author: JUSTICE LINN

text:
    RICHARD M. GALL, Plaintiff-Appellant and Cross-Appellee, v. METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Defendant-Appellee and Cross-Appellant.
    First District (4th Division)
    No. 81—2004
    Opinion filed September 23, 1982.

      Nat Ozmon, Irving D. Fasman, and Rick A. Gleason, all of Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago, for appellant.
    Schaffenegger, Watson and Peterson, Ltd., of Chicago (Donald G. Peterson, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Richard Gall, brought this action in the circuit court of Cook County to recover damages from the Metropolitan Sanitary District of Greater Chicago (hereafter, the MSD) for injuries he sustained as a result of the MSD’s alleged violations of the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, pars. 60 through 69). A jury held the MSD liable for Gall’s injuries and awarded Gall damages in the amount of $25,000.

Gall filed a post-trial motion requesting a new trial on the issue of damages only or, in the alternative, a new trial on all issues; defendant, the MSD, moved for the entry of a judgment n.o.v. After the motions were denied, both parties appealed, each requesting a reversal of the denial of the relevant post-trial motion.

The two issues presented for review are (1) whether the MSD was properly held liable under the provisions of the Structural Work Act, and (2) whether the jury’s award of damages was so palpably inadequate that a new trial on the issue of damages is required.

We affirm the denial of the MSD’s motion for a judgment n.o.v. and reverse the trial court’s denial of Gall’s post-trial motion for a new trial on the issue of damages only.

Background

At trial, evidence established that on October 2, 1975, plaintiff Richard Gall, a construction equipment operator employed by Paschen Construction Company, was assigned to operate a crane at the Stickney Works of the MSD. Gall’s job was to dig out accumulated residue from a series of sewage tanks as part of a general rehabilitation project undertaken by the MSD. Such complete emptying of the tanks was done approximately every 20 years so that new access openings, pipe replacement, color coding, or other appropriate improvements could be made. Between these rehabilitative cleanings, the sewage tanks were emptied and cleared by a built-in drainage and flushing system.

The crane involved, a Bucyrus-Erie 60-T Transit Crane, can be equipped with a variety of bucket styles, depending upon the type of digging work to be done. For sludge removal, the crane was fitted with a clamshell bucket, which is operated by two cables which run down the boom to the crane’s cab. To keep the bucket from swinging from side to side, another cable, called a tag line, runs from the bucket to a Rudimatic reel, an automatic spring-recoil device mounted on the side of the bottom section of the boom. As the Rudimatic feeds out cable and takes up slack automatically, the bucket is kept stable as it is raised and lowered.

During the week previous to October 2, the crane had been set up by Paschen under the general supervision of the MSD. It had been placed on a narrow roadway between a battery of sewage tanks and a large ditch and field into which the sludge was dumped. Additional hydraulic brackets, called outriggers, had been extended from each side of the crane to give additional support; the outrigger pads had been placed at the edge of the roadway very near the drop-off into the ditch.

When Gall was taken to the worksite on his first day, he pointed out to his supervisor from Paschen that the crane had been assembled with a 90-foot boom instead of the standard 60-foot boom, the cable capacity of the particular model Rudimatic reel being used was too small for the boom length, and the reel had been mounted on the right side of the boom instead of the left (the instructions accompanying the reel specified that it be mounted on the side of the boom away from the operator’s cab, which was on the right side of the crane body). In response to Gall’s remarks, his supervisor told him that the crane had been operating satisfactorily for a week, and he would receive extra “long-boom” pay.

Approximately three hours after beginning work, Gall had swung the boom to the right and lowered the bucket into one of the tanks when he heard a loud bang, and the tag line cable went slack. In Gall’s experience, that noise accompanied by sudden slackness in the cable happened when the tag line broke inside the reel; as a result, the spring recoil device could not take up the cable slack when the boom was lifted and the bucket raised. In order to check and possibly correct the problem, Gall lifted the bucket, raised the boom, swung it back to the left over the roadway, and then lowered the boom so he could reach the faulty Rudimatic reel. Because the reel was mounted on the right side, the movement of the boom from right to left allowed the slack cable to drape onto the ground on the right side of the boom.

Gall testified that to secure the reel before beginning any inspection, he had to leave the cab, walk along the fender of the crane, jump to the ground, and cross to the side of the boom opposite the reel to wedge a block of wood between the spokes. This method of braking the reel was specified in the Rudimatic manual because that particular small model had no safety brake operable from inside the cab. Also, Gall jumped down from the crane on the right side because the door to the cab was on the right and the outriggers, extended as they were to the edges of the roadway, prevented him from easily walking around the back of the crane.

Both Gall and his operating assistant, Gene Pugh, testified that as Gall began to walk under the lowered boom, the Rudimatic reel suddenly regained its spring tension and the cable snapped back, catching Gall by the leg and throwing him up into the air. The whipping cable ripped off his pants leg and tore through most of his right calf.

Gall was taken immediately to the emergency room of MacNeal Memorial Hospital, where, according to the testimony of the attending physician, Dr. Asok Ray, he was given special care because his injury had occurred on disease-infested ground. Despite the massive doses of antibiotics and penicillin Gall received, however, the leg developed gas gangrene. Five separate operations over several weeks were needed to re-attach the calf, to excise repeatedly the necrotic flesh, and to graft skin from the left thigh over the damaged area. Between operations, Gall endured daily whirlpool baths in which antiseptic was jetted onto his leg.

Gall was unable to walk at all for several weeks following the operations. He gradually progressed from a walker to crutches, and finally to a cane. During this rehabilitation period, the added stress on his spine caused such severe back pain that he had to be fitted with a back brace. When he returned to work in February 1976, about five months after being injured, adjustments were made in the brake setup of the crane he operated so that he would not have to use his damaged leg. Planks were set up as a ramp to enable him to climb up to the cab, and he had to rest frequently and elevate his leg to relieve the persistent swelling. Although Gall has recovered sufficiently to return to work, his leg is permanently impaired, and he is permanently unable to operate certain types of heavy equipment. The operations to remove gangrenous flesh caused irremediable muscle loss. Other muscles display some atrophy, his limp is pronounced, and movement in the knee, ankle and foot is seriously limited.

Opinion

I

The threshhold question in this appeal is whether the MSB can be held liable for Gall’s injuries. Such liability would result if the three elements necessary for liability under the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, pars. 60 through 69) can be attributed to the MSB. The pertinent sections of the Structural Work Act provide as follows:

“[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Ill. Rev. Stat. 1975, ch. 48, par. 60.
“Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this act, shall comply with all the terms thereof ***.
* * *
For any injury to person or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; ***.” Ill. Rev. Stat. 1975, ch. 48, par. 69.

In this appeal of the denial of its post-trial motion for a judgment n.o.v., the MSB argues that (1) the specific work Gall was doing for the MSB did not fall within the scope of the Structural Work Act; (2) if the work was covered by the Structural Work Act, the MSD was not the party having charge of the work and therefore may not be held liable; and (3) if the MSD was in charge, its actions were neither wilful violations of the Act nor a proximate cause of Gall’s injuries.

The trial court record indicates that the first two elements necessary for a finding of liability on the part of the MSD were dealt with by means of motions. When the defendant moved for a ruling that Gall’s activity did not fall within the scope of the Structural Work Act, the motion was denied. Gall was operating a crane being used to remove accumulated residue as part of an overall rehabilitation of certain sludge tanks. Defendant argues that Gall’s actual work was construction site preparation, an activity not covered under the statutory language, “repairing, alteration, removal or painting” of a structure (Ill. Rev. Stat. 1975, ch. 48, par. 60). However, it is clear to us that the cleaning was necessary to enable repair and alteration work to be done to the tanks. Caulking was needed, pipes in the tank were to be replaced and painted, and additional access openings were to be cut. The tanks themselves were already structures within the purview of the Act (see Navlyt v. Kalinich (1972), 53 Ill. 2d 137, 290 N.E.2d 219), so Gall’s preparation work was not in mere anticipation of construction but was the necessary first step in a contractually specified plan of repair and alteration.

In regard to the second element of liability, whether the defendant was a person in charge of the work, the trial judge ruled as a matter of law that the MSD was an entity in charge of the construction operation. This ruling was based on the testimony of Frank Samuelson, senior mechanical engineer for the MSD. He stated that the MSD was the owner of the worksite, maintained an office and staff there, had the authority to change or stop unsatisfactory work being done by the contractors, and inspected and approved all materials used on the worksite. Further, the MSD maintained a safety division which established safety standards, approved the contractors’ safety manuals, and observed the contractors’ work to insure that it was performed in a safe and proper manner. Although it is true that Paschen retained control over its employees and equipment, more than one person may be in charge of the work and be liable to an injured party under the Structural Work Act. (Mosley v. Northwestern Steel & Wire Co. (1979), 76 Ill. App. 3d 710, 394 N.E.2d 1230.) Based upon the record before us, we necessarily conclude that the MSD properly was found to be in charge of the construction within the purview of the Structural Work Act.

The third element necessary to a finding of liability under the Structural Work Act is that the entity in charge of the work proximately caused the plaintiff’s injuries. One purpose of the Act is “to place full responsibility for employee injuries upon the person in charge of the work who wilfully violates the provisions of the act.” (McNellis v. Combustion Engineering, Inc. (1973), 13 Ill. App. 3d 733, 742, 301 N.E.2d 96, 104, aff'd (1974), 58 Ill. 2d 146, 317 N.E.2d 573.) However, “[f]or there to a ‘wilful violation’ of the Structural Work Act, the defendant must either have known of, or in the exercise of ordinary care, could have known of the dangerous condition.” (Kjellesvik v. Commonwealth Edison Co. (1979), 73 Ill. App. 3d 773, 775-76, 392 N.E.2d 116, 118.) The record discloses that when Gall first saw the crane, he stated to his supervisor that the crane boom was too long for the size Rudimatic reel being used, and the reel was mounted on the wrong side of the boom. While it is true that under his union’s bargaining agreement Gall had authority to voice complaints concerning work or equipment safety only to his immediate supervisor, Gall testified that his remarks were made in the presence of a man from the MSB and Gene Pugh, the person assigned to be Gall’s oiler. Further, the Rudimatic manual on file with the MSB clearly stated that appropriate safety precautions to observe when mounting the particular reel model involved in this case included using that reel on a boom of 40 to 60 feet maximum, not 90 feet, and mounting the reel on the side of the boom opposite the crane operator’s cab. Finally, Gene Pugh, Gall’s assistant, testified that during the week previous to Gall’s arrival at the site, he frequently observed the bucket begin to swing as the tag line periodically went tight, then slack. After a few of these incidents, the crane operator had left the crane to talk to two men from the MSB, then had returned to work on the crane. It is reasonable to conclude from all these circumstances that the MSB had notice of the dangerous condition, and that there was sufficient evidence by which the jury could find that the MSB, as an entity in charge of the work, was liable for injuries caused by its wilful violation of the Structural Work Act.

The record also discloses that the MSB could not show that the sole cause of the accident was something other than the action of the MSB (see Frake v. Pasehen Contractors, Inc. (1969), 113 Ill. App. 2d 403, 252 N.E.2d 14). In that connection, we are aware that once a wilful violation of the Act by the entity in charge has been shown to be at least one proximate cause of plaintiff’s injury, concurrent fault is not a defense to liability under the Act. (Beebe v. Commonwealth Edison Co. (1977), 45 Ill. App. 3d 43, 358 N.E.2d 1343.) The Structural Work Act “extends liability to those having some responsibility and opportunity to prevent dangerous work methods at the construction site in general, without regard to their having a direct supervisory connection with the particular task which gave rise to the injury.” Hausam v. Victor Gruen & Associates (1980), 86 Ill. App. 3d 1145, 1149, 408 N.E.2d 1051, 1054.

The MSD presented some evidence that brush could have caught in and temporarily blocked the reel; when the brush dislodged, the reel was freed and the line snapped taut. However, neither Gall nor Pugh testified that they observed brush caught in the reel before Gall jumped down from the crane. In fact, the evidence presented established the possibility that what was seen caught in the reel after Gall was injured was the lower part of his pants leg that had been torn off by the cable. It is clear that although evidence was conflicting, there was legally sufficient credible evidence presented from which the jury could find the MSD liable under the Structural Work Act.

In deciding whether the defendant was entitled to a judgment n.o.v., the trial court applied the standard established in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14:

“[Judgments n.o.v. [ought to be] entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

Considering the totality of the evidence presented in the instant case and then applying the Pedrick standard, we find no error in, and therefore affirm, the trial court’s denial of the MSD’s post-trial motion for a judgment n.o.v.

II

The second issue to be considered is whether the trial court erred in denying Gall’s motion for a new trial on the issue of damages only. In response to Gall’s request for damages in the amount of $195,000, the jury awarded him only $25,000. Uncontested medical expenses added up to $11,577, and lost wages were calculated at $8,602, leaving approximately $5000 as compensation for the pain, suffering, and permanent disability.

Gall contends that the amount of the verdict is palpably erroneous and must be the result of either the jury’s misunderstanding the court’s instructions on the issue of damages or the jurors’ conclusion that evidence of Paschen’s actions and Gall’s own conduct could be considered as significant contributions to Gall’s injuries. The MSD, on the other hand, argues that because a reviewing court should not disturb the findings of a jury unless the verdict is against the preponderance of the evidence (Spankroy v. Alesky (1977), 45 Ill. App. 3d 432, 359 N.E.2d 1078), and the verdict, -although low, is within the range of the evidence (Beatty v. Wierus (1976), 40 Ill. App. 3d 356, 352 N.E.2d 34), no new trial on the issue of damages should be granted. We agree with Gall that the damages awarded are manifestly inadequate; and when “the amount of the verdict bears no reasonable relationship to the loss suffered by the plaintiff, the verdict- may be overturned.” Stamat v. Merry (1979), 78 Ill. App. 3d 445, 448, 397 N.E.2d 141, 144.

Eckdahl v. Lease-a-Plane International Licensing Corp. (1979), 69 Ill. App. 3d 864, 388 N.E.2d 62, establishes that jury verdicts may be set aside if the verdict is so low that it is obvious the jury overlooked or disregarded elements of damages (Davis v. Yellow Cab Co. (1971), 133 Ill. App. 2d 190, 273 N.E.2d 35), or if there was an improper admission or exclusion of evidence. (Zielinski v. Goldblatt Brothers, Inc. (1969), 110 Ill. App. 2d 248, 249 N.E.2d 245; Eckdahl goes on to list three other triggering situations not applicable here.) We agree with Gall that both of these considerations were factors contributing to the jury’s rendering a verdict so “grossly and wholly inadequate” that a new trial on the issue of damages must be granted. Bledsoe v. Amiel (1978), 57 Ill. App. 3d 54, 55-56, 372 N.E.2d 1033, 1035.

The record discloses that the trial judge, after granting Gall’s motion in limine to exclude all mention of Gall’s own conduct and the possibility of contributory negligence, allowed defense counsel, during cross-examination, to develop a detailed account of Gall’s actions at the scene of the accident. Although Gall’s attorney objected repeatedly, the evidence was admitted. Counsel renewed the motion in limine prior to closing arguments to preclude the attorney for the MSB from repeating that evidence during closing argument. This time, the court instructed defense counsel that he was not to address the issue of Gall’s possible negligence; however, the evidence elicited during extensive cross-examination was never stricken. It is a settled rule of law that contributory negligence does not constitute an affirmative defense under the Structural Work Act. (Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 570, 408 N.E.2d 117.) Any testimony regarding Gall’s conduct was immaterial and irrelevant because concurrent fault is not a defense to liability under the Act. (Beebe v. Commonwealth Edison Co. (1977); 45 Ill. App. 3d 43, 358 N.E.2d 1343.) Based on the record, it clearly appears the jury inferred from the testimony concerning both Gall’s and Paschen’s conduct that the liability of the MSD should be reduced. This was improper. Even though the jury was instructed specifically that Gall’s conduct should not be a factor in the deliberations, neither should the conduct of Paschen have been considered by the jury.

The damages awarded to Gall covered his out-of-pocket expenses but were clearly not commensurate with the uncontroverted pain, suffering, and permanent injuries shown by the record. (Rapp v. Kennedy (1968), 101 Ill. App. 2d 82, 242 N.E.2d 11.) A new trial only on the issue of damages may be granted where, as here, the damage issue is so separable and distinct from the issue of liability that a trial solely on that issue may be had without injustice. (Stamat v. Merry (1979), 78 Ill. App. 3d 445, 397 N.E.2d 141.) We conclude, therefore, that in light of the jury’s palpably inadequate award of damages and the severability of the issues of liability and damages, the trial court’s denial of Gall’s motion for a new trial should be reversed and a new trial granted on the issue of damages only. (Kern v. Uregas Service of West Frankfort, Inc. (1980), 90 Ill. App. 3d 182, 412 N.E.2d 1037.) Accordingly, we so order. For the reasons set forth we affirm the trial court’s ruling denying the motion of the MSD for judgment n.o.v.; we reverse the trial court’s ruling denying plaintiff’s motion for a new trial on the issue of damages only.

Affirmed in part; reversed in part and remanded for a new trial on the issue of damages only.

JOHNSON, P. J., and J1GANTI, J, concur.


source: Caselaw Access Project

author: JUSTICE WILSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARLEY JOHNSON, Defendant-Appellant.
    First District (5th Division)
    No. 80—1045
    Opinion filed September 24, 1982.

      Jonathan C. Moore and Steven Clark, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Robert A. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial defendant was convicted of rape, deviate sexual assault, armed robbery, and aggravated kidnaping (Ill. Rev. Stat. 1979, ch. 38, pars. 11 — 1, 11 — 3, 18 — 2 and 10 — 2). On appeal, he contends that: (1) he was denied a fair trial by the trial court’s failure to admit into evidence a police artist sketch based on the complaining witness’ description; (2) he was denied his right to counsel of his choice because the trial court failed to appoint him a private, bar association lawyer; (3) he was not proved guilty beyond a reasonable doubt; and (4) his concurrent sentences of 20 years on 3 counts and 10 years on the other are an abuse of discretion. We affirm.

In the early morning hours of December 1, 1978, Hilda Williams, the complainant, was accosted by a man as she stood by her car near her home. The man aimed a gun at her head, threatened her and pulled her back into the car. He told her it was a “stick-up” and ordered her to drive. Complainant turned on the alarm in her car but switched it off after he threatened to kill her. As they drove defendant asked her if her parents would pay ransom for her. He held the gun to her head and told her to perform oral sex on him. During the course of the next six hours he took her diamond ring, fox jacket, and cash. He forced her to perform fellatio on him two more times and have sexual intercourse with him twice. He also made her get into the trunk of her car for awhile and threatened to kill her. After her assailant left her in her car at approximately 9:30 a.m., complainant drove home to her mother, who took her the hospital and summoned the police.

Defendant, Earley Johnson, was arrested. Complainant identified him from police photographs, a lineup, and in court. Her identification of defendant was based on several factors. She testified that she was able to see her assailant during the first part of the six-hour ordeal because she was sitting next to him, the car light was on at times, headlights from a car behind them provided light, and for part of the time it was light outside.

Complainant further testified that she noticed a mark on defendant’s right knee during one of the times she was forced to perform fellatio on him. The mark or mole was pinkish with white spots and was approximately the size of a quarter.

She described her assailant at trial as 5’8” tall, dark complected, bushy haired, 165-175 pounds, and 26-28 years old. She also related that he had a large, wide nose with large nostrils and had long sideburns running to the corner of his mouth. On cross-examination she testified that she told police at the time that her assailant had a beard and a mustache. A defense witness, Officer Theodore Davis, who interviewed complainant at the hospital, testified that he could not recall her saying that her assailant had a beard or a mustache, although she said that he had long sideburns, down to his mouth.

On December 2, 1978, complainant went to the police station to view photographs. She selected defendant’s photograph from approximately 1,000-1,500. In the photograph, he wore a mustache and beard.

On December 26, 1978, complainant viewed a lineup but did not identify anyone as her assailant. Afterwards she again identified defendant’s photograph. Two days later, complainant worked with a police artist to create a sketch from her description. On cross-examination at trial complainant testified that she told the artist that her assailant had a round, medium-sized face, medium length hair combed back but not processed, medium-sized lips and hairy, curved eyebrows. She also testified that she could see her attacker’s nostrils and that she could not recall if she told the artist that the man had lines on his forehead.

On December 30, 1978, complainant identified defendant in another lineup. The same officer who had conducted the first one was present. When she told the officer about the mark on her assailant’s knee the officer examined defendant and saw a scar or mole on his right knee. He also testified that he did not notice a 10” scar on defendant’s kneecap which was 3” from the mole.

The parties stipulated that sperm was present on complainant’s underpants and that no fingerprints of defendant were recovered from her car.

The defense called Officer John Holmes, the police artist who drew the sketch based on complainant’s description. He explained the procedures involved and stated that he customarily worked alone with the witnesses, and did not learn any details of the cases or parties involved in criminal prosecutions. Holmes identified a drawing that he had completed but testified that he did not recall whether it was the drawing he made from complainant’s description in December of 1978. He had drawn approximately 75-100 composite sketches "within the preceding 10 months and did not learn the names or facts surrounding the persons he drew and the witnesses who described them. He described the drawing that defense counsel showed him as being of a man with a long face with prominent jaws, “natural” hair, with larger than average lips and arched eyelids. He said the nostrils were not visible and the forehead was clear, or unlined.

Defendant, 27, then testified. He said he had worked from 3:45 p.m. to 12 midnight on November 30, 1978, but on cross-examination said he was not certain of his whereabouts during the early morning hours of December 1, 1978. He also said he fell on his knee in mid-December, causing a scar.

He testified that on December 1, 1978, he had sideburns, a beard, mustache, and straightened hair.

On cross-examination defendant described his fall in mid-December and stated that Ruth Banks, a co-worker, had given him first aid. When the police came to arrest him he was underneath the bed. Upon further questioning as to the scar on his knee, he said he fell in mid-July. Later he said that the scar from mid-July was on his left knee.'

Ruth Banks testified that she recalled administering first aid to defendant’s knee in December 1978.

The defense rested after submitting some exhibits. The composite sketch drawn by Holmes was not admitted into evidence.

The jury found defendant guilty on all four counts of the indictment and the trial court sentenced him to 28 years for rape, deviate sexual assault and armed robbery, and 10 years for aggravated kidnaping, all to run concurrently.

Opinion

Defendant first contends that the trial court’s refusal to admit the police artist sketch into evidence was reversible error because the whole case against him rested on complainant’s testimony. Defendant argues that since the details of her description differ from the features of the sketch, the sketch itself would have impeached her identification. Without this critical evidence, therefore, he was denied a fair trial.

To support his theory defendant relies on People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223. In Rogers the Illinois Supreme Court squarely held for the first time that an “Identi-kit” composite sketch may be admitted to corroborate a victim’s testimony as to his or her prior description from which the sketch was made and to corroborate the in-court identification. In so ruling, the court rejected the State’s argument that such a sketch is impermissible hearsay, stating that the rationale for excluding hearsay is that the opportunity to ascertain the declarant’s veracity is absent. When a victim or witness is available to testify under oath concerning his extrajudicial identification of defendant to a police artist; however, the hearsay rule does not apply. In the Rogers case, the victim not only testified in court regarding his description to the police artist but also testified as to the authenticity of the photocopy of the Identi-kit composite sketch. Furthermore, the officer who helped the victim prepare the composite testified at trial and also authenticated the photocopy. The supreme court concluded that the hearsay rule did not bar admission of the sketch, but further ruled that it was not to be considered substantive evidence:

Defendant urges us to apply the Rogers rationale to the facts of his case, which presents a converse situation: is it error to exclude a composite sketch when it is offered to impeach the witness’ out-of-court identification?

We agree that the Rogers’ logic extends to the admission of sketches or photographs for impeachment purposes (see People v. Dixon (1982), 104 Ill. App. 3d 533, 538, 432 N.E.2d 1179; People v. Carmack (1982), 103 Ill. App. 3d 1027, 1036, 432 N.E.2d 282); nevertheless, exclusion of such evidence may be harmless error if the evidence is overwhelmingly against defendant (People v. Carmack (1982), 103 Ill. App. 3d 1027, 1037, 432 N.E.2d 282, 283) and no substantial prejudice to defendant is evident. (People v. Dixon (1982), 104 Ill. App. 3d 533, 538, 432 N.E.2d 1179, 1184; see also People v. Aldridge (1981), 101 Ill. App. 3d 181, 185, 427 N.E.2d 1001 (not error to exclude sketch if it is non-impeaching and merely cumulative).) In People v. Schmitt (1981), 99 Ill. App. 3d 184, 424 N.E.2d 1267, the court considered an argument very similar to the one defendant makes here. After acknowledging the propriety of allowing impeachment of a witness’ identification by use of a composite sketch, the Schmitt court noted that the complaining witness had not adopted the composite sketch as an accurate portrayal of her attacker. As the court explained,

“Because it was not adopted by her, the sketch cannot be used as a prior inconsistent statement to impeach her subsequent in-court identification. If the rule were otherwise and did not require the witness to adopt the drawing as an accurate portrayal, an inept artist could cause the witness to be impeached by a drawing which did not reflect the description given by the witness, even though that description may have been accurate. In other words, the artist could make a drawing that was not a likeness and attribute it to the witness, without the witness’ having the opportunity to say that it did, or "did not, look like the alleged perpetrator. It is also conceivable that a skillful artist could use the Identi-kit technique and yet be unable to produce a likeness. Recognizing that limitations do exist in the Identi-kit procedure, we deem it unsound to set a precedent whereby such sketches could be admitted without prior adoption and confirmation by the person primarily responsible for identification.” 99 Ill. App. 3d 184, 187, 424 N.E.2d 1267, 1269-70.

In searching the record we find no indication that either the complainant or Officer Holmes identified the drawing as being the one they had worked on together in December of 1978. Holmes admitted that it was his drawing, done in the course of his work, but he also testified that he did not recall facts and names connected with the sketches he made for police purposes. He could not state definitely that he made the drawing for complainant or that she described her assailant as having features such as a long face, prominent jaw, and nostrils that were not visible. Instead he described the drawing as having these characteristics. Complainant testified as to her verbal description that she had given Officer Holmes; she did not describe the sketch itself or testify that the sketch that Holmes referred to was the same one she had participated in. Nor was she given an opportunity to explain whether or not the sketch was an accurate portrayal of her assailant. Under these circumstances we hold that no proper foundation for the admission of the sketch was ever made. Cf. People v. Tyllas (1981), 96 Ill. App. 3d 1, 4 n.1, 420 N.E.2d 625, 627 n.1.

Alternatively, we hold that if the trial court erred in excluding the sketch, it was harmless error because the jury heard testimony of all descriptions and were thus made aware of any discrepancies between the sketch and the victim’s description. We conclude that defendant was not denied a fair trial.

Next, defendant contends that he was deprived of his constitutional right to choose his own counsel when the trial court refused to appoint a bar association lawyer to represent him. He does not suggest that the public defender assigned to his case was ineffective but insists that the right to counsel of choice is so fundamental that its denial cannot be considered harmless error.

When defendant first appeared in court and requested the trial court to appoint for him a Chicago Bar Association attorney rather than the public defender, he explained that he did not “feel the Public Defender’s Office would be able to give [him] adequate representation” because it would not be able to spend enough time preparing his defense. After inquiring whether there were any other grounds for defendant’s request the judge denied it, stating that in his experience the public defenders had demonstrated that they were better prepared than private attorneys.

Under the pertinent law, a defendant has an unqualified right to assistance of counsel (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, sec. 8) but the right of choice, a part of this fundamental right, is not absolute. (People v. Spurlark (1978), 67 Ill. App. 3d 186, 196, 384 N.E.2d 767.) Therefore, if a request for a particular counsel is a subterfuge or a dilatory tactic, or otherwise interferes with the orderly administration of justice, the court’s denial of the request is not an abuse of discretion (People v. Spurlark). Furthermore, although an indigent defendant is entitled to competent counsel, he does not have the right to select his court-appointed attorney. (People v. Woods (1963), 26 Ill. 2d 557, 560, 188 N.E.2d 1, cert. denied (1963), 373 U.S. 945, 10 L. Ed. 2d 699, 83 S. Ct. 1555.) His case will generally be assigned to a public defender, unless the trial court finds such appointment would prejudice his rights. (People v. Woods (1980), 84 Ill. App. 3d 938, 405 N.E.2d 1238; Ill. Rev. Stat. 1979, ch. 38, par. 113-3(b); see Ill. Rev. Stat. 1979, ch. 34, par. 5604.) In People v. Woods, we rejected the argument that a defendant could demand a bar association attorney based on his assertion that there was a report of “inadequacies” in the public defender’s office and that the public defenders were assigned to specific courtrooms rather than specific defendants. We held that the defendant had not shown how he would be specifically prejudiced by the appointment of the public defender.

In the pending case defendant’s only reason for his request was his belief that a bar association attorney would have more time to prepare his defense. He did not indicate that he could not work with the public defender assigned to his case. Moreover, he was given the court’s permission to file a written motion and he was also granted a continuance to see if his family could retain private counsel. The trial began eight months after this initial request for a bar association attorney and in that time he never renewed his request or obtained private counsel. He offered no substantiation of the charge that the public defender’s office was unable to spend ample time on his case. Finally, there is nothing in the record to indicate that he was dissatisfied with his appointed attorneys or that he received inadequate representation. In light of these circumstances we find that the trial court did not abuse its discretion.

Defendant’s next contention, that he was not proved guilty beyond a reasonable doubt, is based on purported “major variances” between the victim’s description of defendant and the police artist’s sketch; the description the victim gave to the officer at the hospital; and the victim’s failure to observe a 10-inch scar 3 inches away from the mole or mark on defendant’s right knee.

We find this argument unpersuasive in light of the strong, positive evidence against him. Complainant was with defendant for six hours, saw him in varying but adequate lighting conditions, selected his photograph out of 1,000-1,500 other photographs, described the distinctive round mole on his right knee to officers, selected defendant out of a lineup and gave detailed, unshaken trial testimony regarding the entire occurrence.

Defendant overemphasizes the importance of the police artist’s sketch. As we have discussed, the sketch was never identified as being the same one that Officer Holmes and the victim prepared in December of 1978. Notwithstanding that omission, the jury was informed of the supposed discrepancies between the sketch and defendant’s features. Defendant does not deny that the photograph the victim identified was his. Moreover, one person’s sketch of another person, based on a verbal description of still another, is not likely to possess photographic accuracy.

Nor do we agree that complainant’s testimony was significantly impeached by Officer Davis’ failure to recall whether she told him at the hospital that defendant had a scant beard and mustache. She did describe sideburns that reached down the sides of his face to his mouth. Significantly, she recognized his photograph, in which he wore a beard and mustache.

Finally, we reject defendant’s implication that her credibility was destroyed by her failure to notice the 10-inch scar 3 inches away from the distinctive round mole or mark on defendant’s knee. The police officer who examined defendant’s knee following the lineup also testified that he did not notice the other scar. The record also reflects that the jury was allowed to view defendant’s legs and scars for themselves.

The credible testimony of a single witness who viewed defendant under circumstances that would permit a positive identification is sufficient to support a conviction. (People v. Mays (1979), 74 Ill. App. 3d 145, 154, 392 N.E.2d 106, 114.) The jury evaluated the witnesses’ credibility and found defendant guilty beyond a reasonable doubt. We have no basis to overturn that verdict.

Finally, defendant challenges the length of his concurrent prison terms, arguing that the trial court failed to seriously consider his rehabilitative potential and the mitigating factors of his employment and his fatherhood.

The record expressly reflects that the trial court read the presentencing report in its entirety and was aware of defendant’s background and character. The court heard both sides argue and allowed defendant to speak on his own behalf. Consideration of mitigating factors and rehabilitative potential does not mandate the imposition of a low sentence; rather, the trial judge must balance all the relevant circumstances and determine what he or she considers an appropriate sentence. We do not conclude that the terms imposed constitute an abuse of discretion. The victim was subjected to six hours of threatened and actual armed force, repeated sexual abuse, threats on her life, confinement in the trunk of her car, and loss of her property. We do not find defendant’s sentence excessive under the circumstances.

For the foregoing reasons we affirm the trial court’s judgment in the verdict against defendant and also affirm the sentencing determination.

Affirmed.

LORENZ and MEJDA, JJ., concur.


author: JUSTICE MEJDA

text:
    AYERS ASPHALT PAVING, INC., Plaintiff-Appellee, v. ALLEN ROSE CEMENT AND CONSTRUCTION COMPANY, d/b/a Rose Construction Company, Defendant-Appellant.
    First District (5th Division)
    No. 81—761
    Opinion filed September 17, 1982.
    Rehearing denied October 29, 1982.

      Morgan, Tuchow & Karzov, of Chicago (Arnold J. Karzov and Philip S. Witt, of counsel), for appellant.
    Kenneth E. Scheiwe, of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

This appeal is from an order granting plaintiff’s petition in an action brought under the uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1977, ch. 77, pars. 88 through 105) (the Act), to register against defendant, Allen Rose Cement and Construction Company (hereinafter Corporation), doing business as Rose Construction Company, a default judgment rendered by an Ohio court against Rose Construction Company (hereinafter Company).

The issues presented on appeal are: (1) whether the trial court erred in finding that the Ohio court had obtained personal jurisdiction over the Corporation by service of summons upon the Company; (2) whether the trial court erred in finding that the Ohio court had obtained personal jurisdiction over the Company under the Ohio “long arm” rules; and (3) whether the trial court erred in lending full faith and credit to the Ohio judgment.

On April 28, 1978, plaintiff filed a petition to register an Ohio judgment in the circuit court of Cook County. The petition alleged that on February 5, 1973, a court of general jurisdiction in Ohio entered judgment in favor of plaintiff and against defendant, after personal service of alias summons upon defendant. The petition also alleged that the original action in Ohio had been brought against the Company but that only recently had plaintiff discovered that the Corporation was operating under the assumed name of “Rose Construction Company.”

After defendant (Corporation) filed its answer denying that it was doing business under the name “Rose Construction Company,” plaintiff filed a motion for summary judgment alleging that the Company was served with alias summons in the Ohio case on October 6, 1972, by means of certified mail, that the return receipt was signed by “Petra Tepavich” as “agent” for Rose Company, and that the original cause of action arose from subcontracting work done by plaintiff for the Company in 1966 and 1967 in Lima, Ohio. Plaintiff also alleged in its motion that “Rose Construction Company” was an assumed name used by the Corporation, and that service of process upon this Company was effective as to the Corporation.

Defendant replied to the motion denying that “Rose Construction Company” was an assumed name for the Corporation, and stating that that name was an assumed name used by “Allen Rose” individually. Defendant also alleged that Petra Tepavich, the person who received the alias summons by certified mail, was not authorized to accept summons for Allen Rose, and that Allen Rose was never personally served. Defendant also alleged that when plaintiff did its subcontracting work in 1966 and 1967, Allen Rose was doing business as a sole proprietor, under the name “Rose Construction Company,” and that the Corporation did not use an assumed name. Defendant stated that neither the Corporation nor Allen Rose, individually, had ever been served with process.

The trial court denied the motion for summary judgment on July 2, 1979, finding that a material question of fact existed as to whether the Ohio action was against the Corporation or against Allen Rose, individually, acting as the sole proprietorship “Rose Construction Company.” Following a subsequent hearing, at which testimony was presented by both parties on the question of which entity was the real party in interest, and after considering memoranda of law submitted by the parties, on March 2, 1981, the trial court entered judgment in favor of plaintiff and against defendant (Corporation) named herein.

Opinion

The purpose of the Act is to implement the full faith and credit clause of the Federal Constitution and to facilitate interstate enforcement of judgments in any jurisdiction where the judgment debtor is found. (Light v. Light (1957), 12 Ill. 2d 502, 147 N.E.2d 34; Thompson v. Safeway Enterprises, Inc. (1978), 67 Ill. App. 3d 914, 385 N.E.2d 702.) The term “judgment debtor” under the Act means the party against whom a foreign judgment has been rendered. (Ill. Rev. Stat. 1981, ch. 77, par. 88.) Under the full faith and credit doctrine, the forum court will not rehear a case on its merits because the judgment is res judicata as to the nature and amount of the plaintiff’s claim. (Thompson; Southern Bell Telephone & Telegraph Co. v. Woodstock, Inc. (1975), 34 Ill. App. 3d 86, 339 N.E.2d 423.) The foreign judgment is not subject to collateral attack in an Illinois court except for the defense of fraud in the procurement of the judgment or lack of jurisdiction in the rendering court. (Thompson; Carlson v. Prestige Casualty Co. (1975), 28 Ill. App. 3d 926, 329 N.E.2d 477; Davis v. Nehf (1973), 14 Ill. App. 3d 318, 302 N.E.2d 382.) An attack on the judgment is collateral where the action or proceeding has an independent purpose and contemplates some other relief or result. Buford v. Chief, Park District Police (1960), 18 Ill. 2d 265, 164 N.E.2d 57; Matthews v. Doner (1920), 292 Ill. 592, 127 N.E. 137.

A judgment in personam rendered against one who was not designated a party, or who was not made a party by service of process, is not entitled to full faith and credit (Newberry Library v. Board of Education (1944), 387 Ill. 85, 55 N.E.2d 147; Evans v. Illinois Surety Co. (1925), 319 Ill. 105, 149 N.E. 802; see also King v. Kings County Lafayette Trust Co. (E.D.N.Y. 1970), 323 F. Supp. 640; Restatement (Second) of Judgments sec. 34 (1982)), and it may not be enforced against the absent person, as a matter of due process of law. Hansberry v. Lee (1940), 311 U.S. 32, 85 L. Ed. 22, 61 S. Ct. 115; Newberry Library.

Defendant contends that the Corporation is not a proper party to this action since it was never a party to the Ohio proceeding. It is undisputed that the Corporation was not named as a party in the Ohio action, and it was not until plaintiff sought to register its judgment that it contended that “Rose Construction Company” was a trade name for the Corporation. The document reciting the judgment presented to the circuit court, in its present form, does not, on its face, award plaintiff judgment against the Corporation, nor is the Corporation named as a party. The question thus arises as to who was bound by the Ohio judgment. Assuming, arguendo, that the judgment is valid as against the named Company, the fundamental question remains whether plaintiff can amend the Ohio judgment in the forum court upon proceedings for registration to add the Corporation as the intended judgment debtor.

Plaintiff relies on the law governing misnomer of a party to circumvent the fact that the Corporation was not named a party in the original suit. It is plaintiff’s contention that the Corporation was the real party in interest, which it intended to sue, that service of summons upon the Company in the manner herein described was effective notice of the action as to the Corporation, and that to amend the Ohio judgment would be merely to correct a misnomer. See, e.g., Restatement (Second) of Judgments sec. 34, comment d (1982).

In support of this argument, however, plaintiff has cited no authority which suggests that misnomers contained in foreign judgments can be resolved under the registration procedure. (But cf. Berman v. County Clerk (1976), 88 Misc. 2d 134, 387 N.Y.S.2d 519, where under New York registration procedure County Clerk was not authorized to resolve ambiguities contained in foreign judgment.) We believe that plaintiff’s attempt to establish the real party in interest in the forum court raises issues which are collateral to the Ohio judgment and which exceed the scope of proper judicial inquiry under the Act. It is noted that although section 21 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 21) allows corrections of misnomer at any time before or after judgment, the procedures governing actions on foreign judgments are regulated by the Act, and not by the Civil Practice Act. (See Thompson v. Safeway Enterprises, Inc. (1978), 67 Ill. App. 3d 914, 385 N.E.2d 702.) The record is silent as to whether plaintiff ever attempted to correct the claimed misnomer in the rendering court. We feel relief in the first instance must be obtained in the courts of Ohio, and not upon registration in the circuit court. The instant judgment document refers by name only to the Company and the Corporation took no part in the Ohio proceeding which resulted in the default judgment. Under these circumstances we find that the trial court exceeded its authority in entering judgment against the Corporation.

Defendant also contends that the Ohio court did not obtain jurisdiction over the Company and that its judgment is therefore void. The plaintiff has not sought, by this action, to register the judgment against the Company and therefore we do not consider this question to be one properly before us. In view of our disposition of this appeal, we think it unnecessary to address defendant’s remaining contentions challenging the correctness of the circuit court’s order.

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

Reversed.

SULLIVAN, P. J., and WILSON, J., concur.

       Now cited as sections 12 — 601 through 12 — 617 of the Code of Civil Procedure. Ill. Rev. Stat. 1981, ch. 110, pars. 12 — 601 through 12 — 617.

       The caption of the Ohio judgment order varies from the caption in the instant petition for registration of the judgment. In the Ohio action the defendant is named as “Rose Construction Company,” whereas in the instant action defendant is named as “Allen Rose Cement and Construction, d/b/a Rose Construction Company.”

       The Ohio docket, attached to plaintiff’s motion for summary judgment, contained the following entires: “1972 Oct. 4 *** Alias summons together with copy of complaint, and amended complaint mailed by certified mail, return receipt requested to the defendant, Rose Construction Co., 403 Ogden Ave., Clarendon Hills, Illinois 60514 Postage ($.89)
      Oct. 10 Return Receipt, signed Pitra Tipavich [sic], for Rose Construction filed.”

       Now cited as section 2 — 401 of the Code of Civil Procedure. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 401.


author: PRESIDING JUSTICE CAMPBELL PRESIDING JUSTICE CAMPBELL

text:
    SUPERDAWG DRIVE-IN, INC., Counterplaintiff-Appellant, v. THE CITY OF CHICAGO, Counterdefendant-Appellee.
    First District (1st Division)
    No. 81—1165
    Opinion filed August 23, 1982.
    Supplemental opinion filed on denial of rehearing November 1, 1982.
    William M. Brandt, John B. Wolff, and Scott Z. Berman, all of Chicago, for appellant.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Maureen J. Kelly, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

An action to abate a nuisance was brought by nearby property owners against Superdawg Drive-In, Inc., and while said action was pending, the City of Chicago (City) erected a barricade which prevented the use of an alley behind the Superdawg property by Superdawg customers. Superdawg filed a third-party action against the City seeking an injunction mandating the removal of the barricade and monetary damages for loss of business. The circuit court found that the City acted lawfully in erecting the barricade, and the court dismissed the third-party action. On appeal, Superdawg raises three issues: (1) whether the action of the City constitutes selective enforcement of a municipal regulation and is violative of the equal protection clause; (2) whether the City ordinance and applicable regulations governing driveways and alley access improperly delegated legislative authority to City employees; and (3) whether the action of the City violated the due process clause.

Superdawg Drive-In, Inc., is a fast-food business which has been in operation at 6363 N. Milwaukee Avenue since 1948. The premises include a parking area which is to the east and south of the building in which the business is located. Two driveways from Milwaukee Avenue provide access to the parking area. In addition, customers could also gain entrance to the parking area from a north-south alley which is adjacent to the Superdawg property on the east. Until 1964 or 1965, the alley was not paved and, from time to time, Superdawg would lay cinders and grade the alley. At some time between 1966 and 1968, the City paved the alley with concrete which replaced the asphalt paving which was laid in 1964 or 1965. At the time Superdawg commenced operations, the area to the east was prairie. Over the years, the neighborhood was developed with apartment buildings.

In 1970, neighbors of Superdawg complained to the City about the use of the alley by Superdawg customers. In May 1970, the Department of Streets and Sanitation wrote a letter to Superdawg which stated unless the business stopped using the alley for ingress and egress, its permit for the two driveways from Milwaukee Avenue would be revoked. Superdawg erected a fence along the alley, although it retained access to the alley at the north and south ends of the fence. In July 1970, Superdawg submitted a proposal to the Department of Streets and Sanitation which provided for no access to the alley. This proposal was never implemented. Between 1970 and 1977, there were no communications between Superdawg and its neighbors or the City. In 1975, Superdawg closed the alley entrance to its parking lot at the north end of the fence, but its customers continued to use the south alley entrance.

In November 1977, the neighbors who owned the property across the alley from the south alley entrance to the Superdawg property filed this action. The complaint alleged that Superdawg’s customers created a nuisance through their use of the south alley entrance. The plaintiffs sought money damages and an injunction requiring Superdawg to erect a fence or barricade at the alley entrance across from their home as a means of abating the nuisance. Subsequently, Superdawg and plaintiffs reached an agreement whereby Superdawg erected a barrier at the south alley entrance. However, Superdawg opened the north alley entrance which it had closed in 1975. George and Gene Tyman who owned the property across from the north alley entrance were granted leave to intervene in this action. The Tymans’ complaint alleged that Superdawg had created a nuisance by permitting its customers to enter and exit its premises into the alley across from the Tymans’ residence. Following the Tymans’ intervention and settlement of the dispute with the original plaintiffs, the action as it pertained to the original plaintiffs was dismissed.

In September 1979, while the Tymans’ action was pending, the Tymans complained to the City about the use of the alley by Superdawg’s patrons. On September 29, 1979, the Department of Streets and Sanitation sent a letter to Superdawg, which stated in pertinent part:

“Numerous complaints to this office has [sic] resulted in an investigation which indicates that the public alley at the rear of the [Superdawg] property is also being used for ingress and egress. This alley usage is creating a public nuisance as well as a dangerous traffic hazard.
We are requiring you to close off all vehicular alley access with a permanent fence, guard rail or wheel stops within 20 days from the above date, or it will be necessary to order your driveway permit revoked and the driveways removed. An inspection of the subject premises will be conducted after 20 days.”

On October 31, Superdawg’s driveway permit for the two Milwaukee Avenue driveways was revoked for “failure to comply with a Department of Streets and Sanitation regulation, which prohibits egress into an alley.” The letter stated that the permit would be reinstated “upon proof that you have complied with our regulations.” During the time between the September 29 letter and the letter of revocation, the record does not reveal whether an inspection of the Superdawg premises was conducted. In- a letter dated November 9, the Department rescinded its October 31 revocation order and, on the same day, erected a steel and concrete barricade at the north alley entrance to the Superdawg property.

On November 16, 1979, Superdawg brought a third-party action against the City seeking monetary damages for loss of business occasioned by the City’s action and for an injunction requiring the removal of the barricade installed by the City. In April 1980, the trial court granted Superdawg’s motion for a directed verdict at the close of the Tymans’ case for monetary and injunctive relief.

During trial on Superdawg’s third-party action against the City, and after Superdawg presented its case, the City presented its three witnesses. Patrick Arnold, a city planner with the City’s Department of Planning, testified that he had never visited the Superdawg premises. He stated that he was not aware of any studies which were done pertaining to a situation similar to that involving Superdawg. Arnold did not know whether any barricades had been erected at any other commercial establishments as a means of preventing alley ingress and egress. According to Arnold, the City has a policy of prohibiting a commercial establishment from using an adjacent alley for ingress and egress where the establishment has at least one driveway for ingress to and egress from a street. In Arnold’s opinion, a commercial establishment should not have the use of an adjoining alley where the establishment has at least one driveway providing access to a street. John McNamara, who was an independent real estate expert under contract with the City and who was qualified as a real estate expert, stated that he had visited the Superdawg property on a Saturday morning at 9 a.m. He stated that he did not observe any moving vehicles in the alley adjacent to the Superdawg property on the morning of his visit. During the course of his testimony, the parties stipulated that the use of an alley for ingress and egress has a deleterious effect on adjacent property and interferes to some extent with the peaceful use and enjoyment of adjacent property. George Kloak, the deputy commissioner of the Department of Streets and Sanitation, testified that he had visited the Superdawg property before and after the erection of the barricade in the alley. He stated that no study of the situation involving the alley use was ever made and that, in his judgment, a hazardous condition existed in the alley because vehicles had to cross a sidewalk to enter and exit the Superdawg property from the alley and because pedestrians were unaware that the alley adjacent to Superdawg was a heavy traffic generator. Kloak stated that he was “obligated to take action immediately and [did not] worry about a counsel [sic] order or an illegal thing. [He] first put the traffic regulations in or the traffic control device in under a Commissioner’s authority before any other situation comes up.”

On August 25, 1980, the circuit court entered its final order and opinion concerning Superdawg’s third-party action. The sole issue decided by the trial court was whether the City selectively enforced its ordinance and applicable regulations against other establishments. The court found that there was a rational basis for the City’s erection of a barricade and that the City had acted lawfully. The court did not make any finding as to whether the public safety was jeopardized by the use of the alley, nor did the City present any evidence on this issue. Accordingly, the court dismissed Superdawg’s third-party action.

At the outset, it is appropriate to set forth the pertinent City ordinance and regulations thereto. Sections 33 — 15 of the Municipal Code of Chicago (hereinafter “Driveway Permit Ordinance”) provides for the use and maintenance of driveways across City property and for the application and issuance of driveway permits. Pursuant to the Driveway Permit Ordinance, the Department of Streets and Sanitation has promulgated regulations and has published a booklet entitled, “How To Secure a Driveway Permit,” which states, inter alia: “Physical barriers preventing alley access are required when there is sufficient vehicular movement on private property for ingress and egress from the driveway only.” Also at issue is Regulation K of “Traffic Regulations of Driveways Addenda; Traffic Restrictions and Methods of Operations,” which states: “Driveway Permit for subject locations has been approved in accordance with the following requirements and methods of operation. Any deviation will subject the permit to revocation by the Commissioner of Streets and Sanitation *** K. Provide physical barrier at all open areas (including alleys) to prevent encroachment on public property.” Neither the ordinance nor regulations set forth any procedures for notice and opportunity to be heard on any alleged violations.

Superdawg maintains that it was entitled to notice and a hearing prior to any action by the City and since the City failed to provide notice and a hearing to Superdawg, its rights under the due process clauses of the Federal and State constitutions were violated (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, sec. 2).

Due process is a flexible concept which requires that “deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” (Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 313, 94 L. Ed. 865, 873, 70 S. Ct. 652, 656-57.) Interested parties must be given notice and an opportunity to be heard unless there are extraordinary circumstances which necessitate a governmental body taking immediate action to protect a valid governmental interest. See Boddie v. Connecticut (1971), 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780; Valdez v. City of Ottawa (1982), 105 Ill. App. 3d 972, 434 N.E.2d 1192.

In the instant action, it is necessary to inquire as to whether the City provided Superdawg with adequate notice of an alleged violation of an ordinance or regulation or, if not, whether extraordinary circumstances existed, which in some manner necessitated the immediate action taken by the City in the erection of the barricade. A review of the record fails to support the action of the City as to giving adequate notice of an alleged violation of either a City ordinance or a Department of Streets and Sanitation regulation. The September 1979 letter to Superdawg from the Department stated: “The alley usage is creating a public nuisance as well as a dangerous traffic hazard.” This letter fails to set forth any facts and is clearly inadequate as a means of apprising Superdawg that it was in violation of an ordinance or regulation. The letter also was deficient in that it did not specifically set forth the ordinance or regulation which was allegedly violated. Thus, the purported notice was deficient under the due process clause and did not adequately apprise Superdawg of an alleged violation.

The record is silent on the question of whether extraordinary circumstances existed to support the City’s action or whether the public safety was in any manner jeopardized by the traffic in the alley. The testimony of the three witnesses presented by the City did not disclose that an actual and immediate safety hazard of a substantial nature existed. There was no evidence except for the opinion of one witness, unsupported by any facts, that the use of the alley posed a substantial and immediate hazard.

It follows from the record in this case that the action of the City in erecting a barricade in the alley adjacent to Superdawg’s property was improper because the City failed to establish that extraordinary circumstances existed which would justify emergency action without first providing Superdawg with adequate notice and an opportunity to be heard on the charges. (See Valdez v. City of Ottawa.) Therefore, it is necessary to remand this cause to the circuit court for a new trial.

Accordingly, this matter is reversed and remanded to the circuit court of Cook County for further proceedings consistent with the views expressed herein.

Judgment reversed and remanded.

GOLDBERG and McGLOON, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

In its petition for rehearing, cross-defendant-appellee, City of Chicago contends that Superdawg has no protectible property interest in its access to an adjacent alley to which due process rights of notice and hearing attach.

The City is misguided in its argument that this court granted or recognized a property interest in Superdawg’s alley access. At no point did the trial court or this court conclude or recognize any such property interest. The City predicated its action of barricading the alley upon a purported violation of a City ordinance or regulation which created a safety hazard, yet the record is devoid of any evidence or facts to support this charge. George Kloak, a witness for the City and the individual who ordered the erection of the alley barricade, testified that no studies were made to establish that any safety hazard existed prior to the construction of the barricade. The only matter which was decided by the trial court pertained to Superdawg’s claim that the City had selectively enforced its ordinance or regulation against Superdawg. No other findings were made by the trial court.

Our decision recognizes that, under the facts and circumstances of this case, Superdawg was entitled to notice and a hearing of any purported violation of an ordinance or regulation, as claimed by the City, and the failure by the City to point to anything in the record which would excuse or dispense with its failure to provide Superdawg with notice and a hearing. It was improper for the City to conclude, without sufficient evidence, that a violation of an ordinance or regulation had occurred which resulted in a safety hazard and that an alley barricade was necessary to correct the situation.

Similarly, there was no decision by the trial court regarding the existence of a safety or other hazard which required the alley to be barricaded. In the absence of any findings by the trial court to support the City’s actions, we adhere to our decision.

GOLDBERG and McGLOON, JJ., concur.


author: JUSTICE O’CONNOR

text:
    MARQUETTE NATIONAL BANK, Plaintiff-Appellee, v. HERITAGE PULLMAN BANK & TRUST COMPANY, Defendant-Appellant.
    First District (1st Division)
    No. 81—1264
    Opinion filed September 27, 1982.
    Michael E. Renaldi, of Gannon & Oosterbaan, of Alsip, for appellant.
    Donald E. Figliulo and Judy I. Byrd, both of Arvey, Hodes, Costello & Burman, of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Summary judgment was entered in favor of plaintiff Marquette National Bank (Marquette) and against defendant Heritage Pullman Bank & Trust Company (Heritage) in the amount of $7,493.67. Heritage’s motion for a rehearing was denied and this appeal ensued.

Marquette’s claim against Heritage arose as the result of the actions of Craig Skinner, a customer of both banks. On February 1, 1978 (all dates hereinafter referred to will be for the year 1978), Skinner deposited a check for $4,000, drawn on his Heritage account, to his corporate account at Marquette. On February 2 a similar check for $4,000 was deposited in Skinner’s corporate account. These checks were forwarded through proper Federal Reserve Bank channels to Heritage. When presented with the checks, Heritage dishonored them because Skinner did not have sufficient funds in his account to pay the items. Heritage sent the items back to Marquette through the same Federal Reserve Bank channels. On February 8 Marquette allowed $8,000 in alleged collected funds to be withdrawn from Skinner’s account. At no time did Heritage give telephonic or other electronic notice to Marquette of the dishonor.

Marquette’s complaint alleges that if Heritage had provided proper notice of dishonor withdrawal of the funds by Skinner could have been prevented. Marquette further alleged that at the time Heritage knew of the dishonored checks Skinner had on deposit at Marquette collected funds in the amount of $8,868.05. Thus, it is alleged, Heritage’s negligence in not sending notice of dishonor by telephone or electronic means resulted in damages to Marquette of $8,000 less recoveries against Skinner’s account of $506.33.

Both parties filed motions for summary judgment. In its motion Heritage asserted that copies of Skinner’s bank statements from Marquette reflect that all credits shown thereon were uncollected funds. Therefore, there could be no damages suffered by Marquette as a result of Heritage’s actions or inaction. The trial court denied this motion.

Marquette’s motion detailed the process by which the checks written by Skinner and deposited in the corporate account were cleared through the Federal banking system. For the purposes of this motion and this appeal, Heritage does not dispute this course of events.

Skinner drew check #246 on his Heritage account payable to Marquette in the amount of $4,000. This check was dated February 1 and was deposited at Marquette on that date. Prior to its midnight deadline, Marquette forwarded this check for collection to the Federal Reserve Bank of Minneapolis. The check was forwarded to the Federal Reserve Bank of Chicago which, in turn, presented the item for payment to Heritage on February 3. Since February 3 was a Friday, Heritage’s midnight deadline was Monday, February 6. Within that time Heritage dishonored the item and returned it to the Federal Reserve Bank of Chicago. The check was, in turn, properly returned to the Federal Reserve Bank of Minneapolis. The Federal Reserve Bank of Minneapolis returned the item by a cash letter dated February 8 to Marquette. The cash letter was actually received on February 9.

On February 2 Skinner wrote check #247 on his account at Heritage in the amount of $4,000 payable to Marquette. This check was also deposited into the corporate account maintained at Marquette on February 2. The check was forwarded to the Federal Reserve Bank of Chicago by Marquette before its midnight deadline on February 2. The check was presented to Heritage on Saturday, February 4. On February 6 Heritage dishonored the check and returned the item to the Federal Reserve Bank of Minneapolis. Within its midnight deadline the latter bank returned the item to Marquette by cash letter dated February 8. It was received on February 9.

Heritage further agrees that it did not send notice of dishonor via telephone, telegraph or other electronic means at the time it learned that Skinner’s account had insufficient funds on February 6. This type of action would be required upon nonpayment of any item of $2,500 or more pursuant to Federal Reserve Regulation J and the operating letters issued thereunder. 12 C.F.R. sec. 210.3; Operating Letter No. 4 of the Federal Reserve Bank of Chicago; Operating Letter No. 5 of the Federal Reserve Bank of Minneapolis.

Marquette asserted in its motion for summary judgment that sufficient collected funds existed in Skinner’s account on February 6 to charge back the items if notice had been properly sent by Heritage. This assertion is supported in the record by the affidavit of Michael Daly, a vice president in charge of proof and bookkeeping operations at Marquette. The trial court granted summary judgment in favor of Marquette.

On appeal, Heritage contends the record is not free from doubt that Skinner’s corporate account at Marquette had on deposit collected funds sufficient to cover the dishonored items. It is argued that the affidavit supporting the motion contains no factual basis for the assertion that $8,868.05 in collected funds existed in the corporate account. Further, Heritage argues, copies of Marquette’s bank statements filed as exhibits with their motion for summary judgment contradict the assertion that the funds in the Marquette account were collected. We agree and reverse the trial court’s order granting summary judgment to Marquette.

Summary judgment is appropriate when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1979, ch. 110, par. 57(3).) In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions and affidavits included therein most strictly against the moving party and most liberally in favor of the opponent. (In re Estate of Tomaso (1980), 82 Ill. App. 3d 286, 402 N.E.2d 702.) Where well-alleged facts in an affidavit are not contradicted by a counteraffidavit, they must be taken as true notwithstanding contrary averments in an adverse party’s pleadings. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497.) However, even though the party opposing the motion for summary judgment fails to file counteraffidavits, the moving party should not be awarded summary judgment unless the affidavits filed in support of the motion establish the judgment as a matter of law. Ohio Oil Co. v. Yacktman (1976), 36 Ill. App. 3d 255, 343 N.E.2d 544.

The appropriate measure of damages in situations such as this is “the amount of the item reduced by an amount which could not have been realized by the use of ordinary care.” (Ill. Rev. Stat. 1979, ch. 26, par. 4 — 103(5).) This measure of damages contemplates an award that could be less than the face value of the item. When it is established that some part or all of the item could not have been collected even by the use of ordinary care the recovery is reduced by the amount which would have been in any event uncollectible. Ill. Ann. Stat., ch. 26, par. 4 — 103, Uniform Commercial Code Comment, par. 6, at 441-42 (Smith-Hurd 1963).

Our analysis of the record reveals a genuine issue of material fact still remains as to damages. Bank statements contained in the record as exhibits do not clearly reflect collected funds in the amount claimed by Marquette. That amount, $8,868.05, is arrived at only after including the two deposits at issue here, both of which the record shows were returned. The Daly affidavit does not state the basis for its assertion that the $8,868.05 was collected nor does it contain any further support as to how that figure was derived.

Considering all of the evidence in a light most liberally for the nonmovant, we feel the evidence is not clear and free from doubt that Marquette suffered the damages alleged. Meakens v. City of Chicago (1980), 86 Ill. App. 3d 60, 407 N.E.2d 893, appeal denied (1980), 81 Ill. 2d 602.

We therefore reverse the trial court’s order granting summary judgment to Marquette and remand for further proceedings.

Reversed and remanded.

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

       ‘Midnight deadline” with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later. Ill. Rev. Stat. 1979, ch. 26, par. 4-104(h).