author: JUSTICE LINN

text:
    ZAVIE ARTIS, Plaintiff-Appellant, v. FIBRE METAL PRODUCTS, Defendant-Appellee.
    First District (4th Division)
    No. 81—2095
    Opinion filed March 17, 1983.
    Rehearing denied June 28, 1983.
    Richard S. Fleisher, of Karlin and Fleisher, Ltd., of Chicago (David A. Novoselsky, of counsel), for appellant.

      McKenna, Storer, Rowe, White & Farrug, of Chicago (Robert S. Soderstrom and Shaun McParland, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:.

Plaintiff, Zavie Artis, filed a one-count products liability action in the circuit court of Cook County against the defendant, Fibre-Metal Products Co., seeking to recover damages for a spinal injury that he suffered while wearing a safety helmet manufactured by defendant. Following the trial court’s granting defendant’s motion for summary judgment and subsequent refusal to vacate the order, plaintiff appealed.

Plaintiff now argues that the trial court improperly granted summary judgment for defendant because (1) the trial judge improperly focused on the use of the helmet intended by the defendant manufacturer rather than on the performance expected of the product by the general public; (2) the trial judge improperly based his judgment on the “relative credibility” of the expert opinions submitted in support of and in opposition to the motion for summary judgment; and (3) the trial judge improperly failed to consider the evidence of alternative design that plaintiff submitted.

We affirm.

Facts

Plaintiff was an employee of the Chicago Transit Authority. On March 31, 1976, he was assigned to work beneath an elevated train platform. Plaintiff wore a safety helmet manufactured by defendant. A railroad tie weighing about 50 pounds fell a distance of 14 feet and struck plaintiff on the side of the head. The blow forced plaintiff’s head down, causing a flexion injury to his neck and leaving him paralyzed. Plaintiff’s attending physician determined that plaintiff had suffered traumatic quadriplegia as a result of a spontaneously reduced subluxation of the cervical spine at the C5-6 level; plaintiff’s paralysis was not the result of an injury to his head or skull.

On August 29, 1977, plaintiff filed a products liability suit against defendant. Plaintiff’s one-count complaint alleged that the helmet, called a “Supergard,” was defective because it lacked “energy absorption material for noncoronal impact”; that defendant failed to warn plaintiff of the defective condition; and that the condition of the helmet was the proximate cause of plaintiff’s injuries.

The helmet plaintiff wore conformed to the standard promulgated by the American National Standards Institute for industrial safety helmets. The ANSI standard prescribes the amount of force that a helmet must withstand from a blow to the crown; there are no standards dealing with a noncoronal impact such as that suffered by plaintiff in this case. Plaintiffs expert witness, Dr. George Snively, stated in his deposition testimony that he knew of no helmet designed with the intent of protecting the neck; the function of an industrial safety helmet is to protect the wearer’s head and brain.

On July 23, 1980, defendant moved for summary judgment, claiming that the helmet was not defective and therefore not unreasonably dangerous because it performed in the manner to be expected in light of its nature and intended function, which was to protect the wearer’s skull; that no safety helmet in existence could have protected plaintiffs spine from injury under the circumstances of his accident; that the accident that occurred was not reasonably foreseeable and defendant was accordingly not responsible for protecting plaintiff against a blow of such magnitude; and that the danger of being injured if struck by a 50-pound railroad tie falling 14 feet is open and obvious and defendant therefore had no duty to warn plaintiff about it.

In support of its motion defendant submitted depositions of witnesses to the accident, the affidavit of one of plaintiff’s physicians, and the affidavit of defendant’s expert witness, Dr. James McElhany, a professor of biomedical engineering. Dr. McElhany’s opinion was that the helmet worn by plaintiff had performed in the manner reasonably to be expected in light of its nature and intended function in that it “shed the blow of the railroad tie, changing what could have been a fatal impact into a glancing one, thereby successfully protecting plaintiff's brain and skull from the impact.” Dr. McElhany stated further that no existing helmet could have protected against the injury that plaintiff sustained to his neck no matter what its energy-managing properties were.

Plaintiff’s response to defendant’s motion for summary judgment included the deposition of Dr. Snively, in which he stated that had there been “a better handling of the impact energy” by the helmet, plaintiff might have suffered a lesser injury. Dr. Snively testified that a helmet meeting a standard developed in New Zealand would have absorbed more energy from the noncoronal blow. Dr. Snively agreed with Dr. McElhany that the intended function of an industrial helmet is to protect against brain injury; that he knew of no helmet, including the New Zealand helmet, that was designed to protect the wearer’s neck; and that he did not know how much reduction in the force of the blow would have been necessary to prevent plaintiff’s injury.

After hearing oral arguments, the trial judge issued an order on February 27, 1981, entering summary judgment in favor of defendant and against plaintiff. Finding that the intended function of a safety helmet is to protect against head injuries, that the helmet in question had protected plaintiff from brain injury, and that no helmet is made with the intent of protecting the neck, the court held as a matter of law that the helmet was not unreasonably dangerous and that there was no duty on the part of defendant to warn plaintiff against the possibility of spinal injuries.

Plaintiff filed a “motion to vacate and for rehearing,” claiming the trial court’s order was erroneous as a matter of law. Plaintiff also filed several exhibits in support of his motion, including reports on experimental head protective devices and a transcript of testimony by Dr. McElhany in a New Jersey case involving a football helmet. Defendant argued in response that the order was supported by the record and that the new materials submitted could not be considered on a motion to reconsider because they had been available prior to the entry of the February 27, 1981, order. The motion for reconsideration was denied. Plaintiff appealed.

Opinion

When a plaintiff appeals a trial court’s order of summary judgment for the defendant, the only issue on appeal is whether “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1981, ch. 110, par. 57(3).) If the documents to be considered show that there is a genuine issue as to any material fact, summary judgment should not be granted. (Gelsumino v. E.W. Bliss Co. (1973), 10 Ill. App. 3d 604, 295 N.E.2d 110; American National Bank & Trust Co. v. Lembessis (1969), 116 Ill. App. 2d 5, 253 N.E.2d 126.) We believe the issues raised by plaintiff in this appeal as to the nature and intended function of a safety helmet, the weighing of the expert opinions, and the consideration of related matters are really subissues underlying the question of whether any genuine issue of fact has been raised.

In ruling on a motion for summary judgment, the trial judge must construe the pleadings, depositions, and affidavits in the light most favorable to the nonmoving party. (Dakovitz v. Arrow Road Construction Co. (1975), 26 Ill. App. 3d 56, 324 N.E.2d 444.) If fair-minded persons could draw different conclusions from the evidence, the issues should be submitted to a jury to determine what conclusion seems most reasonable. (Silberstein v. Peoria Town & Country Bowl, Inc. (1970), 120 Ill. App. 2d 290, 257 N.E.2d 12.) Conversely, when the evidence indicates that no material issue of fact has been raised, the moving party is entitled to judgment as a matter of law. See, e.g., Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368; Fuller v. Fend-All Co. (1979), 70 Ill. App. 3d 634, 388 N.E.2d 964; Coleman v. Verson Allsteel Press Co. (1978), 64 Ill. App. 3d 974, 382 N.E.2d 36.

In this case, we think the trial judge properly decided that none of the claims advanced by plaintiff stated a cause of action against defendant. We also agree that the new material submitted by plaintiff with his motion to vacate the summary judgment order should not have been considered in view of the fact that the material had been available prior to the filing of the motion and the subsequent issuance of the order. Established principles of products liability law compel us to conclude that none of plaintiff’s arguments serves to raise a genuine issue of fact.

To recover damages from a manufacturer on a products liability theory an injured plaintiff must prove that his injury “resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.” (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182, 188.) In Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401, the supreme court explained that unreasonably dangerous (not reasonably safe) products are those that “fail to perform in the manner reasonably to be expected in light of their nature and intended function.” 42 Ill. 2d 339, 342, 247 N.E.2d 401, 403.

A manufacturer is not required to insure against all foreseeable accidents involving its product. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368; Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1; Curry v. Louis Allis Co. (1981), 100 Ill. App. 3d 910, 427 N.E.2d 254.) A defect in the product must be the proximate cause of the plaintiff’s injury (Suvada v. White Motor Co.; Barr v. Rivinius, Inc. (1978), 58 Ill. App. 3d 121, 373 N.E.2d 1063), and a legal inference of defectiveness may not be drawn merely from evidence that an injury occurred. (Curry v. Louis Allis Co.; Huff v. Elmhurst-Chicago Stone Co. (1981), 94 Ill. App. 3d 1091, 419 N.E.2d 561.) “Strict products liability is not a doctrine of absolute liability entitling any person harmed while using a product to recover from any member of the production and distribution group. It does not make a manufacturer *** an insurer of the consumer’s safety.” Mullen v. General Motors Corp. (1975), 32 Ill. App. 3d 122, 129, 336 N.E.2d 338, 344.

Applying all of these principles to the case at bar, we find inescapable the conclusion that plaintiff has established no entitlement to a recovery from defendant. He has produced no evidence that the helmet was defective, much less that such defect was the proximate cause of his injury. To allege, as plaintiff does, that the protection expected by the consumer, however unreasonable, determines the standard of foreseeable use is irrational; application of such a standard would make the manufacturer of a protective device worn by an injured person an absolute insurer of his product, a result that has been rejected repeatedly by Illinois courts. “Foreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur.” (Winnett v. Winnett (1974), 57 Ill. 2d 7, 12-13, 310 N.E.2d 1, 5.) “[Liability of a manufacturer properly encompasses *** only those situations where the product is being used for the purpose for which it was intended or for which it is reasonably foreseeable that it may be used. Any other approach to the problem results in making the manufacturer and those in the chain of product distribution virtual insurers of the product, a position rejected by [the Illinois Supreme Court] in Suvada." 57 Ill. 2d 7, 11, 310 N.E.2d 1, 4.

Both of the expert witnesses in this case testified that the intended function of a safety helmet is to protect the wearer against head injury. Dr. McElhany testified that the helmet plaintiff wore had performed that function, since plaintiffs injury was to the neck, not the head. In deciding whether to grant summary judgment the trial judge is required by statute to consider the pleadings, depositions, and affidavits filed in support of and in opposition to the motion. (Ill. Rev. Stat. 1981, ch. 110, par. 57(3).) If these documents fail to show any genuine issue of material fact, summary judgment should be granted. Since both of the experts in this case indicated that the nature and intended function of a safety helmet is to protect the head, the trial judge properly found that fair minded persons would agree that the helmet in question was not shown to be defective.

Thus it is clear that there is no merit in plaintiff’s argument that the trial judge improperly based his judgment on the “relative credibility” of the expert witnesses, since he was required by statute to do so. We see no merit in plaintiff’s argument that the trial judge focused on an improper standard of intended use, since the standard the trial judge applied was that established by the documents the statute directed him to consider. Plaintiff cannot establish a legally cognizable defect merely by indicating a preference for a helmet that would provide neck protection. Not only does such a helmet not exist, even if it did, “the availability of an alternative design does not translate into a legal duty in products liability.” Hunt v. Blasius (1978), 74 Ill. 2d 203, 212, 384 N.E.2d 368, 372.

“P]t is the manufacturer’s duty to design a product so that it will be reasonably safe for its intended use and for any reasonably foreseeable use; conversely, the injured plaintiff to prevail must show that the quality of the particular product is insufficient and that the duty of care on the part of the manufacturer required it to design something safer for the user.” (Flaugher v. Sears, Roebuck & Co. (1978), 61 Ill. App. 3d 671, 675, 378 N.E.2d 337, 340.) For all of the reasons discussed above, we are compelled to agree with the trial judge’s finding that plaintiff failed to show that the quality of the helmet manufactured by defendant was insufficient. Accordingly, we hold that summary judgment for defendant was entered properly, and we affirm the judgment of the trial court.

Affirmed.

ROMITI, P.J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    MEYER SCHWACHMAN, Plaintiff-Appellee, v. GREENBAUM MORTGAGE COMPANY et al., Defendants.—(Continental Illinois Realty, Defendant-Appellant.)
    First District (4th Division)
    No. 81—2741
    Opinion filed March 10, 1983.
    Rehearing denied June 30, 1983.

      Arnstein, Gluck & Lehr, of Chicago (Michael R. Turoff and Arthur L. Klein, of counsel), for appellant.
    Joseph L. Goldberg and Marshall Kaplan, both of Kaplan and Kaplan, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Meyer Schwachman, sued defendants, Continental Illinois Realty (CIR), Greenbaum Mortgage Company, Greenbaum Venture Corporation, and Greenbaum Equities Corporation, to recover damages for breach of a promise to provide mortgage loans to purchasers of condominium units in a building owned by Schwachman and his partners. All defendants were voluntarily dismissed except defendant-appellant, CIR. A jury trial resulted in a verdict for plaintiff in the amount of $111,000.

Defendant CIR filed a post-trial motion seeking judgment notwithstanding the verdict or in the alternative a new trial. That motion was denied and this appeal followed.

The issues presented for review are (1) whether plaintiff failed to prove his case and his damages, thus, entitling defendant to a directed verdict; (2) whether the trial court erred in failing to require plaintiff to prove his case by clear and convincing evidence rather than a preponderance of the evidence; (3) whether the promise relied upon by plaintiff was enforceable; and (4) whether the trial court erred in failing to declare a mistrial after certain remarks by plaintiffs attorney.

In the fall of 1972, Meyer Schwachman and his partner, Harold Karp, both real estate developers, proposed the purchase of an apartment building located at 4200 North Marine Drive, in Chicago, for the purpose of condominium conversion. Schwachman and Karp sought help from Greenbaum Mortgage Company in finding a source of financing for the purchase of the building and subsequent end loans. “End loan” is the term used by the parties to describe subsequent mortgage loans to potential buyers of the condominium units.

Greenbaum Venture Corporation, a wholly owned subsidiary of Greenbaum Mortgage Company, was formed for the purpose of carrying out the condominium conversion project in partnership with plaintiff. Plaintiff and his partner, Harold Karp, then entered into a partnership with the newly formed Greenbaum Venture Corporation. Profits from the project were to be divided; 50% to Greenbaum Venture Corporation and 50% to plaintiff and Karp.

Through the efforts of Greenbaum Mortgage Company, plaintiff was introduced to Michael Bailie, a representative of defendant CIR. Defendant was a real estate investment entity that specialized in making short-term loans on real estate projects. Defendant was directed by a group of trustees in California, but Bailie conducted CIR’s business out of a Chicago office. At trial, the parties disagreed as to whether Bailie had the authority to make commitments which were binding upon CIR or whether he was subject to the direction of the trustees for approval of his decisions.

On April 13, 1973, Bailie issued a commitment letter on behalf of CIR agreeing to lend up to $825,000 for two years to the partnership of Schwachman, Karp and Greenbaum Venture for the purchase and conversion of the building at 4200 North Marine Drive. Plaintiff and Karp testified that they told Bailie that they could not undertake the project without a firm commitment for end loan financing. They claim that Bailie promised that CIR would provide end loan financing if such financing could not be procured elsewhere. According to plaintiff, Bailie explained that CIR would provide the end loan financing via the “warehousing method.” That method required defendant to loan the money to a third party, possibly a savings and loan association, who would in turn loan the money to the purchasers of the condominium units. The third party would then refinance the loan and repay defendant within two or three years. Plaintiff testified that it was his understanding that Bailie had complete authority to act in defendant’s behalf in making various loan commitment decisions. Therefore, plaintiff considered defendant bound by Bailie’s promise to provide the end loan financing.

On April 25, 1973, a real estate purchase contract was signed for the purchase of the building. Closing was to take place on or before June 30, 1973. On June 11, 1973, the partnership of Schwachman, Karp and Greenbaum Venture received a letter from Uptown Federal Savings and Loan Association (Uptown), stating that it would entertain mortgage loan applications from bona fide purchasers of condominium units in the project. It appears that none of the parties involved in the project considered the letter to be a binding commitment on Uptown to provide end loan financing. The record is unclear, but it appears that plaintiff and his partners continued to seek a source of end loan financing after receiving the letter from Uptown and prior to the date set for closing the purchase contract.

Plaintiff and Karp testified that based on Bailie’s promise that end loan financing would be made available by defendant, they entered into the mortgage loan agreement with defendant for $825,000 and finalized the purchase agreement for sale of the building in August 1973.

The Uptown letter was withdrawn two weeks after it was issued. Plaintiff claims that Bailie was told of the withdrawal when it occurred. Bailie claims that he first learned of the withdrawal sometime in 1974. By the middle of 1974 it became apparent that the project was unable to get a committed source of end loan financing. According to Bailie, it was at that time that he first discussed the warehousing method of end loan financing and not in April 1973, as plaintiff claims. Bailie claims to have sought permission from his superiors to “explore the possibility” of such financing. He denied making any promises to the plaintiff and his partners.

In August 1974, the trustees of defendant CIR notified Bailie that defendant could not commit itself to end loan financing of the project. This was communicated to plaintiff and his partners. No other source of financing was found, and the partnership was unable to sell the condominium units.

In late 1974, plaintiff and his partners deeded the building to defendant CIR in lieu of foreclosure. The building was later sold by defendant at what it claims was a loss of $474,000. Plaintiff claimed lost profits of $425,000 and out-of-pocket losses of $10,900. Prior to the institution of this lawsuit, Harold Karp assigned his interest in the claim to Schwachman who proceeded as the sole plaintiff.

Defendant first argues that the trial court erred in failing to direct a verdict in response to its motion at the close of all the evidence. It argues that there was never any binding promise by Bailie to obtain end loan financing for the project. Defendant argues that the testimony of plaintiff and Harold Karp should be discredited as self-serving and controverted. Furthermore, under the standard of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, the trial court is obligated to direct a verdict for defendant or, in the alternative, enter a judgment notwithstanding the verdict. Defendant also argues that plaintiff failed to prove damages and is not entitled to the amount awarded by the jury.

Both parties presented evidence on the question of whether Bailie had in fact promised that defendant CIR would provide end loan financing for the project if it could not be procured elsewhere. Plaintiff and Karp testified that they would not have proceeded with the purchase without the promise by Bailie. They claim they knew and made it clear to Bailie that the success of the project depended upon having an available source of end loan financing. Bailie denied giving any assurances regarding such financing. We believe the question of credibility underlies the resolution of this issue. The jury accepted plaintiff’s evidence and rejected defendant’s evidence. We will not disturb the jury’s finding unless it is palpably contrary to the evidence. (La Grange Metal Products v. Pettibone Mulliken Corp. (1982), 106 Ill. App. 3d 1046, 1052, 436 N.E.2d 645, 650.) In the instant case, there was sufficient evidence from which the jury could find that Bailie had promised plaintiff and his partners that defendant would provide end loan financing. The fact that plaintiff and his partners had sought end loan financing from sources other than defendant does not abrogate the evidence which the jury accepted; specifically, that Bailie had made promises on behalf of defendant which were relied upon by plaintiff and his partners.

Defendant’s citation of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, as support for its argument does not strengthen its position. Pedrick has long been recognized as setting the standard in Illinois for granting a directed verdict or judgment notwithstanding the verdict. Verdicts are directed and judgments notwithstanding the verdict are entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the nonmovant, so overwhelmingly favors the movant that no contrary verdict based on that evidence could stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.

We do not find the Pedrick standard applicable to the instant case. Even if we assumed Pedrick to be applicable, the record does not reflect evidence which so overwhelmingly favors defendant’s position as defendant vigorously asserts. Plaintiff and Karp told the jury of a promise by defendant’s agent, which they relied upon. Bailie denied making such a promise. Both sides presented additional evidence in support of their respective positions. The jury accepted plaintiff’s evidence as true. We find no reason to disturb the jury’s verdict.

Defendant also argues that plaintiff failed to prove damages. According to defendant’s reasoning, plaintiff cannot claim damages because the breach of promise placed plaintiff in the same position he would have been in had he not relied on Bailie’s promise. We reject this argument.

Plaintiff presented evidence of his expenditure for converting the building into condominium units. It is uncontroverted that the project failed and that plaintiff never realized the expected profits from the sale of the units. The jury was instructed regarding the specific elements of damages which must be found in order for plaintiff to recover. The jury found from the evidence that the amount of plaintiff’s lost profits could reasonably be ascertained. Accordingly, they made a finding in the amount of $111,000. This is considerably less than plaintiff sought. We cannot say that the jury’s verdict was so manifestly against the weight of the evidence that all reasonably intelligent minds would have reached a different conclusion. (Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 839, 383 N.E.2d 1242, 1254.) The verdict will therefore be allowed to stand.

Defendant next argues that it was error for the trial court to require proof by a preponderance of the evidence rather than by clear and convincing evidence. It is defendant’s contention that plaintiff’s case rests on an oral modification of a written agreement and, therefore, a higher standard of proof is required. We do not agree.

First, defendant’s argument that there was a written agreement which was later modified orally was made at trial and was rejected by the jury. Simply restating it here does not convert it to a proved fact. In order to accept defendant’s argument, we must make a finding de novo that there was a written agreement which was orally modified. We note, however, that defendant did not prove that point at trial. We will not speculate on what issues and methods of proof should have been put before the trial court.

The standard of proof for a jury trial of a civil matter is a preponderance of the evidence. (Spankroy v. Alesky (1977), 45 Ill. App. 3d 432, 435, 359 N.E.2d 1078, 1080.) Defendant has advanced no compelling reasons for departing from this long established standard. We find that the trial court correctly set the standard proof as a preponderance of the evidence.

Defendant next contends that the promise to provide end loan financing was unenforceable. In support of this contention, defendant argues that there was an oral modification of the mortgage loan agreement and such modification violates the statute of frauds. In the alternative, there was no consideration for defendant’s promise to provide end loan financing; therefore, there was no binding agreement.

The jury found that defendant had made a promise to provide end loan financing and that plaintiff relied upon that promise. In our view, the basic and more complex issue is whether there was adequate consideration to make the offer and acceptance of a promise to provide end loan financing a legally binding contract.

Unfortunately, plaintiff’s arguments provide little guidance for the court on this point. In one argument, plaintiff argues that there was no contract and in another argument he argues that there was. Nonetheless, this court recognizes its obligation to address this issue. Accordingly, we have searched the record to determine whether the evidence supports the finding by the trial court that there was a binding agreement and therefore adequate consideration must have existed.

Plaintiff’s argument implies that there was adequate consideration since the offer of end loan financing induced him to enter into the separate mortgage loan agreement with defendant. Defendant claims that plaintiff was already obligated under the mortgage loan agreement and, thus, plaintiff may not claim as adequate consideration an act which he was already legally obligated to perform. We have therefore directed part of our inquiry toward the determination of when the mortgage loan agreement actually occurred.

The record indicates that although a commitment letter to provide a mortgage loan to plaintiff was issued by defendant on April 13, 1973, the actual consummation of the purchase agreement did not take place until sometime in August 1973. It appears that there were continuing negotiations between the parties involved during the period from April 1973 until the closing of the purchase agreement in August 1973. This was after the time of the promise by defendant to provide end loan financing. Prior to the consummation of the mortgage loan agreement there was no legally binding agreement. In fact, the record shows that the commitment of April 13, 1973, was in the form of a letter in which defendant offered to make the mortgage loan provided plaintiff met certain specified conditions, one of which was the procurement of end loan financing. The letter of April 13, 1973, was not a mortgage agreement that was legally binding upon plaintiff. Therefore, the agreement to provide end loan financing must have occurred prior to the execution of the legally binding mortgage loan agreement in August 1973.

At the time of the promise to provide end loan financing, plaintiff had no legal obligation to defendant. All that existed between them was defendant’s commitment to provide a mortgage loan to plaintiff provided plaintiff met a number of requirements, one of which was procuring end loan financing. Thus, to the extent that plaintiff agreed and did indeed enter into the mortgage loan agreement and thereby incurred serious legal obligations thereunder because of defendant’s promise of end loan financing, there was adequate and important consideration given by plaintiff. To reach any other conclusion would require this court to find that the mortgage loan commitment letter became legally binding upon plaintiff while the parties were still in the process of negotiating. Such a conclusion is incompatible with the statute of frauds. Therefore, the promise to provide end loan financing was enforceable.

Defendant next takes issue with the trial court’s failure to grant a mistrial upon defendant’s motion. In support of this, defendant argues that on two occasions plaintiff’s attorney made improper statements in front of the jury. The statements implied that defendant’s attorney had failed to produce certain documents which had been requested by plaintiff’s attorney. Defendant argues that the remarks were prejudicial and, therefore, a mistrial should have been granted. Defendant does not explain how the remarks prejudiced its position.

The record reveals a verbal exchange between the attorneys for both parties concerning production of certain documents. The prejudicial nature of the remarks is not apparent from a reading of the record and defendant has failed to articulate exactly how it was prejudiced by the remarks. We are not in a position to speculate as to what, if any, prejudice resulted from the remarks complained of. We agree with the trial court that the remarks do not rise to the level of prejudicial error and, therefore, defendant’s motion for a mistrial was correctly denied.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

ROMITI, P.J., and JIGANTI, J., concur.


author: JUSTICE McGILLICUDDY

text:
    HAROLD REDDING, Plaintiff-Appellee, v. BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF THE VILLAGE OF OAK PARK, Defendant-Appellant.
    First District (3rd Division)
    No. 81—2176
    Opinion filed March 30, 1983.
    Rehearing denied June 30, 1983.

      Klein, Thorpe & Jenkins, Ltd., of Chicago (Arthur C. Thorpe, of counsel), for appellant.
    Richard F. McPartlin, of Chicago, for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The plaintiff, Harold Redding, filed a complaint for mandamus in which he requested the defendant, Board of Trustees of the Police Pension Fund of the Village of Oak Park, Illinois (Board), to pay him a pension based upon the salary attached to his rank of patrolman for the year prior to his retirement in lieu of the disability pension he had been receiving since 1962. The trial court entered judgment on the pleadings in favor of the plaintiff, and the Board appeals.

The plaintiff joined the police force of the village of Oak Park on March 17, 1956. He subsequently was injured on duty and began receiving a disability pension in April 1962. On April 5, 1978, the plaintiff became 50 years of age. On January 28, 1981, he notified the Board that he elected to receive a regular pension pursuant to section 3 — 111 of the Illinois Pension Code. (Ill. Rev. Stat. 1979, ch. 108½, par. 3—111.) That section provided that a policeman who has creditable service of 20 years or more and has reached age 50 and who is no longer in the service as a policeman shall be entitled to a yearly pension equal to 50% of the salary attached to the rank he held on such police force for one year immediately prior to his retirement. Furthermore, the pension is increased for each additional year of the policeman’s creditable service over 20 years. The plaintiff asserted that he was entitled to credit for 24 years of service in calculating the amount of his pension.

When the Board ignored plaintiff’s request for a regular pension, the plaintiff filed his complaint for mandamus. In its answer the Board affirmatively alleged that the plaintiff retired on permanent disability on March 23, 1962, or in the alternative, on April 5, 1978 (his 50th birthday). Both parties filed motions for judgment on the pleadings. The trial court entered judgment in favor of the plaintiff finding:

“under the provisions of former section 3 — 114 and section 3— 111 of the Illinois Pension Code it is the duty of the defendant Board to pay plaintiff a regular pension in lieu of the disability pension he is receiving, said regular yearly retirement pension to be based upon 24 years of service and at the rate of 58% of the salary attached to the rank of patrolman for the year immediately prior to plaintiffs election to retire on January 28, 1981.”

Before evaluating the Board’s argument that this finding was erroneous, we will first discuss the applicable law concerning a policeman’s pension.

Section 3 — 114 of the Illinois Pension Code provided:

“Whenever a policeman becomes physically or mentally disabled to an extent which necessitates the suspension of his duty on, or retirement from, the police force, he shall be paid a pension of Mz of the salary attached to his rank on the police force for 1 year immediately prior to the time of suspension of duty or retirement. Whenever disability ceases and the policeman resumes his police duty, the pension shall cease. If the disability continues for a period which, when added to his period of active service equals 20 years, the policeman shall, if he is age 50 and if he elects to then retire from the police force, be paid a regular pension in lieu of such disability pension.” (Ill. Rev. Stat. 1971, ch. 1081/2, par. 3-114.)

In People ex rel. Anastasia v. Civil Service Com. (1973), 10 Ill. App. 3d 583, 295 N.E.2d 127, the appellate court held that this section clearly provided that a policeman who received disability payments and then elected to retire would receive a regular pension based on the salary attached to his rank for one year immediately prior to his retirement.

Subsequently, our legislature repealed section 3 — 114 (effective October 1, 1973) and replaced it with new sections that altered the amount a disabled policeman was entitled to receive upon electing to retire. (Ill. Rev. Stat. 1973, ch. 108½, pars. 3 — 114.1, 3 — 114.2, 3— 116.1.) The appellate court discussed the effect of these amendments in Peifer v. Board of Trustees (1976), 35 Ill. App. 3d 383, 342 N.E.2d 131. In Peifer the plaintiff in May 1973 (prior to the effective date of the repeal of section 3 — 114) had requested the pension board to convert his disability pension to a retirement pension. In October 1973 the Board offered the plaintiff a pension based on the recent amendments to the statute. The plaintiff filed a declaratory judgment action to determine his right to elect to retire pursuant to the provisions of section 3 — 114 and to be paid a regular pension under provisions of section 3 — 111. The trial court granted defendant’s motion to dismiss. On appeal, this court held that the amendments could not be used to diminish the retirement benefits for which the plaintiff had become eligible under section 3 — 114. The court stated that to allow such a reduction would violate section 5 of article XIII of the 1970 Illinois Constitution (effective July 1,1971), which provides:

“Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”

In Kraus v. Board of Trustees (1979), 72 Ill. App. 3d 833, 390 N.E.2d 1281, the court stated that section 5 of article XIII of the 1970 Illinois Constitution prohibits legislative action which directly diminishes the benefits to be received by those who became members of the pension system prior to the enactment of the legislation, though they were not eligible to retire. Thus, the police officer in Kraus, who joined the force in 1956, was placed on disability in 1967, and sought to retire in 1976, was entitled to receive a pension based on the relevant sections of the Pension Code in effect at the time the constitution became effective. See also Kuhlmann v. Board of Trustees (1982), 106 Ill. App. 3d 603, 435 N.E.2d 1307.

Applying this precedent to the facts in the instant case, we believe it is clear that the plaintiff, who joined the police force in 1956, has a clear legal right to receive a pension based on the pertinent sections of the Pension Code in effect in 1971 (the year the Constitution became effective).

The Board contends, however, that judgment on the pleadings was improper because a question of fact existed as to whether the plaintiff took a disability leave in 1962 or retired permanently on disability. It is the Board’s position that if plaintiff retired on disability in 1962, he could not retire again in 1980 and receive a regular pension in lieu of a disability pension. In support of this argument the Board cites the following language from People ex rel. Anastasia v. Civil Service Com.:

“A policeman who becomes disabled and is suspended from active duty receives a disability pension based on the salary attached to his rank for one year immediately prior to his suspension from duty. A policeman who becomes disabled and retires from the force receives a retirement pension based on the salary attached to his rank for one year immediately prior to his retirement. A policeman who receives disability payments and then elects to retire receives a regular pension (in lieu of his disability pension) based on the salary attached to his rank for one year immediately prior to his retirement.” 10 Ill. App. 3d 583, 586-87.

We disagree with the Board’s position that if the plaintiff retired on disability in 1962, he cannot now elect to retire and receive a regular pension. Admittedly, section 3 — 114 refers to both a “suspension” of duty on and a “retirement” from the police force because of a disability. However, an examination of the entire statute reveals that a policeman “retired” on disability has not permanently retired from the force. For example, section 3 — 115 provides that “[m]edical examination of a policeman retired for disability shall be made at least once each year prior to attainment of age 50, as a check of the continuance of disability for service as a policeman.” (Ill. Rev. Stat. 1979, ch. IO8V2, par. 3 — 115.) In addition, section 3 — 116 provides that “[i]f any member of the police force who may be retired for disability *** who has been found upon medical examination to have recovered from disability, the Board shall certify to the chief of police that the member is no longer disabled and is able to resume the duties of his position.” (Ill. Rev. Stat. 1979, ch. IO8V2, par. 3 — 116.) If the “retired” policeman’s disability pension can be terminated upon a determination that he is no longer disabled, the policeman certainly has not permanently retired from the force. Thus, whether plaintiff’s absence from the force is characterized as a disability leave or a retirement is irrelevant. He is now entitled to elect to retire permanently and to receive a regular pension in lieu of his disability pension.

Section 3 — 111 of the Illinois Pension Code established the method for calculating a regular pension (Ill. Rev. Stat. 1971, ch. lOB1^, par. 3 — 111): the policeman receives 50% of the salary attached to the rank he held for one year immediately prior to his retirement. The Board contends that the amount of the pension should be fixed at the time plaintiff became eligible for retirement at age 50 (April 5, 1978), not at the time plaintiff elected to retire (January 28, 1981). In support of this argument the Board relies on the following language in section 3 — 114:

“If the disability continues for a period which, when added to his period of active service equals 20 years, the policeman shall, if he is age 50 and if he elects to then retire from the police force be paid a regular pension in lieu of such disability pension.” (Emphasis added.) Ill. Rev. Stat. 1971, ch. lOS1^, par. 3-114.

This argument was considered and rejected by this court in a second Peifer decision. (Peifer v. Board of Trustees (1978), 57 Ill. App. 3d 102, 372 N.E.2d 1106.) The court referred to the Anastasia decision which stated: “Nothing in the statute indicates that the regular pension (as opposed to a disability pension) paid an electing policeman is to be computed in a way different from the pension paid to any other retiring policeman.” (10 Ill. App. 3d 583, 587.) The court concluded that to give effect to this legislative intent, it would treat the word “then” in section 3 — 114 as mere surplusage.

The Board urges us to reconsider this holding in light of a recent supreme court decision, Arnold v. Board of Trustees (1981), 84 Ill. 2d 57, 417 N.E.2d 1026. In Arnold the court stated that there is a strong presumption against finding statutory language to be mere “surplusage.” (84 Ill. 2d 57, 62.) In Arnold, however, the court was discussing an interpretation of a three-paragraph provision which would render two paragraphs meaningless and superfluous. However, it is well established that if the main intent of the statute can be determined, words may be declared mere surplusage to give effect to the legislative intent. (People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447.) We agree with the second Peifer decision that it was not the intent of the legislature to calculate a disabled policeman’s retirement pension differently from the method used for any other retiring policeman.

The Board next contends that the trial court incorrectly found that the plaintiff was entitled to a length of service bonus. Pursuant to section 3 — 111, a pension is increased for each additional year of the policeman’s creditable service over 20 years. (Ill. Rev. Stat. 1971, ch. ÍOS1^, par. 3 — 111.) Creditable service is defined as:

“the time served by a policeman as a member of a regularly constituted police force of a municipality. In computing creditable service *** all periods of disability retirement for which a policeman has not received any disability pension payments under Section 3 — 114 of this Article shall be counted.” (Emphasis added.) Ill. Rev. Stat. 1971, ch. ÍOS1^, par. 3 — 110.

In Kuhlmann v. Board of Trustees (1982), 106 Ill. App. 3d 603, 435 N.E.2d 1307, the court held that the plain meaning of section 3— 110 is that a pensioned period of disability is not creditable service. The court noted that although section 3 — 114 specifically allows time on disability pension to be counted toward the 20 years of service needed for retirement, it did not label such time “creditable service.”

We agree with the holding in Kuhlmann and, therefore, modify the trial court’s finding. We find that the plaintiff is entitled to a pension at the rate of 50% of the salary attached to the rank of patrolman for the year immediately prior to plaintiff’s election to retire on January 28, 1981. The judgment order of the trial court is modified to reflect this amended finding.

Finally, the Board argues that the plaintiff was not entitled to a writ of mandamus because he did not have a clear legal right to all the relief requested in his complaint, i.e. the length of service bonus. We find no merit in this argument. Although plaintiff’s complaint sought some relief the trial court could not grant, the remainder of his complaint was not rendered insufficient since he sought other relief to which he was clearly entitled. (See McCoy v. Stockler (1976), 38 Ill. App. 3d 1012, 350 N.E.2d 197.) As we have previously discussed, the plaintiff possessed a clear legal right to receive a retirement pension in lieu of his disability pension.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed as modified.

Affirmed as modified.

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


author: JUSTICE KASSERMAN

text:
      In re WRITTEN CHARGES AGAINST JOHN W. CROTTY OF THE POLICE DEPARTMENT OF THE VILLAGE OF EAST ALTON—(John W. Crotty, Petitioner-Appellant and Cross-Appellee, v. Board of Fire and Police Commissioners of the Village of East Alton, Defendant-Appellee and Cross-Appellant).
    Fifth District
    No. 82—101
    Opinion filed May 11, 1983.

      David L. Blunt, of Paul L. Pratt, P.C., of East Alton, for appellant.
    James Schrempf, of Alton, and Thomas F. McGuire, of Long Grove, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

John W. Crotty appeals from the denial of his complaint for administrative review in the circuit court of Madison County. In his complaint, Crotty alleged that he was wrongfully discharged from his position as sergeant of police of the village of East Alton, Illinois, by defendant, Board of Fire and Police Commissioners of the village of East Alton (the Board). The Board has cross-appealed, contending that the circuit court was without jurisdiction of the cause due to Crotty’s failure to timely commence administrative review as required by section 4 of the Administrative Review Act (the Act) (Ill. Rev. Stat. 1979, ch. 110, par. 267).

The Board discharged Crotty by order dated November 17, 1979. An affidavit by counsel for the Board, which is included in the record on appeal, states that a copy of the November 17, 1979, order was hand-delivered by the affiant to Crotty or his counsel on the same date. That statement is not contradicted of record. On November 27, 1979, Crotty filed his motion in the circuit court for an extension of time in which to file his complaint for administrative review. The motion recited the date and nature of the Board’s order of November 17, stated that no transcript of the hearing before the Board was available, and alleged that Crotty could not “adequately perfect his Appeal” of the Board’s decision without access to a transcript. The motion sought an extension of 35 days from the date upon which the transcript was received in which to file the administrative review complaint. The motion did not refer to the issuance of a summons. The record indicates that a copy of the motion for extension of time was served upon both Police Chief George Michael Urban and counsel for the Board on November 26, 1979. The circuit court’s order granting the extension was filed November 29, 1979. Crotty’s complaint for administrative review was filed in the circuit court on May 30, 1980. Summons issued June 13, 1980. The Board and Chief Urban moved to dismiss Crotty’s petition as being untimely. The Board sought leave to appeal to this court from the denial of its motion to dismiss. Leave to appeal was denied. After a hearing, Grotty’s discharge was affirmed; and this appeal followed.

The Board urges that the trial court did not have jurisdiction of the cause because of plaintiffs failure to comply with section 4 of the Act.

Section 4 of the Act provides in part:

“Commencement of action. Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Ill. Rev. Stat. 1979, ch. 110, par. 267.)

Unless review is sought “within the time and in the manner” provided in the Act, the parties to the proceeding before the administrative agency are “barred from obtaining judicial review” of such decision. Ill. Rev. Stat. 1979, ch. 110, par. 265.

The 35-day limit for filing a complaint for administrative review has been held to be jurisdictional. (People ex rel. Olin Corp. v. Department of Labor (1981), 95 Ill. App. 3d 1108, 1111, 420 N.E.2d 1043, 1046; Hoffman v. Illinois Department of Registration & Education (1980), 87 Ill. App. 3d 920, 924, 410 N.E.2d 291, 293.) Further, the Act being an innovation and departure from the common law, the procedures it establishes must be pursued in order to justify its application. (Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 595, 95 N.E.2d 864, 869.) One of the purposes of the Act was to eliminate conflicting and inadequate common law remedies for the judicial review of decisions of administrative agencies and the substitution therefor of a single uniform and comprehensive remedy. People ex rel. Goldfarb v. White (1964), 54 Ill. App. 2d 483, 491, 203 N.E.2d 599, 603.

We conclude that the proper interpretation of section 4 of the Act, in light of the above authorities, is that the motion for extension of time in which to file a complaint for administrative review and the granting thereof did not effectively extend the time for the jurisdictional requirement of the filing of the complaint and the issuance of summons. The circuit court should have dismissed the complaint upon the Board’s motion. Cf. Smith v. Toman (1938), 368 Ill. 414, 419-20, 14 N.E.2d 478, 481 (observing in dictum that where the very enactment which creates the cause of action provides in express terms for the period of its existence, such period is not a statute of limitations, the court having no power to extend its life).

Crotty relies upon Supreme Court Rule 183 as authorizing an extension of time in which to file a complaint for administrative review. (87 Ill. 2d R. 183.) Rule 183, which is expressly applicable to the Act (87 Ill. 2d R. 291(d)), permits a court for good cause shown to extend the time for filing any pleading or the doing of any act which is required “by the rules” to be done within a limited period. However, we know of no authority for application of Rule 183 to the initial institution of proceedings in administrative review or otherwise. To the contrary, it appears that Rule 183 is intended to apply to suits already commenced and in existence, as evidenced by Rule 183’s reference to “notice to the opposite party.” There can be no “parties” to a suit not yet commenced. Further, Rule 183 permits the extension of the time for filing any pleadings or the doing of any act required by the rules. The specified time for the commencement of every action for review of an administrative decision is a statutory enactment and not a supreme court rule; therefore, Rule 183 is not applicable in the manner suggested by plaintiff. Cf. Supreme Court Rule 1 (87 Ill. 2d R. 1); Stephens v. Kasten (1943), 383 Ill. 127, 134, 48 N.E.2d 508, 511.

Additionally, Rule 183 requires that an extension granted be for “good cause shown.” Good cause was not shown here. Unavailability of the transcript could not be good cause, because it was the Board’s duty to file the transcript as a part of its answer on Grotty’s request. (Ill. Rev. Stat. 1979, ch. 110, pars. 270, 272(b).) No other cause is suggested by Crotty.

A fundamental defect in the motion for extension of time and the order granting it is the failure of either to satisfactorily account for the absence of service of the summons as required by section 4 of the Act. (Ill. Rev. Stat. 1979, ch. 110, par. 267.) Crotty argues that if the Board filled Grotty’s position on the police force prior to his complaint, such was done with ample notice of his intent to fight for his job before a circuit judge. We believe that under section 4 of the Act, the opposite is true. When 35 days passed and the Board still had not been served with summons and a copy of a complaint, the Board was entitled to conclude that its decision to discharge Crotty was final. It has been held that the failure to meet the deadline for issuance of summons by as little as one day requires dismissal of a complaint for administrative review. Cox v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 704, 709, 437 N.E.2d 1277, 1281.

Crotty also argues that the Board waived the issue of compliance with section 4 of the Act by entering general appearances in the trial court. However, as we have observed, the infirmity in this regard in the case at bar is jurisdictional. Unlike personal jurisdiction, subject matter jurisdiction cannot be waived. Volkmar v. State Farm Mutual Automobile Insurance Co. (1982), 104 Ill. App. 3d 149, 151, 432 N.E.2d 1149, 1151.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed; and, by virtue of our authority under Supreme Court Rule 366(a)(5) (87 Ill. 2d R. 366(a)(5)), plaintiff’s complaint is dismissed.

Reversed and complaint dismissed.

JONES and KARNS, JJ., concur.


author: JUSTICE WELCH JUSTICE KASSERMAN, JUSTICE JONES,

text:
    MARSHALL FOSTER, Plaintiff-Appellee, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellant.
    Fifth District
    No. 82—471
    Opinion filed May 23, 1983.
    KASSERMAN, J., specially concurring.
    JONES, J., dissenting.
    James P. Daley and George H. Brant, both of Chicago, for appellant.
    Roy W. Strawn and Paul L. Pratt, P.C., both of East Alton, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

We granted defendant’s petition for leave to appeal under the provisions of Supreme Court Rule 306(a)(1)(ii) (87 Ill. 2d R. 306(a)(l)(ii)) from an order of the trial court which denied defendant’s motion to dismiss plaintiff’s complaint for forum non conveniens.

Relevant facts are gathered from the pleadings and the exhibits attached thereto. Plaintiff is an employee of defendant railroad. His complaint for damages for personal injury was filed in Madison County, Illinois. It alleges that on July 28, 1981, he was injured while on the job at defendant’s Clinton, Iowa, car shops and that such injuries were compensable under the provisions of the Federal Employers’ Liability Act (FELA) (45 U.S.C. sec. 51 et seq. (1976)). Plaintiff is, and was at the time of his alleged injury, a resident of Clinton, Iowa, which is 270 miles distant from Edwardsville, the county seat of Madison County. Defendant railroad is a Delaware corporation with its principal office in Chicago. It has tracks and facilities in both Clinton, Iowa, and Madison County, Illinois, and conducts business at both places. Three witnesses who could testify regarding the accident are William Marcum of Fulton, Whiteside County, Illinois, a city across the Mississippi River from Clinton; Paul Heister of Maquoketa, Iowa, a city approximately 35 miles northwest of Clinton; and L.A. Bengston of Clinton. Following the accident, plaintiff received medical treatment and, subsequently, underwent an operation upon his back. Five doctors were involved in plaintiffs post-accident treatment, one at Davenport, Iowa, three at Dubuque, Iowa, and one at Clinton. Plaintiff’s attorney has his office in Madison County, Illinois. Information concerning the time and expense of traveling from Clinton, Iowa, to Edwardsville, Illinois, was furnished by defendant as well as information regarding case filings and dispositions in the circuit court of Madison County. There is some indication in the record that a rehabilitation expert from Chicago would testify for plaintiff at trial.

In its order denying defendant’s motion, the trial court found:

“1. That Clinton, Iowa is about 270 miles from the county seat of Madison County, Illinois, and that such distance in this case would not be unduly burdensome.
2. That the only eyewitness to the accident which is the subject matter of the lawsuit resides in Fulton, Illinois. That a rehabilitation expert from Chicago is likely to be a witness. That defendant’s attorneys and John H. Caster, who signed defendant’s affidavit attached to their motion are all from Chicago. That plaintiff’s attorneys are from Madison County, Illinois. That Madison County would not appear to be substantially less accessible than the forum suggested by the defendant. [Clinton, Iowa or Whiteside County, Illinois.]
3. That a view of the scene of the occurrence would mean nothing to the jurors and it is not claimed to be an important factor by any of the parties to this case.
4. That the inventory of cases in the category of this case (law over 15,000-Jury) in Madison County is reducing in the last three (3) years, and that there is no hardship or congestion created by this lawsuit having been filed in Madison County.
5. That considering the foregoing, and the argument of counsel, their briefs and affidavits, and the cases cited and criteria to be considered, the motion should be denied.”

Upon the foregoing facts, the parties base their arguments in favor of and in opposition to the motion. The principal cases cited and discussed in the briefs are Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 427 N.E.2d 111, People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 383 N.E.2d 977, cert. denied (1979), 441 U.S. 932, 60 L. Ed. 2d 660, 99 S. Ct. 2052, Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 301 N.E.2d 729, Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839, and Louisville & Nashville R.R. Co. v. Beatty (7th Cir. 1980), Nos. 80-2604, 80-2605 and 80-2606 (unpublished order). We have examined this case according to the principles discussed in these authorities and conclude that the trial court did not abuse its discretion in denying the defendant’s motion to dismiss.

Our supreme court has stated that unless the balance of relevant factors to be analyzed in a motion to dismiss on forum non conveniens grounds lies strongly in favor of the defendant, the plaintiff’s selection of a forum should not be disturbed. (Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 119, 123, 427 N.E.2d 111, 115, 117.) Among those factors are the relative ease of access to possible sources of proof, the availability of compulsory process, the cost of transportation for witnesses, and the possibility of view of premises, should it be appropriate, as well as the congestion of the court system selected by the plaintiff. Espinosa; Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843.

In Espinosa, it was held that the facts presented in that case would have compelled dismissal of the action on forum non conveniens grounds had all relevant information been presented to the trial court. There, the accident which was the subject of the plaintiff’s FELA action took place 530 miles from Edwardsville, where he filed suit. No witnesses were subject to Illinois subpoenas and the supreme court took notice of statistics indicating an increasing time period required to litigate a case in the circuit court of Madison County.

By way of contrast, the accident in the case at bar took place approximately half as far from Edwardsville as did the accident in Espinosa. Moreover, a potentially significant occurrence witness resides in Illinois, and the defendant’s principal office, another possible source of information, is located in this State as well. While we acknowledge that this action was brought in the same circuit court found in Espinosa to be subject to a “very serious” delay in processing cases, and that the Iowa forum is available to the plaintiff, the balance of factors is not nearly as strongly in favor of the defendant as it was in Es pinosa. We cannot say that this balance so strongly favors the defendant that the trial court’s decision to enforce the plaintiff’s choice of forum was an abuse of discretion. Accordingly, its order is affirmed and this cause is remanded to the circuit court of Madison County for further proceedings on the plaintiff’s complaint.

Affirmed and remanded.

JUSTICE KASSERMAN,

concurring:

Although I concur in the results reached by the author of the opinion in this cause, it is my opinion that the courts have failed to adequately protect an injured worker’s prerogative to select a forum in suits filed under the Federal Employers’ Liability Act (FELA) (45 U.S.C. sec. 51 et seq. (1976)) and the Jones Act (46 U.S.C. sec. 688 (1976)). Both Federal statutes purport to grant an injured employee unlimited authority to select the forum for his suit against his employer.

Historically, this court has recognized that a litigant’s right to select a forum under both the FELA and the Jones Act are subject to the application of the doctrine of forum non conveniens. However, it has also been recognized that this right cannot be overcome by a mere balance of convenience. See Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 152 N.E.2d 634, as limited by People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178, 195 N.E.2d 634; McKinney v. Hougland Towing Co. (1969), 109 Ill. App. 2d 99, 248 N.E.2d 322.

Defendant relies on Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 427 N.E.2d 111, in support of its argument that venue should have been declined by the trial court; however the supreme court there recognized that “plaintiff’s right to select the forum is a substantial one which *** should not be disturbed unless the balance strongly favors defendant.” 86 Ill. 2d 111, 123, 427 N.E.2d 111, 117.

It is noteworthy that in addressing this issue in recent cases, the courts uniformly have relied on Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839, and People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90, 383 N.E.2d 977, cert. denied (1979), 441 U.S. 936, 60 L. Ed. 2d 660, 99 S. Ct. 2052. Defendant in the instant case urges that these two decisions require a reversal of the trial court. In this regard, however, both Gilbert and Giliberto reasonably could be said to afford a plaintiff less freedom in selecting a forum because neither was a case arising under either the FELA or Jones Act. When consideration is given to a plaintiff’s statutory right to select a forum under either the FELA or the Jones Act, even more deference should be given to his selection of the forum. This rationale has been adopted by courts in the past when they have spoken of the need for sheltering defendants against vexation and harassment when determining the propriety of a forum that has been selected by the plaintiff in a FELA or Jones Act suit. It is my opinion that a plaintiffs selection of venue should not be disturbed unless it can be shown that plaintiff would thereby be granted some advantage at trial.

Additionally, underlying most appeals resulting from the trial court’s refusal to decline jurisdiction in FELA and Jones Act cases is the inference, at the very least, that plaintiff is guilty of “forum shopping.” The plain answer to such a contention is, in my opinion, well stated by our supreme court in Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 152 N.E.2d 385, where the court stated:

“If it is ‘shopping’ for a plaintiff to bring suit in a great metropolis where a large verdict is anticipated, why is it not also ‘shopping’ for a defendant to attempt to have the case dismissed on the ground that it should have been brought in a small community where the defendant anticipates a smaller verdict would result.” (14 Ill. 2d 144,174, 152 N.E.2d 385, 400.)

It is my conclusion that such considerations should have no place in determining the issue raised by the instant appeal.

Finally, in the numerous interlocutory appeals that have resulted from the issue raised in the instant case as well as the recent decisions on such issues, great pains have been taken to provide administrative data designed to indicate that the forum selected by the plaintiff results in an undesirable amount of litigation in the county selected. The paucity of appeals by plaintiffs in cases where the trial court has declined jurisdiction of FELA and Jones Act cases seems to suggest that such cases are not creating an unmanageable case load in the eyes of the resident judiciary.

Therefore, although I concur with the decision reached by the author of the opinion in the case at bar, for the reasons stated above, I would emphasize that plaintiff’s choice of forum should not be disturbed in the absence of a showing of some resulting trial advantage to plaintiff.

JUSTICE JONES,

dissenting:

I respectfully dissent.

This case is so closely akin upon its facts to Espinosa that if the names of the parties and the locale of the accident were substituted, the Espinosa opinion would serve as the opinion in this case and would conclude with a finding that the denial of the motion to dismiss upon forum non conveniens grounds constituted a breach of discretion.

In my opinion the majority and specially concurring opinions have overlooked the salient feature in the Espinosa opinion. That feature is the concern, which arises from public policy considerations, for the burden being placed upon Illinois courts, particularly that of Madison County, by the crescendo of FELA and Jones Act cases filed by nonresidents.

“Courts generally have shared a concern ‘in protecting finite judicial resources’ and the efficient functioning of their judicial systems, so that they are not impeded by nonresident litigation to the extent that their availability to local citizens is impaired or diminished. [Citations.]” (Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 121-22, 427 N.E.2d 111, 116.)

The court in Espinosa was mindful of the concern expressed in the majority and specially concurring opinions for the relevant factors in the selection of a forum that were set forth in Gulf Oil Corp. v. Gilbert, including the distance from the situs of the accident to the forum and the plaintiff’s right of selection. But even a cursory reading of the case shows that the factors expressed in Gulf Oil Corp. v. Gilbert were of secondary concern in the court’s decision. After discussing those factors the court said,

“But those rights, important as they are, cannot be permitted to override the public interest in, and need for, an orderly, efficiently operated judicial system. [Citations.]” 86 Ill. 2d 111, 123-24, 427 N.E.2d 111, 117.

The supreme court in Espinosa buttressed the public policy basis of its decision with certain statistics relating to the filing, disposition, lapse of time between filing and jury verdict, and backlog of law jury cases over $15,000 for Madison County as reported by the Administrative Office of Illinois Courts to the supreme court. It noted the increasing length of time between filing and jury verdict and concluded on the point by relating that the unpublished figures for 1980 show an increase in the time lapse to 32.4 months. This figure can now be updated with the 1981 report of the Administrative Director, which shows that Madison County law jury cases over $15,000 had an average time lapse between filing and jury verdict of 34.0 months. (Administrative Office of the Illinois Courts 1981 Annual Report to the Supreme Court of Illinois, at 166.) At pages 130 and 131 of the same 1981 report, it is shown that for law jury cases of $15,000 Madison County inventory increased by 719 and that for all cases of all types the Madison County inventory increased by 1,779.

Quotation of the statistics alone suffices to explain the reason for the holding in Espinosa. The circuit court of Madison County, along with many other Illinois courts, is being inundated with cases. The Illinois judicial system is scarcely able to cope with the cases of its own citizens. Cases of distant origin filed in Illinois courts by citizens of other States command much time and attention of our judicial resources, divert a large amount of Illinois taxpayers’ dollars to their resolution, and require the services of many jurors, all for cases that have little or no connection with Illinois citizens. As the court said in Espinosa:

“In these times of constantly increasing litigation (the 1979 Administrative Director’s report indicates a total of 3,831,957 cases filed in this State [for 1981 the figure is 4,256,758] as contrasted with 3,464,747 in 1976 or an increase of nearly 100 cases per judge), delay in disposing of cases is a critical factor. It is, of course, elementary that, as more cases are filed, delay in disposition will increase unless facilities and personnel are also increased. And, if facilities and personnel are increased, budgets, appropriations and taxes must likewise expand.” 86 Ill. 2d 111, 122, 427 N.E.2d 111, 116-17.

An update of the statistics on court backlog and case dispositions render even more telling the following language from Espinosa:

“[W]e believe the filing and trial of this action in Madison County imposed an additional and unwarranted burden upon its judicial system and its taxpayers. The added burden of a single case is, of course, not great, but we have before us the fact of the filing of a substantial volume of cases involving nonresident plaintiffs and out-of-State injuries.” (86 Ill. 2d 111, 121, 427 N.E.2d 111, 116.)

In addition to the burden upon the circuit court, the “unwarranted burden” has now been imposed upon this court and, in view of the disposition made by the majority and the specially concurring opinions, the same “unwarranted burden” will necessarily be imposed upon the supreme court. In this same vein, it is safe to say that the impact of the filing of cases involving nonresident plaintiffs and out-of-State injuries upon our appellate and supreme courts has been profound. The time devoted to such cases by the Illinois Supreme Court has necessarily resulted in the denial of review of cases of Illinois citizens.

I would dismiss plaintiff’s complaint on grounds of forum non conveniens.


author: JUSTICE JONES

text:
      In re ESTATES OF ALBERIC BERNARD AZEVEDO et al., Minors.—In re MARRIAGE OF MARIE LOUISE AZEVEDO, Petitioner-Appellee, and ALLAN BOSCO AZEVEDO, Respondent-Appellant.
    Fifth District
    No. 82—266
    Opinion filed May 23, 1983.

      Mark A. Hamrock, of Murphysboro, for appellant.
    William G. Schwartz, of Hunter and Schwartz, of Carbondale, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This appeal is taken from an order directing the respondent, Allan Azevedo, to pay a portion of the attorney fees incurred in the representation of his minor child in a guardianship proceeding. The respondent initiated the proceeding in question to gain custody of his children following the death of his former wife, who had been granted custody of the children upon the dissolution of their marriage. The trial court, taking judicial notice of the dissolution proceeding in the same court, consolidated it with the instant guardianship proceeding for purposes of hearing and, at the conclusion of the matter, assessed attorney fees against the respondent for the minor’s court-appointed attorney pursuant to section 506 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 506). On appeal from this order, the respondent contends that the court erred in awarding fees under this provision rather than under the Probate Act of 1975, whereby the attorney fees would have been taxed as part of the probate proceeding and paid out of the minor’s estate. (See Ill. Rev. Stat. 1981, ch. lHR/z, par. 27 — 4.) We find, upon consideration of the applicable provisions, that the court acted properly in assessing the instant fees, and we accordingly affirm the order of the trial court.

Respondent and his wife, Marie Azevedo, were granted a dissolution of marriage on May 8, 1980, in the circuit court of Jackson County. Marie Azevedo received permanent custody of the four minor children of the marriage, and this custody arrangement continued until her death on April 1, 1981.

On April 30, 1981, respondent filed a petition in the Jackson County circuit court for guardianship of the estate and person of the four children, including Alberic Azevedo, who was 13 years of age at the time. On May 8, 1981, Gladys D’Souza, a sister of Marie Azevedo, filed a petition to intervene in that proceeding in which she alleged that Alberic Azevedo had been residing with her since his mother’s death and that he did not wish to reside with his father or have his father appointed as his guardian. By her petition Gladys D’Souza sought to be appointed guardian of the estate and person of Alberic Azevedo.

On May 26, 1981, the trial court entered an order in which it took judicial notice of the previous dissolution proceeding of Allan and Marie Azevedo and consolidated it with the guardianship proceeding before it for purposes of hearing. The court noted as the basis of its decision “the many conflicts and the contested nature of [the] divorce proceeding including the alleged problem between Alberic B. Azevedo and Allan Azevedo.” The court felt that since the respondent’s petition for guardianship of the person of Alberic Azevedo involved many of the same issues as the custody determination in the dissolution action, these issues should be heard together. Pursuant to the court’s order, all subsequent hearings in the matter were called and heard under both case titles.

The court determined that the minor Alberic Azevedo was in need of legal representation in the proceeding and appointed attorney William Schwartz to represent him both as attorney in the dissolution case and as guardian ad litem in the guardianship proceeding. Mr. Schwartz represented Alberic Azevedo in numerous court appearances and in contacts with relatives and with the Catholic Social Services director who was subsequently appointed guardian for Alberic Azevedo.

After hearing evidence regarding the services and expenditures made on behalf of Alberic Azevedo, the court awarded Mr. Schwartz reasonable attorney fees and expenses in the amount of $2,586.35. The court then reviewed the assets of the estate of Alberic Azevedo, the assets of the estate of Marie Azevedo and the financial resources of respondent Allan Azevedo and ordered that Mr. Schwartz' attorney fees be prorated between his duties as guardian ad litem under the Probate Act of 1975 and as attorney under the Illinois Marriage and Dissolution of Marriage Act. Accordingly, the court ordered the estate of Alberic Azevedo to pay partial attorney fees and expenses of $500 and ordered the respondent to pay the balance of the fees in the amount of $2,086.35.

On appeal from this order, the respondent contends that the trial court erred in assessing attorney fees against him pursuant to section 506 of the Illinois Marriage and Dissolution of Marriage Act, where his petition for guardianship of his minor son was filed solely under the provisions of the Probate Act of 1975 (see Ill. Rev. Stat. 1981, ch. IIOV2, par. 11 — 1 et seq.). The respondent maintains that while the appointment and payment of an attorney under section 506 would be proper in a change-of-custody proceeding under the Illinois Marriage and Dissolution of Marriage Act (see Ill. Rev. Stat. 1981, ch. 40, par. 610), this provision was inapplicable to the instant proceeding under the Probate Act of 1975. Rather, the respondent contends, the entire amount of the fee award in the instant guardianship proceeding should have been taxed against the minor’s estate pursuant to section 27 — 4 of the Probate Act of 1975.

Section 506 of the Illinois Marriage and Dissolution of Marriage Act provides:

“Representation of Child. The court may appoint an attorney to represent the interests of a minor or dependent child with respect to his support, custody and visitation. The court may also appoint such attorney to serve as the child’s guardian-adlitem. The court shall enter an order for costs, fees and disbursements in favor of the child’s attorney and guardian-ad-litem, as the case may be. The order shall be made against either or both parents, or against the child’s separate estate.” (Emphasis added.)

Under the comparable provisions of the Probate Act of 1975, a guardian ad litem may be appointed to represent a minor “[i]n any proceeding for the appointment of a guardian.” (Ill. Rev. Stat. 1981, ch. lKP/a, par. 11 — 10.1.) Payment, however, is made pursuant to section 27 — 4, which provides:

“A guardian ad litem or special administrator is entitled to such reasonable compensation *** to be taxed as costs in the proceedings and paid in due course of administration.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. llO1^, par. 27 — 4.

While the respondent argues on appeal that the proceeding in question was solely a probate matter to be governed by the provisions of the Probate Act of 1975, the proceeding was essentially a means of resolving a child custody dispute and, as such, came within the scope of the court’s traditional equitable jurisdiction over such matters. (See Cowles v. Cowles (1846), 8 Ill. (3 Gilm.) 435; People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286, 215 N.E.2d 806.) Moreover, as the court of decision in the prior dissolution action, the instant court had the continuing power and obligation to oversee the welfare and best interests of the minor children of that marriage. (In re Custody of Sexton (1981), 84 Ill. 2d 312, 418 N.E.2d 729.) Thus, the respondent’s petition for guardianship, while filed pursuant to the provisions of the Probate Act of 1975, necessarily brought before the court the proceedings already had in the dissolution case touching upon the custody of the minor, and it was not improper for the court to have consolidated the cases for any disposition entailed by the respondent’s petition. The court’s award of attorney fees under the Illinois Marriage and Dissolution of Marriage Act was a consequence of that consolidation and can therefore be justified as part of the proceedings under that Act.

As the respondent acknowledges in his brief, he could have sought custody of his minor children in the instant case by filing a petition under section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 610) rather than under the guardianship provisions of the Probate Act of 1975. Section 610 provides for the modification of a child custody judgment upon a proper showing, and it goes without saying that the death of the custodial parent in this case constituted a change requiring a modification of the custody decree. (See Sholty v. Sholty (1966), 67 Ill. App. 2d 60, 214 N.E.2d 15.) The fact that the respondent elected to proceed under the Probate Act of 1975, however, was not determinative of the court’s power and did not serve to divest the court of its jurisdiction or its obligation toward the minor that arose in the dissolution proceeding. The instant court was not bound by the form of the proceeding initiated by the respondent, and it properly looked to the substance of the action before it in making its determination. Cf. Parker v. Parker (1948), 335 Ill. App. 293, 81 N.E.2d 745 (court must consider substance of action for child support irrespective of pleading formalities); see also Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 360 N.E.2d 386.

While the court’s award of attorney fees in the instant case could be justified as an incident of its inherent power in child-custody matters (see Zalduendo v. Zalduendo (trial court could award attorney fees under same plenary equitable powers authorizing it to make such orders as are necessary for the support of the child)), we believe the instant fee award was also warranted under the express terms of section 506. That section provides for the appointment and payment of an attorney to represent the interests of a minor child “with respect to his support, custody and visitation.” This language does not limit the application of section 506 to post-decree custody proceedings under section 610 of the Illinois Marriage and Dissolution of Marriage Act but, rather, includes child-custody proceedings initiated under other statutes that come within the scope of the court’s jurisdiction under section 601 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 601).

Section 601(b)(l)(ii) specifically provides that “[a] child custody proceeding is commenced in the court (1) by a parent, by filing a petition * * * (ii) for custody of the child ***.” (Ill. Rev. Stat. 1981, ch. 40, par. 601(b)(1)(H).) The authors of the Historical and Practice Notes accompanying this section point out that a child custody proceeding can be initiated, independent of any action for dissolution, under the Probate Act of 1975, as well as under the Habeas Corpus Act (Ill. Rev. Stat. 1981, ch. 110, par. 10 — 101 et seq.) and the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 1 et seq.). (Ill. Ann. Stat., ch. 40, par. 601, Historical and Practice Notes, at 7, 8 (Smith-Hurd 1980).) Thus, even if the instant guardianship proceeding is characterized as a new action under the Probate Act of 1975 rather than as a continuation of the prior dissolution proceeding, the respondent can be said to have invoked the provisions of the Illinois Marriage and Dissolution of Marriage Act by his petition for guardianship, and the court properly awarded attorney fees against the respondent under section 506 of that Act.

In a motion taken with the case, the minor, Alberic Azevedo, has petitioned this court to order the respondent to pay the attorney fees and costs of this appeal. This motion is made pursuant to section 508(a)(3) of the Illinois Marriage and Dissolution of Marriage Act, which provides in pertinent part:

“(a) The court *** may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred by the other spouse [in connection with] ***:
(3) [t]he defense *** of an appeal of any order or judgment under this Act ***.” Ill. Rev. Stat. 1981, ch. 40, par. 508(a)(3).

This section, by its terms, is inapplicable to the instant case, as it pertains to the trial court’s discretionary authority to award attorney fees in a proceeding between two spouses. Moreover, this court has no authority in any event to fix the amount of an award of fees for an attorney’s services on appeal. (Buehler v. Buehler (1940), 373 Ill. 626, 27 N.E.2d 466.) We believe, however, that the trial court could award fees for the defense of this appeal either under the language of section 506, authorizing payment of an attorney for representation of a minor, or pursuant to its inherent power to make orders that are necessary for the benefit of the child. (See Zalduendo v. Zalduendo (award of fees under court’s equity power should include fees for defense of an appeal involving rights of the child).) Thus, while we deny the minor’s motion here for attorney fees on appeal, it would be appropriate for him to apply to the trial court for an award of these fees on either basis. Cf. Sidwell v. Sidwell (1981), 102 Ill. App. 3d 56, 429 N.E.2d 539 (appropriate procedure to recover attorney fees on appeal is to make application in trial court); see also White v. White (1976), 41 Ill. App. 3d 758, 354 N.E.2d 486.

For the reasons expressed in this opinion, we hereby affirm the judgment of the circuit court of Jackson County.

Affirmed.

HARRISON, P.J., and KARNS, J., concur.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDY MOORE et al., Defendants-Appellants.
    First District (1st Division)
    No. 81—2583
    Opinion filed May 31, 1983.

      Jayne W. Barnard and Michael Z. Margolies, both of Jenner & Block, of Chicago, for appellant Randy Moore.
    Steven Clark and Donna Finch, both of State Appellate Defender’s Office, of Chicago, for appellant Carlos Daniels.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and James J. Bigoness, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

After a bench trial, defendants Randy Moore and Carlos Daniels were convicted of three counts of armed robbery and armed violence. Moore was sentenced to 11 years and Daniels was sentenced to eight years in the Illinois Department of Corrections.

On appeal, Moore contends: (1) the trial court erred in denying his motion for severance; (2) the State’s failure to produce a photograph requested by defense counsel constituted reversible error; and (3) the trial court erred in denying his motion to suppress in-court identifications made by complaining witnesses. Daniels contends (1) the trial court’s failure to order a current presentence report entitled him to a new sentencing hearing and (2) his sentence is excessive.

We affirm.

The complaining witnesses Michael Wright, Alfreda Camel and Diane Blizzard testified to the following facts. On the evening of November 13, 1980, they went to the L & L Lounge. While walking home at about 4 a.m., defendants crossed the street and spoke to them. Moore was carrying a gun. Daniels told Moore to leave complainants alone and defendants left.

Shortly thereafter defendants again approached complainants. Moore aimed a gun at the victims and took Wright’s wallet. Daniels held a knife to Diane’s stomach and fondled her breasts. The assailants took the women’s purses. Moore allowed Wright and Blizzard to leave, but grabbed Camel by her coat collar and began dragging her away.

Camel further testified that she was dragged to a nearby alley. Moore put the gun into her mouth, slapped her and threatened to shoot if she screamed. Moore and Daniels then took Camel to a school yard and defendants looked through the purses and the wallet. When they heard police sirens, Daniels jumped on the school roof and Moore ran. The police found Daniels on the roof.

Wright and Blizzard further testified that they phoned police from a nearby home. They rode through the area with police and found Camel running from the school yard. Later that morning, the police came to their home. They gave the officers Moore’s address and a picture of Moore which was given to them by a friend. The police returned with Moore in custody and Wright and Blizzard identified him. They also identified him in a lineup conducted later that day.

Officer Frank Auginaga testified that he arrested Daniels on the roof of a school at 4:30 a.m. on November 14, 1980. One of the victims immediately identified defendant. Detective Cassidy testified that he spoke to Daniels at the police station. Daniels admitted committing the robbery at the urging of another person. Detective Bulava testified that Diane Blizzard identified Randy Moore in a lineup.

Officer John Kohles testified that he spoke to Wright and Camel on the afternoon of November 14, 1980. Wright gave him a photograph of Moore. Kohles went to 4356 West Congress Parkway, arrested Moore and returned to Wright and Camel’s residence. He asked the victims to go to the police station. They walked past a squad car in which Moore was seated. Wright and Camel identified Moore.

Defendant Carlos Daniels testified that he and Moore participated in the offenses, but he was not aware that a robbery was occurring until Moore handed him something which he put in his pocket. Daniels admitted that he took Blizzard’s purse. He further testified he had nothing other than a pen knife and Moore carried a toy B-B gun. When he heard the police sirens, he took a knife that was in one of the girl’s purses and climbed onto the school roof.

Doris Moore, defendant Randy Moore’s sister, testified that Randy resided with her and was home when she went to bed at 10 p.m. on November 13, 1980. He was also home when she arose at 5 a.m. the next day. Randy could not have left while she was sleeping because all the doors were locked and he did not have keys with which to open them.

On appeal, defendant Moore first contends the trial court erred in denying his motion for severance where he and Daniels had antagonistic defenses.

In support of a petition for severance, defendant is required to make a detailed recitation of his and his codefendant’s defenses, the substance of the trial testimony, and the manner in which the defenses conflict. (People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461.) The burden is on defendant to demonstrate prior to trial that a joint trial would be prejudicial and unfair. (People v. Stevenson (1980), 90 Ill. App. 3d 903, 413 N.E.2d 1339.) A review of Moore’s motion reveals no specific recitations, but rather only conclusory allegations that his alibi defense would be inconsistent with Daniels’ trial testimony. Thus, there was no basis upon which the trial court could grant defendant’s motion. Furthermore, the trial court stated that it would consider Daniels’ testimony only against Daniels. Any prejudice which would have arisen by Daniels’ testimony was thereby cured.

Second, Moore contends he is entitled to a new trial because the State failed to produce a photograph requested by him prior to trial and later offered the photograph into evidence. The photograph was initially offered during direct examination of Officer Kohles, who testified that he received the photo from Wright. Wright testified that he had described his assailant to a friend who then gave the photo to Wright. Defense counsel admitted that the State showed him the photograph immediately before trial and the photograph was listed in the State’s answer to discovery.

Upon proper request, the State should produce photographs if it intends to use them at trial or if they are favorable to the defense. (People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121; 87 Ill. 2d R. 412(a)(v).) Here, the State’s intent to use the photo is apparent since it was offered at trial and therefore the photo should have been produced at defendant’s request. Nonetheless, where the admission of evidence causes no surprise or prejudice, a reviewing court will not reverse. (Sakalas.) Defendant cannot complain of surprise inasmuch as he was aware of the existence of the photograph for three months prior to trial. Moreover, defendant had the opportunity to cross-examine Wright and Camel regarding the circumstances surrounding their receipt of the photo. Considering this fact in conjunction with the positive in-court identifications made by the three complaining witnesses, we find that defendant was not substantially prejudiced by the delay in tendering the photo. Furthermore, we may presume defendant was satisfied in proceeding with trial without additional time to investigate because he did not request a continuance. For this reason, too, defendant should not be heard to complain about the admission of the photograph. People v. Ferguson (1981), 102 Ill. App. 3d 702, 429 N.E.2d 1321; People v. Watson (1979), 76 Ill. App. 3d 931, 395 N.E.2d 682.

Third, Moore contends the trial court erred in admitting the in-court identifications made by Wright and Camel. He maintains that the identifications were inadmissible because they were tainted by the suggestive showup.

The trial court suppressed evidence of the showup identifications, but found an independent basis for the in-court identifications. We agree with this ruling. An in-court identification is admissible if it is reliable. (People v. Nolden (1980), 91 Ill. App. 3d 532, 414 N.E.2d 1124.) Reliability is determined by considering the following factors: the witness’ opportunity to view the criminal at the time the crime was committed, the witness’ degree of attention, the accuracy of a description, the level of certainty demonstrated at the confrontation, the length of time between the crime and the confrontation, and any prior acquaintance with the suspect. (People v. McTush (1980), 81 Ill. 2d 513, 410 N.E.2d 861.) The most important factor is the victim’s opportunity to view the perpetrator. (People v. Sanders (1976), 38 Ill. App. 3d 473, 348 N.E.2d 229.) The elements of reliability are to be weighed against the corrupting effect of the suggestive identification. People v. Nolden (1980), 91 Ill. App. 3d 532, 414 N.E.2d 1124.

The circumstances surrounding the incident, as testified to at trial, indicate that there was a reliable, independent basis for the in-court identifications made by Wright and Camel. The victims were approached twice by defendants. The second confrontation took place near a home that was well lit, the defendants were within arm’s reach of the victims, and the incident lasted about five or 10 minutes. Furthermore, Camel had additional time in which to view defendants because she was taken to the school yard and held captive for several more minutes. The victims also identified defendant in a photograph given them by their friend only a few hours after the incident. In view of these factors, particularly the opportunity to view defendants at the scene of the crime, we find no error in the trial court’s ruling.

Moore further contends that evidence of Blizzard’s lineup identification should have been suppressed because the lineup was suggestive. However, defendant failed to raise the issue at trial and in his post-trial motion and thus the issue is considered waived. People v. Kirkwood (1980), 82 Ill. App. 3d 252, 402 N.E.2d 677.

Defendant Daniels contends he is entitled to a new sentencing hearing because the trial court did not order a current presentence investigative report. The report considered by the court was prepared four months before the sentencing hearing, and Daniels contends that under People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416, such report was inadequate.

Initially, we find that Youngbey is inapplicable to the case at bar. In Youngbey, no report was filed. The Supreme Court held the report was mandatory under section 5 — 3—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 3—1) and could not be waived by defendant. Here, unlike Youngbey, a report was submitted to and considered by the trial court.

Furthermore, in People v. Gornick (1982), 107 Ill. App. 3d 505, 437 N.E.2d 892, and People v. Stahlman (1982), 103 Ill. App. 3d 402, 431 N.E.2d 694, presentence reports prepared 10 months and 14 months prior to sentencing were found acceptable and any error in faling to order an updated report was considered waived by the failure to object to the use of the report. Here, defense counsel explicitly approved of the presentence report and cannot argue on appeal that the use of the report was error.

Daniels also contends the trial court abused its discretion in imposing an eight-year sentence. The trial court noted that Daniels had shown contrition and did not have a criminal background, but found that the nature of the crime, and in particular, the fact that defendant had molested the female victim, warranted a sentence two years more than the minimum. The trial court may also consider the credibility, demeanor, general moral character, mentality, and habits of a defendant (People v. Kloiber (1981), 95 Ill. App. 3d 1061, 420 N.E.2d 870) and is generally in a better position than this court to evaluate these factors. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) We have reviewed the record in this case and can find no abuse of discretion.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

BUCKLEY, P.J., and GOLDBERG, J., concur.