author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNY STARK, Defendant-Appellant.
    Fifth District
    No. 82—514
    Opinion filed January 12, 1984.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John Baricevic, State’s Attorney, of Belleville (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Defendant was convicted in the circuit court of St. Clair County of six counts of theft over $150 and was sentenced to eight years in the Department of Corrections. The conviction and sentence occurred in absentia. Defendant’s trial counsel caused a timely notice of appeal to be filed on August 30, 1982, and the State Appellate Defender was appointed to represent him on appeal. Defendant subsequently has been placed in the custody of the Department of Corrections and is presently serving out his sentence and actively participating in this appeal.

The State moves to dismiss the appeal because there is no affirmative showing of record that defendant desires to appeal from the conviction and sentence, particularly where there is no showing of record that trial counsel conferred with defendant subsequent to the trial and sentencing to ascertain whether defendant desired an appeal. In addition, the State contends that defendant did not follow the appropriate procedure under section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1) which the State believes governs an appeal of a judgment entered on a conviction or sentence obtained in absentia.

The defendant objects to the factual and legal issues raised in the State’s motion contending that no affirmative showing of his intention to appeal is required to validate the appeal and section 115 — 4.1 does not establish the sole procedure for appealing the merits of a conviction and sentence obtained in absentia.

With respect to the question of whether defense counsel improperly filed a notice of appeal prior to consulting with defendant, there is no statutory or case law advanced by the State, nor has our research disclosed any, which establishes that consultation between counsel and defendant or an affirmative showing of a desire on defendant’s part prior to the filing of a notice that he desires to appeal from an adverse criminal judgment is a condition precedent to filing the notice. Considering the nature of counsel’s representative role, wherein he must exercise his professional judgment in legal matters so as to advance his client’s cause, it would seem reasonable that his filing a notice of appeal predicated upon perceived trial errors would be a necessary extension of this representative role. Just as defendant’s prior approval is not required before counsel validly exercises professional judgment in matters of trial tactics, so too is such prior approval unnecessary when counsel exercises professional judgment and files a notice of appeal. If this is not what defendant wishes, the remedy is for him to withdraw the otherwise valid appeal.

Attached to defendant’s objection to the motion to dismiss appeal is an affidavit of Lawrence Bapst, who is the assistant appellate defender representing defendant in this cause. In the affidavit Bapst avers that on September 21, 1983, at Menard Correctional Center he discussed with defendant the issues to be raised on appeal. Bapst further avers that defendant is interested in appealing the conviction and sentence. Also attached to the objection is a copy of a letter from defendant to Randy Blue, a deputy appellate defender, dated September 1, 1983, in which defendant inquires as to the status of the appeal and the preparation and filing of the record and requests that an investigator from the office visit with him at Menard. We find that the affidavit and letter are ample evidence of defendant’s desire to prosecute this appeal.

Turning to the procedural issue raised by the State, section 115 — 4.1(e) sets forth a mechanism whereby a proper excuse for defendant’s failure to appear at trial or sentencing serves as an additional ground for obtaining a new trial or sentencing hearing apart from any assignments of error pertaining to the conduct of those proceedings. Paragraph (g) provides:

“(g) A defendant whose motion under paragraph (e) for a new trial or new sentencing hearing has been denied may file a notice of appeal therefrom. Such notice may also include a request for review of the judgment and sentence not vacated by the trial court.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1(g).

It is apparent that the statutory scheme outlined above merely provides defendant with an additional means of securing a new trial. The last sentence in paragraph (g) is a device to enable defendant to consolidate into one appeal the denial of his motion for new trial or new sentencing hearing based on a reasonable excuse for being absent from the jurisdiction as well as the denial of any traditional post-trial motion. This statutory scheme was not designed to preempt Supreme Court Rule 606(b) (87 Ill. 2d R. 606(b)), which governs the manner in which criminal appeals from final judgments are perfected. As the requirements of Rule 606(b) were met in this case, the State’s motion to dismiss for defendant’s failure to adhere to the permissive procedures set forth in section 115 — 4.1 is not well taken and should be denied.

We grant the State’s motion for leave to reply to the objection to its motion to dismiss and consider the reply embodied in the motion.

In its reply the State asks what will happen should the defendant be arrested and file a motion for new trial or for new sentencing hearing under section 115 — 4.1 predicated upon a reasonable excuse for being absent from the jurisdiction. The inference the State wishes the court to draw is that by filing such a motion, defendant continues the criminal litigation. Thus, the State characterizes a judgment entered on a conviction and sentence under these circumstances as interlocutory, because it does not finally dispose of the litigation given defendant’s ability to avail himself of the statutory relief provided for in this section. The State concludes that this court is without jurisdiction to entertain the instant appeal, for to do otherwise would be to entertain an improper interlocutory criminal appeal brought by a defendant.

The State offers no direct authority for the proposition that an otherwise final and appealable judgment entered on a conviction and sentence is somehow rendered nonfinal merely because a defendant is tried and sentenced in absentia. The case law cited by the State does not address this issue. People v. Wasilewski (1978), 66 Ill. App. 3d 1, 383 N.E.2d 31, addresses the appealability of an order denying defendant’s motion to suppress evidence; People v. Culhane (1975), 34 Ill. App. 3d 158, 340 N.E.2d 63, addresses appealability of an order denying defendant’s motion to dismiss murder charges; and Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 147 N.E.2d 371, explores whether the superior court of Cook County may transfer a cause to the appellate court.

As noted earlier, there is no showing that it was the legislature’s intention in enacting section 115 — 4.1 to preempt Rule 606(b), which governs the perfection of an appeal on the merits from a final judgment entered on a criminal conviction and sentence. This section is analogous to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401), which permits a civil judgment to be attacked on procedural grounds even though it has become final. Section 115 — 4.1 merely enables a defendant to receive a new trial or sentencing hearing on the sole ground that his absence from the jurisdiction was excusable. This remedy does not address the merits of the underlying conviction and sentence. Nor should it control the procedures employed for appealing the merits of the conviction or sentence. It is reasonable to assume that had defendant in the instant case waited until his section 115 — 4.1 motion was disposed of before appealing the underlying judgment, the 30-day period for filing a notice of appeal would have expired and the State would be free to argue that this court is without jurisdiction over the appeal on the merits in the absence of a timely notice of appeal. The last sentence of paragraph (g) of section 115 — 4.1 recognizes that parallel proceedings may occur when a defendant directly attacks the merits of the conviction or sentence and also files a section 115 — 4.1 motion. By providing a mechanism for consolidating such proceedings for review upon the filing of a single notice of appeal, the statute by its very terms gives respect to the vitality of a direct appeal on the merits. Thus, this section does not operate to preempt Rule 606(b).

An additional flaw in the State’s contention that the instant judgment is interlocutory concerns what it believes to be the inevitability of a defendant filing a section 115 — 4.1 motion. There is nothing in the statute stating that such a motion is a condition precedent to an appeal, nor, as a practical matter, is there anything to suggest that a defendant automatically will file such a motion, particularly in instances where no reasonable excuse exists for his not appearing in court.

Finally, the State’s position must be rejected on constitutional grounds. In essence, the State argues that a motion for new trial or new sentencing hearing under section 115 — 4.1 and disposition thereof by the trial court are conditions precedent to a defendant appealing from a judgment entered on a conviction or sentence obtained in absentia. Under article VI, section 4(b) of the Illinois Constitution of 1970, the supreme court shall provide by rule for direct appeals of final judgments from the circuit court. (Hamilton Corp. v. Alexander (1972), 53 Ill. 2d 175, 290 N.E.2d 589.) In Hamilton Corp. the supreme court held unconstitutional a requirement under the forcible entry and detainer act which required the filing of a supercedeas bond within five days of the rendition of judgment before the appeal could be perfected. In so holding, the court observed that the legislature may not impose substantive conditions which qualify or restrict the right to appeal conferred by the Constitution. Inasmuch as article VI, section 6 of our constitution establishes that appeals from final judgments are by right, the State’s interpretation of section 115 — 4.1 would result in the legislature overstepping its constitutional bounds by imposing substantive conditions for appealing from certain final judgments which are otherwise appealable by right. Also see People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 237 N.E.2d 495; In re Marriage of Lentz (1980), 79 Ill. 2d 400, 403 N.E.2d 1036.

While it may well be, as the State suggests, that a defendant is given a second bite of the apple when pursuing a motion under section 115 — 4.1 and, if successful, will undermine an otherwise valid conviction and sentence, this section is in harmony with article I, section 4 of our constitution which confers upon a defendant the right to appear and defend himself in person. Section 115 — 4.1 is a statutory mechanism to protect this constitutional right. By predicating the granting of a new trial or sentencing hearing exclusively upon defendant’s excusable absence from the jurisdiction, it is apparent that the legislature distinguishes between a direct criminal appeal on the merits and an appeal based upon an alleged violation of defendant’s right to be present at all criminal proceedings. This section was not intended to set forth the appropriate procedure for appealing from a conviction or sentence obtained in absentia-, rather, it merely provides an additional means of attacking the conviction or sentence.

For the reasons discussed above, we deny the State’s motion to dismiss the appeal of this cause.

Motion to dismiss appeal denied.

EARNS and HARRISON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McGILLICUDDY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VERNA MARTINE, Defendant-Appellant.
    First District (3rd Division)
    Nos. 79—1406, 80—1853 cons.
    Opinion filed February 15, 1984.

      Ralph Ruebner, of State Appellate Defender’s Office, of Chicago, and Gail E. Meyers, of Evanston, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and Lester M. Joseph, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a bench trial, the defendant, Verna Martine, was convicted of possession with intent to deliver more than 30 grams of cocaine, possession of more than 30 grams of cocaine, possession of cannabis, possession of methaqualone, possession of benzphetamine, and possession of lysergic acid diethylamide. She was sentenced to six years’ imprisonment for possession of cocaine with intent to deliver, four years for possession of cocaine, two years for possession of methaqualone, benzphetamine, and lysergic acid diethylamide, and one year for possession of cannabis, all to be served concurrently.

On appeal the defendant contends (1) that she was not proved guilty of possession of the controlled substances beyond a reasonable doubt; (2) that the search warrant was unreasonably executed; (3) that the State failed to establish a sufficient chain of possession of the controlled substances; (4) that she wasJmproperly convicted of both possession of cocaine and possession of cocaine with intent to deliver; (5) that she was denied her right to be present during all aspects of her trial; (6) that the legislature improperly classified cocaine as a narcotic; (7) that the legislature unlawfully delegated to the Dangerous Drug Commission the authority to add, delete or reschedule controlled substances; and (8) that the law upon which her indictment was based was void.

Officer Steven Kuhn of the Chicago Police Department testified that on December 13, 1977, following a conversation with an informant, he obtained a search warrant for the defendant and the single-family dwelling located at 1427 West Henderson in Chicago. Officer Kuhn and four other police officers went to that address at approximately 8:30 p.m.

When they arrived at the house, Officer Kuhn and Officer Thomas Riley knocked on the front door. When defendant asked what the men wanted, they identified themselves as police officers. The defendant went to the window, and Officer Kuhn showed her his star and his identification and announced that he was a police officer and that he had a search warrant. When the defendant retreated to the back of the house, the two officers forced entry into the house and stopped the defendant in the dining room. No one else was present in the house.

Officer Kuhn searched the bedroom and recovered a purse containing $600 in cash. In a dresser drawer among lady’s laundry, he found more cash and three clear plastic bags of powder. Officer Kuhn conducted a field test on the powder which indicated that it was cocaine. Underneath a suitcase on the floor of the closet, Officer Kuhn discovered four clear plastic bags containing crushed green plant material and one bag containing miscellaneous pills.

After the search was completed, three friends of the defendant arrived at the house. The officers searched these persons but found no contraband. Officer Kuhn took the contraband which he found in the apartment to the police station where he marked it for identification. The clear plastic bags were never out of his sight. He placed the bags in a mail envelope and took the evidence to the crime lab where it was inventoried and placed in a sealed bag.

Christine Provo, a police chemist, testified that she analyzed the various substances contained in the plastic bags and determined them to be cocaine, marijuana, benzphetamine, and methaqualone. Certain pink pieces of paper which were found in the bag of pills and tested by criminalistic aide Ann McCann contained lysergic acid diethylamide (LSD).

Charles Zeller, a real estate broker, testified that he was the contract seller of the property located at 1427 West Henderson. The defendant was the contract purchaser.

The defendant testified that she had no knowledge of any controlled substances on the premises of 1427 West Henderson. On the evening of December 13, 1977, she was in her home with two friends, Dale Powers and Joseph Radziejewski. At approximately 8 p.m., the doorbell rang. Radziejewski answered the door. Thereafter, the defendant observed several men with guns drawn. The men stated that they were police officers.

The defendant testified that 10 to 12 police officers searched the house. She stated that she saw several officers come out of her bedroom with small plastic bags containing white powder. One officer took a bag of sugar from her pantry and marked it “1 lb. coke.” The officers then winked at each other. The defendant further testified that the police took her prescription pill bottles and emptied the contents into one plastic bag.

Joseph Radziejewski corroborated the testimony of the defendant. On December 13, 1977, he arrived at the defendant’s home around 6:30 p.m. He stated that when he answered the door, someone said he was from the gas company. Radziejewski replied, “hold on a second” and went to ask the defendant if she was expecting anyone. Thereafter, he heard a loud bang and saw the front door being knocked down.

Michael Wisniewski testified that he had watched the defendant’s house on several occasions when she was out of town. During these periods he had a key to the house, would sleep in defendant’s bedroom and would use her closet. Early in December 1977, Wisniewski stayed at the house and entertained several friends there.

Kenneth LeVey testified that he often had been in defendant’s home when she was not present. LeVey visited the defendant almost every day because she was ill and terrified of being alone in her house. LeVey was at defendant’s home from 6 to 8 p.m. on the date of the arrest. He stated that two men and a woman were also present.

Several character witnesses also testified on defendant’s behalf. Over the State’s objections, they testified that they had never known or heard that the defendant was involved in the sale or use of narcotics.

In rebuttal, Officer Thomas Riley and Sergeant Steven Schwieger corroborated the testimony of Officer Kuhn.

I

The defendant first contends that she was not proved guilty of possession of the controlled substances beyond a reasonable doubt. The defendant points out that the substances were discovered in her home, not on her person. She argues that numerous persons had access to her home and contends that the State produced no corroborating evidence linking her to the contraband.

To support a conviction for unlawful possession of a controlled substance, the State must establish that the defendant had knowledge of the presence of the controlled substance and that it was in his immediate and exclusive control. (People v. Galloway (1963), 28 Ill. 2d 355, 192 N.E.2d 370; People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072.) Proof of actual physical possession is not necessary; constructive possession, which requires a showing that the defendant controlled the premises upon which the substance was found, is sufficient. (People v. Galloway; People v. Calhoun (1977), 46 Ill. App. 3d 691, 361 N.E.2d 55.) If it is proved that the defendant controlled the premises, an inference of both knowledge and possession arises which may sustain a guilty verdict. (People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361, cert. denied (1962), 369 U.S. 853, 8 L. Ed. 2d 12, 82 S. Ct. 939; People v. Luetkemeyer (1979), 74 Ill. App. 3d 708, 393 N.E.2d 117, cert. denied (1980), 446 U.S. 938, 64 L. Ed. 2d 791, 100 S. Ct. 2157.) Mere access by other persons is insufficient to defeat a charge of constructive possession. People v. Mack (1957), 12 Ill. 2d 151, 145 N.E.2d 609.

In the instant case it is undisputed that the defendant lived alone at 1427 West Henderson. Officer Kuhn testified that the defendant was alone in the house at the time he searched the premises. The controlled substances were discovered in defendant’s dresser drawer among personal items and underneath a suitcase on the floor of her closet. We believe that these facts and circumstances support an inference that the defendant had possession of the substances. As our supreme court noted in People v. Nettles, “[h]uman experience teaches that narcotics are rarely, if ever, found unaccountably in a person’s living quarters.” (23 Ill. 2d 306, 308.) Although others had access to defendant’s home and often stayed there in her absence, such access is insufficient to defeat the finding of constructive possession.

Whether there is possession and knowledge are both questions of fact. These factual determinations will not be disturbed on review unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. (People v. Galloway.) We believe that the evidence in the instant case was more than sufficient to support the trial court’s finding.

II

The defendant’s second argument is that because the police officers executed the search warrant in an unreasonable manner, the evidence seized as a result of said warrant should have been suppressed.

Generally, absent exigent circumstances, when police officers are executing a search warrant, they are expected to announce their authority and purpose prior to entering the premises to be searched. (People v. Boykin (1978), 65 Ill. App. 3d 738, 382 N.E.2d 1369.) The defendant contends that the execution in the instant case was unreasonable because the officers falsely identified themselves as employees of the gas company prior to the forced entry. However, conflicting evidence was presented concerning the circumstances of the entry. After assessing the credibility of the witnesses, the trial court accepted the testimony of the State’s witnesses. We will not substitute our judgment for that of the trial court on the issue of credibility.

Officer Kuhn testified that after the defendant came to the door, he identified himself as a police officer, showed her his identification, and announced that he had a search warrant. When he observed the defendant retreating to the rear of the house, he and Officer Riley forced entry. We believe the officers were justified in suspecting that the defendant was attempting to destroy the drugs. Courts have often commented on the ease with which narcotics can be concealed or destroyed. (See People v. Mathes (1979), 69 Ill. App. 3d 275, 387 N.E.2d 39, and cases cited therein.) Under these circumstances, we cannot say that the trial court’s denial of the motion to suppress was manifestly erroneous. See People v. Maddox (1981), 94 Ill. App. 3d 1052, 419 N.E.2d 441.

Ill

The defendant's third argument is that the State failed to establish a sufficient chain of possession of the controlled substances. A chain of custody foundation is required when the offered evidence is not readily identifiable or is susceptible to alteration by tampering or contamination. (People v. Winters (1981), 97 Ill. App. 3d 288, 422 N.E.2d 972, cert. denied (1982), 455 U.S. 923, 71 L. Ed. 2d 464, 102 S. Ct. 1282.) In the absence of any tangible suggestion of tampering, alteration or substitution, it is sufficient to prove a reasonable probability that the articles have not been changed in any important respect. (People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553.) Mere speculation of alteration is insufficient to undermine the foundation laid. People v. Rhoades (1979), 74 Ill. App. 3d 247, 392 N.E.2d 923.

In the instant case Officer Kuhn testified that he took the contraband discovered in defendant’s house to the police station where he marked it for identification and placed it in a mail envelope. During this time, the clear plastic bags were never out of his sight. Officer Kuhn then took the evidence to the crime lab where it was inventoried and placed in a sealed bag.

The. defendant speculates that because the evidence was not sealed until it was inventoried at the crime lab, tampering could have occurred. We disagree. Officer Kuhn’s testimony that the evidence was never out of his sight from the time he left defendant’s house until it was inventoried at the crime lab established a foundation for the admission of the evidence. Defendant’s speculation of alteration is insufficient to undermine this foundation. People v. Rhoades.

IV

The defendant’s fourth argument is that she was improperly convicted of both possession of cocaine and possession of cocaine with intent to deliver. The State concedes that the possession of cocaine is an included offense of possession of cocaine with intent to deliver. (See People v. Anderson (1979), 74 Ill. App. 3d 363, 392 N.E.2d 938.) Thus, defendant’s conviction and sentence for the possession of cocaine are hereby vacated.

V

The defendant’s fifth argument is that her right to be present at trial was denied when the court requested that she leave the courtroom while defense counsel made an offer of proof during his redirect examination of the defendant. During redirect examination defense counsel asked defendant how many times Officer Riley came to her house subsequent to her arrest. Defendant stated that Officer Riley had come to her house on three occasions. When counsel asked defendant what was discussed on the first occasions, the State objected on the grounds that the matter was irrelevant and beyond the scope of cross-examination. An assistant State’s Attorney suggested that the witness be removed and that an offer of proof be made. The trial court agreed and asked the defendant to step into the jury room. Defense counsel stated that the defendant would testify that Officer Riley admitted that she had been framed. The trial court held that such testimony was indeed beyond the scope of cross-examination. Thereafter, the defendant returned to the courtroom.

It is a well-established rule that an accused has the right to be personally present at every stage of the proceeding against him from arraignment to final sentencing. (People v. Lewis (1979), 73 Ill. App. 3d 361, 386 N.E.2d 910.) However, this right is not absolute. Where defendant’s substantial rights are not involved or where his presence would be useless, he need not be present. People v. Anton (1981), 100 Ill. App. 3d 344, 426 N.E.2d 1070; People v. Saltz (1979), 75 Ill. App. 3d 477, 393 N.E.2d 1292.

In the instant case, no substantial rights of the defendant were affected by her brief absence from the courtroom during the offer of proof. First, the purpose of the offer of proof was to determine whether the rebuttal testimony was beyond the scope of cross-examination. Such a determination was purely a legal issue, and the defendant’s presence would have contributed nothing to her defense. In addition, since the offer of proof concerned defendant’s own testimony, she was not prevented from hearing any testimony or confronting her accusers. Because defendant was not prejudiced bv her absence from the courtroom, reversal of her conviction is not required. People v. Harvey (1981), 95 Ill. App. 3d 992, 420 N.E.2d 645.

VI

The defendant’s sixth argument is that because cocaine is unconstitutionally classified as a narcotic drug, the trial court should have granted her motion to dismiss the counts of the indictment involving the possession of cocaine. In People v. McCarty (1981), 86 Ill. 2d 247, 427 N.E.2d 147, our supreme court held that the legislature’s designation of cocaine as a narcotic for the purpose of penalty was a reasonable and constitutional classification. Thus, defendant’s motion to dismiss was properly denied.

VII

The defendant’s seventh argument is that the legislature unlawfully delegated to the Dangerous Drug Commission the authority to add, delete or reschedule all controlled substances within the five schedules of the Controlled Substances Act. (Ill. Rev. Stat. 1979, ch. 56½, par. 1201.) The Act sets forth certain criteria that the Commission must consider in making a determination regarding the addition, deletion or rescheduling of a controlled substance.

Defendant’s argument was rejected by our supreme court in People v. Avery (1977), 67 Ill. 2d 182, 367 N.E.2d 79. The court noted that although the General Assembly cannot delegate its general legislative power to others, it may authorize others to do things which it might properly do but cannot do as understandingly or as advantageously itself, if the authority thus granted is delimited by intelligible standards. The court concluded that the legislature properly delegated the authority to add, remove or reschedule substances and that it provided intelligible standards to delimit that authority. Thus, this argument of defendant is without merit.

VIII

The defendant’s final argument is that the law upon which her indictment was based was void.

As we previously discussed, the Controlled Substances Act provides that the Dangerous Drug Commission has the authority to add, delete or reschedule the controlled substances within the five schedules. Once the Commission issues a rule in conformance with the requirements of the statute, said rule has the immediate effect of law. (People v. Avery.) The Commission must then submit the rule to the General Assembly in the form of a proposed law amending the Act. If the proposed rule is not adopted by the General Assembly and enacted into law within two years after the Commission has issued the rule, the rule expires. Ill. Rev. Stat. 1977, ch. 56½, par. 1201.

On October 9, 1975, the Commission met and adopted and republished the five schedules with certain changes. On September 3, 1977, the legislature amended the Act reflecting these changes. On December 3, 1977, the legislature again amended the Act to correct the spelling of two controlled substances.

Defendant contends that because a quorum was not present at the October 9, 1975, meeting of the Commission, the adoption of the schedules at that meeting was void. This issue was also raised in People v. Copeland (1980), 92 Ill. App. 3d 475, 415 N.E.2d 1173, in which the court held that the validity of the Commission’s actions was irrelevant. The court stated that its sole inquiry was the validity of the legislative enactment since the legislature could have enacted the schedules without the participation of the Commission. Thus, we need not determine whether a quorum was present at the Commission meeting.

The defendant also asserts that the legislature did not approve the proposed law until December 3, 1977, more than two years after the Commission had issued its rule. Such an assertion is erroneous. As we previously stated, the legislature amended the Act on September 3, 1977, by Public Act 80 — 472. Thus, the law upon which defendant’s indictment was based was not void.

The defendant has filed a petition for rehearing on the basis of People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269, cert. denied (1983), 455 U.S. 953, 75 L. Ed. 2d 792, 103 S. Ct. 1433, which holds that when a defendant makes a substantial preliminary showing that a warrant is based on knowingly false information or with reckless disregard for the truth, without which there would be no finding of probable cause, an evidentiary hearing should be held. Defendant urges this court in the instant case to consider the issue decided by Garcia, even though it was not raised on appeal.

The waiver rule is one of administration, not jurisdiction, and therefore need not be applied in cases of plain error where substantial rights are involved. (People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070.) Therefore, even though this issue was not raised on appeal, since it involves the defendant’s fourth amendment rights we will consider the merits of defendant’s claim.

In People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269, while searching an apartment pursuant to a search warrant, the Chicago police had seized a quantity of cocaine. The search warrant had been issued on the basis of the affidavit of one of the police officers, which included hearsay statements of an undisclosed informant.

Prior to trial, Garcia moved to suppress the evidence obtained from the search, alleging that the warrant was illegally obtained. He claimed that the officer’s affidavit was knowingly and intentionally false, and challenged the integrity of the oath of the police officer as to the entire affidavit. Garcia supported his motion with his own affidavit and requested an evidentiary hearing. He further requested that the police officer who filed the affidavit be called as the first witness and that the anonymous informant be produced. The defendant’s motion was denied. The objects seized in the search were introduced into evidence at the trial, and the defendant was convicted.

On appeal, this court reversed, citing Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676, wherein the court stated that where a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the fourth amendment requires that an evidentiary hearing be held at the defendant’s request. Further, a “substantial preliminary showing” does not require a defendant to prove his chargé by a preponderance of the evidence in order to obtain a hearing. That is the evidentiary standard for the hearing itself. Thus, Garcia’s affidavit challenging, in its entirety, the truth of the affidavit upon which the search warrant was issued was a sufficiently substantial preliminary showing to merit an evidentiary hearing.

In the instant matter, prior to trial the defendant sought a hearing pursuant to Franks v. Delaware and filed a motion to controvert the warrant. Her memorandum of law in support of the motion alleged that the affidavit upon which the warrant was based was either perjured or in reckless disregard of the truth. Defendant supported her motion with affidavits, her own as well as those of two neighbors who were at her home when the anonymous informant allegedly purchased two ounces of cocaine. The affidavits denied each assertion in the police officer's affidavit supporting the warrant.

Based on our decision in the Garcia case, we believe that this was a sufficient preliminary showing to require an evidentiary hearing on defendant’s motion to controvert the search warrant based on the police officer’s affidavit. Thus, this matter must be remanded for an evidentiary hearing in conformity with the guidelines established in People v. Garcia (1982), 109 Ill. App. 3d 142, 150-52. If the defendant meets her requisite burden of proof by a preponderance of the evidence, the warrant must be voided and the fruits of the illegal search excluded to the same extent as if probable cause were lacking on the face of the affidavit filed with the warrant complaint. Franks v. Delaware.

For the foregoing reasons, we vacate the conviction and sentence for the possession of cocaine, and we reverse and remand for proceedings consistent with this opinion.

RIZZI, P.J., and WHITE, J., concur.


author: JUSTICE UNVERZAGT

text:
    LAKELAND PROPERTY OWNERS ASSOCIATION, Plaintiff-Appellant, v. ROBERT LARSON, Defendant-Appellee.
    Second District
    No. 83—388
    Opinion filed February 1, 1984.
    Rehearing denied March 6, 1984.

      Foran, Wiss & Schultz, of Chicago, for appellant.
    Howard R. Teegen, of Soffietti, Johnson, Teegen & Phillips, Ltd., of Fox Lake, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This appeal concerns the construction of a deed conveying a parcel of land in Lakeland Estates Subdivision in Lake County to Robert Larson, defendant, which contains use and construction restrictive covenants but also authorizes changes of these covenants upon approval of the majority of the lot owners of the subdivision. An apparent majority of the lot owners filed a document entitled “1980 Revised Deed Restrictions,” which included provisions permitting Lakeland Property Owners Association, Inc. (Association), plaintiff, to establish dues assessable against lot owners, the nonpayment of which would cause a lien upon the property, and to enforce other rules and regulations adopted by the Association. The Association assessed defendant’s dues for 1980 to be $110 and upon his refusal to pay this assessment, brought a small claims action against him for that amount in the circuit court of Lake County. The circuit court denied the Association’s prayer for relief, finding that the majority of the lot owners did not have the authority to impose a covenant upon individual lot owners which was new and different from those covenants delineated in the lot owner’s deed. The Association appeals.

The parties stipulated to the relevant facts, those being that the defendant purchased a lot in Robert Bartlett’s Lakeland Estate Subdivision in 1960 by a deed from the original developer which was similar to other deeds from land in this subdivision subject to various restrictions and covenants relating to the use of the lots and permissible types of construction. Before delineating these covenants and restrictions, the deed provided:

“SUBJECT to such of the following covenants as refer to the real estate herein described which shall run with the land and shall be in force and effect and shall be binding on all parties and all persons claiming under them until January 1, 1980, at which time said covenants shall automatically extend for successive periods of ten years, unless by a vote of the majority of the then owners of the lots in said subdivision it is agreed to change the said covenants in whole or in part.”

The deed also conveyed to the grantee easements to use two lakes in the subdivision and lots for ingress and egress.

The Association, a not-for-profit corporation, which began as a voluntary group and became active in the subdivision’s affairs, caused the adoption by a majority of the then lot owners of the 1980 Revised Deed Restrictions, which contained the following new covenants:

“24. * The Lakeland Property Owners Association, Inc. shall have the right to establish dues from time to time assessable against lot owners and lots in the Subdivision. The dues assessed from time to time, if not paid within the calendar year they are assessed, shall constitute a lien against the lot upon the Association’s filing a written claim for lien with the Recorder of Deeds of Lake County describing the lot and the nature and amount of the lien. Collection of dues may be sought in law or in equity and costs incurred by the Association, including attorney’s fees and expenses and interest at the maximum legal rate from time to time shall be included in satisfaction of the assessed dues or lien claimed. *
* * *
29. * The by-laws, rules and regulations adopted by the Lakeland Property Owners Association, Inc., and the actions taken by the Board of Directors of said Association shall be binding upon all lot owners. *”

Pursuant to these provisions, dues were assessed on defendant’s property. Upon his refusal to pay these dues, the Association brought the instant action.

The trial court entered a judgment for defendant and so informed the parties by letter in which he stated that: “the covenants *** were not changes in the original covenants but rather entirely new and different in character. *** [Tjherefore *** the Association had no power to make a binding assessment on the defendant as he had not agreed to be bound by the terms thereof.”

Before considering the merits of the Association’s argument on appeal, defendant’s request that this court affirm the trial court’s judgment because the Association failed to submit to this court a report of proceedings or its substitutes as provided in Supreme Court Rule 323 (87 Ill. 2d R. 323) must be addressed. He correctly states that an appellant has the duty to present a complete record on appeal so that the reviewing court will be fully informed regarding the issues in the case (Coombs v. Wisconsin National Life Insurance Co. (1982), 111 Ill. App. 3d 745, 746; Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 661; Saint Joseph Hospital v. Downs (1978), 63 Ill. App. 3d 742, 744), and that absent an adequate record on appeal, it will be presumed that the trial court’s judgment conforms to the law and has a sufficient factual basis. (In re Estate of Rice (1982), 108 Ill. App. 3d 751, 762; Chicago City Bank & Trust Co. v. Wilson (1980), 86 Ill. App. 3d 452, 454.) A statement of facts in an appellant’s brief, as found in plaintiff’s brief in the instant case, does not suffice to provide a court with the necessary facts where they are not supported in the record because they lie outside of the record and thus cannot be considered. Coombs v. Wisconsin National Life Insurance Co. (1982), 111 Ill. App. 3d 745, 746; Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 661; Saint Joseph Hospital v. Downs (1978), 63 Ill. App. 3d 742, 744.

The absence of a report of proceedings, however, deprives a reviewing court only of a basis for reviewing issues whose merits depend upon the matters omitted; it does not deprive a reviewing court of jurisdiction to entertain the appeal. (Coombs v. Wisconsin National Life Insurance Co. (1982), 111 Ill. App. 3d 745, 746; Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1042.) In these instances, the lack of a report of proceedings requires an affirmance of those issues which depend for resolution upon facts not in the record (Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1042) and mandates that any doubts arising from the incomplete record must be resolved against the appellant. Potts v. Madison County Mutual Automobile Insurance Co. (1983), 112 Ill. App. 3d 50, 52; Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 661.

Since the absence of a report of proceedings deprives a reviewing court only of a basis of reviewing issues whose merits depend on omitted matters, where the principal issue raised on appeal involves a question of law, the absence of the report of proceedings does not bar this court’s review. (Chicago City Bank & Trust Co. v. Wilson (1980), 86 Ill. App. 3d 452, 454.) The instant appeal raises an issue whose resolution depends upon the construction of a deed. Inasmuch as the construction of an instrument is a question of law for the court to determine (see Wilson v. Illinois Benedictine College (1983), 112 Ill. App. 3d 932, 937; Vigilante v. National Bank (1982), 106 Ill. App. 3d. 820, 823), this court has a sufficient basis to review the circuit court’s judgment.

We further note that defendant filed a memorandum of law in the trial court setting forth the stipulated facts which were the basis of the appealed from judgment. The record of a case tried upon stipulated facts is sufficient. Kann v. Rosset (1940), 307 Ill. App. 153, 168.

The primary object in considering a deed is to determine the intent of the parties which is ascertained from the deed as a whole and by the words employed (Gelfius v. Chapman (1983), 118 Ill. App. 3d 290, 292; Goin v. Eater (1982), 107 Ill. App. 3d 887, 890; see Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 806); parties are bound only by the words of the deed regardless of any secret or undisclosed intent (Cimino v. Dill (1982), 108 Ill. App. 3d 782, 785; Vigilante v. National Bank (1982), 106 Ill. App. 3d 820, 823). A court may not add a provision simply to reach a more equitable agreement. National Tea Co. v. American National Bank & Trust Co. (1981), 100 Ill. App. 3d 1046, 1049.

Where a court must construe a restrictive covenant found in a deed, each case must be decided upon its own facts so as to give effect to the actual intent of the parties at the time the covenant was made and a covenant should be construed most strongly against the coventor with all doubts and ambiguities resolved in favor of natural rights and against restrictions. .(Cimino v. Dill (1982), 108 Ill. App. 3d 782, 786; Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 163; Kessler v. Palmeri (1972), 3 Ill. App. 3d 901, 904.) Restrictive covenants which affect land, while not favored at law, will be enforced according to their plain and unambiguous language where reasonable, clear, and definite. (Levitt Homes, Inc. v. Old Farm Homeowners’ Association (1982), 111 Ill. App. 3d 300, 308; Hawthorne Hills Association v. Lawrence (1980), 85 Ill. App. 3d 377, 381; Freehling v. Development Management Group, Inc. (1979), 75 Ill. App. 3d 243, 246.) Where a deed contains restrictive covenants but also permits their future alteration, the language employed determines the extent and scope of that provision. See Levitt Homes, Inc. v. Old Farm Homeowners’ Association (1982), 111 Ill. App. 3d 300, 308.

The provision permitting the change of covenants found in the instant deed clearly directs itself to changes of existing covenants, not the adding of new covenants which have no relation to existing ones. This provision precedes the covenants, states that it permits changes to “the following covenants,” and permits a majority of the lot owners to change “the said covenants.” No other construction of this deed is permissible from this language, and thus the trial court did not err in denying the Association’s prayer for relief.

The Association relies upon numerous cases from various jurisdictions. They are all inapposite, and the Association’s reliance upon them indieatesjhat it misapprehends the issue on appeal. These cases may be grouped into three categories, although some of them belong to more than one group. First, some address the issue of whether the change in the restrictions or covenants must be less restrictive than the original ones. (See McMillan v. Iserman (1982), 120 Mich. App. 785, 792-93, 327 N.W.2d 559, 562 (holds changes may be more restrictive, a decision which is in contradiction to Van Deusen v. Ruth (1939), 343 Mo. 1096, 125 S.W.2d 559, 561).) Other of these cases hold that adopted changes, all of which concerned existing or related restrictions, were proper. (See Lehmann v. Revell (1933), 354 Ill. 262 (building height restrictions could be amended); Duffy v. Sunburst Farms East Mutual Water & Agricultural Co. (1979), 124 Ariz. 413, 604 P.2d 1124 (mandatory association membership requirement could be revoked); Ardmore Park Subdivision Association, Inc. v. Simon (1982), 117 Mich App. 47, 323 N.W.2d 591 (where issue on appeal was whether an association could make a change binding subsequent purchasers who never agreed to the change, the association had prohibited the building of fences over four feet tall); Warren v. Del Pizzo (1980), 46 Or. App. 153, 611 P.2d 309 (change eliminated past height restrictions); Bryant v. Lake Highlands Development Co. of Texas, Inc. (Tex. Civ. App. 1981), 618 S.W.2d 921 (amendment could permit previous single family townhome restriction to be changed to allow the building of fourplex units).) Finally, the other cases raise issues not relevant here. (See Duffy v. Sunburst Farm East Mutual Water & Agricultural Co. (1979), 124 Ariz. 413, 604 P.2d 1124 (issue was whether sufficient majority existed to effectively revoke a covenant); Ardmore Park Subdivision Association, Inc. v. Simon (1982), 117 Mich. App. 47, 323 N.W.2d 591 (issue was whether changes could bind subsequent purchaser who never agreed to the change); Bryant v. Lake Highlands Development Co. of Texas, Inc. (Tex. Civ. App. 1981), 618 S.W.2d 921 (whether changes must apply to all of the properties subject to the original restrictions).) Therefore, none of these cases aid in the resolution of this issue. See generally Annot., 4 A.L.R.3d 570 (1965) (discusses effect of contractual provisions permitting future revocation or modification of covenants restricting use of real property).

The Association urges that requiring the payment of an assessment does not constitute a new burden upon defendant because the deed conveyed to him included easements permitting him to use common area, the repair and maintenance of which, by law, must be paid by easement holders. While Illinois law recognizes that where a party has an easement on a servient tenement, it has the duty to maintain and repair it (Triplett v. Beuckman (1976), 40 111. App. 3d 379, 381; Andrews v. City of Springfield (1965), 56 111. App. 2d 201, 213), this duty to pay cannot be imposed in the instant case for several reasons. First, the record does not indicate that the Association sought to assert this theory at trial, and thus waived it. Second, where a grantee has an easement which he shares with others, his duty to repair and maintain it must be apportioned with all other easement holders based upon the extent of the individuals’ use of the easement. (Barnard v. Gaumer (1961), 146 Colo. 409, 413, 361 P.2d 778, 781; Lindhorst v. Wright (Okla. App. 1980), 616 P.2d 450, 455.) Furthermore, the duty to pay includes only those repairs and maintenance requirement which are necessary and reasonable. (616 R2d 450, 454.) In the instant case, the record does not contain any evidence establishing the extent of defendant’s use of the easement, if any, that the assessments would be applied to repair and maintain these easements, that the repair and maintenance requirements were necessary and reasonable, or, for that matter, whether the Association had the authority to enforce defendant’s obligation to pay for repairs and maintenance. Therefore, based upon the record before this court, the Association’s argument lacks merit.

The Association further argues, correctly, that had a covenant in the deed required membership in the Association and the payment of dues, a court would be obligated to enforce it. (See Streams Sports Club, Ltd. v. Richmond (1982), 109 Ill. App. 3d 689, 694-95, aff’d (1983), 99 Ill. 2d 182; Fox Lake Hills Property Owners Association v. Fox Lake Hills, Inc. (1970), 120 Ill. App. 2d 139, 145-46; Bessemer v. Gersten (Fla. 1980), 381 So. 2d 1344, 1347; William W. Bond, Jr. & Associates, Inc. v. Lake O’The Hills Maintenance Association (Miss. 1980), 381 So. 2d 1043, 1044.) However, the instant deed does not contain such a cqvenant. Therefore, while it may have been wise and proper for the developer to include such a covenant because assessments of this nature serve an important function to insure that owners of individual lots may enjoy the use of their easements and maintain the value of their property (see Boyle v. Lake Property Owners Association, Inc. (S.D. Ala. 1982), 538 F. Supp. 765, 770), the developer failed to so include a provision and defendant purchased the property without notice that such a provision may later be imposed upon him. Therefore, just as courts will enforce changes of restrictions made pursuant to a provision so permitting because the grantees take title of the property with notice of the possibility that the original restrictions may be changed (see Warren v. Del Pizzo (1980), 46 Or. App. 153, 157, 611 P.2d 309, 311; Bryant v. Lake Highlands Development Co. of Texas, Inc. (Tex. Civ. App. 1981), 618 S.W.2d 921, 923), they should not enforce changes where a grantee takes title without proper notice that a majority of the lot owners may impose an assessment upon his property at some future time. Such a grantee can only be bound by what he had notice of, not the secret intentions of the grantor. Cimino v. Dill (1982), 108 Ill. App. 3d 782, 785.

It is recognized that courts may find an implied covenant in a deed. A covenant will be implied, however, only when the court can clearly see that it was the intention of the parties to have such an agreement or when it is necessary to effectuate the purpose of the agreement. (Galich v. Catholic Bishop (1979), 75 Ill. App. 3d 538, 544, cert. denied (1980), 445 U.S. 916, 63 L. Ed. 2d 600, 100 S. Ct. 1277.) Based upon the record submitted to this court, it is not clear that it was the intention of the parties that a majority of the lot owners could impose dues upon individual lot owners at some time in the future. Furthermore, it has not been shown that the method employed by the Association is necessary to effectuate the purpose of the deed covenants and easements. Significantly, no copy of the declaration referred to in the deed and which apparently concerns the use of the easements has been made part of the record. Therefore, the Association’s argument which attempts to obtain this court’s approval of its conduct because of the alleged necessity of its imposition of assessments is rejected.

Contrary to the Association’s contention, the trial court did not place form over substance. Rather, the trial court correctly construed a deed which failed to provide any authority for the Association to impose assessments upon individual lot owners. Lacking authority, the Association could not require an owner to pay the assessed dues. (See generally Sinnissippi Apartments, Inc. v. Hubbard (1983), 114 Ill. App. 3d 151 (absent agreement by owner of unit in cooperative housing building, plaintiff could not require him to accept extra shares in building which would have resulted in increased assessments).) Hence, the judgment of the circuit court is affirmed.

The judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


text:
    JAMES DUNAVAN, Plaintiff-Appellant, v. HERITAGE HOUSE NURSING HOME et al., Defendants-Appellees.
    Fifth District
    No. 82—663
    Opinion filed January 26, 1984.

      Michael J. Logan, of Calandrino, Logan and Berg, P.C., of Springfield, for appellant.
    James B. Wham, of Wham & Wham, of Centralia, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff appeals from an order of the trial court that dismissed his second amended complaint for damages for personal injuries and from a subsequent order denying his motion for reconsideration. The basis of the court’s order of dismissal was that because of mistaken identity the plaintiff had brought suit against and served the wrong party defendant. In its order the court denied the plaintiff leave to amend his complaint to change the name of the defendant on the basis of a misnomer because the statute of limitations was a bar to the action. We affirm.

There is no dispute of the facts. Plaintiff was a nursing home inspector employed by the State of Illinois. On June 15, 1976, in the course of his duties, he slipped and fell at a nursing home in Vandalia called Heritage House Nursing Home, allegedly receiving the injuries that are the subject of this suit. On June 14, 1978, plaintiff filed his complaint for personal injuries, naming as parties defendant “Heritage House Nursing Home and Bonnie Johnson, its Administrator.” The complaint was filed one day before the expiration of the applicable two-year statute of limitations. Service of summons was made, as shown by the sheriff’s return, upon “Bonnie Johnson,” without more, and also upon Heritage House Nursing Home by serving Doris Langston, “registered agent, officer or agent.” Service on both parties was made on June 20, 1978, a time after the expiration' of the two-year statute of limitations.

On July 17, 1978, a motion to dismiss the complaint was filed on behalf of the named defendants on the grounds that Heritage House Nursing Home was not a legal entity and that no cause of action had been stated against Bonnie Johnson. No further action was taken until September 1, 1981, when plaintiff filed a motion for leave to file an amended complaint substituting “Langston Enterprises, Incorporated, a Foreign Corporation” in place of defendants Heritage House Nursing Home and Bonnie Johnson, its administrator. “Bonnie Johnson, its Administrator” was not included as a party defendant in the amended complaint plaintiff sought leave to file. The court heard argument on plaintiff’s motion on September 1, and, on October 8, 1981, entered the following record sheet order:

“This matter having come on for hearing on plaintiff’s Motion for Leave to File Amended Complaint to substitute a party defendant and objection thereto by defendant and the Court having heard arguments and considered briefs as prepared by counsel, deny [sic] plaintiff’s Motion to add or substitute party defendant. Said ruling is based on the requirements of Sec. 46(4) of the Civil Practice Act of Illinois. Specifically this Court finds that plaintiff has not carried the burden of showing, as he must, that the party to be added or substituted within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him. The plaintiff has failed to show or demonstrate this to the Court. Therefore, plaintiff cannot avail himself of the benefits of this situation. Complaint dismissed.
Defendant’s [sic] Motion to Dismiss granted with leave given plaintiff to file an Amended Complaint against Bonnie Johnson.”

No appeal was taken by plaintiff from the order of October 8 that denied plaintiff the right to substitute Langston Enterprises, Incorporated, a foreign corporation, as a party defendant in the place of Heritage House Nursing Home, and we do not review the propriety of that order.

On November 2, 1981, plaintiff filed an amended complaint naming as the sole defendant “Bonnie Johnson, Administrator of Heritage House Nursing Home.” In response to a motion, the amended complaint was dismissed, and plaintiff was granted leave to file a second amended complaint by a record sheet order of March 26, 1982.

The second amended complaint was filed on March 26, 1982, naming as the sole defendant “Bonnie Johnson, Administrator of Heritage House Nursing Home.” The second amended complaint was in one count and was directed against “Bonnie Johnson, Administrator of Heritage House Nursing Home.” Numbered paragraph one of the complaint alleged that on June 16, 1976, Langston Enterprises, Incorporated, owned and operated a nursing home called Heritage House Nursing Home. Numbered paragraph two alleged that Bonnie Johnson was employed by Langston Enterprises, Incorporated, as “an” administrator of Heritage House Nursing Home. The remaining nine paragraphs of the second amended complaint were given to allegations of the negligence of the defendant, and it concluded with a prayer for a judgment against “Bonnie Johnson, Administrator of Heritage House Nursing Home.”

Bonnie Johnson thereupon filed a motion to dismiss the second amended complaint pursuant to section 48 of the Civil Practice Act (111. Rev. Stat. 1979, ch. 110, par. 48). The motion was supported by her affidavit that attested that although she had been an employee at Heritage House Nursing Home for a number of years prior to May 1975, she had left that employment some time in April 1975 and had never thereafter returned to work for Langston Enterprises, Incorporated. The affidavit further recited that she had not been on the premises of the Heritage House Nursing Home after April 1975. These facts were not disputed by the plaintiff in any way. Following a hearing and the submission of briefs, the court dismissed the second amended complaint by the following record sheet entry of June 23, 1982, that comprises the order that is the subject of this appeal:

“The Court has considered the pleadings on file, arguments of counsel and briefs which were submitted by counsel for both parties; after considering all of the above, the Court finds that the naming of ‘Bonnie Johnson as Administrator ***’ in the Second Amended Complaint herein is a case of mistaken identity and not merely a misnomer which could be now corrected under Sec. 21 of the Civil Practice Act; the Court also finds that the plaintiff cannot now avail, .himself of the provisions of Sec. 46(4) to add or substitute a party defendant as the Statute of Limitations has expired; accordingly defendant’s Motion to Dismiss is granted as to the 2nd Amended Complaint.”

By an order entered on October 15, 1982, plaintiff’s motion for reconsideration was denied, and this appeal followed.

It is plaintiff’s contention on appeal that section 21 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 21) is addressed to misnomer in pleadings and authorizes the change of the name of the defendant in the second amended complaint from Bonnie Johnson, administrator, to Doris Langston, administrator. Plaintiff notes that service of summons was made upon both Bonnie Johnson, a past administrator of Heritage House Nursing Home, and Doris Langston, the registered agent of Langston Enterprises, Incorporated, the owner and operator of Heritage House Nursing Home. Plaintiff reasons that the designation of an individual, that is, Bonnie Johnson, in the caption of the complaint as an administrator, with no additional designation of such person as being a party individually, should have been sufficient indication of the party intended to be sued, namely, the administrator, provided service was in fact effected upon the proper party. In this case, plaintiff continues, the proper party “for service” was Doris Langston, now alleged to be the administrator of Heritage House Nursing Home, and service was effected upon her when she was served as the registered agent of the corporation that operated Heritage House Nursing Home.

Section 21(2) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 21(2)) provides:

“(2) Misnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.”

Since the statute of limitations had run on plaintiff’s cause of action at the time service of summons was effected, substitution of the parties could be made only for misnomer pursuant to section 21(2). A new party could be added only if all the conditions of section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 46(4)) had been met. That section provides that a cause of action against a person not originally named a defendant is not barred by lapse of the time provided in a statute or contract within which to bring an action or assert a right, but the prescribed conditions must be fulfilled.

The recent case of Clinton v. Avello (1982), 105 Ill. App. 3d 336, 338, 434 N.E.2d 355, 356, recites the following, with which we fully agree:

“The pivotal inquiry in dealing with an issue of misnomer is who did the plaintiff intend to sue. (Schultz v. Gerstein (1977), 50 Ill. App. 3d 586, 365 N.E.2d 1128; Cigan v. St. Regis House Hotel (1979), 72 Ill. App. 3d 884, 391 N.E.2d 197; Ashley v. Hill (1981), 101 Ill. App. 3d 292, 427 N.E.2d 1319.) To conduct this inquiry, a court must look at evidence in the record which serves as a manifestation of the plaintiff’s intent. Fitzpatrick v. Pitcairn (1939), 371 Ill. 203, 20 N.E.2d 280; Goff v. Will County (1941), 311 Ill. App. 207, 35 N.E.2d 718; Ashley v. Hill (1981), 101 Ill. App. 3d 292, 427 N.E.2d 1319.
The most probative evidence of who a plaintiff intended to sue is the party named by the plaintiff in the complaint. If such a party in fact exists, but is not the real party in interest, a court can conclude that the plaintiff has mistakenly sued the wrong party. Fitzpatrick v. Pitcairn (1939), 371 Ill. 203, 20 N.E.2d 280; Schaffner v. B. & W. Auto Sales Co. (1944), 321 Ill. App. 632, 53 N.E.2d 318; Marsden v. Neisius (1955), 5 Ill. App. 2d 396, 126 N.E.2d 44.”

The court in Clinton noted that the plaintiff intended to sue the driver of the car who caused his injuries. They said, however: “We do not believe that such general descriptive language in a complaint is sufficient evidence of who the plaintiff intended to sue. It merely begs the question for a plaintiff to contend that he intended to sue the party that caused his injuries.” (105 Ill. App. 3d 336, 338, 434 N.E.2d 355, 356.) We think that much the same situation pertains in the case under consideration and that we have a case of mistaken identity rather than an instance of misnomer.

It is apparent from the original complaint filed in this case that the plaintiff intended to sue the entity operating the nursing home and the administrator of the nursing home. Both were named and both were charged with negligence in a one-count complaint. However, the name ascribed to the nursing home was, on its face, a legal non-entity, and the name of the administrator was in error because the person so designated was, it later developed, neither the administrator nor an employee of the nursing home.

Over three years after filing his original complaint, plaintiff sought leave to file an amended complaint in which he correctly designated as a party defendant the corporation that owned and operated the nursing home as the sole party defendant. Basing its ruling on section 46(4) of the Civil Practice Act, the court denied plaintiff leave to file this complaint. That order was not appealed. Thereafter, no further effort was made by plaintiff to bring in the named corporation, Langston Enterprises, Incorporated, as a party defendant.

Following the unsuccessful effort to add the corporation as a party defendant, plaintiff turned his efforts toward the administrator of the nursing home. In two subsequent amended complaints, plaintiff named Bonnie Johnson, administrator of the Heritage House Nursing Home, as the only defendant. The second amended complaint, the one we review, alleges that Langston Enterprises, Incorporated, at material times, employed Bonnie Johnson as administrator of Heritage House Nursing Home. Specific acts of negligence are alleged to have been committed by defendant. The second amended complaint concludes with a prayer for a judgment against “Bonnie Johnson, Administrator of Heritage House Nursing Home,” in excess of $15,000.

“The misnomer rule is narrow, however, and applies only where an action is brought and summons served upon a party intended to be made a defendant (thus giving actual notice of the lawsuit against the real party-in-interest), but the process and complaint do not refer to the person by his correct name. (Janove v. Bacon (1955), 6 Ill. 2d 245, 250, 128 N.E.2d 706, 709; Ingram v. MFA Insurance Co. (1974), 18 Ill. App. 3d 560, 566, 309 N.E.2d 690, 695, appeal denied (1974), 56 Ill. 2d 587.) The courts of this State have long distinguished the misnomer rule, which is applicable only to correctly joined and served but misnamed parties, from those cases where due to mistaken identity the wrong person is joined and served. (E.g., Proctor v. Wells Brothers Co. of New York (1914), 262 Ill. 77, 104 N.E. 186, aff’g (1913), 181 Ill. App. 468; Cigan v. St. Regis House Hotel (1979), 72 Ill. App. 3d 884, 391 N.E.2d 197.) The determination of whether a case involves misnomer or mistaken identity depends on the intent of the parties, but the subjective intention of plaintiff as to who he intended to sue has not been held controlling in the face of objective manifestations indicating an intent to sue another. Proctor v. Wells Brothers Co. (1914), 262 Ill. 77, 80-81, 104 N.E. 186, 187.” (Ashley v. Hill (1981), 101 Ill. App. 3d 292, 294-95, 427 N.E.2d 1319, 1321.)

Also see Leonard v. City of Streator (1983), 113 Ill. App. 3d 404, 447 N.E.2d 489.

In the posture presented, the second amended complaint seeks a judgment against Bonnie Johnson, personally and individually. Bonnie Johnson, administrator, is not an entity separate and apart from Bonnie Johnson, an individual. The appellation of “Administrator of Heritage House Nursing Home” following the name of Bonnie Johnson is nothing more than a descriptive term. It neither constitutes nor describes a legal entity. It neither adds to nor detracts from the personal liability of the individual named as administrator, especially where, as here, there is no attempt in the complaint to impose liability vicariously upon the employer corporation. The term “administrator” as a suffix provides no source for collection of any judgment rendered other than from Bonnie Johnson. As we have already noted, Heritage House Nursing Home is not a legal entity. There is no attempt made in the second amended complaint to allege or show that Bonnie Johnson, administrator, is the alter ego of Langston Enterprises, Incorporated, or to show in any manner that that corporation would be liable for any judgment that might be rendered against Bonnie Johnson. While a person employed in the capacity of an “administrator” may be a proper party to receive service of summons for the entity which the administrator serves, the administrator cannot be said to be the alter ego of that entity. “The administrator,” as used in this case in particular, is an especially informal designation. Webster’s Third New International Dictionary defines “administrator,” in the context applicable here, as: “[0]ne that administers: as *** an officer that directs or superintends affairs (as of a business, school or government agency).” (Webster’s Third New International Dictionary 28 (1961).) It is stated in C.J.S. that “[t]he term [administrator] is sometimes used in a generic, not a technical sense, as being broad enough to include all who administer property within the particular class by whatever name called. So used, the word may be defined in a general sense, as one who administers, a manager ***.” 2 C.J.S. 80 (1972).

In view of the foregoing analysis, when Bonnie Johnson’s section 48 motion and affidavit disclosed that she had not been an employee of Langston Enterprises, Incorporated, for two months prior to, and was not at the nursing home at the time of plaintiff’s accident, plaintiff’s case against Bonnie Johnson collapsed. Plaintiff had brought suit against the wrong person, an instance of mistaken identity rather than of misnomer. It is of no consequence that the wrong person was designated an administrator.

Even if the descriptive appellation of “Administrator of Heritage House Nursing Home” be appended to the name of Doris Langston, whom plaintiff seeks to substitute for Bonnie Johnson, plaintiff’s case cannot be resurrected. That Doris Langston was the administrator of the nursing home on the date of plaintiff’s accident would not in and of itself impose liability for that accident upon Langston Enterprises, Incorporated. In the capacity of administrator she, like Bonnie Johnson, would be at most a proper agent for service of summons upon the corporation had the corporation been named a defendant. If personal liability were in fact sought against her, the fact that she was administrator of the nursing home at the time of the accident would not absolve her from her personal liability, nor would it permit imposition of liability upon the corporation that had already been dismissed out of the case as a party defendant. Accordingly, any attempt at this late date to impose personal liability upon Doris Langston has long been barred by section 46(4) of the Civil Practice Act. And aside from the impediment of section 46(4), her name cannot be substituted for that of Bonnie Johnson because of a misnomer pursuant to section 21(2) of the Civil Practice Act. It was an instance of mistaken identity.

Affirmed.

EARNS and HARRISON, JJ., concur.


author: JUSTICE KASSERMAN

text:
    JOHN OWEN CLARK, SR., Plaintiff-Appellant, v. JAMES “SON” ULRICH et al., Defendants-Appellees (Lallah Spurlock, Clerk of the County of Pulaski, Appellee).
    Fifth District
    No. 83—146
    Opinion filed January 5, 1984.
    Rehearing denied February 7, 1984.
    E. Charles Geittmann, of E. Charles Geittmann, P.C., of Metropolis, for appellant.
    W. C. Spomer and Mark S. Johnson, both of Law Offices of W. C. Spomer, of Cairo, for appellee Henry Schnaare.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This appeal involves an election contest. The election, for county commissioners of Pulaski County, Illinois, was held November 2, 1982. Plaintiff was defeated; and James “Son” Ulrich and Henry Schnaare, defendants herein, were elected. Lallah Spurlock, county clerk of Pulaski County, is designated a nominal party defendant. The circuit court of Pulaski County dismissed plaintiffs petition with prejudice on February 22, 1983, concluding that that court was without subject matter jurisdiction because plaintiff’s petition was not properly verified. Plaintiff appeals.

Plaintiff’s petition states in general terms that the election judges for the election in question had committed fraud, mistakes and irregularities in the conduct of the election. Thereafter, in paragraph 11 of the petition, plaintiff lists eight election precincts of Pulaski County and, for each precinct, separately sets forth more specific allegations as to each said precinct. As to Mound City Precinct Number Two, those allegations are as follows:

“1. That the Judges of election of this precinct wrongfully refused to count certain ballots they judged to be defective by reason of identifying marks which in fact were not identifying marks and said ballots should have been counted, which ballots were voted for plaintiff by the voter.

2. That the Judges of Election of this precinct upon finding a ballot that could not be counted by the mechanical counter failed to properly duplicate another ballot for counting in that they voted the duplicate ballot for the wrong candidate, or a candidate for whom the voter did not vote, resulting in the failure to count votes properly cast for the plaintiff.

3. That the Judges of Election of this precinct improperly and illegally rejected and refused to count certain absentee ballots for the following reason:

(a) The absentee voter enclosed or placed his or her ballot in one or more envelopes and either affixed tape or a seal to the flap of said envelope to securely protect same against opening and changing the vote thereof or in his or her presence saw and observed tape or a seal so affixed to the flap of said envelope that it was secured against opening. That upon encountering envelopes with ballots so enclosed and sealed the Judges of Election wrongfully rejected said ballots and refused to count same and upon information and belief plaintiff believes said ballots were rejected and refused for the reason the Election Judges believed them to have been opened and re-sealed when in fact they were not so opened and re-sealed. Said ballots were all contained in envelopes required by law and furnished by Lallah Spurlock, County Clerk of Pulaski County.

4. The Judges of Election refused to count certain absentee ballots because they wrongfully found that the signature upon the ballot envelope and the poll books and other records did not correspond.

5. The Judges of Election refused to count certain absentee ballots for the reasons not prescribed by law.

6. The Judges of Election wrongfully determined and therefore refused to count certain absentee ballots of voters legally qualified to vote who they in fact claimed were not legally qualified to vote.”

The allegations relating to the other seven precincts are virtually verbatim duplications of the allegations as to Mound City Precinct Number Two. Plaintiffs petition concludes with the affidavit:

“JOHN OWEN CLARK SR. being first duly sworn, deposes and states that I am the plaintiff in this cause, that I have read the above-captioned Petition to Contest Election of Pulaski County Commissioners In the General Election of November 2, 1982, that I have knowledge of the facts contained therein and the foregoing document is true and correct in substance and in fact.”

Plaintiff urges that this affidavit was sufficient verification of the petition to confer jurisdiction upon the circuit court and that the court should have permitted plaintiff to amend his complaint. While conceding that the purported verification was deféctive, plaintiff urges that the petition contains sufficient allegations of fact, properly sworn to, to state a cause of action within the jurisdiction of the circuit court. Defendants maintain that the affidavit was fatally defective and that the circuit court did not acquire jurisdiction of the cause.

Section 23 — 20 of the Election Code states, in pertinent part:

“The person desiring to contest such election shall, within thirty (30) days after the person whose election is contested is declared elected, file with the clerk of the proper court a petition, in -writing, setting forth the points on which he will contest the election, which petition shall be verified by affidavit in the same manner as complaints in other civil cases may be verified.” (Ill. Rev. Stat. 1981, ch. 46, par. 23 — 20.)

Section 2 — 605(a) of the Code of Civil Procedure provides that, in verified pleadings, “*** the several matters stated shall be stated positively or upon information and belief only, according to the fact.” Ill. Rev. Stat. 1981, ch. 110, par. 2 — 605(a).

The issue presented by the instant appeal is whether plaintiffs affidavit was sufficient to invoke the trial court’s jurisdiction over this cause.

Defendants observe that the following affidavit was held to be sufficient:

“[That plaintiff has] ‘read the foregoing petition subscribed to by him and knows the contents thereof, and that the same is true except as to matters therein set forth upon information and belief, and as to such matters he believes them to be true.’ ” (Farrell v. Heiberg (1914), 262 Ill. 407, 409, 104 N.E.2d 835, 836.)

The instant affidavit does not refer to the matters alleged upon information and belief. However, the instant allegations upon information and belief are unusual in that each one states, not only “upon information and belief,” but also, immediately following, “plaintiff believes.” As demonstrated by Farrell v. Heiberg, plaintiff’s verification that he believed each allegation that was made upon information and belief should have been made collectively in the affidavit. The instant affidavit was defective in that regard. However, since plaintiff positively stated his belief in each allegation upon information and belief contemporaneously with that allegation, we view said defect as one of form only, and not sufficient to render void any judgment subsequently entered.

We also note that while each allegation made upon information and belief is made together with the allegation that plaintiff believes it, plaintiff does not expressly state that he believes it to be true (see Farrell v. Heiberg); however, we find that to be the necessary import of plaintiff’s several such statements. Accordingly, this omission is curable by amendment and does not constitute a failure to properly invoke the jurisdiction of the circuit court.

Defendants’ citations of authority are not sufficiently apposite to support a contrary conclusion. The verification in Girhard v. Yost (1931), 344 Ill. 483, 176 N.E. 899, was on information and belief only, while the petition was on direct statements of fact and contained no allegations on information and belief. The affidavit in Armstrong v. Wilkinson (1931), 346 Ill. 322, 179 N.E. 97, verified only as to allegations made upon information and belief. Also, both of these cases were decided prior to our legislature’s liberalization of the rules of pleading and amendment of pleadings. (See Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616; Graves v. Needham (1942), 379 Ill. 25, 28, 39 N.E.2d 321, 322.) Further, there was no verification whatsoever in Doelling v. Board of Education (1959), 17 Ill. 2d 145, 160 N.E.2d 801.

For the foregoing reasons, the judgment of the circuit court of Pulaski County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

JONES and EARNS, JJ., concur.