text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT TOBIAS, Defendant-Appellant.
    First District (2nd Division)
    No. 82—2162
    Opinion filed June 19, 1984.
    Rehearing denied July 12, 1984.

      James J. Doherty, Public Defender, of Chicago (Thomas N. Swital and John Lanahan, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Larry J. Crown, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendant guilty of armed robbery, aggravated kid-naping and deviate sexual assault. Based upon his past criminal record, he was adjudged an habitual criminal and sentenced to life imprisonment. Defendant appeals, contending that: (1) evidence of a gun, holster and lineup identification was erroneously admitted at trial; (2) the sentencing statute is unconstitutional; (3) the assistant State’s Attorneys’ signatures on the sentencing petition were invalid; and, (4) defendant was improperly denied a continuance to prepare for his sentencing hearing.

The victim testified that on the night of March 14, 1981, she was accosted by a man with a gun as she attempted to unlock the front door to her house. At gunpoint, she was led down her .front steps, past four other houses, to a dark gangway where she was sexually assaulted and robbed. The streetlights were lit, enabling the victim to see her attacker.

A Chicago police officer testified that on April 15, 1981, at 1:45 a.m., he and his partner received radio messages to the effect that a stolen vehicle, occupied by three black males, was being pursued by other policemen in the immediate area and later that the auto was abandoned and its occupants were fleeing on foot. As they approached the locale, they observed an abandoned vehicle. The officers drove through the area, known for its high crime rate of stolen vehicles. They observed three black males sitting in a parked car. The occupant in the back seat suspiciously crouched down when they approached. The three men were ordered out of the car. A pat-down search of defendant revealed an empty shoulder holster under his jacket. Using his flashlight, the officer observed a blue steel revolver on the back seat of the car. Defendant was arrested, placed in a lineup, and was identified by the victim as the man who attacked her one month earlier.

At a suppression hearing defendant testified that on April 15, 1981, at 1:45 a.m. he was sitting in the back seat of a parked car talking with two friends in the front seat. The car was not stolen nor in violation of any traffic laws. Police officers ordered him out of the car, proceeded with a pat-down search and discovered he was wearing an empty shoulder holster.

Prior to and at the close of trial, defendant’s motions to quash the arrest and suppress the evidence of the shoulder holster and gun were denied. Evidence of the lineup identification, the victim’s in-court identification of defendant, the shoulder holster and gun were submitted to the jury. Defendant was found guilty as first noted above.

At the sentencing hearing, after both parties stated they were prepared to proceed, defense counsel stipulated to certified copies of three 1969 convictions for rape, armed robbery and deviate sexual assault, which were not among the convictions in the presentence investigation report. After so stipulating, the State petitioned for a sentence of life imprisonment under the habitual criminal statute. (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1.) Defendant’s motion for a continuance, because he had no notice that such a petition would be filed that day, was denied; however, the court recessed for two hours. The State provided defense counsel with a list of witnesses to be called regarding defendant’s prior convictions. When the court reconvened, defendant moved that the habitual criminal statute be found unconstitutional, which was denied. The State’s petition was read to defendant in open court. Defendant denied the recidivist allegations in the petition and requested a hearing. During the hearing, the circuit court heard testimony from a witness who identified defendant as the man who robbed and raped her in 1960, giving rise to charges pending against defendant in another action. A police detective testified regarding defendant’s prior arrests and convictions in 1969, 1972 and 1973. Over defense objection, the court then received certified copies of defendant’s convictions in 1969, March 1973, and July 1973, together totaling convictions for three rapes, three deviate sexual assaults and three armed robberies. The court found defendant to be an habitual criminal and sentenced him to life imprisonment.

I

Defendant maintains that the evidence of the gun, holster and derivative lineup identification should have been suppressed because his arrest was unlawful, absent probable cause. An officer who reasonably believes a suspect to be involved in criminal conduct may stop the suspect and conduct a limited search of the person to protect himself from hidden weapons. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Ellis (1983), 113 Ill. App. 3d 314, 446 N.E.2d 1282.) The record reveals sufficient facts to support the officer’s reasonable belief that defendant was involved in criminal activity, which included evidence that: the officer was radioed that another patrol car was pursuing a stolen vehicle in the vicinity, from which three black males exited and were fleeing on foot; the area was known for its high crime rate of stolen vehicles; he saw the abandoned stolen vehicle; and he observed three black males sitting in a parked car nearby, of whom defendant took off his hat and crouched down in the back seat. Based on these facts, the officer was justified in conducting the protective frisk.

The search revealed defendant was wearing an empty shoulder holster, which provided the officer with the basis for* further search of the car since the gun could be nearby and still be used against him. (People v. Tilden (1974), 26 Ill. App. 3d 447, 451-52, 325 N.E.2d 431.) The gun was in plain view on the back seat. An object in plain view may be lawfully seized without a warrant if viewed, as here, from a place where the officer has a right to be and circumstances known to him at the time give rise to a reasonable belief that the object constitutes evidence of criminality. (People v. David (1981), 96 Ill. App. 3d 419, 421, 421 N.E.2d 312.) The arrest was lawful. For the foregoing reasons, defendant’s claim that the gun, holster and lineup identifications were improper because obtained as a result of an illegal arrest also fails.

Defendant claims that the lineup identification was invalid as well because of the victim’s poor opportunities to observe her assailant. Assuming defendant had not failed to raise this issue in his post-trial motion, and therefore waived it for purposes of review (People v. Hebein (1982), 111 Ill. App. 3d 830, 842-43, 444 N.E.2d 782), the identification was based upon adequate evidence and was therefore valid. (People v. Brown (1972), 52 Ill. 2d 94, 285 N.E.2d 1; People v. Goka (1983), 119 Ill. App. 3d 1024, 458 N.E.2d 26.) Defendant maintains that the assault and robbery occurred in a dark gangway where the victim would have been unable to see well. There is sufficient record evidence indicating the victim was able to see defendant before reaching the gangway. The victim had ample opportunity to view defendant: she looked at defendant when he first accosted her; the street was well-lit; and she walked at defendant’s side, looking at his face, as they proceeded past four houses.

II

Defendant claims the Habitual Criminal Act (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1 et seq.) (Act) under which he was sentenced violates both the Illinois and the United States constitutions. In 1969, defendant was convicted of the felonies of rape, armed robbery and deviate sexual assault. In March 1973, defendant was again convicted of rape, armed robbery and deviate sexual assault. And in July 1973, defendant was again convicted of the same three felonies. Each of the aforementioned offenses contain the same elements as those now designated as Class X felonies, thereby fulfilling the initial requirements of the Act. (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1(a).) The current offenses were committed: (a) on March 14, 1981, more than four months after the effective date of the Act; (b) within 20 years of the judgment entered on the first felony convictions in 1969; (c) after the second felony convictions in July 1973; and, (d) the second offense was committed after conviction on the first offense in 1969. This conviction history satisfies the prerequisite statutory standards for application of the Act. Ill. Rev. Stat. 1981, ch. 38, pars. 33B — 1(d)(1), (2), (3), (4).

Defendant raises five constitutional arguments, four of which have recently been dealt with by this court in People v. Withers (1983), 115 Ill. App. 3d 1077, 450 N.E.2d 1323, appeal denied (1983), 96 Ill. 2d 549. In Withers, defendant was sentenced to life imprisonment under the Act. He appealed his sentence, claiming the statute was unconstitutional. This court affirmed the sentence, finding the arguments to be without merit. Withers is dispositive of defendant’s first four arguments. They will be recapped briefly.

Defendant first argues that the Act is unconstitutional because it preempts the judicial function of sentencing by mandatorily requiring the circuit court to sentence a defendant to life imprisonment when he meets the statutory requirements, in violation of article II, section 1, of the 1970 Illinois Constitution, which provides in part that “No branch shall exercise powers properly belonging to another.” (Ill. Const. 1970, art. II, sec. 1.) Our supreme court has again recently held, in People v. Taylor (1984), 102 Ill. 2d 201, involving the validity of the natural life sentence imposed by section 5 — 8—1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(1)(c)), that the legislature may determine what penalty shall be imposed for commission of a crime unless the challenged penalty is clearly in excess of constitutional limitations. (People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 542, 416 N.E .2d 259; People v. Gonzales (1962), 25 Ill. 2d 235, 240, 184 N.E.2d 833; People v. Landers (1927), 329 Ill. 453, 457, 160 N.E. 836; People v. Withers (1983), 115 Ill. App. 3d 1077, 1087.) There are no such excesses in the Act. People v. Withers (1983), 115 Ill. App. 3d 1077.

Second, defendant claims that the Act vests sole discretion in the prosecutor to decide which defendant should be sentenced under the Act in violation of article VI, section 1, of the Illinois Constitution by encroaching upon the judicial function of sentencing. (Ill. Const. 1970, art. VI, sec.l.) He also maintains the Act violates the eighth and fourteenth amendments to the United States Constitution because it fails to provide guidelines for the exercise of this discretion. (U.S. Const., amends. VIII, XIV.) These same issues were raised in Withers, where this court recognized that the State’s Attorney has always enjoyed wide discretion in choosing which of several charges shall be brought, and to manage criminal litigation. (People v. Withers (1983), 115 Ill. App. 3d 1077, 1087-88.) The statute applies to every person who meets the criteria and the word “may” in section 33B — 2(a) refers to the means by which the prosecutor may bring a prior conviction history to the court’s attention. (People v. Withers (1983), 115 Ill. App. 3d 1077, 1088; Ill. Rev. Stat. 1981, ch. 38, par. 33B — 2(a).) The Act violates neither the Illinois nor the United States constitutions in this regard. People v. Lewis (1981), 88 Ill. 2d 129, 147-48, 430 N.E.2d 1346, 1354.

The third contention made by defendant is that the Act requires the trial court to impose a life sentence without considering any evidence in mitigation, in violation of the eighth and fourteenth amendments to the Federal constitution. (U.S. Const., amends. VIII, XIV.) Under the Act, the requisite previous adjudications have already afforded defendant opportunities to present mitigating evidence and sentencing alternatives during which time the circuit court could have exercised discretion in determining appropriate penal dispositions. People v. Withers (1983), 115 Ill. App. 3d 1077, 1090; and see People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 79-80, 413 N.E.2d 1269.) Defendant’s third contention also fails.

In his fourth argument, defendant urges that life sentences are constitutional only when imposed after consideration of factors reflecting on rehabilitative potential. Because the Act requires the imposition of a life sentence without considering the individual’s possible restoration to useful citizenship, defendant argues the Act violates due process requirements of article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2), and the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV). Statutes imposing life sentences without the possibility of parole do not violate the Federal constitution. (Rummel v. Estelle (1980), 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133; People v. Taylor (1984), 102 Ill. 2d 201, 209; People v. Withers (1983), 115 Ill. App. 3d 1077, 1088-90.) Nor is the Illinois Constitution violated since the rehabilitative potential of the individual has been previously considered at the two prior adjudications and need not constitutionally be considered again. (People v. Withers (1983), 115 Ill. App. 3d 1077, 1090-91; and see People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 80.) There is no merit in defendant’s fourth challenge.

The foregoing analyses in Withers were recently considered and followed in People v. Mason (1983), 119 Ill. App. 3d 516, 456 N.E.2d 864, in which the provisions of section 33B — 1 (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1 et seq.) were again upheld against constitutional attack.

Defendant’s fifth and final constitutional claim is that the Act violates due process under the United States and Illinois Constitutions because a defendant is not notified that he is to be sentenced as an habitual criminal until the day of sentencing. (U.S. Const., amends. VIII, XIV; Ill. Const., art. I, sec. 2.) Whether one is an habitual criminal is a decision independent of the determination of guilt of the underlying substantive offense and is an appropriate subject of a separate proceeding. (Oyler v. Boles (1962), 368 U.S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501.) Therefore, notice that one is accused of being an habitual criminal is not required before a plea, verdict or finding of guilty has been entered. Ill. Rev. Stat. 1981, ch. 38, par. 33B — 2(a); Oyler v. Boles (1962), 368 U.S. 448, 452, 7 L. Ed. 2d 446, 450, 82 S. Ct. 501, 503-04.

Whether a defendant is entitled to notice of his asserted habitual criminality after a plea, verdict or finding of guilty, but before the sentencing hearing, however, is a question of first impression. A defendant has no constitutional right to choose between specific sentences even though the right to elect between sentencing schemes may be provided by statute. (People v. Peoples (1979), 71 Ill. App. 3d 842, 390 N.E.2d 554; People v. Hackett (1979), 77 Ill. App. 3d 877, 396 N.E.2d 820.) It is primarily the obligation of his counsel to advise a defendant of potential alternative sentences. Where the record establishes, as here, that the alternatives have been discussed with his counsel, absent a contention of inadequacy of counsel or an indication in the record that he misunderstood the consequences of his decision, no error will be ascribed to the failure of the circuit court to inform a defendant of the specific sentences that might be imposed. (People v. Hackett (1979), 77 Ill. App. 3d 877; People v. Romaine (1979), 79 Ill. App. 3d 1089, 399 N.E.2d 319.) Here, defendant does not contend that his counsel inadequately informed him of sentencing alternatives or that he misunderstood the consequences.

Notice of recidivist charges satisfies due process requirements when, after conviction on the substantive offense, but before sentencing, the petition is read to the defendant in open court, which a defendant has an opportunity to answer. (Oyler v. Boles (1962), 368 U.S. 448, 453, 7 L. Ed. 2d 446, 450-51, 82 S. Ct. 501, 504.) Thus, a defendant need not be notified prior to the sentencing hearing itself; notice is sufficient if the petition is first read to the defendant at the hearing and he is allowed to reply to the recidivist charges before a sentence is imposed, as was done in the present case.

Ill

The Act provides that the prosecutor may file a statement, signed by the State’s Attorney, setting forth the prior convictions which activate its application. (Ill. Rev. Stat. 1981, ch. 38, par. 33B— 2(a).) Defendant claims that because two assistant State’s Attorneys signed the petition, rather than the State’s Attorney himself, the petition violates the Act. Assistant State’s Attorneys possess the power in the same manner and to the same effect as the State’s Attorney. (People v. Audi (1978), 61 Ill. App. 3d 483, 378 N.E.2d 225, cert, denied (1979), 444 U.S. 901, 62 L. Ed. 2d 138, 100 S. Ct. 212; People v. Holliman (1974), 22 Ill. App. 3d 95, 316 N.E.2d 812; People v. Nahas (1973), 9 Ill. App. 3d 570, 292 N.E.2d 466. See also Ill. Rev. Stat. 1983, ch. 1, par. 1009.) The assistant State’s Attorneys here had the authority to sign the petition in this case.

IV

Defendant’s final contention is the circuit court abused its discretion by not granting a continuance to allow the defense to prepare for the hearing on imposition of the life sentence.

A motion for continuance is addressed to the discretion of the trial court and must be considered in the light of the movant’s diligence. (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 4(e).) The circuit court’s ruling will not be disturbed on appeal absent an abuse of discretion; such claimed abuse depends upon the particular facts and circumstances of each case. (People v. Clark (1956), 9 Ill. 2d 46, 137 N.E.2d 54, cert, denied (1957), 352 U.S. 1002, 1 L. Ed. 2d 546, 77 S. Ct. 559; People v. Williams (1982), 92 Ill. 2d 109, 440 N.E.2d 843; People v. Griffiths (1983), 112 Ill. App. 3d 322, 445 N.E.2d 521.) A defendant challenging the denial of the motion must show that his rights were prejudiced or he was impeded in the preparation of his defense. People v. Canaday (1971), 49 Ill. 2d 416, 275 N.E.2d 356; People v. Olbrot (1982), 106 Ill. App. 3d 367, 435 N.E.2d 1242; People v. Pruden (1982), 110 Ill. App. 3d 250, 442 N.E.2d 284.

In the case at bar, 27 days elapsed between the day of judgment and the day of the sentencing hearing, ample time for defendant to be familiarized with alternative sentences that could be imposed upon him. Defendant received a copy of the presentence investigation report, and the defense announced that it was prepared to proceed with the sentencing hearing. The defense stipulated to the 1969 convictions. Not until after he received a copy of the petition for life imprisonment did defendant request a continuance. The court recessed for two hours, providing him with additional preparation time. After reconvening, defendant submitted a motion to declare the Habitual Criminal Act unconstitutional. The motion was denied, and the hearing proceeded with the elicitation of testimony regarding defendant’s prior convictions. Defendant participated in this hearing by objecting to the State’s first witness — the alleged victim of a case pending against defendant. The court limited this testimony to consideration only if the State failed in its petition for natural life imprisonment under the Act. Defendant chose not to cross-examine this witness. As to the State’s other witness, a police detective, defendant raised several objections to the foundation of the testimony and requested the documents upon which the detective relied in testifying. The court, in camera, reviewed all these documents and ordered the State to turn them over to defendant for review. The hearing was then adjourned until the following morning at which time defendant cross-examined the detective. These proceedings indicate that defendant was supplied with all the documents in the State’s possession; given an opportunity to cross-examine the State’s two witnesses, only one of whom gave testimony applicable to the imposition of the life imprisonment sentence. The court’s refusal to grant a continuance did not prejudice defendant's rights at the hearing.

Recidivist charges can be refuted by raising such issues at the hearing as whether: defendant is the person named in the prior convictions; the previous convictions are of the character contemplated by the statute; and, the required procedure was followed in invoking the statute. (Oyler v. Boles (1962), 368 U.S. 448, 453-54, 7 L. Ed. 2d 446, 450-52, 82 S. Ct. 501, 504-05.) No such refutation was forthcoming here. No issue was raised as to whether defendant was the individual named in the previous convictions. Defendant’s convictions, in toto, were for rape, deviate sexual assault and armed robbery, all of which are Class X felonies, as prescribed by the Act. (Ill. Rev. Stat. 1981, ch. 38, pars. 11— 1(c), 11 — 3(b), 18 — 2(b).) Finally the required procedures were followed. There is no suggestion of any further defense evidence that could or would have been adduced in the event of a continuance. (People v. Pruden (1982), 110 Ill. App. 3d 250, 442 N.E.2d 284.) The circuit court did not abuse its discretion in denying a further continuance.

Accordingly there is no reason to disturb defendant’s conviction and sentence to life imprisonment under the Habitual Criminal Act. The convictions and sentencing must be affirmed.

Affirmed.

STAMOS and PERLIN, JJ, concur.


source: Caselaw Access Project

author: JUSTICE McGILLICUDDY

license: Public Domain

text:
    WILLIAM B. KNAPP, M.D., et al., Plaintiffs-Appellees, v. PALOS COMMUNITY HOSPITAL, et al., Defendants-Appellants.
    First District (3rd Division)
    No. 82—2115
    Opinion filed June 13, 1984.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, William J. Holloway and Michael R. Callahan, of counsel), for appellant the St. George Corporation.
    Gregory A. Adamski, Stephen P. Carponelli, and Michael J. Weik, all of Chicago (Winston & Strawn and Carponelli & Krug, of counsel), for appel-lees.
    McLaughlin, Kinser & Bryant, Schuyler, Ballard & Cowen, Harry L. Kin-ser, Kenneth C. Robbins, Jeffery W. Maysent, and Daniel M. Schuyler, all of Chicago, for amici curiae Illinois Hospital Association and the Chicago Hospital Council.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

On January 27, 1982, the plaintiffs, William B. Knapp, M.D.; Francisco Lopez, M.D.; Hugh Savage, M.D.; and Dr. William B. Knapp & Associates brought this action for injunctive relief alleging wrongful curtailment of medical staff privileges against the defendants, Palos Community Hospital; the St. George Corporation; Sister Margaret Wright; Thomas Lavery; Carlo Fioretti, M.D.; Terrance Moisan, M.D.; and Dr. Adams. On July 15, 1982, the trial court entered a temporary restraining order enjoining the defendants from denying the plaintiffs reappointment to the medical staff. On July 20, 1982, the plaintiffs amended the complaint to allege that Palos had violated its bylaws in denying reappointment. The amended complaint also joined Kenneth Wilcox, M.D.; S. Katapodis, M.D.; Y. Normanboy, M.D.; Z. Risvi, M.D.; T. Arvyoa, M.D.; John Kline, M.D.; N. Henry Coleman, M.D.; Roland Winterfield, M.D.; David Scheiner, M.D.; and S. Caliendo, M.D., as additional defendants. On July 30, 1982, following a five-day hearing, the trial court dissolved the temporary restraining order of July 15, 1982, and entered a preliminary injunction reinstating the plaintiffs to the medical staff with full privileges. The St. George Corporation, d/b/a Palos Community Hospital (Palos), brought this interlocutory appeal. The issues presented for review are whether the trial court abused its discretion in entering the preliminary injunction and whether the hospital violated its bylaws in not reappointing the plaintiffs to the medical staff.

The plaintiffs, specialists in internal medicine, practice as a group at Palos. Dr. Knapp joined the Palos staff in 1972, Dr. Lopez in 1975 and Dr. Savage in 1977. Each plaintiff also enjoys staff privileges at Mercy Hospital and Medical Center in Chicago, Little Company of Mary Hospital in Evergreen Park and Suburban Hospital and Sanitarium of Cook County in Hinsdale. The plaintiffs have an office in Evergreen Park.

Palos is a private hospital located in Palos Heights, Illinois. It is owned and operated by the St. George Corporation, a not-for-profit organization. Sister Wright, the president and chief executive officer of Palos, reports directly to the St. George Corporation Board of Directors (Board).

The Joint Commission on the Accreditation of Hospitals requires quarterly audits of the hospital’s respiratory care services. Accordingly, among the four audits conducted at Palos in 1981 was an ancillary services audit of ventilatory care by Dr. Moisan, Palos’ director of respiratory therapy, and Dr. Adams (the Moisan audit). Ventilatory care deals with the circulation and exchange of gases in the lungs that is basic to respiration. The Moisan audit reviewed the medical records of patients who had received ventilatory care treatment from 11 physicians from January through June 1981. Of 33 deficiencies found, 17 were in the charts of the plaintiffs’ patients.

On November 16, 1981, Palos’ intensive care committee reviewed the Moisan audit results and voted to recommend that ventilatory privileges be separately delineated on a privilege card for each physician on the staff. Dr. Savage participated in the meeting.

On November 18, 1981, the Moisan audit results were presented at a department of medicine meeting which the three plaintiffs attended. The department of medicine voted to approve the recommendation of the intensive care committee.

On November 19, 1981, the quality assurance committee (also known as the utilization review committee) voted to accept the Moisan audit. The committee adopted a motion recommending that Dr. Fioretti, Chairman, notify the physician with the greatest number of deficiencies that all orders for mechanical ventilation would be concurrently reviewed by Dr. Moisan or Dr. Adams.

There is conflicting testimony as to what happened at this meeting. According to Dr. Knapp, he protested upon learning of the Moisan audit and demanded to know the numbers of the charts, the names of the patients, and the deficiencies and their relations to the charts. He testified that he did not discover the chart numbers at issue until February 15, 1982. Dr. Moisan countered that Dr. Knapp did not request identification of the chart numbers included in the audit at the meeting, but that if he had, Dr. Moisan would have furnished the numbers. Dr. Moisan also testified that he had volunteered to give the charts or chart numbers to the plaintiffs. The five charts in question were on the table during the meeting.

The medical executive committee met on November 24, 1981, and approved the intensive care committee’s recommendation to list venti-latory privileges on the privilege cards. It was noted that since these privileges have never been assigned in the past, “one cannot consider that they are being denied to anyone at this time.”

On December 11, 1981, the recommendation of the quality assurance committee regarding review of ventilation orders was incorporated in a letter to Dr. Knapp. The letter stated, in relevant part, as follows:

“It was moved and carried that a letter be forwarded to your attention informing you that your group’s charts had the greatest number of deficiencies, and in view of the findings of this audit all orders for mechanical ventilation will be concurrently reviewed by Dr. Moisan or Dr. Adams.
In as much [sic] as Dr. Moisan has a contractural [sic] relationship with the hospital, he has the authority to change any orders that are inappropriate. Dr. Moisan has been instructed to intervene on behalf of any patient on any mechanical ventilation in situations where management is inappropriate, deficient or dangerous. Should there be a need to intervene, you will be informed. Should there be a conflict, it will be resolved by Administration and the Department of Medicine.”

At the next meeting of the medical executive committee on December 22, 1981, Dr. Murphy read a letter from Dr. Knapp protesting the quality assurance committee’s decision to have his ventilatory orders monitored. He asserted that he had never been notified of the deficiencies in his patients’ charts prior to the monitoring and that his right to due process had been violated. It was noted that members of Dr. Knapp’s group attended the meetings of the quality assurance committee and department of medicine when the audit was presented. Following discussion, the committee decided to advise Dr. Knapp that it was the opinion of the executive committee that the audit was appropriately reviewed and approved, that no privileges of any physician were restricted, and that ventilatory privileges would be added to the privilege card and would be reviewed for the first time during the annual reappointment process.

Dr. Savage, Dr. Moisan, medical affairs vice-president Thomas Lavery, and medical staff president Dr. Rodolfo Mejicano met on December 23, 1981, to resolve any problems with the parties involved and to institute a mechanism for the review of the plaintiffs’ ventila-tory orders. Dr. Moisan testified that he brought the charts in question to the meeting and offered them to Dr. Savage. Dr. Savage declined to review them and said he was not interested at that time in going over them. Dr. Moisan further testified that Dr. Savage said he understood Dr. Moisan’s observations of the audit, and realized there would be no interference with his ability to write ventilatory orders. According to Dr. Mejicano’s testimony, Dr. Savage agreed that any conflict between one of the plaintiffs and the lung therapist would be resolved by Dr. Moisan or Dr. Mejicano. Dr. Knapp testified that Dr. Savage was acting on behalf of the three plaintiffs at this meeting. The arrangements made at the meeting were confirmed by Lavery and Dr. Savage on December 28,1981.

Palos’ bylaws authorize a peer review system to evaluate quality of medical care and to annually reappoint the members of its medical staff, subject to the ultimate authority of the Board. The reappointment procedure begins with the medical staff which, through. appropriate committees, considers each application for reappointment and transmits its findings to the Board. The criteria used for the evaluation of each physician include, inter alia, direct observation of care provided by review of patients’ records and medical staff records; determination to adhere strictly to professional ethics, to work cooperatively with others and to be willing to participate in the discharge of staff responsibilities; provision of quality medical care to patients; and participation in the patient care audit, utilization review and other medical quality maintenance activities.

The bylaws require an initial review of all pertinent information available on each practitioner by the privilege evaluation committee of each department. The privilege evaluation committee makes recommendations as to reappointment, promotion and granting of clinical privileges of each practitioner to the department chairman. The members of the department review the recommendations and by majority vote approve or disapprove them. The chairman then submits the privilege evaluation committee recommendations and the department conclusions to the medical executive committee.

Following review of those recommendations and conclusions, the medical executive committee makes findings, which findings if favorable to the practitioner, are forwarded to the Board. If the findings are adverse to the practitioner with respect to reappointment, classification or clinical privileges, the affected practitioner is entitled to notice and a hearing as provided by article IX of the bylaws.

Article IX of the bylaws allows a practitioner to request a hearing within 30 days after receipt of notice of any initial adverse decision. The hearing is held before an ad hoc hearing panel of five persons, three of whom must be practitioners. Within 14 days after receipt of a written request for a hearing, the medical executive committee schedules the hearing for not less than 21 nor more than 42 days from the receipt of the request. The president notifies the practitioner of the time, date and place of the hearing, as well as the acts or omissions with which he is being charged, a list of specific or representative charts being questioned, and/or other reasons or subject matter that were considered in making the adverse decision.

The bylaws grant participants the rights to present and examine witnesses, question witnesses presented by others on relevant matters, and introduce oral and documentary evidence. The hearing committee may actively participate in the proceedings and shall deliberate outside the presence of the other participants. Within 14 days of the hearing, the hearing committee shall report in writing its decision and findings to the medical executive committee or to the Board and to the affected practitioner. The report shall include the recommendations of the hearing committee to affirm, modify or reject the initial adverse decision, with supporting documentation.

If the hearing committee’s decision is adverse to the practitioner, he may request in writing an appellate review within 14 days of receipt of notice of the decision. This review is conducted by at least five disinterested persons appointed by the chairman of the Board. The practitioner has access to reports and all material considered by the hearing committee. He may also submit a written statement on his own behalf which shall specify the areas of disagreement and the practitioner’s reasons. The appellate review committee has the responsibility to determine whether the adverse decision against the practitioner was justified. Within 14 days after the completion of the review, the committee shall report in writing to the Board its recommendation to affirm, modify or reverse the adverse decision, the basis for such recommendation, and supporting documentation. Within 21 days of the appellate review, the Board takes final action on the matter and notice thereof shall be sent to the practitioner.

On January 27, 1982, the department of medicine privilege evaluation committee began the annual review process by considering the plaintiffs’ applications for reappointment to the medical staff. The privilege evaluation committee approved the applications except as to ventilation therapy privileges. The privilege evaluation committee voted to recommend the reappointments and deferred discussion of the ventilation question and the Moisan audit to its next meeting.

Also on January 27, 1982, the plaintiffs filed a complaint in the circuit court of Cook County against Palos, the St. George Corporation, Sister Margaret Wright, Thomas Lavery, Dr. Fioretti, Dr. Moisan and Dr. Adams. The complaint alleged that the plaintiffs’ privileges to write ventilation orders were curtailed by the action of the quality assurance committee, that the action taken violated Palos’ bylaws, and that the defendants’ action was wrongful.

The next privilege evaluation committee meeting took place on February 10, 1982. As a result of a motion made, seconded and carried, Dr. Lopez was not permitted to tape record the meeting. Dr. Moisan announced that since the plaintiffs had filed a lawsuit, he would be unable to discuss their ventilation privileges. Sister Wright described the complaint filed in the circuit court by the plaintiffs and announced that, in the interest of impartiality, Palos had sought external review of the medical care rendered by the plaintiffs. She reported that Dr. David L. Scheiner of Michael Reese Hospital and Pritzker School of Medicine, hired as a consultant, had reviewed various charts of the plaintiffs’ group and reported that their practice had fallen sharply below accepted standards of medical care. Sister Wright suggested that the external review be given serious consideration and recommended that the plaintiffs’ applications for reappointment be denied.

Dr. Lopez objected, stating that the audit and charts examined by Dr. Scheiner had never been presented to him for review. It was pointed out that Dr. Lopez and every other privilege evaluation committee member had access to the charts scheduled for review prior to the meeting. Sister Wright advised that the availability of the charts would be discontinued on advice of legal counsel due to the pending lawsuit. Dr. Moisan stated that the issue was overall quality of care as well as ventilatory privileges. The committee agreed to make the reports and charts which were reviewed by Dr. Schemer available to its members. No one reviewed any charts during the meeting.

Dr. Moisan made a motion that the plaintiffs not be reappointed to the staff; Dr. Kline seconded the motion. During the ensuing discussion, it was pointed out that for certain diagnoses, the plaintiffs’ overutilization of the hospital resulted in hospitalizations that were 50% longer and costs that were 31% greater than those of the other staff members. Two committee members, Drs. Moisan and Kline, voted to deny reappointment. Two members abstained from voting. Dr. Mejicano did not vote and he stated that he was required to vote only to break a tie vote. Sister Wright did not vote. Dr. Lopez was not allowed to vote. Dr. Mejicano testified that he had not encountered another situation where a committee member was not allowed to vote on his own privilege form. He believed the committee members felt pressure from Sister Wright to vote again on the applications. The privilege evaluation committee recommendations to deny the plaintiffs’ reappointment were forwarded to the department of medicine.

On February 18, 1982, the department of medicine considered the plaintiffs’ applications for reappointment and the privilege evaluation committee recommendations that they be denied. Dr. Knapp read a memorandum from the plaintiffs to the department of medicine which criticized the recommendations, the Moisan audit, and the Palos administration and peer review system. Dr. Moisan stated that he monitors all ventilatory care without fee to the physicians, most of whom appreciate the service, pursuant to a contract with the Board. He added that at no time were the plaintiffs informed that they could not write orders for ventilatory care.

Although the Moisan audit and Dr. Schemer’s report were not reviewed at the meeting, at least four of the voting members (Drs. Win-terfield, Coleman, O’Reilly and Kline) had examined them prior to that time. The charts evaluated by Dr. Schemer were there, but no one looked at them. Dr. McCormick testified that, except for two new physicians, each member of the department of medicine staff has belonged to one of the hospital’s peer review committees and has had ample opportunity to examine the plaintiffs’ patients’ charts. The issue of the standard of care practiced by the plaintiffs was then discussed.

The department of medicine went into executive session, excluding the parties to the lawsuit (Lavery, Sister Wright, and Drs. Knapp, Lopez and Savage), Drs. Moisan and Adams, and the secretary. In executive session, the members discussed the plaintiffs’ quality of care, including inappropriate use of lung scans and medications; excessive use of diagnostic tests, pacemakers and pulmonary angiograms; unsubstantiated diagnoses; and improper testing and treatment. Specific charts were not discussed. After the executive session the excluded persons were called back to the meeting. The department of medicine, by a majority vote, recommended that the plaintiffs’ applications for reappointment be denied.

At a meeting of the medical executive committee on February 23, 1982, there was a discussion and a review of the department of medicine recommendations that the plaintiffs not be reappointed to the medical staff. The plaintiffs had submitted a report outlining their complaints to the medical executive committee. The medical executive committee voted, by a majority, to deny the plaintiffs’ applications for reappointment.

On February 23, 1982, Sister Wright notified the plaintiffs as follows:

“Pursuant to Article VI, ‘Medical Staff Reappointment,’ Section 3 - Medical Executive Committee Action, I am notifying you that the Medical Executive Committee voted to not reappoint you to the Medical Staff of Palos Community Hospital. Section 3 states: .***■ ‘the affected practitioner shall be entitled to notice and a hearing as provided by Article IX of these Bylaws.’
Please consider this letter formal notice of an adverse decision with regard' to your reappointment, and notification of your right to a hearing as stated in Article IX, ‘Hearing and Appellate Review’, Section 5 — Request for a Hearing. Section 5 states:
‘(a) The President shall be responsible for the giving of prompt written notice of an adverse decision to any affected practitioner who is entitled to a hearing or appellate review.
(b) A practitioner who fails to make a written request for a hearing within 30 days after receipt of the notice above provided shall be deemed to have waived his right to a hearing and all subsequent rights for a hearing and/or appellate review.’ ”

On March 10, 1982, Sister Wright received the folio-wing letter dated March 1,1982, from the plaintiffs:

“[We] received your notice of adverse action by the Executive Committee and demand all rights, hearings, and appeals pursuant to the By-Laws. Please contact [us] to determine a mutually convenient date for the hearing, to advise [us] of the issues before the hearing committee, to provide [us] with all documents that will be considered before the hearing committee, to advise [us] concerning the members of the hearing committee, and to provide [us] with a list of witnesses that will be called before the hearing Committee.”

She notified them on March 23, 1982, that the hearing would be held on April 7, 1982. The notice included six specific charges (overutilization of the hospital, overutilization of tests, inappropriate use of medication, inappropriate use of lung scans, unsubstantiated diagnoses and inadequate ventilatory management) and a representative list of the 38 charts which had been examined by Dr. Schemer or Dr. Moisan or had been discussed at departmental meetings.

On April 1, 1982, in response to the Moisan audit and the increased complexity of mechanical ventilators, Palos instituted a new requirement that all physicians specifically qualify for the privilege of writing ventilation orders.

On April 8, 1982, the ad hoc hearing panel conducted a hearing. The plaintiffs and Palos were represented by legal counsel. Dr. Wilcox of the medical executive committee described the proceedings to date. A discussion ensued and memoranda prepared by the plaintiffs were accepted for consideration. Individual charts were not reviewed. Dr. Lopez conceded that the hospital may audit any doctor without notifying him until a deviation is found. During the meeting, he requested and was denied a continuance. Dr. Wilcox stated that the charges against the plaintiffs were based on the observations of their methods of practice by their peers over a 10-year period. Dr. Knapp accused the hospital of harassing his group for 10 years. The committee subsequently met at an executive session and, after discussion, voted unanimously to affirm the recommendations of the medical executive committee that the plaintiffs not be reappointed.

On April 27, 1982, the medical executive committee reviewed the report of the ad hoc hearing panel and the supporting documents. The medical executive committee confirmed the recommendations for non-reappointment of the plaintiffs.

On April 30, 1982, after consideration of the recommendations and documentary evidence including the Moisan and Schemer audits, the Board voted not to reappoint the plaintiffs to the medical staff. On the same day, Sister Wright sent the following letter to the plaintiffs advising them of the Board’s decision:

“In accordance with the Medical Staff Bylaws, Article VI, Section 3, I am hereby notifying you that the Board of Directors has voted not to reappoint you to the Medical Staff of Palos Community Hospital.
This letter is the formal notice of the Board’s adverse decision regarding your reappointment and also serves as notification of your right to a hearing as stated in Article IX of the Medical Staff Bylaws. As stated in the aforementioned Bylaws:
‘(a) The president shall be responsible for a' giving of prompt written notice of an adverse decision to any affected practitioner who is entitled to a hearing or appellate review.
(b) A practitioner who fails to make written request for a hearing within 30 days after receipt of the notice above provided shall be deemed to have waived his right to a hearing and all subsequent rights to a hearing or appellate review.’ ”

On May 25, 1982, Sister Wright received the following letter dated May 21, 1982, from plaintiff Dr. Savage:

“Dear Sister Wright:
I received your April 30, 1982 letter notifying me that the Board of Directors has voted not to reappoint me to the medical staff of Palos Community Hospital. I protest this decision and hereby make written request for a hearing pursuant to the By-Laws.”

On June 7, 1982, Sister Wright sent the following letter to the plaintiffs:

“Please be advised that in response to your request- of May 21, 1982, an Appellate Review Committee (‘the Committee’) will be convened pursuant to Article IX, Section 10 of the Medical Staff Bylaws, to consider the adverse decision by the Board of Directors of Palos Community Hospital, not to reappoint you to the medical staff.
The Committee will meet on June 18, 1982, at 9:00 a.m. in the Board Room of Palos Community Hospital, 80th Avenue at McCarthy Road, Palos Heights, Illinois.
The Committee will be selected in accordance with Article IX, Section 10(d) of the Medical Staff Bylaws, and you will be given their names as soon as they are appointed.
Prior to the meeting, you have the right to review all reports, records, transcripts and any other materials that were considered by the Ad Hoc Hearing Panel which considered your reappointment at the hearing on April 7, 1982. You may also submit a written statement presenting arguments on your behalf. To ensure that the record is complete and that you are given every opportunity to present your case, you may also submit to the Committee any other material that you believe supports your position.
Please be advised that as set forth in Article IX, Section 1, pending completion of this review process, your medical staff privileges shall continue unchanged.
Should you have any questions or comments regarding any aspect of this letter or the conduct of the Appellate Review you have requested, please do not hesitate to raise them prior to the meeting. Communications from your attorney should be directed to the attorney for the Hospital as follows:
E. Michael Kelly, Esq.
Hinshaw, Culbertson, Moelmann, Hoban and Fuller
69 West Washington Street
Chicago, Illinois 60602
(312) 630-3224.”

The appellate review committee met on June 18, 1982, and heard allegations from the plaintiffs’ attorney that the plaintiffs’ rights as well as the Palos bylaws had been violated. Drs. Knapp and Savage made statements to the committee. The committee granted to the plaintiffs an additional 21 days in which to make any further oral or written presentations.

On July 9, 1982, the appellate review committee convened again and accepted a memorandum from the plaintiffs which urged that they be reappointed to the medical staff and alleged violations of their rights. The committee went into executive session and voted unanimously in favor of nonreappointment of the plaintiffs.

On July 14, 1982, the Board of Directors voted not to reappoint the plaintiffs to the medical staff. The plaintiffs were immediately notified of the Board’s action.

On July 15, 1982, the trial court entered a temporary restraining order enjoining the defendants from denying the plaintiffs full staff privileges at Palos with the exception of ventilatory therapy.

The plaintiffs filed an amended complaint in circuit court on July 20, 1982, alleging that Palos had violated its bylaws in not reappointing them to its staff. The amended complaint joined as defendants Dr. Schemer and nine physicians on the committees in the peer review process.

On July 30, 1982, after a five-day hearing, the trial court dissolved the temporary restraining order and entered a preliminary injunction reinstating the plaintiffs to the medical staff with full privileges as had existed on January 27, 1982. The trial court incorporated into its order the court’s findings of fact and conclusions of law which it made on July 29, 1982. In light of the April 1, 1982, hospital requirement regarding ventilatory privileges, the injunction placed the plaintiffs in the position of being the only three doctors on the medical staff able to write ventilation orders without being specifically qualified.

Palos contends that the trial court abused its discretion in granting the injunction because the hospital did not violate its bylaws in not reappointing the plaintiffs to its staff. The granting of a temporary injunction is within the sound discretion of the trial court, and unless there is an abuse of discretion, the reviewing court will not set it aside. (Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 229 N.E.2d 536; Houseknecht v. Zagel (1983), 112 Ill. App. 3d 284, 445 N.E.2d 402.) In order that a preliminary injunction may issue, the plaintiff must establish by a preponderance of the evidence that (1) a certain and clearly ascertained right needs protection, (2) irreparable injury will occur without the injunction, (3) no adequate remedy at law exists, and (4) there is probability of success on the merits of the case. Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 424 N.E.2d 719.

It is well established that a private hospital’s refusal to appoint a physician to its medical staff is not subject to judicial review. (Settler v. Hopedale Medical Foundation (1980), 80 Ill. App. 3d 1074, 400 N.E.2d 577; Jain v. Northwest Community Hospital (1978), 67 Ill. App. 3d 420, 385 N.E.2d 108.) The rationale behind this rule is the court’s unwillingness to substitute its judgment for that of private hospital authorities. (Jain v. Northwest Community Hospital (1978), 67 Ill. App. 3d 420, 385 N.E.2d 108.) The only exception to the rule on non-review that has developed in Illinois is that where a physician’s existing staff privileges are revoked or reduced, a private hospital must follow its own bylaws in doing so or be subject to limited judicial review. Jain v. Northwest Community Hospital (1978), 67 Ill. App. 3d 420, 385 N.E.2d 108.

The facts in the instant case indicate full compliance with the hospital bylaws. The evidence shows that the plaintiffs’ performances were evaluated in their annual review by the privilege evaluation committee, the department of medicine, and the medical executive committee. At the plaintiffs’ request and in accordance with the bylaws, the decision of the medical executive committee was reviewed by an ad hoe hearing panel. The panel voted unanimously to affirm the recommendations of the medical executive committee that the plaintiffs not be reappointed. When that result was forwarded to the Board and the Board confirmed it, the plaintiffs were immediately notified. The plaintiffs requested and were granted appellate review. All of these events took place in accordance with and in full satisfaction of the bylaw requirements.

The plaintiffs allege seven specific bylaw violations. First, they charge that no committee reviewed any charts of their patients, in violation of article VII, section 1(c). Article VII, section 1(c) provides periodic redetermination of clinical privileges shall be based on direct observation of care provided by review of patients’ records, medical staff records and other pertinent information. As the members of every committee in the peer review process had access to the patients’ charts, and discussed the charts, the Moisan audit, Dr. Schemer’s report and their own observations, there was no violation of article VII, section 1(c).

Second, the plaintiffs complain they were not given notice of or hearings on the adverse decisions made at the February 10, 1982, privilege evaluation committee meeting, the February 18, 1982, department of medicine meeting or the February 23, 1982, medical executive committee meeting, in violation of article IX, section 3. That provision grants the right to request a hearing to a practitioner who has received notice of an initial adverse decision affecting his status or clinical privileges. The results of the privilege evaluation committee and department of medicine meetings were nonbinding recommendations for the consideration of the medical executive committee. They had no effect on the plaintiffs’ status or clinical privileges. Thus they did not give rise to any right to notice or a hearing. As to the medical executive committee meeting, contrary to the plaintiffs’ assertion, Sister Wright sent them notice in writing of the adverse decision made by the medical executive committee on the day it was made, February 23, 1982. The plaintiffs sent a letter dated March 1, 1982, which was received on March 10, 1982, requesting a hearing. On March 23, 1982, Sister Wright advised the plaintiffs that the hearing would be on April 7,1982. Article IX, section 3 was not violated.

Third, the plaintiffs contend that no committee issued findings adverse to them, in violation of certain bylaws. The evidence indicates that on February 23, 1982, the medical executive committee reviewed the recommendations of the department of medicine and reviewed plaintiffs’ report outlining their complaints. The medical executive committee then made a finding adverse to the plaintiffs as indicated by the majority vote of the committee to deny the plaintiffs’ applications for reappointment.

The evidence further discloses that on April 27, 1982, the medical executive committee reviewed the report of the ad hoc hearing panel and the supporting documents. The committee confirmed the recommendations for nonreappointment of the plaintiffs.

Fourth, the plaintiffs assert that the hearing of the ad hoc hearing panel and the appellate hearing were not conducted within the time limits set forth in article IX, sections 6(a) and 10. Section 6(a) provides that the hearings must be scheduled within 14 days after receipt of the practitioner’s written request for the hearing, and the hearing must be held not less than 21 days nor more than 42 days from the date the request is received. Section 10 provides that a practitioner shall have 14 days to request in writing an appellate review after his receipt of notice of the adverse action. Sister Wright received the plaintiffs’ request for an ad hoc hearing on March 10, 1982. On March 23, 1982, she notified them of the hearing scheduled for April 7, 1982. This notification was within 14 days of the receipt of the request for a hearing. The hearing was held on April 8, 1982, 29 days from the date of the receipt of the request. Sister Wright received the plaintiffs’ request for appellate review on May 25, 1982. She informed them 13 days later, on June 7, 1982, that the appellate review was scheduled for June 18, 1982. The appellate review committee met on June 18, 1982, 24 days from the receipt of the request. There was no violation of the bylaws.

Fifth, the plaintiffs allege that the bill of particulars they received was “grossly inadequate” in violation of article IX, section 9(b). There is no section 9(b) to article IX. Article IX, section 9B, deals with witnesses and evidence at the ad hoc hearing. However, article IX, section 6(b), is the only bylaw which addresses a “bill of particulars.” It requires that the practitioner receive notice of the acts or omissions with which he is being charged, a list of specific or representative charts being questioned, and/or other reasons or subject matter that was considered in making the adverse decision. The plaintiffs received notice of six specific charges and a list of the 38 charts being questioned. There was no violation of the bylaws.

Sixth, the plaintiffs contend that they were not allowed to examine witnesses at the ad hoc hearing in violation of article IX, section 9(b) [sic]. Article IX, section 9B grants participants the right to question each other’s witnesses. The plaintiffs are apparently referring to a question Dr. Lopez put to Dr. Wilcox. At the request of the medical executive committee and the medical staff, Dr. Wilcox read a report of the charges, the allegations and the proceedings to date. At the conclusion of Dr. Wilcox’ report, Dr. Lopez inquired as to whether Dr. Wilcox was present at the January 1982 privilege evaluation committee meeting. Dr. Wilcox responded that he was not present at that meeting. Dr. Caliendo stated that as Dr. Wilcox had merely read a report, it would be inappropriate to question him individually. Dr. Lopez said, “Okay,” and instead presented minutes of that privilege evaluation committee meeting. There was no substantial violation of article IX, section 9B.

Finally, the plaintiffs complain that they were not allowed to discuss their charts at the ad hoc hearing, in violation of article IX, section 9(b) [sic]. Article IX, section 9B, grants participants the right to introduce relevant oral and documentary evidence. Dr. Caliendo announced that individual charts would not be examined at the meeting. According to the transcript of the meeting, the plaintiffs’ patients’ charts, as well as the audit and report based thereon, were mentioned several times by the plaintiffs and the other participants during the hearing. At the hearing, there was no request made to discuss the plaintiffs’ charts. There was no substantial violation of article IX, section 9B.

The plaintiffs further allege that their right to regular procedures as established by custom, usage and practice has been violated. As we have noted, any private hospital action which does not violate its bylaws is beyond the scope of judicial review.

As Palos did not violate its bylaws in not reappointing the plaintiffs to its medical staff, its actions are not subject to judicial review. The plaintiffs have not established a likelihood of success on the merits of their case. For these reasons, the trial court abused its discretion in granting the preliminary injunction.

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

Reversed.

RIZZI, P.J., and O’CONNOR, J., concur.


author: JUSTICE MILLER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PARIS LENOIR, Defendant-Appellant.
    Fourth District
    No. 4—83—0859
    Opinion filed June 27, 1984.
    Rehearing denied July 25, 1984.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Michael Blazicek, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

The defendant, Paris Lenoir, was convicted in a bench trial of two counts of armed violence and sentenced to concurrent 10-year terms of imprisonment. The convictions stem from the search of a house in Decatur on August 25, 1983, by State and municipal law enforcement officers. The defendant, a guest in the house, was found alone in a bedroom lying on a bed; beside him were two controlled substances— phencyclidine (PCP) and pentazocine — and a revolver, which was loaded. The defendant argues that the State failed to prove that he knew about or was in possession of these items. The defendant also argues that using a drug-possession offense as the underlying felony for armed violence is inconsistent with the purpose of the armed violence statute. The defendant argues alternatively, and the State concedes, that one of his two convictions must be vacated because they are based on a single offense.

The defendant’s bench trial was held October 17, 1983. Gerald Shields, an agent of the Division of Criminal Investigation, Department of Law Enforcement, led the search and arrested the defendant. Shields testified that at about 5 p.m. on August 25 he and eight or nine other officers went to a house at 1415 North Gulick in Decatur to execute a search warrant. Shields was wearing the uniform of an Illinois Bell repairman, and by that disguise he was able to lead his cohort into the house safely after he spoke with an adult female, Jacqueline Green, who answered and unlocked the front door. Inside the house an adult male, Frank Ware, was sitting at a table with two young children; they were eating bowls of chili. Shields found the defendant in a bedroom in the southwest comer of the house. The door to the room was shut, and Shields opened it; his weapon was drawn. The defendant was lying on the bed in a position that enabled him to view a television set, which was on. On the bed with the defendant were a bowl of chili, a .38 caliber revolver, two packs of cigarettes, a television schedule, a small, plastic film container, and several bags of green, leafy material. The film container held yellow pills, blue pills, and several small bags of white powder. Next to the bed was a night stand, and among the things on it were a plastic bag of blue pills and a pill bottle containing yellow pills; the bag and bottle were inside another plastic bag. Assays of these items showed that phencyclidine was present in the white powder and pentazocine in both groups of yellow pills.

Shield’s further search of the bedroom turned up shaving gear on the dresser, several pairs of men’s shoes on the floor, and women’s clothing and a sawed-off shotgun in the closet. Shields also found a traffic ticket that had been issued to the defendant.

According to Green’s and the defendant’s testimony, he was asleep in the bed while Green placed first the drugs and later the gun beside him, and he did not wake up until Shields entered the room. Green testified that the defendant, who was her boyfriend at that time, arrived at the house sometime in the morning on the day of the search. After playing with Green’s two children for awhile he went to sleep in the southwest bedroom. Green had been watching television in that room, and she left the set on even though the defendant was asleep. When the defendant began his nap neither the drugs nor the revolver was present; Green said that the defendant was on parole then and would not have allowed illicit drugs in the house.

Green testified that at about 3 o’clock that afternoon she made an appointment with someone to obtain drugs for a third person. Green left the house, picked up the drugs, and then returned home. She was in the southwest bedroom, preparing to hide the drugs, when one of her daughters ran in and reported that the other child had hurt herself. Interrupted in her task, Green left the drugs on the bed and night stand.

Green explained that the gun that was found next to the defendant had come from a pot in the kitchen. She said that she keeps weapons hidden throughout the house, and that this particular gun turned up in the pot that she was going to use to prepare the chili. She laid the gun next to the defendant on the bed. Later, she took a bowl of chili in to the defendant, who was still asleep. Green was impeached: she pleaded guilty to forgery just the week before she testified, apparently in a plea agreement involving charges from the events here, and in March 1983 she was convicted of misdemeanor theft.

The defendant testified. He said that his residence was in Chicago and that on occasion he stayed overnight with Green at her house in Decatur. The defendant explained that on August 25 he arrived at Green’s house at about 1 o’clock in the afternoon. He had come from Chicago that day with Frank Ware, the other man that the police found in the house. The defendant was tired, and on his arrival he retired to the bedroom to rest. He lay on the bed and watched television until he fell asleep. He woke up to find Shields standing in the doorway. The defendant said that he did not notice the bowl of chili when he woke, and that the gun and drugs were not present when he went to sleep. The defendant was impeached with his conviction for attempted burglary, which he had pleaded guilty to in' September 1982.

The trial judge found the defendant guilty of the two counts of possession of a controlled substance and the two counts of armed violence. The judge said that he did not believe the defendant’s or Green’s testimony, and he said specifically that Green’s account was incredible and that he had disregarded it entirely. The trial judge later vacated the convictions for the underlying felonies and sentenced the defendant to concurrent 10-year terms of imprisonment for the two convictions for armed violence, Class X felonies here because the defendant was armed with a firearm.

The defendant argues first that the State failed to prove his guilt for the offenses beyond a reasonable doubt. With respect to the controlled substances, the defendant points out that they were found in closed, opaque containers and argues that the State did not prove his knowledge of what those containers held. The defendant also argues that the State failed to prove his possession, actual or constructive, of the drugs, and he emphasizes a number of circumstances that may indicate his innocence: he was merely a visitor in the house, the drugs were not on his person, and he did not grab them or attempt to exercise any control over them when Shields entered the room. With respect to the gun, the defendant argues that the State failed to prove his knowledge of its presence, and he emphasizes that it was not on his person. The defendant also points out that his and Green’s testimony went uncontradicted.

It should be noted at the outset that the version of events related by Green and the defendant went uncontradicted only in the sense that no one else provided direct evidence of what occurred in the bedroom before the search began. The trial judge said that he did not believe their testimony, and he found Green’s to be incredible. This was in keeping with the common-sense principle that the trier of fact may reject testimony simply because it is incredible and unbelievable, for “when a defendant elects to explain his presence at the scene of an offense it is incumbent upon him to tell a reasonable story or be judged by its improbabilities. [Citations.]” (People v. Morehead (1970), 45 Ill. 2d 326, 330, 259 N.E.2d 8, 10.) This would apply with equal force to the testimony of a witness who is not a party to the action. Thus, the reason for rejecting or disregarding a witness’ testimony may be found in the testimony itself rather than in the contradictions posed by conflicting testimony. Its only effect is destructive, however, and it cannot be used to supply deficiencies in the State’s case. (People v. Holsapple (1975), 30 Ill. App. 3d 976, 333 N.E.2d 683; see People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 430 N.E.2d 1126.) The burden is on the State to prove every element of the offense beyond a reasonable doubt. In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068.

To sustain the charges of unlawful possession the State was required to prove the defendant’s knowledge that the substances were present and his actual or constructive possession of them (People v. Calhoun (1977), 46 Ill. App. 3d 691, 361 N.E.2d 55), in addition to the identity of the substances, which is not in dispute here. The substances were found in a film container and a pill bottle, and both of these were opaque and closed. The defendant cites People v. Binns (1975), 27 Ill. App. 3d 978, 327 N.E.2d 369, reversing a conviction for possession of cannabis, which the police had discovered in the defendant’s apartment in several closed manila envelopes. The appellate court found insufficient evidence that the defendant knew what was in the envelopes. This result rested in part on one unusual, remarkable aspect of the case: the testimony of a 15-year-old neighbor, given in the defendant’s behalf, that he had framed the defendant as an act of revenge by planting the envelopes in the apartment and then notifying the police.

The defendant also argues that the State failed to prove his possession, actual or constructive, of the drugs. He was a visitor in the house, the drugs were only near him, not on his person, and he did not exercise any control or dominion over them. The defendant cites People v. Pugh (1967), 36 Ill. 2d 435, 223 N.E.2d 115, which reversed a conviction for possession of narcotics because of insufficient evidence of possession. The defendant there was found lying in bed in a bedroom, and he said that he was a visitor rather than a resident. The narcotics were discovered behind a hinged molding in the bedroom. As a visitor, then, the defendant could not be found in possession of items hidden in the place that he was visiting, without more.

With respect to the revolver, the defendant argues that although it was found within a foot of him on the bed, the State failed to prove that he knew that it was there. The armed violence statute does not contain a mental state, but the State does not dispute that knowledge would be the appropriate one here.

These arguments must be rejected. The defendant was found alone in a bedroom with the door shut. The arresting officer believed that the defendant was watching television and therefore was awake. Around the defendant on the bed and within his reach were a number of small items, including food, a loaded gun, bags of a green, leafy material, and the film container. Next to the defendant on the night stand was the pill bottle. These circumstances support the inferences that the defendant was in possession and control certainly of the items on the bed, and that he knew what was there. Shields found the television set on and the defendant awake, as if he was watching television, and the trial court properly disregarded the testimony that the defendant was asleep while first drugs, then a gun, and finally a bowl of chili were placed next to him on the bed.

The defendant’s two convictions for possession of a controlled substance were Class 4 felonies and became armed violence because of the presence of the firearm. The armed violence statute provides:

“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Ill. Rev. Stat. 1983, ch. 38, par. 33A— 2.)

The dangerous weapon here was a firearm, a Category I weapon under the statute, making the offense a Class X felony. Ill. Rev. Stat. 1983, ch. 38, par. 33A — 3.

The defendant argues that the possession offenses should not be used as the underlying or predicate felonies. The defendant correctly observes that although the literal language of the statute would permit its enhancement of every felony, the supreme court has narrowed the scope of the statute by finding several exceptions to it: neither unlawful restraint (People v. Wisslead, (1983), 94 Ill. 2d 190, 446 N.E.2d 512), nor voluntary manslaughter (People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48) may serve as the predicate felony. Furthermore, double enhancement is not permitted, so any offense already containing as an element the use of a weapon cannot serve either. People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.

The defendant argues that the legislature intended to enhance only those felonies that are violent or potentially violent and that the possession of drugs is victimless crime. The defendant then goes on to argue that possession is a continuing offense and that allowing it to be enhanced under the armed violence statute may lead to absurd results: the weekend hunter who is in constructive possession of a controlled substance that is at home is therefore guilty of armed violence while he is out in the woods. The defendant does not couch these arguments in constitutional terms but relies instead on what he thinks is a fair reading of the statute and what it requires.

The State initially responds that this question has been waived because it was not posed in the trial court. At no time did the defendant question the application of the armed violence statute to drug-possession offenses. Even if the defendant’s argument was a constitutional one, it could be considered waived. (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.) We choose instead to address the defendant’s argument.

In Wisslead the defendant was charged with unlawful restraint and, because he allegedly had a weapon at that time, armed violence based on the unlawful restraint. The trial court agreed with the defendant that applying the armed violence statute to unlawful restraint was unconstitutionally disproportionate. The supreme court affirmed. The argument there depended on comparing unlawful restraint with a greater felony, kidnaping. Kidnaping is more serious than unlawful restraint and accordingly is punished more severely. But unlawful restraint committed with a firearm becomes armed violence, a Class X felony, and kidnaping committed with a firearm may constitute aggravated kidnaping, which is only a Class 1 felony. The classification of the offense therefore was unreasonable, and the court held that armed violence could not be predicated on unlawful restraint. The court also noted a similar disproportionality with another greater offense, forcible detention, a Class 2 felony that is committed with a weapon.

Here, the defendant has not attempted to show that an offense that is more serious than simple possession is, when enhanced with a weapon, punished less severely than the armed violence conviction here. Therefore Wisslead shows the existence of exceptions to the armed violence statute but is not otherwise of benefit here.

In Alejos the court held that armed violence could not be predicated on voluntary manslaughter. Unlike Wisslead, the basis for the decision in Alejos was not constitutional; rather, the court looked to the purpose of the armed violence statute and the -nature of voluntary manslaughter. Voluntary manslaughter is by definition unpremeditated, the court said, and would not be deterred by the armed violence provisions. Thus, using voluntary manslaughter as the predicate for armed violence had no relation to the purpose of the armed violence statute, and the court held that voluntary manslaughter could not be enhanced in that way.

Armed violence does not require use of the weapon; its mere presence is sufficient. (People v. Haron (1981), 85 Ill. 2d 261, 442 N.E.2d 627.) The deterrent purpose of the armed violence statute, which depends on punishing felons who carry weapons more severely than felons who do not, was relevant here, even though the underlying felony was possessory rather than violent. Law enforcement officers and ordinary citizens all have an interest in seeing that persons who are committing felonies do not have weapons about them. The underlying offense of possession is not consistent with or unrelated to the purpose of the armed violence statute, as was the case in Alejos.

The defendant’s suggested absurd results — the weekend hunter with the drugs at home — are merely hypothetical instances and are not at all like the case here. At any rate, those results are severe rather than absurd and are in accordance with the purpose of the statute. The potential danger to the public that is posed by an armed felon does not necessarily depend on his actual possession of a substance; that danger may exist long distance, as in the defendant’s hypothetical.

Finally, the defendant argues and the State concedes that under People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200, one of the two convictions for armed violence must be vacated: only one offense occurred, even though two substances were present. Therefore, we vacate one conviction and affirm the other.

Affirmed in part and vacated in part.

MILLS, P.J., and TRAPP, J., concur.


author: JUSTICE REINHARD

text:
    LOSURDO BROTHERS, Plaintiff-Appellee, v. ARKIN DISTRIBUTING COMPANY, Defendant-Appellant.
    Second District
    No. 2—83—0636
    Opinion filed June 20, 1984.

      John T. Perry, Ltd., of Wheaton, for appellant.
    Albert Koretzky, of Di Monte & Lizak, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Arkin Distributing Company (Arkin), lessee, appeals from judgments for possession of commercial premises and attorney fees in favor of plaintiff, Losurdo Brothers (Losurdo), lessor, upon Lo-surdo’s complaint in forcible entry and detainer. The issue Arkin presents for review is whether Losurdo, by its failure to respond to Arkin’s request that Losurdo consent to Arkin’s subletting of the premises, unreasonably withheld consent and thus waived the lease provision requiring such consent prior to subleasing of the premises. Losurdo cross-appeals from the judgment for attorney fees, contending the award is inadequate.

Losurdo’s complaint for forcible entry and detainer, as amended, alleged that the parties entered into a written industrial building lease whereby Arkin leased units A, B, and C for use as a toy distributor; that Arkin breached the terms of the lease in various respects including the subletting of the premises without the written consent of Lo-surdo; and that Losurdo was entitled to possession of the premises upon breach, and attorney fees and costs pursuant to the terms of the lease. Arkin’s answer and its answer to an amendment to the complaint generally denied the other allegations of breach and, while admitting it subleased the premises, affirmatively asserted it made its best efforts to obtain written consent to sublease from Losurdo in writing, but Losurdo unreasonably withheld such consent.

In a bench trial, the testimony and exhibits established that the parties entered into a written lease for five years beginning on April 15, 1978, under which Arkin leased three building units for the stated purpose as a toy distributor. A term of the lease provides that the lessee will not sublet any portion of the premises without first obtaining the written consent of the lessor, which consent shall not be unreasonably withheld by the lessor. A further term of the lease provides that the lessee will pay all reasonable costs, attorney fees and expenses incurred by the lessor in enforcing the covenants of the lease.

On December 15, 1981, Arkin executed a lease with Jeffrey and Mary Kraft, doing business as Ramlyn Metal Products (Ramlyn), for unit C of the premises, for use in Ramlyn’s business of precision sheet metal work. The Ramlyn lease, which was to run from January 1, 1982, through December 31, 1984, was made subject to the consent of Losurdo. In a letter dated December 24, 1981, Arkin’s attorney requested consent from Losurdo for this sublease. The letter indicated that consent would be assumed if Arkin did not hear from Losurdo by December 30, 1981, and that if Losurdo did not consent, it should specify the reasons for the refusal. The letter also indicated consent to sublease was requested “sometime ago,” but was not responded to, and in December 1980, Losurdo had unreasonably withheld consent to sublease to another proposed subtenant. However, no testimony was adduced at trial to support the two prior requests to sublet in the letter. The original of this letter, as well as copies of the Ramlyn lease and the lease application, were either delivered personally to or mailed to Losurdo on December 31, 1981, by Arkin’s regional manager, Michael Mack. Losurdo never consented to this sublease, and notified Arkin in a notice to quit to deliver up the premises because of a default by the use of flammable materials in the nature of welding equipment in the premises. Losurdo then filed a forcible entry and de-tainer complaint on March 30, 1982. This proceeding was continued several times and not heard until May 17,1983.

In the meantime, during pendency of this suit, in a letter dated July 27, 1982, Mack requested that Losurdo consent to a sublease of unit C to Hanna Car Wash Systems (Hanna). Mack’s letter indicated that Arkin had entered into a sublease agreement with Hanna and that the premises would be used for sales offices and warehousing of component parts for car wash equipment and a service truck. This lease, which was executed on July 22, 1982, was for a two-year term beginning August 9, 1982; however, Hanna was given the right to possession on July 28, 1982, for the purpose of making preparations for the use of the building. Losurdo never gave consent to this sublease. Although the record is not absolutely clear, it appears that Ramlyn took possession of unit C for a short period of time and then Hanna took possession of unit C and was in possession at the time of trial.

On February 19, 1983, Mack wrote to Losurdo, indicating that Arkin had entered into another sublease agreement, this time for unit A with Ron Pilch, owner of Vehicle Maintenance Systems, Inc. No further evidence was introduced on this proposed sublease.

The exhibits and brief testimony recited above were all the evidence offered by the parties relating to the breach of the term of the lease relating to subleasing of the premises. The bulk of the testimony at trial concerned other alleged breaches of the lease and are not pertinent to this appeal, as the trial court found either that they had not been proved by Losurdo, or were not significant enough to terminate the lease. The trial court, however, found that Arkin had repeatedly subleased the premises without the consent of Losurdo contrary to the lease provision and that consent was not unreasonably withheld. The court granted Losurdo possession of the premises and, after a subsequent hearing, awarded Losurdo $1,173.75 for attorney fees although Losurdo had requested attorney fees and costs totalling $3,903.

The principal argument advanced in Arkin’s brief in its appeal is that its requests by letter to sublet to Ramlyn and later to Hanna were reasonable, and Losurdo’s failure to respond was “an unreasonable act which should bar their [Losurdo’s] right to rely” on the prior consent provision and should be construed as “assent” to the proposed subleases. In essence, Arkin maintains Losurdo had an affirmative duty to respond to the requests to sublease, and the failure to do so bars enforcement of the term of the lease requiring written consent. Counsel for Arkin acknowledged at oral argument that the “unreasonable withholding of consent” provision in the lease pertains to the sublessee being suitable and meeting commercially reasonable standards which was not addressed by Arkin in its proofs or in its brief and is not an issue before us. Contrary to Losurdo’s statement in its brief that Arkin’s principal contention was not affirmatively raised in its answer, we believe this issue was fairly raised in Arkin’s pleadings. In addition, proofs were presented on this contention without objection by Losurdo, thereby waiving by its conduct at trial any possible deficiency in Arkin’s pleadings. See Schwarzbach v. City of Highland Park (1980), 82 Ill. App. 3d 807, 810, 403 N.E.2d 102; see also Ill. Rev. Stat. 1981, ch. 110, par. 2 — 612(c).

Generally, a lease provision which prevents the lessee from subletting the premises or assigning the lease without the prior consent of the lessor is an enforceable provision, provided the lessor has not unreasonably rejected a suitable subtenant shown by the lessee to meet commercially reasonable standards. (See Jack Frost Sales, Inc. v. Harris Trust & Savings Bank (1982), 104 Ill. App. 3d 933, 433 N.E.2d 941; Arrington v. Walter E. Heller International Corp. (1975), 30 Ill. App. 3d 631, 333 N.E.2d 50; Reget v. Dempsey-Tegler & Co. (1966), 70 Ill. App. 2d 32, 216 N.E.2d 500.) However, the issue before us is not whether Losurdo unreasonably withheld consent to sublet the premises, but whether Losurdo’s failure to respond to Arkin’s request to sublet operates to bar enforcement of the prior consent provision, or in essence to waive it. Nevertheless, the principle of law stated above regarding the obligation of the lessee to show that its proposed subtenant was suitable and meets commercially reasonable standards is relevant under the factual circumstances present here.

Losurdo was presented by Arkin with the request to consent to sublet to Ramlyn on December 31, 1981, for a subtenancy to begin the next day, January 1, 1982. While the record does not reveal whether possession by Ramlyn actually took place on January 1, the sublease so provided for possession on that day, the record indicates Ramlyn did occupy the premises and pay rent, and Arkin did not present any proofs to the contrary. Nor did Arkin introduce any testimony to prove that any request to consent to this subtenant was made at any time prior to the December 31 request, even though an unsubstantiated reference to a prior request is contained in an original letter dated December 24, 1981, from Arkin’s attorney, which was attached to a request to sublet, delivered or mailed on December 31.

As Losurdo correctly contends, Arkin never gave it any opportunity to exercise any reasonable commercial judgment in which to determine whether the proposed subtenancy met commercially reasonable standards. Such standards may include the credit and financial responsibility of the proposed subtenant as well as the type of business to be conducted on the premises and whether the business competes with that of the lessor or any other lessee. (See Arrington v. Walter E. Heller International Corp. (1975), 30 Ill. App. 3d 631, 333 N.E.2d 50; Reget v. Dempsey-Tegler & Co. (1966), 70 Ill. App. 2d 32, 216 N.E.2d 500.) The lease between Losurdo and Arkin provided that the use of the premises was for the purpose of a toy distributor and included a provision that the premises could not be used for a purpose which would increase the fire hazard of the building. The proposed subtenancy lease between Arkin and Ramlyn, which was delivered or mailed to Losurdo on December 31, indicated Ramlyn was engaged in precision sheet metal work, certainly a use substantially different from that of a toy distributor conducted on the premises by Arkin. It is also apparent from the record that once Losurdo had made some investigation of the use of the premises, it mailed a “notice to quit” on February 3, 1982, to Arkin specifying a default by the use of flammable materials in the nature of welding equipment used on the premises in violation of a clause in the original lease. This suit for forcible entry and detainer was thereafter filed on March 30,1982.

Under the facts present here, Arkin’s delivery or mailing on December 31 to Losurdo of its request for consent to sublet the premises to begin on January 1 gave Losurdo no opportunity to investigate to determine if the proposed subtenant met commercially reasonable standards and no opportunity to respond before the subtenancy began. The occupancy of the premises by Ramlyn after January 1 was a breach of the express term of the original lease prohibiting a subletting of the premises without the prior written consent of the lessor. The failure of Losurdo to immediately respond, under the circumstances, is not a bar to enforcement of the covenant. Thus, even assuming a lessor’s failure to respond would constitute a waiver of the right to enforce the prior-consent provision, the lessor must be provided a reasonable period of time to respond, unless a specific time is provided in the lease, and clearly here virtually no time was given for Losurdo to respond.

We also note that Arkin’s second request to sublease the same unit C to another proposed tenant, Hanna, was likewise given without much advance notice. The letter request was dated July 27, 1982, for a sublease beginning August 9, 1982. This request was also made after this forcible entry and detainer suit was filed. In any event, the first subtenancy, as discussed above, was a sufficient breach of the lease for the trial court to award possession of the premises to Lo-surdo.

Arkin has also presented a short argument in its brief that Losurdo’s failure to respond to the request for consent to sublet and its acceptance of rent from Arkin for the premises should result in Losurdo being estopped from enforcing the prior consent provision in the lease. Estoppel is an affirmative defense which must be affirmatively pleaded and is waived if not alleged. (In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 929, 428 N.E.2d 1005; Orchard Brook Home Association, Inc. v. Joseph Keim Land Development Corp. (1978), 66 Ill. App. 3d 227, 233, 382 N.E.2d 818.) Arkin may not present a new theory on appeal for the first time. (See Osborne v. Sprowls (1981), 84 Ill. 2d 390, 399, 419 N.E.2d 913.) Even considering this argument on its merits, there is no evidence that Arkin relied to its detriment upon Losurdo’s words or conduct concerning prior written consent to any sublease before its untimely request on December 31 (see Justine Realty Co. v. American Can Co. (1983), 119 Ill. App. 3d 582, 587, 456 N.E.2d 871), and there is an express term in the lease that acceptance of rent shall not operate as a waiver of any breach of the lease.

We next consider the cross-appeal of Losurdo in which it contends that the award of attorney fees was inadequate and arbitrary. At a separate hearing on attorney fees and costs, Losurdo’s attorney submitted his affidavit itemizing the work he performed, the time spent representing Losurdo, and the costs involved. He listed his normal hourly rate at $100 per hour. He represented that he spent 29.65 hours on the case and would spend three more hours on the attorney .fee and costs issue. Costs of $138 for a law clerk’s time, automobile mileage expenses, and duplicating costs were listed. The petition also requested $500 for fees paid by Losurdo to a previous attorney. The total request was for $3,903.

During a brief hearing on this issue, Losurdo’s attorney also testified the law clerk’s time was spent delivering an amended complaint and notice of motion. He also stated that included in his own time spent on the case was his travel time of approximately an hour and three quarters round trip on each of five occasions for hearings at the courthouse in Wheaton. Losurdo’s attorney’s offices are in Chicago. There was further testimony that another attorney initially hired by Losurdo was paid a $500 retainer fee. It is apparent from the record that this attorney filed the complaint in forcible entry and detainer and made one court appearance at a status call. Neither his bill for services nor any testimony was adduced concerning the precise services, time spent on the case, or his hourly rate.

The trial court refused to award attorney fees for travel time, disallowed attorney fees for Losurdo’s previous attorney on the basis that there was no evidence of its reasonableness, and denied the $138 request for specified costs. The court below awarded attorney fees of $1,173.75, commenting that the issues were not complex or difficult.

The general rule in Illinois is that in the absence, of a statute or an agreement the successful litigant in a civil action may not recover attorney fees or the ordinary expenses of litigation from his adversary (Saltiel v. Olsen (1981), 85 Ill. 2d 484, 488-89, 426 N.E.2d 1204.) Provisions in contracts for awards of attorney fees and costs, as is the case here, are an exception to this rule. (Abdul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 411-12, 462 N.E.2d 488.) A lease which contained a specific provision virtually identical to the clause in this lease that the lessee will pay all reasonable costs, attorney fees and expenses incurred by the lessor in enforcing the covenants of the lease has been held to authorize an award of attorney fees and costs. (Wanderer v. Plainfield Carton Corp. (1976), 40 Ill. App. 3d 552, 560-61, 351 N.E.2d 630.) In setting fees, the court in First National Bank v. Barclay (1982), 111 Ill. App. 3d 162,163, 443 N.E.2d 780, stated:

“The foundation for any award of fees is the amount of time spent by a lawyer on a case, his ability and the complexity of the work. (Quinsippi Corp. v. Bening (1982), 105 Ill. App. 3d 241, 242, 433 N.E.2d 1368, 1369; Larkin Bank v. Ishak (1976), 43 Ill. App. 3d 918, 357 N.E.2d 840.) Moreover, a party suing for fees must specify the amount of time expended and describe the work performed, whether he is seeking fees from a former client (Serritella v. Plotkin (1980), 89 Ill. App. 3d 739, 412 N.E.2d 7), or from an opponent (Board of Managers, Colony West Townhome Owners Association v. Bucalo (1979), 69 Ill. App. 3d 287, 387 N.E.2d 53). The amount of fees should be determined on the basis of the facts in evidence, rather than upon speculation. [Citations.]”

(See generally Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019; Northcross v. Board of Education (6th Cir. 1979), 611 F.2d 624; Mt. Vernon Memorial Estates, Inc. v. Wood (1980), 88 Ill. App. 3d 666, 410 N.E.2d 995; 61 East Walton, Inc. v. Chicago Title & Trust Co. (1979), 69 Ill. App. 3d 635, 387 N.E.2d 751.) In determining the issue of fees and expenses to be awarded, the trial court’s decision will not be disturbed absent a manifest abuse of discretion. Aluminum Coil Anodizing Corp. v. First National Bank & Trust Co. (1978), 64 Ill. App. 3d 256, 259, 381 N.E.2d 301.

Addressing first the refusal of the trial court to award attorney fees for travel time from Chicago to the courthouse in Wheaton, we do not find this to be an abuse of discretion under the particular facts in this case. The only authority Losurdo cites for an award of attorney fees for travel time to court is a general statement to that effect in In re Pine (7th Cir. 1983), 705 F.2d 936. Here, the issues were not complex, requiring an attorney with specialized skills to be employed outside the general area of where the lawsuit was filed. Thus, any additional attorney fees incurred by Losurdo due to the travel time of his chosen attorney beyond that generally incurred by attorneys in the area of the court proceeding was not a reasonable expense for which Arkin is responsible under the provision in the lease making it responsible for reasonable attorney fees. Likewise, the costs requested for mileage were properly denied.

The trial court also refused to allow attorney fees for Losurdo’s initial attorney. The only testimony of his services was that he was paid a $500 retainer fee. While it is apparent that this attorney did file a complaint for forcible entry and detainer and attended a status hearing, no paid bill or testimony itemizing his services, time spent on the case, or hourly rate was submitted. The amount of fees should be determined on the basis of the facts in evidence, rather than upon speculation. (First National Bank v. Barclay (1982), 111 Ill. App. 3d 162, 163-64, 443 N.E.2d 780.) Losurdo had the burden of proving the reasonable value of the legal services rendered. (Fiorito v. Jones (1978), 72 Ill. 2d 73, 95, 377 N.E.2d 1019.) The trial court correctly concluded that there was no evidentiary basis for the reasonableness of the $500 retainer fee.

Losurdo also contends it is entitled to costs incurred for a law clerk’s time spent on the case and duplicating expense. While there is general authority that a law clerk’s services on legal matters are compensable (Fiorito v. Jones (1978), 72 Ill. 2d 73, 89, 377 N.E.2d 1019; Merchandise National Bank v. Scanlon (1980), 86 Ill. App. 3d 719, 727, 408 N.E.2d 248), the only proof of the law clerk's services was that the clerk delivered an amended complaint and notice of motion to opposing counsel for which Losurdo asked for $40 per hour totalling $84. It is apparent that the law clerk was not performing legal work and that the majority of this time was travel. The trial court properly refused to award this request as costs as well as denying a $3 duplicating expense which, unless extraordinary, is normally associated with office overhead expense included within the attorney’s hourly rate.

Finally, we address the issue whether the actual attorney fee of $1,173.75 awarded was arbitrary and inadequate. The attorney fee request was based upon 32.65 hours spent on the case. This was properly itemized in his affidavit. However, deducting from that time, as we concluded above, the five occasions Losurdo’s counsel charged lsk hours on each trip for travel time, the amount of time spent is approximately 24 hours. The comments of the trial court during the fee hearing disclose that it also specifically questioned the necessity of the number of hours spent on a particular portion of the legal services upon which Losurdo’s attorney had been cross-examined. Additionally, the court mentioned the relatively uncomplicated nature of the litigation. These were proper considerations. (See Damac, Inc. v. Whitler (1983), 118 Ill. App. 3d 560, 563, 455 N.E.2d 254.) Having considered the entire record, we conclude the trial judge was not arbitrary and capricious in awarding less than what was sought.

Arldn has not responded in its brief to Losurdo’s request for attorney fees and costs incurred in. the appeal of this case. Where as here, the agreement between the parties expressly provides for the lessee to pay all reasonable attorney fees and costs incurred by the lessor in enforcing the covenants of the lease, we conclude that it applies to such fees and costs on appeal where the lessor is successful in its lawsuit. (Presbyterian Distribution Service v. Chicago National Bank (1962), 36 Ill. App. 2d 1, 5, 183 N.E.2d 525; cf. Mt. Vernon Memorial Estates, Inc. v. Wood (1980), 88 Ill. App. 3d 666, 670, 410 N.E.2d 995.) The amount of the attorney fees and costs on appeal are more properly determined upon a petition and evidentiary hearing in the trial court, and we remand for this purpose. Mt. Vernon Memorial Estates, Inc. v. Wood (1980), 88 Ill. App. 3d 666, 410 N.E.2d 995; cf. Federal Insurance Co. v. Maritime Shipping Agencies, Inc. (1978), 64 Ill. App. 3d 19, 33, 380 N.E.2d 873.

For the foregoing reasons, the judgment is affirmed, and the cause remanded for consideration of attorney fees and costs incurred on this appeal.

Affirmed and remanded with directions.

SEIDENFELD, P.J., and HOPE, J., concur.