text:
    HERBERT F. STRIDE et al., Plaintiffs and Counterdefendants and Defendants-Appellees and Cross-Appellants, v. 120 WEST MADISON BUILDING CORPORATION, Defendant and Counterplaintiff and Plaintiff-Appellant and Cross-Appellee.
    First District (3rd Division)
    No. 84—441
    Opinion filed April 10, 1985.

      Robert Handelsman, Anthony A. Lee, and Edward S. Salomon, all of Robbins, Coe, Rubinstein & Shafran, Ltd., of Chicago, for appellant.
    Kevin M. Forde, Ltd., of Chicago (Kevin M. Forde and Katrina Veerhusen, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Herbert E Stride and Herbert F. Stride, Ltd., brought this action against Joseph Stefan and 120 West Madison Building Associates (Associates), former owners and lessors of the building at 120 West Madison Street in Chicago. Stride sought an injunction to prevent Stefan and Associates from terminating his lease and for an accounting of excess rent paid. One month later, 120 West Madison Building Corporation (the Corporation), the current owners of the building and a codefendant in Stride’s action, filed a forcible entry and detainer action against Stride. The Corporation also sought double rent and attorney fees under the lease. The trial court consolidated all the actions. After a trial, the court found that Stefan and Associates properly terminated the lease, entered judgment for possession, denied double rent during the pendency of the lawsuit and denied attorney fees for the Corporation. The Corporation appeals from the denial of double rent and attorney fees. Stride has filed a cross-appeal from the findings in favor of the Corporation.

Stride, an attorney, has been a tenant in the building for approximately 20 years. In 1982, he negotiated a five-year lease commencing on August 1, 1982. Paragraph 18(e) of the lease provides:

“The Lessor shall have the right to terminate this lease on the thirtieth day of April in any year if the Lessor *** decides to sell the building or the land under it ***. Such termination shall become effective and conclusive by notice of the Lessor to the Lessee not less than ninety days prior to the thirtieth day of April fixed in the notice. *** [T]he right hereby reserved to the Lessor shall inure to all purchasers, designees, lessees, transferees and ground lessees, as the case may be and is in addition to all other rights of the Lessor.”

In December 1982, Stefan and Associates negotiated the sale of the building to the Corporation. An agreement was reached on December 23, 1982, which provided for the closing through an escrow. Pursuant to the contract, Associates prepared and executed an assignment of the building’s leases and deposited it in the escrow on January 17, 1983. On January 24, Stride was served with a notice, signed by Stefan and delivered to one of Stride’s employees, that his lease was terminated as of April 30, 1983. Stride received actual notice sometime in February 1983. The sale of the building was closed on February 1, 1983.

On April 18, 1983, Stride filed this action challenging the validity of the attempted termination of the lease. The Corporation filed its action for forcible entry and detainer, alleging that Stride was a “hold over” under the terms of the lease. It sought double rent from May 1, 1983, and attorney fees. The trial court found that the termination was valid and entered judgment for possession, but stayed execution until April 1, 1984. The court found that Stride had not acted in bad faith and consequently ordered double rent payment only in the event Stride held over after April 1, 1984. The Corporation’s claim for attorney fees was denied.

We first address Stride’s contention that the notice of termination of the lease was ineffective. Stride initially maintains that Stefan and Associates could not validly terminate the lease on January 24 because they assigned their interest eight days earlier and were no longer the “Lessor” under paragraph 18(e) of the lease.

Where a valid assignment is effective, the assignee acquires all of the interest of the assignor that is transferred and stands in the shoes of the assignor. (Stavros v. Karkomi (1976), 39 Ill. App. 3d 113, 349 N.E.2d 599.) Generally, an assignment placed in escrow to be .delivered upon the completion of some condition is not operative to convey an interest until the happening of the event. (Hirschberg v. Russell (1943), 317 Ill. App. 329, 45 N.E.2d 886.) However, the instrument will be treated as relating back to and taking effect at the time of its original deposit in escrow where a resort to this fiction is necessary to prevent injustice or to effectuate the intent of the parties. (Clodfelter v. Van Fossan (1946), 394 Ill. 29, 67 N.E.2d 182.) Since the delivery of the assignment to the escrow did not operate to convey the seller’s interests to the Corporation, we must determine whether the equities and the intentions of the parties require a finding that the assignment relates back to January 17.

Although Stride testified that he was unaware of paragraph 18(e), he maintains the intention of the parties in inserting such a clause in the lease was to give the lessor the privilege of conveying possession to the purchaser. Stride presented evidence that Stefan told him in December 1982 that a termination notice might not be sent if Stride renegotiated the lease. Stefan stated that only one other tenant received a termination notice. Stride urges that the notice was sent to cancel an unprofitable lease and to coerce him into paying higher rent, rather than to convey possession to the Corporation.

The language of the lease does not clearly indicate the intent of the parties in inserting a termination clause. In fact, Stride’s testimony that he was unaware of the termination clause belies any intention on his part. As one authority has noted, termination clauses benefit owners in that they can sell more easily and the purchasers may continue the lease, take possession for its own use, or make a better rental. (2 M. Friedman, Friedman on Leases sec. 21.302, at 1037-38 (2d ed. 1983); see Basiliko Inv. Corp. v. United Cigar-Whelan Stores Corp. (D.C. Cir. 1948), 168 F.2d 567.) The record indicates that Stride’s rent was substantially lower than the other tenants in the building due to a computational error. There is no inequity in the Corporation’s wanting Stefan to terminate the lease so it could find a more profitable tenant or to compel a renegotiation by Stride. Stride, an attorney, gave Stefan the power to terminate when he signed the lease. The trial court properly found that the termination was valid under the terms of the lease.

We likewise reject Stride’s argument that Stefan was acting as an agent of the Corporation, attempting to exercise a power which the Corporation did not have. While the Corporation has no power to terminate until some future date when it sells the building, there is nothing which prevents it from discussing the leases with the sellers and requesting that certain leases be cancelled. Stride cites no authority to support his position that the sellers had to act independently of the buyer’s wishes and we find none.

We next turn to the Corporation’s argument that Stride was a “hold over” entitling the Corporation to double rent and attorney fees. Paragraph 7 of the lease provides in relevant part:

“Holding Over: If the Lessee retains possession of the premises or any part thereof after the termination of the term by lapse of time or otherwise, the Lessee shall pay the Lessor rent at double the rate of rental specified in Section 1 for the time the Lessee thus remains in possession, and in addition, shall pay the Lessor all damages sustained by reason of the Lessee’s retention of possession.” (Emphasis added.)

The trial court denied double rent from May 1, 1983, to April 1, 1984, based on its finding that Stride did not act in bad faith in failing to vacate the leased premises. The Corporation contends that the court erred in imposing a bad-faith requirement and that the court did not enforce the lease as written.

Illinois has long recognized the right to collect double rent where a tenant wilfully holds over after the expiration of his lease. (Ill. Rev. Stat. 1983, ch. 110, par. 9 — 202.) The statute is highly penal and recovery is granted only where the landlord strictly complies with its terms. (Loeb v. Alexander (1912), 174 Ill. App. 143.) Since double rent cannot be recovered under the statute when the landlord terminates the lease (see Stuart v. Hamilton (1872), 66 Ill. 253), the Corporation contends that paragraph 7 was inserted to provide a means to obtain double rent in the event of a hold over under any circumstances. Stride counters that the trial court erred in awarding double rent after April 1, 1984, because paragraph 7 is an unenforceable penalty clause.

The general rule of contracts that a plaintiff is only entitled to recover damages to the extent of his injury is applicable to cases of breach of a lease. (Wanderer v. Plainfield Carton Corp. (1976), 40 Ill. App. 3d 552, 351 N.E.2d 630.) Where damages are difficult to ascertain, the parties may specify a particular sum as liquidated damages. (5 Corbin on Contracts sec. 1054, at 319 (1964).) However, if the clause fixing damages is merely to secure performance of the agreement; it will be treated as a penalty and only actual damages proved can be recovered. (Scofield v. Tompkins (1880), 95 Ill. 190.) In doubtful cases, we are inclined to construe the stipulated sum as a penalty. Beuttas v. Garvey (1933), 270 Ill. App. 310.

Paragraph 7, by its express terms, allows the lessor to recover “all damages sustained by reason of the Lessee’s retention of possession.” This language evidences the parties’ belief that such damages are ascertainable. Consequently, the provision for double rent payments is not an enforceable liquidated damages clause but a penalty clause to assure prompt performance under the lease.

The case relied upon by the Corporation, Fasking v. Goldberg (1939), 299 Ill. App. 590, 20 N.E.2d 618, to support its claim for double rent, is distinguishable from the present case. In Fasking, double rent and attorney fees were awarded pursuant to the terms of the lease when the tenant did not give up possession after the lease term had expired. The fact that the lease expired in Fasking and the lease before us was terminated is irrelevant. The controlling fact in analogizing the statute and the Fasking case to the present lease is the finding of wilfulness. In order to enforce the double rent clause, the trial court imposed the bad-faith requirement. Consistent with its finding that Stride’s hold over was not in bad faith, the trial court properly denied double rent from May 1, 1983, to April 1, 1984. The execution of the judgment for double rent after April 1, 1984, was stayed pending disposition of this appeal. Since there was a bona fide dispute before this court about rightful possession of the premises, the Corporation is not entitled to double rent during the pendency of this appeal.

The Corporation further maintains that the double rent was not a penalty since Stride’s rent was substantially less than comparable office space and that the trial court’s finding that Stride did not act in bad faith was against the manifest weight of the evidence. We have considered each of these arguments and find that they are without merit.

We next consider the Corporation’s contention that the trial court erred in denying attorney fees. Paragraph 15(g) of the lease requires the lessee to pay “the fees of counsel, agents and others retained by the Lessor, incurred in enforcing the Lessee’s obligations hereunder or incurred by the Lessor in any litigation, negotiation or transaction in which the Lessee causes the Lessor, without the Lessor’s fault, to become involved' or concerned.” Again, the trial court found that Stride did not act in bad faith, and it denied attorney fees.

Where allowed by contract, attorney fees may be recovered by a successful litigant. (Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859; Presbyterian Distribution Service v. Chicago National Bank (1960), 28 Ill. App. 2d 147, 171 N.E.2d 86.) Stride does not contest this basic principle. His only argument is that because the termination was ineffective and the Corporation acted in bad faith to coerce higher rent payments, attorney fees should not be awarded. Neither of these arguments supports the trial court’s decision. Furthermore, unlike the double-rent provision, an award for attorney fees is not penal in nature, and whether Stride acted in good faith was irrelevant. The parties clearly agreed to the payment of such fees and the trial court erred in denying them.

The Corporation also asks this court to impose fees and costs pursuant to section 2 — 611 of the Code of Civil Procedure. It maintains that Stride’s action was “without reasonable cause and found to be untrue.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611.) Assuming that this issue has not been waived, the imposition of section 2 — 611 fees is not warranted where the trial court found that Stride acted in good faith.

For the foregoing reasons, that portion of the judgment of the circuit court of Cook County awarding possession of the leased premises to the corporation and denying double rent until April 1, 1984, is affirmed. That portion of the judgment denying attorney fees to the Corporation is reversed, and the cause is remanded for further proceedings consistent with the holdings of this opinion.

Affirmed in part; reversed in part and remanded.

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


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
    LA SALLE NATIONAL BANK, Guardian of the Estate of Charles Murphy, a Minor, Plaintiff-Appellee and Cross-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellants and Cross-Appellees.
    First District (2nd Division)
    No. 83—1693
    Opinion filed March 12, 1985.
    Rehearing denied April 16,1985.

      Sweeney & Riman, Ltd., of Chicago (Kevin F. Donohue and Georgene M. Wilson, of counsel), for appellant City of Chicago.
    Richard S. Fleisher and Barbara J. Clinite, both of Karlin & Fleisher, Ltd., of Chicago (David A. Novoselsky, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Charles Murphy (plaintiff), a nine-year-old third-grade student at Park Manor School in Chicago, lost his left foot and right leg below the knee on March 27, 1979, when he attempted to “flip” (climb aboard) a moving freight train owned and operated by defendant Consolidated Rail Corporation (Conrail), after gaining access to the Conrail railroad tracks by climbing through a hole in a cyclone fence constructed and maintained by defendant city of Chicago (city). Plaintiff filed a cause of action against both defendants alleging negligence and wilful and wanton conduct. Following trial, the jury returned a verdict in favor of the defendants as to wilful and wanton conduct, but found both defendants guilty of negligence, awarding plaintiff damages of $1,130,000. Determining that plaintiff had been 18% negligent, the jury accordingly reduced the damage award to $926,600.

Both defendants initially appealed the verdict against them, and plaintiff cross-appealed on the issue of comparative negligence. Subsequently, Conrail reached a settlement with plaintiff, and, by stipulation of Conrail and plaintiff, Conrail was dismissed out of this appeal.

The city now contends that: (1) as an adjacent landowner only, it owed no duty to a minor trespasser such as plaintiff who was injured by a dangerous condition or activity located on another’s property; (2) because the jury found plaintiff to be 18% comparatively negligent, it follows that plaintiff “appreciated the danger” involved in “flipping” trains and he should therefore be precluded from recovery of any damages; (3) the condition of city’s cyclone fence was not the proximate cause of plaintiff’s injuries; (4) the trial court erred in allowing plaintiff to introduce allegedly speculative testimony with regard to damages; and (5) the trial court improperly instructed the jury.

Plaintiff’s two companions, Raphael Spencer and Charles Cosby, testified that, prior to the date of his injury, they had played on the tracks “about three times.” On these occasions, they had entered through the same hole in the fence. The fence was taller than they were, and their only access to the track area was through the hole in the fence.

Several other students from the Park Manor School testified that they had used the same hole in the cyclone fence to gain access to the Conrail property many times, although they sometimes reached the tracks by scaling a nearby concrete retaining wall. They had played in the area about three times a week during the year and a half preceding plaintiff’s accident. They testified they had seen other children “flip” trains prior to the date of plaintiff’s injury, although for fear of “getting in trouble” they had made contradictory statements when questioned previously by Conrail’s investigators.

Several railroad employees from the crew of the train which injured plaintiff testified. Mr. Knoll, the conductor, testified that he had worked this particular stretch of tracks for 20 years and “from time to time” had observed children playing on the right-of-way. Mr. Watson, the flagman, testified that he made approximately 200 round trips a year on the route the train was taking on the day of the accident. He had previously observed the cyclone fencing separating the Skyway and the right-of-way and had noted holes in the fence. Mr. Baines, the head brakeman, testified that he had on previous occasions seen children standing about 50 yards from the tracks. In his pretrial deposition, Baines stated that on the day of the accident, he saw the plaintiff coming up the hill towards the tracks through the hole in the fence, although at trial he did not recall making this statement.

Rosemarie Harris, who lived at 7012 St. Lawrence Avenue, testified that her house faced the Chicago Skyway and that from her front porch she was easily able to see the railroad tracks. On a number of occasions she had observed children playing in the area between the fence and the tracks. She stated that children had easy access “because there’s an opening in the fence.” During March 1979, she had called the Chicago police approximately three times to report this situation.

In his cross-appeal, plaintiff alleges that the trial court,erred in permitting the jury to reduce the award of damages based on the alleged comparative negligence of plaintiff since neither defendant raised the issue in their pleadings.

The issues raised in this appeal require presentation here of only a truncated version of the facts adduced during the three-week trial. In 1956, city began its plans for the road now commonly referred to as the Chicago Skyway (Skyway). As partial payment for the land which Conrail deeded to city for construction of the Skyway, city entered into a contract with the Pennsylvania Railroad (later absorbed into Conrail) under which city agreed to erect and to maintain fences. City employed an engineering firm to conduct annual inspections of the fences, and as early as 1977, reports from the engineering firm noted defects in such fences and repeatedly recommended that the cyclone fence through which the plaintiff reached the railroad track should be repaired.

Plaintiff testified: Prior to the date of his injury, he had never been told not to play in the area of the Conrail right-of-way and tracks; he had gone there once before to watch other children playing there; on the day of his injury he and two companions had gone through the hole in the fence with the intention of going to the bakery located on the other side of the tracks; when they saw a train approaching they stopped to watch it; plaintiff saw some “bigger boys jump along the side of the train and then I decided to try it”; plaintiff was able to climb on the side of the moving train and grab a ladder, but after a few seconds he lost his balance and fell; he looked down and “saw the bones in my legs” and was unable to get up.

Emil Hessert testified that he was employed by Conrail’s police department since 1955. The Conrail “police blotter” reflected 34 incidents since 1975 of children being present on the railroad property in or near the area where plaintiff was injured. The Conrail “police blotter” also contained additional references to incidents reported by Sky-way employees, by Skyway police and by Chicago police personnel, reflecting the presence of children and others on the right-of-way on or near the stretch of tracks where the accident occurred.

Dr. Terry Carle, co-director of the spinal care injury unit at the Rehabilitation Institute of Chicago, testified that based on his examination of plaintiff and a review of plaintiff’s medical records and the results of vocational tests given to plaintiff, it was his opinion that plaintiff’s opportunities for future employment were “practically nil.”

Michelle Marme, a vocational evaluator employed at the Rehabilitation Institute of Chicago, testified that based on her review of plaintiff’s school records and the results of vocational tests which she administered, plaintiff would be “minimally employable” at age 18, assuming he continued his education and was graduated from high school.

I

City first argues that plaintiff was a trespasser to whom the only duty owed by city as an owner of land was to refrain from wilfully and wantonly injuring him. Although this is generally true, our supreme court in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625, 126 N.E.2d 836, held:

“*** [A]n exception exists where the owner or person in possession knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. [Citation.] The element of attraction is significant only in so far as it indicates that the trespass should be anticipated, the true basis of liability being the foreseeability of harm to the child.” (Emphasis added.)

City contends that Kahn does not apply to it because plaintiff was not injured on city property, but on the adjacent property owned by Conrail. However, this argument misinterprets both the facts and the language of the Kahn opinion. In Kahn, defendant lumber company was found liable for injuries suffered by a child who fell from a pile of lumber which the lumber company had delivered and stacked on land owned by a third party. The court stated:

“The creator of certain conditions dangerous and hazardous to children because of their immature appreciation of such dangers and hazards must be held to a certain standard of conduct for the protection of such children in accordance with the attendant circumstances and conditions. ***. The test in the case at bar is whether the lumber company in the exercise of ordinary care could reasonably anticipate the likelihood that children would climb on to the lumber and would be injured if it were not securely piled.” 5 Ill. 2d 614, 622-23.

In Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 324, 383 N.E.2d 177, the supreme court, in applying the Kahn doctrine, stated:

“It is firmly established in Illinois that a party that creates a dangerous condition will not be relieved of liability because that party does not own or possess the premises upon which the dangerous condition exists. [Citations.] A party that creates a dangerous condition or is in control of premises on behalf of the owner or possessor is subject to liability, to the same extent as would be the owner or possessor, for injury to children caused by the dangerous condition. [Citations.]” (Emphasis added.)

Thus, not only is the “owner” of land upon which a child is injured potentially liable, but a nonowner who “creates” a condition which is hazardous to children on the premises may also be liable under the Kahn doctrine.

Under the circumstances of the instant case, where: (1) city had a contractual duty to maintain the fence which separated its property from that of the railroad; (2) city allowed such fence to remain in a state of disrepair providing access to the railroad tracks; and (3) city had notice that children were in fact using a hole in its fence to gain access to the railroad tracks and to play in close proximity to moving trains which have been recognized as ‘ ‘instrumentality[ies] of great potential danger to children” (Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1965), 73 Ill. App. 2d 5, 18, 220 N.E.2d 43, affd (1969), 42 Ill. 2d 103, 245 N.E.2d 762), we believe that city could properly be found to have “created” or contributed to a hazardous condition even though city did not own the property upon which the dangerous instrumentality was located. Under the Kahn rationale, therefore, city had a duty to exercise ordinary care to guard against injury which may naturally result as the foreseeable consequence of its acts. The test of city’s culpability here is whether city “in the exercise of ordinary care could reasonably have anticipated the likelihood” that plaintiff or any child would climb through the hole in the fence and as a consequence be injured. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 623, 126 N.E.2d 836.) “In the trial of a law suit, questions of one’s due care, another party’s alleged negligence and the proximate cause of such injured party’s injuries and damages are pre-eminently questions of fact for a jury’s determination.” 5 Ill. 2d 614, 623, 126 N.E.2d 836.

Although no Illinois cases appear to have dealt with the precise factual situation of the case sub judice, New York courts have addressed the liability of a city in similar situations for failure to fence or to properly maintain fences for the protection of children. In each case, the city was found liable for the resulting injuries to children occurring on the adjacent railroad property.

In Leone v. City of Utica (1979), 414 N.Y.S.2d 412, 66 App. Div. 2d 463, the city appealed a judgment entered on behalf of a minor who was injured in a railroad yard “located adjacent to a city-owned and regularly-used park and playground” which was not fenced. The court held:

“While the degree of care to be imposed upon a municipality in a particular case is necessarily dependent upon the attendant circumstances and is thus ordinarily a jury question [citation], it is the claim of the defendant City of Utica that the plaintiffs should be foreclosed from recovery as a matter of law. We disagree.” (414 N.Y.S.2d 412, 414, 66 App. Div. 2d 463, 465.)

The court then reviewed the evidence there presented, noting that the railroad property was adjacent to the city’s park and that “[n]either the playground nor the larger park area was enclosed by fencing and thus there were no formidable obstacles or barriers between the playground and the remainder of the park, or between the park and the railroad property.” The court rejected the city’s contention that it “owed no duty” to plaintiff, finding that the city owed to him a duty of “ordinary care”:

“The record sufficiently establishes that young children often played in the wooded area of the park west of the creek and it may be fairly inferred that the city was aware of that activity and made no effort to prevent it. Additionally, the city had knowledge of the location of the railroad tracks and that pathways in the park lead to those tracks. Certainly the jury may have found, in view of the foreseeable danger of serious injury presented by the location of the railroad tracks [citations], that the failure of the city to fence its playground or park, or to supervise the use of the park or take some other reasonable precaution to prevent or discourage children from going onto the railroad property, constituted a lack of ordinary care [citations]. While the city might have introduced proof showing that it would have been unduly burdensome to take measures to avoid the risk of harm presented here [citations], it did not do so.” (414 N.Y.S.2d 412, 415, 66 App. Div. 2d 463, 466-67.)

See also Lukasiewicz v. City of Buffalo (1976), 390 N.Y.S.2d 341, 55 App. Div. 2d 848; Scurti v. City of New York (1976), 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794.

Similarly, in the case at bar, city owed a duty of “ordinary care” to plaintiff as established in Kahn, presenting a jury question with regard to whether that duty had been breached with resulting injury to plaintiff. A jury verdict can be set aside only when a court of review finds it to be a result of passion and prejudice or wholly unwarranted by the evidence. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836.) From our review of the evidence in this record, we believe the jury may reasonably have found that city breached its duty to plaintiff when, despite notice that children were using the hole in city’s fence to gain access to the railroad tracks, city nevertheless failed to repair the fence and as a foreseeable result plaintiff was injured.

II

City next contends that plaintiff’s appreciation of the danger associated with “flipping” moving railroad trains precludes the application of Kahn. A prerequisite for the imposition of liability under Kahn is that the minor plaintiff be found to be “incapable of appreciating the risk involved” by reason of his immaturity. (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625, 126 N.E.2d 836.) City cites Sydenstricker v. Chicago & Northwestern Ry. Co. (1969), 107 Ill. App. 2d 427, 247 N.E.2d 15, for the proposition that where a child is capable of appreciating the risk involved in a particular activity, the application of Kahn is inappropriate. According to defendant the jury’s finding that plaintiff was 18% at fault “conclusively determined that plaintiff was able to and did, in fact, appreciate the risk involved in attempting to jump on a moving freight train.”

Plaintiff responds that in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, our supreme court adopted the “pure” form of comparative negligence and specifically rejected the previous Illinois law which held that any degree of contributory negligence by the plaintiff should bar his recovery. Here, the jury made no specific finding that plaintiff “appreciated the risk” in jumping on a moving freight train. It merely found that plaintiff was 18% at fault. We cannot conclude from such verdict that “plaintiff actually appreciated the danger of flipping railroad cars” within the context of Kahn and Sydenstricker.

III

City next contends that its alleged negligence in failing to maintain the fence through which plaintiff reached the railroad tracks could not be the premise of liability because such negligence was not the proximate cause of plaintiff’s injuries. City defines proximate cause as “a cause which in its natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred.” Here, city contends its alleged negligence did no more than “furnish a condition by which an injury is made possible and that [when such] condition causes an injury by the subsequent independent act of a third person, the creation of the condition is not the proximate cause of the injury.” In short, city maintains that its failure to repair the fence, under these facts, at most enabled plaintiff to be injured by the independent and intervening act of the railroad.

Plaintiff responds that under the facts of this case the question of whether city’s negligent maintenance of the fence was a proximate cause of plaintiff’s injuries was a fact question for the jury. In Maskaliunas v. Chicago & Western Indiana R.R. Co. (1925), 318 Ill. 142, 148, 149 N.E. 23, the court was faced with a similar argument and stated “[c]ertainly, it cannot be ruled, as a matter of law, that the absence of a fence did not contribute to the accident, and the question was therefore one proper to be submitted to the jury.” See also Pellegrini v. Chicago, Rock Island & Pacific R.R. Co. (1980), 91 Ill. App. 3d 1091, 415 N.E .2d 615.

In Leone v. City of Utica (1979), 414 N.Y.S.2d 412, 416, 66 App. Div. 2d 463, 467, the court rejected the city’s contention that “its conduct was not the proximate cause of [plaintiff’s] injury,” stating:

“Anthony testified that he was playing in the park when he heard the train whistle and he then ran along one of the footpaths directly to the tracks. While the path Anthony used may have led from the park over private property and then to the tracks, neither the actual place of his exit from the park nor the precise location of the accident may be said to be so remote as to require a determination, as a matter of law, that the injury was not proximately caused by the city’s negligence. The jury properly may have found that the city’s breach of duty was a substantial factor in bringing about this foreseeable occurrence [citations]. Since there were no barriers or apparent line of demarcation between the park land and the contiguous property, it could reasonably have been anticipated that an infant, attracted by a train whistle, might take a path leading from the park and across that property to the tracks. The jury permissibly could have found that a fence along the boundary between the park and the private property would have prevented this accident. Thus viewed, the issue of liability was properly submitted to the jury as a question of fact [citation].”

We believe that under the evidence presented in the instant case the issue of whether city’s failure to maintain its fence was a proximate cause of plaintiff’s injury was appropriately left for the jury’s determination.

IV

City argues that the trial court erred in permitting Michelle Marme and Dr. Terry Carle to testify, as experts, to their opinions regarding plaintiff’s loss of future earnings. City correctly posits that while a plaintiff has the right to recover the amount of future income he will lose due to his injury, he must prove the loss to a reasonable certainty and “speculation, conjecture or evidence that such losses are mere possibility [sic] is insufficient.” (York v. Grand Trunk Western R.R. Co. (1979), 71 Ill. App. 3d 800, 806, 390 N.E.2d 116.) In the instant cause, city contends that the testimony of Carle and Marme was “based on speculation and not fact” because, in city’s opinion, the witnesses’ testimony failed to take into account “the development of plaintiff’s potential vocational skills and probable educational achievements.”

The decision to admit expert testimony rests within the sound discretion of the trial court (Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 418 N.E.2d 1079), and the current trend of Illinois law is “to allow expert testimony if it will assist the trier of fact in understanding the evidence even though the average juror would also have some knowledge of the subject matter. [Citations.]” (Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 413, 444 N.E.2d 220.) Without detailing the extensive experience of these two witnesses, we note that both had strong educational and practical training in caring for the physically disabled and in assisting patients with vocational care and training, as well as in occupational therapy. We find no error in the trial court’s admission of their testimony. Doering v. Janssen (1979), 76 Ill. App. 3d 62, 394 N.E.2d 721.

City further contends that the witnesses’ conclusions that plaintiff’s opportunities for future employment would be extremely poor were contradicted by testimony of the same -witnesses that plaintiff was “bright” and had scored well on tests administered to him. We do not find that such “contradictions” require reversal in this case. Purported weaknesses in expert testimony are matters properly raised in cross-examination and argument:

“Admittedly, portions of [the expert’s] reconstruction testimony were contradicted by the other, evidence. However, discrepancies in testimony and evidence are matters for the jury’s consideration, and the jury is free to disregard an expert’s conclusion of fact.” (Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 685.)

We conclude that the trial court properly allowed the jury to consider the testimony of Dr. Carle and Michelle Marme.

V

City next argues that the jury was improperly instructed, contending that the trial court erred by: (1) refusing city’s proffered instructions which defined the term “trespasser” and the duty which a landowner owes to a trespasser; (2) giving Illinois Pattern Jury Instruction (IPI), Civil, No. 10.04 (2d ed. 1971), proffered by plaintiff, which advised that defendants were under a duty to “use ordinary care for the safety of plaintiff”; and (3) failing to give, in place of IPI Civil 2d No. 10.04, IPI Civil 2d No. 120.04 (“Attractive Nuisance — Injury to Children”), which was not proffered by either party.

(1) It is axiomatic that jury instructions are intended to inform the jury of the correct principles of law applicable to the evidence admitted at trial. (LeMaster v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 343 N.E.2d 65.) Since, as previously stated, the law relevant to trespassers is not applicable to this case, city’s proffered instructions relative to trespassers were properly rejected by the trial court. Dickeson v. Baltimore & Ohio Chicago Terminal R.R. Co. (1965), 73 Ill. App. 2d 5; see also Sehranz v. Halley (1983), 114 Ill. App. 3d 159, 448 N.E.2d 601.

(2) City contends that the trial court erred in instructing the jury (IPI Civil 2d No. 10.04) that the defendants were obligated to “use ordinary care for the safety of plaintiff.” We must disagree; Kahn established that the duty of care owed in cases such as this is “ordinary care.” Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 621, 126 N.E.2d 836.

e 10 (3) With regard to city’s contention that the trial court erred in failing sua sponte to give IPI Civil 2d No. 120.04 in place of IPI Civil 2d No. 10.04, we agree with plaintiff that city has waived this argument by its failure in the trial court to object to plaintiff’s IPI Civil 2d No. 10.04 or to itself proffer IPI Civil 2d No. 120.04. (Biundo v. Christ Community Hospital (1982), 104 Ill. App. 3d 670, 674, 432 N.E.2d 1293.) We find misplaced city’s reliance upon King v. Casad (1984), 122 Ill. App. 3d 566, 461 N.E.2d 685, since in that case the party who raised the issue on appeal had, in fact, proffered the proper instruction to the trial court. For these reasons, we find city’s contentions of error relevant to jury instructions to be without merit.

VI

Prior to the selection of the jury, plaintiff had filed a motion in limine asking the trial court to exclude any evidence bearing on the minor plaintiff’s alleged contributory negligence. Plaintiff’s motion was bottomed on defendants’ failure, in their answers to plaintiff’s complaint, to plead contributory negligence by plaintiff. Although the trial court denied plaintiff’s in limine motion, it offered to defendants an opportunity to amend their answers; defendants elected not to do so.

While defendants, in their case in chief, presented no evidence relevant to plaintiff’s contributory negligence, in closing argument defendants contended that the evidence adduced by plaintiff demonstrated that plaintiff’s injuries resulted from his own negligence. The trial court instructed the jury to reduce plaintiff’s damages in proportion to his own negligence, if any. The jury found that plaintiff had been 18% negligent and reduced his damages accordingly.

Plaintiff now cross-appeals, arguing that a defendant’s failure affirmatively to plead contributory negligence precludes submission of that issue to the jury. Plaintiff posits that contributory negligence should be construed to be an “affirmative defense or matter” which must be affirmatively pleaded pursuant to section 2 — 613(d) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 613(d)), which states in relevant part:

“The facts constituting any affirmative defense *** and any defense which by other affirmative matters seeks to avoid the legal effect of or defeat the cause of action set forth ***, must be plainly set forth in the answer or reply.”

Prior to 1981, contributory negligence in Illinois was a complete defense to an action in tort and if proved “defeated] the cause of action.” In 1981, our supreme court “abolished the common law doctrine of contributory negligence” and adopted the “pure” form of comparative negligence. Under prevailing Blinois law, therefore, contributory negligence is no longer an absolute defense but goes only to the diminution of damages.

Although Blinois courts do not appear to have addressed the precise issue here raised by plaintiff, this court noted in Marcin v. Kipfer (1983), 117 Ill. App. 3d 1065, 1069, 454 N.E.2d 370, that since “[t]he development of the doctrine of comparative negligence is still in its early stages in this State, *** the treatment given contributory negligence in cases arising under the Federal Employers’ Liability Act (FELA) (45 U.S.C.A., par. 51 et seq.) should be followed by analogy.”

We find Lee v. Louisville & Nashville R.R. Co. (1953), 349 Ill. App. 276, 110 N.E.2d 691 (a case arising under FELA), analogous to the case sub judiee. In Lee, the defendant’s answer denied any negligence by defendant; alleged that plaintiff’s injuries were the proximate result of his sole negligence; and did not specifically plead contributory negligence by plaintiff as a defense. Defendant proffered to the trial judge an instruction requiring the jury to reduce damages in proportion to plaintiff’s contributory negligence. The trial court refused defendant’s instruction on the ground that “defendant had not plead contributory negligence as a defense and therefore it was not an issue in the case.”

The appellate court reversed, holding that FELA had abolished contributory negligence as a defense and that the issue of plaintiff’s contributory negligence went solely to the diminution of damages. Since the court found plaintiff Lee’s own testimony sufficient “to justify the jury in drawing an inference of some contributory negligence” on his part, the appellate court held that the instruction proffered by defendant was proper and should have been given despite defendant’s failure specifically to plead plaintiff’s contributory negligence.

We deem the rationale of Lee persuasive. Since Illinois has abolished contributory negligence as a defense, the issue applies only to the question of damages. Here, there was sufficient evidence introduced by plaintiff to support an inference that he was in some degree negligent; it was therefore proper for the jury to be instructed that if, in fact, it found plaintiff to be eontributorily negligent, any damages awarded to him should be reduced in the same proportion.

For the reasons heretofore stated, the judgment of the trial court is affirmed.

Judgment affirmed.

STAMOS, P.J., and HARTMAN, J., concur.

       The relevant Comment indicates1 that the words “Attractive Nuisance” were included in the title of this instruction as “a useful catch phrase and not to indicate that the instrumentality which causes the injury need have attracted the children onto the premises. The attractive nuisance doctrine was discarded in Illinois in Kahn v. James Burton Co., 5 Ill. 2d 614,126 N.E.2d 836 (1966).”

       “Under a ‘pure’ form, the plaintiff’s damages are simply reduced by the percentage of fault attributable to him. Under a ‘modified’ form, a negligent plaintiff may recover so long as the percentage of his fault does not exceed 50% of the total.” Alvis v. Ribar (1981), 85 Ill. 2d 1, 25.

       FELA introduced the principle of comparative negligence into American law in 1908. When Illinois, in Alvis v. Ribar (1981), 85 Ill. 2d 1, 15, adopted the concept of comparative negligence it was the 37th State of the United States so to do. Eleven states had adopted the “pure” comparative negligence approach; 23 States had adopted the “modified” approach; and 3 States had their own version of comparative negligence.

       This case does not present, and we therefore do not address, the question of whether a defendant who has not pleaded contributory negligence of plaintiff would be permitted to then introduce independent evidence of such alleged contributory negligence. Here defendant introduced no evidence on this issue, but relied on plaintiff’s own evidence to support his contention that plaintiff was in fact eontributorily negligent.


author: PRESIDING JUSTICE STAMOS

text:
    JAMES WALKER, Plaintiff-Appellee, v. IOWA MARINE REPAIR CORPORATION, Indiv. and d/b/a Morris Harbor Service, Defendant-Appellant.
    First District (2nd Division)
    No. 84—2005
    Opinion filed April 16, 1985.

      Thompson & Mitchell, of East St. Louis, and Peterson, Ross, Schloerb & Seidel, of Chicago (Thomas R. Jayne, Dan H. Ball, and Clay H. Phillips, of counsel), for appellant.
    Karlin & Fleisher, Ltd., of Chicago (Theodore A. Gilbert and David A. Novoselsky, of counsel), for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This action was brought by plaintiff, James Walker, pursuant to various provisions of the Merchant Marine Act, as amended, commonly known as the Jones Act. (46 U.S.C. sec. 688 et seq. (1982).) Plaintiff alleges in his complaint that he suffered injuries when he came into contact with the hydraulic rudder linkage system while working in the engine room aboard the Alice P. Klusak on February 8, 1983. The plaintiff was employed as an engineer on the ship at the time of the accident.

Additional facts are found in defendant’s affidavit filed in support of its motion to transfer, to which plaintiff did not file a counteraffidavit. The affidavit recites that defendant is incorporated in Illinois with its principal places of business in Grundy County. Defendant’s only other place of business is in Iowa. Defendant is not domiciled in Cook County, does not have any office or place of business in Cook County, and does not conduct any business in Cook County. At the time of the accident, the ship was operating on the Mississippi River a few miles north of St. Louis, Missouri, near Alton, Illinois, Madison County, approximately 250 miles from Chicago, Illinois. Plaintiff initially received medical assistance in Madison County, but his care was subsequently transferred to Galesburg Orthopedic Services, Ltd., in Knox County. Plaintiff resides in Galesburg and remains there through the present time. All of plaintiff’s medical care thus occurred in either Knox or Madison County. Plaintiff was hired by defendant at its office in Grundy County, and all of his employment records are located there.

There were six crew members aboard the ship at the time of the injury. These persons are the only potential occurrence witnesses, and they reside in Madison County, Grundy County, Will County and Lebanon, Indiana. Other potential witnesses and their counties of residence include: the port engineer, La Salle County; defendant’s vice-president, Grundy County; treating physicians, Knox and Madison Counties; and other unidentified persons, such as medical technicians, plaintiff’s acquaintances and previous doctors, all of whom are probably located outside of Cook County.

Plaintiff filed his complaint in Cook County in February of 1984. On March 6, 1984, defendant filed a general appearance and answer denying liability. Thereafter, on March 27, 1984, defendant filed its motion to transfer for forum non conveniens to either Grundy or Knox County. Defendant’s motion was supported by an affidavit of its executive vice-president, who handled all communications and correspondence relative to this suit, and a compilation of court statistics outlining the average time to termination for cases filed in the circuit courts of Illinois. Plaintiff’s response to defendant’s motion did not address the merits of defendant’s argument, but rather asserted that defendant waived its right to object to venue by failing to so move prior to generally appearing and answering. Defendant filed a reply with supporting authority. On July 18, 1984, the trial court entered an order denying defendant’s motion to transfer.

Defendant’s petition for leave to appeal under Supreme Court Rule 306(a)(l)(ii) was granted by this court on September 18, 1984. No transcript of the hearing on defendant’s motion to transfer was included in the record certified to this court, and defendant’s petition to supplement the record on appeal with said transcript was denied on October 30, 1984. The three issues presented for review are: (1) whether the absence of the trial court transcript precludes this court from properly reviewing the merits of defendant’s appeal based upon an “abuse of discretion” standard of review; (2) whether defendant waived its right to file a motion to transfer for forum, non conveniens by filing a general appearance and answering; and (3) whether the trial court abused its discretion in denying defendant’s motion.

We first determine whether the absence of the transcript from the hearing on the motion to transfer precludes proper review in this court. The very nature of an appeal dictates that the reviewing court must have a sufficient record before it to determine whether the error claimed by the appellant exists. The burden rests on the appellant to provide a sufficient record to support the claim of error, and in the absence of such a record, the reviewing court will presume that the trial court’s order was in conformity with established legal principles and had a sufficient factual basis. (Foutch, v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958.) Any doubts arising from the completeness of the record are resolved against the appellant. 99 Ill. 2d 389, 392.

In Fouteh, the defendants had filed a motion to vacate a judgment entered against them at an ex parte hearing. The order of the trial court denying the motion noted that the court had heard evidence, heard arguments, and was advised in the premises. The record before the supreme court did not include a transcript from the hearing; it contained only the complaint, the defendant’s answer denying some allegations and admitting others, the judgment order, the defendant’s motion to vacate, and the order denying the motion. The supreme court stated: “As there is no transcript of the hearing on the motion to vacate here, there is no basis for holding that the trial court abused discretion in denying the motion.” (99 Ill. 2d 389, 392.) The court found Skaggs v. Junis (1963), 28 Ill. 2d 199, 190 N.E.2d 731, dispositive of the issue and stated as follows:

“It must be presumed that the denial of the motion was in conformity with the law and was properly supported by evidence. In Skaggs v. Junis (1963), 28 Ill. 2d 199, the plaintiff complained because the record failed to disclose the evidence heard by the trial court in support of an award made by the court. The plaintiff contended that it must be assumed that none was heard and that the award was, therefore, improper. In rejecting the contention, this court held: ‘The court stated that its order was based upon “the Court having heard the evidence and the arguments of counsel and being fully advised in the premises.” In such a situation, unless there is a contrary indication in the order or in the record, it is presumed that the court heard adequate evidence to support the decision that was rendered. (Smith v. Smith, 36 Ill. App. 2d 55.) Where it is alleged that the evidence presented was actually insufficient to support the court’s finding, the burden of preserving said evidence rests with the party who appeals from said order. No record of the evidence heard on May 23 and 24 regarding the commission’s claim is before this court and, therefore, it must be assumed that the evidence that was heard fully supported the court’s finding that the commission was entitled to $3,989.40.’ (28 Ill. 2d 199, 201-02.) The holding in Skaggs applies here.” Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 393-94.

We find Foutch inapposite here because the record in the instant case contains all the relevant facts presented. Additionally, the trial court here could only have based its ruling on the pleadings and affidavits in the record presented, thus rendering the transcript nothing more than a memorialization of the arguments of the attorneys. The very issue that plaintiff contends precludes review was addressed in DeVries v. Bankers Life Co. (1984), 128 Ill. App. 3d 647, 471 N.E.2d 230. The DeVries court rejected the plaintiff’s argument that the defendant had waived any error in the denial of its motion to dismiss for forum non conveniens by failing to include a report of proceedings in the record. The DeVries court interpreted Foutch and other similar cases as establishing the principle that the absence of a transcript “precludes review of only those issues whose merits depend on the omitted, matters, such as questions concerning the sufficiency of the evidence [citation] or issues relating to the actual conduct of a hearing [citation].” 128 Ill. App. 3d 647, 650.

The complaint on appeal here addresses the propriety of the trial court’s denial of defendant’s motion to transfer. The order does not recite that “evidence was heard.” Rather, the order recites that the court read the briefs, which are included in the record, heard arguments of counsel, which are not evidence and a transcript of which is not necessary to this appeal, and was fully advised in the premises. The defendant’s motion contains an uncontroverted affidavit, which is in the record. Also, the record contains a copy of the complaint, defendant’s answer and affirmative defense, defendant’s motion to transfer and supporting authority and affidavit, plaintiff’s reply and defendant’s response. A transcript of the hearing on the motion containing the arguments of counsel, based upon the briefs which are in the record, is not necessary to support defendant’s position on appeal. The fact that the trial court may have espoused certain reasons for its order not appearing on the face of the document does not support the necessity of a transcript on appeal where, as here, the record contains everything that was presented to the judge in support of or in opposition to the motion. All of the relevant facts, and evidence via defendant’s affidavit, are included in the record here presented. Additionally, the briefs of the parties refer only to those facts contained in the complaint, affidavit and memoranda filed, thus obviating the need for this court to resort to specific arguments made by counsel at the hearing. (DeVries v. Bankers Life Co. (1984), 128 Ill. App. 3d 647, 651, 471 N.E.2d 230.) The merits of defendant’s appeal do not necessitate reference to the transcript. We find, therefore, that the failure to include the transcript in the record does not preclude appellate review.

The second issue for review is whether the filing of a general appearance results in a waiver of a party’s ability to move to transfer for forum non conveniens on an intrastate basis. The gist of plaintiff’s argument here is premised upon the assertion that, because defendant’s motion is not entitled “motion to dismiss for forum non conveniens,” it is actually an objection to the propriety of venue in Cook County seeking a transfer to a proper forum. Alternatively, plaintiff asks this court to equate a motion to transfer for forum non conveniens with a section 2 — 104 objection to venue. The argument goes, consequently, that defendant’s general appearance, as opposed to an immediate objection to venue, is a waiver under section 2 — 104 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 104(b).) Plaintiff further asserts that his argument is supported by the distinction drawn in Supreme Court Rule 306 for discretionary appeals “from an order *** denying a motion to dismiss on the grounds of forum non conveniens” (87 Ill. 2d. R. 306(a)(1)(H)) and “from an order *** granting or denying a motion for a change of venue based on the assertion that the defendant is not a ‘resident’ of the county in which the action was commenced, *** and no other legitimate basis for venue in that county has been offered by the plaintiff.” 87 Ill. 2d R. 306(a)(l)(iv).

Plaintiff’s attack on defendant’s appeal, however, fails to note that Rule 306 was amended September 16, 1983, effective October 1, 1983. The amendment was ordered by our supreme court simultaneously with its filing of Torres v. Walsh (1983), 98 Ill. 2d 338, 456 N.E.2d 601. Specifically, Rule 306(a)(l)(ii) was amended to read as follows:

“Rule 306. Appeals from Orders of the Circuit Court Granting New Trials and Granting or Denying Certain Motions (a) Procedure.
(1) Petition for Leave to Appeal. An appeal may be taken in the following cases only on the allowance by the Appellate Court of a petition for leave to appeal:
* * *
(ii) from an order of the circuit court denying a motion to dismiss on the grounds of forum non conveniens, or from an order of the circuit court allowing or denying a motion to transfer a case to another county within this State on such grounds; ***.” 94 Ill. 2d R. 306.

Plaintiff’s characterization of defendant’s motion as one challenging venue is without merit. The motion is labeled in accordance with the language used to amend Rule 306 in light of Torres. Additionally, this court has previously held that motions to dismiss for forum non conveniens should not be treated as objections to venue. (Grant v. Starch (1981), 96 Ill. App. 3d 297, 300, 421 N.E.2d 268, and cases cited therein.) For the following reasons, we shall not treat motions to transfer for forum non conveniens as an objection to venue susceptible to the waiver rule.

It has long been held, in cases involving forum non conveniens on an interstate basis, that the filing of a general appearance and answer does not result in a waiver of the right to file a motion to dismiss for forum non conveniens. (Grant v. Starch (1981), 96 Ill. App. 3d 297, 300, 421 N.E.2d 268; Nemanich v. Dollar Rent-A-Car Services, Inc. (1980), 90 Ill. App. 3d 484, 487, 413 N.E.2d 178; McDonald’s Corp. v. Smargon (1975), 31 Ill. App. 3d 493, 499, 334 N.E.2d 385.) The very nature of motions brought under the doctrine of forum non conveniens militates against the application of waiver. The motion, being based upon such criteria as the relative convenience of witnesses, the ease of access to proof, and the availability of compulsory process, generally necessitates a thorough investigation of the plaintiff’s complaint through discovery procedures, which usually cannot be initiated until all the defendants appear. (87 Ill. 2d R. 201(d).) It should be noted, however, that there are outside limits to how long a party can wait before filing its motion to dismiss or decline jurisdiction for forum non conveniens. In Herbert v. Louisville & Nashville R. R. Co. (1985), 130 Ill. App. 3d 624, the appellate court affirmed the denial of defendant’s motion to decline jurisdiction under forum non conveniens. There, defendant waited approximately 16 months after the filing of plaintiff’s complaint before filing its motion. The defendant had generally appeared, had filed a motion to dismiss count I of plaintiff’s complaint, had filed an answer, had propounded interrogatories to plaintiff, had received plaintiff’s answers and requested documents, had propounded supplemental interrogatories and requests for production and had taken plaintiff’s deposition. Defendant finally filed its motion to decline jurisdiction 10 months after completing discovery, long after it had time to discover that a factual basis existed to file its motion and after the court had made a ruling on a substantive issue in denying defendant’s motion to dismiss. The inherent unfairness to plaintiff in requiring him to refile his lawsuit, and suffer the concomitant delay of renewed discovery and waiting for trial in the new forum, convinced the court to deny defendant’s motion. The appellate court affirmed the dismissal, stating that the motion should be filed at the earliest practicable opportunity, suggesting the first appearance date. The decision was grounded in considerations of fundamental fairness and sensible and effective judicial administration, and the court refused to treat the issue as one of waiver. (130 Ill. App. 3d 624, 627-28.) It can be seen therefore, that if a party does not move to dismiss or decline jurisdiction at its first appearance, or ask the trial court to extend the time in which the party must appear, or file the motion while requesting a reserved ruling pending some discovery, that its motion can and will be denied if the granting of the motion would have a deleterious impact on the other party.

Whether the same general rule of “non-waiver” or fundamental fairness should apply to cases seeking an intrastate transfer remains for consideration. In the Torres case, which is the vehicle by which intrastate transfers are now allowed in Illinois based upon forum non conveniens, it is not clear whether the defendant appeared generally before seeking the transfer, and no other intrastate transfer cases can be found. (In Young v. Cerniak (1984), 126 Ill. App. 3d 952, 467 N.E.2d 1045, the suit was filed before the prospective application date of Torres.) It should be noted though, that Torres adopted interstate forum non conveniens principles in whole. Also, the Torres court, in support of its decision to allow intrastate transfer, relied in part on Horn v. Rincker (1981), 84 Ill. 2d 139, 417 N.E.2d 1329.

In Horn, the supreme court ordered an intercircuit consolidation of three causes of action that arose from the same occurrence and were pending in three separate counties in Illinois. The petitioners initially sought to transfer venue, but had moved for the transfers long after they had all appeared and answered in each case. The supreme court stated, therefore, that any objection to improper venue had been waived pursuant to section 8(2), now section 2 — 104 of the Code of Civil Procedure. (Horn v. Rincker (1981), 84 Ill. 2d 139, 145, 417 N.E.2d 1329.) However, relying on the underlying principles and reasoning of the doctrine of forum non conveniens, the supreme court nevertheless found it appropriate to order the consolidation. 84 Ill. 2d 139,149-50.

We find the above principles authoritative in this intrastate case and find that defendant has not lost or waived its right to file the motion. The defendant here is not contesting venue, and could not do so because of the general appearance it filed. Rather, defendant is seeking a transfer allowable in this State since Torres, which, as stated, found all the principles of interstate forum non conveniens applicable to intrastate cases and refused to draw any artificial distinctions between the two. (Torres v. Walsh (1983), 98 Ill. 2d 338, 351.) The underlying rationale oí forum non conveniens is the same on either an interstate or intrastate basis, further suggesting the need for similar treatment on a procedural level. Therefore, we find that the defendant did not lose or waive its right to seek a transfer for forum non conveniens after filing a general appearance and answer in the absence of any prejudice to plaintiff. Here, defendant filed its motion three weeks after it appeared, no discovery had yet been initiated, no substantive issues ruled upon; hence, no inherent unfairness to plaintiff could result. Contrary to plaintiff’s suggestion, the fact that defendant has not yet initiated discovery does not warrant a rule treating two substantively similar motions in a disparate procedural fashion. In fact, the failure to initiate discovery suggests defendant is not satisfied with the forum chosen by plaintiff.

The final issue for review is whether the trial court abused its discretion in denying the defendant’s motion. Plaintiff’s major argument in support of the trial court’s ruling is that defendant’s motion to transfer and supporting affidavit are wholly inadequate to demonstrate the need to transfer this cause to a different county. It is important to note, however, that plaintiff did not file any counteraffidavit, nor did he object to defendant’s affidavit in whole or in part with a motion to strike. The law is settled that “[t]he sufficiency of an affidavit cannot be tested for the first time on appeal where no objection was made in the trial court.” (Huffman v. Inland Oil & Transport Co. (1981), 98 Ill. App. 3d 1010, 1017, 424 N.E.2d 1209.) Additionally, contrary to plaintiff’s assertion, this motion and affidavit are not insufficient under Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 152 N.E.2d 385. The motion in Cotton vaguely referred to “occurrence witnesses” and “doctors.” (14 Ill. 2d 144, 168.) Defendant’s motion and affidavit here, however, specifically name fellow employees and their counties of residence, the port engineer and county of residence, the name of the medical center where plaintiff received treatment, the location of employment records and representatives of its company familiar with the case. At this stage of the litigation, some leeway in specificity must be given. (See Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252.) The contents of the motion and affidavit are sufficient to show therefore that information and witnesses necessary to the trial are located in counties far more convenient to this action than Cook. See Haring v. Chicago & North Western Transportation Co. (1984), 103 Ill. 2d 530, 533, 470 N.E.2d 288.

In determining whether a cause should be transferred, the Torres court emphasized the following factors:

“In finding that the trial courts have such authority, we emphasize the factors to be taken into consideration in making the decision: the availability of an alternate forum, the access to sources of proof, the accessibility of witnesses, the relative advantages and obstacles to obtaining a fair trial, the congestion of the court dockets, and the convenience of the parties. We also caution our trial courts that unless those factors strongly favor the defendant, then the plaintiff should be allowed to exercise his choice in deciding in what forum to bring the case when venue is proper.
If there are sufficient factors that favor the plaintiff’s choice of forum, then the defendant’s inconvenience should not be considered, provided venue is proper. For unless the balance strongly favors the defendant, then the plaintiff should be able to exercise his statutpry right to choose his forum.” Torres v. Walsh (1983), 98 Ill. 2d 338, 351.

We find that the trial court abused its discretion in not transferring this case. A thorough review of the entire record demonstrates that this litigation has absolutely no connection with Cook County. In fact, it appears that the only contact with Cook County is the lawyers involved, and that Cook is a proper forum solely because defendant filed a general appearance, thus waiving its right to contest venue. Relying on the factors in Torres, it can be readily seen that plaintiff’s choice of venue should not be favored, because not only do the factors balance strongly in favor of defendant, but no factors favor plaintiff’s choice here other than the fact that plaintiff’s lawyer is located in Chicago.

The first factor to be considered is whether an alternate forum is available. The facts indicate that this suit can properly be brought in Grundy County, which is defendant’s principle place of business, any other Illinois county where defendant is doing business or has an office, or Madison County, if that is where the accident allegedly occurred. Other forums are thus definitely available.

The second factor is the access to sources of proof. All of the proof for this case is located in counties other than Cook. The boat on which the accident happened operates on the Mississippi River, all of plaintiff’s medical treatment occurred in either Madison or Knox counties, and all witnesses live in various downstate counties, namely Madison and Grundy. Thus, this second factor also favors a transfer from Cook County.

The third factor concerns the accessibility of witnesses. As stated, none of the witnesses reside anywhere near Cook County, other than perhaps the one crew member who lives in Will County. Even plaintiff resides outside of Cook County in Knox County. A downstate forum would certainly be more accessible to the witnesses involved in this case than would Cook County.

The fourth factor, focusing on the ability to receive a fair trial, does not seem applicable. There are no allegations of undue or pervasive publicity prejudicial to either side or other allegations suggesting an inability to receive a fair trial.

The fifth factor looks at the relative congestion of the court dockets. Defendant attached a compilation of statistics prepared by the Administrative Office of the Illinois Courts showing the number of cases disposed of and the average time to trial. Our supreme court took judicial notice of such statistics, and found them persuasive, in Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 427 N.E.2d 111. An available forum in this case, other than Cook County, is Grundy County. Knox County is not a proper county, and from the record there is no proof that the accident actually occurred in Madison County. We note incidentally that the congestion in Madison County is only slightly less than that being suffered in Cook County. (See Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill. 2d 378, 384, 466 N.E.2d 198.) The statistics convincingly demonstrate that, in terms of congestion, Grundy County (13th Circuit) is a preferable forum to Cook County.

The final factor relates to the convenience of the parties. Obviously, plaintiff found it convenient to file in Cook County, even though he resides in Knox County. Defendant would certainly be inconvenienced defending this suit in Cook County because of the distance involved and the expense of producing witnesses here. When viewed as a whole, there are no factors supporting plaintiff’s choice of forum other than the bare desire to file suit here. The balance overwhelmingly weighs in favor of the defendant and the requested transfer.

We hold, therefore, that the trial court abused its discretion in denying defendant’s motion to transfer, and we reverse that order. We remand this cause to the trial court with an instruction to order a transfer to Grundy County, Illinois.

Reversed and remanded.

HARTMAN and BILANDIC, JJ., concur.


author: JUSTICE ROMITI

text:
    THE PEOPLE ex rel. VILLAGE OF HAZEL CREST, Plaintiff-Appellant, v. THE VILLAGE OF HOMEWOOD, Defendant-Appellee.
    First District (4th Division)
    No. 83—763
    Opinion filed April 4, 1985.

      Ancel, Clink, Diamond, Murphy & Cope, P.C., of Chicago (John B. Murphey and Joel S. Hymen, of counsel), for appellant.
    Walter D. Cummings, Ltd., of Homewood (Walter D. Cummings, of counsel), for appellee Village of Homewood.
    Oscar P. Chiappori, of Chicago (Sidney Z. Karasik, of counsel), for appellee Calumet Country Club, Inc.
   JUSTICE ROMITI

delivered the opinion of the court:

This is a quo warranto action brought on the relation of village of Hazel Crest to challenge the village of Homewood’s 1980 annexation of a 125-acre parcel commonly known as the Calumet Country Club. The circuit court of Cook County granted Homewood’s motion for summary judgment and Hazel Crest has appealed, contending: (1) Homewood should have been barred by the applicable statute of limitations from challenging the validity of Hazel Crest’s 1958 annexation of a portion of 175th Street, an annexation which, if valid, would have rendered Homewood’s subsequent annexation of the subject property invalid as an annexation of noncontiguous land; (2) Homewood should be estopped and barred by laches from attacking that 1958 annexation; (3) the 1958 annexation was valid.

We affirm.

As can be seen from the diagram included in this opinion the subject property in 1958 was bounded on the north and east by Hazel Crest. Directly to the west was a parcel of land referred to by the parties as the Rockwell property, unincorporated at the time but annexed in 1972 by Hazel Crest. Hazel Crest bounded the Rockwell property to the west and north. Homewood lies generally south of the subject property, with 175th Street running in an east-west direction between the subject property and Homewood.

On April 22, 1958, Hazel Crest passed an ordinance annexing certain streets and highways as indicated on the diagram. The annexed portions of 167th Street, Park Avenue, 171st Street, Dixie Highway, and Kedzie Avenue were all either on the perimeter of Hazel Crest or, in the case of Park Avenue, within its territory. To the south Hazel Crest annexed 175th Street from Kedzie Avenue on the west to Dixie Highway on the east. As indicated on the diagram, a substantial portion of 175th Street as annexed (3,248 feet out of 7,732 feet, or 42%) did not border on Hazel Crest.

In 1927 a plat of subdivision of a portion of Homewood was recorded with the Cook County recorder of deeds showing the south half of 175th Street adjoining the subject property to be in Home-wood. The record contains no ordinance reflecting such an annexation. In 1961 Homewood adopted an ordinance annexing the north half of 175th Street adjacent to the subject property.

In 1968 a dispute arose between Hazel Crest and Homewood concerning which municipality had jurisdiction over 175th Street from Rockwell to Dixie Highway, thus including all of 175th Street adjoining the Rockwell property and the subject property. Hazel Crest communicated to Homewood the opinion of Hazel Crest’s attorney that the 1958 annexation by Hazel Crest was valid at least as to the northern half of the street, and that Homewood’s subsequent annexation of that northern half was void. The attorney also noted that Hazel Crest’s annexation precluded Homewood from annexing the property north of 175th Street. Homewood’s attorney concluded that the 1958 annexation was void as to all of 175th Street adjoining the subject property and the Rockwell property because the south side of the street was already part of Homewood and because Hazel Crest’s annexation extended beyond its borders in a manner violating the Streamwood doctrine. (People ex rel. Adamowski v. Village of Streamwood (1959), 15 Ill. 2d 595, 155 N.E.2d 635.) Homewood’s attorney also noted that Hazel Crest’s annexation would preclude a future annexation of the subject property by Homewood, and he recommended that Homewood take legal action if the villages could not settle the dispute. Hazel Crest then proposed that both villages void their existing ordinances annexing the pertinent portions of 175th Street and then pass new ordinances in which Hazel Crest would annex the northern half and Homewood would annex the southern half. Homewood declined this offer, stating in a letter from its village manager that the present situation presented no major problems and none were anticipated in the future.

Hazel Crest has alleged in its complaint that since 1969 it has spent “many thousands of dollars” to provide municipal services to the northern half of 175th Street pursuant to a maintenance agreement with the State of Illinois. These services included pavement patching, shoulder repair and grading, drainage maintenance, weed cutting, removal of debris, snow plowing, ice control, and street sweeping. Attached to the complaint is a contract with the State providing that Hazel Crest would undertake such services and also providing for reimbursement of Hazel Crest’s expenses by the State up to an amount of $1600.33 for the period covered, June 9, 1969, to June 30,1970.

On March 11, 1980, the Calumet Country Club filed a petition seeking annexation of the subject property by Homewood and subsequently Homewood adopted an ordinance annexing the subject property and “all adjacent publicly dedicated roadway right-of-way contiguous thereto not now within the Village of Homewood.” Hazel Crest then filed this action, asserting that Homewood’s annexation was invalid because, by virtue of Hazel Crest’s 1958 annexation of the pertinent portions of 175th Street, the subject property was not contiguous to Homewood, as required by statute. (Ill. Rev. Stat. 1983, ch. 24, par. 7 — 1—8.) Homewood in turn challenged the validity of that 1958 annexation and after both parties had filed motions for summary judgment the trial court granted summary judgment for Homewood.

I

We find no merit to Hazel Crest’s contention that the applicable statute of limitations bars Homewood from challenging the validity of Hazel Crest’s 1958 annexation. That statute provides:

“Neither the People of the State of Illinois nor any person, firm or corporation, public or private, nor any association of persons shall commence an action contesting either directly or indirectly the annexation of any territory to a municipality unless initiated within one year after the date such annexation becomes final or within one year of the effective date of this amendatory Act of 1965 whichever date occurs latest. This amendatory Act of 1965 shall apply to annexations made prior to the effective date of the Act as well as those made on or after the effective date. Where a limitation of a shorter period is prescribed by statute such shorter limitation applies. The limitation set forth in this section shall apply to any annexation, even where the judge, body or officer annexing the territory did not at the time of such annexation have jurisdiction of the subject matter, and irrespective of whether such annexation may otherwise be defective or void, except that the limitation of this Section shall not apply to annexations of territory which was not contiguous at the time of annexation and is not contiguous at the time an action is brought to contest such annexation.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 24, par. 7-1-46.

The central issue in this cause is precisely whether the pertinent part of 175th Street was contiguous to Hazel Crest at the time of the 1958 annexation, and therefore the one-year limitation is not applicable.

II

We next consider Hazel Crest’s contention that Homewood should be barred on grounds of laches and estoppel from challenging the validity of the 1958 annexation. In considering this contention, we note that these doctrines are to be invoked against municipalities engaged in the exercise of their governmental functions only in extraordinary circumstances. Haeflinger v. City of Wood Dale (1984), 129 Ill. App. 3d 674.

Hazel Crest’s contention is premised in part on the assertions that Homewood did not dispute the validity of Hazel Crest’s 1958 annexation until this action was brought in 1980 and that in fact Home-wood indicated acquiescence to Hazel Crest’s actions during the 1968 jurisdictional dispute between the villages. We find these assertions to be incorrect. The record establishes that in 1961 Homewood annexed the northern half of 175th Street, clearly indicating that Homewood considered Hazel Crest’s prior annexation to be invalid. And in 1968, when the villages had a jurisdictional dispute over the street, Home-wood turned down a Hazel Crest proposal that would have in effect validated Hazel Crest’s claim to the northern half of the street. Despite this refusal Hazel Crest then entered into a maintenance contract with the State resulting in its expenditure of an undetermined amount of money which it now cites as a basis for estoppel of Home-wood. Under these circumstances we do not find that Homewood’s conduct was such as to reasonably cause Hazel Crest to act to its detriment and therefore we find no basis for estoppel to be invoked. Lincoln-Way Community High School District 210 v. Village of Frankfort (1977), 51 Ill. App. 3d 602, 367 N.E.2d 318.

As for laches, before that doctrine can be invoked there must be an unreasonable delay in asserting a right by the party against whom the doctrine is asserted. (Kozak v. Retirement Board (1981), 99 Ill. App. 3d 1015, 425 N.E.2d 1371.) Here, as Homewood has noted in its brief, the Calumet Country Club could have at any time sought annexation by Hazel Crest, an action which would have been unaffected by the validity of the 1958 annexation of 175th Street. It was only when the club sought annexation by Homewood, and Hazel Crest sought to challenge the ensuing annexation, that Homewood had a reason to challenge the 1958 annexation. We do not find it unreasonable that Homewood declined to take court action earlier, especially in light of the prior actions taken by Homewood that did establish the village’s position on the validity of the 1958 annexation. Accordingly, we find that the trial court did not err in finding that the doctrines of laches and estoppel should not bar Homewood from challenging the validity of the 1958 annexation in this cause.

Ill

The principal substantive issue before us is whether Hazel Crest’s 1958 annexation of 175th Street violates the Streamwood, doctrine. (People ex rel. Adamowski v. Village of Streamwood (1959), 15 Ill. 2d 595, 155 N.E.2d 635.) In that case the village of Streamwood had annexed approximately 75 miles of roadways, all but a small fraction of which:

“[ran] in all directions from the village, creating a spider’s web effect and leaving vast areas of unincorporated territory totally surrounded by the roadways but otherwise totally unconnected with the *** village.” (15 Ill. 2d 595, 598, 155 N.E.2d 635, 636.)

The village subsequently annexed a subdivision which lay several miles from the viUage limits, contiguous to another municipality, and connected to Streamwood only by one of the noncontiguous roadways previously annexed. The court held that the statute permitting the annexation of territory, including streets or highways, if the territory was contiguous to the annexing municipality:

“must mean contiguous in the sense of adjacent to and parallel to the existing municipal limits and cannot, under any circumstances, permit a municipality by annexation ordinances to grab a whole maze of roadways, circumscribing and choking off unincorporated areas and causing them to be completely surrounded by a maze of roadways annexed to a municipality.” (15 Ill. 2d 595, 601,155 N.E.2d 635, 638.)

Accordingly the court affirmed the circuit court’s judgment that these annexations were, as a matter of law, void. In doing so, the court expressly noted that the cause was not concerned with those portions of the annexed roadways that were adjacent to the village and co-extensive with the village limits.

In People ex rel. Bowman v. Village of Bensenville (1978), 64 Ill. App. 3d 857, 381 N.E.2d 1170, the court had before it two separate roadway annexations, each involving roads which touched the boundary of a municipality only at both endpoints and which had the effect of enclosing unincorporated territory. The appellate court held that under the Streamwood doctrine these roadways were not contiguous and therefore the annexations were invalid. The court noted that the municipality had made no attempt to first annex the unincorporated territory lying between it and the roadways. The municipality had also apparently annexed roadways which were adjacent and parallel to its territory, but the court did not take into consideration those annexations, focusing only on the noncontiguous portions.

In this cause, the challenged annexation also is of a roadway that touches the municipality only at its endpoints, running parallel but not adjacent to the municipality’s boundaries and having the effect of completely cutting off and surrounding an unincorporated area. Although the subject property was apparently large enough to preclude a forcible annexation by Hazel Crest (Ill. Rev. Stat. 1983, ch. 24, par. 7 — 1—13), nothing in this record establishes that Hazel Crest ever sought to voluntarily annex the subject property before attempting the annexation which completely enclosed the property within Hazel Crest’s borders. Hazel Crest has contended that the annexation was part of a broader annexation scheme aimed at obtaining control over its bordering roadways. But that purpose could have been accomplished without annexing the portion of roadway at issue here, which of course did not border on Hazel Crest.

Hazel Crest has also contended that the case of People ex rel. County of St. Clair v. City of Belleville (1981), 84 Ill. 2d 1, 417 N.E.2d 125, should control the outcome of this cause. There the challenged annexation was of a strip of railroad right-of-way that adjoined the city’s southern border for 1,158 or 1,350 feet (both figures are used in the opinion) and then projected beyond that border for 1,800 feet. The court held that the annexation was valid under Streamwood, but in doing so was apparently under the impression that the strip extended beyond the city’s border only several hundred feet. (84 Ill. 2d 1, 13, 417 N.E.2d 125, 131.) Furthermore, the holding would appear to be dictum, because the court also held that in any event the annexation ordinance was invalid because it failed to meet certain notice and accuracy requirements. Most importantly, the annexation in Belle-ville did not involve the annexation of a noncontiguous roadway which had the effect of enclosing and cutting off unincorporated territory from an adjoining municipality. We are persuaded that, under the authority of Streamwood and Bensenville, the 1958 annexation at issue here was void to the extent that it purported to annex that portion of 175th Street which bordered the subject property. Accordingly, the 1980 annexation of the subject property by Homewood was valid as an annexation of contiguous property.

The judgment of the trial court is affirmed.

Affirmed.

LINN and JOHNSON, JJ., concur.


author: PRESIDING JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. HOMER HANRAHAN, Petitioner-Appellant.
    First District (1st Division)
    No. 83—2602
    Opinion filed April 15, 1985.
    James J. Doherty, Public Defender, of Chicago (Kathleen M. McGinnis, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Mary Ellen Dienes, and John G. Murphy, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McGLOON

delivered the opinion of the court:

Defendant, Homer Hanrahan, was convicted of murder, aggravated kidnaping, and aggravated battery. Defendant’s convictions were affirmed on direct appeal. (See People v. Hanrahan (1978), 64 Ill. App. 3d 207, 380 N.E.2d 1075, appeal denied (1979), 72 Ill. 2d 583, cert, denied (1979), 444 U.S. 828, 62 L. Ed. 2d 36, 100 S. Ct. 53.) Defendant filed a pro se petition for post-conviction relief. The trial court appointed counsel for defendant who adopted defendant’s petition. The State’s motion to dismiss defendant’s petition was granted without an evidentiary hearing. In this court, defendant argues the trial court erred in dismissing defendant’s petition without an evidentiary hearing.

We affirm.

Defendant’s petition cites numerous alleged errors in the trial court. Most of these alleged errors were either addressed on direct appeal or waived because they were not raised on direct appeal. However, we will address defendant’s contention regarding certain allegations of ineffective assistance of trial and appellate counsel which we conclude are neither waived nor barred by res judicata. See People v. Edmonds (1979), 79 Ill. App. 3d 33, 398 N.E.2d 230.

In his petition, defendant cites the alleged alcohol problem of trial counsel and averred that counsel admitted himself into an alcoholic treatment center after the trial. This allegation was absolutely refuted by an affidavit submitted by defendant’s trial counsel.

Defendant cites numerous instances of alleged incomplete cross-examination of various State witnesses. Defendant also contends his trial counsel failed to produce evidence and expert toxicological testimony which would have refuted the testimony of the State’s expert witnesses. Finally, defendant argues his appellate counsel refused to raise certain issues on appeal which defendant believed were critical to the success of his appeal.

Denial of an evidentiary hearing on a post-conviction petition is discretionary with the trial court, and its decision will not be reversed absent an abuse of discretion. (People v. Reed (1980), 84 Ill. App. 3d 1030, 405 N.E.2d 1065.) Defendant is not entitled to an evidentiary hearing as a matter of right, and a defendant has the burden of showing a substantial denial of constitutional rights supported by the record, affidavits, or other evidence. (People v. Hawk (1981), 93 Ill. App. 3d 175, 416 N.E.2d 717.) The claim of ineffective representation by counsel reaches constitutional dimensions only if the incompetent representation probably affected the outcome of the trial. (People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.) Disputes as to trial tactics can never be the basis for post-conviction relief. (People v. Edmonds (1979), 79 Ill. App. 3d 33, 398 N.E.2d 230.) “When a defendant attacks competency of counsel for failing to call or contact certain witnesses, he must attach affidavits of these witnesses to his post-conviction petition and explain the significance of their testimony.” People v. Carmickle (1981), 97 Ill. App. 3d 917, 920, 424 N.E.2d 78.

In the case at bar, defendant’s allegations do not sustain his burden so as to require an evidentiary hearing. His allegations regarding counsel’s cross-examination reveal nothing more than trial tactics. Furthermore, defendant’s post-conviction petition is completely devoid of affidavits or supporting evidence regarding the expert testimony defendant asserts counsel should have elicited.

Regarding the allegations of incompetence of appellate counsel, the decision of appellate counsel not to raise certain issues will not be challenged unless his decision is clearly erroneous. (People v. Martin (1976), 38 Ill. App. 3d 209, 347 N.E.2d 200.) In the case at bar, there is absolutely no indication that appellate counsel was mistaken in his decision to raise certain issues on appeal and not raise other issues. There is absolutely no showing by defendant that any alleged act of incompetence by his attorneys likely affected the outcome of his case. (People v. Scott (1981), 94 Ill. App. 3d 159, 418 N.E.2d 805.) We therefore conclude that the trial court did not abuse its discretion in granting the State’s motion to dismiss defendant’s petition without an evidentiary hearing.

For these reasons, the judgment appealed from is affirmed.

Judgment affirmed.

BUCKLEY and O’CONNOR, JJ., concur.