author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NEIL SEEFELDT, Defendant-Appellant.
    Second District
    No. 82—4
    Opinion filed January 26, 1983.
    Burl F. Nader, of Libertyville, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant, Neil Seefeldt, was arrested on May 21, 1981, and charged with driving a vehicle while under the influence of intoxicating liquor. He was convicted after a jury trial and ordered released on conditional discharge. He appeals, contending that where, as here, no chemical analysis of the defendant’s bodily substances has been undertaken, the standard “under the influence of intoxicating liquor,” which is not further defined, causes the statute to be void for vagueness and cannot support the charge.

The pertinent portions of the statute are as follows:

“Persons under the influence of intoxicating liquors or narcotic drags, (a) No person who is under the influence of intoxicating liquor may drive or be in actual physical control of any vehicle within this State.
* * *
(c) Upon the trial of any action or proceeding arising out of the acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person’s blood at the time of the act alleged as shown by a chemical analysis of his breath, blood, urine, saliva or other bodily substance is admissible, as provided hereinafter in this paragraph (c) and the result of any such analysis shall give rise to the following presumptions:
1. If there was at the time of such analysis 0.05 percent or less by weight of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of intoxicating liquor;
2. If there was at the time of such analysis in excess of 0.05 percent but less than 0.10 percent by weight of alcohol in the person’s blood, such fact shall not give rise to any presumption that the person was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining whether such person was under the influence of intoxicating liquor;
3. If there was at the time of such analysis 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor.” Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501(a), (c).

A statute which forbids the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process. (Missouri Pacific R.R. Co. v. Commerce Com. (1948), 401 Ill. 241, 250.) However, the strong presumption of constitutionality enjoyed by a statute is not overcome unless the terms of the statute are so ill defined that their meaning will be ultimately determined by the opinions and whims of the trier of fact rather than any objective criteria. (People v. La Pointe (1982), 88 Ill. 2d 482, 499; Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 33.) The line separating forbidden from permitted conduct need not be marked out with absolute precision; it is sufficient if “no one can come near it without knowing that he does so, if he thinks, and if he does so, it is familiar to the criminal law to make him take the risk.” (People v. Mancuso (1931), 255 N.Y. 463, 470, 175 N.E. 177, 179, quoting United States v. Wurzbach (1930), 280 U.S. 396, 399, 74 L. Ed. 508, 510, 50 S. Ct. 167, 169.) Moreover, a statute imposing a general duty is not void for uncertainty if the words used have acquired an established meaning through established precedents. Missouri Pacific R.R. Co. v. Commerce Com. (1948), 401 Ill. 241, 250.

The phrase “under the influence of intoxicating liquor” is therefore not void for vagueness, even assuming the complete unavailability of chemical-analysis data. Several courts have noted that the phrase is one in longstanding common usage and requires no detailed elaboration. As noted by one court, “the expression ‘under the influence of intoxicating liquor’ is in common, everyday use by the people. *** When a person is so affected by intoxicating liquor as not to possess that clearness of intellect and control of himself that he otherwise would have, he is under the influence of intoxicating liquor.” (State v. Graham (1929), 176 Minn. 164, 169, 222 N.W. 909, 911.) The challenged phraseology is sufficiently clear even standing alone. (Welch v. State (1929), 43 Okla. Crim. 47, 49, 277 P. 280, 281; Weston v. State (1937), 49 Ariz. 183, 186-87, 65 P.2d 652, 654; Nelson v. State (1924), 97 Tex. Crim. 210, 261 S.W. 1046; Cook v. State (1964), 220 Ga. 463, 465, 139 S.E.2d 383, 385; State v. Tiernan (Iowa 1973), 206 N.W.2d 898, 901.) Furthermore, “under the influence of intoxicating liquor” has long been held to mean, in the case law of this State, “a condition, caused by the consumption of intoxicants, that makes a person less able, either mentally or physically, or both, to exercise clear judgment, and with steady hands and nerves operate an automobile with safety to himself and to the public.” People v. Wheatley (1972), 4 Ill. App. 3d 1088, 1090; Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 754. See also People v. Sullivan (1971), 132 Ill. App. 2d 674, 677.

Finally, a statute may become clearer when seen in the light of the legislative objective and the context in which it is placed. (People v. La Pointe (1982), 88 Ill. 2d 482, 499-500.) The legislative intent to prevent driving by those with diminished ability to do so safely because of alcohol consumption is plain enough; the dangers of such conduct are well known to the public and “a person of ordinary intelligence would have [no] difficulty in understanding that if he has drunk anything containing alcohol, and particularly any substantial amount thereof, he should not attempt to drive or take control of a motor vehicle.” Greaves v. State (Utah 1974), 528 P.2d 805, 808.

Other jurisdictions have also rejected similar constitutional attacks on similar or identical statutory language. State ex rel. Sellers v. Parker (1924), 87 Fla. 181, 190, 100 So. 260, 263; Nelson v. State (1924), 97 Tex. Crim. 210, 261 S.W. 1046; Weston v. State (1937), 49 Ariz. 183, 65 P.2d 652; State v. Titak (1955), 75 Ohio Law Abst. 430, 144 N.E.2d 255, 257; State v. Dudley (1925), 159 La. 872, 106 So. 364; State v. Graham (1929), 176 Minn. 164, 222 N.W. 909; Cook v. State (1964), 220 Ga. 463, 465, 139 S.E.2d 383, 385; State v. Tiernan (Iowa 1973), 206 N.W.2d 898, 901.

Section 11 — 501(a) of the Illinois Vehicle Code is not unconstitutionally vague or incomplete. Therefore the judgment of the circuit court of Lake County is affirmed.

Affirmed.

REINHARD and HOPF, JJ., concur.

      Section 11 — 501 has been amended by Public Act 82 — 311, sec. 1, effective January 1, 1982, which retains the offense of driving or being in actual physical control of a vehicle while “under the influence of alcohol” and also makes it illegal for a person to drive or be in actual physical control of a vehicle while the person’s blood or breath alcohol concentration is 0.10 or more.


source: Caselaw Access Project

author: JUSTICE HOPF

license: Public Domain

text:
    CHARLES EMERY, Plaintiff-Appellant, v. KIMBALL HILL, INC., Defendant-Appellee.
    Second District
    No. 82—369
    Opinion filed January 26, 1983.

      Michael G. Boylan, of Geneva, for appellant.
    Lloyd J. Tyler and Salvatore C. Miglore, both of Tyler, Solomon & Hughes, of Aurora, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

The plaintiff, Charles Emery, appeals from an order of the circuit court of Kane County which dismissed his complaint against the defendant, Kimball Hill, Inc. (Kimball Hill), for failure to state a cause of action pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 45 (now codified Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615)).

On April 30, 1975, the defendant filed a forcible entry and detainer action for rent due and owing against the plaintiff and Victoria Emery, who is not a party to the lawsuit now before this court. Summons in the forcible entry and detainer suit was issued with a notation that the sheriff should serve either the plaintiff or Victoria Emery. The sheriff’s return of service indicated that he personally served Victoria Emery with summons. No return of service of process was recorded with respect to the plaintiff. On May 20, 1975, the trial court entered judgment in favor of Kimball Hill and against both the plaintiff and Victoria Emery for unpaid rent, attorney fees, and court costs. On March 20, 1980, Kimball Hill sent a letter to the circuit court of Kane County stating that the judgment against both Charles and Victoria Emery had been satisfied in October 1975.

On March 6, 1981, the plaintiff in this cause filed a limited appearance in the forcible entry and detainer action to challenge the court’s jurisdiction over his person. In his motion to vacate the judgment against him, he contended that the trial court did not have personal jurisdiction over him because he was never served with a summons in this matter. On March 11, 1981, the circuit court vacated the judgment order which had been entered against Charles Emery for want of personal jurisdiction over him. A week later the court dismissed with prejudice for forcible entry and detainer suit with respect to Charles Emery for lack of prosecution.

On July 15, 1981, the plaintiff, Charles Emery, filed a verified complaint against the defendant, Kimball Hill. Approximately six months later the plaintiff filed his second amended complaint, which consisted of three counts. Count I alleged, in effect that the defendant maliciously and wrongfully contrived to destroy the plaintiff’s good name, reputation, and credit by causing a judgment order to be entered against the plaintiff when the defendant knew or should have known that the trial court was without jurisdiction to enter the order for want of service of process on the plaintiff; that the defendant reported or caused to be reported to Trans Union Credit Information Co. (Trans Union) the fact that judgment had been entered against the plaintiff in the forcible entry and detainer action; that the written false credit report remained published until May 1981, constituting a continuing libel; that as a result of the publication of the false credit report by Trans Union, both Marshall Field & Co. and Weiboldt’s refused to extend credit to the plaintiff; and that the plaintiff’s good name, reputation, and credit rating have been greatly impaired as a result of the defendant’s actions. Counts II and III, which alleged, respectively, reckless and wanton conduct and negligence, realleged the same facts as count I.

The record in this cause also reveals that in May 1981 Trans Union, upon being contacted and informed by the plaintiff’s attorney that the forcible entry and detainer judgment had been vacated with respect to Charles Emery, removed the entry of the judgment from the plaintiff’s credit file and sent a corrected credit report to Marshall Field & Co.

On January 21, 1982, the defendant filed a motion to dismiss for failure to state a cause of action, pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 45), in which it alleged that the judgment entered against the plaintiff in the forcible entry and detainer action, although voidable, was a public record and a valid judgment of the circuit court; that the dissemination of the content of the judgment involved the publication of a matter which was true; and that the dissemination of the judicial proceedings in a civil cause is per se not libelous. In its letter of opinion, dated March 24, 1982, the trial court granted the defendant’s motion to dismiss, stating that the judgment in question was a part of the court record and, as such, was not libelous, even though it was defective.

Plaintiff contends on appeal that the trial court erred in dismissing his second amended complaint with prejudice for failing to state a cause of action in libel. He claims that the absolute privilege generally afforded to legal proceedings does not extend to publications of a void judgment order to a credit agency. We disagree.

Initially, we note that the plaintiff has not raised, either in his second amended complaint or in his appellate brief, the applicability of the Fair Credit Reporting Act (15 U.C.S.A. sec. 1681 et seq. (1982)) to the present case or the effect it might have on the matter in issue. Accordingly, we will not discuss either the relevancy of the Federal statute or the potential impact it might have on the case now before the court.

Absolute privilege protects anything said or written in a legal proceeding. (Libco Corp. v. Adams (1981), 100 Ill. App. 3d 314, 426 N.E.2d 1130; Weiler v. Stern (1978), 67 Ill. App. 3d 179, 384 N.E.2d 762; Macie v. Clark Equipment Co. (1972), 8 Ill. App. 3d 613, 290 N.E.2d 912.) Further, under section 16 of “An Act to revise the law in relation to clerks of courts” (Ill. Rev. Stat. 1979, ch. 25, par. 16), all documents, papers, and records filed in the clerk’s office are public records which are open to inspection by the public at all times. (Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 748, 415 N.E.2d 434.) The statute specifically provides for the maintenance of a judgment and execution docket which is available for public inspection. As was observed many years ago, the judgment docket is intended to afford full and complete information to the world of the judgment entered in a particular case. (See Day v. Graham (1844), 6 Ill. 435, 440-41.) Fair reports of what is shown on public records may be circulated freely and without liability. (Fite v. Retail Credit Co. (D. Mont. 1975), 386 F. Supp. 1045, 1046, aff’d (9th Cir. 1976), 537 F.2d 384.) Similarly, it is axiomatic that truth is a defense to a defamation action. Altman v. Amoco Oil Co. (1980), 85 Ill. App. 3d 104, 107, 406 N.E.2d 142.

It is also well established in Illinois that a communication reporting the contents of a judicial proceeding is privileged, although it contains defamatory statements, if it is (a) accurate and complete or a fair summary of the proceedings, and (b) not made solely for the purpose of causing harm to the person defamed. (Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 744, 415 N.E.2d 434, 443; Lulay v. Peoria Journal-Star, Inc. (1966), 34 Ill. 2d 112, 115, 214 N.E.2d 746.) The privilege attaching to the report of judicial proceedings obtains in situations where a defect in jurisdiction is merely with respect to the person of a party involved in the lawsuit, as opposed to the subject matter of the litigation. (See 50 Am Jur. 2d Libel & Slan der sec. 257 (1970).) In other words, the mere color of jurisdiction, in fact assumed, is sufficient to confer the privilege; it is not necessary that the court actually have jurisdiction before the privilege attaches. See Wahler v. Schroeder (1972), 9 Ill. App. 3d 505, 506-07, 292 N.E.2d 521.

Because this appeal arises from a motion to dismiss for failure to state a cause of action (Ill. Rev. Stat. 1981, ch. 110, par. 45 (now codified as Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615)), this court must accept as true all facts which are well pleaded and must determine whether the allegations of the plaintiffs complaint are sufficient, as a matter of law, to set forth a claim upon which relief may be granted. (Pelham v. Griesheimer (1981), 93 Ill. App. 3d 751, 753, 417 N.E.2d 882, aff’d (1982), 92 Ill. 2d 13, 440 N.E.2d 96.) Stated differently, the plaintiff’s cause of action should not be dismissed for insufficiency at law unless it clearly appears that no set of facts can be proved which will entitle him to recover. (Arnold v. Leahy Home Building Co. (1981), 95 Ill. App. 3d 501, 506, 420 N.E.2d 699; Long v. City of New Boston (1981), 95 Ill. App. 3d 430, 432, 420 N.E.2d 282, aff’d in part, rev’d in part (1982), 91 Ill. 2d 456, 440 N.E.2d 625.) Our supreme court has also emphasized that, in considering a motion to dismiss, the pleadings are to be construed strictly against the pleader. Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 17, 440 N.E.2d 96; Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 421, 430 N.E.2d 976.

In the present case, the plaintiff alleged in his complaint that the defendant informed the credit reporting agency, Trans Union, that a judgment had been entered against the plaintiff in the forcible entry and detainer action. Plaintiff’s complaint also admits that in fact such a judgment was entered. The complaint does not expressly state or allege at which point the defendant informed Trans Union of the judgment, that is, before or after the circuit court had vacated it. In argument before the trial court, the plaintiff seemingly asserted that the defendant had disseminated the information regarding the judgment after it had been vacated. However, from our reading of the record, it is evident that any report of the judgment to Trans Union occurred prior to December 10, 1980, since that was the approximate date in which Trans Union conveyed the information to Marshall Field & Co. The judgment order itself was not vacated until March 11, 1981. Thus, it is clear that up until March 1981 any communication regarding the existence of a judgment order against plaintiff was true and could not be the subject of a defamation action. (Altman v. Amoco Oil Co. (1980), 85 Ill. App. 3d 104, 107, 406 N.E.2d 142.) Further, the judgment in the forcible entry and detainer action is a public record and is therefore open to inspection by the public at all times. (Ill. Rev. Stat. 1981, ch. 25, par. 16.) The plaintiff has cited no authority which supports the proposition that the dissemination of a judgment order, by itself, constitutes libel. Finally, there is no allegation in the complaint that defendant disseminated the information after the judgment order had been vacated with respect to the plaintiff. The gravamen of plaintiff’s allegation of malice is that the defendant knew or should have known that the plaintiff had not been served with process in the forcible entry and detainer action and yet procured the judgment against him. Even assuming that Kimball Hill was aware that process had not been served on Charles Emery, the complaint still fails as a matter of law to allege a cause of action in defamation. The statement alleged to be defamatory was the republication of the judgment order itself, and any communication regarding the existence of such an order was a true reflection of a judicial and public record up until the time the judgment was voided in March 1981.

For the foregoing reasons, the order of the circuit court of Kane County dismissing plaintiff’s second amended complaint is affirmed.

Affirmed.

SEIDENFELD, P.J., and REINHARD, J., concur.


author: JUSTICE ALLOY

text:
    GURLEY THOMAS ASHBY, Plaintiff-Appellee and Cross-Appellant, v. RALPH PRICE, Defendant-Appellant.—(Thomas W. Dye, Cross-Appellee.)
    Third District
    No. 82-91
    Opinion filed January 26, 1983.

      James J. Elson and Ted W. Dennis, both of Canton, for appellant.
    Thomas W. Dye, of Macomb, for appellee, pro se.

    James E. McPeak, of Macomb, for appellee Gurley Thomas Ashby.
   JUSTICE ALLOY

delivered the opinion of the court:

Defendant Ralph Price appeals from the entry of judgment non obstante verdicto against him in this comparative negligence action. The jury had returned a judgment in favor of the plaintiff Gurley Ashby, in the amount of $30,000, but had found that the negligence was evenly apportioned between Price and Ashby. Plaintiff Ashby filed a post-trial motion, seeking judgment n.o.v., which the court granted him, finding that there was no evidence of his negligence in the accident. Defendant Price, on appeal, argues that the trial court erred in its judgment n.o.v. and that the court committed reversible error in refusing to allow the defense to impeach the plaintiff through the use of prior felony convictions. A cross-appeal has been filed by plaintiff Ashby against the court’s award of $700 in attorney fees to attorney Thomas Dye, a former counsel for plaintiff Ashby. Ashby argues that the award of fees was contrary to the manifest weight of the evidence and an abuse of discretion.

The pertinent facts in the record reveal that the plaintiff Ashby and defendant Price were involved in a motorcycle-automobile accident on November 6, 1979, in Macomb, Illinois. The diagram below, drawn by this court as an aid in explanation, approximates the street intersections involved and the physical facts of the accident.

The weather the day of the accident was clear. As shown in the diagram, the defendant Ralph Price was parked on the east edge of White Street, facing north. Price was stopped in the parking lane and had three passengers in his auto with him. Plaintiff Ashby was proceeding north on White Street on a motorcycle, traveling approximately 30 mph, the posted speed limit. When Ashby was about 130 to 140 feet from Price’s stopped auto, defendant Price, without turn signal or indication of any kind, began a slow turn from the parking lane into the northbound lane of traffic on White Street. Price testified at trial that he was not aware of the approaching motorcycle at that time, nor at all until after the accident. Ashby believed that Price was entering onto the northbound lane and would proceed north on White Street. Ashby testified that when he noticed the Price auto’s entrance into the northbound lane, he had insufficient time to stop so as to avoid a collision with the slow moving Price auto. Instead, as an avoidance move, Ashby quickly swerved his cycle into the southbound lane, to pass the Price auto. There was no approaching traffic in the oncoming southbound lane on White Street at the time. However, as Ashby swerved in order to pass, Price, again totally without signal of any kind, continued his left turn across both traffic lanes of White Street, heading for a driveway on the west side of the street. Suddenly surprised by seeing the Price auto continue its turn, thereby blocking the southbound lane, Ashby turned the cycle on its side (a maneuver utilized to avoid losing a leg in the impending accident) and skidded into the Price auto. Ashby estimated his speed at the time of the impact was 20 to 25 mph. The collision occurred in the southbound lane, and defendant Price’s auto was damaged between the doors on the driver’s side. Only two witnesses testified at trial, the plaintiff Ashby and the defendant Price. Price admitted his actions, as above set forth, and did not contradict the statements of plaintiff Ashby respecting the accident. The question of damages was contested as well as liability.

The jury returned a verdict in the amount of $30,000 in Ashby’s favor, but apportioned the negligence evenly between Ashby and Price. Thereafter, pursuant to plaintiff’s post-trial motion, the court entered its judgment n.o.v., for the plaintiff Ashby in the amount of $30,000. The court found that there was no proven negligence on the part of Ashby. We turn then to the first issue raised in the appeal: whether the court erred in entering judgment n.o.v. in Ashby’s favor.

As this court noted in Gullberg v. Blue (1980), 85 Ill. App. 3d 389, 391, 406 N.E.2d 927:

“The cardinal rule to be followed in determining the correctness of a judgment n.o.v. (non obstante verdicto is set forth in the case of Pedrick, which stated:
'*** In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.’ Pedrick v. Peoria & Eastern R. R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, 513, 514.”

We find no reason to alter this standard in the comparative negligence context, as questions of fact remain primarily within the purview of the jury. With this standard in mind, we examine the evidence in the instant case. There is no question raised concerning the negligence of the defendant Price in his operation of his auto. The question herein is whether there is evidence indicating that the plaintiff Ashby deviated from that standard of care which a reasonably prudent person, in his circumstances, would have used to avoid injury. (Bothun v. Wallace (1978), 61 Ill. App. 3d 365, 367, 377 N.E.2d 1054; Denniston v. Skelly Oil Co. (1977), 47 Ill. App. 3d 1054, 1065, 362 N.E.2d 712.) The defense finds evidence of Ashby’s negligence in his alleged failure to reduce speed upon seeing Price move from the curb and in his failure to stay in the northbound lane of traffic. The evidence indicates that Ashby was traveling 30 mph when he first observed the Price auto suddenly, without warning, pull into the northbound lane from a dead stop in the parking lane. Ashby was 130-40 feet away at the time, traveling roughly 44 feet per second. He testified that he did not have enough time to stop his cycle in order to avoid a collision with the slow-moving Price auto. In order to avoid a collision, he swerved into the southbound lane of traffic, intending to thereby avoid the Price auto by passing it. It is uncontradicted that the southbound lane of traffic was without traffic at the time, and Ashby’s belief that Price was going to proceed north in the northbound lane of White Street was completely reasonable, given the Price auto’s prior position and its movement, completely without signal.

The defense suggestion that it would have been reasonable for Ashby to have stayed in the northbound lane, thereby avoiding any collision, is premised upon a knowledge he did not have, nor could reasonably have been expected to have. The faulty premise is that Ashby knew or should have known that Price was going to make a slow left turn over two lanes of traffic and into a driveway on the opposite side of the street. Ashby cannot be faulted for failing to stay in the northbound lane. The defense also suggests there may have been negligence in Ashby’s excessive speed, but the suggestion that Ashby was traveling over 30 miles per hour is not supported by evidence in the record. Ashby’s statements as to his speed were not contradicted by Price, nor did the defense present expert evidence that the force of the impact indicated a speed in excess of 30 mph.

Similarly unsupported in the evidence is the defense assertion that Ashby had time to stop after first noticing the Price auto move into the traffic lane. Ashby indicated his speed and position prior to and at the time he first observed the Price auto entering his lane, and he indicated that he swerved to the left, in order to avoid a collision, because he didn’t have time to stop. There is no evidence in the record contradicting Ashby’s assertion that he had insufficient time to stop, in order to avoid a collision. Nor do we see a reasonable inference of any negligence from his failure to swerve to the right to avoid the collision, given the movement of the Price auto, and its position and speed, along with the obvious risks of and general prohibition against passing on the right. The defense would also find evidence of negligence in Ashby’s failure to reduce speed when swerving to the left, into the southbound lane of traffic. Yet, when the maneuver was begun, in order to avoid a collision, Ashby had no way of knowing or expecting that Price would cut off the southbound lane; and we would hardly term unreasonable a failure to reduce speed when entering the opposite lane of traffic, for the purpose of a swift pass of a slow moving vehicle in order to avoid a collision. It is especially true where, as here, the person passing has no way of knowing if the oncoming lane will remain free from traffic. In the circumstances, passing in an expeditious manner is not unreasonable. We find, on the evidence in the record, that there was no sufficient evidence for the jury to have concluded that Ashby breached any standard of care when he attempted to avoid the collision by swerving into the southbound lane, for the purpose of passing the Price auto. The jury’s assessment of comparative negligence was contrary to the manifest weight of the evidence and not supportable. The evidence, viewed most favorably to Price, overwhelmingly favored Ashby, such that a finding of Ashby’s negligence could not stand. The court properly entered judgment n.o.v. for plaintiff Ashby.

The other issue raised by the defense is whether the court erred in refusing to permit defense counsel to impeach the plaintiff Ashby through the use of prior felony convictions. The rule with respect to such impeachment was set forth in People v. Montgomery (1971), 47 Ill. 2d 510, 516, 268 N.E.2d 695:

“General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.”

The same standards are to be applied in civil cases. (Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 363 N.E.2d 805.) The defense offer of proof in the instant case indicated that the defendant had been convicted of possession of stolen merchandise, in 1972, and of theft of over $150, in 1977. There is no dispute that the convictions met the requirements of Montgomery "with respect to admissibility, except for the specific finding by the trial judge that there was too much danger of unfair prejudice. The court obviously felt that the probative value of the evidence was outweighed by its danger of unfair prejudice. The judge stated that he did not feel the ends of justice would be served by bringing the prior convictions to the jury’s attention. While the defense urges the relevance of the impeachment evidence as to both liability and damages, the record reveals that the facts concerning the accident are largely uncontradicted. There was no evidence put forth by the defense to contradict Ashby’s testimony concerning his speed or his ability to stop, despite counsel’s speculation on those matters. Further, while pain and suffering damages of necessity require a credibility assessment, there was some corroboration for lost earnings and medical bills incurred. Under all the circumstances, we find no abuse of discretion in the court’s decision to exclude the prior convictions, because of a determination of unfair prejudice as substantially outweighing their probative value.

For the reasons set forth, the judgment of the court in favor of the plaintiff, and against the defendant Price is affirmed.

We turn next to the issues involved in the cross-appeal, wherein plaintiff Ashby contends that the trial court abused its discretion in awarding intervening attorney, Thomas Dye, attorney fees in the amount of $700. The evidence in the record indicates that plaintiff Ashby had originally gone to the offices of attorney Thomas Dye, and there met with attorney Michael Karson, an associate, respecting his claims arising from the accident. Ashby and Karson entered into a written, contingent fee contract for legal services on the claim. The date of the contract was January 2, 1980. In May, 1980, attorney Karson left the Macomb area and before leaving informed his clients, including Ashby, that he was leaving and that Dye would be handling matters of his. After Karson’s departure, Ashby and Dye met a couple of times during the period from May to August 1980, concerning possible settlements, among other things. Neither Karson nor Dye filed any pleadings in the matter. In August 1980, Ashby informed Dye he was going to talk with other counsel. Dye testified herein that he was not informed at that time that he was dismissed from the case, but rather understood Ashby to mean that he was going to get another opinion. Ashby, for his part, testified that he dismissed Dye from the case in August 1980.

Ashby thereafter hired attorney James McPeak to prosecute his case, and it was McPeak who filed the action and tried the matter in court. Dye, who had filed his attorney’s lien, sought intervention in the case after judgment. At the hearing, in addition to the evidence above recited, Dye introduced into evidence a time record card, indicating that he and Karson, combined, had spent 14.7 hours of work on the case. Included in that was 6.8 hours spent by Dye protecting his rights as against Ashby. Dye testified that his hourly rate was $50 per hour, and the court awarded him fees in the amount of $700. From that judgment Ashby appeals. He argues that the court’s award of fees was contrary to the manifest weight of the evidence and an abuse of discretion.

An initial question is raised concerning the validity of the original contingent fee contract, between Karson and Ashby, as a basis for Dye’s recovery. Ashby argues that because that contract was between him and Karson, that Dye is limited to recovery on a quantum meruit basis. (See Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 710, 355 N.E.2d 86.) Dye responds, arguing that he was Karson’s employer and the contract was his, as owner of the firm. Nevertheless, Dye did not seek recovery for the contingent fee amount stated in the written contract. Rather, he sought recovery for the reasonable value of his services, as an attorney whose contingent fee contract had been unilaterally terminated by his client. (See In re Estate of Murphy (1978), 56 Ill. App. 3d 1037, 1040, 372 N.E.2d 878.) In other words, he sought recovery based upon a quantum meruit theory. Since both parties agree upon the ultimate basis for any recovery, we need not decide whether the quantum meruit recovery, if any, is based upon an oral agreement, implied in law, or upon a written contract, later assigned. With respect to Ashby’s claims that his discharge of Dye was for cause, based upon his failure to file any pleadings and upon the substitution of attorneys, it must be noted that the record indicates Ashby, at least initially, accepted the substitution of Dye for Karson. Furthermore, there was nothing to establish that the failure to file pleadings by Karson and Dye was unreasonable, improper or prejudicial to Ashby. At the very least, questions of fact existed with respect to the discharge, and we will not disturb the court’s implicit finding that the discharge of Dye was without justifiable cause. Similarly, there was a question of fact presented in the evidence concerning the date of discharge. The court determined that the discharge did not occur prior to the time Dye filed his attorney’s lien, and we find that determination supported in the evidence.

The question, as raised by the parties, is what was the reasonable value of the services rendered to plaintiff Ashby. In determining that, a court must consider the skill and standing of the attorney employed, the nature of the cause, the novelty and difficulty of the questions, the amount and importance of the subject matter, the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charges in the community and the benefits resulting to the client. (Laff v. Chapman Performance, Inc. (1978), 63 Ill. App. 3d 297, 307, 379 N.E.2d 773.) Ashby initially faults Dye for failing to establish the reasonableness of his hourly fee and for failing to specify the services rendered. However, evidence in the form of the time record card for Dye’s office, along with Dye’s testimony, indicated that 7.9 hours of work had been expended in preparing this personal injury case. Time was spent in conferences, interviews, research, obtaining medical bills and doctors’ report, telephone calls, letters and contact with the insurance adjuster. Sufficient specifics were presented with respect to the nature of the services performed by Karson and Dye on Ashby’s behalf. The record also indicates that Dye was an experienced attorney in the area and that his customary hourly fee was $50. Counsel for plaintiff Ashby did not successfully contradict that evidence, nor seek to challenge, as unreasonable, the hourly fee. Next, counsel for Ashby contends that no benefit was received by his client from the services rendered by Karson and Dye, and that, therefore, no recovery should be permitted Dye. It is sufficient to note that it would be inherently unfair to the attorney to permit his client to dismiss him, without justifiable cause, after the attorney had spent time preparing the case, and then to deny the attorney any compensation at all, because he had not settled or successfully tried the case prior to the discharge. What ultimate benefit Karson and Dye would have achieved is an unanswerable question, because by discharging Dye, Ashby prevented him from taking the matter to fruition. So far as this record shows, the lack of benefit is attributable to the discharge. Benefit is but one consideration, in any event, and in light of the work done by Dye and his association prior to discharge, and in light of the timing of the discharge, we are not persuaded that the lack of benefit should prevent Dye from recovering for the services rendered. We find that the court was correct in concluding that Dye was entitled to compensation for his services, at the rate of $50 per hour. However, we find error in the court’s calculations as to the amount of the recovery. The court gave Dye compensation for almost all of the 14.7 hours he claimed to have put into the case. However, by his own admission, only 7.9 hours of that was spent in preparing Ashby’s case. The other 6.8 hours claimed were spent for the purpose of protecting Dye’s rights to recovery of attorney fees. That time, spent on the lien, research, preparation of the intervention and hearings, was not time expended for Ashby. Rather, it was time spent by Dye solely for his own benefit, in seeking to enforce contract rights to compensation. What Dye is essentially attempting to recover for here is his attorney fees, and the “ordinary expenses and burdens of litigation are not allowable to the successful party in the absence of a statute, or in the absence of some agreement or stipulation specially authorizing the allowance thereof ***.” (Ritter v. Ritter (1943), 381 Ill. 549, 553, 46 N.E.2d 41; House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 50-51, 245 N.E.2d 468.) In the instant case, there is no statute or contractual provision relied upon by Dye for the recovery of his attorney fees in prosecuting his claim for attorney fees. Therefore, the court erred in awarding him compensation for the 6.8 hours spent in pursuing his claim.

The judgment of the circuit court in favor of Dye and as against Ashby is affirmed, insofar as liability is found, but is reversed as to the amount of recovery, with directions that a judgment be entered for $395.

The judgment of the circuit court of McDonough County in favor of Ashby, as against Price is affirmed in total.

Affirmed in part, reversed in part, with directions.

BARRY, P.J., and STOUDER, J., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. EILEEN PEZZETTE, Defendant-Appellee.
    Second District
    No. 81—1039
    Opinion filed January 26, 1983.
    T. Jordan Gallagher, State’s Attorney, of Sycamore (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Richard D. Larson and Scott R. Erwin, both of De Kalb, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from a pretrial order suppressing evidence of a blood alcohol analysis made of defendant, Eileen Pezzette, who is charged with driving under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95V2, par. ll-501(a)).

In this appeal we consider whether the results of a chemical analysis of defendant’s blood, to which she consented and which she requested, are inadmissible for failure to conform to the testing requirements of section 11 — 501(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 — 501(d)).

On October 16, 1981, defendant was charged with reckless homicide (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3(a)), subsequently dismissed, and driving under the influence of intoxicating liquor. She filed a motion to suppress evidence of a chemical analysis made of her blood, and a motion in limine to prohibit use of the results in trial, on the grounds that statutory procedures regulating such testing were not followed. At the hearing of the motions defendant and the State entered into a stipulation that if certain witnesses were called they would testify as follows:

Officer James Rhoades of the city of De Kalb Police Department would testify that on July 1, 1981, at 1:45 a.m., he was investigating an automobile collision and had a conversation with defendant in Kishwaukee Community Hospital; that he requested she submit to a blood test in order to determine the percentage of alcohol in her blood and she stated she needed time to consider that decision; he again made the request at 3:15 a.m. and she advised him she would not agree to do so, whereupon Officer Rhoades left the hospital.

Sharon Whitlock would testify that on July 1, 1981, she was employed as a medical technician at the hospital and was so certified by the American Society of Clinical Pathologists, having passed the Board of Registry examination; that she did not possess a permit issued by the State Department of Public Health to perform chemical analysis of blood, pursuant to section 11 — 501(d) of the Illinois Vehicle Code; that at 3:22 a.m. on July 1, 1981, defendant, Eileen Pezzette, requested Whitlock to draw a sample of Pezzette’s blood and analyze in order to determine the percentage of alcohol in the blood; that Whitlock thereupon withdrew two samples of defendant’s blood, according to these procedures: (a) the area of injection was wiped with a nonalcoholic and nonorganic disinfectant, (b) the injection was made with a sterile, dry hypodermic needle, and (c) the blood sample was deposited in a clean container with an inert stopper; alcohol was not used to clean the container and the blood was mixed with an anti-coagulant and a preservative; that Whitlock thereafter analyzed the blood sample by means of enzymatic reduction.

Dr. Krishna P. Reddy would testify that on July 1, 1981, he was employed by Kishwaukee Community Hospital as a medical doctor and pathologist, that the medical laboratory of the hospital under his direction has met the standards of accreditation of the College of American Pathology and was so accredited on July 1, 1981; that Sharon Whitlock was a medical technician who worked under his immediate supervision.

Dan Gerace would testify that on July 2, 1981, he was a police officer and interviewed defendant who told Gerace she had submitted to a blood test at the hospital on July 1 and the results were either 180 or 108, she was not sure.

In addition to the stipulation, testimony was presented at the hearing.

Defendant testified, inter alia, that Officer Rhoades asked her to take a blood test and she declined to do so in response to his request; after the officer left the hospital, defendant spoke to a nurse who made arrangements for a test at her request and a blood sample was taken from defendant by hospital personnel.

Donna Kubetz testified she was an employee of the hospital and explained blood tests to defendant; that defendant asked whether she could have a blood test done for her own interest to determine the results for herself and advised defendant she could do so; when defendant asked whether the test results could be used against her, Kubetz responded she could not say what would happen, but that the results could be subpoenable as part of defendant’s medical record; Kubetz also testified that defendant consented to the blood test, it was given to her, and Kubetz thereafter communicated the results to the De Kalb police.

After argument, the trial court made findings that defendant had refused to take the blood test requested by Officer Rhoades; she did request and submit to a blood test for her use which was performed by Sharon Whitlock; that Whitlock did not possess a permit issued by the Department of Public Health to perform chemical analysis of blood as required by section 11 — 501(d) of the Illinois Vehicle Code; that the Kishwaukee Community Hospital also lacked such a permit; that the test was for defendant’s own use, not in response to the officer’s requests; and, the test was not made in response to paragraph (f) of section 11 — 501 of the Code as it was not in addition to a test made at the direction of a law enforcement officer. Defendant’s motions to suppress evidence and in limine were thereupon granted, and the State appeals after filing a certificate of impairment of its case.

The State contends that compliance with the provision of section 11 — 501(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 — 501(d)) that chemical analysis of a person’s blood must be performed by one having a permit from the Department of Public Health is not a prerequisite to the admissibility of evidence of a blood test taken at defendant’s own request and not at the request of a law enforcement officer. Defendant asserts that as neither the hospital nor person analyzing her blood possessed permits from the Department of Public Health evidence of the test result is not admissible in her prosecution.

Section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501) provides, as relevant,

“(d) Chemical analysis of the person’s blood or breath to be considered valid under this Section must be performed according to uniform standards adopted by the State Department of Public Health, in cooperation with the Superintendent of State Police, and by an individual possessing a valid permit issued by that Department for this purpose. The State Department of Public Health is authorized to approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct such analysis and to issue permits which shall be subject to termination or revocation at the discretion of the State Department of Public Health.
(e) When an unconscious person or person otherwise incapable of refusal is given a blood test at the request of a law enforcement officer under the provisions of this Chapter, only a physician authorized to practice medicine in all its branches, a registered nurse or other qualified person may withdraw blood, in a manner prescribed by the Department of Public Health for the purpose of determining the alcoholic content therein.
(f) The person tested may have a physician authorized to practice medicine in all its branches, a qualified technician, chemist, registered nurse, or other qualified person of his own choosing to administer a chemical test or tests, at his own expense, in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.
(g) Upon the request of the person who submitted to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests must be made available to him or his attorney.”

We note initially this case must be distinguished from those in which a chemical analysis of blood was properly suppressed because the sample was taken from a defendant without satisfying the consent requirements of section 11 — 501(c) (Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501(c)). (Compare People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447; People v. Williams (1981), 103 Ill. App. 3d 876, 431 N.E.2d 1280; People v. Weissinger (1980), 90 Ill. App. 3d 700, 413 N.E.2d 497.) Here, defendant requested the test be performed for her own interest and purposes after declining to submit to it at the request of the police officer. Nor is there any indication in the record that law enforcement officials requested the hospital to forward the results to the police. See Murray v. United States (D.C. App. 1976), 358 A.2d 314, 381 n.11

In People v. Todd (1975), 59 Ill. 2d 534, 542, 322 N.E.2d 447, 452, the court considered the legislative history of section 11 — 501 and stated that “[t]he obligation to obtain consent appears to be the dominant intent of the legislature.” This court most recently noted in People v. Weissinger (1980), 90 Ill. App. 3d 700, 702, 413 N.E.2d 497, 499, that:

“[The] statutory intendment is to safeguard the rights of the defendant to preserve his bodily integrity and to be free of the need to give evidence against himself, to an extent greater than those rights are protected by the constitution.”

It thus seems apparent that the protective provisions of section 11— 501 of the Illinois Vehicle Code were formulated to prevent an accused from being subjected to nonconsensual or inaccurate testing procedures by law enforcement officers. That legislative purpose is obviated, or at least not implicated, where a blood test is administered at defendant’s own request and not in response to either a police request or to a prior test taken at the direction of a law enforcement officer.

That conclusion is supported also by the terms of the statute. Section 11 — 501(d) of the Code provides that before a chemical analysis of blood may be considered valid under section 11 — 501, the analysis must have been performed (1) by a person who possesses a valid permit issued by the Department of Public Health and (2) in accordance with the standards adopted by the Department. Section 11 — 501(e) of the Code permits a law enforcement officer to have blood drawn from an unconscious person; section 11 — 501(f) permits a defendant to have additional tests performed at her own expense after being subjected to a blood alcohol test at the direction of an officer; and, the third testing situation covered by the statute occurs where a person agrees to submit to a blood analysis at the request of an officer.

While the language of section 11 — 501(d) relating to compliance with the testing standards and permit requirements of the Department of Public Health are mandatory, and admissibility of the test results will be denied if not satisfied (see People v. Leffew (1975), 33 Ill. App. 3d 700, 705, 338 N.E.2d 480, 484, appeal denied (1976), 62 Ill. 2d 591), it seems clear the requirements of this section are a prerequisite only for the purposes of section 11 — 501. In the present case, defendant was not unconscious and section 11 — 501(e) is not applicable; as defendant had not been subjected to a test as a result of a police request the provisions of section 11 — 501(f) do not apply, as it has been held to be applicable only to the taking of tests in addition to those given at the request of the police. (See People v. Mankowski (1975), 28 Ill. App. 3d 641, 645-46, 329 N.E.2d 266, 269-70, appeal denied (1975), 60 Ill. 2d 599; People v. Bies (1971), 2 Ill. App. 3d 1001, 1003, 276 N.E.2d 364, 366.) Also, defendant did not consent to a test at the request of an officer. As none of the three situations to which the statute is directed are presented here we conclude it does not control the resolution of this case as section 11 — 501(d) is limited in application to cases where a chemical analysis of blood has been made at the request of the police.

In People v. Leffew (1975), 33 Ill. App. 3d 700, 705, 338 N.E.2d 480, 484, appeal denied (1976), 62 Ill. 2d 591, upon which defendant relies, this court determined the language of section 11 — 501(d) was mandatory and denied admission of blood test results where the doctor drawing the blood sample did not follow a Department rule prohibiting the use of alcohol to disinfect the area from which the sample was taken. Leffew must be distinguished, however, as there defendant consented to a police request that the test be conducted and protective terms of the statute which then obtained were not met.

Defendant does not argue that the medical technician who performed the blood analysis violated any of the standards for such tests adopted by the Department of Public Health. Nor has defendant suggested that Sharon Whitlock lacked the training and experience necessary to accurately carry out the test. Defendant stipulated that Whitlock was a medical technician who had been certified by the American Society of Clinical Pathologists after a registry examination and worked under the supervision of a medical doctor and pathologist who directs the accredited laboratory of the hospital in which the test was performed.

Instead, defendant contends only that the medical technician and hospital did not possess the permit required by section 11 — 501(d) for persons who make a chemical analysis of blood under that statute. A similar argument was considered in People v. Gasper (1981), 97 Ill. App. 3d 787, 789-90, 423 N.E.2d 510, 512. There, after defendant signed a consent form for blood analysis, samples were drawn by a medically qualified lab supervisor who did not, however, have the permit issued by the Department of Public Health required by section 11— 501(d). The blood was then analyzed by another person who was medically qualified to do so. The court rejected defendant’s argument the test results were not admissible absent the permit. It noted first that the permit requirement of section 11 — 501(d) applied only to the person analyzing the blood rather than the person who draws the sample, and, as defendant failed to show that the qualified person who analyzed the blood violated any of the Department standards the results were deemed admissible. Compare People v. Leffew (1975), 33 Ill. App. 3d 700, 338 N.E.2d 480 (standards violated in analyzing blood).

As the test administered in this case was not undertaken at the request of law enforcement officers and no basis has been shown to conclude that it was not competently performed and medically reliable, the trial court erred in suppressing the test results and entering its order in limine.

Accordingly, the judgment of the circuit court of De Kalb County will be reversed and the cause remanded for further proceedings.

Reversed and remanded.

REINHARD and HNVERZAGT, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT EARL DREW, Defendant-Appellant.
    Third District
    No. 82—237
    Opinion filed January 26, 1983.

      Florence L. Bennett, of Peoria, and Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Terry Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

On September 14, 1981, defendant, Robert Earl Drew, pleaded guilty to burglary of a commercial building and was sentenced by Judge Conway Spanton of the Rock Island County Circuit Court to a two-year term of probation. On November 4, 1981, the Rock Island State’s Attorney filed a petition to revoke defendant’s probation on grounds that defendant had violated the conditions of his probation by burglarizing a residential building. The matter was heard by Judge Jay M. Hanson on January 13,1982.

At the probation revocation hearing, it was established that the residence was burglarized on October 15, 1981. A jacket and hat taken from the residence were found in defendant’s possession. The defendant’s cap was found in the residence, and his jacket was found with several of the stolen items in the vicinity of an apartment building construction near the burglarized residence. Joey Watson, an accomplice who had pleaded guilty to the October 15 burglary, testified that the defendant had committed the October 15 burglary with his (Watson’s) assistance. Further testimony tended to corroborate the defendant’s participation in the October 15 burglary.

The defendant’s probation officer, Steven Johnson, testified that Robert Earl Drew was a client of his since September 14, 1981. Johnson also testified that his client was seated at his left in the courtroom. Watson testified, that he knew defendant was on probation on October 15,1981, when they burglarized the residential building.

At the close of all evidence and arguments of counsel, the trial court found that defendant had violated his probation by committing a burglary on October 15, 1981. Defendant was subsequently sentenced to a four-year term of imprisonment.

On appeal, defendant raises two issues: (1) whether the State failed to prove that the defendant was the individual placed on probation on September 14, 1981; and (2) whether in sentencing the defendant to a four-year term of imprisonment the trial court improperly commingled the circumstances of the underlying offense with the events leading to probation revocation. We affirm.

The crux of defendant’s initial argument is that none of the State’s witnesses at the probation revocation proceedings were present at the guilty plea and sentencing proceedings which took place on September 14, 1981. Therefore, he argues, it was not established that in fact he was the same Robert Earl Drew who was placed on probation. In addition, defendant argues, the probation officer who identified his client, Robert Earl Drew, as the person seated to his left, failed to establish for the record that the person thus identified was the defendant in the instant probation revocation proceedings.

While we are not unimpressed with the ingenuity of defendant’s arguments, neither are we convinced that defendant is thereby entitled to a reversal. We believe that the State’s evidence was sufficient under the appropriate preponderance of the evidence standard (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—4(c)) to establish both that the defendant was on probation at the time of the October 15 burglary and that he was the Robert Drew who had been sentenced to probation on September 14, 1981. (See People v. Speight (1979), 72 Ill. App. 3d 203, 389 N.E.2d 1342.) Although the record does disclose that the defendant was the person seated to Officer Johnson’s left in the courtroom, it does not affirmatively disclose that the person so seated was named “Robert Earl Drew,” a name not exactly unfamiliar to the defendant. Watson identified the defendant as Robert Drew, as the person who had assisted him in the October 15 burglary, and as a person whom Watson knew to be on probation. The common law record contains a copy of Robert Earl Drew’s arrest card for a July 24, 1981, burglary which describes him as a black male, age 18, with black hair, brown eyes, 6’2” tall and weighing 145 lbs. The disposition report for that offense shows that Robert Earl Drew was convicted and sentenced to two years’ probation on September 14, 1981. The defendant, Robert Earl Drew, appeared in person at the probation revocation hearing and was observed by Judge Hanson. Given the totality of evidence of record, we feel confident that the trial court did not err in its finding that the defendant appearing before him on January 13, 1982, was in fact the same Robert Earl Drew who had been sentenced to probation on September 14, 1981. We therefore decline defendant’s invitation to reverse on grounds of faulty identification.

Defendant’s second contention on appeal is that he is entitled to a new sentencing hearing because Judge Hanson referred to the residential burglary in imposing a sentence of imprisonment.

We have reviewed the record and are not persuaded that Judge Hanson imposed the four-year prison term solely on the facts surrounding the October 15 burglary without consideration of the facts and circumstances of the underlying conviction for burglary of a commercial building. In People v. Ellis (1977), 48 Ill. App. 3d 221, 363 N.E.2d 33, as in the present case, defendant was sentenced to probation by one judge and found to have been in violation of probation by another. The latter judge had no evidence of the original offense when he imposed a prison sentence of three to nine years. On review, the court vacated the sentence and remanded for a pew sentencing hearing, finding that it would not have been possible for the sentencing judge to weigh the seriousness of an offense for which no evidence had been presented to him. 48 Ill. App. 3d 221, 225, 363 N.E.2d 33, 36.

In contrast to Ellis, the record in the present case contains ample evidence of the facts and circumstances surrounding the July 24 burglary of a commercial building in the pre-sentence investigation report. Judge Hanson acknowledged the fact that the underlying offense was burglary of a commercial building. His mention of the defendant’s post-conviction conduct, including the evidence of a residential burglary on October 15, does not render invalid the judge’s determination that a four-year prison term was an appropriate sentence for burglary of a commercial building. See People v. Banks (1978), 59 Ill. App. 3d 774, 375 N.E.2d 1360.

Having found no error, we affirm the trial court’s judgment and sentence.

Affirmed.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    THE VILLAGE OF MUNDELEIN, Plaintiff-Appellant, v. ROY AARON, Defendant-Appellee.
    Second District
    No. 82—343
    Opinion filed January 26, 1983.
    Jeffrey C. Ericksen, of Rosing, Carlson & Magee, of Waukegan, for appellant.
    Shaun McParland and Robert S. Soderstrom, both of McKenna, Storer, Rowe, White & Farrug, of Chicago, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiff, village of Mundelein, appeals from an order of the trial court granting defendant’s motion to suppress the audio portion of defendant’s recorded conversation. The audio portion of a tape recording of defendant’s statements was made while defendant was in custody of the village of Mundelein Police Department following an arrest for driving while under the influence of intoxicating liquor in violation of the village’s ordinance number 10, paragraph 7.01, and improper lane usage in violation of ordinance number 10, paragraph 3.13. Defendant’s motion to suppress was based on an alleged violation of the Illinois eavesdropping statute (Ill. Rev. Stat. 1981, ch. 38, par. 14 — 2).

Prior to determining the issues on appeal, a reviewing court must first determine whether it has jurisdiction, even if this issue is not raised by the parties. (Camp v. Chicago Transit Authority (1980), 82 Ill. App. 3d 1107, 1109.) Absent proper appellate jurisdiction, this appeal must be dismissed.

Initially, this court had some question as to whether or not the provisions of section 1 — 2—1.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 1 — 2—1.1) might be applicable to the ordinances in question and require that the prosecution of the offense conform to the rules of criminal procedure as provided in that section. Section 1 — 2—1.1 of the Illinois Municipal Code provides in pertinent part as follows:

“The corporate authorities of each municipality may pass ordinances, not inconsistent with the criminal laws of this State, to regulate any matter expressly within the authorized powers of the municipality, or incidental thereto, making violation thereof a misdemeanor punishable by incarceration in a penal institution other than the penitentiary not to exceed 6 months. The municipality is authorized to prosecute violations of penal ordinances enacted under this Section as criminal offenses by its corporate attorney in the circuit court by an information, or complaint sworn to, charging such offense. The prosecution shall be under and conform to the rules of criminal procedure. Conviction shall require the municipality to establish the guilt of the defendant beyond reasonable doubt.”

However, counsel for both parties agree that the ordinances of the village of Mundelein in question in this matter provided upon conviction for the imposition of a fine only. Since the violation of the ordinances was not punishable by imprisonment, the provisions of section 1 — 2— 1.1 of the Illinois Municipal Code are not applicable.

A prosecution for the violation of a municipal ordinance and to recover a fine or penalty therefore, while quasi-criminal in nature, is civil in form and is tried and reviewed as a civil proceeding. City of Creve Coeur v. Pelletier (1977), 45 Ill. App. 3d 59, 61; City of Highland Park v. Curtis (1967), 83 Ill. App. 2d 218, 228.

Since this matter is subject to review as a civil proceeding, the village as plaintiff may appeal from a judgment in the defendant’s favor. (Village of Park Forest v. Fagan (1976), 64 Ill. 2d 264, 267; Village of Park Forest v. Bragg (1967), 38 Ill. 2d 225, 227-29.) Generally, only final judgments are appealable as of right (87 Ill. 2d R. 301; Camp v. Chicago Transit Authority (1980), 82 Ill. App. 3d 1107, 1110; City of Springfield v. Ushman (1979), 71 Ill. App. 3d 112, 114). Appeals from interlocutory orders are permitted only as specifically provided for by Supreme Court Rules. The trial court’s order here is not the type of order from which an interlocutory appeal is allowed as a matter of right. (See 87 Ill. 2d R. 307.) Supreme Court Rule 308 (87 Ill. 2d R. 308) provides for the manner in which interlocutory appeals under certain circumstances may be taken by the permission of the appellate court. Plaintiff did not seek permission of this court for leave to appeal or otherwise attempt to comply with the requirements as set down in Supreme Court Rule 308. Since the plaintiff did not comply with the rules of the Supreme Court in taking its appeal, this court lacks appellate jurisdiction to review this matter and the appeal must be and is hereby dismissed.

Appeal dismissed.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


text:
    LESLIE H. ALLOTT PLUMBING AND HEATING, INC., Plaintiff-Appellant, v. OWENS-CORNING FIBERGLAS, Defendant-Appellee.
    Third District
    No. 82—502
    Opinion filed January 26, 1983.

      Anthony H. Hart, of Bloomington, for appellant.
    Stephen R. Swofford and John A. Sandberg, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The plaintiff, Leslie H. Allott Plumbing and Heating, Inc., filed a complaint against the defendant, Owens-Corning Fiberglas', a corporation, seeking money damages based on an alleged breach of contract. Following a jury trial, judgment was entered for the defendant and against the plaintiff.

The plaintiff, who failed to file a post-trial motion, brought this appeal seeking a reversal of the lower court’s judgment on the grounds that the jury’s verdict was not supported by the manifest weight of the evidence.

Section 2 — 1202(b) of the Illinois Code of Civil Procedure, formerly section 68.1 of the Civil Practice Act, requires that requests for a new trial must be sought in a single post-trial motion. The post-trial motion must state the points relied upon and the relief desired. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1202(b), formerly Ill. Rev. Stat. 1979, ch. 110, par. 68.1.) Supreme Court Rule 366(b)(2)(iii) limits the scope of review in civil jury cases to the points, grounds and relief specified in the post-trial motion. 87 Ill. 2d R. 366(b)(2)(iii).

The plaintiff’s failure to file a post-trial motion has resulted in a waiver of the issue it now seeks to raise on appeal. Before we can be asked to assess the propriety of the jury’s verdict, the trial judge, who is most familiar with the evidence and the -witnesses, must be given an opportunity to review his ruling and decide if a new trial or a judgment notwithstanding the verdict is appropriate. (Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337.) The plaintiff’s failure to file a post-trial motion has denied the trial judge the opportunity to reassess his decision.

For the foregoing reasons, this appeal is dismissed.

Appeal dismissed.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v DONALD HUNT, Defendant-Appellant.
    First District (5th Division)
    No. 80—2937
    Opinion filed January 21, 1983.

      Steven Clark and Karen Michels, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Sara Dillery Hynes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant was charged with three counts of murder and one of aggravated battery. Following a jury trial, he was found guilty on all counts and was sentenced to 25 years imprisonment. On appeal, he contends that: (1) the fact that a juror’s sister had been the victim of a crime very similar to the one for which defendant stood accused, which was not revealed during the voir dire examination, deprived him of his right to a fair trial by an impartial jury; (2) the trial court committed reversible error in refusing to allow testimony by the juror regarding his post-trial consultation with his private attorney during the hearing on a motion for a new trial; and (3) the juror’s failure to respond to a voir dire question deprived defendant of his statutory right to peremptorily challenge the juror.

There is no contention that guilt was not established beyond a reasonable doubt and, therefore, the following factual summary is confined to those relevant to the issues raised.

The victim, a 15-year-old prostitute, was killed when she leaped from a third-floor window of defendant’s apartment. At trial, defendant’s signed confession was published to the jury and admitted into evidence. Defendant, a pimp, admitted that he had beaten the victim with a coat hanger and a five-foot-long “couple of inches” thick stick. The beating was inflicted as a punishment for the victim’s “loose mouth” and “lolligagging.” When the beating was interrupted, the victim broke away and attempted to escape, but she was unable to do so because a front gate was locked. Then, with defendant in pursuit brandishing the stick, the victim fled throughout the various rooms of the apartment, running finally into the dining room. There, defendant saw her standing near the window, stepping onto the window ledge, and jumping out the window to her death.

On the evening after the trial, following the jury’s discharge, defense counsel encountered Eugene Johnson, one of the jurors in the case, as he exited the courthouse. Counsel asked the juror if he would mind talking with him about the deliberations. In reply to defense counsel’s questions, Johnson stated that one of the women jurors had raised a question about the defendant’s failure to testify but that the foreman of the jury told her that they were to disregard this, and that no further discussion was had concerning that issue. Johnson also told defense counsel that he “had seen things like that happen before,” and that in his own particular experience, he had had a sister who was beaten and killed by a pimp at a time when he was seven years old. He also mentioned that the incident had no bearing on his decision at the trial.

At the hearing on defendant’s motion for a new trial, Johnson was called as a witness for the defense. Johnson testified on direct examination that defense counsel had approached him, and that they had a conversation as described above. On cross-examination the State’s Attorney asked Johnson whether despite what he had revealed to the court, he was able to render a fair and impartial verdict. Johnson responded affirmatively. He further stated that his experience had no bearing on his decision in the case, and that he had not discussed the incident with any other jurors. On redirect examination defense counsel questioned Johnson in the following manner:

“Q. Mr. Johnson, I spoke with you also yesterday regarding this matter, did I not?
A. Right.
Q. And when I spoke with you yesterday, you informed me that you had been to an attorney and been advised by him that you could be getting yourself into trouble by coming here to testify, is that right?
A. Right.
[ASSISTANT STATE’S ATTORNEY]: Objection.
THE COURT: The Court will sustain the objection to that question. That’s beyond what is before the Court.”

After arguments, the motion for a new trial was denied and sentencing hearing commenced.

Opinion

We turn first to defendant’s contention that the juror’s failure to disclose that his sister had been the victim of a crime very similar to the one for which he was tried denied him of his right to a trial by a fair and impartial jury. While it is firmly established that an accused’s right to trial by an impartial jury is a basic right (People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705), it is also recognized that a juror’s failure to reveal potentially prejudicial information during voir dire, or even his false testimony during voir dire, does not automatically entitle a defendant to a new trial. (Pekelder v. Edgewater Automotive Co. (1977), 68 Ill. 2d 136, 368 N.E.2d 900; People v. Logan (1980), 87 Ill. App. 3d 351, 408 N.E.2d 1086; People v. Farris (1980), 82 Ill. App. 3d 147, 402 N.E.2d 629.) In Pekelder, the Illinois Supreme Court confirmed that the standard to be applied in cases, such as the instant one, is that of actual prejudice. (68 Ill. 2d 136, 139, 368 N.E.2d 900, 902.) A similar standard was recently upheld by the United States Supreme Court in Smith v. Phillips (1982), 455 U.S. 209, 71 L. Ed. 2d 78, 102 S. Ct. 940. The court there stated that due process does not require that a new trial be granted every time a juror has been placed in a potentially compromising situation and the remedy for allegations of jury impartiality is a hearing in which defendant has the opportunity to prove actual bias on the part of the juror. (Smith; but see People v. Craig (1977), 47 Ill. App. 3d 242, 361 N.E.2d 736, where the court held that the procedure to be used at the hearing on this issue rests within the discretion of the trial court.) In Illinois, the burden of showing that the juror is not impartial is on the party challenging the juror. (Cole.) The determination on this issue, however, rests in the sound discretion of the trial court, and in the absence of clear abuse, that discretion will not be disturbed on appeal. Pekelder; Cole; Farris; see also McCoy v. Goldston (6th Cir. 1981), 652 F.2d 654.

In the instant case the trial court conducted a hearing on defendant’s motion for a new trial. Only Johnson gave testimony. He testified that despite the fact that his sister had been beaten and killed by a pimp when he was seven years old, he was able to render a fair and impartial verdict; that his experience had no bearing on his decision in the case; and that he had not discussed the incident with any other jurors. The trial court was apparently convinced of the truth of Johnson’s testimony. The experience related by Johnson was not such as to require us to say that the court could not have accepted the truth of his statements. Under the circumstances we conclude that the trial court’s determination as to the impartiality of this juror was not against the manifest weight of the evidence, and therefore we will not set it aside.

We note at this point that defendant has argued that the nature of Johnson’s past personal experience was such that he should have been presumed to be biased as a matter of law. Although the Illinois Supreme Court has recognized that there are certain relationships which may exist between a juror and a party to the litigation which are so direct that a juror possessing them may be presumed to be biased (see generally People v. Cole (1973), 54 Ill. 2d 401, 413, 298 N.E.2d 705, 712; see also Smith v. Phillips (1982), 455 U.S. 209, 71 L. Ed. 2d 78, 102 S. Ct. 940 (O’Connor, J., concurring)), defendant here has shown no such relationship to exist between the juror and any party in this case, and thus we deem it unnecessary to consider this contention further.

Defendant next contends that he was precluded from demonstrating actual prejudice on the part of this juror when the trial court sustained the State’s objection to the above-quoted questions touching upon the juror’s consultation with his personal attorney. We disagree.

The question was posed evidently in an effort to discredit Johnson’s testimony that he had rendered a fair and impartial verdict by calling attention to his attorney’s admonition. While it is a general rule that a party who calls a witness to testify cannot directly impeach his testimony (People v. Wesley (1959), 18 Ill. 2d 138, 163 N.E.2d 500), and under Supreme Court Rule 238, “[t]he party calling an occurrence witness, upon the showing that he called the witness in good faith and is surprised by his testimony, may impeach the witness by proof of prior inconsistent statements” (73 Ill. 2d R. 238), the ultimate determination as to whether impeachment of a witness on the ground of surprise should be permitted is left to the sound discretion of the trial judge. Wesley; People v. Kerans (1982), 103 Ill. App. 3d 522, 431 N.E.2d 726.

The instant record reveals no attempt by defendant to make a showing of unexpected or surprise testimony arising from Johnson’s testimony at the hearing. Indeed, from the representations of defense counsel at the hearing, it appears that Johnson’s testimony in fact generally comports with his prior statements. In any case, defendant has made no offer of proof, has presented no affidavits and has offered no testimony inconsistent or contradictory to the testimony of his witness. Accordingly, we find that the trial court properly disallowed defense counsel to impeach Johnson by calling his attention to his former statements.

Finally, defendant argues that juror Johnson’s silence during voir dire abrogated defendant’s statutory right to peremptorily challenge him. (See Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(e).) Even assuming this is true, under the authorities we have cited above, in lilinois a juror’s failure to reveal potentially prejudicial or even his false testimony during voir dire entitled defendant to a post-trial hearing bearing upon the issue of actual prejudice or bias. Since the hearing and determination on this issue would have adequately protected defendant’s right to due process of law, we can see no reason to hold that since defendant was prevented from availing himself of the peremptory challenge in such a manner, he should automatically be entitled to a new trial. See Smith v. Phillips (1982), 455 U.S. 209, 218-19 n.8, 71 L. Ed. 2d 78, 87 n.8,102 S. Ct. 940, 946 n.8.

Defendant’s reliance on McCoy v. Goldston (6th Cir. 1981), 652 F.2d 654, is misplaced. In that case the district court had refused to conduct a post-trial evidentiary hearing on the issue of a juror’s probable bias. Further, a question existed as to whether the juror had deliberately concealed or purposefully given incorrect responses during voir dire sufficient to show a prejudicial impairment of the right of peremptory challenges. Unlike McCoy, defendant in the instant case was afforded a post-trial hearing on the issue of the juror’s alleged bias and defendant presented no facts there which indicated that Johnson intentionally concealed or purposefully gave incorrect answers.

From the record we believe that defendant was tried by a fair and impartial jury.

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

Affirmed.

SULLIVAN and LORENZ, JJ., concur.

      At the voir dire examination conducted prior to trial, the trial court posed the following question to a group of prospective jurors: “Do any of you have close relatives, a husband or wife, or a sister or a brother, or son or daughter that [sic] has been the victim of a crime? If so, please stand.” Juror Johnson did not stand in response to this question. He did, however, respond affirmatively to the question, “Have any of you *** ever been the victim of a crime?” He informed the court that he had been the victim of an armed robbery and that no one had ever been charged for that crime.


author: JUSTICE JIGANTI

text:
      In re APPLICATION OF THE COUNTY TREASURER AND EX-OFFICIO COUNTY COLLECTOR OF COOK COUNTY.-(Janice Clark, by Georgetta Jackson, Next Friend, Petitioner-Appellant, v. First Lien Co., Respondent-Appellee.)
    First District (4th Division)
    No. 81—2481
    Opinion filed January 20, 1983.
    JOHNSON, J., dissenting.
    Nelson F. Brown, of Chicago, for appellant.
    Bruce M. Buyer, of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

This is an appeal from an order dismissing a petition under section 72 of the Civil Practice Act. The petition sought to vacate an order directing the issuance of a tax deed. The petitioner, Georgetta Jackson, is the aunt and next friend to an alleged, but unadjudicated, incompetent, Janice Clark. The section 72 petition alleged that Janice had an interest in the property subject to the tax deed, that she was entitled to notice of the tax proceedings, and that the defendant’s wilful and intentional misrepresentation to the court that she had been properly notified through a guardian ad litem prevented her from effectively protecting her interest in the property.

The facts in this case track a piece of real property, a vacant brick bungalow, located at 9241 S. LaSalle Street, Chicago, Illinois. The property was part of the estate of Clyda Clark, mother of Janice and Mildred Long. Probate proceedings on Clyda’s estate were still pending at the time of the issuance of the tax deed. An Alan Jacobs had been appointed guardian ad litem for Janice for purposes of the probate proceedings.

More than three months prior to the expiration of the redemption period, First Lien Company, the certificate holder of the property and the instant defendant, directed the clerk of the circuit court to send notice by certified mail to Janice at 12333 South Lowe. Certified letters were also sent to Mildred Long at that address and to Clyda at 9241 South LaSalle Street. All three of these letters were returned undelivered. A similar notice to Alan Jacobs apparently was delivered. A second certified letter to Janice at the Lowe address was sent by the sheriff’s office. It was returned “Addressee Unknown.” Personal service was then attempted on Clyda at the LaSalle Street address, but the property was vacant. Personal service was had on Mildred Long on June 23, 1979. On the same day, personal service for Janice was accepted by her sister, Mildred Long, at the Lowe Street address. Personal service was also had on Alan Jacobs. Public notice was then placed in the Chicago Daily Law Bulletin on July 6, July 13, and July 20, 1979. Janice’s name was specifically mentioned in the published notice.

The tax deed proceedings were held on November 29, 1979. Georgetta Jackson, petitioner here, was present with her husband. Steven A. Schultz, an agent of First Lien, testified to the various above described attempts to serve notice on Janice. Schultz also testified that in his investigation of the probate proceedings, he found that Janice, an incompetent, was located at 12333 South Lowe and that Alan Jacobs had been appointed her guardian ad litem in the probate proceedings. The court also inquired whether any incompetents were involved in the tax deed proceedings. Mr. Jackson, Georgetta’s husband, responded, “There is an incompetent.” The court then commented, “But he’s represented by a guardian.” Bruce Buyer, attorney for First Lien, then responded, “Alan Jacobs was served.” Georgetta and her husband remained silent. On October 22, 1980, the court issued the order for a deed. The order stated that all parties interested in or claiming an interest in the real estate had been properly notified.

On May 13, 1981, approximately seven months after the tax deed was ordered, Georgetta Jackson filed her section 72 petition. The petition set out the facts stated above and alleged that the actions of the agent and attorney of First Lien Company in the tax proceedings were “calculated to and did deceive” the court into believing that Alan Jacobs was Janice’s guardian. This alleged deception was carried out so that the court would not make further inquiry into the necessity of protecting the rights and interest of an unrepresented, incompetent person in the proceedings.

On May 28, 1981, First Lien moved to strike and dismiss the section 72 petition on the grounds that the petition failed to set forth the proper elements of fraud necessary to collaterally attack a tax deed order. The motion also alleged that the petition failed to show the jurisdictional prerequisite of due diligence necessary for a section 72 petition. On September 14, 1981, the court granted First Lien’s motion.

On appeal, the petitioner claims that her section 72 petition properly alleges fraud and states a cause of action; that Georgetta has standing to file such a petition; and that lack of due diligence cannot be attributed to an incompetent. We believe that the issue dealing with the allegation of fraud is the major issue on appeal and is dispositive of this case.

To prevail in a section 72 motion which seeks to set aside a deed, the petitioner has the burden of proof by clear and convincing evidence, and not merely by suspicion, that there has been a wrongful intent on the part of the defendant, reflected by an act calculated to deceive or a deceptive design. (In re Application of Cook County Treasurer (1981), 100 Ill. App. 3d 534, 426 N.E.2d 997.) The petitioner is held to this high standard of proof because the legislature intended to provide for the uncontestability of tax deeds by subjecting them only to direct attack and, under only the most limited circumstances, to collateral attack. Shapiro v. Hruby (1961), 21 Ill. 2d 353, 172 N.E.2d 775.

In its attempts to notify Janice, First Lien followed the statutory notice requirements relating to “parties interested in such real estate” outlined in sections 263 and 266 of the Illinois Revenue Act (Ill. Rev. Stat. 1981, ch. 120, pars. 744, 747). Under section 263, the purchaser is required to send notice not less than three months prior to the expiration of the redemption period of such purpose to any person interested in the real estate. If that person cannot be found in the county upon diligent inquiry, a certified letter, return receipt requested, should be dispatched. Under section 266, if the interested party still cannot be found, notice by publication shall be given three times. Notice of the date of the tax proceedings must also be given. First Lien followed these procedures in an attempt to notify Janice. In addition, First Lien served notice upon Janice’s last guardian of record, Alan Jacobs; upon her sister, Mildred Long, who accepted personal service on Janice’s behalf at Janice’s last address of record; and upon Janice’s aunt and next friend who was present at the hearing on the tax proceedings and who was accompanied by her husband, Janice’s uncle, who testified.

We believe these facts support the conclusion that First Lien acted in a manner which belies fraud in trying to notify Janice and that those persons most likely to protect Janice’s interest, namely her sister, her guardian ad litem for proof of will, and her aunt, had notice of the proceedings and the opportunity to be present and to be heard on Janice’s behalf. It has been held that absolute perfection is not required in a petition for a tax deed provided reasonable opportunity has been given to interested parties to protect their interests. People v. Orth (1961), 21 Ill. 2d 205, 171 N.E.2d 626.

The petitioner, however, specifically cites the interchange between First Lien’s attorney, Bruce Buyer, and the judge to support their claim that the defendant “wilfully and intentionally misrepresented” to the court that Alan Jacobs was Janice’s guardian ad litem in the tax proceedings so that consequently, Janice’s interest was not properly represented. The judge inquired as to whether there was an incompetent involved and whether a guardian existed. Buyer responded, “Alan Jacobs was served.”

We believe that these four words cannot be taken out of the context of the whole tax proceeding and also out of context of First Lien’s reasonable efforts to serve notice on Janice prior to the proceedings in order to properly support an allegation of fraud necessary to a section 72 petition. Therefore, the trial court did not abuse its discretion when it dismissed this petition.

For the above reasons, we affirm the decision of the trial court.

Affirmed.

ROMITI, J., concurs.

JUSTICE JOHNSON, dissenting:

I dissent. In my opinion, the section 72 petition properly alleges fraud and states a cause of action. Findings of a court before which tax deed proceedings are held may not be collaterally attacked except as provided by section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), and relief thereunder is available under proof of fraud. (Zeve v. Levy (1967), 37 Ill. 2d 404, 409, 226 N.E.2d 620, 623.) Fraud has been defined as a wrongful intent, an act calculated to deceive. (Smith v. D.R.G., Inc. (1976), 63 Ill. 2d 31, 37, 344 N.E.2d 468, 471.) Petitioner alleged that fraud was established by the following: at the hearing on its application for deed, First Lien knew, by virtue of its witness having checked the probate proceedings of Clyda Clark, that Alan Jacobs had been appointed as guardian ad litem for Janice Clark, an incompetent, only for the purpose of proof of will. Yet, petitioner claims, First Lien’s witness and attorney wilfully misrepresented to the court that Janice Clark had either a guardian or guardian ad litem representing her in the tax deed proceeding and that he had been personally served with the required notice. Although Jacobs was served, he had no authority or responsibility to accept such notice on Janice Clark’s behalf.

In In re Application of County Treasurer (1978), 67 Ill. App. 3d 122, 384 N.E.2d 729, the appellate court affirmed a finding of fraud where a man who had made more than 1,000 tax and title searches in 13 years failed to reveal the proper address of the owner at a hearing for tax deed. The court stated:

“[T]he purchaser withheld enough information to evidence a wrongful intent. Where the deed contains information to ascertain the truth concerning persons to be notified and the purchaser fails to notice it, there is sufficient evidence of bad faith to warrant concluding the deed was procured by fraud.” 67 Ill. App. 3d 122, 132.

At a hearing on November 29, 1979, the court asked the following:

“THE COURT: No minors or incompetent?
MR. JACKSON: There is an incompetent.
THE COURT: But he’s represented by a guardian.
MR. BUYER [attorney for First Lien]: Yes, Alan Jacobs was served.”

In my opinion, petitioner’s allegations of fraud are sufficient to state a cause of action under section 72 because First Lien did not advise the trial court that Jacobs was guardian of the incompetent only for purposes of proof of will.

Also, in my opinion, Janice Clark, by Georgetta Jackson, her next friend, had standing to file a section 72 petition under section 11a — 18(c) of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110½, par. 11a— 18(c)), which provides as follows:

“(c) The guardian of the estate of a ward shall appear for and represent the ward in all legal proceedings unless another person is appointed for that purpose as guardian or next friend. This does not impair the power of any court to appoint a guardian ad litem or next friend to defend the interests of the ward in that court, or to appoint or allow any person as the next friend of a ward to commence, prosecute or defend any proceeding in his behalf.” (Emphasis added.)

Finally, I would hold that lack of due diligence cannot be attributed to the incompetent Clark. In Haas v. Westlake Community Hospital (1980), 82 Ill. App. 3d 347, 349, 402 N.E.2d 883, 885, an incompetent was held not “accountable for any apparent delay, negligence or laches in seeking redress through the courts.”

For the reasons stated above, I would reverse the decision of the circuit court of Cook County dismissing the section 72 petition.

      Now codified as section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401).