author: JUSTICE TRAPP JUSTICE GREEN,

text:
    CINDI NICHELSON, Plaintiff-Appellant, v. WILLIAM CURTIS et al., Defendants (Lee Hurshman, Defendant-Appellee).
    Fourth District
    No. 4 — 82—0842
    Opinion filed August 10, 1983.

      GREEN, J., dissenting.
    David V. Dorris, of Jerome Mirza & Associates, Ltd., of Bloomington, for appellant.
    David L. Drake, of Heckenkamp & Simhauser, P.C., of Springfield, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff, Cindi Nichelson, filed a two-count complaint against defendants William Curtis, M.D., and Lee Hurshman, M.D. Count II, which is the subject of this appeal, alleged that defendant Hurshman gave negligent advice to plaintiff’s husband, resulting in her sterilization. Summary judgment was granted to Hurshman and plaintiff brings this appeal to review the propriety of that order. We affirm.

The pleadings, affidavits and depositions before the court indicate that in December of 1976, plaintiff was informed by defendant Curtis, an obstetrician and gynecologist in Springfield, that she was six to seven weeks pregnant. At the time, plaintiff and her husband, Kevin Nichelson, were living in Carbondale, Illinois, while Kevin was attending school. Defendant Hurshman is a pediatrician also practicing in Springfield and, according to plaintiff’s deposition testimony, was chosen by her to be the baby’s pediatrician. Contrary to plaintiff’s claim, defendant Hurshman deposed that he was merely filling in for another doctor who was out of town.

Plaintiff received intermittent prenatal care in Carbondale but in June of 1977 returned to Springfield to deliver her baby. Prior to her return, defendant Curtis had informed plaintiff that previous complications from another birth indicated that delivery by cesarean method was necessary. Other complications were also observed by Curtis. Curtis had ordered plaintiff to undergo amnioscentesis and sonogram tests which indicated polyhydramnios, or excessive amniotic fluid, which may indicate abnormalities with the fetus. Whether these results were discussed with the plaintiff or her husband by Dr. Curtis is disputed by the parties.

Three days prior to the birth of the child, defendant Curtis, plaintiff, and plaintiff’s husband discussed the possibility that plaintiff should be sterilized following the delivery. According to defendant Curtis the subject of sterilization was broached by plaintiff. Plaintiff stated that the idea of sterilization was first mentioned by Curtis. Later that day, plaintiff and her husband both signed a consent form which stated that they “request Dr. Curtis and assistants of his choice to perform upon Cynthia Nichelson the following operation: tubal sterilization.” Both plaintiff and her husband understood the form and acknowledged their signatures on the document, but claimed that their consent to the sterilization was conditioned on the delivery of a healthy baby. Plaintiff’s husband stated at his deposition that “we let him know in turn that we thought maybe it [sterilization] would be a good idea, but we did not want it done if there was going to be any complications. And he said he couldn’t do it without signing the papers, and he said if we signed them and something comes up then we don’t want you to do it unless we talk about it. And he [Dr. Curtis] understood that then ***.” Plaintiff and her husband deposed that Curtis never mentioned any possible complications or abnormalities prior to the delivery of the baby. Plaintiff likewise indicated that she thought that the consent to sterilization was conditional on the delivery of a healthy baby. Plaintiff stated that “[we] wanted to make sure if everything was all right with the baby to go ahead but otherwise we did not want to do it.” Defendant Curtis deposed that there were no conditions to the sterilization consent. Defendant Hurshman also denied any knowledge of an understanding between plaintiff and Curtis that the sterilization was in any way conditioned.

The birth and sterilization occurred on July 22, 1977, at Memorial Hospital in Springfield. Dr. Curtis was the doctor who performed the delivery and Dr. Hurshman was in the operating room to receive the baby and began his duties as the baby’s pediatrician. The baby was delivered by cesarean method, and according to Hurshman it was immediately apparent that it had a cleft palate. As indicated, Hurshman denied any knowledge of an understanding of a conditional consent but did state that following the delivery, Curtis asked him to go talk to plaintiff’s husband to determine if Curtis should proceed with the sterilization. In the words of defendant Hurshman: “[H]e [Dr. Curtis] said, please ask him [plaintiff’s husband] whether he still wants Mrs. Nichelson to be sterilized in view of the baby’s congenital anomaly.” Curtis likewise acknowledged that he asked Hurshman to discuss with plaintiff’s husband whether the sterilization should be performed in light of the baby’s problems.

The record indicates a sharp disagreement over what Hurshman told plaintiff’s husband. According to Kevin Nichelson, defendant Hurshman told him that the baby had a cleft palate which could be surgically repaired, but otherwise was a normal infant. Defendant Hurshman denied making such statements and asserted that he informed Kevin that the baby had one congenital defect and could possibly have more, particularly problems with its central nervous and cardiovascular systems. Hurshman stated that Kevin was extremely upset after finding out that the baby had a cleft palate and could not decide what to do. He went back to the operating room to inform defendant Curtis that Kevin could not decide and Curtis told him to bring Kevin into the operating room so that he could talk with him. Nichelson accompanied Hurshman to the operating room and after talking to Curtis consented to the sterilization of his wife. The record does not disclose the substance of the conversation between Curtis and plaintiff’s husband. A few days after the baby was delivered, it developed congestive heart failure and was transferred to St. Louis Children’s Hospital. The baby died within six weeks of birth.

Count II, at issue sub judice, alleged that defendant Hurshman was negligent in informing plaintiff’s husband that the baby was healthy and in failing to inform the plaintiff’s husband of possible serious illnesses or disabilities. Plaintiff alleged that as a result of this negligent advice her husband consented to the sterilization procedure, contrary to the parties’ conditional consent. Hurshman moved for summary judgment on count II, alleging that there were no material issues of fact to be resolved, that he had no knowledge of the alleged conditional consent, did not have a physician-patient relationship with plaintiff, and was entitled to a judgment as a matter of law. The trial court granted this motion.

Summary judgment is proper when the pleadings, depositions and admissions on file, together with any affidavits, establish that there is no issue as to any material fact and that the movant is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005; Schuman v. Pekin House Restaurant & Lounge (1981), 102 Ill. App. 3d 532, 430 N.E.2d 145.) The purpose of summary judgment is not to try an issue of material fact but to determine if a triable issue does exist. (Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 436 N.E.2d 598.) In determining if a material question of fact exists, the pleadings, depositions, affidavits and admissions, if any, should be construed strictly against the moving party and liberally in favor of the opponent. Barnes v. Rakow (1979), 78 Ill. App. 3d 404, 396 N.E.2d 1168.

The elements necessary to establish a cause of action for medical malpractice are the same as any other negligence case. To prevail, the plaintiff must prove that defendant owed him a duty which was breached, proximately causing injury, and resulting in damages. (Spike v. Sellett (1981), 102 Ill. App. 3d 270, 430 N.E.2d 597.) During the existence of a physician-patient relationship, a physician is under a duty to use due care in attending to the needs of the patient. (Smothers v. Butler (1979), 78 Ill. App. 3d 1018, 398 N.E.2d 12.) Here, there is no evidence that there ever existed between plaintiff and defendant Hurshman any semblance of a physician-patient relationship for the treatment of plaintiff or her husband. Plaintiff does not suggest that any indicia of a physician-patient relationship is shown by the record but appears to argue that a duty arose by defendant Hurshman’s conduct in going to the waiting room, at the request of Dr. Curtis, to discuss with plaintiff’s husband whether a tubal litigation should be performed.

The gist of plaintiff’s argument is that since Dr. Curtis asked Dr. Hurshman to ask the husband whether plaintiff was to be sterilized in view of the baby’s congenital anomaly:

“A reasonable person could deem this request and what followed later, to be an assumption, by defendant, of the duty to obtain an informed consent for plaintiff’s sterilization.”

In describing the scope of this duty, plaintiff refers to the doctrine of informed consent, under which a doctor is required to disclose to his patient the foreseeable risks and results of medical treatment as well as alternatives to such procedure. (See Magana v. Elie (1982), 108 Ill. App. 3d 1028, 439 N.E.2d 1319; Green v. Hussey (1970), 127 Ill. App. 2d 174, 262 N.E.2d 156.) Plaintiff argues that defendant Hurshman had a duty to provide Kevin with an explanation of the proposed procedure, full information of the baby’s health and possible birth defects, and alternatives to the tubal sterilization. Plaintiff claims that the breach of this duty was the proximate cause of her damage.

We agree with plaintiff’s implicit argument that the absence of a physician-patient relationship is not dispositive of defendant’s liability since liability can still be found if the evidence shows that defendant Hurshman voluntarily assumed a duty. As noted in Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 317, 412 N.E.2d 472, 474: “A duty voluntarily assumed must be performed with due care or ‘such competence and skill as [one] possesses.’ ” The construction of this hypothesis is not supported in the record established by the depositions of the defendants. There is no contention that Dr. Hurshman attended the conference or discussion between the plaintiff, her husband, and Dr. Curtis at which the proposal for the additional surgery and the terms of the alleged conditions were discussed. Dr. Curtis’ deposition and that of Dr. Hurshman each state that Dr. Hurshman was not advised that a discussion about the tubal ligation was conditioned on the determination that the baby was healthy. Upon the event, it appears that the husband did not make any decision upon advice from Dr. Hurshman but was undecided and made no choice until he conversed with Dr. Curtis.

The trial court found that Dr. Hurshman assumed no duty and that there was no proximate cause. We too conclude that Dr. Hurshman cannot be deemed to have assumed a professional duty by “agreements” arising from discussions in which he did not participate and concerning which he was not advised or informed. Further, liability predicated on negligence requires a showing that the injuries were the natural and probable consequences of the complained-of conduct or omissions. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 117 N.E.2d 74; Bak v. Burlington Northern, Inc. (1981), 93 Ill. App. 3d 269, 417 N.E.2d 148.) As noted in Ney. “The injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either a remote cause, or no cause whatever of the injury.” 2 Ill. 2d 74, 80, 117 N.E.2d 74, 79.

The question of foreseeability in relation to proximate cause is illustrated in the context of Hurshman’s conversation with plaintiff’s husband. First, if Hurshman was unaware that the sterilization decision was being based upon his advice to plaintiff’s husband, then holding him liable for failing to adequately disclose the condition of the infant to plaintiff’s spouse would impose liability for remote and unforeseeable consequences. Secondly, holding Hurshman liable for giving negligent advice to plaintiff’s spouse if he could foresee the possibility that plaintiff’s spouse would use this information to decide whether to authorize the sterilization would be altogether different. In the former example, the consequences of a negligent act are unforeseeable while in the latter they are not. The only clear indication of Hurshman’s knowledge is found in his affidavit which avers that “the affiant [Dr. Hurshman] did not care for or treat plaintiff, Cindi Nichelson, and had no knowledge of the alleged conditional consent for the tubal ligation.” In light of plaintiff’s failure to file opposing affidavits or move to strike this response, the trial court could treat this statement as true. Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497.

Other issues have been raised by the parties, but our affirmance is for the reasons stated. The order of the trial court, granting defendant Lee Hurshman’s motion for summary judgment, is affirmed and the cause is remanded for further proceedings on count I.

Affirmed and remanded.

MILLS, J., concurs.

JUSTICE GREEN,

dissenting:

The question presented here is difficult and is apparently one upon which there is no direct authority. However, I cannot agree that, taking the evidence of record before us most favorably to plaintiff, no showing was made that defendant Hurshman owed her a duty of care in advising her husband as to the condition of the baby.

Whether Hurshman, merely by virtue of his employment as pediatrician for the newborn child, had a duty to plaintiff to use skill commensurate with one in that specialty, in advising plaintiff’s husband of the condition of the child, is a question upon which there is no direct authority in this State. (See 61 Am. Jur. 2d Physicians, Surgeons, and Other Healers sec. 229, at 358 (1981).) However, superimposed upon any duties owed by Hurshman as a pediatrician were other duties which arose when, while in the operating room at plaintiff’s employment, he agreed to assist Curtis in determining whether a sterilization procedure should be performed. In doing this, he was aiding Curtis in the performance of Curtis’ services directly to plaintiff, and thus created a physician-patient relationship at that time.

Hurshman admitted that the reason he made inquiry of plaintiff’s husband in regard to whether the sterilization should be performed was because of the question of the condition of the baby. The circumstances gave a strong inference that plaintiff, who was under anesthetic, had delegated to her husband final power to determine whether that sterilization should be performed. Were this so, had Curtis advised plaintiff’s husband in regard to the baby’s condition in order to get final authority to perform a procedure that would otherwise be a battery, he would have been under a duty to use professional care in advising as to the condition of the baby. The same duty would be imposed upon Hurshman when he agreed to assist Curtis.


source: Caselaw Access Project

author: PRESIDING JUSTICE WEBBER

license: Public Domain

text:
    CATHERINE McCALL, a/k/a Catherine Andries, Plaintiff-Appellant, v. HEALTH CARE SERVICE CORPORATION, d/b/a Blue Cross/Blue Shield, Defendant-Appellee.
    Fourth District
    No. 4-83-0054
    Opinion filed August 12, 1983.

      Greaves & Lerner, of Champaign, for appellant.
    David C. Thies, of Webber & Thies, of Urbana, and Thomas P. Ward and Michael I. Hyman, both of Chicago, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents another in the growing throng of cases litigating disputes between insurers and insureds over sums allegedly due under policies. While such litigation is as old as the insurance industry itself, the present case presents an aspect which so far as we can determine has not heretofore been passed upon by the reviewing courts of this State.

Since this appeal arose from a dismissal of plaintiff’s first amended complaint as insufficient in law under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615), no evidence has yet been presented and factual matters must be gleaned from the pleadings. Under these circumstances all well-pleaded facts are presumed true.

Plaintiff filed her original complaint in the circuit court of Champaign County and alleged that by reason of her employment she was an insured of the defendant (Blue Cross) under a group policy. She further alleged that on December 5, 1979, she received medical treatment at a Champaign hospital and that the hospital submitted its bill for $119 to the defendant; that thereafter, on December 20, 1979, defendant Blue Cross notified her that the claim was not covered under Emergency Medical Care provisions of the group policy but would notify her as to coverage under other provisions; that thereafter plaintiff communicated several times with defendant and made submissions of her claim.

Further allegations were that on December 29, 1980, the hospital filed suit against the plaintiff for the services received in December 1979 and obtained a judgment; that on January 13, 1981, plaintiff was notified by defendant that the claim had been paid; that on February 13, 1981, plaintiff’s wages were garnished on account of the judgment; and that on March 16, 1981, the claim was paid by the defendant.

Plaintiff’s original complaint was in four counts, each sounding under section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767) and sought $5,000 statutory damages for vexatious and unreasonable delay in payment of the claim and $20,000 exemplary damages for wilful, wanton, grossly negligent and bad faith acts and omissions by the defendant.

Defendant filed a motion to dismiss the original complaint based upon section 3 of the Non-Profit Health Care Service Plan Act (Ill. Rev. Stat. 1981, ch. 32, par. 553) and attached a certified copy of its articles of incorporation to the motion. Examination of the articles establishes that defendant was in fact organized under that act. Section 3 provides that corporations so organized are exempt from the provisions of the Illinois Insurance Code.

The trial court allowed the motion, dismissed the original complaint, and granted leave to plead over.

Plaintiff filed a first amended complaint in two counts. The factual allegations were identical with those in the original complaint as recited above. She abandoned any claim under section 155 of the Code and alleged only a common law tort: that the defendant had a duty to deal with the plaintiff fairly and in good faith and that it breached that duty by (1) failing to pay the claim; (2) failing to notify plaintiff that the claim was covered by the group policy within a reasonable time after December 20, 1979; and (3) failing to provide plaintiff with accurate information regarding the status of the claim for more than 15 months from December 20, 1979, to March 16, 1981. The first amended complaint also alleged in count I that the acts of the defendant were done in bad faith and caused her embarrassment, harassment, mental suffering, and expense in defending herself. She asked $5,000 actual damages and $20,000 exemplary damages.

Count II of the first amended complaint reiterated all of count I down through the allegations of breach of duty; it omitted the allegation of bad faith and substituted an allegation that defendant knew that its delay was causing severe emotional distress, embarrassment, humiliation, harassment and expense to the plaintiff. It then asked $5,000 in actual damages only.

Defendant filed a motion to dismiss the first amended complaint as being substantially insufficient in law, again under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 615). The trial court took the motion under advisement and ultimately issued a memorandum order allowing the motion and striking the cause. The court also made a finding under Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) which we regard as surplusage. Plaintiff appeals from the order of dismissal; we reverse and remand.

In its memorandum order the trial court concluded that the conduct alleged was not so outrageous nor so severe as to amount to the intentional infliction of emotional distress. We agree with this finding.

However, the court also dismissed on the basis of section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767), which it theretofore held to be inapplicable to the defendant in dismissing the original complaint. We are unable to account for this seeming reversal of thinking, and the memorandum order offers no explanation.

The issue, simply framed, may be stated to be: is a nonprofit health care service corporation, which is exempt from the provisions of the Illinois Insurance Code, liable in a common law tort action for bad faith in dealing with one of its insureds? In our opinion the answer is yes.

A number of prior cases have considered the question of common law tort action in the context of section 155, but all of them concerned stock or mutual companies which were subject to the Code. (Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 371 N.E.2d 373; Tobolt v. Allstate Insurance Co. (1979), 75 Ill. App. 3d 57, 393 N.E.2d 1171; Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 407 N.E.2d 156.) They are therefore not direct precedent in dealing with the issue presented here where the question is not the existence of a common law tort action in the face of section 155, but the existence of a common law tort action when the insurer is exempt from section 155.

All three of the foregoing cases discussed Ledingham v. Blue Cross Plan (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540, which case represents the genesis in this State of the nation of the common law tort of bad faith dealing on the part of an insurer. Debolt and Tobolt were critical of Ledingham for not considering section 155. Hoffman, in a more lenient fashion, held that section 155 did not on its face preempt the common law tort. Lynch v. Mid-America Fire & Marine Insurance Co. (1981), 94 Ill. App. 3d 21, 418 N.E.2d 421, held specifically that there existed a common law tort action for bad faith refusal to make payments. This was for compensatory damages generally but did not include attorney fees provided for under section 155 as it existed prior to 1977.

However, neither Ledingham itself, nor the appellate decisions critical of it, considered the exemption problem, and the supreme court was deprived of the opportunity to review Ledingham in full. In the supreme court opinion (Ledingham v. Blue Cross Plan (1976), 64 Ill. 2d 338, 342, 356 N.E .2d 75, 76-77) it is stated:

“As earlier indicated, the appellate court reversed the punitive damages award on June 12, 1975. No petition for rehearing was filed, nor was leave to appeal from that judgment sought by either party.”

The supreme court’s opinion was thus limited to the question of costs. However, in a later opinion on a different matter, the supreme court did cite Ledingham for the proposition that a separate tort action may arise out of conduct which also involves a breach of contract. Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.

We are then satisfied as to the existence of the common law tort insofar as the stock and mutual companies subject to the Illinois Insurance Code are concerned. Tobolt and Debolt, in discussing preemption, limited the preemption to punitive damages. Hoffman states that section 155 does not preempt compensatory damages. Lynch was not required to decide preemption since the events there occurred prior to the amendment of section 155 in 1977.

While all of these cases discuss preemption, it is noteworthy that such preemption did not change the nature of the tort but only the items of damage and the amount thereof. Prior to the amendment of 1977, section 155 allowed attorney fees to the prevailing party as part of the taxable costs and put a cap on them; the amount of such costs was not to exceed any of certain specified limitations. (Ill. Rev. Stat. 1975, ch. 73, par. 767.) The amendment of 1977 added to attorney fees as part of the taxable costs “other costs, plus an amount not to exceed ***:” (Ill. Rev. Stat. 1981, ch. 73, par. 767). In general, the recovery remained the same except that the dollar alternative was increased from $1,000 to $5,000. A significant thing is that the predicate for recovery — the nature of the tort — remained the same pre1977 and post-1977: vexatious and unreasonable delay. The amendment also broadened the liability of the companies by adding to attorney fees and costs an item for unliquidated damages while at the same time putting a limit upon them. It appears to us that public policy, as established by the legislature with the 1977 amendment, is that insurance companies shall be liable for unreasonable and vexatious delay in settling claims beyond the single question of attorney fees. Lynch so held as a matter of common law; it spoke of “bad faith,” which we believe is the semantic equivalent of vexatious and unreasonable delay.

Given this public policy, the question still remains whether the exemption granted to nonprofit health care service corporations is likewise an immunity from tortious conduct on their part.

We note first that there is no specific immunity granted in the Non-Profit Health Care Service Plan Act. (Ill. Rev. Stat. 1981, ch. 32, pars. 551 through 562i.) In addition, section 4 of that Act (Ill. Rev. Stat. 1981, ch. 32, par. 554) provides:

“A non-profit health care services corporation may be organized in the manner provided for the organization of corporations in ‘An Act to revise the law relating to corporations not for pecuniary profit,’ approved July 17, 1943, as heretofore or hereafter amended. Any such corporation shall have all the powers, rights and privileges of a corporation organized under said Act except insofar as said provisions are inconsistent with this Act.”

Section 5(b) of the General Not for Profit Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 163a4(b)) provides:

“Each corporation shall have power:
* * *
(b) To sue and be sued, complain and defend, in its corporate name.”

We do not regard the ability to sue and be sued as inconsistent with the purposes and provisions of the Non-Profit Health Care Service Plan Act. It follows that there is no general immunity from suit granted to such corporations.

We are therefore of the opinion that such corporations can be sued for tortious conduct. Even if section 155 of the Illinois Insurance Code were to apply, it would not change the result. That section does not eliminate a tort; it only refines it and limits the recovery; exemption from it, if anything, only expands liability. Whether that constitutes proper social policy is a subject which can only be settled by either the supreme court or the legislature. As we have indicated, the supreme court has yet to pass on the matter, and the general legislative policy appears to be one of expansion.

Since the case at bar is only at the initial pleading stage, we cannot divine what affirmative defenses, if any, Blue Cross may be able to raise in answering. Those questions must be resolved by the trial court in due course.

To summarize: the trial court was correct in striking count II which in effect pleaded intentional infliction of emotional distress. We agree that defendant’s alleged conduct was insufficient to sustain such a theory. The trial court was correct in striking the prayer for punitive damages in count I for the same reason. The trial court was in error in striking the balance of count I which sought compensatory damages for “bad faith” on the part of the defendant. We have already held that this is the semantic equivalent of vexatious and unreasonable delay, the predicate for the tort. That aspect of the trial court’s order is reversed, and the cause is remanded to that court with directions to allow the defendant to answer count I, sounding in compensatory damages, and for further proceedings in accordance with the views expressed herein.

Affirmed in part, reversed in part, and remanded with directions.

GREEN and MILLER, JJ., concur.


author: JUSTICE MILLER

text:
    COLWELL SYSTEMS, INC., Plaintiff-Appellee, v. MAX HENSON, Defendant-Appellant.
    Fourth District
    No. 4 — 82—0680
    Opinion filed August 12, 1983.

      Ted Crewell, of Pelini, Crewel! & Sheffler, of Urbana, for appellant.
    Michael J. Tague, of Franklin, Flynn & Palmer, of Champaign, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

The Boneyard Creek runs through the plaintiff’s and the defendant’s adjacent tracts of land in Champaign. In 1971 the defendant, who is the upstream or dominant owner, replaced the natural channel of the creek with culverts, laying them side by side in the creek bed. In 1979 the plaintiff’s basement was flooded, and the plaintiff sued, alleging that the defendant’s culverts had caused the flooding because they could not carry off large amounts of water. The trial court granted the plaintiff’s motion for summary judgment on the question of liability and later awarded about $280,000 in damages. The defendant appeals, arguing that the trial court erred in granting summary judgment; he does not attack the amount of damages awarded. We reverse and remand.

Because the defendant’s liability was decided by summary judgment, we must examine the five documents that the motion relied on: the complaint, the answer, the defendant’s answers to interrogatories, an admission of facts, and an affidavit. These are summarized below, with some repetition of detail.

The plaintiff’s complaint comprised two counts; both counts alleged that the creek naturally drained water from the defendant’s property before the culverts were installed, that the defendant “unlawfully and wrongly installed enclosed drainage culverts replacing the natural open channel of the Boneyard Creek,” and that the plaintiff’s basement was flooded July 30, 1979, as a result of the defendant’s activity. Count I, which the plaintiff in its brief on appeal classifies as a riparian theory, alleged that the installation of the culverts “has caused and still causes the water in said watercourse to back up over the inlets of said culverts and flow unnaturally in a northeasterly direction onto Plaintiff’s leasehold.” Count II, which the plaintiff calls its negligence count, alleged seven negligent acts and omissions: The defendant (1) installed the culverts without adequate engineering plans, (2) knew or should have known that the culverts would affect the natural surface drainage in the area, (3) failed to obtain the permission or advice of the Urbana-Champaign Sanitary District, (4) installed culverts that were too small, (5) knew or should have known that the culverts “consistently failed to properly handle the drainage water flowing in the Boneyard Creek, and that heavy rains could cause large amounts of water to flow onto Plaintiff’s leasehold,” (6) failed to take out the culverts or replace them with larger ones once he knew or should have known that they were inadequate, and (7) contrary to the sanitary district’s “direction” failed to take out the culverts or replace them with larger ones.

The defendant’s answer was a general denial of liability and did not raise any affirmative defenses or counterclaims.

The defendant’s answers to interrogatories provide some helpful information. According to the answers, installation of the culverts was begun during the summer of 1971 and finished that fall; the defendant was his own contractor for the work and did not hire any subcontractors or engineers. He installed two culverts, one 42 inches in diameter and one 36 inches in diameter; both were 200 feet long and laid down the center part of the creek bed. The defendant obtained the permission of the Urbana-Champaign Sanitary District. On September 10, 1971, the district’s engineer-manager wrote to the defendant that the district had approved his proposal “to install two 42-inch metal culverts for the west 170 feet of the Boneyard south of [his] property.” The letter also referred to the defendant’s promise “to assume full responsibility.”

The plaintiff filed a request for admission of facts, and, because the defendant never denied them, they stand admitted under Supreme Court Rule 216(c) (87 Ill. 2d R. 216(c)). None of the facts are controversial, and the following are relevant here: The creek flows through the south sides of the parties’ lots; the direction of the flow is from west to east; in 1971 the defendant replaced the creek’s open channel with culverts; before this the surface water on the defendant’s property drained to the south, into the creek; on July 30, 1979, water in the creek backed up over the inlets of the culverts and flowed northeasterly onto the plaintiff’s land, flooding its basement.

The last document supporting the motion for summary judgment was the affidavit of Walter F. Baselt, the plaintiff’s vice-president for plant and personnel. Baselt said that on and before July 30, 1979, the date of the flood, that portion of the creek immediately upstream of the plaintiff’s lot was enclosed, and the flow was carried by two pipes; both were 36 inches in diameter at their downstream ends, and at their upstream ends one was 42 inches in diameter and the other 36 inches in diameter. A third pipe, 36 inches in diameter, was next to the other two for part of the distance, but both its ends were capped shut with masonry plugs. Baselt said that on numerous times before July 30, 1979, the creek had overflowed its banks, forcing water onto the plaintiff’s land. On that date the overflow from the creek reached and descended over the driveway ramp going down to the plaintiff’s basement; the flow at the top of the driveway was 12 feet wide and five to seven inches deep.

The defendant did not present any counteraffidavits or attack the sufficiency of Baselt’s. The trial court granted the plaintiff’s motion for summary judgment but did not specify the theory or theories sustaining liability. After hearing evidence on damages, the court awarded the plaintiff $280,891.76.

On appeal the defendant argues that a question of material fact-proximate cause — existed and prevented the trial court from granting summary judgment on the issue of liability. The plaintiff argues that even if causation was an open question under its negligence theory, its riparian theory entitled it to summary judgment. According to the plaintiff, to succeed under the riparian theory it had to prove only “that waters were unlawfully diverted onto its land and that such diverted waters caused the plaintiff damage.” The plaintiff relies on the admitted facts and Baselt’s affidavit as proof of this theory.

We must first correct a misnomer: the plaintiff’s first count does not actually present a riparian theory. Although the plaintiff and defendant are riparian owners, riparian rights are not involved here. “Riparian rights,” a term of art, denotes the interest that a possessor of land has in the use of a watercourse running along or through his land. (See Restatement (Second) of Torts secs. 841 through 857 (1979).) The plaintiff’s complaint is for harm caused by water, not for interference with its use of water.

Although the defendant has not preserved any objections to the formal sufficiency of the complaint, we must first determine what interest of the plaintiff the defendant allegedly invaded. A trespass is an invasion “in the exclusive possession and physical condition of land” (Restatement (Second) of Torts, ch. 7, at 275 (1965)), and a private nuisance is “a nontrespassory invasion of another’s interest in the private use and enjoyment of land” (Restatement (Second) of Torts sec. 821D, at 100 (1979)). Although trespass and private nuisance are distinct fields of tort liability, they may overlap, and in an appropriate case an action may be maintained for both:

“An invasion of the possession of land normally involves some degree of interference with its use and enjoyment and this is true particularly when some harm is inflicted upon the land itself. The cause of action for trespass has traditionally included liability for incidental harms of this nature. If the interference with the use and enjoyment of the land is a significant one, sufficient in itself to amount to a private nuisance, the fact that it arises out of or is accompanied by a trespass will not prevent recovery for the nuisance, and the action may be maintained upon either basis as the plaintiff elects or both. Thus the flooding of the plaintiff’s land, which is a trespass, is also a nuisance if it is repeated or of long duration.” (Restatement (Second) of Torts sec. 821D, comment e, at 102 (1979).)

We construe both counts of the complaint here as alleging a trespass, for the plaintiff is suing for only a single instance of flooding and has not alleged the duration of the flood.

In analyzing torts one must distinguish between the interest that is invaded and the conduct that causes the invasion. (See Dial v. City of O’Fallon (1980), 81 Ill. 2d 548, 554, 411 N.E.2d 217, 220 (“the allegations of the complaint refer only to a trespass without specifying whether the intrusion was intentional or negligent”).) Count II clearly alleges a negligent intrusion, and for our purposes here we construe count I as alleging an intentional intrusion. Thus, we construe the complaint as setting forth alternative theories of recovery for one event and injury — the flooding that occurred July 30,1979.

One is not liable for an intentional trespass unless his acts pose “a high degree of certainty that an intrusion of another’s property will result” (Dial v. City of O’Fallon (1980), 81 Ill. 2d 548, 555, 411 N.E.2d 217, 221 (interpreting section 158 of the Restatement (Second) of Torts (1965), on intentional intrusions)). Proof of this was absent here. Furthermore, the plaintiff has failed to show under either of the counts that the defendant’s installation of the culverts altered the customary flow of water across its land.

Montgomery v. Downey (1959), 17 Ill. 2d 451, 162 N.E.2d 6, shows that a landowner that complains of flooding after a neighbor changes a stream cannot rely only on the fact that the injury occurred after the change was made. There, a stream ran through the plaintiff’s dominant land and then through the servient land of one of the defendants; that defendant dug a new channel for the stream and filled in the old. The plaintiff sued, arguing that the new channel was too small to handle large amounts of rainfall and had caused his land to become flooded during a wet period. The supreme court reviewed the evidence and affirmed the trial court’s decision that the defendant’s new channel had not increased the flooding. Because the capacity of the old, filled-in channel could not be measured, in assessing the effect of the change the supreme court relied more on the nearly uniform testimony of lay witnesses than on the conflicting, expert testimony of several engineers. In comparing the amount of flooding before and after the new channel was dug, the lay witnesses “agreed that there was flooding, and the result obtained was not a freedom from flooding on the part of the lands of the parties but, rather, a decrease in the time that the flood waters were retained on the various lands.” (17 Ill. 2d 451, 461, 162 N.E.2d 6, 12.) Therefore, the change in the channel had not increased the customary or otherwise expected flooding of the plaintiff’s land. The court cited Daum v. Cooper (1904), 208 Ill. 391, 70 N.E. 339, for this rule:

“The owner of land may change the course of a natural stream within the limits of his own land if, before the new channel leaves his land, he restores it to the original channel; provided, of course, that in making the change he does not cast upon the lands of an adjoining proprietor water which did not in the natural course of drainage flow upon such adjoining premises.” Montgomery v. Downey (1959), 17 Ill. 2d 451, 461, 162 N.E.2d 6, 12.

The plaintiff here has not shown that the defendant’s activity caused or aggravated the flooding in question. If the defendant did not increase the customary flood or redirect its flow, then under Montgomery and Daum he cannot be held liable.

The defendant did not move to strike Baselt’s affidavit and did not present any counteraffidavits. A counteraffidavit is not necessary, but the failure to file one leaves the opponent of the motion at risk, for the assertions in the affidavit must then be taken as true, even though the opponent’s pleadings contain contrary assertions (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500-01). The benefit of this rule to the movant is of course limited to what his affidavits and other supporting documents assert; the movant’s right to summary judgment must be evident from them.

The affidavit and admitted facts here show only that the defendant replaced the natural channel of the creek with culverts along its course through his property, that the culverts were of certain sizes, that the creek periodically flooded, and that on July 30, 1979, the creek backed up over the inlets of the culverts, flowed onto the plaintiff’s land, and flooded its basement. This is insufficient to entitle the plaintiff to summary judgment. We have no evidence that the defendant’s activity altered the normal course or flood of the creek or cast onto the plaintiff’s land water that would otherwise drain into the creek. Baselt’s affidavit does not present even a layman’s comparison of the situation before and after the culverts were set in place. Questions of material fact therefore remain — among those, whether the defendant caused the plaintiff’s harm — and so the trial court erred in granting the plaintiff’s motion for summary judgment.

Reversed and remanded.

WEBBER, P.J., and TRAPP, J., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE ex rel. BARBARA J. LIGHTBODY, Petitioner-Appellant, v. THEODORE M. LIGHTBODY, Respondent-Appellee.
    Fifth District
    No. 81 — 534
    Opinion filed March 9, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This cause comes before us following an order of the circuit court of St. Clair County granting respondent’s motion to dismiss. Petitioner Barbara Lightbody and respondent Theodore M. Lightbody were divorced by a decree of the circuit court of Fayette County, Kentucky, on May 10, 1979. Custody of the children was awarded to the respondent and no order of support was entered against either party. Petitioner subsequently obtained a modification of the Kentucky decree in the Third District Court of Bristol, Massachusetts, on December 1, 1980. The Massachusetts modification provided that custody of the two children be transferred from the respondent to the petitioner. Again, no support order was entered.

Petitioner initiated this action in Massachusetts on January 13, 1981, to obtain an order requiring the respondent, who lives in Illinois, to make support payments for their two children. This order was sought pursuant to the provisions of the Revised Uniform Reciprocal Enforcement of Support Act (URESA). (Ill. Rev. Stat. 1981, ch. 40, par. 1201 et seq.) The petitioner stated at that time that she needed $75 per week for the support of herself and her children. After the petition was certified by a justice of the Massachusetts court, it was transferred to the circuit court of St. Clair County. Respondent moved to dismiss the petition, asserting that since no prior support order had been entered against him, he had not breached any duty of support and, therefore, petitioner had no remedy under URESA. The circuit court allowed the motion to dismiss on September 10, 1981. Petitioner appeals.

Initially, we note that the respondent has not filed a brief in this court. However, we will consider the merits of the appeal pursuant to the authority of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The purpose of URESA is to “improve and extend by reciprocal legislation the enforcement of duties of support.” (Ill. Rev. Stat. 1981, ch. 40, par. 1201.) The legislation expressly authorizes a court to enter an order for support against the obligor once the court finds that a duty of support exists. (Ill. Rev. Stat. 1981, ch. 40, par. 1224.) A “duty of support” is defined as any such duty “whether imposed or imposable by law or by order, decree, or judgment of any court, whether interlocutory or final or whether incidental to an action for dissolution of marriage, legal separation, or otherwise and includes the duty to pay arrearages of support past due and unpaid.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 40, par. 1202(b).) The use of the word “imposable’ indicates that the duty enforceable under URESA need not be limited to one previously imposed by a court. This reading of the statute is consistent with the well-established principle that the wording of a statute should not be presumed to be surplusage. Hirschfield v. Barrett (1968), 40 Ill. 2d 224, 239 N.E.2d 831, cert. denied (1969), 393 U.S. 1062, 21 L. Ed. 2d 706, 89 S. Ct. 716; Donahoo v. Board of Education (1952), 413 Ill. 422,109 N.E.2d 787.

A number of other jurisdictions have recognized the propriety of entering a support order for the first time in a URESA proceeding. For example, in Clarkston v. Bridge (1975), 273 Or. 68, 72, 539 P.2d 1094, 1096, the Oregon Supreme Court held that “URESA authorizes both the finding and the enforcement of duties of support which have not been previously established in another proceeding.” The Supreme Court of Washington has observed that if the law were otherwise, an erstwhile spouse could avoid a duty of support simply by moving to a foreign State. (Davidson v. Davidson (1965), 66 Wash. 2d 780, 405 P.2d 261.) Under such circumstances, the petitioner would be without a remedy as to support whenever an imposable duty of support was not actually imposed. Davidson v. Davidson; see generally Brown v. Thomas (1968), 221 Tenn. 319, 426 S.W.2d 496; Harmon v. Harmon (1958), 160 Cal. App. 2d 47, 324 P.2d 901.

While several Illinois cases seem to reject the concept of entering a support order for the first time in a URESA proceeding, we find these cases to be factually distinguishable. For example, in Super v. Armstrong (1980), 83 Ill. App. 3d 1062, 1064-65, 404 N.E.2d 1008, 1009-10, the court stated that URESA is “intended as a supplementary device to enforce support orders previously entered and is not designed to serve as an independent basis for the imposition or termination of support orders.” However, in Armstrong a prior support order was entered as part of the divorce decree. Therefore, unlike the case at bar, the Illinois URESA court was not entering a support order for the first time (Super v. Armstrong), and the above-quoted language can only be seen as dicta. This dicta is unsupported by the language of the act and is contrary to the weight of authority from other jurisdictions. .

Likewise, other cases relying on the Armstrong dicta are factually distinguishable from the instant case since support orders were already in existence in those cases. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785; People ex rel. Oetjen v. Oetjen (1981), 92 Ill. App. 3d 699, 416 N.E.2d 278; People ex rel. Noah v. Gasik (1980), 91 Ill. App. 3d 980, 415 N.E.2d 452; People ex rel. St. Louis v. St. Louis (1980), 90 Ill. App. 3d 449, 413 N.E.2d 157.) Thus, the reviewing courts in the above-mentioned cases were never fully presented with the question of whether it is proper to enter a support order for the first time in a URESA proceeding.

We find it would be inequitable to allow a former spouse to escape any duty of support by moving to another jurisdiction. The trial court’s order granting respondent’s motion to dismiss would allow such a result and would also undercut the nationwide uniformity URESA is intended to promote. (Ill. Rev. Stat. 1981, ch. 40, par. 1241.) Therefore, the respondent’s motion to dismiss the petition in the instant case because no prior support order had been entered against him should have been denied.

For the foregoing reasons, the trial court’s order granting respondent’s motion to dismiss must be reversed and this cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

HARRISON, P.J., and KASSERMAN, J., concur.


author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM BURNS, Defendant-Appellant.
    Fifth District
    No. 82 — 321
    Opinion filed August 3, 1983.

      Randy E. Blue and David M. Raymond, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Gerald A. Sims, Jr., State’s Attorney, of Pinckneyville (Stephen E. Norris and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

The defendant, William Burns, was found guilty of three counts of felony deceptive practices following a trial by jury in absentia. He was sentenced to a term of 30 months in the Department of Corrections and ordered to make restitution and pay a fine. On appeal he raises three issues: (1) whether the statute that allows a defendant absent at the start of his trial to be tried in absentia (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1(a)) is unconstitutional; (2) whether he should be granted a new trial because the trial court did not, as required by statute (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 4(e)), admonish him that his failure to appear at trial would constitute a waiver of his right to confront the witnesses against him and that the trial could, nevertheless, proceed in his absence; and (3) whether the State failed to prove beyond a reasonable doubt that the person depicted in the photograph marked People’s exhibit No. 4 was the William Burns who was on trial in this case.

Following the filing of an amended information, the defendant first appeared in court on September 25, 1981, at which time the public defender was appointed and preliminary hearing was set. Defendant gave his address as Box 462, Pinckneyville, Illinois, where he was staying with one of his sisters and, apparently, her husband. At the subsequent hearing, on October 8, 1981, defendant was present with his attorney. The court found probable cause, the defendant entered a plea of not guilty as to all three counts, and the court denied defendant’s motion to reduce bond, urged for medical reasons. The defendant, who is 55, testified that he was supposed to be evaluated for further surgery on his stomach. In denying the motion, the trial court said it would reconsider the ruling if defendant’s attorney could provide verification of the need for such surgery “from a hospital or doctor.” Defendant subsequently posted bond. On December 8, 1981, the case was set for readiness call on December 30, 1981, notice of which was sent to defendant. On December 30, 1981, the case was called for pretrial conference, at which time defendant was absent. Defendant’s attorney, despite having tried to find defendant, did not know where he was, saying, “[T]he closest I can come is that he is somewhere in Southern Missouri.” In an order entered December 30, 1981, the case was set for trial on January 14, 1982, and defendant was ordered to be present on that date. A copy of that order was mailed to defendant at the address shown on his bond.

On January 14, 1982, the case was called for trial, but defendant was again absent. The prosecutor and defense counsel stipulated to certain facts, some of which follow. The sheriff’s department had spoken with another of defendant’s sisters, Frances Wright, who had said that before Christmas she had put the defendant on a bus in Nashville, Illinois, so that he could go to a Veteran’s Administration hospital in, apparently, St. Louis, Missouri. Defendant in some way indicated to her or another relative that he had not been admitted to the hospital because it was full. His sister had said that when she put him on the bus “there was a conversation between them concerning the December 30th day and he did tell her that he would be here for that pretrial date.” The sheriff of Reynolds County, Missouri, at the request of the prosecutor, had attempted twice to serve the warrant in the instant case and to find defendant but had been unable to do so. The trial court found that defendant’s failure to appear on January 14 was a wilful avoidance of trial and granted the State’s motion to try him in absentia. Trial was set for January 21, 1982, and notice of the trial on that date was sent to defendant by certified mail at his last known address, indicated on his bond slip.

On January 21, despite further efforts by defendant’s attorney to locate him — the sister with whom he had been staying believed he was in Reynolds County, Missouri, he had been unable to do so and did not know where defendant was. The State’s Attorney informed the court as follows:

“Judge, in that regard I might mention, the Court might recall under the stipulated facts Reynolds County, Missouri, was where the State had attempted to locate him on the basis of some knowledge disposed to [s-ic] the State by Francis [sic] Wright.
Also, the Clerk has informed me on the 14th, which is when the Court did order certified mail to Route 2 [which includes Box 462], Pinckneyville, the Clerk on that date did send out certified mail. Mr. Phipps, the Clerk of the Court, went to the Post Office more recently and he found on the 11th there was a change of address to William Burns to General Delivery, Reynolds, Missouri, which is in Reynolds County, Missouri.
THE COURT: Well, it is the defendant’s obligation to keep the Clerk’s office advised if there is any change of address that he gave on his bond and he hasn’t done that. I don’t feel that the Court personnel or the Court has to scurry around the countryside trying to find a defendant to bring him in for trial. The defendant has certain obligations himself, and this particular defendant hasn’t met those obligations.”

Trial was had on January 21, at which time defendant was represented by counsel.

The evidence showed that on August 3, 1981, defendant had, with a deposit of $120, opened an account upon which he later wrote three checks, each far exceeding the amount of the deposit. He made no further deposits but the next day purchased by check luggage and clothing for the sum of $240.90 and an automobile in the amount of $453. On August 22, 1981, he purchased by check a tape player, a CB radio, and accessories for the sum of $255.

Defendant received the notice of trial, according to the postmark on the receipt for certified mail, in Reynolds, Missouri, on February 1, 1982. Defendant was arrested on March 17, 1982, and ordered held without bond. The trial court subsequently denied defendant’s post-trial motion for a new trial or a judgment of acquittal and sentenced him. In the post-trial motion defendant stated that the trial court had erred in finding that the absence of defendant was a wilful act. Defendant does not, however, present the issue for review.

We note parenthetically that, according to defendant’s presentence investigation report,

“on February 25, 1982 an obituary appeared in the Reynolds County Courier in Missouri stating that William Bums had died on February 12, 1982 at the YA Medical Center in St. Louis, Missouri and was buried in Jefferson Barracks Cemetery. All family information contained in the article corresponds with that of the defendant, William Burns. After receiving some further information, the paper investigated the matter of the article and found it to be inaccurate.”

We note further, still parenthetically, items 6 and 7 of that part of the presentence investigation addressing defendant’s history of criminality or delinquency:

“6. October 14, 1977, in Carter County, Missouri, charged with DWI third. The defendant has failed to appear in court on this matter and a warrant has been activated as of April 29, 1982 when that jurisdiction was notified of his whereabouts in Perry County, Illinois. (Case No. 6316)

7. August 11, 1980, in Carter County, Missouri, charged with Misdemeanor Bad Checks (2 counts). The defendant has failed to appear before the court on this matter and a warrant was activated as of April 29, 1982 when that jurisdiction was notified of his whereabouts in Perry County, Illinois. (Case No. CR-280163M and CR-280164M).”

Defendant does not contend that the State and the trial court did not abide by the requirements of section 115 — 4.1 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1). He contends only that the statute is unconstitutional. However, the statute has been held to be constitutional (People v. Collins (1982), 109 Ill. App. 3d 1076, 441 N.E.2d 935; People v. Powell (1981), 95 Ill. App. 3d 93, 419 N.E.2d 708), and we adhere to those holdings.

As was said in People v. Davis (1968), 39 Ill. 2d 325, 329-30, 235 N.E.2d 634, 636, upon which the defendant relies and in which the trial of a defendant, absent from the entire trial and not represented by counsel, was held to be constitutionally impermissible:

“There is, of course, no question as to the defendant’s absolute right to be present at his trial, and this right can be waived only by the defendant himself. (Snyder v. Massachusetts, 291 U.S. 97, 105-06, 78 L. Ed. 674, 54 S. Ct. 330, 332; People v. Steenbergen, (31 Ill. 2d 615, 618; People v. Smith, 6 Ill. 2d 414, 416.) But a defendant may not prevent his trial by voluntarily absenting himself therefrom, and a defendant in a criminal case, particularly one who has been released on bail pending trial, has a duty to present himself when his case is reached on a jury trial calendar. (Steenbergen; see, also, People v. De Simone, 9 Ill. 2d 522, 533.) In those cases where a defendant voluntarily absents himself from the courtroom after the trial has commenced it is uniformly held to be a waiver of the right to be present, leaving the court free to proceed with the trial in like manner and with like effect as if he were present. [Citations.]”

As was pointed out in Collins, the court in Davis “premised its decision principally on the State’s failure to afford defendant the representation of counsel at his in absentia trial.” (109 Ill. App. 3d 1076, 1079, 441 N.E.2d 935, 937.) The court in Collins stated further of Davis that it did “not read Davis as a condemnation of in absentia trials under all circumstances” (109 Ill. App. 3d 1076, 1079, 441 N.E.2d 935, 937). The defendant here stresses, in terms of the receipt by a defendant of notice of the date of trial, the difference between a trial in absentia of a defendant who is present for part of his trial, absenting himself after it has begun, and a trial in absentia of a defendant who is not present at his trial at all, the situation in Collins and Powell as well as in Davis. We note that in Powell the defendant’s attorney represented to the court that his client knew the date of his trial. As the defendant here points out, a defendant who is present at the beginning of his trial has received notice of the date of trial, whereas, in the case of a defendant who is present for none of his trial, there can be no guarantee that the defendant has received such notice. Defendant argues that because waiver assumes knowledge, a defendant who has not received notice of his trial cannot knowingly have waived his right to be present at it and that he himself, who did not receive notice of the date of his trial until after the trial had ended, could not, therefore, knowingly have waived his right to be present at trial.

A defendant who has been released on bail pending trial has not only the right and the duty to be present when his case is reached on a jury trial calendar but also, we think, an obligation to enable the court to notify him of the date of trial. The defendant here provided the court with the same address, and never with any other, at his first appearance and on his bail bond. Released on bail pending trial, he went to another State apparently over a month prior to trial but made no effort to provide either the court, his attorney, or members of his family who might be questioned as to his whereabouts with either an address at which he could be reached or any other information that would have enabled the court or his attorney to communicate with him. Furthermore, he left the area knowing the next date on which proceedings relating to his trial would be conducted, having indicated to his sister that he would be back in time for the pretrial conference on December 30. Despite having been absent from court upon that date, defendant made no effort discernible in the record to learn from either his attorney or the court what had transpired then. Moreover, he had three weeks in which to do so. Inasmuch as the trial court found that defendant’s failure to appear on January 14 was a wilful avoidance of trial and in view of the facts of record, the defendant’s failure to provide the court, his attorney, or members of his family who might be questioned as to his whereabouts may be considered a wilful, not a negligent, omission. In the context of a wilful omission, as opposed to a negligent one, we compare the case of People v. Evans (1961), 21 Ill. 2d 403, 172 N.E.2d 799, upon which defendant also relies. There the defendant, who was absent on the date of his trial, having taken a job of short duration in another State, called or communicated with his attorney when asked to do so as well as of his own volition, kept his landlady apprised of his whereabouts, and might, his attorney told the trial court, have concluded from the attorney’s remarks that his case would not be tried during the setting in question. “The record,” the court said, “does indeed show negligence on the part of the defendant and his attorney, and suggests even a disregard for the defendant’s obligation to appear in court” (21 Ill. 2d 403, 405, 172 N.E.2d 799, 800), but held that the defendant had not waived the right to be present during his trial.

The defendant correctly states that the date of trial cannot be imputed to a defendant by virtue of his attorney’s knowledge of the date of trial. (People v. Watson (1982), 109 Ill. App. 3d 880, 441 N.E.2d 152.) Otherwise, as the court pointed out in Watson, trial in absentia would be “proper whenever defendant is represented by counsel” (109 Ill. App. 3d 880, 883, 441 N.E.2d 152, 154), assuming that all the other requirements of the statute had been satisfied. However, we think that if a defendant, by omitting to provide to the court information by which he may be informed of the date of his trial, precludes the court from giving him notice of the date, knowledge of the date of trial may be imputed to him, and, all other requirements of the statute having been met, such a defendant may be deemed to have waived knowingly his right to be present at trial. Because the defendant Burns by such an omission precluded the court from giving him notice of the date of his trial, knowledge of the date of trial is imputed to him. Since the defendant does not contend that the requirements of the statute have not been satisfied by the State or the court, by claiming, for example, that notice of the date of trial was not sent to him by certified mail, defendant is deemed to have waived knowingly his right to be present at trial.

The defendant did not include in his post-trial motion the second error he alleges, concerning section 113 — 4(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 4(e)). However, rather than consider the issue of waiver, we elect to consider the issue on its merits. The section provides:

“If a defendant pleads not guilty, the court shall advise him at that time or at any later court date on which he is present that if he escapes from custody or is released on bond and fails to appear in court when required by the court that his failure to appear would constitute a waiver of his right to confront the witnesses against him and trial could proceed in his absence.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 4(e).)

On October 8, 1981, when defendant entered a plea of not guilty, the court did not so admonish him. The admonishment was not given at a later time inasmuch as defendant was not present in court at any time thereafter prior to trial. Because the court did not so admonish defendant prior to trial, he contends on appeal that the judgment must be reversed and the cause remanded for a new trial.

The statute unambiguously provides that the trial court shall so advise a defendant, who pleads not guilty, at the time he enters the plea or at a later time, prior to trial, on which he is present in court. According to the express provisions of the statute, the court was not required to admonish the defendant with regard to the waiver of this right at the time he entered his plea of not guilty but could have done so at a later time, for example, at the pretrial conference on December 30, of which defendant had notice. The defendant, however, by his voluntary absence from court for any further pretrial proceedings, denied the court any subsequent opportunity to admonish him prior to trial. Although we think that the admonishment required by section 113 — 4(e) preferably should be given at arraignment while the defendant is still before the court (see People v. Castro (1983), 114 Ill. App. 3d 984), the statute does not require that it be given then. Defendant's voluntary absence from court having precluded the court from admonishing the defendant on any later court date following his arraignment, the court did not commit error.

Nor did defendant include the third and final error he alleges on appeal in his post-trial motion. At trial witnesses for the State testified that the person in the photograph was the man who bought and paid for the merchandise in question, William Burns. Defendant contends on appeal that no witness for the State testified that the person in the photograph marked People’s exhibit No. 4 was a picture of the William Burns who was on trial. The defendant did include in his post-trial motion an allegation of error with regard to the use of the picture; however, that allegation of error had to do with defendant’s repeated objection at trial to the use of but a single photograph for purposes of identification by the witnesses, the allegation in the post-trial motion being that “the method of identification utilized by the prosecutor at trial was improper, leading and suggestive.” Defendant does not pursue that allegation of error on appeal. At no time during trial or the hearing on his post-trial motion did defendant advance the objection he now advances for the first time on appeal. Since an objection to evidence based upon a specific ground is a waiver of objection on all grounds not specified (People v. Washington (1962), 23 Ill. 2d 546, 179 N.E.2d 635), by specifically objecting at trial to the use of only a single photograph as being unduly suggestive, the defendant waived any objection on all grounds not specified, including that now advanced here. Further, the general rule is that the failure of a defendant to raise an issue in the written motion for a new trial constitutes a waiver of that issue, and it cannot be urged as a ground for reversal on review. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Defendant having omitted the allegation of error from his post-trial motion, the issue is waived for review. Even if we were to consider the issue on the merits, the result would be no different in view of the testimony of the witnesses who testified with respect to the photograph. They gave verbal descriptions of defendant and detailed accounts of their dealings with him and plainly remembered him well.

Affirmed.

EARNS and EASSERMAN, JJ., concur.


author: PRESIDING JUSTICE HARRISON JUSTICE JONES,

text:
    GALE GILL et al., Plaintiffs-Appellants, v. GOLDIE CONLIN et al., Defendants-Appellees.
    Fifth District
    No. 82-559
    Opinion filed July 21, 1983.
    Rehearing denied August 18, 1983.

      JONES, J., specially concurring.
    Endicott & Finch, of Carmi, for appellants.
    Bernard L. Minton, of McLeansboro, for appellees.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

This is an appeal from a grant of summary judgment in favor of defendants, Goldie and Norman Conlin, entered on June 11, 1982. The trial court found, pursuant to the memorandum of judgment recorded on March 23, 1981, that the Conlins had a perfected lien on certain real estate located in White County, Illinois, which was superior to any claim of the plaintiffs, Gale and Sharon Gill. Plaintiffs contend that the Conlins did not follow the statutory requirements necessary to have their foreign judgment recognized in this State and thus did not obtain a valid lien on the subject realty. We reverse and remand. A detailed recital of facts is necessary.

On April 22, 1980, the Conlins obtained a judgment against Roy B. Utley, Jr., in the circuit court of Posey County, Indiana. On March 19, 1981, they filed a complaint in the circuit court of the second judicial circuit in White County, Illinois, seeking to enforce the Indiana judgment. Defendants then recorded a memorandum of judgment of an alleged final judgment in the White County recorder’s office on March 23. Eight days later Mr. Utley was personally served with summons and copy of the complaint. On April 3, execution was issued and the sheriff levied upon the real estate in White County. On May 1, after finding that “30 days have elapsed since personal service on said defendant, and no entry of appearance or other pleading has been filed herein,” the trial court entered a final judgment on behalf of the Conlins. In the interim, however, on April 8, the plaintiffs had recorded a copy of their contract with Mr. Utley to purchase the real estate upon which the Conlins were seeking to place the lien. The contract between the Gills and the Utleys was executed in 1974, but had never been previously recorded.

Pursuant to the May 1 confirmation of the Indiana judgment, a notice of the sheriffs sale of the land was published. The Gills succeeded in blocking the sale temporarily, but on May 28 the Conlins purchased the property at the sale upon execution of judgment. Plaintiffs thereafter filed their amended complaint seeking specific performance of their 1974 real estate contract and requesting a determination of priority of the lien rights between the parties. Defendants’ motion for summary judgment was granted, and the Gills appealed.

The issue to be resolved here is whether defendants’ memorandum of judgment recorded on March 23 gave them a superior claim to the White County property. This may be determined by examining the provisions of chapter 77, entitled “Judgments” (Ill. Rev. Stat. 1979, ch. 77, par. 1 et seq.). Section 1 provides that a foreign judgment which is registered pursuant to the “Uniform Enforcement of Foreign Judgment Act” shall be a lien on the real estate of the party against whom it was rendered only from the time:

“*** (a) a certified copy of the verified petition for registration of the foreign judgment or (b) a transcript, certified copy or memorandum of the final judgment of the court of this State rendered or made on that foreign judgment is filed in the office of the recorder of deeds in the county in which the real estate is located.” (Ill. Rev. Stat. 1979, ch. 77, par. 1.)

This provision, therefore, sets forth very definite requirements for enforcement of foreign judgments.

In the present case, those requirements have not been satisfied. A petition for registration of the foreign judgment was filed on March 19, 1981, but the petition was not verified nor was a certified copy of the petition filed in the office of the recorder of deeds in White County. Thus the requirements of subparagraph (a) were not met.

Likewise, there was no transcript, certified copy or memo of the final judgment of this State filed in the office of the recorder of deeds, as directed by subparagraph (b). The memorandum of judgment filed by the Conlins on March 23, 1981, did not constitute the memorandum of a final judgment and so does not satisfy (b). According to section 12 of the Uniform Enforcement of Foreign Judgment Act, a registered judgment shall be a final judgment when “the judgment debtor fails within thirty days after the return date fixed in the publication notice or in the summons to act to set aside the registration” and “the court shall enter an order to that effect.” Ill. Rev. Stat. 1979, ch. 77, par. 99.

In this case, the court entered such an order on May 1. It was the memorandum of this May 1 judgment which should have been filed in the recorder’s office to satisfy section 1(b). Thus, without either of the requisites of section 1 being fulfilled, the Conlins had no valid lien on the real estate in question as of April 8 when the Gills recorded their contract with Mr. Utley.

We realize that this is a strict interpretation of the applicable sections of chapter 77, but this court has recently construed another portion of section 1 on judgments in this fashion. In Wolff v. Groshong (1981), 101 Ill. App. 3d 606, 428 N.E.2d 910, a case involving the revival of a judgment after seven years, we held that plaintiffs had allowed their lien of judgment to lapse at the end of the seven year period of limitation because they had not complied with the dictates of section 1. Consequently, an interim transfer by the judgment debtor defeated the plaintiffs’ foreign judgment claim. We stated that “[a]ny other conclusion would compromise the integrity of the system for liens contemplated by the Act.” Wolff v. Groshong (1981), 101 Ill. App. 3d 606, 608.

The statute also received literal application in Chatham v. Chatham (1977), 54 Ill. App. 3d 633, 636, 370 N.E.2d 50, where the court construed section 12 of the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1979, ch. 77, par. 99) as binding “only on property of the debtor which has been levied upon.” Since the judgment creditor in that case had instituted a citation to discover the debtor’s Illinois assets and had then followed only with a petition for entry of turnover, the court held that no “levy” of the assets in question had actually occurred and thus the debtor’s motion to dismiss was properly sustained.

In view of the attitude of strict compliance demanded by these cases, we hold that defendants failed to comply with the requisites of section 1 (Ill. Rev. Stat. 1981, ch. 77, par. 1). As a consequence, they had no lien on the White County property. The trial court’s grant of defendants’ motion for summary judgment must therefore be reversed and this cause remanded for proceedings consistent with the views expressed herein.

Reversed and remanded.

EARNS, J. concurs.

JUSTICE JONES,

specially concurring:

Aside from the procedural aspects of this case discussed by the majority, there is another, and I believe more substantive, basis for the result reached. That other basis is the fact that the Conlins were alleged by the Gills to have had actual notice of the claim of the Gills to the 50 acres of real estate involved by virtue of their contract for deed. If the Conlins did have actual, or even constructive, notice of the claim of the Gills at the time they registered their Indiana judgment against Utley and obtained an execution sale, the claim of the Gills to the 50 acres must be deemed to be superior to that of the Conlins.

The record of circuit court case No. 81 — LM—11, the proceeding to register the Indiana judgment against Utley, is not before us. The case we review is No. 81 — CH—5, which was begun on May 15, 1981, by the Gills with a complaint for specific performance of their contract for deed with Utley and for a temporary restraining order and preliminary injunction. The Gills had never been made parties to the proceeding to register the Indiana judgment. The Conlins were, of course, made parties-defendant to the suit for specific performance and injunction. The Conlins’ motion for summary judgment, directed against the Gills’ amended complaint for specific performance, produced the judgment that is the subject of the instant appeal. The proceedings in case No. 81 — LM—11 are known to us from the pleadings, affidavits and exhibits filed by the parties in No. 81 — CH—5.

In their amended complaint for specific performance, the Gills alleged that at the time the Conlins purchased the real estate, apparently at the execution sale, they had notice of the rights of the Gills and, accordingly, took the property subject to a lien in favor of the Gills. Both the complaint and the amended complaint alleged that the Gills had paid the obligation of the contract for deed in full and were entitled to a deed. The amended complaint contained a prayer that the court determine that the interest of the Conlins is inferior and subject to the rights of the Gills or, in the alternative, that the court declare that the Conlins have no interest in the real estate concerned.

The Conlins filed an answer to the amended complaint and a motion for summary judgment. Appended to the motion for summary judgment were copies of various documents that had been filed in case No. 81 — LM—11. Included was a copy of the authenticated copy of the Indiana judgment as it had been filed in 81 — LM—11. The Indiana judgment is in two parts. The first, filed in the Indiana court on April 22, 1980, is a money judgment in ordinary form in favor of the Conlins and against Utley in the amount of $5,557.13. The second, filed in the Indiana court on February 23, 1981, is styled “Entry.” This latter was obviously made as the culmination of supplemental proceedings in the Indiana court for the discovery of assets of Utley, for it recites that Utley appeared in person and testified. Paragraph 3 of the “Entry” recites:

“The Court finds further that defendant represents to the Court that he is presently the owner of approximately fifty (50) acres of real estate located in Harolds Prairie Township, White County, Illinois, which real estate he is selling on contract to Gail [sic] Gill. The defendant represents to the Court that the parties agreed purchase price was $11,000.00, that said real estate is mortgaged to People’s Bank & Trust Co., Mt. Vernon, Indiana in the approximate amount of $7,500.00, and that the fair market value of said property is approximately $20,000.00.”

The Gills filed a response to the Conlins’ motion for summary judgment. Paragraphs 6 and 7 of that response allege that the Indiana judgment shows on its face that the real estate in question was subject to a contract for sale to the Gills and serves as constructive notice of the Gills’ rights in that real estate.

Despite the several foregoing allegations regarding the notice the Conlins had of the Gills’ interest in the real estate involved, summary judgment was granted to the Conlins.

There are a sizeable number of cases that deal with the proposition that persons who acquire an interest in real estate, either as a grantee or as a lien claimant, with notice of an outstanding lien take their interest subject to the outstanding lien. The following proposition is a common thread in these cases:

“It is also the law that a judgment becomes a lien on all real estate of the judgment debtor appearing of record free from the claims of all other persons of which the judgment creditor had no notice, either actual or constructive, and when there is no such notice of an unrecorded deed, the lien will not be affected by the subsequent recording thereof.” (Bauman v. Schoaff(1947), 331 Ill. App. 38, 43-44, 72 N.E.2d 571, 573.)

Some other cases that stand for the same proposition are: Thorpe v. Helmer (1916), 275 Ill. 86, 113 N.E. 954; Carnes v. Whitfield (1933), 352 Ill. 384, 185 N.E. 819; Hayes v. Carey (1919), 287 Ill. 274, 122 N.E. 524; Commercial Trust & Savings Bank v. Murray (1927), 246 Ill. App. 355; and Burnex Oil Co. v. Floyd (1969), 106 Ill. App. 2d 16, 245 N.E.2d 539. This latter case states:

“Where a prospective purchaser has actual knowledge of facts which are inconsistent with the claims of the record owner, the prospective purchaser is not at liberty to ignore such facts. Whatever is sufficient to put a party upon inquiry is notice of all facts which pursuance of such inquiry would have revealed and without such inquiry no one can claim to be an innocent purchaser as against the party claiming an interest in the property supported by such notice.” 106 Ill. App. 2d 16, 23-24, 245 N.E .2d 539, 544.

The foregoing cases and authorities, when applied to the alleged fact that the Conlins acquired the real estate with notice of the interest of the Gills, would subject the interest of the Conlins to that of the Gills.

There are, however, factual matters to be resolved. For instance, the “Entry” portion of the Indiana judgment does not give a legal description of the 50 acres to which it refers, and it must be determined whether this 50 acres is that purchased by the Gills.

For the foregoing reasons, I join with the majority in reversing the summary judgment and remanding the case for further proceedings upon the Gills’ amended complaint for specific performance of the real estate contract and the determination of the priority of the lien rights as between the Conlins and the Gills.


author: PRESIDING JUSTICE HARRISON

text:
    THE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee, v. V.I.P. MANOR, INCORPORATED, et al., Defendants-Appellants.
    Fifth District
    No. 83 — 81
    Opinion filed August 15, 1983.

      Weihl and Millard, Ltd., of Belleville (Donald E. Weihl, of counsel), for appellants.
    Neil E Hartigan, Attorney General, of Springfield (Roy E. Frazier, Jr., Assistant Attorney General, and Merle C. Bassett, Special Assistant Attorney General, of counsel), for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

V.I.P. Manor, Incorporated (hereinafter referred to as V.I.P.) appeals from a final order of the circuit court of Madison County which vested in the Department of Transportation of the State of Illinois (hereinafter referred to as the Department) title to certain real property pursuant to the Department’s motion for immediate vesting of title, filed under section 2.1 of the Eminent Domain Act (Ill. Rev. Stat. 1981, ch. 47, par. 2.1) repealed and codified without change of substance as section 7 — 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 7 — 103). The sole issue for review is whether the Department is authorized to acquire private property via the “quick take” provision of section 7 — 103 where the purpose of condemning the property is to provide a replacement site for the relocation of a municipal firehouse currently located in the right-of-way of a Federal aid route. For the reasons which follow, we hold that the Department is not so authorized.

Testimony adduced at the hearing on the Department’s motion revealed that the city of Wood River operates two fire stations. Fire Station No. 1 is located on the northwest corner of Madison Avenue and Wood River Avenue in the city of Wood River. This location is in the path of the right-of-way of Federal Aid Route 789. Construction of the highway will require the removal of the firehouse from its present site. The Department developed plans to relocate the facility on land belonging to V.I.P. The district land acquisition administrator for the Department testified that unless the land owned by V.I.P. is acquired, construction of the replacement fire facility would be impossible. The Wood River fire chief testified that Fire Station No. 1 receives the bulk of fire alarms in the city and that construction of the highway has caused an increase in traffic around the fire station. He expressed concern for the safety hazard created by the increased volume of traffic.

The trial court entered an order vesting in the Department the fee simple title to the property in question. The court also denied V.I.P.’s post-trial motion. V.I.P. now appeals to this court from those orders.

The sole issue presented for review is whether section 7 — 103 of the Code of Civil Procedure authorizes the Department to acquire “functional replacement” property by the “quick take” procedure. Section 7 — 103 authorizes quick take proceedings for, inter alia, “highway purposes.” (Ill. Rev. Stat. 1981, ch. 110, par. 7 — 103.) The issue presented thus may be resolved by determining whether the acquisition of property as a site for a fire station to replace an existing fire station (scheduled to be destroyed for a highway right-of-way), is a “highway purpose” within the meaning of section 7 — 103. This appears to be a question of first impression in this State. In making this determination, we are mindful that:

“ '*** The legislature has the power to confer the right of eminent domain, but it is the province of the court to determine whether such grant of power has been made and whether it is exercised within the grant. [Citation.] The construction to be placed by the court upon any law purporting to authorize the taking of private property for public use is one of strict construction.’ ” (People ex rel. Director of Finance v. YWCA (1981), 86 Ill. 2d 219, 232-33, 427 N.E.2d 70, quoting Department of Public Works & Buildings v. Ryan (1934), 357 Ill. 150, 154-55, 191 N.E. 259.)

One work has elaborated on this rule of strict construction, stating:

“[Statutes conferring the power must be strictly construed. Clear legislative authority must be shown to justify the taking. Authority cannot be implied or inferred from vague or doubtful language. When the matter is doubtful, it must be resolved in favor of the property owner.” 18 Am. Jur. Eminent Domain sec. 26 (1938).

The parties do not dispute the Department’s right to condemn the land to facilitate replacement of the firehouse. (See Ill. Rev. Stat. 1981, ch. 121, par. 4 — 509.) As V.I.R points out, however, it is not that power which the Department seeks to exercise. The exercise of quick take power is an even more drastic procedure than the usual eminent domain proceedings because of the immediate vesting of title in the sovereign entity. (See Department of Public Works & Buildings v. Vogt (1977), 51 Ill. App. 3d 770, 776, 366 N.E.2d 310, appeal dismissed as moot (1978), 72 Ill. 2d 287, 381 N.E.2d 241.) Our construction of the phrase “highway purposes” will accordingly be strict.

The Department seeks an immediate vesting of title to V.I.R’s land in order to facilitate replacement of a municipal firehouse which will be destroyed by highway construction. The record does not indicate that the construction would not proceed in the absence of an available replacement site, or even that the replacement site would facilitate the completion of the highway. Testimony indicated only that a replacement site is necessary for construction of a replacement firehouse. It appears that the replacement is, therefore, merely a solution to the city of Wood River’s problem of securing a substitute facility, rather than a complement to some need of the Department. While municipal fire service is certainly an important community service, a strict construction of section 7 — 103 does not bring this replacement’s purpose within the embrace of any highway purpose.

Section 4 — 509 does not alter this analysis. That section authorizes the Department to acquire land to replace property already devoted to a public use but which is necessary for highway construction. Section 4 — 509 does not contain an explicit quick take provision, but provides only that “[i]n addition to other powers of the Department *** the Department is authorized to purchase, or to acquire through the exercise of the right of eminent domain ***” property to replace public property needed for highway construction. (Ill. Rev. Stat. 1981, ch. 121, par. 4 — 509.) This language authorizes in general terms, an eminent domain proceeding, but does not indicate the clear legislative intent necessary to authorize a quick take. We will not infer that intent is the absence of an explicit directive. Our analysis is also unchanged by section 7 — 112 of the Code of Civil Procedure. This section provides that the quick take right conferred by section 7 — 103 et seq. “shall be in addition to any other right, power, or authority otherwise conferred by law, and shall not be construed as abrogating, limiting or modifying any such other right, power, or authority.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 110, par. 7 — 112.) The emphasized language indicates that where the quick take procedure is available, other proceedings are not to be precluded by implication; the language indicates nothing by which we may discern the availability of the quick take procedure itself. Our interpretation of section 7 — 103 does not violate the rule of construction set forth in section 7 — 112 as it does not limit the Department’s right to proceed under the authority of section 4 — 509 of the Illinois Highway Code and exercise conventional methods of eminent domain power.

Our review of the law has revealed one case addressing itself to a question similar to the one sub judice. In State v. Bradford (1961), 242 La. 1095, 141 So. 2d 378, the Louisiana Supreme Court’s original opinion, with one justice dissenting, held that a quick take was not authorized, but on rehearing held with three justices dissenting, that the phrase “highway purposes,” though broad, was sufficiently clear and explicit and therefore not in need of explication by rules of construction. We find the analysis in the court’s original opinion persuasive.

The phrase “highway purposes” is not self-defining and several interpretations are equally plausible. By itself the statute does not indicate at what outer perimeter of circumstances the line separating highway purposes from other purposes is to be drawn. Resort to principles of statutory construction is therefore appropriate. (See De Witt County Taxpayers’ Association v. County Board (1983), 112 Ill. App. 3d 332, 336, 445 N.E.2d 509.) This conclusion marks our separation from the opinion of the Bradford court on rehearing.

Justice Summers’ original opinion observed that the rationale underlying a grant of quick take power is that it is more economical to plan construction of highways on a statewide basis; judicial review of each of thousands of separate parcels of property would impede construction to a point that would “completely paralyze the Department of Highways.” (242 La. 1095, 1112, 141 So. 2d 378, 384.)

“Within the bounds of engineering considerations and certain practical considerations such as economic feasibility, safety and convenience, a straight line between the points of beginning and ending is the most desirable route for their construction. With this tenet as a basic goal, the highway engineer is limited in his choice of routes, therefore, the lands lying in the path of the proposed highway are those required, not the lands remotely located from that area. Whereas, in his quest for materials and equipment for the construction of highways, the builder is not limited by this geographical consideration. He is free to seek and obtain these requirements wherever he might find them. Failure to find them in one locality is not fatal to the highway project for they can be obtained elsewhere, just as materials for constructing highways have always been available in the past ***. But in the case of the highway right-of-way, refusal to permit a ‘quick taking’ may operate to delay the entire project, so related is-every portion of a highway to the other, like a link in a chain.” (242 La. 1095, 1112-13, 141 So. 2d 378, 384.)

In the instant case, the parcel sought is not located in the right-of-way, but on the contrary is sought because it lies away from the path of construction. Accordingly, we find our interpretation of section 7 — 103 to be consistent with the underlying rationale of the “quick take” power. Because the property is not in the path of the highway construction, and there is no evidence that construction will not proceed without acquisition of this property, we find that the policy considerations supporting a quick take of a highway right-of-way are absent in a proposed quick take of functional replacement property. Accordingly, we reverse the judgment of the circuit court and remand for proceedings not inconsistent with this opinion.

Reversed and remanded.

JONES and EARNS, JJ., concur.