author: JUSTICE JOHNSON

text:
    JOHN WASHINGTON, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION OF THE CITY OF EVANSTON et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—172
    Opinion filed December 22, 1983.
    Rehearing denied January 25, 1984.
    Lawrence Jay Weiner, Lee M. Weisz and Fredric Bryan Lesser, all of Weiner, Neuman & Spak, of Chicago, for appellant.

      Jack M. Siegel, of Chicago, for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, John Washington, was a police officer for the city of Evanston when this action was instituted. He appeals from the decision of the circuit court which set aside an Evanston Civil Service Commission (the Commission) decision suspending him for 120 days following a hearing on a three-count complaint. The judgment of the circuit court directed his discharge from the police force.

The issues on appeal are (1) whether the circuit court could properly entertain the cross-complaint filed by the city more than 35 days after the issuance of the Commission’s decision; (2) whether the admission of the polygraph evidence was improper; (3) whether the police chief could properly order plaintiff to submit to blood and saliva tests; and (4) whether the circuit court acted improperly in reversing the Commission’s findings and imposing a harsher sanction.

We reverse.

On February 6, 1981, three days of hearings began before the Commission hearing officer on charges brought against plaintiff by the chief of police of the Evanston Police Department. The charges consisted of three counts and sought discharge of plaintiff from his position as a police officer for the city.

Count I of the complaint alleged that plaintiff, through the use of threats and intimidation, coerced a female to engage in sexual intercourse with him following her arrest for a traffic violation. Count II alleged that plaintiff engaged a female motorist in a sexually suggestive and improper conversation following a routine traffic stop. Count III alleged that plaintiff disobeyed an official order to submit to blood and saliva tests in connection with the investigation of the allegations in count I. Following is a summary of the evidence adduced at the hearing.

Regarding count I, the complaining witness testified that late on the night of August 25, 1980, she was involved in an automobile accident in the city of Evanston. After investigating the accident, plaintiff arrested her and took her to the police station. When she was released later that evening, plaintiff drove her back to her car. A conversation ensued in which plaintiff threatened and/or made promises to her regarding the outcome of the charges facing her. As a result of the coercion, she had sexual intercourse with him in the back seat of her car, in an alley. Plaintiff was on duty and in uniform at the time of the occurrence.

Shortly after the occurrence, the complainant reported to the Evanston Police Department that she had been raped by plaintiff. She was taken to a hospital where she was examined by a physician. The physician testified that he examined the complainant about 4 a.m. on August 26, 1980, and at that time she stated to him that she had been assaulted. A specimen was taken from the vaginal area to determine the presence of human seminal material. A blood sample was also taken from the complainant.

A forensic expert testified that he examined the vaginal specimen taken from the complainant and it showed the presence of seminal material. Seminal material was also found in a pair of panties belonging to the complainant. The blood sample taken from the complainant was tested to determine blood group type. The expert stated that a saliva sample from the complainant and a blood and saliva sample from plaintiff were needed in order to make a comparison with the blood group test done on the seminal material. He emphasized that the blood and saliva samples were needed to perform certain tests which would show that plaintiff could either be included or excluded as having had sexual intercourse with the complainant. However, the tests were never concluded because no blood or saliva was ever received from plaintiff, and no saliva was received from the complainant.

It was disclosed that the complainant had been given a polygraph test in connection with her charges against plaintiff. The results of that test suggested that her allegation of being raped was untrue. The results of a second polygraph test suggested that the complainant was telling the truth when she recanted her earlier claim of being raped and claimed instead that she submitted to sexual intercourse with plaintiff under duress.

It was established that the complainant had previously engaged in prostitution, had been arrested for theft, and was a former narcotics addict.

Regarding the charges contained in count II, the second complainant, a 23-year-old woman, testified as follows: she was stopped by plaintiff while driving alone on Sheridan Road in Evanston, on or about August 15, 1980, at 5:30 a.m. After plaintiff stopped her, she got out of her car, as did he. She told him that she did not have her driver’s license because she was “driving on a ticket.” She showed plaintiff the ticket in lieu of her drivers’s license.

Plaintiff engaged her in conversation and asked a number of personal questions. He also made a remark about getting into the back seat of the complainant’s car. He inquired about her marital status and told her that because he was a nice guy he would not give her a ticket. He also asked her for a date. The complainant became fearful when plaintiff asked her to take a walk on the beach with him. She told him that she had to go home. She then got into her car and drove away. Plaintiff did not issue a traffic ticket to her, and she denied speeding prior to being stopped. The incident was not reported to the Evanston police until August 26, 1980, when complainant was at the police station to obtain a vehicle sticker. At that time, she gave a statement to an officer, describing the incident and physical characteristics of the officer who had stopped her on August 15. She stated at the hearing that she recognized plaintiff when he stopped her because he had been a security guard at her high school. She picked plaintiff’s photograph out of a group of approximately 40 photographs of Evanston police officers*..

The complainant later took a polygraph: test-which suggested that her allegations against plaintiff were true. The polygraph examiner testified that in his opinion complainant was truthful in her answers regarding the sexually suggestive comments made by plaintiff.

There was also testimony by the polygraph examiner who had administered a polygraph test to plaintiff. The examiner stated that in his opinion plaintiff was not truthful in his denial of the allegations in count II.

Plaintiff testified in his own behalf. He denied stopping the complainant on the day in question or at any other time, as alleged in count II.

On May 8, 1981, the hearing officer issued his decision. He noted that the issue in question was whether there was just cause for removal of plaintiff from the Evanston Police Department. He noted that one of the questions presented was what sanction should be imposed on plaintiff if it were decided that discharge was not indicated.

The hearing officer dismissed count I of the city’s complaint after having found that the testimony of the complainant involved in that charge was incredible. With respect to count II, the hearing officer found that the city had sustained its burden of proof. The complaining witness involved in that count was found to be credible. The hearing officer found that plaintiff had, indeed, engaged in sexually suggestive and unprofessional conversation with the woman in contravention of departmental rules.

With respect to count III, the hearing officer found that the police chief’s order instructing plaintiff to submit to blood and saliva tests was reasonable in light of the serious charges made against plaintiff and the fact that the investigation was then pending. Further, plaintiff was bound to obey the clearly communicated order. It was noted that the subsequent dismissal of count I did not retroactively invalidate the police chief’s order.

On June 3, 1982, prior to imposing sanction, a hearing in aggravation and mitigation was held. Following that hearing, the hearing officer’s decision was issued. It noted that plaintiff had previously been suspended in 1979 for violations of departmental rules in connection with the arrest and processing of a female. That suspension was confirmed by the circuit court and was pending in the appellate court. The hearing officer found that plaintiff’s conduct was not so severe as to make it impossible or impractical for him to function as a police officer. It was determined that plaintiff should be suspended for 120 days. The decision of the hearing officer was adopted as the decision of the Commission.

On July 22, 1981, plaintiff filed a complaint in the circuit court of Cook County for review of the decision. On August 31, 1981, plaintiff’s attorney and the attorney for the city stipulated as follows:

“It is hereby stipulated between Plaintiff John Washington and Defendants City of Evanston and Chief William McHugh that the Answer and Cross-Complaint of Defendants may be filed up to and including the date of September 4, 1981.”

On that date, the city filed its answer to plaintiff’s complaint and cross-complained against plaintiff, seeking his dismissal from the police department.

The record does not reflect the arguments made by the respective parties in the circuit court. However, it appears that the court issued an order on June 17, 1982, which was later vacated and a final order was issued on August 12, 1982. That order stated in part:

“2. With respect to Washington’s objections to the admission of lie detector test results, this Court finds that it need not rule on the admissibility of this evidence both because it affirms the dismissal of Count I and because it specifically finds that there is enough evidence in the record without regard to or consideration of the lie detector test evidence to support the conviction on Count II (the Lawrence stop) and Count III (the refusal to obey a direct order).
* * *
4. With respect to the question of penalties, this court finds that the 120-day suspension imposed by Hearing Officer Gold-stein and through him by the Civil Service Commission of Evanston is entirely inappropriate in consideration of the officer’s conduct in this case and of the 1979 similar sexual solicitation offense.
* * *
6. I find the Commission’s failure to grant discharge arbitrary, capricious and against the manifest weight of the evidence. I hereby direct the Commission forthwith to enter an Order discharging Officer Washington permanently from the. Evanston Police Department, and I vacate my order of June 17,1982.”

The circuit court denied plaintiff’s motion to vacate this final order and this appeal followed.

We deem it appropriate to address the jurisdictional question initially. Plaintiff Washington contends that the circuit court did not have jurisdiction over the city’s cross-complaint and thus had no authority to grant the relief sought by the city, i.e., discharge of plaintiff. He makes a lengthy argument, citing voluminous case law as well as sections of the administrative review statute (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.). Plaintiff’s basic argument is that the circuit court had no jurisdiction since the cross-complaint was not filed within 35 days of the issuance of the Commission’s decision.

Broadly defined, jurisdiction of subject matter is the power of a particular court to hear the type of case that is then before it. (Les-cher v. Barker (1978), 57 Ill. App. 3d 776, 779, 373 N.E.2d 1007, 1010.) Section 3 — 103 of the Code of Civil Procedure specifies the time within which review of an administrative decision must be commenced. It states in part:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” Ill. Rev. Stat. 1981, ch. 110, par. 3 — 103.

In this case, there is no question that the subject matter before the circuit court was the result of a final administrative decision. The statutory provision cited above gives the circuit court jurisdiction to review all administrative decisions of this type.

We believe that plaintiff has misapprehended the meaning of jurisdiction as applied to review of administrative decisions. What he raises as a jurisdictional bar is simply a procedural limitation on proceedings of this type.

Furthermore, the cross-complaint did not constitute commencement of the review action within the meaning of the statute or the case law cited by plaintiff. The proceeding was commenced within the statutory 35-day period when plaintiff Washington filed his complaint for review. Therefore, plaintiff’s real contention lies with whether the city’s cross-complaint was timely filed, not whether the circuit court had jurisdiction over the subject matter.

We note that plaintiff did not raise this issue in his answer to the city’s cross-complaint. It was first raised in a post-trial motion, after the circuit court had entered its initial order in June 1982. It is well settled that a party will not be permitted to argue on appeal a defense not interposed in his answer. Mendelson v. Lillard (1980), 83 Ill. App. 3d 1088,1096, 404 N.E.2d 964, 971.

Furthermore, it is difficult to understand plaintiff’s complaint about the tardiness of the city’s cross-complaint, when his attorney stipulated with the city’s attorney that the city may do the very thing which now forms the basis of his contention. In our opinion, the question of the timeliness of the city’s cross:complaint has been waived for purposes of appeal.

Plaintiff next contends that the polygraph evidence was improperly admitted and cites Kaske v. City of Rockford (1983), 96 Ill. 2d 298, 450 N.E.2d 314, in support of his contention that the findings of the Commission must be reversed. We disagree.

The hearing officer specifically found that there was sufficient credible evidence, excluding the polygraph evidence, by which plaintiff could be found guilty of the charges contained in count II. In reviewing the Commission’s decision, the circuit court also made that finding.

Our review of the record shows no evidence of plaintiff having undergone “trial by polygraph” as he asserts. On the contrary, we find that there was sufficient credible evidence on which the hearing officer could base his findings without the polygraph evidence. The testimony of the complaining witness regarding the charges in count II was found to be credible and plaintiff’s denial of the allegations was rejected. We see no reason to disturb the findings of the hearing officer, who had the opportunity to observe both parties when they testified at the hearing.

Plaintiff next contends that the police chief’s request that he submit to blood and saliva tests was arbitrary, unreasonable and unconstitutional. In support of this contention, he again cites Kaske v. City of Rockford (1983), 96 Ill. 2d 298, 450 N.E.2d 314. Plaintiff attempts to extend the court’s ruling in Kaske, which said that police officers did not have to submit to polygraph tests, to this situation. We are unpersuaded by his arguments, and we do not believe that the ruling in Kaske was intended for such broad application.

The fourth amendment to the United States Constitution protects an individual’s reasonable expectation of privacy from unreasonable intrusions by the State. (Division 241 Amalgamated Transit Union (AFL-CIO) v. Suscy (7th Cir. 1976), 538 F.2d 1264, 1267.) Whether the individual has a reasonable expectation of privacy and whether the intrusion is reasonable are determined by balancing the claims of the public against the interest of the individual. (538 F.2d 1264, 1267.) Furthermore, a governmental agency can place reasonable conditions on public employment. 538 F.2d 1264,1267.

In this case, plaintiff, a police officer, was charged with a serious breach of departmental rules which, if true, would seriously affect his ability to function effectively. The city clearly had an interest in ensuring that police officers function effectively and according to a code of ethics and departmental rules.

There was an investigation of a serious charge against plaintiff at the time of the police chief’s order. The fact that the part of the complaint on which that charge was based was later dismissed does not nullify plaintiff’s responsibility as a police officer. He was obligated to obey a direct order which was reasonable under the circumstances.

We next address the question of whether the circuit court acted improperly in vacating the Commission’s finding that the proper sanction was suspension for 120 days. The city argues vigorously that the circuit court acted properly in imposing its own sanction in lieu of that imposed by the Commission. However, as the city itself points out, substantial deference must be given to the Commission’s ruling. Only when the administrative agency’s decision is arbitrary, unreasonable and against the manifest weight of the evidence should the reviewing court act as did the circuit court in this case.

As the city so accurately points out, our supreme court has set forth the principles to be followed in the judicial review of an administrative decision. The function of the court is not to substitute its judgment for that of the administrative agency, but merely to determine whether or not the agency’s decision was against the manifest weight of the evidence.

The question of whether cause for discharge exists should be determined by the administrative agency, and that decision will not be reversed unless it is arbitrary, unreasonable or unrelated to the requirements of service. Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 552, 426 N.E.2d 885, 887.

In this case, the administrative agency held hearings for several days and was familiar with the facts from firsthand testimony. The hearing officer was also familiar with the prior difficulties plaintiff had had with certain breaches of departmental regulations. The record indicates that all these factors were considered by the hearing officer prior to deciding the proper sanction. Further, a hearing in aggravation and mitigation was held prior to imposition of the sanction.

On administrative review, the issue is not whether the court approves the action taken by the administrative agency, but whether there was substantial evidence to support the decision. (Starkey v. Illinois Civil Service Com. (1982), 105 Ill. App. 3d 904, 908, 435 N.E.2d 176, 179.) We believe that the administrative proceeding was the proper forum for determining a sanction in this case. We find nothing in the record to indicate that the 120-day suspension was unreasonable, arbitrary or in contravention of the evidence presented.

Further, we find the Commission had the opportunity to consider discharge as a sanction and specifically rejected it. We hold that the circuit court acted improperly in discharging plaintiff and in vacating the 120-day suspension imposed by the Commission.

Accordingly, we reverse the decision of the circuit court of Cook County and affirm the decision of the Commission.

Reversed.

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


source: Caselaw Access Project

author: JUSTICE SULLRAN

license: Public Domain

text:
    BEST COIN-OP, INC., Plaintiff-Appellant, v. OLD WILLOW FALLS CONDOMINIUM ASSOCIATION and PAUL F. ILG SUPPLY COMPANY, INC., Defendants-Appellees.
    First District (5th Division)
    No. 83—2177
    Opinion filed December 23, 1983.

      James B. O’Brien & Associates, Ltd., of Chicago, for appellant.
    Ronald H. Balsón, of Chicago, for appellee Paul E Ilg Supply Co.
    Marshall N. Dickler, Ltd., of Arlington Heights, for appellee Old Willow Falls Condominium Association.
   JUSTICE SULLRAN

delivered the opinion of the court:

This interlocutory appeal is from that portion of an order of the trial court which denies plaintiff’s petition for a preliminary injunction. The sole issue before us is the propriety of that ruling.

Plaintiff is engaged in the business of installing, maintaining, and operating coin-activated laundry room facilities in multiple-unit apartment and condominium buildings. In 1977, it entered into a written agreement with Loch Lomond Apartments (Loch Lomond), providing that plaintiff would operate the laundry room facilities in a 176-unit apartment building owned by Loch Lomond for a 10-year initial term with an optional seven-year extension. In 1979, the apartments were converted to condominiums under the name Old Willow Falls Condominium Association (the Association), and plaintiff continued to operate the laundry room. On March 31, 1983, the Association notified plaintiff that the agreement with Loch Lomond terminated by operation of law when the condominium conversion occurred, and ordered it to remove its equipment within 10 days. When plaintiff refused, the Association disconnected the machines.

Plaintiff filed a verified petition for injunctive relief and specific performance, alleging that the agreement in question was a lease and that it was evicted from the premises in violation of the provisions of “An Act to revise the law in relation to landlord and tenant” (Ill. Rev. Stat. 1981, ch. 80, par. 1 et seq.) and the Forcible Entry and De-tainer Act (Ill. Rev. Stat. 1981, ch. 57, par. 1 et seq.). It sought, in pertinent part, a mandatory order requiring reconnection of its equipment, preliminary and permanent injunctions prohibiting the Association from interfering with its rights under the agreement, and lost profits. Plaintiff also filed an emergency motion seeking reconnection of its equipment and a preliminary injunction to preserve the status quo pending a final hearing on the merits. The Association filed a motion to dismiss and a counterclaim (no copies of which were included in the record) and a supplement to the motion to dismiss, alleging that the agreement in question is not a lease and plaintiff’s complaint therefore failed to state a cause of action, and that, if it is a lease, plaintiff was itself in breach thereof and therefore not entitled to equitable relief. Paul F. Ilg Supply Company, Inc. (Ilg), which is currently operating the laundry room facilities in question pursuant to a lease agreement with the Association, was granted leave to intervene and also filed a motion to dismiss, alleging that the complaint failed to state a cause of action; that the agreement requires that any dispute first be submitted to arbitration; and that plaintiff is barred from seeking equitable relief by its own breach of the agreement.

Prior to a hearing on the petition for a preliminary injunction, the trial court ruled that the matter would be held in abeyance pending arbitration, relying on a provision of the agreement which states that disputes or controversies arising out of any alleged breach would be submitted to arbitration, and that “[n]o litigation shall be instituted between the parties hereto except to enforce the award or order of the arbitrators.” However, at the parties’ request, the trial court heard arguments on that issue as well as on the question whether plaintiff had established its entitlement to preliminary injunctive relief. Thereafter, it denied the petition for a preliminary injunction, dismissed plaintiff’s complaint, referred the matter for arbitration, and continued the action until the conclusion of arbitration. This appeal followed.

Opinion

Initially, we note that ordinarily the issuance or denial of a preliminary injunction is within the discretion of the trial court (S & F Corp. v. American Express Co. (1978), 60 Ill. App. 3d 824, 377 N.E.2d 73), and the sole question before us on an interlocutory appeal of its decision pursuant to Supreme Court Rule 307 (87 Ill. 2d R. 307) is whether the trial court has abused that discretion (Baal v. McDonald's Corp. (1981), 97 Ill. App. 3d 495, 422 N.E.2d 1166). However, in the instant case, plaintiff maintains that the trial court’s order was based on an erroneous interpretation of the agreement as precluding the issuance of a preliminary injunction pending arbitration, and the question is therefore one of law to be determined by this court independently of the trial court’s judgment. See Hartwig Transit, Inc. v. Menolascino (1983), 113 Ill. App. 3d 165, 446 N.E.2d 1193.

Paragraph 13 of the agreement, upon which the trial court relied in denying plaintiff’s petition, provides:

“In the event of any dispute or controversy arising out of the operation or alleged breach of this Lease Agreement, such dispute or controversy shall be submitted to and be governed by the rules of the American Arbitration Association, and the decision rendered thereunder, whether legal or equitable in nature, shall be final and binding upon the parties. No litigation shall be instituted between the parties hereto except to enforce the award or order of the arbitrators.” (Emphasis added.)

Paragraph 10 of the agreement, upon which plaintiff relies in arguing that preliminary injunctive relief is available to it pending arbitration, provides:

“In the event of a breach of this lease, which such breach shall continue for ten (10) days after written notice hereof by Lessee (including but not limited to the unauthorized disconnection of Lessee’s laundry equipment or the installation of laundry equipment by Lessor or any other person, firm or corporation), the parties recognize that damages to Lessee would be difficult to compute and therefore they agree that at the option of Lessee, either (a) Lessor shall pay to Lessee [liquidated damages] ***, or (b) Lessor consents to the entry of a temporary and/or permanent injunction to restrain any violation of this agreement * * * M

It is plaintiff’s position that, when read together, the above provisions manifest the parties’ intention that preliminary relief be available to preserve the status quo pending a final resolution of the dispute by the American Arbitration Association.

The provisions in question do present difficulties in interpretation, since paragraph 10 raises.the option of application for preliminary relief, whereas paragraph 13 seemingly precludes any resort to the courts until the dispute has been arbitrated. Plaintiff asserts that the preliminary relief contemplated by paragraph 10 is otherwise unavailable to it because the arbitrators cannot grant a temporary restraining order; therefore, it posits, the parties must have intended that it have the option of seeking interim relief. However, what paragraph 10 contemplates and what plaintiff has sought is a preliminary injunction, not a temporary restraining order, and the parties have not addressed the question whether relief in the nature of an order preserving the status quo is available under the rules of the American Arbitration Association, nor have they provided us with the applicable rules from which we could determine whether the relief contemplated by paragraph 10 is available to plaintiff thereunder.

Nevertheless, we find it unnecessary to resolve this interpretive dilemma. Plaintiff concedes that paragraph 10 does not usurp the trial court’s discretion in determining whether a preliminary injunction should issue; that is, plaintiff agrees that paragraph 10 is not in the nature of a confession of judgment — the trial court must still determine whether injunctive relief is the appropriate remedy. Furthermore, although the trial court apparently did not base its decision thereon, the parties have extensively briefed and argued the merits of plaintiff’s petition for preliminary relief. We, of course, may affirm a correct judgment on any basis appearing in the record (U-Haul Co. v. Town of Cicero (1980), 87 Ill. App. 3d 915, 410 N.E.2d 286), even without ruling on the grounds relied upon by the trial court in reaching its decision (see, e.g., In re Marriage of Runge (1981), 102 Ill. App. 3d 356, 430 N.E.2d 58), and it is our view that, even assuming arguendo that the agreement in question does not preclude entry of a court-ordered preliminary injunction pending a final order or award of the arbitrators, plaintiff has failed to establish its entitlement thereto.

Because a preliminary injunction is an extraordinary remedy, it will not issue unless a clear right to that relief is shown. (S & F Corp. v. American Express Co. (1978), 60 Ill. App. 3d 824, 377 N.E.2d 73.) Thus, the party seeking relief must establish by a preponderance of the evidence that it is entitled to that remedy by showing that (1) it has a certain and clearly ascertainable right which must be protected; (2) it will be irreparably injured in the absence of that protection; (3) it has no adequate remedy at law for its injury; and (4) it is likely to be successful on the merits. Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 422 N.E.2d 1166.

In the instant case, the only injury identified by plaintiff is the loss of profits, and it is established that irreparable harm occurs only where the remedy at law is inadequate; that is, where monetary damages cannot adequately compensate the injury, or the injury cannot be measured by pecuniary standards. (Bally Manufacturing Corp. v. JS&A Group, Inc. (1980), 88 Ill. App. 3d 87, 410 N.E.2d 321.) Generally, in a breach of agreement action, such harm is found where the injury in question is to the reputation or good will of a business (see, e.g., Sports Unlimited, Inc. v. Scotch & Sirloin of Woodfield, Inc. (1978), 58 Ill. App. 3d 579, 374 N.E.2d 916), but preliminary injunctive relief is properly denied where damages caused by alteration of the status quo pending a final decision on the merits can be compensated adequately by monetary damages calculable with a reasonable degree of certainty (see Hutter v. Lake View Trust & Savings Bank (1977), 54 Ill. App. 3d 653, 370 N.E.2d 47, cert, denied (1978), 439 U.S. 1004, 58 L. Ed. 2d 679, 99 S. Ct. 615; U-Haul Co. v. Kathan (1976), 42 Ill. App. 3d 316, 356 N.E.2d 144).

Here, should plaintiff ultimately prevail on the merits, any monetary loss which it suffers in the brief period pending the final determination of the arbitrators can be calculated with a great deal of certainty. The laundry facilities in question are currently being operated by Ilg, a party to this action. Thus, plaintiffs losses can easily be calculated by reference to Ilg’s gross receipts during the period in question. Plaintiff argues that relief in the form of monetary damages is inadequate because, given the length of time remaining on the contract and the unknown variables on which those damages depend; e.g., the future washing habits of the condominium occupants and possible increases in the cost of washing over the next 12 years, any calculation of future damages would be highly speculative, and it is therefore entitled to equitable relief. However, we are not here concerned with what might be appropriate relief should it be determined that the Association has breached the agreement. The arguments it raises go to the propriety of entering a permanent injunction, but that is not the question before us in determining whether a preliminary injunction should issue. Rather, we must determine whether it will suffer irreparable harm which is irremediable at law should no injunction issue pending a final decision of the arbitrators. In addressing that question, it appears that should plaintiff prevail in this action, any lost profits sustained by it in the interim will already have occurred; there will be no need to speculate with regard to what the future might bring. Therefore, since the sole harm plaintiff will sustain in the absence of a preliminary injunction is the loss of profits, and its remedy at law for that injury is completely adequate, it is our view that the trial court did not abuse its discretion in denying the petition for preliminary injunctive relief.

For the foregoing reasons, that portion of the trial court’s order which denies plaintiff’s petition for a preliminary injunction is affirmed. The Association’s motion to dismiss this appeal, taken with the case, is denied.

Affirmed.

LORENZ and O’CONNOR, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DARRYL JORDAN, Defendant-Appellee.
    First District (3rd Division)
    No. 82—1345
    Opinion filed December 30, 1983.
    Richard M. Daley State’s Attorney of Chicago (Michael E. Shabat, Paula Carstensen, and Thomas J. Finn, of counsel), for the People.
    Patrick E. McCann, of Oak Lawn, for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The defendant, Darryl Jordan, was charged by information with the offenses of rape, deviate sexual assault, armed robbery, aggravated kidnaping, unlawful restraint and armed violence. (Ill. Rev. Stat. 1981, ch. 38, pars. 11-1, 11-3, 18-2, 10-2(a)(3), 10-3(a), and 33A — 2.) Prior to trial, defendant filed a motion to suppress identification. After a hearing during which the facts were stipulated to by the parties, the trial court granted that motion. The State appeals, contending that it was manifest error for the trial court to sustain the motion to suppress identification since that ruling directly conflicts with controlling Illinois law and since the identification was shown to be reliable. 87 Ill. 2d R. 604(a)(1).

The following facts were stipulated to at the hearing on defendant’s motion to suppress identification: On May 9, 1980, at approximately 5:30 p.m., the victim was about to get into her car, which was parked in the Evergreen Plaza parking lot. At that time a black male came up to her and forced her into the vehicle. The assailant then drove her around various streets and localities. During this time, he raped her and forced her to perform oral copulation on him. The entire incident lasted for approximately one hour, during 30 minutes of which the victim was able to clearly observe her assailant.

Shortly after the offenses had taken place, the victim went to a hospital in Oak Lawn where she was interviewed by Evergreen Park police officers. The victim informed the officers about the events, and she also gave them a physical description and a clothing description of the assailant. She described her assailant as a 25-year-old black male who was approximately 5 feet 7 inches in height and weighed about 140 pounds. She said that her assailant was clean-shaven, had black hair that was cut short in an Afro style and had sideburns. The victim also told the officers that the offender wore a waist-length, forest-green, winter-type jacket, dark pants and black shoes with white mesh on top. The victim further related that the assailant wore a watch on his left arm and had a high school ring on his hand. However, the victim could not describe the offender’s facial features with specificity.

On May 12, 1980, police officers went to the victim’s home and again interviewed her. The next day, the victim retraced the route of the incident as best as she could for the police. At that time, the victim was also shown a photograph display, but she could not identify anyone in that display as her assailant. At the suppression hearing, defense counsel stated that if called to testify, Officer Watson would state that a police report indicated that defendant’s picture was in the aforesaid photographic display. The assistant State’s Attorney, however, said that if Officer Viggiani were called to testify, he would state that the police report indicated that the victim viewed consecutive mug shots, numbered 77 — 99 through 80 — 557. However, defendant’s mug shot, numbered 80 — 552, was not contained in that display. Therefore, the police report was mistaken in that regard.

Because the victim felt that the trauma of the incident caused a mental block in her recall of the assailant’s exact facial features, she believed she could remember them best if she was hypnotized. On May 19, 1980, Stan Mitchell, a hypnotist with over 30 years experience, placed the victim under hypnosis during which he asked the victim general questions about the incident and her assailant’s features. It was stipulated that Mitchell in no way suggested anything to the victim, and that the facial features of the victim’s assailant were not given to an artist but were merely recalled by the victim. Two days later, the victim went to the Evergreen Park police station and helped a police artist draw a composite picture of her assailant.

On May 29, 1980, John Stevens, a member of the Illinois Department of Law Enforcement, placed the victim under hypnosis. It was stipulated once again that the victim was asked only general questions about the incident and her assailant’s facial features and nothing was suggested to her. A composite drawing was then made while the victim was under hypnosis.

On June 19, 1980, the victim called the police and informed them that she had seen her assailant riding in a car on 95th Street in Chicago. She was able to give a partial description of the license plate and also a description of the vehicle in which the assailant was riding. Although the police followed up on this information, they were unable to obtain any new leads. On July 17, 1980, the victim was again placed under hypnosis in an attempt to get a better description of the license plate she had seen on June 19. Although a full license plate number was elicited under hypnosis, no arrest resulted from that information.

On September 22, 1980, the police called the victim and at that time she informed them that she had seen her assailant on September 20 at a hot dog stand located near the intersection of 99th Street and Western Avenue. This time the victim copied down the license plate number of the car in which her assailant was sitting, and she gave that number to the police. The police checked the number, and it was registered to defendant. The police then compiled a photographic array consisting of 10 photographs of black males, including defendant’s photograph. After having viewed this array, the victim selected the picture of defendant as her assailant. Defendant was then arrested and brought to the police station. On the same date, the victim viewed a five-man lineup and selected defendant as the man who had raped her.

After hearing the arguments of counsel, the trial court held that the victim’s identification was tainted by the hypnosis that she had undergone five months prior to her identification. The trial court concluded that her identification was per se inadmissible, and therefore, sustained defendant’s motion. Thereafter, the case was stricken with leave to reinstate.

In the present matter, the trial court specifically rejected the holding of the Fourth District Appellate Court in People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848, and ruled that the identification testimony of the witness, which was obtained subsequent to her being hypnotized, was per se inadmissible since she was incompetent to testify as to subjects inquired into under hypnosis. (See People v. Shirley (1982), 31 Cal. 3d 18, 641 P.2d 775, 181 Cal. Rptr. 243.) On appeal, the State contends that People v. Smrekar is the law in Illinois since it has never been overruled or modified. Therefore, the State concludes that the trial court erred in refusing to follow controlling Illinois law.

Defendant contends that the trial court acted properly since the most recent cases on this issue indicate that such testimony is per se inadmissible. Defendant further argues that the victim’s testimony should also have been excluded because the hypnosis did not satisfy the safeguards for the admission of hypnotically enhanced testimony set out in State v. Hurd (1981), 86 N.J. 525, 432 A.2d 86.

An extensive review of the case law authority, regarding the admissibility of testimony by a witness who has undergone hypnosis, indicates that no unanimity has been reached on the issue. Some jurisdictions hold that previous hypnotism of a witness is a matter which affects only the credibility of that witness’ testimony and does not bear upon the admissibility of that testimony. (See United States v. Adams (9th Cir. 1978), 581 F.2d 193.) Another approach permits the introduction of testimony refreshed through hypnosis upon a preliminary showing that the use of hypnotism is likely to restore memory comparable in accuracy to normal recall and that a certain- standard has been followed in eliciting such recall. (See State v. Hurd; People v. Smrekar.) Other jurisdictions have determined that a witness who has been hypnotized prior to trial is incompetent to testify to events occurring during hypnosis or to the results of the hypnotic procedure. See People v. Shirley; see also State v. Mack (Minn. 1980), 292 N.W.2d 764.

This latter approach, frequently uses the rationale that hypnotism presents the same issues of admissibility as are created when the results of a lie detector test or other scientific tests are sought to be admitted. In order for the result of a scientific procedure to be admitted into evidence, there must be a demonstration that the procedure has been generally accepted as reliable in the scientific community in which it was developed. Since the consensus of opinion among that community is that hypnosis is not a reliable technique for producing historically accurate recall, it becomes necessary to conclude that testimony enhanced through hypnosis is inadmissible per se.

Many of the jurisdictions, which have excluded testimony generated by hypnotically expanded recall, have modified their positions in that a witness may nevertheless testify regarding those matters which he or she was able to recall and relate prior to hypnosis. (See People v. Jackson (1982), 114 Mich. App. 649, 319 N.E.2d 613.) For a detailed discussion of the various approaches taken by other jurisdictions involving the admissibility of hypnotically refreshed testimony, see the discussions in the recent decisions of State v. Collins (1983), 296 Md. 670, 464 A.2d 1028, and State v. Brown (N.D. 1983), 337 N.W.2d 138.

In People v. Smrekar, the witness to an arson-murder was hypnotized by a physician in order to aid her in refreshing her recollection of the offense so that she might be able to identify the arsonist. Prior to being hypnotized, the witness described the probability of identifying the arsonist as “50-50,” but after undergoing the hypnotic procedure, she was able to make a positive and certain identification. On appeal, this court held, with one justice dissenting, that the fact that the witness had been hypnotized prior to trial affected only the weight of the evidence and not the admissibility of the identification. The court found that the identification testimony had been properly admitted since the record on appeal demonstrated: (1) that the hypnotist was competent, having used hypnosis in his medical practice for 10 years; (2) that the procedure was not fraught with suggestive influences; (3) that the witness’ identification was corroborated by other substantial evidence unknown to the witness when she made the identification; and (4) the evidence showed that, at the time of the occurrence, the witness had sufficient opportunity to observe the arsonist. (People v. Smrekar (1979), 68 Ill. App. 3d 379, 388, 385 N.E.2d 848.) Defendant maintains that Smrekar does not have any remaining validity because it has in effect been overruled by the per se cases, such as People v. Shirley.

However, the Fourth District Appellate Court, in People v. Gibson (1983), 117 Ill. App. 3d 270, 274-76, 452 N.E.2d 1368, has recently reaffirmed its holding in Smrekar. The court stated:

“For the reasons which follow, we adhere to Smrekar because we believe that it strikes the proper balance between the possible benefit in the use of hypnosis as an aid in refreshing recollection and the disadvantages and problems associated with its use. ***
The general acceptance in the community test is not applicable to the admission of hypnotically enhanced testimony because that standard is concerned with the admission of expert opinion deduced from the results of a scientific technique and not the admissibility of eyewitness testimony. Secondly, application of that standard would single out hypnotically refreshed testimony and impose a requirement that the scientific community agree as to its accuracy in aiding recall, whereas a similar standard is not imposed on ordinary eyewitness testimony not refreshed through hypnosis [citation]. Finally, application of this test focuses on the general reliability of the procedures, thereby obscuring the more important question of whether the procedure used in a given situation was reliable and nonsugges-tive. Notwithstanding the substantial authority excluding the testimony of a witness who has undergone hypnosis, we believe that requiring the State to choose between the use of hypnosis on a witness to aid in the resolution of a difficult case and the use of that "witness at trial exacts too high a price.” 117 Ill. App. 3d 270, 274-76.

The court in Gibson further indicated that it would not adopt in toto the procedural standards suggested in Hurd. In Hurd, the New Jersey Supreme Court held that a trial court must first insure that the use of hypnosis in a particular case is reasonably likely to result in recall comparable in accuracy to normal human memory. Secondly, a six-point procedural standard had to be followed. The six requirements are: (1) a psychiatrist or psychologist experienced in hypnosis must conduct the session; (2) the professional conducting the hypnotic session should be independent of and not regularly employed by the prosecution or defense; (3) any information given to the hypnotist must be recorded; (4) before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them and the hypnotist should carefully avoid influencing the description through leading questions; (5) all contacts between the hypnotist and the subject must be recorded; and (6) only the hypnotist and the subject should be present during the entire hypnotic session which should be recorded on video tape. The Gibson court held that the four-part test in Smrekar adequately addressed the same dangers as the procedural standards suggested in Hurd in the use of hypnotically-refreshed testimony. (People v. Gibson (1983), 117 Ill. App. 3d 270, 277, 452 N.E.2d 1368.) The court felt that by allowing the defendant to present expert testimony to the jury to show that hypnotism of a witness may influence that witness’ recollection, the trier of fact nevertheless could adequately assess credibility of the testimony from that perspective. The court stated:

“Protection against the possibility of confabulation, distortion, and the ‘hardening’ of a witness’ memory is also insured by requiring the trial court to find that the Smrekar requirements are satisfied. If either the State or defense propose to introduce the testimony of a previously hypnotized witness, specific notice of such fact should be given to the opposite party so that a timely suppression motion can be made and ruled on in light of the four-part test we adopted in Smrekar.” (117 Ill. App. 3d 270, 277-78.)

However, the court also concluded that Smrekar requires, as a part of the requirement that the hypnotist be competent, a subsidiary showing in line with Hurd, that the witness is independent of and not closely associated with either the prosecution or defense. The court stated that it also discouraged the practice of allowing police personnel and the assistant State’s Attorney to be present during the interview since the possibility of suggestive influence is only compounded. (117 Ill. App. 3d 270, 278.) The Smrekar-Gibson approach has recently been accepted, as modified, by the Fifth District Appellate Court. (People v. Cohoon (1983), 120 Ill. App. 3d 62.) Although the Co-hoon court accepted the Gibson court’s reaffirmation of Smrekar’s rejection of the per se inadmissibility rule, it did not accept the Gibson court’s application of the Smrekar standards. Specifically, the Cohoon court rejected the conclusion that a person with training in hypnosis is incompetent solely because he is a police officer.

Here, the majority of the requirements of the Smrekar test have been adequately satisfied by the State. In the present matter, the two hypnotists were not certified as hypnotherapists, but both had extensive backgrounds in the use of hypnosis. (People v. Cohoon.) It was also stipulated that neither hypnotist used any type of suggestive questioning during the hypnosis of the victim. The record suggests that the victim’s identification was corroborated by the extensive clothing and physical descriptions given to the police prior to the hypnosis. In addition, it was further established that the victim was with her assailant for more than an hour, and therefore, had an adequate opportunity to view him. However, it was also established that one of the two hypnotists was employed by the Illinois Department of Law Enforcement and that certain police personnel may have been present during the hypnotic sessions. We feel that this presents a question to be initially resolved by the trial court of whether or not the State’s use of this particular hypnotist would prevent the admission of the victim’s identification testimony. (People v. Cohoon.) The same is true for the presence of police personnel during the sessions.

Therefore, the trial court’s order, suppressing the victim’s identification, will be vacated and the cause remanded for an evidentiary hearing to determine these issues.

Vacated and remanded.

McNAMARA, P.J., and WHITE, J., concur.


author: PRESIDING JUSTICE ROMITI JUSTICE JIGANTI,

text:
    MICHAEL J. VAN SLAMBROUCK, Plaintiff, v. ECONOMY BALER COMPANY, Defendant and Counterplaintiff-Appellant—(Marshall Field & Company, Counterdefendant-Appellee).
    First District (4th Division)
    No. 82—1446
    Opinion filed December 29, 1983.
    JIGANTI, J., dissenting.

      Kralovec, Marquard, Doyle & Gibbons, Chartered, of Chicago (Harry J. Marquard and Harry Ray Chiles, Jr., of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Charles H. Cole and Stephen R. Swofford, of counsel), for appellee.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Counterplaintiff Economy Baler Company (Economy) appeals from an order of the circuit court of Cook County granting the motion of counterdefendant Marshall Field & Company (Fields) to dismiss Economy’s amended counterclaim for indemnity and contribution.

We affirm.

On November 10, 1973, the plaintiff, Michael Van Slambrouck, was injured by a paper baling machine manufactured by Economy and operated by Fields. Plaintiff originally sued Economy and Fields solely in strict products liability. In April 1975 plaintiff added a count against Fields for negligence. After discovery was completed plaintiff, on October 6, 1976, moved to dismiss with prejudice his suit against Fields. A counterclaim for indemnity filed by Fields against Economy was dismissed at the same time.

On August 30, 1979, plaintiff moved to vacate the dismissal, contending that a recent inspection by Economy had revealed that the paper baling machine had malfunctioned because Fields’ employees had removed parts from it. In a section 72 (Ill. Rev. Stat. 1979, ch. 110, par. 72) petition filed September 18, 1979, plaintiff alleged that Fields had fraudulently concealed those actions of its employees by stating in answer to interrogatories that no modification to the machine had been made. After hearings the trial court denied the petition and the motion, finding that there had been no fraudulent concealment by Fields. Plaintiff also attempted to file a new suit against Fields and Economy, but on March 4, 1980, that complaint was dismissed with prejudice on Fields’ motion.

Plaintiff appealed from that order and from the earlier order denying his section 72 petition and his motion to vacate the order of voluntary dismissal. In Van Slambrouck v. Marshall Field & Co. (1981), 98 Ill. App. 3d 485, 424 N.E.2d 679, this court affirmed the trial court’s refusal to vacate the voluntary dismissal, holding that plaintiff had abandoned his claim against Fields. We dismissed plaintiff’s appeal from the denial of the section 72 petition because the appeal was untimely. We also dismissed the appeal from the dismissal of plaintiff’s new complaint because that order did not contain a Rule 304(a) finding of no just reason to delay enforcement or appeal. (87 Ill. 2d R. 304(a).) After remand, the 304(a) finding was entered but plaintiff took no subsequent appeal.

On March 28, 1980, plaintiff filed a fifth amended complaint against Economy, for the first time including a negligence count in addition to the strict liability claim. Economy stipulated to the filing of this complaint. Plaintiff alleged in that complaint that Economy was negligent in selling a product it knew or should have known was dangerous, in failing to warn of the danger of removing parts, in failing to design the machine so as to prevent removal of parts, in failing to properly inspect and test the machine, in failing to provide adequate instructions on safe usage, and in failing to provide adequate safety features. Economy filed a counterclaim against Fields, seeking indemnity based on active/passive negligence. Economy alleged that any negligence on its part (which it denied in any event) would be passive or technical fault, and that Fields was actively or primarily at fault in having removed certain parts from the machine and permitting operation of the machine without those parts, in permitting operation of the machine with certain damaged parts, in failing to properly instruct the plaintiff on usage, and in failing to warn plaintiff of the absence of certain parts. Economy subsequently filed an amended counterclaim which included one count identical to the original counterclaim and added a count for contribution. Fields moved to dismiss the amended counterclaim and after full briefing and argument the trial court granted that motion on alternative bases. The court found that the counterclaim was barred under collateral estoppel principles because of the prior adjudication on the merits of the claim by plaintiff against Fields. The court also held that contribution was barred because the cause of action arose before March 1, 1978. Finally the court held that the count for indemnification under a theory of active/passive negligence would be dismissed because Economy as manufacturer of the machine was actively negligent as a matter of law. Economy then brought this appeal from that order.

As we have noted, one count of Economy’s amended counterclaim sought contribution from Fields. Under the holding of Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, and as subsequently provided by statute (Ill. Rev. Stat. 1979, ch. 70, par. 301), the right of contribution applies only to causes of action arising on or after March 1, 1978. This cause of action arose on November 10, 1973, and thus, the trial court properly dismissed the claim for contribution. Johnson v. Hoover Water Well Service, Inc. (1982), 108 Ill. App. 3d 994, 439 N.E.2d 1284; Harris Trust & Savings Bank v. Ali (1981), 100 Ill. App. 3d 1, 425 N.E.2d 1359.

The other count of Economy’s dismissed amended counterclaim sought indemnity based on active/passive negligence. Again, however, case law makes clear that the count was properly dismissed. Until the Illinois Supreme Court issued Skinner and its companion cases (Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, 374 N.E.2d 455; Robinson v. International Harvester Co. (1977),' 70 Ill. 2d 47, 374 N.E.2d 458), Illinois case law clearly had established that a manufacturer could not bring an indemnity action against an employer-user of a product under a theory of active/passive negligence whether the manufacturer had been sued in negligence (because the manufacturer was deemed to be actively negligent as a matter of law (Burke v. Sky Climber, Inc. (1973), 13 Ill. App. 3d 498, 301 N.E.2d 41, aff'd on other grounds (1974), 57 Ill. 2d 542, 316 N.E.2d 516; Robinson v. International Harvester Co. (1976), 44 Ill. App. 3d 439, 358 N.E.2d 317, rav’d (1977), 70 Ill. 2d 47, 374 N.E.2d 458)), or in strict liability (because as a matter of policy active/passive negligence theories of indemnity were not applicable in cases of strict liability (Stanfield v. Medalist Industries, Inc. (1974), 17 Ill. App. 3d 996, 309 N.E.2d 104; Burke v. Sky Climber, Inc. (1973), 13 Ill. App. 3d 498, 301 N.E.2d 41, affd on other grounds (1974), 57 Ill. 2d 542, 316 N.E .2d 516; Stevens v. Silver Manufacturing Co. (1976), 41 Ill. App. 3d 483, 355 N.E.2d 145, rav’d (1977), 70 Ill. 2d 41, 374 N.E .2d 455)). Robinson and Stevens were both reversed by the Illinois Supreme Court in conjunction with its adoption of contribution in Skinner. In both Robinson and Stevens the court appeared to treat the indemnity actions at issue as ones for contribution or “partial indemnity.” It has been suggested by one panel of this court and by at least one commentator that by introducing contribution in these cases the Illinois Supreme Court has restricted the concept of implied indemnity based on active/passive negligence to actions in which some form of a pretort relationship could be shown. (Van Jacobs v. Parikh (1981), 97 Ill. App. 3d 610, 422 N.E.2d 979; Zaremski and Cottrell, Risk Shifting Devices & Third-Party Practice: The Impact of Skinner & Alvis, 14 Loy. U. Chi. L.J. 467, 477 (1983).) Other commentators have suggested that by introducing contribution in those cases the court eliminated active/passive indemnity since it had only been developed by the courts in response to the harshness of the rule against contribution. (Note, Implied Indemnity After Skinner and the Illinois Contribution Act: The Case for a Uniform Standard, 14 Loy. U. Chi. L.J. 531 (1983); Widland, Contribution: The End to Active-Passive Indemnity, 69 Ill. B.J. 78 (1980); Note, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. 173, 196-98 (1980).) However at least one other panel of this court has in dictum construed Stevens as having expanded active/passive indemnity actions to include actions against an employer-user by a manufacturer sued in strict liability. (Kosovrasti v. Kux Machine Co. (1978), 58 Ill. App. 3d 892, 894, 375 N.E.2d 832, 833.) We leave the resolution of these issues for another day because in any event the Illinois Supreme Court made its holdings in Robinson, Stevens, and Skinner applicable only to causes of action arising on or after March 1, 1978. Thus the trial court in this cause properly applied the law in force prior to those holdings in dismissing this count.

Because of our resolution of these aspects of the trial court’s rulings we do not reach the issue of whether the voluntary dismissal of plaintiff’s cause of action against Fields barred Economy’s counterclaim against Fields on grounds of collateral estoppel, an issue on which there is presently conflicting authority in Illinois. Compare Gay v. Open Kitchens, Inc. (1981), 100 Ill. App. 3d 968, 427 N.E.2d 338, with Karon v. E. H. Marhoejfer, Jr., Co. (1973), 14 Ill. App. 3d 274, 302 N.E.2d 478.

The judgment of the trial court is affirmed.

Affirmed.

LINN, J., concurs.

JUSTICE JIGANTI,

dissenting:

For the reasons set forth in my dissent in Gunderson v. Goodall Rubber Co. (1983), 120 Ill. App. 3d 748, I cannot agree with the court here.


author: JUSTICE CAMPBELL

text:
    EDUARDO R. GONZALES-BLANCO, M.D., et al., Plaintiffs-Appellants, v. GARY L. CLAYTON et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—1176
    Opinion filed December 30, 1983.
    Cyriac D. Kappil, of Chicago, for appellants.
    Neil Hartigan, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs appeal from an order of the circuit court of Cook County denying their petition for attorney fees and costs incurred in the successful appeal in Gonzales-Blanco v. Clayton (1982), 110 Ill. App. 3d 197, 441 N.E.2d 1308 (hereinafter referred to as GonzalesBianco I). The sole issue raised on appeal is whether plaintiffs should be awarded fees and costs pursuant to the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1981, ch. 127, par. 1014.1(b)).

Gonzales-Blanco v. Clayton (1982), 110 Ill. App. 3d 197, 441 N.E.2d 1308, adequately sets forth the facts, and they will be restated here only to the extent necessary to discuss the issues. Plaintiffs, eight medical students, appealed from the denial of temporary medical licenses by defendant, the Illinois Department of Registration and Education. The medical examining committee of the department had evaluated the plaintiffs’ applications for licenses under guidelines contained in the department’s revised Rule I and determined that temporary certificates should not be issued to plaintiffs. Plaintiffs appealed the department’s decision contending that the revised Rule I was invalid and was misapplied to plaintiffs for a number of reasons. The trial court denied plaintiffs’ relief and this court reversed. We held that the department’s decision to hold plaintiffs’ license applications for several months until the effective date of the revised Rule I was under the facts and circumstances of the case an improper retroactive application of the rule.

Plaintiffs subsequently filed a petition in the circuit court seeking attorney fees and costs from the department pursuant to section 14.1(b) of the Illinois Administrative Procedure Act. The section provides:

“In any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency’s exceeding its statutory authority or the agency’s failure to follow statutory procedures in the adoption of the rule, the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorney’s fees.” Ill. Rev. Stat. 1981, ch. 127, par. 1014.1(b).

The circuit court denied plaintiffs’ petition because it found that this court had not held Rule I to be invalid. The court determined that section 14.1(b) should be narrowly construed. If given the construction proposed by plaintiffs, the court noted, the costs to taxpayers from the numerous administrative review cases filed each year would be monumental.

We affirm.

Plaintiffs argue that this court found in Gonzales-Bianco I that the department had exceeded its administrative authority. Plaintiffs cite the definition section of the Illinois Administrative Procedure Act, which states:

“ ‘Rule’ means each agency statement of general applicability that implements, applies, interprets, or prescribes law or policy, but does not include (a) statements concerning only the internal management of an agency and not affecting private rights or procedures available to persons or entities outside the agency, (b) informal advisory rulings issued pursuant to Section 9, (c) intra-agency memoranda or (d) the prescription of standardized forms.” (Ill. Rev. Stat. 1981, ch. 127, par. 1003.09.)

Plaintiffs argue that retroactivity is an application, implementation or interpretation of substantive rights and policy under the statute and that it is not merely an internal or procedural affair.

Plaintiffs also argue that the word “invalid” does not necessarily mean void. Plaintiffs contend that this court’s earlier opinion held Rule I to be invalid by denying its retroactive application and, therefore, they are entitled to attorney fees.

The department argues that an examination of the language of the statute mandates the conclusion that it does not apply to the case at bar. The department contends that neither this court nor the circuit court invalidated an administrative rule in Gonzales-Bianco I. They point out that this court declined to reach the numerous constitutional questions raised by plaintiffs. Further, the department cites Stein v. Howlett (1972), 52 Ill. 2d 570, 289 N.E.2d 409, for the proposition that the validity of a statute and its application are distinct questions. Section 14.1(b), they assert, requires a showing that an administrative rule was voided and held for nought as was not the ruling in this court's earlier opinion.

The right to recover attorney fees from one’s opponent did not exist at common law. (M & W Gear Co. v. AW Dynamometer, Inc. (1981), 97 Ill. App. 3d 904, 915, 424 N.E.2d 356, 366.) The successful party may not recover attorney fees or costs unless provided for by statute or agreement of the parties. (Hamer v. Kirk (1976), 64 Ill. 2d 434, 437, 356 N.E.2d 524, 525.) Since statutes which permit attorney fees and costs to be assessed are in derogation of the common law, they are strictly construed. Department of Revenue v. Appellate Court (1977), 67 Ill. 2d 392, 267 N.E.2d 1302.

Section 14.1(b) provides for the recovery of attorney fees in any case in which a party has an administrative rule invalidated. In construing this statute this court must give the language of the statute its plain and ordinary meaning. The intent of the legislature should be determined and given effect. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 429 N.E.2d 492.) Webster’s Third New International Dictionary 1188 (1976) defined “invalid” as “being without legal force or effect.” Nothing in our opinion in Gonzales-Bianco I in any way invalidated a rule of the department. In this action to recover fees, plaintiffs are requesting this court to grant the relief, namely declare revised Rule I to be unconstitutional, which both this court and the trial court denied previously.

Plaintiffs argue, in effect, that under the definition of “rule” in section 3.09 (Ill. Rev. Stat. 1981, ch. 127, par. 1003.09), the department’s application of revised Rule I to plaintiffs was itself a rule. We reject this argument. In Gonzales-Bianco I this court specifically preserved the validity of Rule I. The action taken by the department with respect to plaintiffs which formed the basis of the earlier opinion, was not an agency statement of general application. From our holding in GonzalesBianco I plaintiffs are not within the scope of the attorney fees statute now being asserted.

Accordingly, the judgment of the circuit court is-affirmed.

Affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.


author: JUSTICE REINHARD JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BEVERLY L. COLEMAN, Defendant-Appellant.
    Second District
    No. 83—400
    Opinion filed December 30, 1983.
    Supplemental opinion filed on denial of rehearing January 31, 1984.

      G. Joseph Weller and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Beverly L. Coleman, was found guilty in a bench trial of bringing contraband into a penal institution (Ill. Rev. Stat. 1981, ch. 38, par. 31A — 1(a)(3)), unlawful possession of a controlled substance (less than 30 grams of a substance containing pentazocine) (Ill. Rev. Stat. 1981, ch. 56V2, par. 1402(b)), and unlawful possession of cannabis (less than 2.5 grams of a substance containing cannabis) (Ill. Rev. Stat. 1981, ch. 56V2, par. 704(a)). She was subsequently sentenced to concurrent two-year terms of imprisonment for the offenses of bringing contraband into a penal institution and unlawful possession of a controlled substance. No sentence was entered on the misdemeanor offense of unlawful possession of a substance containing cannabis.

The sole issue raised on appeal is whether defendant’s conviction for bringing contraband into a penal institution is void because the statutory subsection under which she was convicted was unconstitutionally enacted after action by the Governor, which purportedly exceeded the scope of his amendatory veto powers. In this regard she contends that subsection (3) of section 31 A — 1(a), under which she was convicted, was added in its entirety by the Governor in his amenda-tory veto letter to the Illinois Senate and was subsequently adopted by the General Assembly. The State maintains this issue has been waived.

Defendant failed to raise the issue of the constitutionality of this statute and the procedures of its enactment in the trial court. It is fundamental that the failure to raise the issue of a statute’s constitutionality in the trial court is a waiver of that issue on review. People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353; People v. Luckey (1969), 42 Ill. 2d 115, 245 N.E.2d 769; People v. Denby (1981), 102 Ill. App. 3d 1141, 1146, 430 N.E.2d 507; People v. Lenninger (1980), 88 Ill. App. 3d 801, 807, 410 N.E.2d 1157; People v. Jones (1980), 86 Ill. App. 3d 253, 258, 408 N.E.2d 79; see also People v. Myers (1981), 85 Ill. 2d 281, 290-91, 426 N.E.2d 535.

Defendant contends, however, that conviction under a void statute may be attacked at any time, and cites three recent decisions of our supreme court, People v. McCarty (1983), 94 Ill. 2d 28, 445 N.E.2d 298, People v. Wagner (1982), 89 Ill. 2d 308, 433 N.E.2d 267, and In re T.E. (1981), 85 Ill. 2d 326, 423 N.E.2d 910, as support for this argument.

While we believe, upon analysis of these decisions, that some of the language in those opinions arguably is helpful to the defendant’s contention, these cases are not directly apposite to the instant case, and we perceive no indication in those opinions that the waiver rule articulated in People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353, has been overruled. In McCarty and In re T.E., a constitutional challenge not raised at the trial level was allowed because the sentence or probation order was void. In Wagner, the constitutionality of the statute, while not presented in a post-trial motion was raised in a pretrial motion, and a subsequent decision, while the appeal in Wagner was pending, was rendered which held a similar statute unconstitutional.

In the case at bar, the language of the statute itself is not challenged, but the constitutional defect claimed is a procedural infirmity in its enactment. The only indication we have of the legislative and executive process in the enactment of this law is a copy of a letter to the members of the Illinois Senate signed by Governor Thompson, contained in appendix B to defendant’s brief, which states, inter alia, that under article IV, section 9(e) of the 1970 Illinois Constitution, he is returning Senate Bill 624 with specific recommendations for change, and if so changed, the bill would have his approval. Other than this copy of Governor Thompson’s purported veto letter, the defendant has failed to present to this court, or more properly to the trial court, any authenticated documents which contain the legislative and executive process which he claims create a constitutional defect in the enactment of the law. Such proofs, and any possible contrary evidence, ought to be first presented in the trial court.

Although the waiver rule is a limitation on the parties and not the courts, and a reviewing court may ignore the waiver in the interest of substantial justice (People v. Winston (1982), 106 Ill. App. 3d 673, 688, 435 N.E.2d 1327), we are not so compelled under the circumstances described above and from our review of the nature of the claimed constitutional question.

The judgment below is affirmed.

Affirmed.

UNVERZAGT and LINDBERG, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE REINHARD

delivered the opinion of the court:

Defendant’s petition for rehearing again maintains that the waiver doctrine should not apply to the constitutional issue raised. For the reasons set forth in our opinion, we reject this viewpoint in the particular case before us. We feel compelled, however, to address an additional argument made by defendant which assails our “uneven application of the waiver doctrine,” and cites our recently filed opinion in People v. McNeal (1983), 120 Ill. App. 3d 625, wherein we declined to apply the waiver rule to a constitutional issue not raised in the trial court.

We point out that the constitutional issue raised in McNeal was neither the same constitutional issue before us here nor did the question involve an alleged procedural infirmity in the statute’s enactment. We also stated in McNeal that we would decline to apply the waiver rule where a substantial question of constitutionality is raised, which, if sustained, would make void the statute under which defendants were charged and convicted. As we indicated in our original opinion herein, although a reviewing court may ignore the waiver rule in the interest of substantial justice, “we are not so compelled under the circumstances described above and from our review of the nature ■ of the claimed constitutional question.” (Emphasis added.) Thus, we did give consideration to the substance of the arguments of the unconstitutionality of the statute involved here, but found they did not merit further discussion nor disregard of the waiver rule. We do not believe that the appellate and supreme courts of this State are obliged to render an opinion on the merits for all assertions of unconstitutionality of a criminal statute raised for the first time on review irrespective of the substance of the particular argument. See, e.g., People v. Myers (1981), 85 Ill. 2d 281, 290-91, 426 N.E.2d 535.

Accordingly, we adhere to our original opinion and deny the petition for rehearing.

LINDBERG and UNVERZAGT, JJ., concur.


author: PRESIDING JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES AMMONS et al., Defendants-Appellants.
    First District (2nd Division)
    No. 81—2871.
    Opinion filed December 27, 1983.
    Rehearing denied January 24, 1984.

      Steven Clark and Bruce Mosbacher, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Peter M. DeLongis, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

After a joint jury trial, defendants, Charles Ammons and Audrey Malone, were each found guilty of one count of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2), two counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, pars. 12 — 4(a), (b)(1)), two counts of home invasion (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 11(2)), and one count of attempt (murder) (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4). Defendants appeal raising the following issues: (I) whether the trial court erred in allowing the State’s motion in limine; (II) whether defendants were denied a fair trial because of improper prosecutorial comments; (III) whether defendants’ sentences for certain offenses should be vacated and a new sentencing hearing ordered because the improper convictions influenced the sentencing on the remaining convictions; and (IV) whether defendants’ mittimuses should be corrected to properly reflect their sentences.

The charges against defendants stem from an incident which occurred on August 2, 1980, at the home of Gwendolyn Vaughn. According to the State’s evidence, defendants entered Vaughn’s apartment at approximately 7 p.m. and each drew a sawed-off shotgun. Present in the apartment were Vaughn, her four children and a teen-aged girl, Michele Dixon. Malone snatched Vaughn’s baby from her arms and held the gun to the baby’s head, saying she would blow his brains out. Ammons asked for money and when Vaughn replied that it was upstairs, he held the shotgun at Vaughn’s head and forced her, the children and Dixon up the stairs.

Once in her bedroom, Ammons hit Vaughn on the head with the gun. Vaughn gave Ammons $15 in currency and $140 in food stamps which she kept under her mattress. Ammons kept asking for more money and beating Vaughn on her head, chest and arms with the gun. Malone repeatedly came in and out of the room, telling Ammons to kill the victims. After Vaughn told Ammons that she didn’t have any more money, he shot her in her upper right thigh.

Ten days after the shooting, while in the hospital, two police officers showed Vaughn a group of photos from which she identified both defendants. At trial, Vaughn also made an in-court identification of both.

Michele Dixon testified that Ammons struck her in the head with the sawed-off shotgun he was holding while they were in the living room. A gun was pointed at her back while she was forced upstairs and then pushed to the floor by Ammons. Ammons was wearing a red sun visor, clear-lens glasses, a long white butcher jacket and had a moustache, beard and nappy black hair which came below his ears and looked like a wig. Malone was wearing a red scarf.

On August 12, Dixon was shown photos at her house by the police and, although she was shown a photo of Ammons, she was unable to identify him. At two lineups held the next day, she identified both defendants, as she also did in court.

The mother of Michele Dixon, Effie McCollum, who lived in Vaughn’s building, saw defendants on the day in question standing under her neighbor’s porch. After they started up the stairs to Vaughn’s apartment, McCollum spoke to them and they proceeded to walk down the street. Later, on the evening of August 2, 1980, she looked through police photos but was unable to identify any of the persons. She never viewed any lineups, but did identify both defendants at trial.

Among the defense witnesses was another of Vaughn’s neighbors, Karen Brazille, whom the State had attempted to call as its witness. At an in-court lineup which the trial court held in order to test her ability to identify Malone, Brazille mistakenly took Malone’s sister for Malone.

The jury returned a guilty verdict for both defendants on all of the following counts:

Count 1 — armed robbery of Vaughn

Count 6 — aggravated battery of Dixon

Count 11 — aggravated battery of Vaughn

Count 13 — home invasion, intentionally injuring Vaughn

Count 14 — home invasion, intentionally injurying Dixon

Count 15 — attempt murder of Vaughn

Because of certain discrepancies, the particulars of the oral sentencing orders and the subsequent mittimuses which were issued will be discussed below.

I

Defendants’ first trial for these offenses resulted in a hung jury. At the first trial, defendants’ main theory of defense was that someone else, either Benny Browder or Larry Campbell, committed the offenses. In essence, defendants argued that Campbell, who was once Vaughn’s common-law husband, had Browder commit the offense as revenge against Vaughn for having another man’s child while he was in the penitentiary. Campbell and Browder became acquainted while incarcerated together.

Before the second trial, the State presented a motion in limine requesting that defense counsel be prohibited from mentioning the convictions and incarceration of Larry Campbell, that the case had been tried before, or anything regarding the shotguns recovered by the police at Browder’s apartment when they were questioning him about the crimes. The trial court granted the motion, subject to reconsideration if counsel had testimony to adduce at trial.

Defendants claim that the granting of this motion in limine, as well as instances where the trial court sustained the State’s objections to the defense’s efforts to present important evidence, denied them the right to present their case. A motion in limine may not be used to deny a defendant the fundamental right to defend himself. (People v. Brumfield (1979), 72 Ill. App. 3d 107, 113, 390 N.E.2d 589.) It is within the discretion of the trial court to determine whether the rules of evidence require exclusion of evidence, and the court’s decision will not be reversed unless there was an abuse of discretion. People v. Williams (1978), 60 Ill. App. 3d 529, 532-33, 377 N.E.2d 367, appeal denied (1978), 71 Ill. 2d 614.

We have examined the pertinent sections of the record cited by defendant and conclude that the trial court did not abuse its discretion. The trial court did not rule, contrary to defendants’ contention, that they were prohibited from pursuing the relationship between Campbell and Browder; it ruled only that defense counsel was barred from introducing evidence of previous convictions. The trial court also granted the State’s motion in regard to any reference to shotguns, which allegedly were full-length and were never tied to this crime, stating that the ruling was subject to re-opening during trial. After conducting a voir dire of Vaughn, the court ruled that her testimony regarding the defense’s theory was not relevant, but that defense counsel had the option of recalling her if they could, at some later time, lay a basis for which her testimony would then become relevant. As far as the parties indicate, this was not done. After reviewing the record, we conclude that the trial court did not abuse its discretion and correctly ruled that the evidence, as presented to it, was neither relevant or admissible.

II

Defendants claim that they were denied a fair trial because of numerous improper and prejudicial remarks by the prosecution in closing argument. It is well settled that the State may not resort to unfounded or inflammatory remarks in closing argument. People v. Bryant (1983), 94 Ill. 2d 514, 523, 447 N.E.2d 301.

The State maintains that defendants waived review of this issue because Malone did not file a post-trial motion and although Ammons did, it only generally alleged that he was “prejudiced by the remarks of the prosecutor.”

This court has recently clarified what is necessary to preserve an issue for review. Not only must the comment be objected to at trial, but the error must be set forth with specificity in the post-trial motion. (People v. Thomas (1983), 116 Ill. App. 3d 216, 220, 452 N.E.2d 77.) A review of the hearing on Ammons’ post-trial motion, however, reveals that defense counsel was able to point to specific instances of the alleged improper comments and the trial court had a chance to consider this issue, which is the purpose of a post-trial motion. This court will, therefore, review the issue.

Based on our review of the record, the most offensive of the comments complained of consisted of the following remarks by the prosecutor concerning defense counsel:

“They work for money and they make more money than we do and for enough — I don’t know how much, maybe not too much but they’s sit there and go thru the same jirations [sic] to get John Wayne Gacy off the hook.”

An objection was sustained and the prosecutor was admonished that the argument should be based upon the evidence.

There can be no doubt that these comments were improper, and as our court has just recently noted in several decisions, tactics such as these must not be resorted to. (See, e.g., People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298.) Further, it has been recognized that*the injection of the name of a mass murderer, in particular that of Gacy, is clearly improper. (People v. Barnes (1982), 107 Ill. App. 3d 262, 268-69, 437 N.E.2d 848, appeal denied (1982), 91 Ill. 2d 560.) It is still necessary, however, to prove that there is substantial prejudice to the accused. People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200.

In this case, the objection to the statements was sustained and the jury was instructed that closing arguments are not evidence and argument not based on the evidence should be disregarded. As the United States Supreme Court recently articulated, “it is the reviewing court’s duty to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations ***; [supervisory, power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since by definition, the conviction would have been obtained notwithstanding the asserted error.” (United States v. Hasting (1983), 461 U.S. 499, 509, 506, 76 L. Ed. 2d 96, 106, 104, 103 S. Ct. 1974, 1980, 1979.) We have examined the other prosecutorial comments complained of and find that, even considering their cumulative impact, these remarks did not result in substantial prejudice to defendants. The jury was adequately admonished by the trial court that argument not based on the evidence should be disregarded after each objection.

III

Defendants next claim that they were improperly convicted and sentenced on several counts and thus they are entitled to a new sentencing hearing. People v. Alejos (1982), 104 Ill. app. 3d 414, 416, 432 N.E.2d 1046.

A

Defendants’ Double Convictions Of Home Invasion

Defendants urge that they should not have received convictions and sentences for two counts of home invasion. (Ill. Rev. Stat 1979, ch. 38, par. 12 — 11.) Count 13 alleged a home invasion with the intentional injury to Vaughn and count 14 a home invasion alleging an intentional injury to Dixon. Citing the one-act, one-crime doctrine enun- ) ciated in People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, defendants contend that only one conviction for the one unlawful entry should be allowed.

It is well settled that in construing statutory enactments, it is a court’s duty to ascertain legislative intent; if such intent is clear from the language of the statute, there is no need for construction. (People v. Rogers (1980), 86 Ill. App. 3d 1092, 1093-94, 408 N.E.2d 769.) Consideration in determining legislative intent must not only focus on the language used, but also the evil to be remedied. People v. Taylor (1976), 35 Ill. App. 3d 418, 421, 342 N.E.2d 96.

Keeping in mind that the thrust of the home-invasion statute is to protect the safety of persons in their homes (People v. Pavic (1982), 104 Ill. App. 3d 436, 447, 432 N.E.2d 1074, appeal denied (1982), 91 Ill. 2d 564), we interpret the plain meaning of the statute to be that one count of home invasion occurs as a result of one unauthorized entry of one person’s dwelling, irregardless of the number of persons present or harmed. Under subsection (1), there must be a threat with a dangerous weapon to any person or persons, or (2), intentional injury to any person or persons. This language can be contrasted with other statutes, e.g., battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3), where the conduct is phrased as against an individual, meaning that there can be a separate count for every individual involved.

Because the wording of the statute indicates a legislative intent to impose one count of home invasion for one unlawful entry of one dwelling, defendants’ convictions and sentences for count 14 must be vacated.

B

Defendants’ Convictions Of Attempt Murder

Both defendants argue that their convictions and sentences for the attempt murder of Vaughn (count 15) be vacated because it is based upon the same act which is used in the home invasion count— the shooting of Vaughn (count 13). This argument must fail, however, because an examination of the elements needed for home invasion and attempt murder reveals that home invasion requires the additional act of unlawful entry, which is not required in attempt murder. See People v. Tate (1982), 106 Ill. App. 3d 774, 436 N.E.2d 272, appeal denied (1982), 91 Ill. 2d 579.

C

Malone’s Conviction Of Attempt Murder Of Dixon

As the State concedes, the trial court erroneously declared at the sentencing hearing that Malone was sentenced to 10 years’ imprisonment on the charge of attempt murder of Dixon, an offense for which she was never indicted. The parties agree that the court perhaps meant to announce the sentence of 10 years for home invasion based upon injury to Dixon, which we are now vacating in this decision.

D

New Sentencing Hearing

Both defendants request that a new sentencing hearing be conducted because it cannot be determined whether the improper sentences and convictions influenced the trial court’s sentences on the remaining convictions. People v. Hert (1981), 95 Ill. App. 3d 871, 874, 420 N.E.2d 813.

We have concluded that the only convictions to be vacated are for one count of home invasion, count 14, for each defendant. Another count of home invasion, one count of armed robbery, one count of attempt murder and one count of aggravated battery all remain. This situation can be contrasted with the one in Hert, where the appellate court reversed two of four counts. Also, as it has been recognized, where the trial court has considered multiple offenses separately and sentenced each count individually (as here), the trial court avoids any alleged taint of an invalid conviction. (People v. Jones (1982), 108 Ill. App. 3d 880, 891, 439 N.E.2d 1011.) In this case, therefore, a new sentencing hearing is not required.

IV

Because of apparent clerical errors, both defendants’ mittimuses do not correctly reflect the sentences given them; therefore, they must be corrected. (People v. Thompson (1977), 51 Ill. App. 3d 447, 450, 366 N.E.2d 1009, appeal denied (1977), 66 Ill. 2d 635.) We note that in announcing defendants’ sentences, the trial court stated that the aggravated battery of Vaughn charge (count 11) was merged with the attempt murder of Vaughn count (count 15), yet both defendants’ mittimuses reflect sentences for count 11. The mittimuses must be corrected in this regard, as well as to make them conform with our decision. Therefore, defendants’ respective mittimuses should read:

Malone Ammons

Count 1 - armed robbery of Vaughn 10 years 20 years

Count 6 - aggravated battery of Dixon 5 years 5 years

Count 11 - aggravated battery of Vaughn, vacated -------- --------

Count 13 - home invasion 10 years 20 years

Count 14 - home invasion, vacated ------- -------

Count 15 - attempt murder of Vaughn 10 years 20 years

Each count is to run concurrently with each other.

For the reasons stated above, the convictions and sentences on all counts except count 14 are affirmed; the convictions and sentences on count 14 are hereby vacated; and defendants’ mittimuses are to be corrected as set forth herein.

STAMOS and PERLIN, JJ., concur.

      Campbell is also referred to in the record as Larry Kimball.