author: JUSTICE ALLOY

text:
      In re MARRIAGE OF DIANE J. KUSH, Plaintiff-Appellee, and RICHARD L. KUSH, SR., Defendant-Appellant.
    Third District
    No. 81-620
    Opinion filed May 12,1982.

      Winston J. Block, of Cirricione, Block, Krockey and Cernugel, P. C., of Joliet, for appellant.
    William J. Phelan, of Schenk, Andreano, Duffy, Quinn, McNamara & Phelan, of Joliet, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendant, Richard L. Kush, Sr., appeals from a judgment of the trial court awarding custody of the parties’ two minor children to the plaintiff, Diane J. Kush. The defendant also appeals the trial court’s decision to award the marital home to the plaintiff.

Although the defendant recited the details of the trial in his 25-page statement of facts, it is only necessary to indicate the most relevant facts for the purposes of this appeal. Richard and Diane Kush were married in March 1970 and divorced in November 1980. They have an 11-year-old son and a 9-year-old son. Mr. Kush manages an apartment complex and has a bachelor’s degree in business, a real estate broker’s license and some credits towards a master’s degree. He has a net income of approximately $200 per week and has a free apartment in the complex that he manages.

Mrs. Kush lives in the former marital home with the two children. She is a teacher’s aide at a development center for children with learning disabilities and behavioral disorders. Her hours are 8 in the morning to 3:30 in the afternoon. She is also in her senior year of college at Governor’s State University. She attends classes in the evenings and expects to receive a bachelor’s degree in June 1982 and a master’s degree in December 1983.

The trial court awarded custody of the children to Mrs. Kush, finding that she adequately cares for and supervises the children. In reaching its decision, the trial court also considered the relationship between the parents and the children and the adjustment of the children to the home, neighborhood and school. The trial court also awarded the marital home to Mrs. Kush. This home is the largest marital asset of the parties. They purchased this home in 1972 for $29,000. It is now worth between $45,000 and $50,000. Approximately $22,000 is left on the mortgage. The couple used part of Mrs. Kush’s $10,000 inheritance to meet the mortgage payments. Although those payments were four months delinquent at the time the couple separated, Mrs. Kush has since worked to make the payments current. In addition, she borrowed over $3,000 from her family to meet the mortgage payments since the couple separated. The trial court, as part of its order, directed Mrs. Kush to assume the mortgage payments and all current and delinquent property taxes.

The trial court also ordered Mr. Kush to pay approximately $4,000 in marital debts and to pay $25 per week, per child, in child support. The court also extinguished Mr. Kush’s $655 liability for delinquent mortgage payments and his $1,630 arrearage in child-support payments. There are no appeals from these parts of the trial court order.

Mr. Kush first complains that the trial court’s custody determination is contrary to the manifest weight of the evidence and an abuse of discretion. He argues that Mrs. Kush has far too burdensome work and academic schedules to properly care for the children, and that his flexible schedule and ability to spend more time with the children necessitate custody of them as a matter of law.

It is well-settled that the discretion of a trial court in awarding custody of children will not be disturbed unless contrary to the manifest weight of the evidence or unless manifest injustice would result. (In re Custody of Switalla (1980), 87 Ill. App. 3d 168, 175, 408 N.E.2d 1139.) The strong presumption in favor of the trial court’s determination rests on its superior position to analyze the credibility of the witnesses and the needs of the children. (Switalla.) In the instant case, the record indicates that Mrs. Kush relies heavily on three babysitters to help her take care of the ■ children when she is not home. Additionally, the record indicates that Mrs. Kush has left the children alone on a number of occasions, though she tries to avoid this as much as possible.

The fact that Mrs. Kush must leave the children when she works or attends school does not, alone, require a court to award custody to the father as a matter of law. It can be a factor in the determination, but it must be considered along with all other factors. Mr. Kush cites Applegate v. Applegate (1980), 80 Ill. App. 3d 81, 399 N.E.2d 330, to support his argument that insufficient time to devote to the care of the children and the constant shuffling of the children between home and the baby-sitters justifies an award of custody to Mr. Kush. In Applegate, however, the children were victims of abuse from the mother’s boyfriend and one of his sons, and the mother could not or would not act to prevent this abuse. Applegate, therefore, is clearly not analogous to the facts in the instant case.

Mr. Kush also complains that the trial court abused its discretion when it ignored the children’s preferences to live with him. In fact, Mr. Kush testified that the children want to live with him. The children themselves were not called as witnesses. In any event, the preferences of young children, though entitled to consideration, are not binding upon the court. (In re Marriage of Lovejoy (1980), 84 Ill. App. 3d 53, 55-56, 404 N.E.2d 1092.) We find no abuse of discretion in the trial court’s determination of custody.

The defendant also complains the trial court abused its discretion when it refused to grant his petition for partition of the marital home and awarded the home to Mrs. Kush. Mr. Kush relies upon Heldt v. Heldt (1963), 29 Ill. 2d 61,193 N.E.2d 7, and Kealey v. Kealey (1979), 77 Ill. App. 3d 962, 397 N.E.2d 5, to support his claim to an absolute right to partition of the marital home. Heldt, however, was decided prior to enactment of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.). Under the new act, partition of property owned jointly by a husband and wife is no longer an absolute right. Section 514 of the new act permits a court to entertain a petition for partition, but any rights to partition must yield to the court’s disposition of marital property. (Ill. Ann. Stat., ch. 40, par. 514, Historical and Practice Notes, at 797 (Smith-Hurd 1980); In re Marriage of Woolsey (1980), 85 Ill. App. 3d 636, 638, 406 N.E.2d 1142.) Kealey, though decided subsequent to enactment of the Marriage and Dissolution of Marriage Act, held it was bound by Heldt. Kealey is contrary to the language and history of the new act and should not be followed.

In the case at bar, the trial court properly considered several factors in its disposition of the home, including the desirability of awarding the home to the spouse having custody of the children. (See Ill. Rev. Stat. 1979, ch. 40, par. 503.) The trial court’s decision is amply supported by the record, and we find no abuse of discretion.

The judgment of the trial court is affirmed.

Affirmed.

BARRY, P. J., and HEIPLE, J„ concur.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    ROBERT MUNSTERMAN et al., Plaintiffs-Appellants, v. ILLINOIS AGRICULTURAL AUDITING ASSOCIATION et al., Defendants-Appellees.
    Third District
    No. 81-660
    Opinion filed May 12,1982.
    James Wylder, of James Walker, Ltd., of Bloomington, for appellants.
    Gary D. Nelson, William J. Voelker, and Judith A. Schieber, all of Heyl, Royster, Voelker & Allen, of Peoria, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

Robert Munsterman, and Arthur and Kenneth Brutlag, plaintiffs, sold or stored grain at an elevator in Crescent City, Illinois, prior to May 8, 1972. That elevator was owned and operated by the Crescent City Farmer’s Grain Company (the Company). In 1967, the Company executed a written agreement with the defendant, Illinois Agricultural Auditing Association (IAAA) whereby IAAA would audit the Company’s elevator accounts in return for compensation. That contract included warranties that IAAA would discharge its audits in a competent manner. Illinois Agricultural Association (IAA), the other defendant, is the parent company and majority stockholder of IAAA.

From 1967 to 1971, IAAA published annual reports on their audits of the Company. These reports indicated the Company was fiscally sound. Similar appraisals by IAAA personnel echoed at the Company’s annual meetings. By May 8,1972, however, the Company was insolvent. It could not discharge its financial or commodity obligations to its agricultural customers.

On November 23, 1973, a class action suit was filed in Ford County against defendants for the economic losses suffered by those persons trading with the Company. Plaintiffs here were not individually named in that suit. The class action was stricken on September 6, 1974; whereupon the action was amended on behalf of other individual plaintiffs (not the plaintiffs in the instant case). That litigation languished until April 27, 1977, when it was transferred to Iroquois County on stipulation of the. parties. On October 7, 1977, that suit was dismissed.

On January 16, 1979, plaintiffs filed the instant action. Defendant filed a motion to dismiss the cause, maintaining plaintiffs were barred by the statute of limitations. The circuit court agreed, dismissing the complaint on February 22, 1980. On June 1,1981, plaintiffs filed an amended complaint. The defendants reasserted that the action was barred by the statute of limitations and moved for judgment on the pleadings. The Circuit Court of Iroquois County dismissed the amended complaint with prejudice on October 9, 1981. Plaintiffs appeal.

Plaintiffs contend the five-year statute of limitations on oral contracts was suspended by the filing of a class action wherein they were a represented party. Alternatively, they argue the 10-year statute of limitations (Ill. Rev. Stat. 1979, ch. 83, par. 17) pertaining to written contracts is applicable, since they are third-party beneficiaries to the written agreement between the Company and IAAA. Plaintiffs rely on Allen v. McWilliams Electric Co. (N.D. Ill. 1980), 494 F. Supp. 53. We disagree.

Our Limitations Act provides the time period for enforcement of an unwritten contract is five years after the date on which the cause of action accrued. (Ill. Rev. Stat. 1979, ch. 83, par. 16.) The parties agree that any cause of action accrued on May 8, 1972, the date of the Company’s insolvency. The auditing agreement between the Company and IAAA for auditing services does not identify plaintiffs to it. A contract is in writing as to a party only if he can be ascertained as a party from such agreement. (Railway Passenger & Freight Conductors’ Mutual Aid & Benefit Associ ation v. Loomis (1892), 142 Ill. 560, 567.) None of the plaintiffs are named parties to the contract. They can only be ascertained as beneficiaries or third parties to such agreement by resort to parol evidence. Hence, the contract is wholly oral as to them. (Wielander v. Henich (1965), 64 Ill. App. 2d 228, 231-33.) For limitation purposes, because the contract is unwritten, the five-year statute applies. Matzer v. Florsheim Shoe Co. (1971), 132 Ill. App. 2d 470,472.

The Allen court found the 10-year statute applicable in a Federal employer/employee labor contract dispute even though the employees were not named in the contract. That court, in applying what it perceived to be Illinois law, held the plaintiffs were sufficiently identified to the contract by the term “* * * employee * ” If Allen is based on Illinois law, it is incorrectly decided. No other Illinois reviewing court has followed it. Neither will we. The fact a party benefits from a contract does not transpose an unwritten contract into an executed one, for limitation purposes, where the party seeking to enforce that agreement is unnamed and unidentified to such pact. (E.g., Pratl v. Hawthorn-Mellody Farms Dairy, Inc. (1977), 53 Ill. App. 3d 344, 347.) The parties to such a contract must be, at least, named if the 10-year statute is to be applied. Wielander v. Henich.

Secondly, the gravamen of plaintiffs’ amended complaint sought to sustain a cause of action based on tortious misrepresentation. Such an action sounds in tort. It is governed by the five-year limitations provision. Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, 560-61.

Absent some event, statutory provision, or personal disability tolling the five-year statute, plaintiffs’ cause of action became unenforceable on May 8, 1977. Plaintiffs say the filing of the Ford County class action on November 23, 1973, suspended the operation of the limitations statute while the cause was pending. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 342, citing American Pipe & Construction Co. v. Utah (1974), 414 U.S. 538, 554, 38 L. Ed. 2d 713, 727, 94 S. Ct. 756, 766.) We agree. But we note plaintiffs did not file an individual action on or before the class action suit was filed. And, we observe the class action suit was dismissed on September 6,1974, nine months and 14 days after being filed. The limitations period began to run again when the class action was terminated on September 6, 1974. Thus, plaintiffs’ claim was not barred on May 8, 1977, but nine months and 14 days later, namely, February 22, 1978. Plaintiffs filed the present action January 16,1979, some 10 months after the limitations period (including the time tolled) expired. Accordingly, the trial judge correctly dismissed plaintiffs’ complaint since it was time-barred.

The American Pipe case is instructive. In that cause a class action suit was filed 11 days before the statute of limitations expired on causes of action of nonparty members of the class. After the limitations period expired, the trial court refused to certify the class, thereby stripping the class members of standing to proceed with their complaint. Eight days after the entry of that order, nonparty members of the defunct class sought to intervene. The United States Supreme Court held the statute of limitations was tolled for those nonparties while the class action was being litigated, at least as to the nominal plaintiff’s authority to proceed as a class. The statute of limitations commenced running immediately after the trial court refused to certify the class. Thus, those nonparty members who sought intervention within 11 days from that order were not time-barred from seeking to enforce their remedies. (Compare with United Airlines, Inc. v. McDonald (1977), 432 U.S. 385,394,53 L. Ed. 2d 423,432, 97 S. Ct. 2464, 2470.) We adhere to the reasoning of American Pipe.

Plaintiffs say Steinberg v. Chicago Medical School goes further. Namely, the Ford County class action, although not certified as such, tolled the statute of limitations until the individual action was dismissed on October 7, 1977. In short, plaintiffs say, Steinberg suspends and ultimately extends the limitations period for the purpose of filing independent actions. We think not.

Steinberg held the filing of a class action suit suspended the limitations period for all members of the class in the class action itself. The record indicates the plaintiffs did not intervene once the class action in Ford County was terminated. They did not do anything until January 16, 1979. Because of this failure to assert their rights on or before February 22, 1978, plaintiffs were barred from seeking to enforce their remedy on • January 16, 1979.

For the reasons stated, the judgment of the Circuit Court of Iroquois County is hereby affirmed.

Affirmed.

ALLOY and SCOTT, JJ., concur.

       We realize American Pipe addressed a Federal statute in the context of Rule 23 of the Federal Rules of Civil Procedure. Nonetheless, the reasoning is persuasive in view of the adaptation of the Illinois class action rule (Ill. Rev. Stat. 1979, ch. 110, par. 57.2) which is modelled, in large part, on the Federal rule. Ill. Ann. Stat., ch. 110, par. 57.2, Supplement to Historical and Practice Notes, at 132-36 (Smith-Hurd Supp. 1981-1982).


author: JUSTICE MILLS

text:
      In re DRAINAGE DISTRICT NO. 1 OF THE TOWN OF CERRO GORDO IN THE COUNTY OF PIATT.—(DRAINAGE DISTRICT NO. 1 OF THE TOWN OF CERRO GORDO IN THE COUNTY OF PIATT, Plaintiff-Appellant, v. THE VILLAGE OF CERRO GORDO, Defendant-Appellee.)
    Fourth District
    No. 17617
    Opinion filed May 12,1982.
    Rehearing denied June 11,1982.
    Mary A. Perlstein, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellant.
    Burger, Fombelle, Wheeler & Dvorak, P. C., of Decatur, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

This case involves a contract for drainage improvements.

In 1970, Drainage District No. 1 (District) and the Village of Cerro Gordo (Village) entered into an agreement whereby the Village agreed to pay for benefits received by virtue of drainage improvements made by the District. The agreement — said to be for “the purpose of adjusting their claim for benefits” — provided:

2. The Village of Cerro Gordo, Illinois further agrees to have the existing annual maintenance assessment roll of said District amended * * * by setting forth thereon the name of said Village 0 * * and placing under the column headed ‘Annual Benefits’ the sum of $500.00, which sum the parties hereto represent and agree as being the fair and reasonable proportionate share said Village of Cerro Gordo should pay for the cost of future maintenance and repair work performed by said District on its drainage system. ** * * [S]aid annual maintenance assessment shall be collected in the same manner as assessments of annual benefits against the lands and other property situated in said District * * *.
3. This agreement is entered into pursuant to the provisions of the Illinois Drainage Code and shall not be binding upon the parties hereto unless approved by order of the Circuit Court * « *
4. That the Village * * * shall be responsible for payment of said $500.00 annual maintenance assessment only in those years in which said drainage district levies its full annual maintenance assessment * * * and, further, in those years in which said drainage district levies less than the full annual maintenance assessment, the $500.00 annual maintenance assessment * * * shall be reduced proportionately so that said Village * * * shall pay on the same proportionate basis as other lands and property situated within said drainage district.
6. [sic]. That in no event shall the Village * * * be responsible for any portion or proportionate share of any fees and expenses incurred by said drainage district in connection with any annual or additional assessments, including, but not limited to, fees and expenses for commissioners, attorneys and court costs.” (Emphasis added.)

Following the procedure prescribed by section 11 — 5 of the Illinois Drainage Code (Ill. Rev. Stat. 1969, ch. 42, par. 11 — 5), the contract was submitted to and approved by the circuit court.

On June 17,1981, the District filed a petition for authority to perform maintenance work, levy additional assessment, and increase and levy annual maintenance assessments. The bottom line was an increase in total assessments for the District in the amount of $13,814.88 — including an increase in the assessment against the Village from $500 to $5,180.58.

The Village moved to dismiss the petition, contending that the 1970 agreement limited to $500 the amount it could be assessed for drainage benefits. Following a hearing, the circuit court entered an order granting the District’s petition, but refusing to increase the assessment against the Village beyond $500. The circuit court specifically found that the parties had agreed to $500 as the sum certain that the Village would owe for drainage benefits.

We disagree.

The contract here is unambiguous, contains no uncertain terms, and its interpretation is one of law for the court. (United Farm Bureau Mutual Insurance Co. v. Elder (1980), 89 Ill. App. 3d 918, 412 N.E.2d 630, revd on other grounds (1981), 86 Ill. 2d 339, 427 N.E.2d 127.) We therefore make the independent determination that the parties by their agreement intended to fix a proportionate share of the assessment to be borne by the Village and not any fixed sum. See Rymer v. Kendall College (1978), 64 Ill. App. 3d 355, 380 N.E.2d 1089.

Our determination is based on several factors. First, by its very terms, the contract provides that $500 is the “fair and reasonable proportionate share” that the Village should pay. Further, paragraph 4 of the agreement provides for a proportionate reduction in the Village’s assessment in the event the District does not levy the full amount authorized for annual maintenance assessments. This further indicates that the $500 was not intended as a sum certain.

Contrary to the Village’s argument, paragraph 6 of the agreement does not fix $500 as a sum certain. Rather, it shows that the parties foresaw a change in the amount of the annual assessment and litigation attendant thereto. Paragraph 6 simply indicates that the cost of obtaining an increased assessment may not be charged to the Village. It was not intended — and cannot be interpreted — to mean that the Village was not liable for its proportionate share of the increase.

The contract incorporated by reference the Illinois Drainage Code in effect at that time. (Ill. Rev. Stat. 1969, ch. 42, par. 1 — 1 et seq.) Section 11 — 2 of the Code provided, and still provides, that when a drainage district performs work which benefits land outside the district but within municipal corporations exercising drainage powers, then the municipal corporation is liable for the portion of the cost of the work which bears a relationship to the benefits received. The District cannot release the Village from this liability. It can only settle claims by entering into a contract fixing such a proportionate share. (See Ill. Rev. Stat. 1969, ch. 42, par. 11 — 4.) The language of the contract and the order approving it indicate that this is what was done.

The circuit court was thus in error when it dismissed that portion of the District’s petition seeking an increase in the assessment against the Village. Therefore, we reverse and remand to the circuit court with directions to enter an order consistent with this opinion.

Reversed and remanded with directions.

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


author: JUSTICE SCOTT

text:
      In re L. R., a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. L. R., Respondent-Appellant.)
    Third District
    No. 81-451
    Opinion filed May 12,1982.

      Robert Agostinelli and Charles Hoffman, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

On July 28,1978, a delinquency petition was filed against the minor respondent, L. R., alleging that he had committed the offense of burglary. Subsequently, L. R. was placed on two years’ supervision. A petition to revoke his supervision was filed on October 2, 1979, alleging that the minor had violated the terms of his supervision by committing a burglary. Thereafter, the juvenile court extended L. R.’s supervision for an additional year. A supplemental petition of delinquency was filed on October 1, 1980, alleging that L. R. had committed the offenses of burglary, battery and theft. L. R. admitted committing the burglary and theft offenses, and the battery charge was dismissed. Following a dispositional hearing on November 13, 1980, L. R. was placed on probation for a period of one year.

On July 1,1981, a petition to revoke the minor’s probation was filed which alleged that L. R. had committed: (1) the offense of burglary when, without authority, he knowingly entered an apartment building which was the residence of Douglas Stegall and John Calise with the intent to commit a theft therein (paragraph 4); (2) the offense of theft of property from Douglas Stegall (paragraph 5); and (3) the offense of theft of property belonging to John Calise (paragraph 6).

At the adjudicatory hearing held on the State’s petition, John Calise appeared as a witness but could not remember his address or identify the property L. R. allegedly stole from him. Douglas Stegall identified the property belonging to him and testified that L. R. had not been given permission to enter his apartment or to take any of the stolen items. Following the testimony of police officers who arrested L. R. and recovered the stolen property, the State rested.

Counsel for the minor then moved for a directed verdict of acquittal on the basis that the State had failed to sustain its burden of proof as to either the burglary or the thefts. The trial court granted the minor’s motion as to paragraphs 4 (burglary) and 6 (theft of Calise’s property) of the petition upon a finding that there has been a “total failure to show ownership and possession.” The motion for a directed verdict of acquittal as to paragraph 5 (theft of Stegall’s property) was denied.

The minor rested without presenting any evidence. During closing arguments it became clear that the trial judge was confused regarding the wording of the paragraphs in the petition to revoke L. R.’s probation. Apparently, the trial judge erroneously believed that only John Calise was named in the paragraph 4 burglary charge and intended only to direct a verdict of acquittal as to the burglary and theft charges relating to Calise. However, when the fact that Douglas Stegall was also named in the burglary paragraph was made known to the trial judge, he sustained his prior ruling on the minor’s directed verdict motion under the erroneous belief that the State was required to prove that the burglarized apartment was the residence of both persons named in the petition.

Following a brief recess, the trial court announced that it had reconsidered its prior ruling granting the minor’s motion for a directed verdict as to the paragraph 4 burglary charge:

“I have had occasion to reconsider my ruling with respect to the motion of the Public Defender insofar as the Court’s ruling for a directed verdict as to Paragraph 4 of the Petition. That ruling was based primarily upon the failure of Mr. Cilise [sic] to identify any of the items, his identification of the items shown to him was essentially no identification whatsoever.
Based upon that, the Court granted the Defendant’s — Respondént’s motion for directed verdict.
After considering the matter, I feel that I was incorrect. At best, the naming of John Cilise [sic] was surplusage, the charge does adequately inform the minor of the nature of the allegations contained therein, and therefore, I’m going to reverse myself, and vacate that prior order granting the motion for the directed verdict as to Paragraph 4.
I don’t like doing so, nor do I like admitting that I’m incorrect, but I think anyone should realize when he is wrong. In reconsidering the circumstances, I think I’m clearly wrong.”

Counsel for the minor declined the court’s offer to reopen his case or to continue the cause and argued that the court’s initial ruling on the motion for a directed verdict had been correct. A renewed motion for a directed verdict as to paragraph 4 was denied.

The trial court then found that the State had proved by a preponderance of the evidence that the minor had violated the conditions of his probation by committing the offenses of burglary and misdemeanor theft in taking property belonging to Douglas Stegall. L. R.’s probation was revoked, a social investigation report was requested, and the minor’s cause was continued for a dispositional hearing.

At the dispositional hearing, held on July 23, 1981, no evidence was presented, but the court considered a dispositional report which revealed L. R.’s extensive series of conflicts with the law. In addition, the report indicated that L. R.’s parents were unable, for other than financial reasons, to care for, protect and discipline the minor. The trial judge then committed L. R. to the Department of Corrections, as had been recommended by the Probation Department.

On July 24,1981, L. R. filed a notice of appeal. Thereafter, he apparently made an oral, nonspecific motion for a new trial which was denied on July 30,1981.

The issue raised by the minor in this appeal is whether he was placed in double jeopardy when the trial court reconsidered its ruling on his motion for a directed verdict of acquittal and later found the evidence sufficient to support a finding that the minor had violated the terms of his probation. The State initially contends that the minor’s failure to raise this issue, either during the proceedings below or in his oral, nonspecific post-trial motion, constitutes a waiver of the double jeopardy issue raised for the first time on appeal. It is true that the failure to direct the trial court’s attention to the specific issue raised on appeal, and thus to deprive the trial court of an opportunity to review any alleged errors, waives such issues for purposes of appeal. (People v. McFarland (1981), 93 Ill. App. 3d 136, 416 N.E.2d 769.) Even issues of constitutional magnitude, including double-jeopardy issues, may be waived by failure to object. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Scales (1960), 18 Ill. 2d 283,164 N.E.2d 76; People v. Szudy (1978), 56 Ill. App. 3d 494,371 N.E.2d 1222.

In the case at bar, the minor’s oral, nonspecific motion for a new trial did not preserve the double jeopardy issue for purposes of review in this court. Furthermore, a review of the record indicates that the only reference to the issue of double jeopardy at the minor’s adjudicatory hearing was made by L. R.’s counsel in response to a motion by the assistant state’s attorney to nolle pros the theft charge relating to John Calise. When the trial court denied the State’s motion, L. R.’s attorney stated, “Your Honor, I believe the issue of double jeopardy does arise.” At no other time was the issue of double jeopardy raised below.

A written motion for a new trial, which included the double jeopardy issue raised on appeal, and which was apparently prepared by L. R.’s counsel subsequent to the adjudicatory hearing, does not preserve the issue for purposes of appeal, since the written motion was never filed in the trial court. Its inclusion in the record on appeal is of no consequence.

The minor asks that we entertain the double jeopardy issue raised on appeal under the plain error doctrine (73 Ill. 2d R. 615(a)). Because we feel that substantial justice requires that the minor not be placed in jeopardy twice for the same crime, we will consider the issue raised on appeal. People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496; People v. Gallas (1966), 77 Ill. App. 2d 132, 221 N.E.2d 782.

Unquestionably, the allowance of the minor’s motion for a directed verdict of acquittal at the close of the State’s case in chief constituted a final adjudication on the merits of those charges affected by the motion; that is, the burglary charge as to both victims and the theft charge as to John Calise. (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4(k).) Although, as the minor concedes and we confirm, the trial court erred in directing the verdict of acquittal on the burglary charge (see People v. Henry (1966), 68 Ill. App. 2d 48, 214 N.E.2d 550), the legal effect of the directed verdicts was to bar, under double jeopardy principles, the vacation or reversal of those verdicts. U. S. Const., amends. V and XIV; Ill. Const. 1970, art. I, sec. 10.

The facts in the instant case are analogous to those in People v. Hutchinson (1975), 26 Ill. App. 3d 368, 325 N.E.2d 115. In Hutchinson, the defendant was charged with aggravated kidnapping. At the conclusion of the State’s case in chief, the court granted the defendant’s motion for a directed verdict of acquittal. The following day, the court reversed its ruling, which had been based on its erroneous belief that lack of consent was an element of the offense charged. Subsequently, the defendant was convicted. In reversing the defendant’s conviction, the appellate court held that the motion for a directed verdict, having been granted, albeit erroneously, was decisive, and the trial court’s later attempted rescission of its ruling was a nullity. People v. Hutchinson (1975), 26 Ill. App. 3d 368, 325 N.E.2d 115.

The situation in the case at bar is strikingly similar. The trial judge correctly directed a verdict of acquittal of the John Calise theft charge and incorrectly directed a verdict of acquittal of the entire burglary charge. The State’s attempt to distinguish the Hutchinson case upon the basis that the directed verdict ruling made there was a mistake of law, whereas the ruling made in the instant case was a mistake of fact, is not persuasive. A review of the record indicates that the trial judge initially made his ruling upon a mistake of fact. That is, he incorrectly believed that the burglary charge referred only to John Calise. However, the trial judge compounded the error by a mistake of law when he stated that the burglary charge must be proved as to both victims named in the charge.

In addition, the fact that the Hutchinson case involves an adult defendant while the present case concerns a juvenile does not affect its applicability, since double jeopardy principles clearly apply to juvenile delinquency proceedings (Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260), and, in Illinois, to probation revocation proceedings (People v. Grayson (1974), 58 Ill. 2d 260, 319 N.E.2d 43, cert, denied (1975), 421 U.S. 994, 44 L. Ed. 2d 484, 95 S. Ct. 200).

The State’s reliance upon the recent Illinois Supreme Court opinion in People v. Van Cleve (1982), 89 Ill. 2d 298,432 N.E.2d 837, in support of its argument that L. R. was never placed in double jeopardy because a trial judge may reconsider his erroneous rulings at any time before final judgment, is misplaced. In Van Cleve, a motion for a directed verdict was denied. However, the trial judge entered a judgment of acquittal notwithstanding the guilty verdict reached by the jury. In upholding the entry of the judgment notwithstanding the verdict, our supreme court determined that the denial of a directed verdict motion is not a final ruling and may be reconsidered at any time prior to the entry of a final judgment. The converse is not true. The allowance of a motion for a directed verdict is a final, nonappealable judgment of acquittal.

Because it is impossible to determine whether L. R.’s probation would have been revoked had he been found to have committed only the misdemeanor theft of the property of Douglas Stegall, we must vacate the orders of probation revocation and commitment to the Department of Corrections and remand this cause for a new adjudicatory hearing on the State’s petition to revoke. In so doing, we note the State’s contention that the cause should be remanded for a dispositional hearing only, since L. R.’s probation could have been revoked based solely upon the evidence that he committed a misdemeanor theft of the property of Douglas Stegall. Because the trial court was not required to revoke L. R.’s probation (Ill. Rev. Stat. 1979, ch. 37, par. 705 — 3(6)), we cannot, sitting as a court of review, make the determination that revocation was the inevitable result of the State’s petition to revoke. Thus, a new adjudicatory hearing is mandated.

For the foregoing reasons, we vacate the orders of probation revocation and commitment to the Department of Corrections entered by the circuit court of Will County and remand this cause for a new hearing on the State’s petition to revoke L. R.’s probation.

Orders vacated, cause remanded.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL KINCY, Defendant-Appellant.
    Second District
    No. 80-547
    Opinion filed May 10, 1982.

      Frank Wesolowski, Jr., Public Defender, of Wheaton, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The defendant, Michael Kincy, appeals from a jury verdict which found him guilty of attempt (murder), aggravated battery and armed violence, and from the resultant sentence of 45 years imprisonment.

On October 21, 1979, Filberto Sanchez was involved in a minor traffic accident with a vehicle driven by Louis Owens. The defendant, Kincy, was a passenger in the Owens’ vehicle. Owens, Kincy, Sanchez and two other passengers in the Owens’ vehicle, Linda Shelton and Burt Owens, decided to have a few drinks together. Eventually, the group arrived at Mickey’s Lounge in Cicero, Illinois. As they were leaving the lounge, Sanchez was robbed at gunpoint. At trial, Sanchez identified the defendant as one of his assailants.

After the robbery, the assailants forced Sanchez into his own automobile and took him for a 40-minute ride into Du Page County. During the ride, Kincy held a gun on Sanchez. After the group arrived at a field in Du Page County, Sanchez was ordered to take off his clothes. While he was doing so, he was hit over the head with the butt of a pistol and rendered unconscious. Sanchez was then repeatedly stabbed and slashed in the abdominal area. Later, in the early hours of the next morning, Sanchez regained consciousness. He was alone, naked, severely injured and without his automobile.

On that same day, October 22, 1979, Kincy and Linda Shelton were arrested as a result of an unrelated incident. During a search of Kincy conducted after his arrest, police officers found a wallet and identification belonging to Sanchez on Kincy’s person.

As a result of the Du Page County attack on Sanchez, Kincy was charged with attempt to commit murder (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4), two counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, pars. 12 — 4(a) and 12 — 4(b)(1)), and two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2).

Kincy filed a pretrial motion to suppress evidence obtained as a result of his arrest. In his motion, Kincy alleged that certain evidence, including the wallet and identification belonging to Sanchez, was suppressible as fruit of an illegal arrest. The motion was denied. After a jury trial, the defendant was found guilty of the charged offenses. The defendant received a 45-year sentence on the armed violence charge.

We first consider defendant’s contention that the arrest was not based on probable cause, and, therefore, the trial court erred in denying his motion to suppress. At the hearing on the motion to suppress, Officer Robert Wagge of the Cicero Police Department testified to the following. On October 22, 1979, he received a report of a disturbance involving a man with a gun. When he arrived at the scene of the disturbance, he met Ken Shelton who told the officer that he had been threatened by a white male named “Mike,” and that Mike, who was wearing blue jeans and a Levi coat, was with Shelton’s wife, Linda. He reported that Mike had held a gun to his head and threatened to shoot him. He stated that his wife and Mike had headed north on 50th Street. The officer headed north and observed Shelton’s wife, at the back door of a house at 1217 50th Street, Cicero, two blocks north of the assault. Later, when the officer observed Linda Shelton in the alley at the rear of the house, she was arrested and was returned to the scene of the disturbance. She then told the officer that the gun could be found between two boxes near the garage at 1217 50th Street.

Wagge returned to the 50th Street address. He walked toward the boxes in the backyard. As the officer was looking for the gun, the defendant, a white male wearing blue jeans and a Levi jacket, approached him. The defendant asked the officer what he was doing. The officer told the defendant he was looking for a gun. The officer learned that the defendant’s name was Mike. The officer then observed that the defendant was wearing a sheathed hunting knife. Because of the hunting knife, Wagge arrested the defendant for unlawful use of weapons and so advised him. The officer then returned with the defendant to the scene of the disturbance. There Ken Shelton identified the defendant as his assailant. The defendant was transported to the Cicero police station and charged with the unlawful use of a weapon and aggravated assault. At that time, the defendant was searched. The wallet and identification belonging to Filberto Sanchez, the victim in the instant case, were found on the defendant.

The defendant contends that Officer Wagge did not have probable cause to arrest him and, therefore, the trial court erred in denying his motion to suppress the gun, the hunting knife, the wallet and identification of Sanchez, and a 68-page transcript of a confession made by the defendant.

The defendant’s initial assertion is that his arrest for unlawful use of weapons was illegal in that possession of a hunting knife is not a violation of the law. The record does reflect that Officer Wagge advised the defendant that he was under arrest for unlawful use of a weapon. The defendant is also correct that mere possession of a hunting knife is not a crime; however, under section 24 — 1(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(2)) knowingly carrying or possessing a dangerous weapon with intent to use the same unlawfully against another constitutes the offense of unlawful use of weapons. Here, the arresting officer was aware that a short time earlier and only a few blocks away, a man, having the same first name and fitting the same general description as the defendant, aimed a gun at a man’s head and threatened to kill him. Under the totality of the circumstances in this case, the officer could have reasonably believed that the defendant possessed the hunting knife with the intent to use the same illegally against another, perhaps the officer himself. Therefore, it can be said that the officer did have probable cause to arrest the defendant for unlawful use of weapons.

Moreover, there are other grounds for upholding the denial of the motion to suppress. After hearing Officer Wagge’s testimony, the trial court determined that there was probable cause to arrest the defendant for aggravated assault and that the officer’s charge of unlawful use of weapons, even if improper, was not determinative of the validity of the arrest.

The test for determining the validity of the arrest is whether the officer had actual probable cause to arrest the defendant, not whether the officer articulated the correct basis for the arrest. (United States v. Lester (8th Cir. 1981), 647 F.2d 869, 873; United States v. Dunavan (6th Cir. 1973), 485 F.2d 201, 205; United States v. Saunders (5th Cir. 1973), 476 F.2d 5, 7; United States v. Carr (D. Conn. 1978), 445 F. Supp. 1383, 1387, aff’d (2d Cir. 1978), 584 F.2d 612, cert, denied (1979), 440 U.S. 935, 59 L. Ed. 2d 494, 99 S. Ct. 1280.) We agree that when an officer makes an arrest which is properly supported by probable cause to arrest for a certain offense neither his subjective reliance on an offense for which there is no probable cause, nor his verbal announcement of the wrong offense vitiates the arrest. (United States v. Saunders (5th Cir. 1973), 476 F.2d 5, 7; see also People v. Moody (1981), 97 Ill. App. 3d 758, 766.) Therefore, if there was actual probable cause to arrest the defendant for aggravated assault, the arrest was valid regardless of the officer’s stated basis for the arrest.

The defendant contends, however, that the trial court erred, in that insufficient facts were known to the officer to support a finding of probable cause to arrest the defendant for aggravated assault. The defendant asserts that probable cause could not be based merely on the defendant’s fitting the very general description given by Shelton. The defendant cites In re Woods (1974), 20 Ill. App. 3d 641, to support this contention.

In Woods, the court stated that an offender’s general description alone is insufficient to provide the probable cause necessary to justify an arrest. For a valid arrest, the general description must be supported by other relative facts and circumstances known to the arresting officer. (20 Ill. App. 3d 641, 646; see also People v. Ward (1979), 73 Ill. App. 3d 1001; People v. Henry (1977), 48 Ill. App. 3d 606.) The other relative facts and circumstances must be more than the fact that the person who fits the general description was in the vicinity of the crime shortly after the crime occurred. (In re Woods (1974), 20 Ill. App. 3d 641, 646.) Here, the defendant was found at the same spot where the female suspect stated that she had disposed of the gun. The defendant not only fit the general description, but also had the same first name. These additional facts and circumstances were sufficient to give the officer probable cause to justify the arrest for aggravated assault.

Probable cause to arrest was recently discussed by the Illinois Supreme Court in People v. Lippert (1982), 89 Ill. 2d 171. There the court noted that:

“Probable cause for arrest exists when facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. [Citations.] Although a ‘mere suspicion’ that the person arrested has committed the offense is an insufficient basis for arrest [citations], evidence sufficient to convict is not required [citations].” 89 Ill. 2d 171,178-79.

In Lippert, a couple had been the victims of an armed robbery. One of the four armed robbers was described as being about 5 feet 11 inches tall with medium-length blond hair and another was described as having bushy, brown hair and wearing a blue jacket. In the vicinity of the robbery, an officer stopped a car for a possible traffic violation. Once he approached the stopped vehicle, he noted that the two occupants fit the description of two of the robbers. The two occupants were arrested and taken a short distance to be identified by the victims. The Lippert court held that the officer had probable cause to arrest the defendants. Under Lippert, Officer Wagge had probable cause to arrest the defendant for aggravated assault.

Finally, even if there was not probable cause to arrest the defendant for unlawful use of weapons or for aggravated assault, under the circumstances of this case, the seizure of the defendant and the subsequent transporting him two blocks for a showup was a reasonable seizure which did not violate his Federal fourth amendment rights. In Michigan v. Summers (1981), 452 U.S. 692, 697-98, 69 L. Ed. 2d 340, 346,101 S. Ct. 2587, 2591, the court stated “that some seizures significantly less intrusive than an arrest have withstood scrutiny under the reasonableness standard embodied in the Fourth Amendment.” While the general rule is that every arrest, and every seizure having the essential attributes of a formal arrest is unreasonable unless supported by probable cause, the Summers court recognized that there are exceptions to this general rule, and in determining whether an exception exists it is necessary to examine both the character of the official intrusion and its justification. 452 U.S. 692, 700,69 L. Ed. 2d 340, 348,101 S. Ct. 2587, 2593.

In People v. Lippert (1982), 89 Ill. 2d 171, 185, the Illinois Supreme Court, citing Summers, held that when an officer knows that a crime has been recently committed in the vicinity, the transporting of a suspect a short distance for an immediate showup does not violate the fourth amendment, even absent knowledge of sufficient facts to establish a finding of probable cause to make an arrest. In so holding, the Lippert court noted that arrests serve, not only the function of producing persons for prosecution, but also serve an investigative function. 89 Ill. 2d 171,179.

In the present case, the defendant, who answered to the same name and fit the same general description of the assailant, was transported only a short distance for an immediate showup. There he was identified as the assailant of Ken Shelton. Under Lippert, the defendant’s fourth amendment rights were not violated by this procedure, and it cannot be denied that once the defendant was identified as the assailant of Ken Shelton, there were valid grounds for arresting him.

The standard of review of an order denying a motion to suppress is whether the trial court’s disposition was manifestly erroneous. (People v. Nash (1979), 78 Ill. App. 3d 172,178.) Under United States v. Lester (8th Cir. 1981), 647 F.2d 869, and the recent Illinois Supreme Court decision of People v. Lippert (1982), 89 Ill. 2d 171, the trial court’s disposition of the motion to suppress is not manifestly erroneous and, therefore, we affirm it.

Defendant also contends that the trial court erred in allowing the jury to hear evidence of other crimes when their probative value was outweighed by their prejudicial effect. The evidence of these other crimes concerned primarily the series of events which occurred in Cook County earlier in the evening, just prior to the stabbing of Sanchez in Du Page County. The testimony which the defendant contends was erroneously admitted revealed that a minor traffic accident had occurred involving the defendant’s vehicle and a vehicle driven by Sanchez; that Sanchez and the occupants of the other vehicle went into a bar for several drinks; that several of the occupants of the other vehicle, including the defendant, held a gun on Sanchez while taking his wallet, then forced Sanchez into his own vehicle and drove him out of Cook County into Du Page County; and that subsequently the Sanchez vehicle was repainted and then transported to another State.

A review of the trial testimony which the defendant claims was erroneously admitted reveals that during the trial the defendant failed to object to any of the testimony concerning other crimes. Moreover, the defendant made no motion to strike the testimony, nor did he raise these alleged errors in his motion for a new trial. Thus, the defendant has waived his right to raise these issues on review. (People v. Price (1979), 76 Ill. App. 3d 613, 633; see also People v. Trefonas (1956), 9 Ill. 2d 92, 99; People v. Owens (1981), 99 Ill. App. 3d 730, 738.) The defendant nonetheless contends that this court should review the issues as plain error under Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)).

Our review of the record does not disclose that any error was committed, much less plain error. The evidence of other offenses was admissible to show motive, intent or res gestae. People v. Owens (1981), 99 Ill. App. 3d 730, 738.

The case cited by defendant, People v. Olson (1981), 96 Ill. App. 3d 193, is distinguishable. There the trial court admitted extensive evidence concerning an unrelated burglary which happened on the same date as the charged offense, but earlier in the morning. The only connections between the early morning burglary and the charged offense, which involved the fleeing from and shooting at a police officer, were that the earlier offense showed a motive for the latter offense and that the weapon used in the charged offense had been stolen in the earlier offense. On appeal, this court held that while some evidence of the earlier offense was admissible, the graphic, inflammatory details presented at the trial outweighed the probative value of the evidence admitted.

Here, the evidence admitted at trial was not graphic, nor did it involve inflammatory details. It was a simple relating of the events which occurred earlier in the evening and which led to the charged offenses. Here, unlike Olson, the probative value of the evidence outweighs any prejudicial effect.

The defendant also contends that the trial court erred in admitting two knives into evidence. One was a hunting knife owned by Burt Owens, one of Kincy’s co-defendants, and the other was the hunting knife taken from the defendant at the time of his arrest. The defendant contends that the admission of these knives was error in that no foundation was laid to show their relevance. At the trial stage, the defendant failed to object to the admission of the knives; nonetheless, the defendant urges that the alleged error should be considered “plain error” under Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)).

The defendant claims that because there was an insufficient connection made between the defendant’s hunting knife and the stab wounds, it was error to admit defendant’s knife. Such a definitive connection is not needed. In People v. Upshire (1978), 62 Ill. App. 3d 248, the defendant was arrested for armed robbery. At the time of the arrest, a gun was recovered from his person, and a sword and a loaded shot gun were recovered from the trunk of his automobile. On appeal, the court held that even though the sword and the shot gun had not been used in the commission of the crime, they were admissible as a detail of the arrest. (See also People v. Longstreet (1974), 23 Ill. App. 3d 874.) In this case the hunting knife is admissible as a detail of the arrest.

Moreover, there was testimony to indicate that Sanchez was stabbed and cut numerous times with a sharp instrument. The testimony indicated that a knife similar in size to defendant’s knife would be suitable for inflicting the injuries received by Sanchez. In People v. Moore (1969), 42 Ill. 2d 73,78, rev’d, on other grounds (1972), 408 U.S. 786,33 L. Ed. 2d 706, 92 S. Ct. 2562, the court stated that:

“We have consistently held that a weapon found upon a defendant suitable for the commission of the crime charged is proper evidence even though there is no showing that it was the actual weapon used.”

Thus, the weapon was admissible either as a detail of the arrest or as a weapon owned by the defendant and suitable for commission of the crime.

It does appear, however, that the knife owned by Owens was not connected to the defendant, and its admission was error. The defendant, however, has waived such error by not objecting to its admission at trial; moreover, the admission of the knife is not reviewable under the plain-error rule. The plain-error rule is to be applied only when the error of the trial court is so prejudicial that real justice has been denied or the verdict of the jury may have resulted from such error. (People v. Carlson (1980), 79 Ill. 2d 564,577.) The alleged errors must be so great that the jurors were influenced or prejudiced to the extent that they could not be fair or impartial. People v. Carlson (1980), 79 Ill. 2d 564, 578.

At the trial, the defendant testified that after he, Burt Owens, Louis Owens and others had taken Sanchez out into the Du Page County field, Louis and Burt Owens took Sanchez into some bushes and stabbed him. The admission of Burt Owens’ knife would tend to corroborate the defendant’s story. Because the admission of Burt Owens’ knife does not negate the defendant’s testimony, it could not be so great an error as to have prejudiced or influenced the jury. Thus, it cannot be considered as plain error. People v. Carlson (1980), 79 Ill. 2d 564, 578.

The defendant was convicted of armed violence, attempt (murder), and aggravated assault. At the sentencing hearing, the trial court vacated the convictions for aggravated assault and attempt. The court noted that armed violence is a Class X felony with a sentence range of 6 to 30 years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(3).) The trial court then determined that due to the exceptional brutality and heinous nature of the stabbing, under section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2)), the defendant was eligible for an extended term of 30 to 60 years. Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-2(a)(2).

The trial court then weighed the factors in mitigation (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.1) against the factors in aggravation (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2), and imposed a 45-year sentence. Defendant contends on appeal that his sentence was excessive.

The standard of review of a sentence claimed to be excessive is whether in fact the trial court exercised its discretion and if so, whether this discretion was abused. People v. Cox (1980), 82 Ill. 2d 268, 275; People v. Perruquet (1977), 68 Ill. 2d 149, 154.

Here, the primary factors in mitigation concerned the defendant’s poor physical health and the fact that the defendant’s conduct was facilitated by others. The trial court considered these factors along with the factors in aggravation such as the brutal and heinous nature of the stabbing. The court also considered the presentence report which indicated that at the age of 27, the defendant had failed to complete more than 3 years of school, was unable to hold a job and had an explosive, volatile personality. It does not appear to us that the trial court erred in determining that a term of 45 years imprisonment was necessary for the protection of society.

The judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD, P. J., and UNVERZAGT, J., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT LEE DAVIS, Defendant-Appellant.
    Second District
    No. 80-646
    Opinion filed May 10,1982.

      Mary Robinson, of State Appellate Defender’s Office, of Elgin, and Robert E. Davison, of State Appellate Defender’s Office, of Springfield, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Robert Lee Davis, was tried and convicted of rape, home invasion, and burglary in Lake County. He was sentenced to 30 years for the rape, 30 years on the charge of home invasion, and 15 years on the burglary charge, these sentences to run concurrently. Defendant appeals from the convictions and the sentences.

The defendant urges reversal on four grounds. He contends that the trial court erred first in allowing the prosecutor to take his fingerprints on the first day of trial and then in admitting a pretrial statement made by the defendant. He also contends that the home invasion statute is unconstitutionally vague and that the State failed to prove him guilty beyond a reasonable doubt.

We begin by discussing the propriety of allowing the State to take defendant’s fingerprints.

On the first day of defendant’s trial, the State’s Attorney informed the trial court that the State was encountering some problem securing a chain witness for the purpose of presenting a fingerprint allegedly taken from the defendant. The State’s Attorney moved under Supreme Court Rule 413(b) (73 Ill. 2d R. 413(b)) for production of defendant’s fingerprints. The trial court granted the motion. On appeal, defendant contends that he was not afforded the reasonable notice required by Rule 413 and was thus prejudiced. We disagree.

Rule 413 provides in relevant part:

“(b). Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the State to the accused and his counsel, who shall have the right to be present. Provision may be made for appearances for such purposes in an order admitting the accused to bail or providing for his release.”

On its face, the notice requirement of Rule 413 seems to be aimed at insuring that defendants will not be deprived of effective assistance of counsel during procedures such as fingerprinting. The committee comments appended to the rule also suggest that such is the rationale. It is noted therein that Rule 413 is intended to be consistent with the ruling set down in Gilbert v. California (1967), 388 U.S. 263,18 L. Ed. 2d 1178, 87 S. Ct. 1951. In that case, the court discussed the right of a defendant to have counsel present at “critical stages” in order that the defendant would not be deprived of the benefit of effective cross-examination. It is this prejudice, the inability to properly and effectively cross-examine, that the rule was designed to avoid. The cases applying Rule 413 and cited by the defendant for the proposition that reversal is required have, without exception, emphasized the presence of counsel. See People v. Nichols (1976), 63 Ill. 2d 443, 349 N.E.2d 40.

No deprivation in this regard is suggested by this record. Defendant’s counsel was given the opportunity to examine the print and to be present at the time it was taken. The court agreed at the time that it granted the State’s motion that defendant would be granted a continuance if he felt such a delay was necessary to adequately address issues raised by the late taking of the fingerprint. A short recess was in fact requested and granted.

The defendant is correct in his assertion that according to Illinois law the discovery rules have as their purpose, inter alia, the elimination of surprise. (People v. Szabo (1977), 55 Ill. App. 3d 866, 371 N.E.2d 117.) The cases applying this rule, however, have focused on the requirement that no tactical advantage may be gained by surprise. Here, we can conceive of no tactical advantage obtained by the prosecution by virtue of the late taking of the fingerprint.

Defendant also argues that in failing to disclose, pursuant to his motion for particulars dated May 14,1980, that a chain of evidence problem existed, the State violated Supreme Court Rule 412 (73 Ill. 2d R. 412), which requires discovery. The chain problem in this case apparently involved the proof of continuous possession of the “known print” allegedly taken from the defendant and marked with his name. Rule 412 mandates the disclosure of names and statements of witnesses to be called by the State, statements made by the accused, transcripts of relevant portions of grand jury proceedings, the reports of experts, tangible objects intended for use at trial, and prior criminal records of prosecution witnesses. The rule does not require the disclosure of evidentiary weaknesses.

The defendant’s next contention is that the court erred in allowing the State’s Attorney to use a pretrial statement made by him. Defendant relied at trial on an alibi defense. He testified and his testimony was corroborated by other defense witnesses, that on the evening before the crime, he and several friends had gone to a disco and then to the home of La Verne Gray. Defendant testified that he passed out there in the early morning hours of March 17 and did not awaken until 10 a.m. He also testified that later that day, “in the evening,” he and two companions left for Milwaukee. The State’s Attorney attempted to impeach, using the defendant’s statement (testified to earlier by a police officer) that he had spent the day of the crime in Milwaukee.

The defendant raises two issues in respect to the admissibility of this statement. First, defendant contends that this statement should not have been admitted since it was not disclosed in discovery. This contention is utterly without merit. The transcript of a pretrial hearing indicates that the defendant had knowledge of the statement in advance of the trial. His counsel referred specifically to the March 19 statement in a suppression hearing. Further, the fact that the record contains no written response to defendant’s motion for discovery inquiring about chain witnesses to be presented by the State does not, as defendant contends, establish that the State refused to reveal this information. It is settled that a silent record will be construed against the appellant and not the appellee. People v. Spellman (1978), 58 Ill. App. 3d 648, 374 N.E.2d 1034.

• 3 Defendant also contends that the statement was inadmissible as impeachment since it did not “totally contradict” his testimony. Defendant’s objection to the impeachment at trial centered on what he considered to be an attempt by the State to impeach with pretrial silence. He did not object on the grounds that the statement was insufficiently contradictory nor did he raise that objection in his post-trial motion. Defendant has therefore waived this issue on appeal. People v. Nelson (1980), 92 Ill. App. 3d 35, 415 N.E.2d 688.

However, even on the merits, the trial court was correct in its ruling on this point. The statement was already properly in evidence, having been introduced in the State’s case-in-chief, and therefore, the State was not attempting to introduce the defendant’s prior inconsistent statement as impeachment. The questioning by the State’s Attorney served merely to emphasize what was already in evidence before the court. Further, in the context of the entire record, the contested statement does appear to contradict the defendant’s in-court testimony. At the time of his arrest, the defendant told police officers that he had been in Milwaukee on March 17. He testified in court that he had left for Milwaukee on the evening of the 17th. The test of whether a prior inconsistent statement is sufficiently inconsistent to be used for an impeachment was stated in People v. Rainford (1965), 58 Ill. App. 2d 312, 320-21, 208 N.E.2d 314:

“Generally, a prior statement of a witness, in order to be capable of being proved for purposes of impeachment, must be materially inconsistent with his testimony. The test to be applied in determining inconsistency * * * is that the inconsistent statement must have a reasonable tendency to discredit the direct testimony on a material matter. McCormick on Evidence, c. 5, §34, p. 64 (1954).”

There is no case law requiring “total” inconsistency. Further the fact that defendant has an explanation for the statement does not work to remove the facial inconsistency.

People v. Rehbein (1978), 74 Ill. 2d 435, 386 N.E.2d 39, cert, denied (1979), 442 U.S. 919, 61 L. Ed. 2d 287, 99 S. Ct. 2843, and People v. Beller (1979), 74 Ill. 2d 514, 386 N.E.2d 857, cited by the defendant are not applicable to the case at bar. These cases ruled on attempts to use a defendant’s pretrial silence against him. That issue is not presented by this case. The trial court’s ruling was correct in this regard and accordingly we affirm on this point.

Defendant contends that the statute is void for vagueness in that it conditions culpability upon whether or not the individual has “reason to know” that someone was on the premises at the time he entered the residence. He contends that “reason to know” is not among the mental states outlined in the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, pars. 4 — 4 through 4 — 7), and, as an undefined mental state requirement works to render the statute unconstitutionally void for vagueness. We disagree.

Section 4 — 5 of the Criminal Code defines the mental state of knowledge as follows:

“A person knows, or acts knowingly or with knowledge of:
(a) The nature of attendant circumstances of his conduct, * * * when he is consciously aware that his conduct is of such nature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such fact exists.” (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 5.)

The concept of having reason to know that one or more persons are present is indistinguishable from that of having “awareness of a substantial probability” that one or more persons are present. The mental state provided in the home invasion statute is contained in the definition of knowledge.

The defendant also contends that the statute is vague because it would allow convictions on the whimsey of the trial court. The factor which determines whether or not a statutory provision will be stricken as void for impermissible vagueness is whether its terms are of sufficient specificity to serve as a guide for those to whom it applies. (City of Chicago v. Lawrence (1969), 42 Ill. 2d 461, 248 N.E.2d 71, cert, denied (1969), 396 U.S. 39, 24 L. Ed. 2d 208, 90 S. Ct. 263.) In interpreting a statute, its words will be given their ordinary meaning unless a contrary legislative intent is expressed. People v. Williams (1967), 79 Ill. App. 2d 56,222 N.E.2d 915; People v. Schwartz (1976), 64 Ill. 2d 275,356 N.E.2d 8, cert, denied (1977), 429 U.S. 1098, 51 L. Ed. 2d 545, 97 S. Ct. 1116.

When the words of the home invasion statute are viewed in this manner, the behavior which is prohibited becomes apparent. It would have been an impossible task for the legislature to provide an exhaustive “laundry list” of those conditions which would give an individual reason to know that someone was present in the house. We reject the defendant’s contention that the home invasion statute is impermissibly vague.

The defendant next claims that the judgment of the trial court must be reversed since he was not properly convicted. It is defendant’s position that the State failed to prove beyond a reasonable doubt, all the essential elements of the crimes of home invasion and burglary with intent to rape. The Illinois home invasion statute provides:

“(a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or
(2) Intentionally causes any injury to any person or persons within such dwelling place.
(b) Sentence. Home invasion is a Class X felony.” Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11.

It is defendant’s contention that the statute requires the State to prove as a material element of the offense that the individual accused of home invasion was not a “peace officer acting in the line of duty.” It is defendant’s position that no direct evidence was admitted on this point and therefore reversal of the conviction is required. The State asserted at trial, and the trial court agreed, that the language of the statute creates an affirmative defense and is not an element of the crime.

The characterization of this “peace officer” language has been the object of some split in authority. No court has previously addressed, as we are asked to, the question of whether the language delineates an element of the offense of home invasion in the context of an appeal from a conviction. However, two courts have analyzed the language to determine whether its omission from an indictment constitutes a material or merely a formalistic defect. In People v. Pettus (1980), 84 Ill. App. 3d 390, 405 N.E.2d 489, the court found that the omission of an allegation that the defendant acted “without authority” was not a formal defect and thus was not susceptible of cure by amendment of the indictment. The court noted that section 111 — 3(a) (3) of the Code of Criminal Procedure, dealing with indictments, requires that an indictment shall set forth the “nature and elements of the offense charged.” (Ill. Rev. Stat. 1979, ch. 38, par. 111 — 3(a)(3).) The court found that the first element of home invasion was “one of status, as is emphasized by the exclusion of peace officers in the line of duty, and the failure to allege such status” constituted a fatal defect in the information. (Emphasis added.) People v. Pettus (1980), 84 Ill. App. 3d 390, 393, 405 N.E.2d 489.

In People v. Hert (1981), 95 Ill. App. 3d 871,420 N.E.2d 813, the court found that the omission of the peace officer language from an indictment was a formal defect subject to amendment and not necessitating dismissal of the charge. The court held that the allegation that defendant had entered without authority was sufficient to meet the requirement of section 111 — 3(a)(3).

We find that the language in question delineates a material element of the crime of home invasion. Other cases dealing with this type of constructional problem have typically found an affirmative defense only where the questioned provisions have been contained in a list of exemptions, specifically designated as such. (People v. Smith (1978), 71 Ill. 2d 95, 374 N.E.2d 472.) The “peace officer” language in the home invasion statute occurs in the body of the statute.

Even though we find that this language constitutes a material element of the substance of offense of home invasion, the order of the trial court nevertheless is affirmed. Although no direct evidence concerning defendant’s status of the peace officer was adduced at trial, there is sufficient circumstantial evidence contained in the record to establish beyond a reasonable doubt that he was not “acting in the line of duty.” (Cf. People v. Blakeney (1978), 59 Ill. App. 3d 119,375 N.E.2d 1309 (holding that, due to the nature of the crime, burglary may be proved by circumstantial evidence).) The record contains evidence tending to show that the defendant entered the home of Mrs. Mabel Self on March 17,1980, between 3 and 4 a.m. He woke her up, covered her face, ordered her to shut up and demanded money and jewelry. Evidence produced in court tended to show that the defendant ordered Mrs. Self to take off her clothes and then proceeded to rape her. Further evidence indicated that he bound her wrists and legs and took her television as he left. Such actions are completely inconsistent with the claim that the defendant, even if a peace officer, was acting in the line of duty. Webster’s New Collegiate Dictionary 663 (1979) defines “line of duty” as “all that is authorized, required, or normally associated with some field of responsibility.” The defendant’s contention that police officers can act in the line of duty while committing blatantly illegal acts strains credulity.

The defendant also contends that it was not proved beyond a reasonable doubt that he knew or had reason to know that someone was present when he entered the house. Sufficient evidence appears in the record to justify a conviction for home invasion on this point.

The record indicates that entry was made into the home in the early hours of the morning at a time when occupants of a residence would be at home and asleep. The television set was on indicating that someone was in the house. Further, the building was a residence and obviously kept up, thus giving notice that an occupant might be within.

Moreover, the record indicates that the defendant’s actions and statements demonstrated that he knew Mrs. Self would be present when he entered her home. The defendant showed an awareness of Mrs. Self’s circumstances, referring to her son-in-law and an amount of money that she had in the house. He woke her up immediately upon entering and forced her to disclose places where she had secreted money. The element of reason to know was proven beyond a reasonable doubt.

The defendant further contends that there was insufficient evidence to uphold a verdict of guilty on the count of burglary with intent to commit rape. It is defendant’s position that no proof was offered to show that he knew that a potential rape victim was in the dwelling. It is well settled in Illinois that in burglary prosecutions, felonious intent may be established circumstantially. (People v. Fisher (1980), 83 Ill. App. 3d 619, 404 N.E.2d 859.) Where an intent to commit a specific crime is charged as an element of burglary, as it was in this case, that intent may be shown circumstantially by proof that the crime, in fact, occurred. (People v. Kerestes (1976), 38 Ill. App. 3d 681, 348 N.E.2d 274.) Such proof was adduced in this case, and we affirm the conviction.

Since we decline to reverse in this case we need not reach defendant’s argument that he is entitled to a new sentencing hearing.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

SEIDENFELD, P. J., and NASH, J., concur.


author: JUSTICE NASH

text:
    EVELYN SMITH, Plaintiff-Appellant, v. ST. THERESE HOSPITAL et al., Defendants-Appellees.
    Second District
    No. 81-625
    Opinion filed May 13,1982.
    Rehearing denied June 11,1982.

      Erwin Cohn, of Cohn and Flynn, of Chicago, for appellant.
    Joseph B. Lederleitner and Robert Marc Chemers, both of Pretzel, Stouffer, Nolan and Rooney, and Stephen R. Swofford and Michael F. Henrick, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, both of Chicago, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Evelyn B. Smith, appeals pursuant to Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)) from summary judgments granted defendants, Dr. Ronald Hoffman and St. Therese Hospital, and also from an order denying her motion to add an additional expert witness under section 58(3) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 58(3)).

Plaintiff commenced this malpractice action in February 1979 against these defendants, and others who are not parties to this appeal, alleging she sustained damages to her eyes while in defendant hospital for gallbladder surgery performed by Dr. Hoffman. This is the second interlocutory appeal undertaken by plaintiff as a result of the dismissal of defendants in this case. See Smith v. St. Therese Hospital (1980), 87 Ill. App. 3d 782, 410 N.E.2d 219.

Generally, the law applicable to this case is well settled. Summary judgment may be appropriate in malpractice cases. (Bennett v. Raag (1982), 103 Ill. App. 3d 321, 326, 431 N.E.2d 48, 51; Goldstein v. Kantor (1981), 101 Ill. App. 3d 264, 427 N.E.2d 1322.) Section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57) provides that either plaintiff or defendant may move, with or without supporting affidavits, for summary judgment and the opposite party may file counteraffidavits. If the pleadings, depositions, affidavits, exhibits and admissions on file in a case then show there are no remaining genuine issues of material fact, the moving party is entitled to summary judgment as a matter of law. (Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill. 2d 87, 92, 312 N.E.2d 601, 604.) If the party moving for summary judgment supplies evidentiary facts which, if not contradicted, would entitle him to judgment, the opposing party cannot rely upon his complaint or answer alone to raise issues of material fact. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 501, cert, denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) Conversely, in the absence of evidentiary facts in support of a motion for summary judgment, a party may rely upon his complaint or answer to establish triable issues of fact. Cato v. Thompson (1980), 83 Ill. App. 3d 321, 323, 403 N.E.2d 1239, 1241.

Summary judgment is a drastic remedy and is to be awarded with caution; only if the right of the movant is clear and free from doubt may it be granted. (In re Estate of Tomaso (1980), 82 Ill. App. 3d 286, 288, 402 N.E.2d 702, 704-05; Indiana Harbor Belt R.R. Co. v. Budd Co. (1980), 87 Ill. App. 3d 91, 94, 408 N.E.2d 944, 947.) If more than one conclusion is possible or reasonable men could arrive at different conclusions, summary judgment is not appropriate (Doran v. Pullman Standard Car Manufacturing Co. (1977), 45 Ill. App. 3d 981, 986, 360 N.E.2d 440, 444), and evidentiary materials submitted in support of the motion must be strictly construed against the movant and liberally construed in favor of the nonmovant. (St. Clair v. Sisters of the Third Order of St. Francis (1979), 72 Ill. App. 3d 421, 423, 390 N.E.2d 966, 967-68.) A reviewing court will reverse an order granting summary judgment if it is determined that a material question of fact does exist. Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 349 N.E.2d 1.

Dr. Ronald Hoffman

Count II of the fourth amended complaint was directed against Dr. Hoffman and alleged, inter alia, that he was a surgeon in St. Therese’s Hospital and plaintiff was his patient for gallbladder surgery on February 7, 1977, and during her admission to the hospital. It further alleged Dr. Hoffman negligently failed to monitor plaintiff following surgery; failed to examine the records of plaintiff’s condition; failed to comply with the rules and bylaws of defendant hospital after performing surgery upon plaintiff; failed to render proper post-operative care to plaintiff; and, failed to respond to a post-operative medical emergency confronting her. Defendant answered denying the material allegations of the complaint and on July 7,1980, filed his first motion for summary judgment. It set forth as grounds that plaintiff’s complaint was for alleged eye damage following administration of atrophine sulphate as an anesthetic preparatory to gallbladder surgery in St. Therese’s Hospital and that Dr. Hoffman did not administer or order the drug or any other anesthetic. The motion further stated (inaccurately) that plaintiff had not alleged unskillful surgery or post-operative care on the part of Dr. Hoffman in her complaint and it referred to answers to interrogatories filed on behalf of another defendant by a Dr. Kirkpatrick in which he stated, inter alia, that Dr. Kirkpatrick of Anesthesa Services ordered the use of atrophine sulphate for plaintiff and it was administered by a hospital ward nurse; that its purpose was to prevent reflexes and there are no tests to determine a patient’s sensitivity to the drug; that Dr. Kirkpatrick has ordered atrophine sulphate 50,000 times as an anesthesiologist and no patient is known to have incurred an eye injury; in the opinion of Dr. Kirkpatrick it is not possible for sensitivity to the drug to cause injury to the eye as complained of by plaintiff. Dr. Hoffman’s motion concluded that there were no remaining issues of fact that any conduct on his part caused plaintiff’s injury and requested summary judgment.

This motion was continued generally and on June 11,1981, Dr. Hoffman filed a supplemental motion for summary judgment in which he further alleged, inter alia, that he was a surgical consultant called in by plaintiff’s attending physician, Dr. Jude Pinto, and did not participate in the anesthesia of plaintiff. The motion referred to a discovery deposition of Dr. Pinto (stating that a transcript thereof will be offered to the court when received) in which Dr. Pinto was alleged to have said he was plaintiff’s attending physician and had called in Dr. Hoffman to perform the gallbladder surgery; that Dr. Pinto assisted, but neither he nor Dr. Hoffman ordered atrophine sulphate for plaintiff; that following surgery Dr. Pinto saw plaintiff each day during her confinement and it was his usual practice to follow the patient after surgery rather than the surgeon doing so. The motion further alleged that plaintiff was required, through expert evidence, to establish a standard of care and then prove by affirmative evidence defendant was negligent in light of that standard causing plaintiff’s injury; that no one has testified there was any deviation from the standard of care by Dr. Hoffman and that Dr. Pinto had testified on June 4, 1981, that Dr. Hoffman’s management of the case was within the accepted standard of medical care.

We note defendant’s motion for summary judgment was executed by his attorney, unverified, and not supported by affidavit. The deposition of Dr. Pinto does not appear in the record nor are any portions of it attached to this defendant’s motion. The motion for summary judgment of the defendant hospital does refer to a deposition of Dr. Pinto taken June 3, 1981, and it included as exhibits pages 42, 43 and 66. There, an unnamed doctor, presumably Dr. Pinto, stated that if the nurses failed to discover any problems with the eye that he would take the blame for missing it and that he had no criticism of the care rendered to plaintiff.

Plaintiff’s response to defendant’s summary judgment motion was also not supported by affidavit, but it noted her action against Dr. Hoffman charged that he negligently failed to render proper post-operative care to her following surgery. It also alleged that Dr. Burton A. Russman will testify for plaintiff and in his report'stated that “I have received the records sent to me and it appears as though the patient was given pre-operative atrophine, which evidently produced a reflex pupillary dilation sufficient to produce a rise in the interocular pressure in a predisposed individual such as Mrs. Smith due to her narrow anterior chambers.” The trial court thereupon granted Dr. Hoffman’s motion for summary judgment.

Plaintiff’s complaint alleged Dr. Hoffman was negligent in his treatment and monitoring of her following surgery specifying seven alleged acts or omissions as contrary to the requisite standard of care. It does not refer to the administration of atrophine sulphate prior to surgery, but to her post-operative care. In his first motion for summary judgment Dr. Hoffman relied upon statements by Dr. Kirkpatrick that he ordered the drug and his opinion that it could not cause injury to plaintiff’s eyes and concluded summary judgment should be granted as no conduct by Dr. Hoffman caused injury to her. In his second motion defendant referred to a deposition of Dr. Pinto, which is not in the record, and stated Dr. Pinto testified “Dr. Hoffman’s management of plaintiff’s case was within the accepted standards of medical care.” At most, however, the excerpts from Dr. Pinto’s deposition filed in support of the hospital’s motion for summary judgment (even if we assume it can be considered in aid of this defendant’s motion), show only that Dr. Pinto had “no criticism” of the care rendered plaintiff.

Plaintiff essentially contends summary judgment in favor of Dr. Hoffman was erroneous as her complaint against him was directed to his negligent failure to render proper care to her following his surgery. Defendant asserts that by his motions it was established he did not order or administer the pre-anesthetic drug, or then examine plaintiff; that he was not responsible for plaintiff’s post-operative care; and that plaintiff’s attending physician Dr. Pinto stated that he had no criticism of any care rendered to plaintiff. Defendant concludes that as plaintiff did not respond to his motion with evidentiary facts by expert medical testimony that Dr. Hoffman failed to conform to the required standard of care, summary judgment was appropriate.

It is true that in a trial of a medical malpractice action plaintiff must establish through expert testimony the standard of care against which defendant’s conduct is to be measured and whether in light of that standard, defendant was negligent causing injury to plaintiff. (Walski v. Tiesenga (1978), 72 Ill. 2d 249, 255, 381 N.E.2d 279, 282.) It is also true that where by affidavit, or other appropriate evidentiary means in support of his motion for summary judgment, defendant has established, without contradiction, that he met the standard and his care and treatment conformed with that ordinarily applied by physicians in similar circumstances, summary judgment will be granted. (See Bennett v. Raag (1982), 103 Ill. App. 3d 321, 431 N.E.2d 48; Goldstein v. Kantor (1981), 101 Ill. App. 3d 264, 427 N.E.2d 1322.) To be entitled to summary judgment under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57) the defendant must, however, prove that there “is no genuine issue as to any material fact.” Smothers v. Butler (1979), 78 Ill. App. 3d 1018,1021, 398 N.E.2d 12,15; Ding v. Kraemer (1978), 59 Ill. App. 3d 1042,1043, 376 N.E.2d 266, 267.

On consideration of the evidentiary materials offered in support of Dr. Hoffman’s motion, however, we conclude they were insufficient to shift the burden to plaintiff to present additional facts in support of her complaint in order to withstand the motion. The fact someone else handled the anesthetic prior to Dr. Hoffman’s surgery; that it was Dr. Pinto’s “usual practice” to follow the patient after surgery rather than the surgeon or that he had “no criticism” of the care accorded to her neither established a standard of care nor met plaintiff’s complaint as it was directed to Dr. Hoffman. Evidentiary materials in support of a motion for summary judgment must be strictly construed against movant and liberally construed in favor of the nonmovant. (See St. Clair v. Sisters of the Third Order of St. Francis (1979), 72 Ill. App. 3d 421,423,390 N.E.2d 966, 967-68.) It is apparent Dr. Hoffman’s motion failed to remove any material issue of fact relevant to this case and summary judgment was erroneously granted as to him.

St. Therese Hospital

Count I of plaintiff’s complaint alleged the defendant hospital was negligent, inter alia, for failure to test plaintiff for reaction to atrophine sulphate; failure to warn of possible adverse effects; failure to keep adequate records of plaintiff’s condition; and failure to comply with the hospital rules and bylaws. The hospital’s motion for summary judgment alleged that Abel Swirsky, disclosed by plaintiff as an expert witness to establish the standard of care required of this defendant, was not qualified to testify and also relied upon excerpts from Dr. Jude Pinto’s deposition in which he stated that he was responsible to discover plaintiff’s eye problems and that he had no criticism of the hospital’s care of plaintiff. This defendant concludes that these evidentiary materials reflect the hospital rendered proper care and did not cause plaintiff’s injury making summary judgment appropriate.

For the same reasons discussed relative to Dr. Hoffman’s motion, we conclude summary judgment also should not have been granted in favor of the hospital.

A deposition of Swirsky, relied upon by defendant, disclosed he is a senior health planner for the city of Chicago with a background in health care administration since 1946. He had experience in the supervision of nursing staff and patient care and in the preparation of nursing manuals. He has also held positions as a hospital administrator. Swirsky testified that the hospital deviated from the standard of good hospital care practiced in the area in regard to plaintiff in violation of the accreditation standards of the Joint Commission of Hospitals with which he was familiar. Those standards require that medical records contain sufficient information to support a diagnosis and to justify treatment given to a patient. Plaintiff’s charts, however, contain no entry that an examination of her had been made before codeine was shown to have been administered for sinus headaches on the third, fourth and fifth days following her surgery. Swirsky also- stated he could not answer whether the lack of charting caused the plaintiff’s injuries as he was not a clinician.

The hospital contends that as Dr. Pinto stated he had no criticism of the care given plaintiff and because plaintiff’s expert, Swirsky, was not qualified to testify to the standard of care required of it that summary judgment was properly granted.

As noted earlier, Dr. Pinto’s lack of criticism of anyone falls far short of providing “* * * facts which, if not contradicted, would entitle such a party to a judgment as a matter of law, 0 * (Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 380, 313 N.E.2d 457, 459), and would not require plaintiff to offer evidentiary materials in support of her complaint. Furthermore, although Swirsky was not a medical practitioner, he was qualified to express his opinion that the hospital may have deviated from the requisite standard of care to which it was subject. Had the hospital, in fact, submitted evidentiary material in support of its motion for summary judgment, Swirsky’s testimony would have been sufficient to raise a genuine issue of fact sufficient to require denial of the motion. See Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 293, 415 N.E.2d 390, 396; Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, cert, denied (1966), 383 U.S. 946,16 L. Ed. 2d 209, 86 S. Ct. 1204.

Expert Witness

Plaintiff also appeals from an order denying her motion to add Dr. Burton Russman as an expert witness to testify as to negligence of the hospital.

Section 58(3) of the Civil Practice Act provides:

“A party shall not be required to furnish the names or addresses of his witnesses, except that upon motion of any party disclosure of the identity of expert witnesses shall be made to all parties and the court in sufficient time in advance of trial so as to insure a fair and equitable preparation of the case by all parties.” Ill. Rev. Stat. 1979, ch. 110, par. 58(3).

On October 28,1980, on motion of defendants, plaintiff was directed to identify all expert witnesses with respect to all parties by December 4, 1980, subsequently extended by the trial court to February 26,1981. Plaintif advised the parties that Abel Swirsky and Dr. Ralph Morris would testify and their depositions were ordered taken. On April 22, 1981, plaintiff further advised defendants by letter that Dr. Burton Russman and Dr. Jacob Wilinsky would be called to testify at trial and enclosed a report by Dr. Russman relating to plaintiff’s condition. The letter informed defendants that Dr. Wilinsky was to perform surgery on plaintiff’s left eye on May 19 and his report would be forthcoming thereafter. On June 11,1981, the cause was removed from the July 20 trial call on motion of another defendant who wished to depose Dr. Russman, and it was reset for trial on August 31. On July 28, plaintiff requested the court to amend its expert witness disclosure order originally entered December 4,1980, in order to add Dr. Russman as an expert witness. The motion was denied by the trial court.

We think the trial court abused its discretion in denying plaintiff’s request to add Dr. Russman as an expert witness. Section 58(3) is intended to insure all parties have an opportunity to fairly and equitably prepare their case in advance of trial, and defendants clearly could not be surprised by the testimony of this witness. They were first advised plaintiff intended to call Dr. Russman as an expert medical witness some four months prior to the last trial date set by the court. Over two months before that trial date all defendants were given an opportunity to depose Dr. Russman, and when plaintiff sought to amend her list of witnesses to add Dr. Russman, the trial was still almost a month in the future. In these circumstances the trial court should have permitted the additional expert witness. See Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 422 N.E.2d 241.

For the foregoing reasons the summary judgments entered in favor of defendants and the order denying leave to add Dr. Russman as an expert witness are reversed and the cause is remanded for further proceedings.

Reversed and remanded.

REINHARD and UNVERZAGT, JJ., concur.