1st Division)
    No. 80-2225
    Opinion filed December 7, 1981.

      Donald J. Brooks and William J. Harte, Ltd., both of Chicago (William J. Harte, of counsel), for appellant.
    Schulman, Silverman & Kreiter, Ltd., of Chicago (David B. Schulman, Richard B. Silverman, and David L. Eaton, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Norman Harwood appeals from an order granting defendant Piser Memorial Chapels’ motion to dismiss plaintiff’s complaint. The pertinent facts are as follows:

In November 1977 arrangements were made with defendant for the funeral of plaintiff’s mother. At the time the arrangements were made, the goods and services ordered for the funeral were itemized on defendant’s form. Plaintiff never executed this form. The form separates the “unit service” from “additional items” available. The “unit service” includes professional services, facilities and equipment, funeral coach, limousine and casket. Here the total “unit service” was $980. The form further provided:

“ * ADDITIONAL ITEMS: The following items are not part of our UNIT Service, and may include some cash advances we are making for your convenience.
ADDITIONAL ITEMS:
Cemetery Charges:
Interment Fee $270
Grave Vault Instal-
lation— $270.00
Cemetery Permit
$25.00 Taxes $— 25.00
Grave Box 295.00
Certified Copies 5 11.00
Limousines
Flower Cars
Tribune Lines at $ Per Line)
Sun-Times Lines at $ Per Line) $30.50
News Lines at $ Per Line)
Foundation Re-
moval and Replace-
ment 50.00
Linen Shroud 50.00
TOTAL $731.50.”

Plaintiff’s total bill was $1711.50. This bill was not paid. In June 1979, defendant instituted suit to collect the amount owed based upon an oral contract. By agreement, that suit is not being prosecuted while the instant action is pending.

During discovery in the collection suit, plaintiff sought and was provided with information as to defendant’s costs for certain items sold to plaintiff for use in the funeral service. The cost information disclosed the amount of profit that defendant received on certain of those items.

Plaintiff then filed the instant action individually and on behalf of all others similarly situated, alleging that defendant had employed deceptive practices by creating the impression that all items listed on the form agreement under the heading “additional items” were cash advances upon which defendant was making no profit, notwithstanding that defendant did make a profit on certain items. Count I of the complaint sought relief under section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1977, ch. 121*2, par. 262) (the Act). Count II of the complaint sought relief under a common law theory of fraud.

Defendant filed a motion to dismiss the complaint, alleging that both counts of the complaint should be dismissed because the form used by defendant was not deceptive as a matter of law. Further, defendant sought dismissal of count I on the ground that plaintiff had not alleged that he made arrangements with defendant for any funeral services or that he ever received the form. Defendant sought dismissal of count II on the ground that plaintiff failed to allege all of the necessary elements of fraud. The trial court granted defendant’s motion to dismiss, finding that the form was not deceptive as a matter of law. The trial court further found with respect to count I that it was insufficient in law and failed to state a claim upon which relief could be granted because it did not allege that plaintiff arranged for the funeral service or that plaintiff relied upon any actions of defendant. The trial court also found with respect to count II that it was insufficient in law and failed to state a claim upon which relief could be granted because it did not allege the necessary elements of fraudulent concealment.

Plaintiff appeals, contending that the trial court erred in granting defendant’s motion to dismiss for the reason that the form used by defendant was deceptive as a matter of law. Furthermore, plaintiff contends that the trial court erred in granting defendant’s motion to dismiss because count I properly stated a cause of action under the Act and count II properly stated a cause of action under a theory of common law fraud.

As a preliminary matter, we note that defendant’s motion did not recite if it were made pursuant to section 45 or section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48). The order dismissing the complaint stated that the motion had been made pursuant to both sections 45 and 48. However, the motion did not allege the existence of affirmative matter avoiding the claim as required of a motion made pursuant to section 48. Instead, the motion attacked the complaint on the ground that as a matter of law it did not state a cause of action and on the ground that certain specified portions of the complaint were insufficient in law. These are grounds for dismissal under section 45, and we will therefore treat defendant’s motion as one made under that section.

On a motion to dismiss, we accept as true all well-pleaded facts. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill. 2d 93, 187 N.E.2d 722; Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790.) In addition, a complaint should not be dismissed unless the pleadings disclose that no set of facts could be proved that would entitle plaintiff to relief. Fitzgerald.

Plaintiff argues that the trial court erred when it granted defendant’s motion to dismiss because defendant’s form was deceptive as a matter of law. Plaintiff contends that the separation of the “unit service” and the “additional items” in the form agreement gives the impression that the “additional items” include solely third-party advances, for the reason that the “unit service” consists of retail sales and services only. We disagree. We find that the form was not deceptive either within the meaning of section 2 of the Act, as alleged in count I, or based upon a theory of common law fraud, as alleged in count II.

Section 2 of the Consumer Fraud and Deceptive Business Practices Act provides:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act,’ approved August 5, 1965, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretation of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.” (Ill. Rev. Stat. 1977, ch. 121½, par. 262.)

Although the legislature is without authority to state explicitly how the judiciary shall construe a statute, Federal authorities will be consulted where there is lack of Illinois precedent. Fitzgerald v. Chicago Title & Trust Co. (1977), 46 Ill. App. 3d 526, 361 N.E.2d 94, aff'd (1978), 72 Ill. 2d 179, 380 N.E.2d 790; People v. Crawford Distributing Co. (1973), 53 Ill. 2d 332, 291 N.E.2d 648.

The Federal Trade Commission Act in section 5(a)(1) provides (15 U.S.C. §45(a)(1) (1976)):

“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.”

Under section 5(a)(1), an act or practice is deceptive or unfair if it has the capacity or tendency to deceive. (Vacu-Matic Carburetor Co. v. Federal Trade Com. (7th Cir. 1946), 157 F.2d 711, cert. denied (1947), 331 U.S. 806, 91 L. Ed. 1827, 67 S. Ct. 1188.) What is required is a showing that the acts and practices were capable of being interpreted in a misleading way. Resort Car Rental System, Inc. v. Federal Trade Com. (9th Cir. 1975), 518 F.2d 962.

We find that the separation of the “unit service” and the “additional items” in the form in no way gives the impression that the “additional items” include solely third-party advances. The form sets forth in clear language that the items listed under “additional items” merely may have included some cash advances. Therefore, because the language used by defendant in its form does not have the capacity or tendency to deceive and the language is not capable of being interpreted in a misleading way, we find that the trial court properly dismissed count I of the complaint.

Count II was also properly dismissed. “[T]he elements of a cause of action for fraudulent misrepresentation (sometimes referred to as ‘fraud and deceit’ or ‘deceit’) are: (1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance.” (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599.) Furthermore, although a statement may be technically true, it may nevertheless be fraudulent where it omits qualifying material since “a half-truth is sometimes more misleading than an outright lie.” St. Joseph Hospital v. Corbetta Construction Co. (1974), 21 Ill. App. 3d 925, 953, 316 N.E.2d 51.

As we stated earlier, the separation of the “unit service” and the “additional items” in the form, used by defendant in no way gives the impression that the “additional items” include solely third-party advances and the form clearly sets forth that the items listed under “additional items” merely may have included some cash advances. We find that these statements made in the form were neither half-truths nor misleading. The trial court properly dismissed count II of the complaint.

Because we find that the complaint was properly dismissed for the reason that the form was not deceptive as a matter of law, we need not reach the question of whether or not the complaint sufficiently alleged other facts necessary to state a cause of action under section 2 of the Act or under a theory of common law fraud.

Judgment affirmed.

CAMPBELL, P. J., and GOLDBERG, J., concur.


author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRENCE McCARTHY, Defendant-Appellant.
    First District (2nd Division)
    No. 80-900
    Opinion filed December 8, 1981.

      Burke and Smith, Chartered, of Chicago (Raymond J. Smith, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and James Klein, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

This case arises out of the shooting of Dolores Custodio by Terrence McCarthy, defendant, an off-duty Chicago police officer. Defendant conceded that he shot Custodio, but claimed the shooting was in self-defense. Defendant was charged by information with attempted murder, three counts of aggravated battery, and four counts of armed violence. (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4,12—4, 33A — 2.) After a bench trial, defendant was found guilty of one count of aggravated battery and sentenced to 30 months probation.

Defendant claims that he was not proved guilty beyond a reasonable doubt. Because we feel the evidence did not prove defendant guilty beyond a reasonable doubt, we will not address various alleged trial errors raised by the defendant.

Dolores Custodio was smelt fishing in Lake Michigan at Montrose Harbor in the city of Chicago with seven other people. They left the harbor at 4:30 a.m. on April 29,1979, having arrived the previous evening. Some persons in the group drank beer while fishing. The party left the harbor in the car of Dennis Edman, Custodio’s cousin. Dennis was driving, Elias (Junior) Acevedo was next to him, and Kenneth Edman and Keith Edman were also in the front seat. In the back seat, from the driver’s side to the passenger side, were Caesar Ortega, Dolores Custodio, and David James. Lying across the back seat and protruding from the rear passenger window was a flagpole that the group had taken from Waveland golf course.

The Edman car was southbound on Western Avenue, near Belmont, when there was contact between the flagpole and a car driven by defendant. Custodio claimed that, upon contact, the flagpole hit her in the face, causing substantial bleeding. Dennis Edman testified that he caught defendant’s car at the next stoplight, told him that defendant had hurt one of his passengers, that they were going to the hospital, and that he had defendant’s license number (BUM 1).

The occupants of the Edman car related the rest of the incident in a similar manner. While driving on Western Avenue, defendant’s car started bumping Edman’s. At one point, David James threw a full beer can at defendant’s car. A green car, apparently acting in concert with defendant’s car, cut off the Edman car. The Edman car then went in reverse with defendant’s car in pursuit. The cars stopped. Defendant got out of his car and came toward the Edman car with a gun in his hand. He started hitting the driver’s window with the gun. Junior got out of the Edman car and ran to the nearby city of Chicago police station at Belmont and Western. Custodio told the defendant to leave them alone. Then defendant stepped back and shot her in the face. Defendant got into his car and drove away, while the Edman car remained parked. Most members of the Edman party stated that the police arrived within two to three minutes after the shot was fired; Custodio stated it was 15 minutes to a half hour.

Defendant claimed that, after the contact with the flagpole, the Edman car bumped his car. A green car voluntarily entered the chase after the Edman car. When defendant approached the Edman car on foot, he rapped on the window with his badge, stated his office, and ordered the occupants out of the car. Dolores Custodio said, “I’m going to kill you, you pig.” Defendant saw her pointing a gun at him, so he stepped back and fired one shot. The Edman car drove away, and defendant pursued it. He lost it, and attempted to. find it for a half hour. Defendant then went to the 23d District police station at Addison and Halsted, and first went to the men’s room. There, he was confronted by the captain, who informed defendant he was being sought and to whom defendant turned in his gun. Defendant’s story was substantially corroborated by Tomalina Dedina, who was also in his car.

An investigating police officer testified on behalf of defendant that the Edman car and the area involved were searched but no flagpole was discovered.

A toy gun was found by the police in the glove compartment of the Edman car. Keith Edman, who was 12 years old, was playing with it throughout the evening, although Dolores Custodio denied any knowledge of its existence. Junior Acevedo told an investigating police officer that he thought the toy gun was on the floor of the auto during the incident, while Dennis James told the officer that he thought the gun was on the dashboard during the incident.

John Truppa, an elderly resident of the Belmont and Western area, stated that he heard a shot one night in April or May of 1979. He looked out the window a few minutes later and didn’t see any cars. Defense counsel attempted to establish the date by the fact that Truppa read about the incident in the newspaper the next day. The trial court sustained the State’s objection to this testimony.

The trial court found defendant guilty of aggravated battery and not guilty of attempted murder and armed violence. Defendant was sentenced to 30 months’ probation.

I

Defendant claims he was not proved guilty beyond a reasonable doubt. The trial produced two completely conflicting versions of the shooting of Dolores Custodio. The trial court believed the version of the occupants of the Edman car. In asking this court to reverse his conviction based on reasonable doubt, defendant is asking this court to review and evaluate the credibility of the witnesses. Defendant faces a strong presumption that the finding of the trier of fact with regard to the credibility of witnesses is correct.

A reviewing court may only disturb the trial court’s finding as to credibility when the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. (See, e.g., People v. Gunderson (1978), 66 Ill. App. 3d 516, 524, 383 N.E.2d 1296.) Where the evidence is merely conflicting, the reviewing court will not substitute its judgment for that of the trier of fact. (People v. Gunderson (1978), 66 Ill. App. 3d 516, 524.) This rule is not inflexible. When the record does not support the factual determinations, a court of review must reverse. People v. Ivy (1979), 68 Ill. App. 3d 402, 406, 386 N.E.2d 323; People v. Seymour (1977), 53 Ill. App. 3d 367, 372, 368 N.E.2d 1018 (probation revocation).

All the occurrence witnesses for the State were passengers in the car with Dolores Custodio. With the exception of David James and Elias Acevedo, they were relatives of and lived in the same apartment building as Custodio. Further, James and Acevedo were, respectively, 15 and 17 years old at the time of the occurrence and friends of the Edman family. Most of the occurrence witnesses conceded that they had all talked about the case together, and they all came to court together every day during the trial. At the time of the trial, Dolores Custodio had pending against defendant a personal injury claim, and some of the witnesses had spoken with her attorney about the case. Finally, many of the witnesses significantly changed their testimony at trial from earlier versions. The combination of these factors requires this court to carefully scrutinize the evidence.

Defendant claims that as he approached the car, Custodio verbally threatened him. He saw a gun and then fired at her. The occupants of the car deny the use of a gun by anyone in their car, yet a realistic-looking toy gun was found in their glove compartment. Everyone in the Edman car had a different story regarding the gun. Most conceded that the. gun belonged to 12-year-old Keith Edman, who had been playing with it at the lake. Dolores Custodio was the only one who denied any knowledge of the existence of the gun, although David James and Elias Acevedo testified that she was present while Keith was playing with the gun. David James initially told police that the gun was on the dashboard of the car during the drive, but disavowed this position at trial, claiming he did not see the gun in the car. Finally, Dennis and Keith Edman talked over their testimony before coming to court, and, as Dennis said, “We knew there might be an issue over the toy gun.”

Under close scrutiny, the testimony of all the State’s occurrence witnesses contains substantial discrepancies. Dolores Custodio, who had a personal injury claim pending against defendant, denied knowledge of the existence of the gun, even though it was displayed for some time in her presence. In her initial statement to the police on the evening of the incident, she did not mention anything about being hit in the face by the flagpole, the event which in her later story was the catalyst of the entire incident. Finally, in her earlier statement to the police, she told of obscenities being exchanged between the passengers of the two cars. At trial, she denied hearing any obscenities coming from her car.

Dennis Edman, the driver of the car and Custodio’s cousin and neighbor, initially told police that defendant’s gun discharged while defendant was banging on the window with it. At trial, he repudiated this version and told of defendant deliberately shooting into the car. In the interim, he had discussed the case with the other occupants of the car and Custodio’s personal injury attorney. At the preliminary hearing, Dennis stated that he saw defendant reach out of his car and pull the flagpole. At trial, he denied seeing this. Also at the preliminary hearing, Edman testified that he shouted obscenities at defendant’s car. At trial, he was not sure.

David James, who was 15 years old at the time of the incident, initially told police that the gun was on the dashboard of the car during the ride. At trial, he testified that he did not see the gun in the car.

Kenneth Edman, Dennis Edman’s son, who was 17 years old at the time of the incident, also initially told police that defendant’s gun discharged when banged on the car window. Like his father, he changed his story at trial. He admitted that he discussed his planned testimony with his father, and that he read the transcript of his father’s preliminary hearing testimony several days before trial. Further, he testified that his father, Dennis Edman, shouted obscenities at defendant’s car prior to any contact between the cars.

Elias (Junior) Acevedo was 16 years old at the time of the incident. His testimony is riddled with inconsistencies. All the occupants of the car testified that Junior ran to the police station for help. All the testimony was that he left before the shot was fired, and Junior stated that he was at the police station when he heard the shot. Yet the “flash message” that went out over the police radio was “woman shot.” Further, Junior and most of the witnesses testified that Junior took two minutes to get to the police station and back. Junior claimed that Custodio was already removed from the scene when he returned, but others testified that she was still there. Finally, Junior initially told the police that he was in the car when defendant started banging on the window. At trial, he and all the others stated that Junior left to go to the police station prior to defendant’s arrival at the car.

We must conclude that the testimony of the occupants of the Edman car raises a reasonable doubt concerning the incident. There are too many instances of witnesses changing their stories, too many details that are inconsistent, and too many details that are exactly the same in the testimony of several witnesses. The testimony of the victim Custodio is too conflicting and too inconsistent to be believed. We find the evidence so unsatisfactory that it cannot satisfy the requirement that defendant’s guilt be proved beyond a reasonable doubt.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

Reversed.

HARTMAN, P. J„ and STAMOS, J„ concur.

       At oral argument before this court, defendant's lawyer suggested that the Edman car and group returned to the identical location by the time the police arrived. However, the record is not clear on this point.

       The record is silent as to where, when, and how the police received information regarding this incident.

       It is to be noted that defendant’s brief in this court did not contain an appendix, a copy of the notice of appeal, or an index to the record on appeal. These omissions are in contravention of Supreme Court Rule 342. See People v. Mitchell (1981), 95 Ill. App. 3d 779, 792 n.4, 420 N.E.2d 415.


author: PRESIDING JUSTICE HARTMAN

text:
    NANCY KOHAN et al., Plaintiffs-Appellants, v. RIMLAND SCHOOL FOR AUTISTIC CHILDREN et al., Defendants-Appellees.
    First District (2nd Division)
    No. 80-2765
    Opinion filed December 8, 1981.

      Law Office of Martin E. Litwin, of Chicago, for appellants.
    Louis B. Garippo, Ltd., of Chicago (David A. Novoselsky, of counsel), for appellees.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiffs, Nancy Kohan, Terry Winter and Alan M. Katz, individually and as members of a putative class, appeal from an order dismissing their complaint pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45), for failure to state a cause of action, and awarding certain equitable relief in favor of defendants, Rimland School for Autistic Children (School), a not-for-profit organization, its president, and a director. The complaint alleged that defendants were seeking to deprive them of their voting rights at the 1980 annual meeting in violation of the School bylaws. Defendants responded with an answer, affirmative defenses, and a counterclaim, the latter seeking a determination that their actions were valid and an injunction prohibiting plaintiffs from participating in the annual meeting for election of School officers.

The trial court dismissed the complaint and ordered that the annual meeting take place in court under certain specified conditions, the most prominent of which are set forth later in the opinion. After judgment was entered and while the appeal was pending, a motion was filed by defendants, supported by an affidavit of one of defendants, Rosalind Oppenheim, seeking to dismiss the appeal upon grounds of mootness because the 1981 annual meeting and election of officers was held on May 19, 1981, and had not been set aside.

The issues raised on appeal include whether: the complaint states a cause of action for injunctive relief; an oral order simultaneously dismissing the complaint and granting relief pursuant to defendants’ counterclaim denied plaintiffs the right to amend their complaint; and the trial court, without a prior evidentiary hearing, could properly grant the equitable relief hereinafter set forth. For the reasons which follow, we reverse and remand with directions to dismiss the complaint and counterclaim.

The class action purported to represent members of the School who: had paid their annual dues; were currently delinquent in their annual dues; and to represent persons who desired to become paying members of the School, respectively. The complaint alleged that the School president, Dr. Ding Djung Yang, issued a letter on May 10, 1980, for the sole purpose of depriving plaintiffs of their rights to membership on the board of directors and disenfranchising their voting rights, in contravention of the bylaws. That letter provided that only members in “good standing” on May 10, 1980, would be eligible to vote at the 1980 annual meeting to be held on June 10, 1980. Article III, section 1 of the bylaws provides that members in “good standing” are those who have paid dues for the current fiscal year. Plaintiffs sought to enjoin defendants from enforcing the May 10 cutoff date for participating in the election.

Defendants’ answer denied the pivotal allegations asserted in the complaint and affirmatively alleged that: the School, since its inception, had established a precedent of setting a cutoff date for eligibility to vote; the number of memberships had theretofore averaged 50 for the entire life of the corporation; and plaintiffs represented a class of 535 who were not of record on May 10, 1980, and were attempting to undermine the established voting policies of the School. The bylaws provided that membership was opeii to all persons sympathetic to the purpose of the School upon payment of annual dues, $5. Defendants’ counterclaim sought a finding that the actions of defendants-counterplaintiffs on May 10,1980, be deemed proper and that plaintiffs-counterdefendants be enjoined from voting in the annual meeting.

On September 12, 1980, defendants made an emergency motion for immediate hearing on all pleadings, alleging that as a result of the instant dispute neither the School budget nor the teacher contract had been approved and that continued delay would wreak havoc on School programs. Four days later, the trial court entered an order attempting to maintain the status quo. On October 9, 1980, the trial court orally announced that the complaint was dismissed for failure to state a cause of action. Further, pursuant to the counterclaim, only members in good standing on May 1, 1980, would be allowed to .vote. Finally, the 1980 meeting would take place on November 6 in open court without the use of proxies. No evidence was adduced at this proceeding.

The motion to dismiss the appeal, supported by affidavit, which stated that the 1981 annual meeting was held on May 19 of the same year at which time a new board of directors was elected, must be given threshold consideration. Of necessity, this court is obligated to consider facts, even those extrinsic to the record, which affect its right and duty to proceed in its exercise of appealable jurisdiction. We therefore take notice of such meeting and election. (La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 379, 121 N.E.2d 486; Meyer v. Marshall (1976), 62 Ill. 2d 435, 438, 343 N.E.2d 479.) We conclude from the affidavit that this appeal is moot.

A case is moot when it involves no real controversy. (Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 654, 422 N.E.2d 907). A case will not be reviewed merely to resolve moot or abstract questions, to establish precedent, or to render a judgment to guide future potential litigation. {La Salle National Bank v. City of Chicago.) Nevertheless, cases concerning the public interest may be considered by a reviewing court even though they involve moot questions. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 622, 104 N.E.2d 769.) In determining whether a case falls within such an exception, a court must consider the public nature of the question, the need for an authoritative determination for future guidance of public officers and the likelihood of future recurrence of the question. (411 Ill. 618, 622.) A clear showing of all three factors is needed to bring a case within the public interest exception. People ex rel. Cairo Turf Club, Inc. v. Taylor (1954), 2 Ill. 2d 160, 164, 116 N.E.2d 880; In re Johnson (1977), 53 Ill. App. 3d 921, 925, 369 N.E.2d 70.

Applying the above principles to the present case, since the 1981 election has already taken place, it has ineluctably rendered moot the 1980 controversy, which is the only election involved in this appeal. (People ex rel. Lawrence v. Village of Oak Park (1934), 356 Ill. 154, 156-57,190 N.E. 286; People ex rel. Chancellor v. Sweitzer (1928), 329 Ill. 380, 381, 160 N.E. 747; Sokolowski v. Board of Election Commissioners (1967), 89 Ill. App. 2d 60, 62-63, 232 N.E.2d 229.) The relief requested in plaintiffs’ complaint, an injunction which, in effect, would have permitted plaintiff.»; to participate in the 1980 election, manifestly can no longer be granted. It is equally obvious that the question involved in this controversy, namely, what persons are eligible to vote in an election involving a small private school equipped to teach a limited number of autistic children, fails to fall within the strictures of the public interest exception. Nor is there a need for an authoritative determination to guide the prospective acts of public officers. In re Johnson (1977), 53 Ill. App. 3d 921, 924-25; Hill v. Murphy (1973), 14 Ill. App. 3d 668, 670-71, 303 N.E.2d 208.

Whether the complaint states a cause of action or whether plaintiffs were improperly barred from seeking leave to amend their complaint cannot be reviewed by reason of mootness. We are constrained to note, however, that the order, entered without benefit of a prior evidentiary hearing, which, in effect, enjoined plaintiffs from participating in the annual election, was erroneous, since, in substance it had the effect of granting permanent injunctive relief without affording the parties an opportunity to present evidence in support of their respective positions. Pfeffer v. Lebanon Land Development Corp. (1977), 46 Ill. App. 3d 186, 193-94, 360 N.E.2d 1115; James B. Beam Distilling Co. v. Foremost Sales Promotions, Inc. (1973), 13 Ill. App. 3d 176, 178, 300 N.E.2d 488.

Notwithstanding the foregoing, the motion to simply dismiss the appeal cannot be granted, for such a disposition leaves the erroneous order in effect, and may adversely affect the rights of appellants by way of res judicata. (Meyer v. Marshall (1976), 62 Ill. 2d 435, 438; La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 382; U-Haul Co. v. Town of Cicero (1980), 87 Ill. App. 3d 915, 919, 410 N.E.2d 286.) To insure that an order below has no such effect, we reverse and remand the cause with directions to vacate the order, and to dismiss both the complaint and countercomplaint. Board of Education v. Ellis (1975), 60 Ill. 2d 413, 417, 328 N.E.2d 294; Maywood Park Trotting Association v. Illinois Harness Racing Com. (1959), 15 Ill. 2d 559, 563-64, 155 N.E.2d 626; Bankers Life & Casualty Co. v. City of Chicago (1961), 21 Ill. 2d 172, 176-77, 171 N.E.2d 577; Save-At Builders Products Co. v. American Federation of State, County, & Municipal Employees (1973), 13 Ill. App. 3d 846, 849, 301 N.E.2d 67.

Reversed and remanded with directions.

STAMOS and DOWNING, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARA SIEGEL, Contemnor-Appellant.
    First District (3rd Division)
    No. 80-1265
    Opinion filed December 9, 1981.
    Michael Deutsch and Shelly A. Bannister, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Mara Siegel appeals from an order of the circuit court of Cook County which held her in direct contempt of court and fined her $1000.

Contemnor was the attorney for Marie Rodriguez, a member of the F.A.L.N. (Armed Forces for National Liberation of Puerto Rico), who was charged with armed robbery, armed violence and possession of a stolen vehicle. When she appeared in court on April 28, 1980, Rodriguez asserted that she was a prisoner of war, that the trial court had no jurisdiction over her, and that she waived her right to counsel. Because of Rodriguez’ disruptive conduct at the court appearance, the trial court ordered that she be gagged.

The following day the court ordered that Rodriguez be returned to the courtroom so that he could advise her of her right to counsel pursuant to Supreme Court Rule 401. (Ill. Rev. Stat. 1979, ch. 110A, par. 401.) When the case was called, the contemnor approached the bench and the following colloquy occurred:

“Ms. Siegel: Judge, I’d like to object for the record, Mara Siegel, and I am one of the legal advisors of the defendant. I’d like to protest, she is a prisoner of war. This court does not have jurisdiction to bar people from the courtroom, nobody was even allowed * * *
The Court: Have you filed your appearance?
Ms. Siegel: I do not have an appearance on file. I am going to object to the binding and gagging of Miss Rodriguez. The Court does not have jurisdiction to try her. She is a prisoner of war. It is her demand as the demand of all of her friends is that they be transferred to an international tribunal where their case can be heard and they be adjudged as prisoners of war. This is outrageous display of the United States cruel and inhumane treatment. # ”
The Defendant: Imperialist.
Ms. Siegel: For people and especially their political belief. I will object to this, to the defendant presently being bound and gagged and handcuffed and held by three marshalls.
The Court: Let the record show I stated to you when you came into my chambers, you will not be allowed to stay in this courtroom unless you file an appearance the way an appearance should be filed * * °
The Defendant: I waive the right of counsel. I am here against my will.
The Court: Let me say this, I asked you when you came out and because of your outrageous behavior * * ”
The Defendant: I am a prisoner of war.
The Court: Behavior, you are in contempt of this Court. You are fined $1000.00 and you will remain in the custody of the sheriff until that money is paid. ” * 6 I wish the State to draw up a contempt citation regarding this attorney e *

In his written order finding contemnor in direct contempt of court, the trial court stated that prior to the case of People v. Rodriguez being called, contemnor appeared in his chambers and introduced herself as an attorney at law. The court informed her that unless she filed a formal appearance as attorney for Rodriguez, she would not be allowed to address the court when the case was called.

Contemnor contends that her conduct did not constitute direct contempt of court. Contempt of court has been defined as conduct calculated to embarrass, hinder or obstruct a court in the administration of justice, to derogate from its authority or dignity or bring the administration of law into disrepute. (In re Estate of Melody (1969), 42 Ill. 2d 451, 248 N.E.2d 104; People v. Edwards (1979), 69 Ill. App. 3d 626, 387 N.E.2d 969.) As a general rule, direct contempt occurs in the presence of the court so that all of the elements of the offense are within the court’s personal knowledge. (People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 364 N.E.2d 50, cert. denied (1978), 434 U.S. 1023, 54 L. Ed. 2d 771, 98 S. Ct. 750.) Because contumacious conduct is committed in the presence of the court, the contemnor may be adjudged and punished in a summary manner. (City of Chicago v. Chicago Fire Fighters Union (1981), 99 Ill. App. 3d 583, 425 N.E.2d 1071.) The power to punish for direct contempt is an extraordinary power. (People v. Miller (1972), 51 Ill. 2d 76, 281 N.E.2d 292.) Therefore, the court must exercise its power prudently and judiciously because normal constitutional safeguards are not applicable. People v. Kuelper (1977), 46 Ill. App. 3d 420, 361 N.E.2d 29.

In the instant case the basis for the finding of contempt was contemnor’s violation of the court’s order given in chambers that she could not address the court unless she filed a formal appearance. There is no copy of this order in the record. Contemnor asserts that she did not file an appearance pursuant to the explicit instructions of her client. Rodriguez apparently felt that any participation in the legal proceedings would jeopardize her claim under international law. Siegel argues that her brief statement concerning the court’s treatment of her client did not disrupt, obstruct, embarrass or denigrate the court in any manner. She denies that the court gave her any order in chambers concerning the filing of her appearance. She points out that although the written order of contempt states that she was instructed not to address the court unless she filed an appearance, the report of proceedings for April 29,1980, reveals that the court stated that he had told her that she could not stay in the courtroom without filing an appearance.

Assuming, as we must, that the court did instruct her to remain silent in the courtroom unless she filed an appearance, contemnor’s disobedience of this order was certainly wrong. However, under the circumstances of this case, we cannot say that it was contemptuous.

In the instant case Siegel was instructed by her client not to file an appearance since her client had no intention of participating in the trial. Contemnor observed her client being brought into the courtroom by three deputy sheriffs bound and gagged, a situation which in itself is an affront to the dignity and decorum of judicial proceedings. (Illinois v. Allen (1970), 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057.) At this point contemnor approached the bench and identified herself, objected to the treatment of her client, and explained her client’s position concerning the court’s jurisdiction. Contemnor’s statement did not interrupt the proceeding; she spoke as soon as the case was called, and spoke briefly without disrespect or any personal attack upon the court. The trial court immediately and without warning held her in contempt and placed her in the custody of the sheriff.

We cannot say that contemnor’s conduct was calculated to embarrass the court, to lessen its dignity or to bring the administration of law into disrepute. We believe that her action was in good faith and in the best interest of her client, and therefore, it should not serve as a basis for a charge of contempt. See People v. Kuelper.

For this reason, the judgment of the circuit court of Cook County is reversed. We therefore need not consider the contemnor’s second argument that the $1000 fine was excessive.

Reversed.

McNAMARA and WHITE, JJ., concur.

       Rodriguez and 10 additional members of the F.A.L.N. have submitted to the United Nations a petition in which they seek recognition of their status as prisoners of war.


text:
    SARAH SCHUMAN, Plaintiff-Appellant, v. PEKIN HOUSE RESTAURANT AND LOUNGE et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80-1612
    Opinion filed December 9, 1981.

      Richter & Tucker, Ltd., of Chicago, for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Lenard C. Swanson and William D. Serwer, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The plaintiff, Sarah Schuman, brought this action for damages she suffered when she fell on a public sidewalk abutting the defendant Pekin House Restaurant in Chicago. Defendants Quinn S. Fung and Kathleen Fung are the beneficial owners of the land trust which owns the real estate upon which the restaurant is situated. The trial court entered summary judgment in favor of all defendants except the city of Chicago, and the plaintiff appealed. This action is pending against the city of Chicago.

In her complaint the plaintiff alleged that the sidewalk in front of the restaurant was “cracked, uneven, poorly and negligently patched and in a state of disrepair”. She further asserted that the defendants allowed the sidewalk to remain in this state and that they repaired a portion of it in a poor and negligent manner which resulted in cracks and unevenness.

Defendants filed a motion for summary judgment in which they stated that they did not own the public sidewalk in front of the restaurant and that they had no duty to maintain it. In an affidavit accompanying the motion, Quinn S. Fung stated that at no time did anyone associated with the restaurant perform or secure the performance of any cement patching or repair work upon said sidewalk.

In her response to the motion for summary judgment, the plaintiff attached a portion of Quinn S. Fung’s deposition in which he admitted that restaurant employees swept the sidewalk in front of the restaurant.

On April 22, 1980, the trial court entered its order of summary judgment. On appeal the plaintiff contends that this order was improper since the pleadings raised certain factual issues. The plaintiff contends that there was an issue of fact as to whether the defendants had a duty to repair the sidewalk; whether the defendants gratuitously assumed this duty; and whether the sweeping of the sidewalk by defendants’ employees accentuated the unevenness and cracks in the sidewalk.

Summary judgment is properly granted when the pleadings, depositions and admissions on file, together with any affidavits, establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1979, ch. 110, par. 57(3); Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535.) The right of the movant to summary judgment must be free from doubt, and any evidence in support of the motion must be strictly construed against the movant. Lesnik v. Estate of Lesnik (1980), 82 Ill. App. 3d 1102, 403 N.E.2d 683.

The plaintiff first argues that the defendants owed her a duty to repair the cracks in the sidewalk. However, as a general rule, an owner or occupier of premises is not liable for personal injuries incurred on a public sidewalk under the control of a municipality. (Decker v. Polk Brothers (1976), 43 Ill. App. 3d 563, 357 N.E.2d 599; Burns v. Kunz (1937), 290 Ill. App. 278, 8 N.E.2d 360.) Its only duty is to exercise ordinary care not to create an unsafe condition which would interfere with the customary and regular use of the walk. (Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 405 N.E.2d 1383.) Thus, the defendants had no duty to repair or maintain the public sidewalk.

Two cases cited by the plaintiff in support of her argument that the defendants owed her a duty to maintain the sidewalk in order to provide a safe means of ingress and egress are clearly distinguishable in that they did not involve public sidewalks. In Steinberg v. Northern Illinois Telephone Co. (1931), 260 Ill. App. 538, the plaintiff fell on a building’s interior stairway. In Cooley v. Makse (1964), 46 Ill. App. 2d 25, 196 N.E.2d 396, the plaintiff fell on a brick walk which led from the front door of a tavern to the city sidewalk. The court specifically noted that the use of the brick walk was factually different from the use of the normal sidewalk by the general public.

The plaintiff also argues that by gratuitously sweeping the sidewalk, the defendants assumed the duty to maintain it and to keep it in good repair. She points out that in his deposition Quinn S. Fung admitted that restaurant employees swept the sidewalk. We cannot say, however, that the mere act of sweeping debris from, a public sidewalk imposes upon the defendants a legal duty to maintain and repair it.

In the alternative the plaintiff contends that the sweeping of the debris from the sidewalk accentuated the unevenness and cracks of the sidewalk. This issue was not raised in the trial court. An issue not presented to or considered by the trial court cannot be raised for the first time on review. This rule is applicable even if the appeal is from a summary judgment. (Cardamone v. Allstate Insurance Co. (1977), 49 Ill. App. 3d 435, 364 N.E.2d 460.) Consequently, we will not comment on this novel argument on appeal.

The pleadings, depositions, and affidavits in the instant case failed to establish that the defendants owed any duty to the plaintiff. Thus, the defendants were entitled to summary judgment as a matter of law.

For this reason, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

RIZZI, P. J., and McNAMARA, J., concur.

       Hereafter, “the defendants” refers to all defendants except the city of Chicago.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES GLOVER-EL, a/k/a James Derrick Glover, Defendant-Appellant.
    First District (4th Division)
    No. 80-1377
    Opinion filed December 10, 1981.
    Rehearing denied January 7, 1982.

      Ralph Ruebner and Phillip J. Zisook, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Kevin D. Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, James Glover-El, appeals his conviction for armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2), raising the following issues for review: (1) whether the trial court erred in refusing to suppress a gun seized during a warrantless entry into his home; (2) whether the trial court erred in refusing to quash his arrest; (3) whether out-of-court identification following and evidence seized during his alleged illegal arrest should have been suppressed; (4) whether the Illinois search without warrant statute is unconstitutional; (5) whether he was denied a fair trial where the State failed to provide prior statements of his co-defendant; (6) whether the trial court erred by allowing the State to amend the indictment so as to substitute the name of one complainant for another; (7) whether he was proved guilty beyond a reasonable doubt where the accomplice witness was a narcotics addict; (8) whether he was denied the right to effective assistance of counsel; and (9) whether remarks by the prosecution in closing argument were prejudicial.

We affirm.

On the evening of June 13, 1979, a robbery occurred at the Super X Food and Liquor Store on 83d and Racine in Chicago. LeRoy Weathers, a security guard authorized to carry a gun, testified that he had stopped in the store on his way to work. While there, a man put a gun to Weathers’ head, took his gun and told him to jump over a counter and lie flat on his face behind it. Someone took Weathers’ identification and his money. Several days later, Weathers identified Frederick Brown in a lineup as the man who had placed the gun to his head.

Terris Motten, manager of the Super X store, testified that on the evening of June 13, 1979, at around 10:50, he was waiting on Weathers when a man walked into the store, pulled out a gun and placed it against Weathers’ head. After the man instructed Motten to lie down behind the counter, someone searched Motten, taking his wallet with his driver’s license, cash and keys. Two hundred dollars was taken from the cash register. Several days later, Motten identified Frederick Brown in a lineup as the man who had pulled out the gun.

Frederick Woods testified that he walked into the liquor store while the robbery was in progress. A man at the cash register pointed a gun at Woods, told him it was a “stickup” and that Woods should go into the back room. The man with the gun was Frederick Brown, according to the witness. As Woods walked the 30 feet to the back room, he saw another man with a gun whom he identified in court as defendant Glover-El. The latter took Woods’ money. Woods testified that on the night in question the lights in the store were bright. Woods identified defendant Glover-El in a lineup on June 20,1979.

Frederick Brown, the State’s accomplice witness, testified that he intended to plead guilty to the charge of armed robbery at the Super X store in exchange for leniency. He stated that on the evening of June 13, he, Michael Jordan, and defendant robbed the liquor store. Brown’s testimony corroborated the accounts of the robbery given by the victims.

Before trial, a hearing was held on a motion to quash arrest and suppress evidence. The following was established.

On the evening of June 16, 1979, Chicago police received a teletype message from Wisconsin police. A parent had reported that his 15-year-old daughter was missing, that she was being held against her will at 6337 South Wood in Chicago, and that she had been raped several times. The message requested that Chicago police check to see whether the girl was at the address and if so, to pick her up and hold her, and then advise the reporting agency.

On the morning of June 17, 1979, five police officers went to the house at 6337 South Wood. When they arrived, two men jumped out of a window of the house and fled. The police chased and arrested the men. At that time, needles and syringes were discovered near the window. The men arrested were Frederick Brown and Michael Jordan.

Officer Phillip Chomiak testified that defendant Glover-El was standing in the doorway to the house. Chomiak identified himself, told Glover-El that he had information concerning a girl who was being held against her will in the house, and gave defendant a copy of the message about the girl. When Chomiak said he would like to investigate the matter himself, Glover-El permitted the officer to enter and look for the girl. Officer William O’Neil also testified that Glover-El gave the policemen permission to enter the house. However, Glover-El stated that he did not permit the officers to come inside but asked them whether they had a warrant. According to Glover-El, the police then just pushed by him.

Officer Chomiak entered the house. In the living room he saw five people, none of whom was the missing girl. In a second floor bedroom, the officer saw the handle of a gun sticking out of a woman’s purse. He seized the gun and the purse. When he returned to the living room, he asked who owned the purse. When Jacqueline Brown claimed it as her own, Chomiak arrested her for failure to possess city registration and a State gun owner’s identification card. The police did not find the missing girl.

When Officer Chomiak returned to headquarters, he discovered that the gun he had seized belonged to LeRoy Weathers, the security guard who had been a victim of the armed robbery at the Super X store. The officer then obtained descriptions of the offenders from the policemen who were investigating that robbery. Chomiak informed the officers that he had in custody certain individuals who matched the descriptions, but a person who also matched one of the descriptions had not been arrested.

Officer Dale Riordan testified that on the afternoon of June 17,1979, he and other officers went to the house on Wood Street. Upon entering, they saw a person who matched a description of one of the participants in the robbery. When Riordan first saw defendant Glover-El, he was in a first floor bedroom. Policemen were handcuffing Glover-El when one of the officers picked up a wallet lying on a dresser a few feet away. The officer said the wallet belonged to a victim of the June 13 robbery. It contained the driver’s license of Terris Motten, the manager of the Super X store.

On the evening of June 17,1979, Glover-El and Brown were placed in a lineup which was viewed by Weathers and Motten. Only Brown was identified as a participant in the robbery. Glover-El was released because he was not identified. On June 18,1979, Frederick Woods, another victim of the robbery, identified defendant Glover-El from a group of six photographs. Defendant was arrested on June 20,1979, while standing on a sidewalk. Woods identified Glover-El in a lineup that evening.

Defendant’s first contention is that the trial court erred in refusing to suppress a gun seized during a warrantless entry into his home on the morning of June 17,1979. Citing several authorities, defendant argues that the message from Wisconsin police that a young woman was being held against her will was not probable cause to enter and search his house (People v. Gates (1981), 85 Ill. 2d 376, 423 N.E.2d 887), and that no consent to search was given, and even if it had been given the police search exceeded such consent (People v. Schmoll (1943), 383 Ill. 280, 48 N.E.2d 933; United States v. Dichiarinte (7th Cir. 1971), 445 F.2d 126). Since we hold that defendant willingly permitted the police to search his home on the morning in question, we need only address the issue of whether the consent was exceeded.

Warrantless searches are unreasonable under the fourth amendment with a few exceptions. (People v. Sanders (1976), 44 Ill. App. 3d 510, 514, 358 N.E.2d 375, 378.) Consent, which waives constitutional protection, is one of the exceptions. (Sanders, at 514.) A reviewing court will accept the trial court’s finding on the issue of consent unless that finding is clearly unreasonable. (Sanders, at 514.) In this case, the finding of consent was reasonable. Two policemen testified that Glover-El gave permission to search the house although defendant himself denied this. The judge viewed the appearance and demeanor of the witnesses and could reasonably find that defendant consented to the search.

Defendant argues, alternatively, that even if consent were given the search exceeded that consent. Defendant states that the police should have looked into the bedroom to see whether a female was in the room without examining it further. According to defendant, consent to search for a female was not consent to conduct a general exploratory search. However, the authority cited by defendant, United States v. Dichiarinte (7th Cir. 1971), 445 F.2d 126, should not be interpreted in this manner. In Dichiarinte, the court held that consent to search a home for narcotics was not consent to read personal papers for hints of criminal activity. (Dichiarinte, at 130.) In this case, the search did not exceed the bounds of the consent given. The officer looked into the bedroom and saw the handle of a gun sticking out of a purse. The officer was legitimately on the premises, the gun was in plain view, and he had a right to seize it. (See People v. Dennison (1978), 61 Ill. App. 3d 473, 478, 378 N.E.2d 220, 224.) Since the gun was seized during a consensual entry into defendant’s home, the trial court properly denied the motion to suppress.

Defendant’s second contention is that the trial court should have quashed his arrest made on the afternoon of June 17, 1979. At the suppression hearing, Glover-El testified that the police had neither a warrant to arrest nor a warrant to search the premises when they arrested him and seized a driver’s license and wallet, and that subsequently he was placed in a lineup, photographed and released. Officer Riordan testified that on the afternoon of June 17, 1979, the police “entered” defendant’s home. There is nothing in the record to indicate how police gained entry into the house.

The fourth amendment to the United States Constitution prohibits police from making a warrantless, nonconsensual entry into a suspect’s home in order to make a routine felony arrest absent exigent circumstances. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) The State argues that even assuming an unauthorized entry, the officers were justified in arresting defendant in his home because of the presence of exigent circumstances. The following factors are to be considered in determining whether exigent circumstances exist: the gravity or violent nature of the offense; whether the suspect is reasonably believed to be armed or has exhibited signs of a violent character; a clear showing of probable cause to believe the suspect committed the crime; whether the suspect is believed to be on the premises; the likelihood the suspect will escape; the peacefulness of the entry; prompt action by the police in proceeding to arrest the suspect after having gained information establishing probable cause; and no delay during which time a warrant could have been obtained. (People v. Thompson (1981), 93 Ill. App. 3d 995, 1004-05, 418 N.E.2d 112, 120.) These factors need not all be present and need only be satisfied on balance. Thompson, at 1005.

We hold that exigent circumstances justifying the warrantless entry to arrest defendant are not present in this case. Although armed robbery is a grave offense, the gravity of the offense does not of itself create an exigent circumstance. (See Mincey v. Arizona (1978), 437 U.S. 385, 57 L. Ed. 2d 290, 98 S. Ct. 2408.) The police did not have reason to believe Glover-El was armed and violent at the time of their afternoon entry, since he had peacefully allowed them to enter and search his house that morning. Moreover, they had no reason to believe defendant was still at home or that he was likely to escape. The offense had taken place on June 13, 1979. There was no showing that the police had to act without first obtaining a warrant because of the recentness of the offense and the need for prompt action within the spirit of the hot pursuit doctrine. (People v. Hart (1980), 88 Ill. App. 3d 484, 488, 410 N.E.2d 633, 636.) Since we hold that defendant’s arrest was illegal, the evidence seized as a result of that arrest — the wallet with the driver’s license identification — should have been suppressed.

We need not reach the issue of whether the out-of-court identifications should also have been suppressed. Even assuming that the photographic and lineup identifications were fruits of the illegal search, then-suppression would not affect the result in this case. The illegal arrest did not infect the victim’s ability to give accurate identification. (United States v. Crews (1980), 445 U.S. 463, 472, 63 L. Ed. 2d 537, 546, 100 S. Ct. 1244, 1250.) Woods’ courtroom identification rested on an independent recollection of his initial encounter with defendant uninfluenced by pretrial identifications. (Crews, 445 U.S. 463, 473, 63 L. Ed. 2d 537, 547, 100 S. Ct. 1244, 1251.) Woods walked 30 feet to the back of the liquor store with ample opportunity to observe Glover-El in the brightly-lit store. Woods’ in-court identification together with the gun and the accomplice testimony of Brown was sufficient evidence to support defendant’s conviction.

Although we hold that the June 17, 1979, arrest was illegal and the wallet and driver’s license should have been suppressed, this does not necessarily require reversal of defendant’s conviction. The standard for determining whether error is harmless or reversible is whether it is harmless beyond a reasonable doubt. (People v. Bascomb (1979), 74 Ill. App. 3d 392, 396, 392 N.E.2d 1130, 1133.) Error may be harmless because the error itself is inconsequential or, if the error is of a more serious nature, it may be deemed harmless when balanced against the strength of the State’s evidence. (Bascomb, at 398.) There was overwhelming evidence of defendant’s guilt. Frederick Brown, the accomplice witness, testified that Glover-El participated in the June 13 robbery; Woods identified defendant as a participant in the robbery; and the gun seized on the morning of June 17, 1979, in defendant’s home implicated Glover-El in the offense. Because of this holding, it is unnecessary for us to consider defendant’s contention that the Illinois search without warrant statute (Ill. Rev. Stat. 1977, ch. 38, par. 108 — 2(d)) is unconstitutional.

Defendant’s next argument is that he was denied a fair trial because the State failed to provide a prior statement of the accomplice witness, Frederick Brown. In a proceeding outside the presence of the jury, Brown testified as follows:

“Q. What did that assistant State’s Attorney say to you and what did you say to that assistant State’s Attorney at that time [after the lineup]?
A. He said — he said to me, ‘Well, we’re going to charge you with armed robbery and because you have been identified,’ and I don’t know for some other reason. I got mad and I walked away, you know, I said, ‘Well, yes. Well you got me anyway.’ You know, like that.”

Defendant claims that the failure to provide the statement, “Well, yes. Well you got me anyway” prejudiced defense counsel in preparing for an effective cross-examination.

The failure to comply with discovery constitutes reversible error when the defense has requested discovery and the evidence discoverable would have been material and also favorable to the defendant. (People v. Hutchison (1977), 55 Ill. App. 3d 716, 718, 371 N.E.2d 201, 203.) Defendant has not shown how the statement is favorable to him. Even if the statement were construed as an admission by Brown, it would have no impeachment value since Brown admitted his guilt at trial. In our opinion, the statement was not favorable to defendant, and no prejudice resulted. (Hutchison, at 720.) Therefore, we hold that the failure to provide the statement of the accomplice witness does not constitute grounds for reversal in this case.

Defendant contends the trial court erred in allowing the State to amend the indictment so as to substitute the name of one complaint for another where the grand jury had been sworn to such a charge. In the original indictment, Glover-El was charged in one count with the armed robbery of Frederick Woods by taking money from him and in another count with the armed robbery of Woods by taking money and a gun from him. The trial court allowed the State to amend the latter count by substituting the name of LeRoy Weathers for Frederick Woods. At the grand jury proceedings, the investigating officer reported that money was taken from Woods and that money and a gun were taken from Weathers.

An indictment may be amended on motion by the State’s Attorney or defendant at any time because of formal defects including a miswriting. (Ill. Rev. Stat. 1977, ch. 38, par. 111—5.) In the case at bar, the insertion of the name of Woods as the victim in both counts of armed robbery was a miswriting. The amendment to substitute the name of Weathers conformed the indictment to the evidence heard by the grand jury. That jury had heard no testimony that money and a gun had been taken from Woods.

A case in point is People v. Jones (1973), 53 Ill. 2d 460, 292 N.E.2d 361, in which the court allowed the amendment of an indictment to correct the victim’s first name because the correction was a mere formality. Where no hint of surprise or prejudice to the defendant was shown, allowance of the amendment was not error. (Jones, at 465.) In our case, the substitution of names was a formality, and defendant was not prejudiced because he was aware that he was charged with taking Weathers’ gun. We hold that the trial court properly allowed an amendment to the indictment so that it would conform to the charge approved by the grand jury.

Defendant contends he was not proved guilty beyond a reasonable doubt because the testimony of the accomplice witness, Frederick Brown, had grave inconsistencies and because Brown was a habitual drug addict. Whether accomplice testimony, corroborated or uncorroborated, is a satisfactory basis for conviction goes to the weight of the evidence and is in the province of the jury or court. (People v. Brisbon (1980), 89 Ill. App. 3d 513, 526, 411 N.E.2d 956, 966.) Brown’s testimony was only part of the evidence against Glover-El. Woods, who had ample time to observe, identified defendant at trial. Weathers’ gun was found in defendant’s home. Furthermore, Brown’s testimony about the robbery was consistent with the testimony of the victims and was not contradicted or significantly impeached. The jury’s verdict was supported by the evidence and left no reasonable doubt as to defendant’s guilt.

Defendant asserts that he was denied the right to effective assistance of counsel because his attorney refused to call alibi witnesses and to bring out certain questions about the State’s witness which were favorable to the defense. Glover-El’s attorney did not call certain witnesses who could not identify defendant as an offender because they had already testified and could add nothing more to the case to help defendant. Competency is determined from the totality of counsel’s conduct at trial and errors in judgment or trial strategy do not establish incompetency. (People v. Julian (1980), 89 Ill. App. 3d 60, 64, 411 N.E.2d 337, 340-41.) We find that the errors now asserted against defense counsel were in the nature of judgment and trial strategy which do not establish incompetency.

Finally, defendant argues that he was deprived of a fair trial because of improper and inflammatory remarks of the prosecutor during closing argument. The prosecutor made the following statements:

“[Y]our think about what Mr. Woods told you. 1 stopped in, I wanted to buy a pack of cigarettes and I walked in and I realized, oh, there is a robbery in progress. I realized it because I had to walk looking at the defendant Glover 30 feet in his direction.’
Now, you think about it when you go back to the jury room and you think about how long 30 feet is. Try pacing it off. It’s probably once around the jury room and you look at one of your fellow jurors—
# # #
In a few minutes — excuse me, a few days after that, Glover is arrested, put in a lineup and identified in that lineup. Nothing can erase the upset and the terror that went into those people at about 11 o’clock at night on June 13,1979.
You tell James Glover, ladies and gentlemen, with your verdict of guilty, that maybe he could duck from the first lineup, maybe he could duck and not be—
e # e
Maybe he was clever enough not to be seen because — and not be identified in the first lineup—
# e #
0 0 0 Now you heard from those two people, Mr. Motten, the manager, and Mr. Weathers, the security man, the customer. Remember what they said, that Frederick Brown came into this liquor store by himself and put a gun on the customer’s head, Mr. Weathers — she saw him testify, he was nervous enough testifying before you, citizens of the community. Can you imagine his condition at that time? Put your hands up, put your hands down, jump over the counter, and I can assure you that’s how it happened.”

These remarks were objected to by the defense and sustained by the court except the third remark. Any prejudice was cured by the judge’s instruction to the jury to disregard the comment. People v. Dominique (1980), 86 Ill. App. 3d 794, 408 N.E.2d 280.

Defendant also states that the prosecutors made improper signals to their witnesses during trial, but nothing in'the record indicates this other than defendant’s statement. A mere allegation is not sufficient to bring a matter to the attention of the reviewing court. Keehner v. A. E. Staley Manufacturing Co. (1977), 50 Ill. App. 3d 258, 261, 365 N.E.2d 275, 277.

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

Judgment affirmed.

ROMITI, P. J., and LINN, J., concur.